Gist v. Security Trust & Savings Bank

PRESTON, J.

Action for rescission of a contract for the purchase of real property. Judgment for plaintiffs. Appeal by defendants.

About December, 1925, the Los Feliz Hills Tract in Los Angeles was opened for subdivision and sale to the public. Defendant bank, as trustee, held title to the property to secure an indebtedness to it, under the terms of a trust agreement whereby one Dickson was named as trustor and defendants Edwards & Wildey Company, Cooper, Williams, Laack and Cotton were named as beneficiaries. Edwards & Wildey and Laack and Williams were selling agents for the tract and the latter firm employed a licensed real estate salesman, Louis G. Wurtz, through whom the transaction with plaintiffs was consummated.

Plaintiff, Mrs. Gist, had known Mr. Wurtz for many years. For many years also she had coveted, for a home site, one

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particular knoll, or portion of land in the tract, from which could be had a wide valley view of surrounding territory, which she considered superior to that obtainable from any other point. Shortly after the opening of the tract, she noticed that the land was to be subdivided. She immediately sought Mr. Wurtz, told him of her desire for said certain parcel of land and later she inspected the territory with him and pointed out the exact spot upon which she wished to build a home. He assured her that the lot was for sale, whereupon she consulted her husband, plaintiff C. Wooster Gist, and the following day again visited the place with him and with Mr. Wurtz. The lot was situated on a steep hillside, fan-shaped and narrowing toward the rear. The front stakes were not visible. There was some conversation as to the location of the side boundaries. The salesman picked up a stone, threw it roughly down the hill toward a tree and told plaintiffs that the course of the stone marked the approximate borderline of the lot; that the tree itself would not be on their property but that the spread of it would extend over the boundary.

A day or two later plaintiffs, a brother-in-law, an architect and the salesman again inspected the lot, their main object being to determine the cost and feasibility of building on the steep slope. At this time the rear boundary was marked by corner stakes but the widening of the lot to the front was only estimated as on the previous day. Plaintiffs felt satisfied with their inspection of the property and soon thereafter, and on March 1, 1926, they made a down payment of $1187.50 on the $4,750 purchase price thereof, agreeing to pay the balance in three equal yearly installments, with quarterly interest on deferred payments. A document entitled “purchaser’s receipt”, setting forth the terms of the sale, was executed by Mr. Wurtz and indorsed “accepted” by Mr. Murray Brophy on behalf of Edwards & Wildey Company. On the same day, March 1, 1926, the formal contract of purchase and sale was executed by plaintiffs and by defendant bank.