Stock v. Meek

[585]

McCOMB, J.

Plaintiff appeals from (1) an order granting defendants’ motion for a nonsuit, and (2) the judgment predicated upon the order.

Facts:

This cause has previously been before the Supreme Court on appeal in

Stock

v.

Meek,

35 Cal.2d 809 [221 P.2d 232], and the facts are thus stated in that opinion beginning at page 811:

“Plaintiff brought this action to rescind the purchase from defendants, husband and wife, of space in a cooperatively-owned apartment house and to recover the amount she had paid defendants therefor. Defendants counterclaimed for interest that they had paid plaintiff on a usurious loan.

“Early in 1945 defendants purchased the Palace Apartment Hotel in Long Beach. They intended to sell the forty-six apartments to purchasers on an ‘ own-your-own’ plan. An escrow and trust were set up to convey title to purchasers, to pay expenses, and to distribute any profits. . . .

“In a separate transaction, plaintiff purchased a nonresidential part of the apartment house, called ‘ Space 101’ by the parties. She paid defendant Glenn L. Meek $9,000 for the ‘ exclusive and permanent right of occupancy, ’ as described in the Certificate of Beneficial Ownership issued by the trustee, Security-First National Bank of Los Angeles. The record does not disclose what use plaintiff intended to make of the space. Plaintiff alleged, however, that defendant had represented to her that the space could be ‘used and owned exclusively’ after the lobby of the building had been completed, and that she had purchased the space in reliance on this representation. Plaintiff alleged that when the work on the lobby was completed, she discovered that no one could obtain the exclusive and permanent occupancy of the space because of the building and fire regulations of the city of Long Beach. Plaintiff thereafter gave prompt notice of rescission; she seeks in the action to recover the $9,000 paid. Her complaint also included a common count for $9,000 had and received by defendants for her use and benefit.

“Defendants denied the allegations of the complaint and counterclaimed for the interest or bonus paid on the note. . . .