Ito v. Watanabe

LANGDON, J.

Plaintiff and defendant entered into a contract by the terms of which plaintiff agreed to sell to defendant an hotel business, furniture and other equipment, and to procure a new lease for him. This action is for the balance of the purchase price. The answer of defendant alleged misrepresentations inducing the making of the contract and partial failure of consideration. It further alleged a notice of rescission and offer to restore the consideration received. In addition the answer set forth a delivery by defendant of an unindorscd certificate of the Yokohama Specie Bank, San Francisco branch, as security for the payments to be made, and prayed that plaintiff be required to return this certificate and the sum of $1600 already paid on the contract. Defendant demanded a jury trial, which was granted over the objection of plaintiff. Eleven special interrogatories were submitted to the jury, and the parties stipulated that the court could make findings on all other issues. On four of the questions given to the jury, involving the issue of fraudulent representations, their answers were in favor of defendant. Plaintiff thereupon moved that the court disregard this verdict and enter judgment in favor of plaintiff, which it did. This appeal is taken by defendant on the judgment-roll alone.

The first question presented by these facts is whether the court acted within its powers in disregarding the jury’s verdict. Its action appears to have been based chiefly upon the theory that the answer raised only equitable issues and that therefore, under the well-settled rule (see

Brichetto

v.

Raney,

76 Cal. App. 232 [245 Pac. 235]), the jury trial was unnecessary and its verdict was only advisory. This rule would doubtless apply to an action brought by the buyer to cancel or to rescind the agreement. But a rescission may be effected by notice and restoration or tender of the consideration, without the necessity of an action. (Cal. Civ. Code, sec. 1691;

Zeller

v.

Milligan,

71 Cal. App. 617 [236 Pac. 349]; see 19 Cal. L. Rev. 424.) The present action is brought by the seller for the balance of the pur

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