Cadwallader v. Martin

STURTEVANT, J.

The plaintiff and his wife were the owners' of a vineyard in Fresno County; they exchanged it for lands owned by the defendants, which they took in part payment, and for the balance they took a note and mortgage which was payable in installments; some of the installments being due and payable and not having been paid, the plaintiff commenced an action to foreclose the mortgage. The defendants appeared and answered, and also filed a cross-complaint. The cross-complaint was answered and thereafter a trial was had before the trial court sitting without a jury. The trial court made findings of fact in favor of the plaintiff and from a judgment entered thereon the defendants have appealed.

Before proceeding further it will simplify the matter to state the condition of the pleadings. The plaintiff’s complaint appears to be regular in all respects and to be entirely sufficient as a complaint to foreclose a mortgage. The defendants have not contended to the contrary. By their answer the defendants expressly admitted the allega

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tions regarding the execution of the note and mortgage. By failing to deny they admitted all of the other allegations. In their answer they pleaded affirmatively an entire failure of consideration. They also pleaded false representations made by the plaintiff which induced them to enter into the exchange. In their cross-complaint they repeated the allegations regarding false representations and pleaded in detail a cause of action for rescission based on said alleged false representations. In his answer to the cross-complaint the plaintiff made certain admissions, but denied the alleged false representations and specifically denied every allegation in the cross-complaint which constituted a factor of the alleged cause of action as for false representations. The pleadings of both parties were verified. When the action was called for trial the plaintiff rested and thereupon the defendants took up the burden of proof. The findings were drawn without regard to the admissions made by the pleadings. In other respects, with meticulous care, the findings are in favor of the plaintiff and against the defendants on all allegations touching the charge of fraud.

On this appeal the defendants contend (1) that the decision is not supported by the findings; (2) that the general findings in support of the decisions are not supported by the specific findings; (3) that the findings are not supported by the facts; and (4) that the court committed error in rejecting certain of defendants’ evidence and in the admission of certain of plaintiff’s evidence.