Jacobs v. Levin

58 Cal.App.2d 913 (1943) ERNEST E. JACOBS et al., Appellants,

v.

DANIEL LEVIN et al., Respondents.

California Court of Appeals.

May 13, 1943. Elliot M. Epstein for Appellants.

Linforth, Cannon & Miller and Ramsay Moran for Respondents.

McWILLIAMS, J.

Plaintiffs sued the defendants for damages alleged to have been sustained by them as a result of the purchase of certain San Francisco residence property. The purchase price of the property was $8,400. At the time that plaintiffs bought the property the living room contained a fireplace which obviously had been used. However, the fireplace contained no chimney or flue which, it developed during the trial, had been sealed up by the defendants many years before. Although the plaintiffs had made a number of inspections of the property before they purchased it they had failed to discover the defect in the fireplace. This conduct of the defendants in failing to notify plaintiffs of the condition of the fireplace was found in the lower court to constitute fraud on their part. That court also found that it would cost $470 to put the fireplace into a working condition. But the lower court also found that at the time the plaintiffs bought the property it had a fair market value of $8,950, being $550 more than the plaintiffs had paid for the property. That court also found that the valuation of $8,950 was not less than or in any wise affected by the fact that the fireplace was not in a condition to be used. Hence, the court concluded, plaintiffs were not damaged and rendered judgment in favor of the defendants. From that judgment plaintiffs have taken this appeal. They contend that the finding as to the value of the property at the time of that sale is not supported by the evidence and also that even if true it is immaterial. A review of the evidence convinces us that the finding is supported by the evidence, particularly in view of the fact that the testimony offered on behalf of the defendants as to the value of the property was not contradicted by the plaintiffs.

Whether or not the finding referred to is immaterial as contended presents a more serious question. Defendants concede for the purpose of the appeal that the finding of the lower court with reference to the fraud alleged to have been [58 Cal.App.2d Supp. 915] perpetrated by them is supported by the evidence. They contend that since plaintiffs did not show that they were damaged the judgment rendered by the lower court was a proper one. Their position is that since it is apparent under the finding made by the lower court with reference to the value of the property purchased that the plaintiffs received more than their money's worth it must follow that they suffered no damage by reason of the fact that the fireplace was not in a condition to be used.