Sessions v. Trott

CURTIS, J.

This action was brought by the plaintiffs to recover damages for fraudulent representations made by defendants as to the boundaries of a lot which the defendants conveyed to the plaintiffs in exchange for property owned by the plaintiffs. Plaintiffs and defendants entered into negotiations for the exchange of respective properties owned by each. The property of defendants consisted of lot 49 of tract 9159, upon which an attractive two-story stucco residence worth from $18,500 to $20,000 had been built. Said property was located on Talmadge Street near Los Feliz Boulevard in the city of Los Angeles. Plaintiffs’ property was also residence property in Los Angeles. Lot 49 of tract 9159, as shown on the plat of the district in the office of the Los Feliz Knolls tract office, was an irregular shaped hillside lot with an actual frontage on Talmadge Street of 49.89 feet. The west boundary line measured 82.38 feet, the eastern boundary line measured 80.67 feet, and the rear line approximately 82.51 feet. The lot had been landscaped with grass and shrubs and a sprinkling system had been installed. However, through an error of the gardener—it is not claimed that it was deliberately and purposely done by the defendants—a wide strip of the lot adjoining on the west had been landscaped as part of lot 49, and even part of the sprinkling system had been installed thereon. This strip of land of the adjoining lot so landscaped measured 17 feet on Talmadge Street and tapered to 7 feet in the rear. The adjoining lot was vacant and covered with sand and weeds so that it appeared to a casual observer that lot 49 had a frontage of 66.89 feet on Talmadge Street. Photographic exhibits of the house taken from the front and from the rear show that the actual property line cuts across in front of the house and even cuts off a portion of the stepping-stones laid from the curb to the front door, with the result that the house which is a large one is out of proportion to the lot upon which it is built.. In fact, the map shows that one corner of the breakfast room is within three feet of the property line. The plaintiffs claimed that, at the time they “were examining the property for the purpose of deciding whether they

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wished to make the exchange, the defendant, Mr. Trott, as they stood at the rear of the lot, pointed out the west line of the property as being along the line landscaped and indicated a string which marked the line as it was landscaped as being the property line. This testimony was corroborated by a disinterested witness who was also present. These representations were made by the defendant Mr. Trott, and his wife, named as the other defendant, was not present. The defendant denied that he had so indicated the property line, and testified that he had pointed out a poplar tree, which was very close to the actual property line as marking the property line in front. Plaintiffs further testified that they did not at any time prior to the exchange see the tract map in the tract office for the reason that the defendant had asked them not to contact the tract office as he wished, as owner, to conduct the negotiations himself. Two experts testified in behalf of the plaintiffs as to the difference in value between the property as represented by defendants and the actual value of the property. One gave his opinion that the difference in value amounted to $5,625, and the other that it amounted to $6,750. The trial court decided in favor of the plaintiffs, and as a conclusion of law held that they were entitled to recover of the defendants the sum of $3,500. Judgment was accordingly entered. Subsequently, a motion for a new trial was made upon the ground of newly-discovered evidence, and affidavits were introduced by defendants to the effect that one of the selling agents at the tract office had shown to both the plaintiffs the map of the tract in the office prior to the exchange of properties. It would, of course, follow, if this were true, that the plaintiffs were not entitled to recover, since in making the exchange they were aware of the actual dimensions of the lot and did not exchange their property in reliance upon the misrepresentations of the defendant. These affidavits were met with counter-affidavits of plaintiffs denying that they ever saw such map prior to the exchange and affirming that the only time they saw said map was several months subsequent thereto when they first became aware of the fraud practiced upon them. The motion for a new trial was denied.