Wilson v. Standard Engineering Corp.

WARD, J. In form the complaint herein follows the original allegations of Rutherford v. Standard Engineering Corp., ante, p. 554 [199 P.2d 354], with variations as to territory, dates and amounts. The same deletions made in the Rutherford case were not requested in the Wilson ease. Plaintiff Wilson permitted the complaint to stand with the single change of striking out the allegation that a bank had agreed to finance the erection of the houses “at . . . $7.50 per square foot.” This allegation was deleted. The same basic tort—misrepresentation—and the same breach of warranty are alleged. The evidentiary matter is similar and the instructions identical. Although defendants’ motion for a new trial was denied, the trial court found it necessary to reduce the $18,000 verdict by $2,700. The main prejudicial errors set forth in the Rutherford ease are applicable herein.

The judgment is reversed.

Peters, P. J., and Bray, J., concurred.

A petition for a rehearing was denied December 17, 1948, and respondent’s petition for a hearing by the Supreme Court was denied January 13, 1949. Carter, J., and Traynor, J., voted for a hearing.