Jones v. Grieve

California Court of Appeal Mar 8, 1911 No. No. 782.Published

Before: Chipman

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Holding. The court held that a contract for the sale of a breeding animal may be rescinded for fraud where the vendor makes a false, material representation regarding the animal's potency to induce the sale, even if the contract is in writing and the representation is not included therein.

Issues

Whether a written contract for the sale of a jack can be rescinded based on parol evidence of fraudulent misrepresentations regarding the animal's breeding capabilities.
Whether a representation that a breeding animal is a 'good foal-getter' constitutes a statement of fact or a mere opinion.
Whether the evidence supported a finding of actual fraud under Civil Code section 1572.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the fraud could be proven “notwithstanding that the contract was in writing and the representations were not.””

“we cannot agree with defendants that the representation as to the jack’s potency was “but a matter of opinion.””

Synopsis

Action to Rescind and Cancel Contract to Sell Jack—Fraud—Misrepresentation—Waiver of Findings—Sufficiency of Evidence. In an action to rescind and cancel a contract for the sale of a jack for fraud in misrepresenting that the jack “was a good foal-getter,” where findings of fact were waived, and the evidence for the plaintiffs fully proved such fraud and misrepresentation, and the evidence for the defendants controverted in some respects that of the plaintiffs, but not in all, and the trial court in rendering judgment for the plaintiffs found in effect that their testimony was true, it is held that this court is bound by the conclusion of fact of the trial court, and must assume that it found every fact necessary to support the judgment which the pleadings and evidence would warrant.

Id.—Parol Proof of Fraud Under Written Contract.—The fraud and misrepresentation may be proved by parol evidence notwithstanding the contract was in writing and contained no misrepresentation.

Id.—Misrepresentation not of Matter of Opinion.—The misrepresentation that the jack “was a good foal-getter” was of a matter of fact, and not a matter of opinion.

Id.—Untrue Representation—Materiality—Means of Knowledge— Inducement for Purchase—Reliance by Plaintiffs.—It is held that it satisfactorily appears that the representation of defendants was untrue, that it was material, and was made with means of knowledge of the potency of the jack, and as an inducement to the plaintiffs to purchase the jack, and that plaintiffs believed the defendants and relied and acted upon their representation; and that when defendants made an unqualified and unexplained material representation with the intent to induce plaintiffs to act, plaintiffs had the right to assume that defendants believed their representation to be true.

Id.-—Commission of Actual Fraud—Intent to Induce Contract by Untrue Statement—Belief of Truth Immaterial.—Actual fraud is committed when one, with intent to induce another to enter into a contract, makes a positive assertion in a manner not warranted by the information of such person, of that which is not true, even though he believes it to be true. A party will always be held to make good his statement in the form in which he makes it.

CHIPMAN, P. J.

This is an action to have canceled a contract for the sale of a certain jack. The cause was tried by the court without a jury and plaintiffs had judgment, from which and from the order denying their motion for a new trial, defendants appeal.

Plaintiffs set -out in their complaint a written contract, exhibit “A,” dated March 26, 1908, between plaintiffs and defendants. It is signed by Chas. Asbill, who is admitted by defendants to have had full authority to represent them in the sale to any extent. It reads:

“1st: That Chas. Asbill party of the first part has this day sold to Jones Bro’s & Jones parties of the 2nd part one Black Jack with white points, for the consideration of Seven Hundred Dollars, $700.00. 2nd: That said Jack shall be paid for by Jones Bro’s

Jones parties of the 2nd part, in the following manner to wit: That Chas. Asbill party of the first part shall receive as payment all fees of said Jack for the season (year) of 1908. The same fees to be made in payment on said Jack. Jones Bro’s & Jones further agree to pay all fees to Chas. Asbill party of the 1st part for each following season until the sum of Seven Hundred Dollars ($700.00) shall have been paid in the above manner specified. That Chas. Asbill party of the 1st part shall offer (after?) the payment of the sum of Seven Hundred Dollars, deliver into the hands of Jones Bro’s and Jones a bill of sale for said J aek. ” ,

On April 5, 1908, the parties entered into another written agreement, exhibit “B,” which is referred to as a modification of the contract, exhibit “A,” It makes some changes in the manner of payment, but contains no new feature having any bearing upon the questions presented by the appeal.

Defendants were served with notice of rescission and offer to restore the jack to their possession, April 14, 1909, the ground being that the said ■agreement of April 5, 1903, “was

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procured by fraud and misrepresentation, . . that said jack was a good foal-getter, which was false.” The offer being refused, the action was commenced April 30, 1909. The judgment declares the two said contracts to be void and cancels the same, upon condition that plaintiffs pay to defendants $52.50 for service of said jack less $21, costs of suit, the contracts to be canceled on such payment being made and the jack to become the property of defendants.

Jones v. Grieve

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Synopsis

CHIPMAN, P. J.

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