Woodson v. Winchester

[473]

CHIPMAN, P. J.

This is an action to foreclose defendant’s right to purchase the lands described in the complaint.

A second amended answer was attacked by a motion to strike out many of its averments and by a general and special demurrer. The motion was granted as to a considerable portion of the answer and, after it had been thus shorn, the demurrer was sustained. Defendant making no further attempt to answer, plaintiff submitted his proofs and had judgment as prayed for in the complaint. The appeal is from this judgment on bill of exceptions.

The contract bears date September 16, 1907, and relates to certain lots in Maywood Colony, near Corning, Tehama county, for which defendant agreed to pay the sum of $5,500, in installments, $500 upon the execution of the contract. $1,000 on April 1, September 1 and December 1, 1908, and the balance, $2,000, on September 1, 1910, with interest at eight per cent per annum. It was alleged in the complaint that, on October 26, 1908, $2,100 had been paid on account of the principal and $400 on account of interest to that date, and that no further payments have been made. The complaint was filed April 14, 1909, and plaintiff prayed that defendant be foreclosed from all right to purchase said land unless all sums found to be due on said contract, including costs of suit, be paid within such reasonable time as the court may allow. No question is raised as to the terms of the contract or as to the payments made thereon. Defendant’s defense rests alone on Ms averments of fraud.

Defendant is not seeking to rescind the contract. He states in his brief that he elects to retain what he has received under the contract and seeks to recover damages for the injury he has sustained from the alleged deceit; i. e., he affirms the contract and consents to be bound by its provisions, but does not waive his claim for damages arising from the alleged fraud collateral to the contract. His defense appears to be that he has been damaged $4,500, of which he asks that $2,500 be offset against plaintiff’s demand, and that he have judgment for $2,000 and retain the land. Obviously, the defense rests entirely on the alleged fraudulent conduct of plaintiff, and, before such a defense will be entertained by a court of equity, it must be shown with that fullness and particularity