McCray v. Title Insurance & Trust Co.

THE COURT.

This action was brought for the purposes of securing the rescission of a contract for the sale of a lot on one of the beaches of Los Angeles County, upon the ground of fraudulent representations. The trial court found for defendants on all issues, and refused to grant a rescission, and plaintiffs now appeal from the judgment. ¡

Of the twelve points urged for reversal of the judgment, nine are based upon the insufficiency of the evidence to support the findings. Two of such points are listed under errors of law, but in effect, they also attack the findings upon the ground of insufficiency. The other point is based upop error in giving judgment for defendants, and in refusing | plaintiffs’ motion for new trial. It is a fair statement to say that the entire attack made upon the judgment arises out of the insufficiency of the evidence.

One of the defenses set up in the answer was that plaintiffs were barred by their laches from rescinding the transaction, and we shall first dispose of that issue opl fact.

Section 1691 of the Civil Code requires the party entitled to rescind “to rescind promptly, upon discovering the facts which entitle him to rescind”. Whether or not the defrauded party has rescinded “promptly” will depend upon all the circumstances of the particular case, and is, of course, 4 question primarily for the trial court.

(French

v.

Freeman,

191 Cal. 579 [217 Pac. 515, 519].) “As held generally, the question of the existence of laches is one to be determined primarily by, and must be left largely to the trial court.”

(Akers

v.

Hufford,

128 Cal. App. 146 [16 Pac. (2d) 802].) “The question of laches is, in the first instance, largely one for the determination of the trial court, and its conclusion will not be set aside by an appellate court if it finds reasonable support in the evidence.”

(McMahon

v.

Grimes,

206 Cal. 526 [275 Pac. 440], citing numerous cases.) Is there sufficient evidence in the record to justify the finding that plaintiffs failed to rescind promptly? We belief that