Smalley v. George C. Peckham Co.

HENSHAW, J.

Plaintiff sued to rescind a contract into which he had entered for the purchase of several acres of land in the county of San Bernardino on the 21st of November, 1910. He served a notice and demand for rescission on January 27, 1912. The right to rescind is based upon the asserted fraudulent misrepresentations made by defendants to plaintiff to induce him, and under which he was induced, to enter into the contract of purchase. These false statements are declared to be representations that the land was of superior quality and especially adapted to the cultivation and production of orange trees and their fruit; that it was situated in the “Orange Belt” and was free from frost, and that

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the climatic conditions were especially favorable for the cultivation and production of citrus fruits. Further, that the purchaser of each ten acres would be entitled to one and one-tenth of the water and water rights and pumping plant appurtenant to the tract free of charge except for the expense of up-keep, and that the water supply was adequate to irrigate the land properly; that defendants “prevented and persuaded plaintiff not to make any inquiry for himself as to the truth of said conditions of climate and water”; that plaintiff did not read the agreement nor consult anyone about it, but relied solely on the defendants’ representations; that after the execution of the agreement he discoverd that “said land in quality and said water, water rights, and pumping plant in quantity were not as represented,” and he so informed defendants, and plaintiff believes “that the demands for money for water by said defendants, their officers, agents, and employees were and are in excess of the

pro rata

expense provided by said agreement and contrary thereto”; that plaintiff paid in cash on account of the purchase of the land one thousand dollars and other smaller sums amounting to one hundred and eighty dollars, and “that the consideration for his obligation under said agreement has failed in part and in whole and has become entirely void through the fault of the said defendants to the damage of the plaintiff in the sum of $1,180.” The defendants answered and for cross-complaint set up the contract, plaintiff’s breach of it, and sought a decree giving plaintiff a reasonable time within which to be relieved from his default or suffer foreclosure of all his right and interest in and to the land. Judgment passed for defendants and plaintiff appeals from the judgment, the order denying his motion for a new trial, and also from the order of the court taxing costs in the action.