Rodriguez v. Bulotti

SPENCE, J.

Plaintiff had judgment for the rescission of an agreement to purchase a restaurant and for the return of the sum of $1,000 paid by plaintiff upon the purchase price. Prom this judgment defendants appeal.

On July 2, 1928, plaintiff and her husband, Manuel Rodriguez, who was joined as a defendant in the action, entered into a written agreement to purchase the restaurant from the Bulottis for the sum of $2,000. The terms of the agreement provided for a cash payment of $1500 and for monthly payments of '$50 per month for ten months. At the time the agreement was entered into plaintiff could not read English. She had some insurance money left her by her former husbánd and just prior to the date of the agreement plaintiff and defendant Manuel Rodriguez had married. The defendants Henry Bulotti, Rosie Bulotti and Manuel Rodriguez, the husband of plaintiff, had entered into a secret agreement to deceive and defraud plaintiff by representing to her that the purchase price was $2,000 and that defendant Manuel Rodriguez was investing in the enterprise by putting up $500 of his own money, together with $1,000 of plaintiff’s, to make the cash payment. In truth and in fact, under the terms of the secret agreement between defendants, the total purchase price ivas to be only $1500 and defendant Manuel Rodriguez was to pay nothing on the cash payment. When the agreement was signed plaintiff paid $1,000 to the Bulottis and defendant Manuel Rodriguez gave them what plaintiff was led to believe was a check for $500. Pursuant to defendants’ secret agreement, this purported check was delivered to the Bulottis solely for the purpose of deceiving plaintiff and of inducing her to part with her agreed share of the cash payment. Plaintiff and defendant Manuel Rodriguez went into possession of the restaurant, but within a month thereafter plaintiff learned of the fraudulent agreement and promptly gave notice of rescission. Possession of the restaurant was turned back to the Bulottis on August 1, 1928, and they conducted the same for more than a year thereafter and until shortly before the trial of the action.

Appellants state that two issues are presented: “First. Fraud without damage fails to constitute or establish a cause

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of action. Second. Respondent failed to place appellants