65 P. 568 | Cal. | 1901
Plaintiffs were the owners of certain land situated in San Diego county, and defendants, or some of them, were owners of certain improved lots in the city of Lincoln, Nebraska. An exchange, after much negotiation, was finally agreed upon between the parties, and deeds made September 10, 1897. Defendants had formerly resided in Lincoln, but had removed to San Diego in 1895. Plaintiffs resided in San Diego county, and had, up to 1897, never been in Lincoln. Upon the exchange of deeds, plaintiffs and defendants went into the possession of their several lots and tracts of land, plaintiffs removing to Lincoln, where they arrived and went into possession October 5, 1897. The complaint alleged that the San Diego land and improvements were of the value of $3,600, and the personal property included in the trade (being farm implements and other ranch belongings) was of the value of $600, making in all $4,200; that defendants, through defendant G. H. Crandall, acting in their behalf, represented their Lincoln property to be worth $6,000, and that it was encumbered to the extent of $1,100, and no more; “that said property was worth and of the market value of four thousand dollars, at least, over and above said mortgages. ’ ’ Certain alleged false representations as to the improvements on the lots are set forth, and that the property was bringing nine dollars per month rent, and “that said real property was level, and in fine shape, and in a fine and first-class condition.” It is alleged that plaintiffs had no personal knowledge of the property, and relied wholly on the representations of defendants, which, it is alleged, were entirely false, and fraudulently made to deceive and cheat plaintiffs, and on this ground the rescission is sought. Among other of the alleged false representations, it is alleged that, instead of a mortgage debt of $1,100 being on the property, it was encumbered in the further sum of $1,000.
The court made the following findings of fact: (1) That the San Diego property was of the same value, at the time of the exchange, as the Lincoln property, in excess of all mortgages thereon, to wit, of the value of $2,000. (2) That while the negotiations for the trade were progressing defendants gave to plaintiffs the name of a party then residing in San Diego, and pointed out his residence, to wit, J. F. Kinney, Esq., who, defendants informed plaintiffs, once owned a portion of the Lincoln property in question, and
1. It is contended that findings 1, 3 and 4 are not supported by the evidence, and that on findings 1 and 3 the judgment should have been for plaintiffs, because the court found that defendants represented their Nebraska property to be worth $4,000, and that plaintiffs believed and relied upon these representations, whereas the court found the property to be worth only $2,000 over and above the mortgage of $1,100, thus making the value of $3,100 instead of $4,000. There would be force in the latter of the above contentions if the evidence compelled the conclusion that the exchange of properties was brought about by a false statement of value by defendants made as a substantive fact on which plaintiffs relied as a fact, and not as defendants’ opinion as to the fact.
2. There were certain facts alleged in the complaint, paragraphs 6 to 13, inclusive, in failing to find on which it is claimed the court erred. The court did find upon such of these paragraphs as alleged the representations made by Crandall, as to their influence on plaintiffs, as to whether they were fraudulently made, and as to the mortgage indebtedness on the Lincoln property. It is true, the evidence shows that there were mortgages for $1,000 in excess of the $1,000 represented by Crandall to be the only liens on the property. But it also appeared that the $1,000 mortgages had in fact been paid, but were not satisfied on the record, although Crandall supposed they had been. They were, however, subsequently satisfied. The other allegations were found upon either specifically, or were covered fully by the finding against the alleged fraudulent intent, or they were allegations of merely probative facts, not necessary to be found upon. The findings support the judgment. The principal ultimate fact in the case on which plaintiffs relied was whether Crandall falsely and fraudulently, and with intent to deceive plaintiffs, made the representation alleged. The finding being against plaintiffs on this fact, no finding in
3. Certain witnesses were allowed, against plaintiffs’ objection, to testify to the value of plaintiffs’ property, and this is claimed as error, as it appeared that defendants saw the land before they purchased. Plaintiffs alleged that the value of their property at the time of the trade was $3,600 for the land. Defendants denied that the land was of greater value than $1,000. The court found that the value of the real property was $2,000. The parties seem to have treated this as an issue in the -case, although, in view of the other issues, we cannot see that it was particularly material. However, the testimony, if immaterial, could have worked no prejudice to plaintiffs.
4. Error is claimed in refusing to allow the witness W. B. Norris to testify to certain conversations with the witness G. H. Crandall, who, when testifying, denied the conversations. The objection was that no sufficient foundation was laid for the impeachment of the witness Crandall; that the place where, the time when, and the persons present were not given in the questions asked on cross-examination. The record reads as follows: “Plaintiffs recalled W. B. Norris [not plaintiff] in rebuttal, and offered to show that G. H. Crandall, in the months of September and October, 1897, at his store in San Diego, California, stated to W. B. Norris during the conversations that there was a fine two-story house on lots 7 and 8, and that the draw in the lots did not amount to anything; that one could take a plow, and run a furrow alongside of the road in front of the lots, which would keep all the water from running through the lots, and would fill up the draw; that the property was worth $5,500; and that the lots were not cut up or washed out any, but were good lots, and laid well.” When the witness Crandall, whom it was proposed to impeach, was testifying, he was asked a great many questions as to whether he had not made certain and different statements at 0 different times to the witness Norris, some of which were sufficiently definite as to time and circumstances, while others were not thus definite. In none of them was the store of the witness Crandall named as the place, and in none of them was any person named as present, nor did it appear that the two persons
5. It is claimed that the court erred in permitting the witness Brown to testify in defendants ’ behalf as an expert on the value of real estate, and in refusing to strike out his testimony. It is claimed that mere opportunity offered for observation will not constitute one an expert, or render his opinion admissible; that he must have been educated in the business about which he testifies, or has acquired actual skill and scientific knowledge upon the subject; citing Code Civ. Proc., subd. 9, sec. 1870; Goldstein v. Black, 50 Cal. 463; Reed v. Drais, 67 Cal. 491, 8 Pac. 20, and other cases. In the present case Brown testified that he was a lawyer, and had been engaged for twenty years as examiner of titles of real estate in Lincoln; that he was acquainted with the value of real estate in that city in the years 1895 and 1897,
We discover no error in the record, and therefore advise that the judgment and order be affirmed.
We concur: Gray, C.; Haynes, C.
For the reasons given in the foregoing opinion the judgment and order are affirmed.