88 Cal. 92 | Cal. | 1891
The case ot Hill v. Wilson and wife was brought to foreclose a mortgage given by the defendants for a balance of purchase-money alleged to be due for the real estate described therein, sold by the plaintiff to the defendants. To this complaint the defendants pleaded that the plaintiff had induced them to purchase the land and execute the mortgage by certain false and fraudulent representations.
The action of Wilson and wife against Hill was one to rescind the sale of the land by Hill to them, and cancel the mortgage on the same grounds set up in their an
It is contended by the appellant that neither the answer in the first case, nor the complaint in the last, were good, because the representations alleged to have been made were not as to existing facts, but were mere opinions; that the offer to rescind was not made in time, and the tender made was not sufficient. The sale made by Hill was of the land, forty-five shares of stock in a certain water company, five cords of wood, and a cow, for the sum of six thousand dollars. The shares of stock entitled the holder to so much of the waters of a certain water-ditch, to be used for irrigation and domestic purposes, and was for that reason only valuable in connection with the land.
The allegation as to the fraudulent representations was as follows: “The said plaintiff, for the purpose of inducing the defendants to purchase the land and water right hereinabove described, did falsely, and fraudulently and deceitfully, represent to defendants, and did by such false, fraudulent, and deceitful representations induce defendants to believe, that the said land was well and abundantly watered by means of the said forty-five shares of said Timber Ditch Water Company, and the water to be
These were not mere expressions of opinion; they were statements of very material and important facts, and such as were well calculated to induce the purchase. It was not a statement that there would be water from a certain stream or ditch, but that the ranch was well supplied with water. This was a statement of an existing supply of water. Nor could it be construed as a mere statement that at the time the representation was made it was supplied with sufficient water. To say that the
It is insisted that the tender on the offer to rescind was not sufficient, because the cord-wood and the cow were not tendered, and the certificates of stock were not tendered in such form as to vest the title in Hill if the tender had been accepted. The allegation as to the tender is as follows: “Defendants further allege and aver that as soon as they discovered and became convinced of the falsity of the aforesaid representations of plaintiff in regard to the water belonging to and with said land, they offered in good faith to rescind the entire contract of sale and purchase of the said premises between plaintiff and the defendants made on the tenth day of March, 1888, as aforesaid, and for that purpose defendants made, executed, and acknowledged a good and sufficient deed for the reconveyance to plaintiff by them of the land and premises aforesaid; and on .or about the twentieth day of August, 1888, and before the commencement of this action, they tendered said deed to plaintiff, and offered to give and surrender to him the full, peaceable, and quiet possession of said premises, and every part thereof, together with the said certificates for the forty-five shares of stock in the Timber Ditch Water Company, being the identical certificates thereupon indorsed and delivered by the plaintiff to the defendants as aforesaid, and defendants then and there demanded of the plain
This was sufficient as to the land and water stock. It appears from the pleadings that the certificates of stock had been transferred to Wilson by an indorsement in blank. There does not appear to have been any transfer of the stock on the books of the company. This being so, an offer to redeliver the certificates to Hill was a sufficient tender of them. There was no direct allegation of a tender of the cord-wood or the cow. Counsel for appellant say there was no allegation of the value of the land or of the value of the personal property, and that the personal property not tendered might have been of the value of six thousand dollars. We can hardly believe that five cords of wood and a cow could be worth that sum. If so, cord-wood and cows must come high in San Bernardino County: But when we look at the evidence we find that the cord-wood and the cow were really no part of the consideration for the purchase or the mortgage, and that they, being on the ranch, were “ thrown in ” in the trade.
We think the general allegation of an “ offer to rescind the entire contract of sale and purchase,” together with •the specific allegations set out above, rendered the plead
Some objections are made to certain rulings in the admission and exclusion of evidence, but we find no error in the record.
The judgments and orders in both of the cases are affirmed.
Rehearing denied.