Gordon v. McGaslin

SHAW, J. pro tem. Plaintiffs bought a house and two lots from the predecessor of defendant McGaslin as receiver, giving an instalment note secured by trust deed for part of the price. Plaintiffs made default in the payments due on this note and the defendant receiver then took proceedings resulting in a notice of sale of the property given by the trustee named in the trust deed. Thereupon plaintiffs began this action against defendant receiver and the trustee, alleging that they were induced to purchase the property by cer[542]tain false and fraudulent representations made to them by the receiver’s agent, Pannell, and that by such fraud they were damaged in a sum which they asked to have set off against the amount due on the note, offering to pay the difference and praying that the sale be restrained until final disposition of the case. The false representations alleged were: (1) that a house on the property was wholly on one of the lots, which was numbered 32; (2) that the roof of the house had recently been placed in a first class condition and state of good repair; (3) that the house had been inspected and was free from termite infection; (4) that the annual taxes on the property were approximately $80 per year; and (5) that the lots were 150 feet deep. The trial court found that none of these representations was made, except No. (2) relating to the roof, and gave judgment allowing plaintiffs a credit by reason of No. (2) on the amount due on the note, dissolving a temporary injunction previously issued and permitting the sale to proceed. From this judgment the plaintiffs appeal.

Plaintiffs contend that the finding against the making of the other representations lacks support in the evidence. The receiver’s agent who made the sale to plaintiffs, Pannell, testified that he did not make those numbered (1), (3) and (5), and as to No. (1) that he informed plaintiffs that the house was not wholly on lot 32 but projected upon lot 31. Plaintiff M. J. Gordon, who conducted the negotiations with Pannell, testified as to No. (4) that the latter never told him the amount of the taxes. The finding attacked is therefore supported by sufficient evidence and is binding on this court. Plaintiffs ’ further points based on the claim that these representations were made, particularly their contentions that the court should have awarded them damages by reason of the falsity of these representations, must fail for lack of a foundation, and need no further discussion. No complaint is made of the amount of damages awarded for the defects in the roof.

In view of the finding above mentioned, the further findings complained of, that plaintiffs visited and inspected the premises and learned the facts about the property before the sale, and that they made no complaint of misrepresentations to defendants or the agent before bringing this action, are immaterial and the sufficiency of the evidence to support them need not be considered.