Land v. Del Mar Turf Club

[830]

BARNARD, P. J.

This is an action for damages based on allegations of negligence, false representations and breach-of warranty.

The complaint alleged that on July 29, 1950, the plaintiff went to the race track operated by the defendants, paid admission and bought an “Official Program”; that pursuant to a “system” used by him he desired to bet, in the sixth race, on the horse which occupied the same post position which was occupied by the horse which had “Placed” in the preceding race; that he proceeded to ascertain which horse had “Placed” in the fifth race and found that the program gave the post position of that horse as 5, but also listed another horse for the same position in that race; that he then consulted the man in charge of the information booth, to ascertain the true post position of the horse that had “Placed” in the fifth race, and was told that this horse had started from post position 7; that in reliance upon this information he made a wager on the horse in the sixth race which had post position 7; that the horse which started from post position 5 in the sixth race won; that he later ascertained that the horse which had “Placed” in the fifth race had started from post position 5, and not from post position 7; and that by reason of the incorrect information given him he wagered on the wrong horse and missed making a profitable bet.

After a trial the court found for the defendants, finding that the material allegations of the complaint were untrue; that no false representations were made; that the plaintiff did not rely on the information given him; and that the defendants did not warrant that the information supplied in the official program was accurate and correct. Judgment was entered in favor of the defendants and the plaintiff has appealed.

Conceding that there are other findings of fact which, standing alone, are sufficient to support the judgment, the appellant first contends that the finding that the defendants did not warrant the correctness of the information supplied in the official program is erroneous and contrary to law. It is argued that it appears, without conflict, that he was unable to ascertain which of the two post positions listed in the program for the fifth race was correct; that it must be held, as a matter of law, that there was an implied warranty that the information given in the program was correct; that he relied upon the post position of the horses, but was