This is an appeal by defendant from a judgment after verdict against him for two thousand one hundred dollars, with interest on one thousand five hundred dollars thereof from May 27, 1910, at seven per cent. Plaintiff is the vendee and appellant the vendor of a certain lot in Bakersfield under written contract dated May 27, 1910. Plaintiff alleges the contract, which she sets up in haec verba in her complaint; that she has paid one thousand five hundred dollars on the purchase price; that she made improvements on said property, but that at the time of the execution of the contract, as an inducement thereto, defendant falsely represented that he owned the title to said land; that plaintiff caused the *145
improvements in question to be made thereon; that at the time of the execution of said contract, there was pending an action involving the title to said land, wherein the title of defendant's grantor was attacked; that judgment therein was rendered February 5, 1912, against defendant's grantor; that in June, 1910, a separate and distinct action was brought by the plaintiffs in the last-mentioned suit against the plaintiff and defendant in this suit, based upon the same allegations, and on December 2, 1912, judgment was rendered therein, adjudging that neither plaintiff nor defendant had any title to or interest in said property. Plaintiff alleges that during all times up to the rendition of said judgment of December 2, 1912, she still believed the representations of the defendant that he owned said property. She alleges that the value of the property had increased subsequent to the purchase by her from seven thousand five hundred dollars, the purchase price, to fourteen thousand dollars; that she made certain improvements thereon, valued at one thousand dollars, and other improvements valued at $970; that she received nothing of value from defendant. Plaintiff demanded judgment for $8,970, with interest on one thousand five hundred dollars from May 27, 1910. Defendant answered, denying any fraud, admitting the payment of one thousand five hundred dollars to him; admitting the making of improvements valued at one thousand dollars, and affirmatively alleging that these improvements were made by him for plaintiff, and that he had not been paid therefor. By way of counterclaim as to said item, he alleged that the value of improvements alleged by plaintiff to be worth one thousand dollars, was $1,292, and demanded judgment for that amount. He also alleged the making of certain other improvements on the property by him at plaintiff's request, and the furnishing of cordwood, and alleged the value of said improvements and cordwood to be $372.60, and demanded judgment therefor. Upon the trial it was stipulated that the value of improvements made by defendant for plaintiff upon the property was $1,521, and the value of cordwood sold by him to plaintiff was $143, making the total amount thus due from plaintiff to defendant $1,664. As to the second item of $970 alleged by plaintiff, the defendant admits that amount by failure to sufficiently deny it, and plaintiff testified that she had paid "nearly one thousand dollars" on this item. It is therefore admitted that the plaintiff had made improvements *146
on the property valued at $2,491; that she owed the defendant on account thereof $1,521, and also owed him $143 for cordwood. The net value of the improvements made by plaintiff over the amount due the defendant was $837. The amount paid by the plaintiff on account of the property was, therefore, $2,337. The verdict of the jury was for two thousand one hundred dollars. Defendant also claimed $75 per month for the use of the premises, plaintiff having occupied the same for twenty-one months. But as plaintiff was occupying the premises as a tenant of the real owner when the contract was entered into, and had been sued by that owner for the rent, and as defendant had never owned the premises, the court properly refused to submit that question to the jury. We have thus dealt in detail with the facts, for the reason that we are called upon in this case to determine whether or not substantial justice has been done between the parties. We find that the plaintiff has expended upon the faith of the contract, and in reliance thereon and on the representations of the defendant, the sum of $2,337, and that she has recovered judgment for $237 less than that amount. It would appear, therefore, that she has secured judgment for less than is required to compensate her for her loss, which is the usual rule of damages in cases of tort. (Civ. Code, sec.
The plaintiff testified that defendant stated to her as an inducement to enter into the contract of purchase that he owned the title. At the time of his purchase a lis pendens was on record in the case which finally resulted in a judgment against his grantor, and later against himself and his vendee. [2] The jury was justified in finding him guilty of fraud under the circumstances, even though he believed the truth of his assertion (Civ. Code, sec.
In view of the manifest errors acquiesced in by the parties, and the fact that the points urged by the appellant as errors are without merit, and in view of the further fact that it is obvious from the entire case that the defendant cannot convey to plaintiff title to the land she sought to purchase, there has been no miscarriage of justice in awarding the plaintiff the money actually paid to the defendant, with interest, and the additional amount expended by her in improvements on the property.
The judgment is affirmed.
Lennon, J., and Melvin, J., concurred.
Hearing in Bank denied.
All the Justices concurred, except Melvin, J., and Olney, J., who were absent.