Quindt v. Kilpatrick

MUSSELL, J.

Action for rescission of contract to purchase real and personal property. The property involved in this action was owned by the defendants and situated on State Highway 180, between the city of Fresno and General Grant National Park. The property was listed for sale with a real estate broker and on January 26, 1948, defendants, as sellers, and Albert A. Alloro, and plaintiff Florence Quindt, as buyers, signed a real estate deposit receipt for the purchase of the real estate and personal property thereon for the total purchase price of $17,000. Mr. Alloro declined to proceed with the contract of purchase, and by agreement of the parties, was relieved therefrom.

[825]

Before signing the escrow instructions, plaintiffs visited the property and were shown some 11 buildings located on it and the boundaries as marked on the ground by fences which had been erected by the defendants. On February 13, 1948, as alleged in plaintiffs’ complaint, the agreement was reduced to writing and contained in escrow instructions signed by the plaintiffs and defendants.

The plaintiffs, upon inspecting the premises prior to the escrow, stated that they expected to use the property for an auto court, grocery store and service station and were satisfied from their inspection that the property was sufficiently large for their purposes. Plaintiffs asked defendant H. J. Kilpatrick what the acreage was and were informed by him that the property contained approximately 3% or 4 acres. Mr. Kilpatrick stated that he did not know exactly how much land there was but thought that there was between 3 to 4 acres. The escrow instructions contained no statement as to the acreage, but contained an accurate dimensional description of the property. The plaintiffs admittedly read the correct description of the property as contained in the escrow instructions before signing the document.

Plaintiffs deposited $5,000 in escrow as a portion of the down payment agreed upon and subsequently $3,000 of this payment was released to defendants to enable them to build an additional store building on the property. The plaintiffs then operated and assisted in the operation of the property for several weeks and then decided not to proceed any further with their agreement to buy and brought this action for a cancellation of the escrow agreement on the ground that the defendants had falsely represented to them that the property contained 4 acres. A trial was had by the court without a jury and judgment entered in favor of the defendants. This appeal followed.