Gifford v. Roberts

SHINN, Acting P. J.

This is an appeal by defendant from a judgment quieting title to some 63 acres of land. The claims of defendant arise out of an agreement to purchase the land from plaintiff’s testator, which defendant failed and refused to consummate.

[714]

The findings are comprehensive and embrace the following facts: Carl M. Bergman was the owner of the land and offered it for sale to defendant who was acting for himself and certain associates. On May 24, 1944, an agreement was entered into for a sale of the property to defendant for the sum of $29,000, payable by a deposit of $500, $9,500 cash through escrow, and $19,000 at the rate of $3,000 or more per year secured by note and trust deed on the property. The description of the land was by metes and bounds and time was made of the essence of the agreement. The initial payment of $500 was made but defendant failed and refused to pay any further sum according to the terms of the agreement. Bergman having died, his executrix on December 11, 1944, made certain offers to defendant as an inducement to performance upon his part. She offered, in writing, to include in the description of the property a small house known as 6301 Foothill Boulevard upon condition that defendant complete his purchase, and she offered to return to defendant $500 which he had deposited if defendant wished to rescind the contract, and she stated in the letter that she would declare forfeited the rights of defendant if he did not consent to either of her proposals. Defendant did not consent and plaintiff notified him that his rights under the contract had been forfeited.

Plaintiff instituted this action and defendant filed an answer and a counterclaim in which he charged that Bergman had represented to him that the tract contained 70 acres of land, whereas it contained only 63 acres, and that he represented the entire tract to be suitable for subdivision, whereas 14 acres in the northwest corner thereof could not be subdivided until certain public works had been constructed for protection against flood waters. He alleged that these representations had been made fraudulently, that he had relied upon them in making the purchase, that the land at the date of the agreement was worth only $17,000 and that he had been damaged by the alleged fraud to the extent of $12,000. It was also alleged that the land had increased in value since the date of the contract to $29,000. It was further alleged that Bergman had agreed to allow defendant 5 per cent of the selling price upon completion of the purchase and that he had also agreed to convey to defendant for a consideration of $10 a small house known as 6301 Foothill Boulevard, and had also agreed to give defendant an option to purchase certain other adjacent lands for a sum not exceeding $4,000. The prayer