Ellis v. Jones

BARNARD, P. J.

is an action for damages for fraudulent representations in the sale of real estate. The plaintiffs exchanged certain real property owned by the defendants Jones, the defendant Stockwell acting as the agent of both parties and also acting as escrow-holder. The principal misrepresentation relied on was that the property received by the plaintiffs was being rented for $200 per

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month, when in truth and in fact it was only rented for about $100 per month. While the original contract between the parties was dated December 29, 1925, the exchange appears to have been completed on February 1, 1926, as on that day plaintiffs received the deeds, certificates of title and tax receipts pertaining to the property they were receiving. This action was commenced on September 3, 1927, and was tried with a jury, resulting in a verdict for $10,000 in favor of the plaintiffs and against the defendants V. E. • Stockwell, L. Lloyd Jones and Julia F. Jones. On the hearing of a motion for a new trial, the court reduced the judgment to $7,500, which reduction was assented to by the plaintiffs. From the judgment entered, the defendant Stockwell alone has appealed.

The first point raised is that the court erred in not granting a motion for a nonsuit, it being claimed that the respondents were guilty of laches and that there was a waiver of the fraud, if any. The only evidence pointed out to sustain the contention as to laches is certain testimony of the respondent Robert A. Ellis, to the effect that he discovered the misrepresentation when he “went down and collected” the rent, and that thereafter he went on collecting the rents for a year and nine months before suit was filed. This is an action at law for damages and comes within the limitation set by section 338, subdivision 4, of the Code of Civil Procedure. The mere delay in bringing an action for a time less than the period of limitation does not amount to laches unless it appears that the delay has been to the prejudice of the opposite party

(Victor Oil Co.

v.

Drum,

184 Cal. 226 [193 Pac. 243]).

In reference to the claim of waiver, the appellant relies on the following receipt, which is set up in the brief, without comment and without other evidence: