Kuck v. McConnell

STURTEVANT, J.,

pro

tem.

This is an appeal from a judgment for the plaintiff. The facts of the case are, in brief, as follows:

On February 17, 1915, the plaintiff and defendant entered into a written agreement by which the plaintiff was to convey to defendant certain real property situated in Glenn County, California, and defendant was to pay therefor the sum of five thousand dollars cash and one thousand five hundred shares of preferred stock and one thousand five hundred shares of common stock of Consolidated Concessions Company, a corporation. Pursuant to this agreement, on March 17, 1916, a deed was executed by plaintiff and defendant delivered to him the sum of five thousand dollars, and the stock provided for in the agreement. Later, the plaintiff attempted to rescind the contract because of certain alleged false representations alleged to have been made by defendant, and brought this action for the recovery of the consideration paid by him under the contract.

The trial court found that the contract was procured through fraud and misrepresentation and a decree was entered accordingly, directing a restoration of the consideration from each party to the other.

The appellant contends first that the findings with respect to the misrepresentations made by defendant to plaintiff are not supported by the evidence. The record shows conflicting evidence, but it discloses some evidence upon which the findings can reasonably be predicated, and under such circumstances this court may not inquire into the weight of the evidence.

Upon the question of whether the plaintiff relied and acted upon the false representations made to his agents, or whether he sought independent advice on these subjects, there is also conflict in the evidence, which conflict the trial court has resolved in favor of the plaintiff by its finding that he acted upon said false representations to his damage. This finding also may not be disturbed on appeal.

Appellant next contends that the trial court was guilty of an abuse of discretion in denying the motion for a continuance

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