Wedge v. Security-First National Bank

SEAWELL, J.

By the judgment appealed from the court below decreed rescission of a contract for the sale of a lot in the city of Los Angeles entered into between defendant Security Trust & Savings Bank as seller and plaintiffs as purchasers, and awarded plaintiff a money judgment for $3,656.31. Said sum represents the amount paid on the purchase price, plus taxes and interest. The defendant Security-First National Bank of Los Angeles is the successor in interest of Security Trust & Savings Bank by virtue of a bank consolidation.

The lot in suit is triangular in shape. It has a frontage of approximately 150 feet on Farewell Avenue, the entire length of the block, and also a frontage of 114 feet on Waverly Drive. The northwesterly corner is an acute angle formed by the intersection of said public ways. The purchase price was $3,000. Plaintiffs, George N. Wedge and Herbert F. Wedge, who are brothers, paid $2,000 upon execution of the contract on or about March 12, 1924. The balance was provided to be paid in monthly installments of $33.50. In May, 1929, before plaintiffs had paid the purchase price in full or received a deed, they discovered that the city of Los Angeles had a right of way 120 feet in width across the lot for power line purposes, upon which no building could be erected, with the possible exception of an absolutely fireproof structure. Inasmuch as the major portion of the lot lay within the right of way,'plaintiffs claimed said right of way rendered it valueless. Upon the bank’s refusal to cancel the contract and restore the consideration which plaintiffs had paid, they brought this action for rescission based on fraud and failure of consideration. The court below entered judgment for plaintiffs, from which defendants prosecute this appeal.

Plaintiffs had observed the electric transmission wires, which passed over the property at a considerable height, when they first viewed the property. Said wires were carried by steel towers built on concrete blocks.. One of these towers was situate on the southwest corner of Farewell Avenue and Waverly Drive, directly opposite the lot purchased

[116]

by plaintiffs. They were interested in erecting a bungalow court and feared the presence of said transmission lines. In answer to their inquiries as to whether they could build under the wires, Gould, the salesman with whom they were negotiating, replied, “Absolutely, yes.” Mrs. Lena Wedge, wife of George N. Wedge, testified that Gould said in her presence and in the presence of plaintiffs: 11 Why, how could those wires possibly make any difference? If you object to wires, where in the world are you going to build a court in this city? . . . How in the world could these wires so high up as they are make any difference in your building either to the people who are living there ? ’ ’