Schroeder v. Dickinson & Gillespie Corp.

6 Cal.App.2d 175 (1935) MAYME F. SCHROEDER et al., Appellants,

v.

DICKINSON & GILLESPIE CORPORATION (a Corporation) et al., Defendants; SECURITY-FIRST NATIONAL BANK OF LOS ANGELES, Respondent.

Civ. No. 9668. California Court of Appeals. Second Appellate District, Division Two.

April 13, 1935. Edward W. Lloyd for Appellants.

Victor Ford Collins for Respondent. [177]

Crail, J.

This is an appeal by the plaintiffs from a judgment of nonsuit in favor of the defendant, Security-first National Bank of Los Angeles in an action based on alleged false representations made by the agents of the bank's predecessor in interest. For convenience no distinction will be made hereafter in this opinion between the bank and the bank's predecessor in interest. Certain acreage, known as Los Altos Park, located in the Hollywood Hills and owned by the A. B. Crist Company, was conveyed to the bank, as trustee, for the purposes of subdivision and sales. The Crist Company was the beneficiary of the trust, and the Dickinson & Gillespie Corporation was appointed the selling agents. The improvements on the property had not been put in, but the bank required a guaranty from the Crist Company that the improvements would be put in within certain periods of time therein mentioned.

In October, 1926, Mr. Gammon, who was named as a defendant but was not served and did not appear, and who was an agent of the Dickinson & Gillespie Corporation and, as such, a subagent of the bank, met the plaintiffs and interested them in purchasing one of the lots in the tract, and this they finally did. [1] It was alleged in the complaint and it was the contention of the plaintiffs at the trial that prior to the execution of the agreement for the purchase of the lot, Mr. Gammon and an agent named Solomonson, falsely and fraudulently represented to plaintiffs (1) that properly graded concrete streets, curbs and all improvements usual for a high-class subdivision soon would be placed upon the subdivision, (2) without any expense of any nature whatsoever to the plaintiffs, (3) that all of the money necessary for the purpose was already up and on deposit with the said trustee and was completely provided for, (4) that plaintiffs would be well protected in this connection by virtue of the fact that said trustee was handling and responsible for said funds and improvements, and (5) that said lot was worth $6,000 or would be. The latter, number (5), is not a representation of an existing fact but a mere opinion offered in puffing the property for sale. [2] The plaintiffs testified at the trial that they signed the agreement without reading it, but they admitted and admit in the briefs that they received their copy of the written contract within approximately