Ericson v. Steiner

California Court of Appeal Dec 18, 1931 No. Docket No. 4457.Published

Before: Thompson

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Holding. The court held that a trial judge has the discretion to vacate a minute order before findings are adopted and that a judgment of rescission based on fraud is valid if supported by at least one material proven misrepresentation, even if other allegations remain unfound.

Issues

Whether a trial court may vacate a minute order and subsequently adopt different findings and judgment.
Whether a trial judge's exposure to extrajudicial statements constitutes reversible error when the record is presented on the judgment-roll alone.
Whether the use of the word 'advised' in findings constitutes a fatal defect regarding fraudulent misrepresentation.
Whether a failure to make findings on every alleged ground of fraud requires reversal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The minute order was not a final determination of the case. It was not the decision of the court. Until the findings were adopted and filed there was no decision of the court.”

“The language of a finding will be reasonably construed to uphold rather than to upset a judgment.”

“In an action to cancel a contract for the purchase of personal property on the ground of fraud, it is not essential that every alleged fraudulent misrepresentation shall be proved to sustain a judgment of rescission.”

THOMPSON (R. L.), J.

This is an appeal from a judgment of rescission of a contract to purchase personal property. It is contended the findings fail to support the judgment, and that the appellants were prejudiced by irregularity of proceedings by means of which a minute order reciting that judgment would be awarded the defendants was set aside and findings and judgment were subsequently adopted and rendered in favor of the plaintiff. The appeal is presented on the judgment-roll alone.

The complaint alleges the execution of a contract between the parties hereto for the purchase and sale of a “grocery, lunch and gas business” together with “all stock fixtures and equipment” thereof, for the sum' of $1975; that the de

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fendants fraudulently represented and stated to the plaintiff that the “net profit of the business . . . had been, was and would be $400.00 per month, and that the gas pump had [been] and was earning . . . $100.00 per month; that the stock in trade would at that time inventory at wholesale prices, not less than $500.00”. Other allegations of fraud were specified, which are unnecessary to recite for the purposes of this appeal. The defendant’s answer controverted the necessary allegations of the complaint. The cause was hastily tried and submitted without argument. A minute order was first entered, reciting that judgment would be awarded the defendants. Findings of facts were not adopted nor was a judgment rendered pursuant to this order. On motion of the plaintiff, and upon due notice thereof, the minute order was vacated, and the cause was subsequently argued by respective counsel and again submitted to the court for decision. Thereafter findings of facts were adopted favorable to the plaintiff and a judgment of rescission was accordingly rendered against the defendants. From this judgment an appeal was perfected.

The court found that ‘ ‘ defendants and their agent, Rodney S. Rose, made certain representations to the plaintiff relative to the income from the business and the value of the stock of merchandise. . . . [They]

advised

plaintiff that the net income from the gasoline pump was at that time not less than one hundred

Ericson v. Steiner

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THOMPSON (R. L.), J.

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