Hoffman v. Patterson

RICHARDS, J.,

pro

tem.

This is an action for damages arising out of a transaction between the parties wherein the plaintiff applied to the defendant for information as to the location of school l,and of the state of California open to entry which he desired to acquire. The defendant was a real estate dealer who advertised himself as dealing in school lands and expert in advising and aiding persons who desired to purchase such lands. The plaintiff was a foreigner, speaking English but brokenly and wholly ignorant of the land laws of California relating to school lands. The defendant, upon plaintiff’s application to him, represented that he knew the location of a section of school land open to entry which he described as quite desirable, and further represented that he had personally been upon the land and had taken the necessary preliminary steps to obtain title thereto under the sections of the Political Code applicable to the purchase of school lands and had paid the first filing fee of $25, and that he would proceed as the plaintiff’s agent to do or have done the things necessary to acquire the title to said land. The plaintiff engaged him so to do and at his instance signed, without reading, the same, the formal application and affidavit for the purchase of said land which the defendant had prepared and presented to him for signature. He also transferred to the defendant his eqhity in a house and lot in Los Angeles which was to be the consideration to be paid for the defendant’s advice and- services. The plaintiffs application and affidavit were duly filed in the office of the surveyor, but when the plaintiff came to prove up on the land, as required by law, his application to purchase the same was re

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fused, for the reason that it developed that he had not taken the proper steps with regard to going upon the land prior to his application to purchase, as required by the statute. Thereupon he brought this action. The foregoing facts were stated in the plaintiff’s complaint and testified to by him upon the trial. The defendant had filed a demurrer, which being overruled, he answered denying that he had misled the plaintiff or had failed to perform the services for which he had received the transfer of the plaintiff’s equity in the Los Angeles property. At the inception of the trial the defendant insisted that the plaintiff’s complaint was indefinite, in that it could not be determined whether he was seeking to recover damages for the breach of a contract or for false and fraudulent misrepresentations, and that he should be limited in his proofs to one or the other cause of action. The court at first seemed to incline to this view and required the plaintiff to elect between the two alleged causes of action, but later allowed him to prove the entire transaction as alleged in his complaint. The appellant alleged this as error, but it is evident that the later view of the court was the correct one, defendant not having by his demurrer objected to the plaintiff’s pleading upon the grounds stated at the trial. The appellant further contends that the evidence does not support the findings of the court as to the defendant’s alleged misrepresentations in relation to the condition and value of the school land, but in this regard the plaintiff testified fully upon all of these matters and the trial court was entitled to accept this version of the transaction. As to the appellant’s claim that the plaintiff should not recover for the reason that after he had entered into the transaction he had gone upon the section of school land and had seen that it was not as represented, and had nevertheless gone ahead with his attempt to prove up upon it, this claim has no merit, since the plaintiff does not found his claim for damages upon this misrepresentation alone, but upon his failure to procure said land because the defendant had misled him as to the proper steps to be taken to perfect his right to purchase it from the state. In respect to this phase of the case, the appellant urges that the plaintiff is seeking to found his right of recovery upon his own wrong, in this, that it was his duty to have read the affidavit 'and application to purchase, which he signed, and that if he had done so he would