Wight v. Hubbard

SHINN, P. J. This is an action for damages for fraud against defendants Mabel L. Hubbard, Kathleen B. Wirick and Paul C. Wirick, Jessie Northrup and Maurice Gordon. Defendant Gordon demurred to the amended complaint; the demurrer was sustained without leave to amend, the action was dismissed and plaintiff appeals.

[607]The claim of damages arises out of complicated transactions dating back to March, 1942. The allegations of the complaint may be summarized as follows: In March of 1942 plaintiff was. in possession of the Sherlandy Apartments in Los Angeles under a contract of purchase from defendants Hubbard and Wirick. The property was subject to an encumbrance of about $45,000 and another one of about $6,000, the two payable at the rate of $800 per month; plaintiff had paid approximately $37,000 on account of the purchase price, including a note and mortgage on land in Montana in the sum of $10,000 which he had given to defendants Hubbard and Wirick; in March, 1942, he entered into an agreement with defendant Northrup to trade his interest in the Sherlandy Apartments for Mrs. Northrup’s apartment house, which also was encumbered. Mrs. Northrup was to obtain a new loan of at least $50,000 on the Sherlandy, payable at $725 per month; Mrs. Northrup advised plaintiff she was unable to get the new loan; defendants Hubbard and the Wiricks induced plaintiff to cancel his agreement of purchase and surrender possession in consideration of an option to repurchase the property at a reduced price within 90 days; plaintiff was also to pay for necessary improvements and other obligations relating to the property; they represented they would be able to procure the desired new loan; during the 90-day period they put a new roof on the apartment house, installed refrigeration and made other expensive but unnecessary improvements and repairs; they did not apply for a loan; at the end of the 90-day period they demanded payment for the repairs and improvements and upon plaintiff’s failure to pay declared the option terminated; their representations were false and fraudulent, and their promises were made without intention to perform them. During the 90-day period defendant Northrup represented that she would consummate the exchange provided plaintiff would pay certain taxes and other charges against the' Sherlandy Apartments; she had previously advanced plaintiff $2,500 and upon her representation that she would make the exchange as evidence of the loan, plaintiff gave her his note for $2,500; her representations were false and fraudulent; she had no, intention of consummating the exchange and knew that she could not for the reason that defendants Hubbard and the Wiricks had failed to obtain the loan; plaintiff relied upon the representations of Mrs. Northrup and paid out sums amounting to $3,265 including the $2,500 Mrs. Northrup had advanced