Mills v. Richmond Company, Inc.

NOURSE, J.

This is an action for rescission of a contract for the purchase of two lots in the city of Richmond, Contra Costa County. The grounds of rescission are defendant’s breach of its covenant to perform street work. The case was before this court on a previous appeal (56 Cal. App. 774 [206 Pac. 486]), wherein it was held that the complaint pleaded a cause of action and the order of the trial court sustaining a demurrer thereto was reversed. On the trial of the case the parties stipulated to the material facts in controversy, but offered some evidence showing that the actual cost of the street work in front of these two lots would have been fifty dollars, but that the plaintiff had been led to believe that the entire street would be improved at the time the work in front of her lots was done. It was then stipulated that these lots were in a subdivision and that no street work had been done on the street where they were located except some grading. On these stipulations, and on the evidence offered, the trial court found that the covenant to perform the street work was a material consideration of the contract and that the plaintiff would

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not have agreed to purchase said lots except for said covenant. It also found that the allegations of the complaint in general were true and that the plaintiff was not guilty of laches.

On this appeal the appellant presents four points for consideration: (1) That the evidence is insufficient to support the finding that the covenant was material; (2) that, as the appellant is the assignee of the original vendor and as such has received only a portion of the payments for the lots, it could be required to return, on rescission, only what it received; (3) that the respondent is guilty of laches, and (4) that respondent was not entitled to interest on the purchase installments prior to the date of rescission.

(1) On the prior appeal this court said: “No one, we take it, would have the temerity to claim, as a matter of law, that the cost of the street work fronting a city lot could be treated as

de minimis.

Again, so far as the item may be said to be trivial, the question seems to be settled in California against the contention of the respondent.