Ketelhut v. Gunther

STURTEVANT, J.

Plaintiff commenced an action against the defendants to recover moneys alleged to be due. The defendants appeared and tiled an answer, a counterclaim and a cross-complaint. The plaintiff answered the cross-complaint, and a trial was had before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff and from a judgment entered thereon the defendants have appealed under section 953a of the Code of Civil Procedure.

In points 1, 2, 3, 6 and 7 the defendants cite portions of the record which, they claim, would have justified a verdict in their favor. Conceding this claim in its entirety, it must also be conceded that there was evidence which supported the verdict. Under these circumstances a court of review may not disturb the verdict.

On the fifteenth day of June, 1925, the plaintiff as vendor and the defendants as vendees entered into a formal written contract by the terms of which the plaintiff agreed to sell and the defendants agreed to buy a bakery in the city of Richmond, Contra Costa County. By the terms of that instrument the sales price was fixed at $12,500. That amount was payable $1,000 on the execution of the agreement, $4,000 not later than November 2, 1925, and promissory notes in the sum of $7,500, to be executed and delivered November 2, 1925. On the delivery of the second payment in cash and the aforesaid notes, the vendor was to surrender possession. The cash payments and notes were delivered as

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agreed and the vendees went into -possession on November 2, 1925. Between June 15, 1925, and November 2, 1925, the parties held certain conversations. On the trial of the case the defendants sought to show that in those conversations the vendor made certain representations which induced them to enter into the contract, but the trial court instructed the jury that representations made subsequent to June 15, 1925, could not be used for the purpose claimed. The court did not err in giving those instructions.

In their cross-complaint the defendants alleged that the vendor made several misrepresentations for the purpose of inducing them, and which did induce them, to enter into the contract. The plaintiff interposed an answer in which he denied specifically those allegations. On the trial of the action both parties entered very fully upon the trial of each and every issue so made. However, the plaintiff was called as a witness in rebuttal and, after being examined by his own counsel, was cross-examined. During that cross-examination the attorney for the defendants sought to impeach him by the allegations of his answer. On being shown the pleading and his attention called to the signature he stated that it was not his signature. Thereafter the defendants requested and the trial court refused three proposed instructions (Reporter’s Transcript, p. 348) which were of the general import that the jury should consider the facts as stated in the cross-complaint as admitted. Both parties had treated the answer as sufficient and had fully introduced their evidence on the issues made by the cross-complaint and the answer thereto. The proposed distractions were properly refused.