Bennett v. Superior Court

LANGDON, J., Concurring.

I concur in the conclusion reached in this opinion, but I think it should do expressly what it does in effect; namely, overrule the case of

Stone

v.

Superior Court,

214 Cal. 272 [4 Pac. (2d) 777, 77 A. L. R. 743]. The Stone case is, in its essential features, identical with the instant case, and the present decision destroys the former one as authority. Both are actions to recover money paid as consideration under a contract which was previously rescinded by the aggrieved party, for a ground specified in Civil Code, section 1689. The only difference between them is a wholly unimportant one; in the Stone case the

grounds

for rescission were two: fraud and failure of consideration; in the instant ease, a single ground is alleged: failure of consideration: Irrespective of the grounds, the

obligation

remaining after 'p, completed rescission is the same in each case, and it is this obligation which is sued upon, and which the court herein holds to be a proper basis for attachment. That such a result is sound cannot be doubted, and I need not here repeat the reasons discussed in my dissent in the former decision.

The Stone case laid down at least two - principles which were directly in conflict with numerous decisions in this state, and were also contrary to the great weight of authority elsewhere. (See cases cited in dissenting opinion, 214 Cal.276 [4 Pac. (2d) 777]; see, also, notes, 21 Cal. L. Rev. 130; 20 Cal. L. Rev. 541; 5 So. Cal. L. Rev. 440; 77 A. L. R. 748.) It has been followed by the District Court of Appeal, Second Appellate District, Division One, in several cases. (See

Fair View Farms Co.

v.

Superior Court,

123 Cal. App. 9 [10 Pac. (2d) 1011];

Ingalls

v.

Superior Court,

121 Cal. App. 453 [9 Pac. (2d) 266];

Ryker

v.

Lindenberg,