Heifetz v. Bell

[276]

MOORE, P. J.

The judgment herein denied appellants relief in their action to recover for alleged fraud on the part of respondents arising out of appellants’ purchase of a parking lot business owned by Bell and sold through his agents, his codefendants who comprised a real estate brokerage firm.

Bell had given an exclusive listing of the business to his codefendants with the provision that he must realize $1,000 net from the sale and that any amount received above that sum would belong to the brokers. Appellants purchased the business through the brokerage for $2,500 on the representation that the owner would not sell for less. After operating the lot without substantial profit for several months appellants sought to rescind the transaction and later instituted this suit, basing their action upon the theory of fraud arising from the last mentioned representation along with others in regard to the income and volume of business done by the establishment. The trial court found the representation that “the owner would not sell for less” was made to appellants, but concluded that no material false representation had been made and that appellants had not, in any case, relied upon respondents’ statements in entering into the transaction.

The first contention is that actual fraud was found by the trial court by reason of its finding that defendant brokers had stated that Bell would not sell the business for less than $2,500 even" though Bell had actually listed the property for $1,000. In support thereof appellants cite

Anderson

v.

George Barney

Co., 1 Cal.App.2d 340 [36 P.2d 717] and

Thompson

v.

Stoakes,

46 Cal.App.2d 285 [115 P.2d 830]. However, that such a statement was not a false representation is supported by the evidence. Inasmuch as the brokers had the exclusive right of sale and were privileged to set any figure above $1,000, their representation as to the price was nothing more or less than that the business could not be had for less. There is no evidence that the brokers were asked for any information relative to their commission. Consequently respondents were under no duty of disclosure. They dealt at arm’s length. Nor is there any contention that there was any agency relationship between the brokers and the vendee.