Nelson v. Canavan

STURTEVANT, J. From a judgment awarding damages against them in an action founded on fraud and deceit, the defendants have appealed. The alleged fraud and deceit arose out of a purported sale of a second-hand truck and trailer. Other facts will he stated as the separate points are taken up.

(1) In paragraph V of his complaint the plaintiff alleged that he relied on the false statements made to him. In paragraph VI he alleged the false representations made to him. Both paragraphs were denied and evidence thereon was introduced by each party. In preparing its findings the trial court referred to the plaintiff’s complaint by designated paragraphs. No reference whatever was made to paragraphs V and VI. The defendants assert that the findings of fact do not support a judgment based thereon. The plaintiff concedes the point, but asks that this court take such action as will result in supplying the missing findings. However, as wo view the record, we are not inclined to do so.

(2) It is next claimed that the evidence is insufficient to support a judgment based upon the first cause of action. That cause of action alleged that the plaintiff had rescinded the contract of purchase. The evidence contained some slight conflicts but it may not be said it was insufficient.

[159](3) In the second cause of action the plaintiff alleged that the contract of purchase was rescinded by the mutual consent of the parties thereto. The defendants claim that the evidence was insufficient to support the finding in favor of the plaintiff. That claim is well founded. The evidence discloses that the plaintiff rescinded the contract but that the defendants refused to be bound thereby. It further discloses that after receiving plaintiff’s notice of rescission the defendants proceeded to act under the terms of the contract as written. In that behalf it does not disclose that the defendants departed from the provisions’ of the contract in any respect whatsoever. The plaintiff cites Bray v. Lowery, 163 Cal. 256 [124 Pac. 1004]. An examination of that case discloses that Lowery in material respects departed from the provisions of his contract and, having done so, that thereafter Bray did the same thing. The facts are quite different from the facts in the instant case.

(4) It is next claimed that the court had no jurisdiction of the second cause of action. Pointing to the fact that said cause is based on mutual rescission, that no equitable relief is asked, and that the relief sought is a judgment for $1375, the amount of his expenditures, and that such relief is in a sum less than $2,000, the defendants assert that the jurisdiction rested in the municipal court and not in the superior court. They cite Jensen v. Harry H. Culver & Co., 127 Cal. App. (Supp.) 783 [15 Pac. (2d) 907], Since the briefs were filed Philpott v. Superior Court, 1 Cal. (2d) 512 [36 Pac. (2d) 635, 95 A. L. R. 990], was decided. Both cases support their contention. The same contention is not made as to the first cause of action and we are not expressing any opinion in reference to that count.