Tatham v. Pattison

WHITE, P. J.

Defendant was the owner of a vacant lot in the Pacific Palisades in Los Angeles County, upon which he constructed a new house. By their complaint, plaintiffs alleged that defendant offered to sell said property to them. That for the purpose of inducing plaintiffs to purchase the same, defendant falsely and fraud3ilently represented the extent to which said property was filled ground. That by reason of such representations, which defendant allegedly knew to be false, plaintiffs were induced to enter into a contract with defendant to purchase said real property and the house constructed thereon. That subsequently, and pmnptly upon learning of said allegedly false representations, plaintiffs gave notice of rescission of said contract to purchase the property in question, offered the same to defendant and further offered to return to him everything of value received by them. It was further alleged that “the house was not constructed in accordance with the Building and Safety Code of the City and County of Los Angeles. ’ ’

By his answer defendant denied any false or fraudulent representation or that he fraudulently concealed any material facts. Defendant also denied plaintiffs’ allegation that the house was not constructed in accordance with the aforesaid building and safety code.

Following trial before the court, findings were made that the defendant did falsely and fraudulently represent to plain

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tiffs that said house was not constructed on filled ground when in fact it was so constructed. That defendant deceitfully and fraudulently concealed from plaintiffs that said house was not constructed in accordance with the Building and Safety Code of the City and County of Los Angeles.

From the judgment accordingly entered against him and from the order denying his motion for a new trial, defendant prosecutes this appeal.

The record reflects that the mother of two of the respondents, namely, Mrs. Lulu Tatham, a 72-year-old lady, was acting as agent for respondents who were endeavoring to purchase a home for her and her husband. Mrs. Lulu Tatham first saw appellant about the second week in January, 1950. This meeting took place upon the property in question. She again saw appellant prior to the first day of February, at which time she testified she asked him about the fill and that he told her it only extended across the backyard, and that there was no fill under the house. There is in the record testimony from which the court could reasonably conclude that appellant was aware of the fact that there was a fill at least under the porch section of the house, placed there by him, and that he did not disclose this fact to respondents.