119 Cal. 646 | Cal. | 1898
1. Action for deceit. Verdict and judgment were for plaintiff. It was in substance alleged in the complaint that the defendant, acting by one Hutchings, his agent, obtained permission from plaintiff to place in her house a new piano of latest pattern in order that the same might be exhibited to intending purchasers of such instruments in the neighborhood; in consideration of which permission it was agreed that plaintiff should have the use of the piano for one year, with the privilege of purchasing the same within that time if she desired to do so. That on the solicitation of said agent plaintiff signed a paper which he represented and which she believed to be a receipt for, the piano containing the terms of the said agreement. 'Fliat. a few days later Hutchings set up in the home of plaintiff (about fifteen miles distant from Antioch, in Contra Costa county, where defendant resided) a piano which she subsequently found to be an old, worn-out instrument of no value; that thereupon she demanded of defendant an inspection of the paper she had ■signed, and was then informed by him for the first time that she had purchased the piano and had given therefor the following mote: “$400. Antioch, November 4, 1892. One year after date
There was no demurrer to the complaint, but defendant contends here that it stated no cause of action, in that it failed to show that plaintiff followed the course for rescinding a contract marked out in section 1691 of the Civil Code. The complaint shows, however, that the foundation of the action is the deceitful obtainment of plaintiff’s promissory note, for which she received no consideration, and which was used to her damage; according to its allegations the execution of the note was no part of the actual contract; rescission of a contract of sale was not necessary to the maintenance of the action, for no such contract was made. There was much matter in the complaint which we have not set out, some of w'hich might have been omitted to the great improvement of the pleading; possibly the complaint was ambiguous or uncertain—objections waived by failure to demur, but it stated a cause of action.
2. It is not disputed that the evidence sufficed to show that Hutchings obtained the note fraudulently, and that plaintiff was compelled to pay the same, substantially as charged in the complaint; but the defendant insists that the evidence disclosed no relations between Hutchings and himself to render him liable for the acts of the former. There was evidence that the piano belonged to one Lucia S. Beede, the defendant’s mother, who was a member of his household, and it seems that defendant had authority from her to sell the same, at the price of two hundred and twenty-five dollars. Hutchings, in his negotiation with plaintiff, represented defendant to be the owner of the in
The defendant testified in a general way that he sold the piano to Hutchings, and if this were so it might be difficult to find in the evidence adequate ground for charging him with Hutchings’ misdoing; but the particulars in proof did not sustain that view; the note showed on its face that it was a contract between plaintiff as payer and defendant as payee; it was discounted and the proceeds were divided between Hutchings and defendant before the piano was taken from the latter’s house; the bill of sale made on defendant’s procurement ran to plaintiff,
It is immaterial that defendant was himself an agent and personally was not profited by the fraud. The relation he assumed to the supposed contract evidenced by the note was, from first to last, that of a principal; he allowed Hutchings and the bank to treat him as such, and intended that plaintiff should regard him in the same character. That he incurred toward her such liabilities as may be incident to that relation is too plain for argument. Uor is it of controlling importance in the case that plaintiff retained the bill of sale sent to her by defendant, and ■omitted for several months to require him to remove the piano from her house. While these facts had a tendency to show that plaintiff waived the fraud and would abide by the sale which defendant claimed to have been made, they were not conclusive.
Defendant complains of certain instructions given to the jury at plaintiff’s instance. Portions thereof are transcribed from the complaint and contain matters of little or no pertinence to the case; but in our opinion the relevant parts of the instructions complained of were not erroneous, and those irrelevant were not prejudicial to defendant. The judgment and order denying a new trial should be affirmed.
Chipman, C., and Searls, C., concurred.
For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed.
Henshaw, J., Temple, J., McFarland, J.