Reading v. Marr Estates, Inc.

STURTEVANT, J.

The plaintiff commenced, an action against the defendant to obtain relief by reason of alleged fraud practiced on her in a transaction involving the purchase of certain real estate. The trial court made findings in favor of the plaintiff and from the judgment entered thereon the defendant has appealed and has brought up a transcript containing the judgment-roll alone.

The defendant asserts that a vendor is not in default until he has failed to perform after a demand for performance. The contention, under the record presented, is immaterial. In the first place it assumes that the action is one based on contract, whereas the complaint sounds in tort. In the second place the judgment-roll does not disclose whether a demand was or was not made. When an appeal is based on the judgment-roll we must assume that all of the findings were supported by the evidence introduced at the trial.

It is next contended that the vendor’s delivery and the vendee’s acceptance of the erroneous deed did not excuse the necessity of demand for performance. Our reply to the first contention is a complete reply to this one also.

It is next asserted that if the delivery of the erroneous deed was performance of the contract, the vendee has no right to recover the purchase money. The point is axiomatic; however, it is not addressed to the record before us. In effect the trial court found that the erroneous deed was delivered fraudulently and for that reason it rendered its judgment against the defendant.

The judgment is affirmed.

Nourse, P. J., and Spence, J., concurred.