Hartwigsen v. Ditto

MUSSELL, J.

Defendants appeal from a judgment for plaintiffs in an action for damages, fraud and deceit. In September, 1951, the defendants, who owned a chicken ranch in Orange County, listed the property for sale and Paul Kelby, a real estate salesman, was employed by them to assist in conducting and negotiating a sale of the property. Defendants had been operating the ranch without a use variance permit from the Board of Supervisors of Orange County and Kelby informed defendant Clarence Ditto that he should have such a permit in order to consummate a sale of the premises. In October, 1951, Ditto called on Mr. Walter Weimer, a planning commissioner for the district, regarding a permit for a variance for his chicken ranch and was informed that Weimer would call on him when he received the variance papers. On or about October 27, 1951, Weimer inspected the premises and told Ditto that the variance ought to be denied on account of the condition of the premises. Ditto promised to clean the ranch up in a very short time and stated that a three-year limit “would suit him very well.” Weimer then stated that if Ditto would clean the place up, he (Weimer)

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would recommend the granting of a three-year permit. In November, 1951, Ditto’s application for a permit was passed upon by the board of supervisors and Ditto, who was present at the meeting, was informed by the board that he would be given three years in which to clean up and dispose of his holdings there, that is, “clean it up and get rid of it. By that the board definitely meant that he would discontinue the use of the property for chicken ranch purposes.” On November 8, 1951, a use variance permit was issued by the board for a period of three years, subject to the conditions stated.

Plaintiff Clyde Hartwigsen testified that about September 15, 1951, Kelby showed him the property involved; that on December 18, 1951, plaintiffs again visited the ranch and discussed terms of sale with Ditto; that the question of a land use variance permit to operate the property as a chicken ranch came up and Ditto stated that he (Hartwigsen) had “nothing to worry about”; that he (Ditto) had obtained a permit to operate as a chicken ranch and that this was the “place for chickens on account of there being so many in that area”; that on December 20, 1951, plaintiffs and defendants entered into a written agreement wherein plaintiffs agreed to buy and defendants to sell the ranch and equipment for the sum of $18,000; that he took possession of the property December 27, 1951, on which date Ditto handed him the permit which he had obtained from the board of supervisors and stated that he (Hartwigsen) “didn’t need it,” that he (Hartwigsen) had “nothing to worry about at all, it was the place for chickens” ; that about a week later he (Hartwigsen) noticed the three-year limitation in the permit and asked Ditto about it; that Ditto said there was nothing to worry about, that it could be renewed; that in March, 1954, he applied for a renewal or extension of the permit and that the planning commission recommended denial of the application; that at a subsequent hearing before the board of supervisors, one of the supervisors stated that Mr. Ditto had been told at the time he got his permit that it would not be renewable under any circumstances; that the board then denied the application for a renewal and that had he known that Ditto had been informed that the permit would not be renewed, he would not have purchased the property; that he relied upon the representations made by Ditto; that when his application was denied by the board, he quit replacing chickens on the ranch, served notice of rescission of the contract, and on August 25, 1954, filed this action.