Allman v. Rich

California Court of Appeal Feb 23, 1926 No. Docket No. 5282.Published

Before: Nourse

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Holding. The court held that the judgment for the plaintiffs must be reversed because there was a complete failure of proof to support the allegations of the complaint, and the trial court's findings were irreconcilably conflicting regarding the terms of the parties' agreement.

Issues

Whether the plaintiffs proved the existence and terms of the written contracts alleged in their complaint.
Whether the trial court's findings regarding the nature of the parties' agreement were supported by the evidence and free from conflict.

Disposition. reversed

Quotations verified verbatim against the opinion

“There is a complete failure of the proof to correspond with the allegations of the complaint.”

“The situation is that the plaintiffs sued upon allegations that two written contracts were executed, proved that they were not, and then recovered upon them.”

“There is a hopeless conflict in these findings.”

[602]

NOURSE, J.

Morris Allman and Bernard Altman commenced this action to impress a trust on certain real property alleged to have been purchased by the defendant with funds furnished by the plaintiffs. Morris Allman has since deceased and the action has been prosecuted by his administrator. Judgment went for the plaintiffs, from which the defendant appeals on typewritten transcripts.

In their complaint the plaintiffs alleged that on October 5, 1920, each of the plaintiffs entered into a contract in writing with the defendant in the same form, substance, and tenor by which it was agreed that the defendant should purchase the land in suit on behalf of himself and the two plaintiffs, the interest of each to be an undivided interest in proportion to the amount paid by each, and that each of the plaintiffs was to furnish defendant the sum of $1,500 for that purpose; that each of the plaintiffs, on the execution of his contract paid the defendant $1,500. It is then alleged that at the time of the execution of the contract the defendant represented to each of the plaintiffs that he was purchasing the land from the Southern Pacific Railway Company at the price of $15 an acre, while in truth he paid but $3.90 an acre therefor; that defendant thereafter deeded to each of the plaintiffs 100 acres of said land and retained for himself about 400 acres thereof; that the entire purchase price of said lands was furnished by plaintiffs and that no part thereof was paid out of the funds of defendant. Appropriate denials were made in the answer and the cause went to trial on the issues thus framed.

The plaintiffs followed one of the approved forms of pleading an action upon a written contract: “by setting forth its substance according to its legal effect.”

(Santa Rosa Bank

Paxton,

149 Cal. 195, 198 [86 Pac. 193].) The contracts were not attacked for fraud, mistake, misrepresentation, or on other equitable grounds and no revision or reformation of the contracts was sought. The allegations of fraud and misrepresentation go only to the alleged breach of that portion of the alleged contracts by which it was claimed that the defendant agreed to convey to each of the plaintiffs an undivided interest in the lands in proportion to the amount paid by each, but that, having falsely represented to them the cost of the lands, had conveyed to them but 100 acres each. The plaintiffs do not claim that the

Allman v. Rich

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NOURSE, J.

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