Wiberg v. Barnum

CRAIG, J.

In December, 1923, appellant entered into a contract in writing by the terms and provisions of which she agreed to purchase from the defendants certain real property therein described, situated in Los Angeles County. Thereafter, and in June, 1924, she notified them of her rescission of said contract, reciting in detail various grounds of fraud

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through which she alleged the contract to have been procured, and demanded a return of the amount theretofore paid on account of the agreed purchase. A suit for rescission was subsequently instituted, wherein judgment was rendered in favor of the defendants, and the plaintiff appeals therefrom. It is alleged in the complaint that the defendants stated and represented to the plaintiff that if she would sign said contract agreeing to buy the property mentioned, and pay a first, installment of $387, she would not be expected or compelled to pay the second or any further installments; that they had then a buyer, and within thirty days the defendants would, resell the same at a net profit to plaintiff of $500. No resale was made, and on June 10, 1924, demand was made for the second installment, whereupon, and as soon as the plaintiff discovered the alleged fraud and the defendants’ refusal to make a resale, she signed and served her notice of rescission.

The complaint alleges the facts recited above, and, further, that the representations so made by the defendants were false, fraudulent and untrue, that they were known to the defendants to be false and fraudulent, and were made for the purpose of inducing the plaintiff to enter into said agreement, and to obtain from her said sum of $387; that she believed and solely relied upon each and all of said statements and representations, but for which she would not have signed the agreement, or have paid to the defendants the first installment; that no resale of the property was made, and that at the time of the execution of said contract, the defendants did not have a purchaser in view for such resale.

Upon the trial, objections of the defendants to the introduction of any evidence tending to show the alleged fraud by which the plaintiff claimed to have been induced to enter into the contract in suit were sustained. It was the theory of the defendants, and of the trial court, that the agreement to resell in the future was an independent and separate con- ■ tract and transaction for which the plaintiff might have sought damages for a breach, but that it was not written into the initial contract, evidence thereof was irrelevant and incompetent, since the principal contract provided that no statement or representation not embraced therein should be binding upon either of the parties.