Benson v. Garrett Investment Co.

135 Cal.App.2d Supp. 853 (1955) BEULAH BENSON, Respondent,

v.

GARRETT INVESTMENT COMPANY, INC. (a Corporation) et al., Appellants.

California Court of Appeals.

Aug. 31, 1955. Philip M. Gilbert for Appellants.

Sidney Gordon for Respondent.

PATROSSO, J.

This action, directed against Garrett Investment Company, Inc. and John Doe Garrett, was initiated by the filing of a pleading entitled, "Complaint in Fraud," the true nature of which cannot accurately be portrayed other than by quoting verbatim substantially all of the language thereof. Aside from formal matters, it alleges as follows: Defendants "maintained for a period of 6 months a relationship of confidence and great trust with the plaintiff, rendering services and advice in respect to" a parcel of real property therein described; that defendants "did, intending to deceive the plaintiff and defraud the plaintiff falsely and fraudulently represent to her that in consideration of said defendant ... paying over to the plaintiff the sum of $150.00, the plaintiff should convey her interest in the property hereinabove to the defendant, and that the plaintiff in conveying the property hereinabove described to the defendant, should receive a loan that would enable plaintiff to effectually complete payment on all encumbrances of either (sic) in such property and that the conveyance to defendant ... would be held only as security for such payment of additional loan, which was subsequently and as part of the transaction of conveyance, be negotiated to the behalf of plaintiff by said defendant"; that plaintiff relied upon such representation "and that plaintiff and defendant did then and there make agreement upon the terms of the representations hereinabove set forth and defendant ... did then and there pay to plaintiff the sum of $150 ... and that plaintiff did agree to make conveyance in writing of the property aforesaid"; that the representations were [135 Cal.App.2d Supp. 855] false and known to be false by defendant; that "defendant at no time intended to carry out the terms agreed to by the plaintiff and embodied in the representations of the defendant to the plaintiff. That defendant concealed from plaintiff its true intention, namely, to acquire an absolute property in the subject matter hereinabove described, and to perform no more of the consideration of the agreement hereinabove which embodied said representations than that payment of $150.00 made to plaintiff. That plaintiff believed and relied upon said representations and contract and was thereby in fact induced to enter into an Escrow Agreement conveying the said property to defendant. That the Escrow Agreement seen by plaintiff and signed by plaintiff provided that $150.00 had been paid by the corporate defendant to plaintiff; "that the defendant in entering into the agreement of escrow with the plaintiff was in a superior position of knowledge to the plaintiff, to-wit: that the defendant is an investment company conversant with, and specializing in transactions of title in personal and real property and plaintiff is a person of modest education and no business experience. That plaintiff did sign the agreement of escrow in reliance upon the representations of defendant ... and as part of the oral agreement which embodied said representations and that said escrow contract signed by the plaintiff was induced by said representations. That in truth and in fact the sum of receipt of $150.00 was set forth to the best knowledge and recollection of plaintiff in said contract of escrow signed by plaintiff. That the sum set forth in the copy of the contract of escrow later mailed to plaintiff sets forth the sum of $1150.00 as received by plaintiff. That said defendant did never pay to plaintiff the sum of $1150.00 and that neither does the agreement of escrow provide that the conveyance therein is otherwise than unconditional, nor has defendant in any manner proceeded to negotiate any loan or loans with said property as security therefor to the behalf of plaintiff and to enable plaintiff to clear all liens and encumbrances on said property as of the date of the escrow contract. That your plaintiff does presently affirm the said contract of escrow as the copy thereof mailed to her sets forth the sum of $1150.00 as the amount paid outside of said escrow by the defendant to the plaintiff, but that your plaintiff avers that the amount actually paid has been the consideration of $150.00 and that the failure to pay over the remaining sum of $1,000.00 as set forth in the copy of the contract of escrow mailed to her is the direct result and consequence of the representations set [135 Cal.App.2d Supp. 856] forth hereinabove of July 10, 1954, and those contained in the contract of escrow dated July 15, 1954, the copy of which was sent to the plaintiff being annexed hereto as though fully set forth herein." Attached to the complaint is a copy of escrow instructions, not purporting to bear the signature of either party, which recite that the buyer has paid the sum of "1150.00 outside to seller" and the escrow holder is directed to procure a "Preliminary Title Search for my (seller's) approval, upon the property therein and in the complaint described.""