Wilson v. Rigali & Veselich

GRAY, J., pro tem. The vendors of two lots in the city of Burbank, each under a separate contract, appeal from a judgment canceling those contracts and awarding to the vendees the total, with interest, of the several installments paid upon those contracts. The court found that appellants induced respondents to purchase the first lot by falsely representing (1) that they would resell said lot within a short time of purchase at a handsome profit, (2) that certain movie studios would be built close to said lot, which would greatly increase its value, (3) that the Sterling movie studio, which would be located a few blocks from said lot, was already planned and construction thereof would start shortly, (4) that Riverside Drive, intersecting or adjacent to the tract,,in which the lot was located, would be fully completed, not only to the tract, but throughout its total length, (5) that a rapid transit tunnel would shortly [764]be completed through the hills from Hollywood to the tract, (6) that Whitnal highway from the terminus at Bakersfield would be completed in a short time and would intersect with Riverside Boulevard within a block of the lot, and (7) that the installation of water, electricity and all street improvements in the tract would be commenced shortly and be completed in a short time. It further found that appellants induced respondents to purchase the second lot by a repetition of such representations, that the representations were made as positive assertions in a manner not warranted by appellants’ information and that the promises were made without any intention of performance. In addition the court found other facts necessary to support a judgment of rescission for fraud, but, which being unquestioned, are not set forth. Each of the above representations were statements or predictions as to the happening of future events which, alone, are considered as mere expressions of opinion and as such nonactionable. (Lawrence v. Gayetty, 78 Cal. 126 [20 Pac. 382, 12 Am. St. Rep. 29]; Eade v. Reich, 120 Cal. App. 32 [7 Pac. (2d) 1043].) However, the first and seventh involved promises by appellants, which being made, as found by the court, without any intention of performing the same, constituted fraud. (Civ. Code, sec. 1572, subd. 4; Lawrence v. Gayetty, supra; Eade v. Reich, supra; Ayers v. Southern Pacific R. R. Co., 173 Cal. 74 [159 Pac. 144, L. R. A. 1917F, 949].) The promise, without any intention of performing it, to resell (Boulevard Land Co. v. King, 125 Cal. App. 224 [13 Pac. (2d) 864]) ancj to install improvements (see cases cited in 27 A. L. R. 345; 68 A. L. R. 640) each were actionable misrepresentations. The third, in addition to a prediction of the future construction of the Sterling studio, contained an assertion of an existing fact, to wit, that it had been planned, which, since false, was fraudulent. (Russ etc. Co. v. Muscupiabe etc. Co., 120 Cal. 521 [52 Pac. 995, 65 Am. St. Rep. 186]; California C. & C. Corp. v. Carpenter, 77 Cal. App. 18 [246 Pac. 126].) A single fraudulent representation is sufficient to support the judgment. (Stewart v. Crowley, 213 Cal. 694 [3 Pac. (2d) 562]; Harris v. Miller, 196 Cal. 8 [235 Pac. 981].) The other four predictions as to future acts to be performed by others, may, for present