69 Cal. 536 | Cal. | 1886
Fraud is the subject of the action. The complaint contains two counts. “As the court found in favor of defendant as to the second count, and rendered judgment accordingly, and the plaintiff has not appealed, it is not necessary to consider that branch of the case.
It appears from the first count of the complaint that the plaintiff held the promissory note of defendant, originally given for $7,629.25, on which payments had been made, which payments reduced the amount to $5,240.25. The defendant offered to pay (and did pay), and the plaintiff accepted, $4,455.17 for the delivery to him (defendant) of the note, at the same time claiming this sum to be $2,000 more than was justly due. The fraud complained of by the plaintiff, in consequence of which she asks judgment for the difference between $5,240.25 and $4,455.17, relates to the settlement had between the parties by which she agreed to accept and accepted the less amount. It is a well-known rule, that
We are of the opinion that the facts stated in the first count do not constitute a cause of action; that the facts as stated do not form a basis for relief on the ground of fraud. It is not apparent therefrom that the plaintiff was misled by any false misrepresentations by defendant.
The demurrer should have been sustained.
No error appears in the order of the court setting aside the order of transfer of the place of trial.
The judgment and order are reversed, and the cause is remanded, with directions that the demurrer to the first count be sustained.
Ross, J., and McKinstry, J., concurred.
