Morris v. Courtney
Before: Belcher
Synopsis
Vendor and Purchaser—Sale of Land—Fraudulent Representations as to Quantity—Price Paid per Acre—Action for Damages—Recovery of Part of Price Paid—Rescission Unnecessary.—One who has been induced to enter into a contract for the purchase of land, in reliance upon fraudulent representations of the vendor, may either rescind the contract for the fraud, or ratify it and sue for damages; and when the vendor falsely and fraudulently represented that he owned and possessed ten acres of land free from streets, and assumed to sell ten acres, at a fixed price per acre, which the purchaser was induced to pay in reliance upon the representations made, whereas in fact the vendor only owned and possessed nine and one-tenth acres, and had previously conveyed nine-tenths of an acre for streets, the purchaser, upon discovery of the fraud, may demand a return of nine-tenths of the agreed price for one acre, and may maintain an action of damages to recover the same, with interest from the time of payment, and rescission of the contract of purchase is unnecessary.
Id.—Right of Purchaser to Rely upon Representations of Vendor—Unknown Facts—Means of Knowledge.—A purchaser has the right to rely upon representations of the vendor as to facts not within the purchaser’s knowledge; and the vendor cannot escape responsibility by showing that the purchaser might have ascertained that such representations were untrue.
Pleading—Demubrbb to Complaint—Stipulation as to Overruling Demurrer—Objection to Sufficiency not Waived.—A defendant, by stipulating that a general demurrer to the complaint be overruled, does not thereby waive objection to its sufficiency to state a cause of action.
BELCHER, C. The facts stated in the complaint in this ease are in substance as follows: In February, 1893, plaintiff, desired to purchase an orange grove in or near Redlands, county of San Bernardino, and defendant represented to plaintiff that he, defendant, was the owner and in possession of a certain described tract of land-in that county, which he told plaintiff “consisted of ten acres free of streets/’ and a-Iso “consisted of ten acres of oranges, except that portion taken and occupied by the house situated on said premises/ Plaintiff relied upon said representations, and by reason thereof purchased the said property from defendant, ancl received his deed therefor, at the agreed price of $925 per acre, which purchase price, aggregating $9,250, he paid to defendant. At the time plaintiff purchased, paid for and re- • ceived the deed for the said land defendant did not own all the land described in his said deed. Prior to that time, to wit, on January 30,1892, he had, by a deed duly executed and recorded on February 5, 1892, conveyed to the board of supervisors of said county a strip thirty feet wide off the entire east and north sides of said land, containing nine-tenths of an acre, and for which plaintiff paid him, at the agreed price, $832.50. Defendant’s representations that he owned ten acres, when in fact he only owned nine and one-tenth acres, were false and fraudulent, and were known by him to he so, and were made with intent to cheat, deceive, and defraud plaintiff, and plaintiff was thereby led to believe, and did believe, that he was purchasing ten acres of land exclusive of streets, and was cheated and defrauded out of $832.50. When plaintiff discovered the fraud practiced upon [65]him. he demanded of.defendant the return of the sum of $832.50, hut defendant refused to make such return. The prayer is, that plaintiff have judgment for the sum of $832.50, with interest thereon from the time of payment, and costs of suit.
A general demurrer to the complaint was interposed, by defendant, and overruled by consent, the parties by their attorneys stipulating that it might be overruled and the defendant have ten days to answer.
An answer was filed, and thereafter, when the case came on regularly for trial, defendant’s attorney moved the court “that the said case be dismissed on the ground that the complaint does not state facts sufficient to constitute a cause of action.” After a hearing the motion was granted, and judgment was entered dismissing the action, from which judgment the plaintiff appeals,
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