Boulevard Land Co. v. King

TAPPAAN, J.,

pro

tem.

Plaintiff Boulevard Land Company instituted an action to recover certain payments alleged to be due it under the terms of a contract for the sale of real property. The contract provided for payment in monthly installments. During the trial a supplemental complaint was filed which prayed for judgment for the entire balance remaining unpaid of the purchase price stipulated in this contract. Defendant King filed an answer to the complaint and a cross-complaint alleging fraud on the part of plaintiff and praying judgment for damages for moneys paid and loss of profits. The cross-complaint also contained a second count alleging a cause of action for moneys had and received. The trial court found against plaintiff upon the complaint and for the defendant upon the cross-complaint. From the judgment entered upon the cross-complaint in defendant’s favor plaintiff appeals.

Appellant’s first specification of error is: “The evidence is insufficient to sustain the findings of the court.” The finding to which appellant addresses this attack and parts of which are quoted in its brief, set forth in effect that appellant, as vendor of a parcel of real property, as an inducement to respondent to purchase said property, agreed to resell the same for respondent within one year from date of purchase at a profit of not less than $3,000, and that this promise was made without any intention upon the part of appellant of performing the same. For a clear understanding of the point involved it is necessary to briefly summarize the evidence as contained in the record here.

[226]

Defendant testified: “I told them if they could assure me of making about $3,000.00 which I needed, and promised it, why, I would take the lot.” To which she stated plaintiff’s salesman replied: “If you will take this lot, I can practically guarantee you that the lot will be sold and relieve your necessity. And he knew he could readily sell it and make me $3,000.00.” On the subject of the resale of the lot “there was no doubt that in a short time . . . this was in August ... he said January 1st, he was to be the salesman in charge, ...” The agent of appellant who made the sale to respondent, and was a witness on appellant’s behalf, testified: “Q. Did you make any statements to Dr. King (respondent) that the Boulevard Land Company (appellant) would resell the property