Hutchason v. Spinks
Before: Smith
Synopsis
Action for Fraud—Misrepresentations as to Value of Business Sold—Reliance by Plaintiffs—Erroneous Instruction.—In an action to recover damages for fraud in misrepresenting the value of a business and goodwill sold by defendant to plaintiff, it was error to instruct the jury to find for the plaintiffs, if they found that the misrepresentations were made, without stating the element essential to the cause of action, that plaintiffs relied upon the representations made, and were thereby induced to enter into the contract.
Id.—Instruction as to Matter not in Issue.—The propriety of an instruction as to matter not in issue, and which does not appear to be applicable to the case presented upon the appeal, will not be considered or passed upon.
SMITH, J.
This is an appeal by the defendant from an order denying his motion for a new trial. It is somewhat
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difficult to determine from the complaint the nature of the action. It appears, however, that the cause of action originated in the lease or contract of date April 13, 1901, set out in the .complaint, and in the subsequent conduct of the defendant. This contract purports to be a lease of the " dental office and business” of the defendant in the city of Los Angeles, and there is contained in it, among other provisions, an agreement by the defendant that he “will not, during the term thereof, open or conduct any dental office in the city of Los Angeles, or engage directly or indirectly in the practice of dentistry in said city”; and we construe the contract, also, as being in effect a transfer of the goodwill of the business. (Civ. Code, sec. 992.) It is further alleged that the defendant, as an inducement for plaintiff to enter into the contract, represented to them that he was receiving from the business the sum of $1,800 per month, and that this representation was untrue, the business being worth not to exceed $250 per month; and that the plaintiffs, relying upon these representations, were induced thereby to enter into the contract. Other false representations by the defendant to the plaintiffs are also alleged; but these are, in effect, simply allegations of the promises contained m the contract, and of other promises and of failure upon the part of the defendant to perform them. The suit may, therefore, be regarded as a suit to recover damages for the misrepresentation of fact above specified, and for breach of contract; and as no objection to the joinder of these causes of action was interposed, it must be so regarded. The complaint concludes with the allegation that by reason of said misrepresentations, which will include both causes of action, the plaintiffs were damaged in the sum of $10,000, for which amount they pray judgment. The jury found a general verdict for the plaintiffs in the sum of $2,994; but in the special findings the sources of the several damages suffered by the plaintiffs are distinguished, and it is found that by reason of the misrepresentations of the defendant the plaintiffs suffered damage in the sum of $2,394, and “by reason of the defendant not performing his agreements ’ ’ they suffered damage in the sum of $600. The points made by the appellant are very numerous, but it will be sufficient to consider the following:
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