207 P. 1040 | Cal. Ct. App. | 1922
In this action the plaintiff, Frank M. McKeever, recovered a judgment against the defendant, Locke-Paddon Company, a corporation, for damages sustained in connection with a real estate trade into which plaintiff was induced to enter through the fraudulent representations of the defendant. On stipulation of the parties the action was tried before a jury, sitting in an advisory capacity, and a general verdict was rendered in favor of plaintiff for $3,500. The trial judge failed to file any written decision, findings of fact, or conclusions of law, or any order adopting the verdict, but merely entered judgment on the verdict. An appeal was taken by defendant and the judgment was reversed and the cause remanded, with directions to the trial court to give its decision in writing as provided in section 633 of the Code of Civil Procedure, and to enter judgment accordingly. (McKeever v. Locke-Paddon Co.,
Appellant's grounds of appeal are in effect an attack upon the entire record in the case. Among the numerous grounds urged are that the amended complaint is fatally defective; that the findings are insufficient in form and incomplete in substance and do not support the judgment; that the evidence is insufficient to support the findings; that the court erred in the exclusion of evidence offered by defendant, and that the amount of damages allowed by the jury was arrived at in an illegal manner.
The record discloses that on December 23, 1916, the plaintiff McKeever agreed to exchange certain real property situate in Palo Alto, Santa Clara County, for two pieces of real property, represented as belonging to the defendant Locke-Paddon Company, one being situate in *53 Alameda County and the other in Yolo County. The exchange was consummated on January 18, 1917.
During the trial the court withdrew from the jury the issues as to the Alameda County property and afterward found against the plaintiff on those issues, upon the ground that that transaction was free from fraud. We are therefore concerned here only with the transaction involving the Yolo County property.
In this respect it is alleged in the amended complaint that the defendant fraudulently represented to plaintiff "that said Yolo County property contained eighty (80) acres of comparatively level farming land and eighty (80) acres of pasture and woodland, said woodland being timbered with large oak trees, which were very valuable when cut; that said Yolo County property was worth sixty dollars ($60) per acre and was accessible by a good road."
Appellant contends first that because of the allegations in the amended complaint to the effect that it was represented by defendant that part of the Yolo property was "timbered with large oak trees, which were very valuable when cut," that the trees must be considered separately from the land and dealt with as personal property, and that since there is no allegation in the amended complaint as to the value of those trees "when cut" independent of the allegation as to value of the real estate, that the amended complaint fails to state a cause of action.
The allegation in question will not, we think, bear such technical construction. It is elementary that growing timber is part and parcel of the land. (Sec.
The findings, if substantially supported by the evidence, are sufficient in law, in our opinion, to uphold the judgment. The trial court found that the defendant made the representations as alleged by plaintiff and that the same were false and were known by defendant to be false when made; that they were made for the fraudulent purpose *54 of procuring the exchange of the properties, and that they were the controlling influence and inducement for the consummation of the transaction by plaintiff. The court further specifically found that said property did not contain eighty acres of comparatively level farming land nor eighty acres of pasture and wood land, and that said land was not worth any more than $28.75 per acre, and "that said land was inaccessible, there being no roads to the same; that said land lies upon the summit of a high and inaccessible range of hills." It was further found that at the time of making said exchange plaintiff resided in Oakland, was totally unacquainted with conditions and land values in Yolo County, and "did not have sufficient opportunity to investigate the value thereof"; that plaintiff confided in the truth of said representations and trusted, believed, and relied upon the statements so made, and that had it not been for such statements and representations he would not have made said exchange.
[1] The misrepresentations concerning the land values alone are sufficient under the circumstances here shown to constitute fraud. (Winkler v. Jerrue,
Appellant further contends that the findings ignore material issues in that they do not negative certain allegations contained in the answer to the effect that plaintiff made independent investigations of the Yolo property before he made the trade; that he was familiar with the property, and that he was an experienced real estate dealer. We find no merit in the point. All of the issues above mentioned, even conceding them to be material, are adequately covered by the findings. It was found by the court that plaintiff at the time of the exchange "was totally unacquainted with the actual conditions and value of said Yolo *55
County property and did not have sufficient opportunity to investigate the value thereof"; that said defendant had much experience in handling real estate and was familiar with conditions and land values in Yolo County. And the court further found that plaintiff "believed, trusted, and relied upon" said representations and that they were the controlling influence which induced plaintiff to make the exchange, and had it not been for said representations plaintiff would not have done so. In the recent case of Koblick v. Larson,
[2] Appellant also contends that the findings are incomplete because the court did not fix the value of the Palo Alto property. That contention cannot be sustained. In the case ofHines v. Brode,
It was, therefore, not only unnecessary for the court to find on the value of the Palo Alto property but the evidence rejected, if any there was, on this point was properly excluded. It could not have been received on the theory of recoupment for the simple reason that no recoupment was pleaded or prayed for by the defendant. In fact, the answer contains no allegation as to the value of the Palo Alto property. We do not consider the case of Herdan v. Hanson,
[3] As an affirmative defense it was alleged in the answer that plaintiff ratified the exchange in various ways, among them being by a settlement or agreement of compromise. Defendant contends that in order to sustain the judgment there must be a specific finding that there was no such compromise. This objection may be dismissed with the statement that the trial court, in its findings, did specifically negative the very wording of the allegation itself. The ultimate fact alleged was the ratification and the court found that there was no ratification. It was unnecessary to further find on each reason upon which the defendant claimed the ratification was predicated.
[4] The question of the sufficiency of the evidence to support the findings on the main issue of fraud is one we are not permitted to inquire into, under the well determined rule, because of the conflict of proof on the essential elements constituting the fraud. Appellant has quoted testimony extensively in its brief for the purpose of showing that the representations plaintiff claims were made by the selling agents of the defendant were not in fact made, and that whatever was said by them was mere matter of opinion and stated as such. But, in view of the positive testimony given on the part of the plaintiff that the representations were made, it is evident that the testimony quoted by appellant merely raises a conflict, and under such circumstances we are not at liberty to interfere with the findings of the trial court. The question of whether the statements were expressions of opinion was likewise one for the trial court. In Stockton v. Hind,
[5] The defendant, we think, is not in a position to complain about the value of the land as fixed by the court for the reason that the defendant conceded the land to be worth no more than $2,500, which would be less than $16 per acre, whereas the court allowed $28.75 per acre. By what method the court arrived at this figure is immaterial so long as the amount fixed was within the limits of the evidence. There was evidence received to the effect that the land was hilly and inaccessible, with no road at all to the property; that there were only two or three acres "on top of the hill" fitted for agriculture; that the soil was "gravelly and rocky" with some clay land; that the only timber on the place was a small quantity of "scrub oak" and that the rest of the land was practically covered with "buck" and "chamiso" brush, and that the whole property was worth no more than $5 per acre. From this evidence it would appear that the value fixed by the court was liberal.
Defendant has also made the points that the wrong party has been sued and that the court erred in its rulings on the admissibility of proof. We have examined those points and find that they are without support in the record. Equally untenable is the objection that the jury arrived at the amount of its verdict illegally. The jury was an advisory one. Its verdict was not binding upon the court, and so far as the judgment in the action is concerned it makes no difference what system the jury adopted in arriving at its verdict.
Finding no error in the record the judgment is affirmed.
Richards, J., and Tyler, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 22, 1922.
All the Justices concurred.
Richards, J., pro tem., and Myers, J., pro tem., were acting. *59