39 Cal. 381 | Cal. | 1870
delivered the opinion of the Court, Temple, J., and Wallace, J., concurring.
In cases of this character it is to the interest of the parties—at least the losing party—to have a written finding of the facts filed. As to the tender by the defendant to the plaintiff, or his agent, of the money paid by the plaintiff’s agent, at the time of the execution of the contract of sale, the evidence is conflicting, and the presumption in support of the judgment is, that the Court found that issue against the defendant. It is clear that the defendant cannot have a rescission of the contract without making such tender.
The evidence, in our opinion, clearly shows that the false representation set up in the answer, was made by the plaintiff’s agent. This fact would be fatal to the decree for specific performance of the contract of sale, had the defendant shown that such false representation occasioned him any damage; that is to say, that he would have been injured by the performance of the contract. The only evidence in the record, upon which he might have relied to prove the damage—the receipt given by the plaintiff to Dewey—was excluded upon his objection. The rule is well settled that a recovery cannot be had for a false representation, without proof of damage. (Pasley v. Freeman, 3 T. R. 51; 2 Smith’s L. C. 55; notes to saíne case.) It is equally well settled that a party to a contract cannot rescind or avoid the contract on the ground of a false representation made by the other party, unless he shows, in addition to the false represention, that he will be damaged by the performance of the contract. (1 Story’s Eq. Sec. 203.)
Judgment and order affirmed.
By Sprague, J. : I concur in the judgment.
By Crockett, J.: I dissent.
