Bedell Engineering Co. v. Rouse

DRAPEAU, J. pro tem.

Appeal from judgment after demurrer to first amended complaint was sustained without leave to amend, and motion to file a second amended complaint was denied.

Allegations in the complaint essential to this opinion are: (a) That the plaintiff was the owner of certain personal property; that a verbal agreement was made with the defendants as auctioneers to sell the same, but that to enable the defendants as such auctioneers to sell the property a written agreement of purchase and sale was entered into between them, which expressed a purchase price of $3,600. (b) That the defendants represented that the goods could not in any event be sold at auction for more than $3,600. (c) That they made the following statements: “We want you to get every dollar out of this merchandise that you can; we don't want to make any money off of you; if your stock would bring more than $4,000, we would tell you so; we don’t want to make in any event more than ten per cent (10%) of the amount of the sale ...” (d) That the property was sold at auction by the defendants for $10,553.04, which the defendants kept, to the damage of plaintiff.

The complaint alleges a contract of purchase and sale which would bar plaintiff’s demand for damages, unless plaintiff’s consent to the making of the contract was obtained by fraud. The alleged representation of value and the statements above quoted (together with other usual and essential elements of

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fraud to be found in the complaint) are sufficient to raise the issue of fraud.

It has been said that fraud vitiates every transaction. (12 Cal.Jur. 721.) But when the contract is completely executed, as in the instant case, it is voidable, and the injured party’s remedy is an action for damages.

(City of Oakland

v.

California Const. Co.,

15 Cal.2d 573 [104 P.2d 30] at 577.) Therefore, the amended complaint and the proposed second amended complaint stated a cause of action good against general demurrer. The plaintiff is entitled to his day in court, which includes framing the issues as between it and the defendants, and an opportunity to prove the allegations of the complaint.