Wagaman v. Clifford F. Reid, Inc.

PULLEN, P. J.

This is an appeal by plaintiff from a judgment of nonsuit entered against her in an action for the rescission of a contract to purchase certain real property.

The complaint alleges that on June 3, 1930, plaintiff, who

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was a widow and unfamiliar with business, and defendants entered into a written contract whereby defendants agreed to sell to plaintiff certain described real property for $16,-900, upon account whereof plaintiff paid $3,947.65. The complaint then sets out several representations which it is claimed defendants made to plaintiff, and concludes with the customary allegations that these representations were knowingly false and were made for the purpose of inducing plaintiff to enter into the contract, which representations plaintiff believed and relied upon. It is further alleged that plaintiff did not discover the alleged fraud until August, 1931, at which time she notified defendants that she elected to rescind, and offered to return to them anything of value she had received.

Defendant Clifford F. Reid, Incorporated, admitted the making of the contract, the payment of the sum of $3,947.65, the service of the notice of the rescission, and denied the other allegations of the complaint. Defendant Security First National Bank of Los Angeles similarly denied the allegations in the complaint, alleged laches, and also set out as an affirmative defense the following paragraph in the contract:

“It is understood and agreed that the Buyer is of legal age and that the property above described has been inspected by the Buyer or the Buyer’s duly authorized agent; that the same is and has been purchased by the said Buyer as a result of said inspection and not upon representation made by the Seller or any selling agent, and said buyer hereby expressly waives any and all claims for damages by reason of any cancellation made by any selling agent or person whatsoever other than is contained in this contract for any inducement, promise, representation, agreement, condition or stipulation not set forth herein.”

Plaintiff claims the evidence adduced by her was sufficient to establish that the representations made by defendants to her were false. These representations in effect were: First, that defendants would and could recover for her certain moneys she had invested with another firm if she would contract to purchase a lot from defendants; secondly, that defendants would employ plaintiff as a solicitor and that they would pay her enough to make the payments on the property purchased from them, and thirdly, that if she would purchase the property here involved defendants