Nichols v. Moore (1919) · DecisionDepot

Nichols v. Moore

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Aug 25, 1919 No. L. A. No. 5235.Published

Before: Wilbur

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Holding. The court held that the plaintiff sufficiently pleaded facts to excuse her failure to discover the alleged fraud earlier, thereby overcoming a demurrer based on the statute of limitations.

Issues

Whether the plaintiff sufficiently pleaded facts excusing her failure to discover the alleged fraud within the statutory period.
Whether the plaintiff was put on inquiry notice regarding the condition of the land to require earlier investigation.

Disposition. reversed

Quotations verified verbatim against the opinion

“But a mere averment of ignorance of a fact which a party might with reasonable diligence have discovered is not enough to postpone the running of the statute.”

“every case of this sort must turn upon its particular facts”

“the plaintiff has sufficiently disclosed by the facts alleged in her complaint that she was not in any way put upon inquiry”

Synopsis

APPEAL from a judgment of the Superior Court of Riverside County. H. H. Craig, Judge.

The facts are stated in the opinion of the court.

WILBUR, J.

This is an action to recover damages for-fraud. Demurrer was sustained to the complaint on the ground that the claim was barred by the statute of limitations. The transaction complained of occurred in October, 1904. Plaintiff alleges that the fraud was first discovered by her in October, 1916, a few months before the bringing of the action.

[1]

As stated in

Bradbury

Higginson,

167 Cal. 553, 558, [140 Pac. 254], and cases therein cited, it is necessary for the party seeking to avoid the bar to affirmatively plead facts excusing the failure to make an earlier discovery of the mistake or fraud relied upon, citing

Dennis

Bint,

122 Cal. 39, [68 Am. St. Rep. 17, 54 Pac. 378];

Harrington

Paterson,

124 Cal. 542, [57 Pac. 476];

Lady Washington Co.

Wood,

113 Cal. 482, [45 Pac. 809]. As was there said: “But a mere averment of ignorance of a fact which a party might with reasonable diligence have discovered is not enough to postpone the running of the statute.

(Hecht

Slaney,

72 Cal. 363, [14 Pac. 88];

Burling

Newlands,

112 Cal. 476, [44 Pac. 810];

Lady Washington Co.

Wood,

113 Cal. 482, [45 Pac. 809];

Related research

151 Cal. 797, [91 Pac. 740]. In order to determine the question whether or not the plaintiff has shown reasonable diligence to acquaint herself with the facts constituting the fraud and, therefore, whether her claim is barred by the statute of limitations, it will be necessary to state some of the facts and circumstances concerning the fraud alleged and the discovery thereof. The complaint is based upon defendants’ fraud in securing a contract by which plaintiff transferred an orange grove in Riverside, California, worth ten thousand dollars and returning an income of a thousand dollars a year, for defendants’ land in the state of Washington, which is absolutely valueless. At the time of the transaction plaintiff was living in Ohio and the defendants were living in Riverside. The negotiations were conducted by correspondence. The false representations which induced the plaintiff to transfer her land were numerous, among others that the land was worth twenty-five thousand dollars, and that the land was covered with timber, having at least five million two hundred thousand feet of timber of first-class quality, and, in addition thereto, other growing timber; that it was accessible to water transportation, and that when cleared the land was valuable for agriculture. The lands were more or less inaccessible and known as wild lands. At the time of the representations and transfer there was no timber on the land. Whatever timber there had been thereon had been burned off. The land was valueless for agriculture. The allegations by which plaintiff justifies her failure to discover the fraud from, the date of the transaction to October, 1916, and the circumstances concerning the discovery, are to the effect that during the negotiations leading up to the transfer the defendants sent a letter to her from one J. A. Wittrow, who signed himself as a “cruiser,” written upon the letter-head of the Bank of Galium County, Port Angeles, Washington, whose president subsequently acknowledged the signature to the deed which was delivered to plaintiff at the time of the transfer of the land to her. That by this representation so conveyed to her she was lulled into a false sense of security; that she was unacquainted with the basis upon which assessments were made for taxes in that neighborhood and that, therefore, the tax bills did not advise her of the fraud; that she was acquainted with lands in the vicinity of the lands in question

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Synopsis

WILBUR, J.

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