Holiday v. Tolosano

BEASLY, J.,

pro

tem.

This is an appeal by defendants from a judgment against them in an action for the cancellation and rescission of a contract for the exchange of real property.

The single and simple question involved in the appeal is as to whether or not the findings in favor of plaintiffs are sustained by the evidence. We think this question must be answered in the affirmative.

The plaintiffs transferred certain real property to the defendants in exchange for an option to purchase certain other real property upon given terms, and in their complaint they allege, and the court found, that the execution of the deed by them was procured by the fraud of the defendants in that the defendant James Tolosano, in consideration for the conveyance of plaintiff’s property made certain promises which he

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neither performed nor intended at the time of his undertaking to perform.

Briefly the facts are that in the month of December, 1913, plaintiff Maude L. Holiday was the owner of nine lots in a suburb of Fresno. With the little home which she had built upon one of the lots, the property was worth about two thousand five hundred dollars, and she and her husband, a car conductor, were living thereon. At the date mentioned she advertised the property for sale or exchange. The defendant James Tolosano, a real estate manipulator, answered the advertisement shortly after January 1, 1914. About a year prior to that date Tolosano, by an instrument in writing, had acquired of one Ripperdan an option to buy a ranch of twenty acres in Madera County, about forty miles from Fresno. The value of this ranch was four thousand dollars, and Ripperdan was willing, in consideration of six per cent per annum upon that sum, paid to him annually, to hold his sale price at that figure. In effect his charge was $240 per annum for binding himself to sell at four thousand dollars, and the option was good for ten years, providing the annual option money was punctually paid. All that had been paid under this agreement was $240 to cover the year ending on February 8, 1914. When the parties to this action met in the first week of January, 1914, there remained a period of approximately five weeks yet to run of the first year’s option, which portion of the option at the annual rate of payment therefor would be worth less than $25. According to the testimony of M'rs. Holiday, and of another witness, Mrs. Lukens, Tolosano stated to the plaintiffs, when negotiating the proposed exchange, that he had contracted to pay Ripperdan four thousand dollars for the