Galusha v. Fraser

SHAW, J.

The plaintiff appeals from the judgment. The object of the action was to recover damages on account of fraud and deceit alleged to have been perpetrated by the defendants upon the plaintiff and his predecessor in interest, whereby they were induced to purchase a lot in the Silver Strand tract, near Ocean Park, from the defendants A. R. Fraser, G. M. Jones, and H. R. Gage. The Guaranty Realty Company is also made a party defendant. Fraser, Jones, and Gage filed a joint demurrer to the second amended complaint on two grounds, namely, that it did not state facts sufficient to constitute a cause of action, and that the action was barred by the statute of limitations, referring to sections 338 and 339 of the Code of Civil Procedure. The court sustained the demurrer without leave to amend and thereupon entered judgment dismissing the action as against the defendants Fraser, Jones, and Gage.

[655]

The claim of the plaintiff that the court erred in refusing leave to amend when the demurrer was sustained is without merit. Under section 472 of the Code of Civil Procedure a plaintiff has the right to amend his complaint once, without leave of the court, after a demurrer is filed to it, provided he does so before the demurrer is presented to the court for decision. But if the demurrer is sustained, the defendant is entitled to judgment forthwith, unless the court, in its discretion, gives the plaintiff leave to amend. It is true that a court should exercise its discretion liberally in favor of an application to amend; but the privilege of amending at that stage of the proceeding does not become a right unless the circumstances are such that it would be an abuse of that discretion to refuse to allow it.

The complaint alleges that on June 29, 1905, Margaret B. Galusha, from whom plaintiff derives title, agreed in writing to purchase the lot from the defendants, Fraser, Jones, and Gage; that on January 30, 1906, before she had fully paid the price, she died and her right and title thereupon devolved upon plaintiff, as heir or devisee, and that he completed the purchase; that to induce her to buy the lot the defendants represented to her that they would make certain improvements of the Silver Strand tract, of which said lot was a part, which, if made, would greatly enhance the value of the lot. These improvements are particularly described in the complaint. It is not necessary to give the details here. It is alleged that the defendants failed and refused to make said improvements, except a small part thereof.