McFate v. Bank of America of California

TAPPAAN, J.,

pro

tem.

This appeal is from a judgment of dismissal entered after an order sustaining defendant’s demurrer to plaintiff’s complaint. The demurrer was sustained by the trial court with leave to the plaintiff to amend, but plaintiff elected to stand on his complaint, whereupon, by stipulation setting forth such election and reserving to plaintiff the right to appeal, the order was entered dismiss

[684]

ing the action. The sole question presented upon this appeal is whether the original complaint states a cause of action. Defendant’s demurrer was general. The complaint alleges the corporate existence of defendant bank and its predecessor banks, of whose various rights and liabilities defendant bank is alleged to have become the successor. Where, hereafter in this opinion reference is made to defendant bank, it is deemed to include as well the banking institutions which preceded defendant in this transaction, and to whose rights and liabilities it has succeeded. Then follow allegations that one Zuckerman owned a certain apartment house; that plaintiff owned a ranch; that one Gordon acted as Zuckerman’s agent and broker to negotiate a sale or exchange of his apartment house to plaintiff. It should be noted that neither Zuckerman nor Gordon are parties to this action. The complaint then alleges that Zuckerman made representations as to the value of his property to plaintiff, and stated that it was encumbered with a mortgage in the amount of $100,000, held by defendant bank, and that said bank renewed the loan from year to year and in the future would so renew the loan. The next allegation is to the effect that plaintiff in reliance upon the said representations of Zuckerman entered into a written agreement of exchange of his (plaintiff’s) ranch for Zuckerman's apartment house, subject to a mortgage of $100,000, held by defendant bank. Under the terms of this agreement, it is alleged that a provision was made for the creation of an escrow by the parties with defendant bank to consummate the exchange. There is then an allegation that the representation as made by Zuckerman that there was a mortgage in the sum of $100,000 on the apartment house held by defendant bank was false and untrue; that the reasonable mortgage value of said property was $68,000; that defendant bank made an appraisal of said property at $132,000, and offered to loan Zuckerman $75,000 on the same; that Zuckerman informed defendant bank that he was about to exchange the property with plaintiff for his ranch, subject to the mortgage of $100,000 held by defendant bank, and defendant bank agreed to receive a note and mortgage for that amount and credit to Zuckerman’s account the moneys received therefrom, and that such a mortgage was duly made and placed of record. The next allegation is as follows: “That thereby and as a result of such plan and of such actions upon the part of the Her-