Lubarsky v. Richardson

CURTIS, J.

This action was originally instituted against C. Pauline Chavis as defendant. After its commencement said defendant died and defendant Richardson, as administratrix of her estate, was substituted as defendant. We will continue to refer to C. Pauline Chavis as the defendant.

On May 3, 1926, plaintiff and defendant entered into an agreement in writing whereby the defendant agreed to sell and plaintiff agreed to buy a certain chicken ranch in Sonoma County, California, together with certain personal

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property located on said ranch, including chickens, feed, automobile and other equipment, for the sum of $11,000. Two thousand dollars of the purchase price was to be paid in cash and the balance thereof was to be paid five years from date with interest at five per- cent, payable semiannually, the buyer to have immediate possession of the premises and to pay all taxes thereon and to maintain fire insurance upon the dwelling-house on said premises to the extent of $3,000. The plaintiff paid the $2,000 called for by said contract, and entered into possession of said premises. He also paid the first six months’ interest and the first half of the county taxes for the fiscal year, 1926-1927. On December 28, 1926, the dwelling-house on said premises, of the value of $3,000, was destroyed by fire and the insurance-money, $3,000, was collected by the defendant. Upon the collection of said insurance money by the defendant, she agreed to give the plaintiff credit for the amount thereof on the amount of the purchase price remaining unpaid. The court found that defendant continued “to make said representations and statements that she would credit the insurance moneys collected by her upon the purchase price of said contract from the time of the destruction of said dwelling in December, 1926, to the month of April, 1927, at which time said defendant stated, that she would not reconstruct a dwelling of like or similar value or credit plaintiff with the value thereof”. On April 15, 1927, plaintiff served upon defendant a notice of rescission of said contract of purchase, and thereafter commenced this action to have said contract rescinded. The trial court rendered judgment in favor of the plaintiff rescinding the contract and also for the recovery of $965.53 and costs. Defendant has appealed upon the judgment-roll.