41 Cal. 444 | Cal. | 1871
The leading facts stated in the complaint are as follows: The plaintiffs proposed to sell, and Bullard, one of the defendants, to.buy, the blew York Hotel, at Petaluma, with the furniture, bedding, etc., for nine thousand dollars, to be paid in the following manner: The plaintiffs were to convey to one Cobb the hotel and furniture, and Cobb was to pay the plaintiffs five thousand dollars, and to execute to Bullard a contract to convey to him the property on his paying to Cobb the five thousand dollars, with interest. The agreements, up to this point, were executed by the respective parties. The remaining four thousand dollars were to be paid as follows: Bullard represented that he was the owner of a certain farm, which was of the value of four thousand dollars; that he had bargained the farm to one Barlow for over three thousand dollars; that Barlow was to pay him in hand three thousand dollars, or giye him his (Barlow’s) note for that sum, with one Henman as surety; and that he was expecting Barlow daily to come to Petaluma to pay the money or give.the note. This sum of money was to be paid to the plaintiffs, or the note last mentioned was to be assigned to them. Bullard was also to execute to them his
It. is alleged that Bullard’s representations, that he owned the farm, that the farm was of the value of four thousand dollars, that he had bargained the same to Barlow for a sum exceeding three thousand dollars, were false, and were made for the purpose of defrauding the plaintiffs, and that the plaintiffs believed those representations, and, relying on them, entered into the agreements above mentioned. The contract which was executed by Cobb to Bullard was assigned to Sullivan, who took it, with notice of all the facts relating to the whole transaction.
The plaintiffs seek to rescind the sale of' the hotel property, on the ground of the false and fraudulent representations of Bullard. General demurrers to the complaint were interposed by-the defendants; and the demurrers being sustained, and the plaintiffs declining to ■ amend the complaint, judgment was rendered for the defendants. The fraudulent representations of Bullard, assuming that they are actionable, bear only on the matter of the payment of the sum of three thousand dollars. The plaintiffs are not entitled to rescind the contract, unless they have been injured by reason of their reliance on those representations. They accepted a conveyance of the farm, and a sale of the cows and farming utensils, as security for the performance of Bullard’s agreement- to pay that sum, or assign the note of Barlow and
There is another point in the case which, I think, deserves notice. The general rule is that a contract cannot be rescinded in part. Where the contract is not severable, and there are good grounds for its rescission, one party is not at liberty to rescind one part of it, and leave the residue in full force.
The sale and conveyance of the hotel property, and the agreements in respect to the payment of the purchase money, constituted one entire contract. As between the parties to the contract, the sale and conveyance of the hotel property will be deemed, in equity, a mortgage to secure the payment by Bullard to Cobb of the sum of five thousand dollars, with interest. The complaint does not aver an offer on the part of the plaintiffs to pay to Cobb the money so advanced by him. Their offer to Bullard “to free him from or amply secure him against said contract with Cobb ” is not an offer to rescind that portion of the contract. The offer to rescind, to be effectual, should have extended to the whole contract.
Judgment affirmed.
