Sintzel v. Wagner

WARD, J.,

pro tem.

The first complaint filed in this action was in equity for a rescission of a contract. Upon issue raised by answer, a trial was had and the cause submitted for decision. Subsequently the court ordered plaintiffs to amend the complaint. Plaintiffs filed an amended complaint praying for damages upon a breach of contract alleging that defendants induced plaintiffs to purchase a lot with fruit-trees thereon and that defendants agreed to care for the property for three years by irrigation, cultivation, etc. The amended answer set out the copy of the contract, denied that any contract to care for the trees was part of the consideration for the sale of the lot, and that the only agreement for the care of the trees was embraced in a subsequent contract. The court found that the representations as to care of the trees were made for the purpose of inducing plaintiffs to execute the contract of purchase; that defendants failed to irrigate, cultivate, etc., and fixed damages.

In an action where the complaint asks for rescission and for such other relief as may be equitable and just if the court should conclude that rescission cannot be had, an amended complaint may be filed presenting the question of damages for breach of contract.

(Masero

v.

Bessolo,

87 Cal. App. 262 [262 Pac. 61], and

Lawrence

v.

Gayetty,

78 Cal. 126 [12 Am. St. Rep. 29, 20 Pac. 382].) In the original complaint in this action there are allegations sufficient to warrant a judgment for damages, but plaintiffs demanded rescission and prayed for “other and further relief as may be just and necessary”. When the answer was filed and the issues raised, the court had the right to grant any relief consistent with the pleadings or to order or permit the pleadings to be amended so as to

[337]

fully present the real question involved.