297 P. 44 | Cal. Ct. App. | 1931
Vrena A. Rosenkranz gave to appellant, upon terms therein expressed, an exclusive option to purchase her real property "free and clear of encumbrance". After her failure to perform, upon the exercise of his option, appellant, alleging she acted in bad faith, sued to recover under section
Appellant seeks a reversal of the judgment in favor of respondent because of (1) the alleged erroneous admission of testimony as to conversations between respondent and appellant's agent at and prior to the execution of the option, and (2) alleged insufficiency of the evidence to support the finding that respondent did not act in bad faith. [1] Overruling appellant's objection that such testimony attempted to vary the terms of the written option, which obligated respondent to convey title "free and clear of encumbrance", the court admitted, solely on the issue of bad faith, testimony that, at and prior to the execution of the option, respondent informed appellant's agent that her property was encumbered by a deed of trust of which she was unable to obtain a reconveyance, and that the agent promised to obtain such reconveyance. Obviously if respondent sought by this testimony to prove that she was not obligated to convey title "free and clear of encumbrance", but was only obligated to convey subject to the deed of *513
trust, the objection would have been well taken (Civ. Code, sec.
[2] Appellant argues that the finding that respondent did not act in bad faith is not supported by the evidence because such evidence shows that the agent's promise to obtain the reconveyance was induced by respondent's false representation as to the extent of her liability under the deed of trust. An examination of the evidence as to respondent's statements as to her liability, shows that they fall short of a fraudulent representation, because they were not made or understood as a positive statement of an existing fact, but were made as a guess by which the agent was not misled. This argument also is predicated upon a shifting of the burden of proof from the appellant to respondent. [3] It was incumbent upon appellant to prove, by a preponderance of the evidence, his affirmative allegation that respondent acted in bad faith. (Yates v.James,
Finding no error as to matters urged by appellant, the judgment is affirmed.
Tyler, P.J., and Cashin, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 11, 1931, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 11, 1931.