Weiner v. Roof

WASTE, C. J.

This is an action for the rescission of a contract and for the recovery of money paid thereunder. It appears that J. B. Roof, Inc., a corporation, agreed to purchase a tract of land from one Connolly and to subdivide and sell the same. Pursuant thereto title was conveyed to The Farmers and Merchants National Bank of Los Angeles, as trustee under a subdivision trust, Connolly and the Roof company being the beneficiaries of the trust. The Roof

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company acted as sales agent and the trustee executed all contracts of sale and collected the sale prices of the lots. On November 19, 1927, plaintiff and respondent entered into a contract with the trustee bank to purchase lot 109, described in the complaint, for the sum of $3,500. Certain payments were made thereunder. Subsequently the contract was assigned by the trustee bank to the appellant bank and thereafter plaintiff paid $1890 to the latter bank as part of the purchase price. Later, upon discovering the falsity of certain representations made prior to and at the time of the execution of the contract by the selling agent, the Roof company, which representations were an inducing factor in the execution of the contract, plaintiff gave notice of his election to rescind. Judgment was entered herein decreeing a rescission of the contract and awarding respondent $3,807.01, with interest, against J. B. Roof and J. B. Roof, Inc., jointly and severally, and $1890 against the appellant bank, as trustee, the latter amount representing the aggregate of the payments made by respondent to the appellant bank, which alone has appealed.

Respondent’s right to rescind is not here questioned. In its assault upon the monetary judgment entered against it, the appellant bank in its several briefs, and the respondent by way of answer thereto, advance many arguments and contentions in an effort to establish or define the relationship borne one to the other by the several parties to the transaction. We find it unnecessary to definitely determine their status other than to state that the appellant was properly described in the judgment as ‘ trustee ’ ’ if for no other reason than that the contract assigned to it expressly declared that appellant’s assignor and predecessor' in interest was not the “beneficial owner of the property” but that it “simply holds legal title to said premises for the purpose of protecting the beneficial owner of the property” and other designated purposes. In other words, the appellant, assignee, had knowledge of the existence of the trust and took subject thereto.