Bank of America National Trust & Savings Ass'n v. Ames

BISHOP, J.,

pro

tem.

Plaintiff successfully sought judgment in the court below' to recover some sums due under a contract providing for the sale of real estate. The defendants seek on appeal, unsuccessfully, to reverse the judgment on three grounds: that the evidence shows that they were induced to enter into the contract through fraud; that there was a total failure of consideration; that the trial court had no jurisdiction of the subject-matter of the action.

[313]

The fraud alleged and relied upon was the making of a promise to resell the property purchased at a profit, without intent to perform. Such a promise, if so made, may be a valid defense to an action such as this.

(Boulevard Land Co.

v.

King,

(1932) 125 Cal. App. 224 [13 Pac. (2d) 864].)

The trial court in the case under consideration, however, found that the promise was not made, and the evidence supports the finding. Whatever other interpretation the trial court might have placed on the negotiations leading up to the signing of the contract, its conclusion that the salesmen’s statements were given and received as a prophecy, not as a promise, was warranted. One answer will serve as an example of defendants’ testimony: “The substance of their conversation was that they would probably be able to turn it for me in that time for $5,000.00.” Other like statements were evidently accepted by the trial court as an accurate report of what -was stated, and no promise was found.

The contention that there was a total failure of consideration is made dependent upon the making of the promise to resell, the failure to perform which is the failure of consideration complained of. The failure, as the trial court determined, was not in the consideration, but in the proof. We have no occasion to reverse the trial court’s conclusion.

Appellants’ argument that the lower court was without jurisdiction to entertain the action is this: By the complaint it appears that many of the sums that go to make up the total of $2,236.75, exclusive of interest, for which judgment was prayed, were instalment payments due and payable more than four years before the action was commenced, and if these outlawed items were disregarded, the total, for which judgment could be given, would -be a sum not within the court’s jurisdiction. It is true that a subtraction of the outlawed instalments left the total due for principal much less than $2,000; judgment was entered for $1659.61, a sum which included interest. It does not follow, however, that the trial court lacked jurisdiction.