Meehan v. Huntington Land & Improvement Co.

PULLEN, P. J. The plaintiffs in these consolidated cases brought actions against the Huntington Land and Improvement Company to rescind contracts for the purchase of certain lots in two subdivision tracts placed on the market by that company, the plaintiffs claiming the right to rescind because of alleged misrepresentations and false and fraudulent promises made to the plaintiffs as purchasers by the salesman employed by the general agent in charge of the sales in the subdivisions.

It was claimed that prior to the signing of the purchase contracts, plaintiffs were shown a map of the tracts, and the sales agent told them that all of the lots in the tracts, including the lots agreed to be purchased, would be at least 100 feet in width, with certain exceptions, and that each of the lots would be restricted to a single residence which should cost or be fairly worth not less than $15,000, and that the land company would cause each purchaser of a lot to be bound by provisions contained in the contract of sale, and by appropriate deed provisions so that any residence erected thereon would cost or be worth not less than $15,000. Other representations were claimed to have been made concerning which there was no controversy.

The first count in the complaint for rescission alleged that these representations with respect to the size of the lots, and as to the cost requirement of residents were false and untrue and were known by the land company to be false and untrue when made. It was then alleged that after the plaintiffs had purchased their property, and had received their deeds, and in September, 1935 (more than five years after the signing of the contracts), the land company re-subdivided the tracts in question, reducing the size of the unsold lots, and modified the cost requirements with respect to the cost of residences, by reducing them from $15,000 to a lesser sum.

It was then alleged that the circumstances of the alleged fraud were not discovered until November, 1935, whereupon [352]a notice of rescission, was given by the plaintiffs to the defendant company.

The second count of the complaint is identical with the first count, with the exception that in place of the statement that the defendant “represented to the plaintiffs” it is alleged that the defendant “promised to the plaintiffs”, and with respect to these promises, it is alleged that the -defendant company in making the promises, had no intention of performing- such promises and- in fact had an undisclosed inten.tion not to perform, and in fact did not perform.