Leslie v. Rite-Lite Sales Co.

THE COURT. The complaint in this action is similar to that in Davis v. Rite-Lite Sales Co., S. F. No. 15545 (ante, p. 675 [67 Pac. (2d) 1039]), the judgment in which is this day affirmed. In the instant case, as in that case, defendant Herbert W. Erskine filed a general and special demurrer to the second amended complaint. After sustaining said de[685]murrer without leave to amend, the court entered judgment in favor of defendant Erskine.

In the instant case it is not alleged that any representations to plaintiff were made by defendant Erskine. The representations are alleged to have been made by defendant Hughes. The agency of Hughes to bind Erskine by his representations is not sufficiently alleged. The complaint herein does not contain any allegations such as are set forth in paragraphs five and seven of the first count in the Davis case with reference to facts known by Erskine as to the Rite-Lite and Owl Lamp having been invented by the same person. The complaint herein contains an allegation not present in the Davis case that Hughes represented that if plaintiff would purchase stock he, Hughes, would see to it that plaintiff suffered no loss by reason thereof, and guaranteed to save plaintiff harmless. But it is not alleged that this guaranty was made on behalf of defendant Erskine.

On the authority of our decision in Davis v. Rite-Lite Sales Co., S. F. No. 15545, supra, and by reason of additional defects in the complaint herein to state a cause of action against defendant Erskine, the judgment in his favor is affirmed.