Partanian v. Flodine

California Court of Appeal Jan 16, 1950Published

Before: Bishop

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Holding. The court held that the evidence failed to support the findings of fraud or failure of consideration, as the written contracts clearly established an option to purchase contingent upon future production and explicitly prohibited cancellation.

Issues

Whether the evidence supports a finding of fraud in the inducement of the contracts.
Whether the contracts are voidable due to a failure of consideration.
Whether parol evidence of representations contrary to the written terms is admissible to prove fraud.

Disposition. reversed

Quotations verified verbatim against the opinion

“The fraud may not, however, consist of promises contrary to those contained in the written contracts.”

“There is no evidence whatever supporting the finding that there was no Tucker motor car in production, let alone that the defendant knew that there was none but concealed the fact from the plaintiff.”

“Plaintiff obtained that which he bought and paid his money for under the express terms of the contracts”

95 Cal.App.2d Supp. 931 (1950) CHARLES R. PARTANIAN, Respondent,

ERIC FLODINE, Appellant.

California Court of Appeals.

Jan. 16, 1950. Youngdahl & Glick for Appellant.

Astor & Astor for Respondent.

BISHOP, J.

Plaintiff sought a judgment awarding him the sum of $237.93. the amount he had paid in connection with two written contracts which, he claimed, he was induced to enter into by fraud, and as a result of which he obtained nothing. More specifically, he alleged that he had "made a written agreement wherein and whereby the said plaintiff placed an order with the said defendants for the purchase and subsequent delivery of an automobile known as Tucker Motor car," and that he was induced to enter into another contract whereby he agreed to purchase, and the defendants agreed to sell, certain accessories to be used in connection with the Tucker motor car, by the fraudulent representation of the defendants that he (the plaintiff) would be able to procure and purchase said Tucker motor car and would be able to use the accessories on it. The defendants knew, he further alleged, that Tucker cars were not being produced, and that plaintiff could not obtain one. The trial court found these allegations to be true and awarded plaintiff a judgment for the amount he had paid the defendants. We have concluded that the evidence fails to support the findings essential to the judgment.

There is very little conflict in the evidence. Plaintiff, as did one hundred other persons, entered into two written contracts with the defendant. The essence of one is in these words: "The undersigned dealer allots to the undersigned customer the 98 Tucker motor cars which he may sell and deliver at retail if, as, and when they are produced and made available for delivery through said dealer. ..."

"The customer is not hereby bound to order or accept delivery of a Tucker motor car, but may, if he desires, purchase said motor car according to said sequence number. [95 Cal.App.2d Supp. 933]"

"In consideration hereof and of such purchase, if made by the customer, the customer agrees to retain ownership of said Tucker motor car for a period of one (1) year ..."

These are the significant terms of the other writing: "Tucker Accessory Purchase Order 98. In consideration of $237.93, the receipt of which is hereby acknowledged, the undersigned dealer sells and agrees to deliver to the undersigned purchaser one group of automobile accessories as indicated below. ... Group No. 7. Auto Radio $96.50 Seat Covers $69.50 Car Heater $65. $231.00 Sales Tax $6.43. Total 237.93. ..."

Partanian v. Flodine

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BISHOP, J.

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