Baines v. Shank

ALLEN, P. J.

Appellant by his complaint, which contained three counts, alleged in the first the purchase by him of a certain one hundred-acre tract of land from defendant, upon the purchase of which he had paid $2,500; that the contract of purchase was evidenced by a receipt which upon its face stated that the money was received as “part and first payment on one hundred acres of land at Delhi, Merced Co., .Cal., being lots 19, 20, 22,” etc., “of see. 8, Twp. 6 S., R. 11 E., M. D. B. & M., price $5,000; balance to be secured by two notes and mortgage, payable in equal installments and due on or before two and three yearn, at 7% interest; interest payable semi-annually.” That the lots designated were subdivisions delineated upon a map made under defendant’s supervision, and with reference to which map the purchase was made; that such map was not recorded at the date of such alleged purchase and payment of money: that plaintiff ascertained after such contract was made the nonrecordation of said map. In his second cause of action, after alleging the contract and purchase, plaintiff alleges that the sum of $2,500 was deposited with defendant to be returned if a good and sufficient deed were not delivered within a few days; that plaintiff has always been ready and willing to perform his part of the agreement; that he has demanded performance upon the part of defendant and defendant has made default in the delivery of such deed. By the third cause of action, after setting forth the contract and purchase, plaintiff alleges that the same was procured by fraud, in that defendant represented the land had sufficient water for irrigation, when in truth and in fact it had none; and he seeks by this action to recover the $2,500 paid, with interest thereon from the time of payment.

The answer of defendant denied all of the allegations of the complaint material in stating the cause of action, and upon the trial the court found in favor of defendant upon all of the issues and rendered judgment accordingly, from which plaintiff appeals.

It is appellant’s contention upon this appeal that the evidence is insufficient to support the findings. The transcript,

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“prepared and filed under what is known as the alternative method of appeal, does not disclose any specifications of error, or specifications wherein any particular finding is unsupported ; but, without reference to this claimed defect, an examination of the transcript of the stenographic notes of the testimony develops that there is testimony in the record tending to support each and every finding of the court.