Civ. No. 4057. | Cal. Ct. App. | Sep 1, 1923
These two actions, practically identical in character, were tried on the same evidence. The appeals in both cases are before us under a single number, the record in each is printed in one and the same transcript and both are briefed together. A single opinion will therefore serve for a treatment of both appeals.
The actions were commenced for the purpose of recovering damages for fraud. Plaintiffs, as vendees, entered into certain contracts with defendants, as vendors, for the purchase and sale of certain lands. The alleged fraud consisted of false representations concerning the property. Plaintiffs had judgment and defendants appeal.
The first point made is that the complaints do not state causes of action. The contention is advanced that an action like these two, that is to say, an action for damages, may not be maintained except upon either a rescission or an affirmance of the particular contract claimed to have been fraudulently obtained. It is further insisted that if such an *603
action be based upon an affirmance of the contract the complaint must allege the readiness, ability, and willingness of the plaintiff to perform his engagements under the agreement. There is no rescission alleged in the complaints which now lie before us. Upon the score of affirmance the two pleadings contain allegations which are practically alike. This is one of them: "That plaintiff has performed each and every covenant and condition required of him to be performed under said contract, except the payment of the balance of the purchase price; that the defendants . . . have no property within the jurisdiction of this court subject to execution; that the property, the subject of this litigation, is included within a tract of land subject to a blanket mortgage of $20,000.00; that if plaintiff should pay the balance due under said contract his claims herein set out could not be satisfied." Appellants, basing their view on Hines v. Brode,
It is contended that certain findings of the trial court are without support in the evidence. It was found, as finding 5, that appellants "represented to said plaintiff that they owned and controlled a supply of water in a sufficient quantity and volume to irrigate properly, in a good and sufficient manner, all of the said tract of land and lots therein; that they had made a careful investigation of water available and accessible to irrigate said tract of land and the lots therein, and that they had discovered, and owned and controlled, *606 a supply of water, to wit, a flow of water of 20 miner's inches, in a place known as Spanish Canyon, situated in the mountains in the vicinity of said tract of land, and that said supply of water of about 20 miner's inches in said Spanish Canyon was available and accessible to irrigate said tract of land and all of the lots therein. The court finds that the supply of water so owned and controlled by the defendants in said Spanish Canyon, and available for use on said tract was, in fact, at the time the said representations were made, and at the time the contract hereinafter mentioned was made and entered into, not in excess of 2 miner's inches of water, and that the statement that there was 20 miner's inches of water owned and controlled by the defendants, and available to irrigate said tract of land and the lots therein, was made as a positive statement of a fact, but that the said statement and representation was not true, and that the said defendants knew at the time they made the same that such statement was not true." This finding, along with others, is assailed by appellants in the following language: "There is no evidence to sustain the findings of the court that appellants did not believe all of the statements that they made or that they made them without sufficient ground for their belief, and our specifications of the insufficiency of the evidence to justify the findings Nos. 2, 3, 4, 5, 6 and 7 [here are inserted references to parts of the transcript in which the various specifications may be found] in so far as they refer to the findings of the court that the appellants did not believe the representations which they made or that they made them recklessly and without sufficient investigation or failed to attempt to carry out their promises should be sustained." This method of presenting appellants' objections to the findings is both general and unsatisfactory, but we shall endeavor to make answer to the points so made as far as we are able to grasp their import and as far as we are able to make application of them. We understand appellants' view to be that the findings named by them are unsupported in so far as it is found, first, that appellants did not believe all the statements or representations that they made; second, that they made them without sufficient ground for a belief in their truth; third, that they made them recklessly and without sufficient investigation; fourth, that they failed to attempt *607 to carry out promises which they had made. Thus reduced, the presentation of appellants' assault upon the findings is not a model of clarity, but we have made the best epitome we can formulate from the language which counsel have employed. The points thus listed are, however, to be depleted, perforce, by the process of elimination, both as to their number and as to their application to particular findings. In the first place, findings 2, 3, 6, and 7 contain nothing to which either of the four points may be applied. Also, we reject finding 4 from consideration, as it relates only to representations which appellants contend were mere statements of opinion. Without deciding whether or not they are so, we limit our inquiry to finding 5, above set forth, for the reason that it, if supported by the evidence, is sufficient to sustain the judgment. We next eliminate all of the points themselves save one, as having no application to finding 5. The sole survivor of this process is point first, and even that one does not in exact terms meet the situation, for the court found that appellants knew when they made the statement referred to in the finding that it was not true, whereas the point contests a finding that appellants did not believe the statement. We shall, however, consider the point as sufficiently made.[2] Therefore, we have remaining as the sole question concerning the findings: Is the evidence sufficient to support the finding that appellants knew that the following statement was untrue when they made it: That "they owned and controlled a supply of water in a sufficient quantity and volume to irrigate properly, in a good and sufficient manner, all of the said tract of land and lots therein; that they had made a careful investigation of water available and accessible to irrigate said tract of land and the lots therein, and that they had discovered, and owned and controlled, a supply of water, to wit, a flow of water of 20 miner's inches, in a place known as Spanish Canyon, situated in the mountains in the vicinity of said tract of land, and that said supply of water of about 20 miner's inches in said Spanish Canyon was available and accessible to irrigate said tract of land and all of the lots therein?"
Respondents quote to us no evidence supporting this finding, but appellants say in their brief, concerning their activities after the contracts between the parties were consummated, *608 omitting references to the transcript: "After the sale to the respondents, the appellants constructed a three hundred foot tunnel. They built a large cement reservoir and a distributing system to the property. They built roads and spent large sums in the upkeep of the water system they had installed, and at the very time that the trial was in progress they had entered into an expensive contract with Messrs. Patten Monroe, acknowledged water experts in Monrovia district, to extend and develop one of the wells upon the premises. They did not spend the moneys above mentioned blindly, or in an attempt to get water where reasonable men would not have so attempted, but on the contrary made thorough investigation of the situation before buying the tract or beginning development. They consulted the best water experts available. They took advice from Thomas W. Patten and F. M. Monroe, who for many years had been connected with water development in the city of Monrovia. They went over the land with Mr. Pierce, water expert for R. C. Gillis of the City Water Works at Santa Monica. They had the opinion of Mr. Gerlich, city engineer of Monrovia, and from the opinions of all of these men, they were led to believe that they could reasonably expect to develop five to twenty inches of water in Spanish Canyon and from twenty-five to thirty inches from the well. That these ideas were not unreasonable is shown by the fact that in the first tunnel constructed they obtained a flow of from six to eight miner's inches. Just why this flow did not continue, none of the experts were able to explain, excepting upon the ground that the whole country had for several years been suffering from a drought and water levels were falling." This statement, to our minds, sufficiently shows that the finding of the trial court is sustained by the evidence in the respect in which it is assailed by appellants. Their efforts to develop water after the making of the contracts must have been preceded by a knowledge of the untruth of the representations attributed to them by the finding. This remark plainly applies to their assertion, in particular, concerning "a flow of water of 20 miner's inches." If they had known that the statement was true the efforts made by them after the deal was concluded would have been as unnecessary as they were apparently unavailing. Not knowing that it was *609 true, they must have known that it was untrue. Considering the nature of the misrepresentation there is no middle ground.
[3] Appellants make the point that respondents' causes of action are barred by the statute of limitations, their claim being that the fraud practiced by them was discovered more than three years before the commencement of the actions, that being the period of limitation prescribed in such cases by Code of Civil Procedure, section
Other points are made by appellants, but, considering the conclusion expressed above, it is not necessary that they be examined.
Both judgments are affirmed.
Finlayson, P. J., and Craig, J., concurred.
A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 29, 1923.
All the Justices concurred.