Whittaker v. E. E. McCalla Co.

BURROUGHS, J.,

pro tem.

This is an action to rescind a contract for the purchase and sale of real property. When the cause was called for trial on the issues of fact joined by the pleadings, the court, upon the objection of the defendant, refused to allow the plaintiff to introduce any evidence, on the ground that the amended complaint failed to state facts sufficient to constitute a cause of action. Such ruling was equivalent to an order sustaining a general demurrer.

(Moore

v.

Douglas,

132 Cal. 399 [64 Pac. 705] ;

Spaeth

v.

Ocean Park etc. Inv. Co.,

16 Cal. App. 329 [116 Pac. 980].) Judgment was thereupon entered that the plaintiff take nothing by his action, and defendant recover its costs. The plaintiff has appealed.

Two questions are presented for consideration. Does the amended complaint state a cause of action, and if so, had the superior court jurisdiction of the action? Among other matters, it is alleged in the amended complaint that on or about January 5, 1928, the defendant agreed to sell, and the plaintiff to buy, a tract of land, being lot 133, tract 10259, book 151, pages 73 to 78, inclusive, map records of Los Angeles County, in accordance with a certain agreement which is attached to the complaint. It is further alleged that said agreement provides: “It is understood and agreed by the buyer and seller that the purchase price of the property described in this agreement for sale of real estate, includes the following improvements: water, gas, electricity, oiled and graveled streets, concrete curb and gutter on outside of streets.” It is further alleged: “That none of the aforementioned improvements, except electricity, have been installed on the property described herein pursuant to said contract, or adjacent to the property so that it

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may be of use in connection with the property described herein. ” It is further alleged, that before the filing of the complaint, to wit, on or about October 26, 1929, a rescission of the contract was served on the defendant, a copy of the notice of rescission being attached to the said complaint. From this notice appears the breach of the agreement as above pleaded, together with the statement : “ . . . please take notice that the undersigned hereby rescinds the contract described herein and offers to give to the E. E. McCalla Company, a corporation, a quitclaim deed, conveying all right, title and interest of the undersigned in and to the property described in the said contract, upon payment of the sum of $528.62 to the undersigned, being all of the money paid to the E. E. McCalla Company, a corporation, on said contract”.