Kett v. Graeser

DEVINE, J.

Summary judgment was granted in favor of defendants Graeser and Dixon Realty Company. Plaintiffs appeal. Appellants bought a home which, they say in their complaint and affidavit in opposition to motion for summary judgment, needed certain repairs. These were repairs to: a leaking shower, splits in the cement driveway, split bricks in the fireplace, and split kitchen walls. Appellants allege that respondents represented to them that if they would purchase the dwelling, the repairs would be made by a licensed contractor. Appellants allege that they were induced to buy because of the promise. They allege that when respondents made the promise, they did not intend to perform it. They allege that the repairs were demanded of respondents and that each respondent said these were the obligation of other defendants. Appellants allege actual damages in amount $3,000 and demand exemplary damages.

Respondent Graeser’s affidavit refers to a deposit receipt, which is an exhibit attached to the affidavit, and particularly to paragraph 6 of the receipt, in which there is this sentence: 11 This agreement contains the entire agreement and all representations not herein set forth are deemed waived. ’' Although all of the allegations of the complaint are denied by the answer, Graeser does not deny in his declaration that he made the alleged representation.

The deposit receipt says nothing about repairs. Besides price and terms of payment, and description of the property,

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it provides that sellers agree to furnish a certain loan and that buyers are to have possession on completion of escrow. Nothing about the quality of the property is stated. There is no “as is” clause.

The granting of summary judgment was based on the judge’s conclusion, as he states in the order, that false promises which are unenforceable under the statute of frauds or ineffective under the parol evidence rule as contradictory to a written contract, cannot form the basis of an action for fraud.

Statute of Frauds

The action is not based on a contract which is required to be in writing by the statute of frauds. It is not an action to enforce a contract for sale of real property, nor an action for damages for breach of such contract. The property has been sold and paid for. The action-is in tort based on alleged collateral oral promise made to induce appellants to buy, and made without intention to perform, a promissory fraud. This kind of fraud is specifically recognized in our law. (Civ. Code, § 1572, subd. 4.) If respondents made the promise, intending at the time to perform it, appellants have no case, for the contemporary lack of intent to perform is an essential element of the kind of wrong which is pleaded.