Yablon v. Burke

DORAN, J. This is an appeal from the judgment following the sustaining of a demurrer to the fourth amended complaint without leave to amend.

The fourth amended complaint was an action for specific performance of an alleged contract to purchase real estate, for damages for breach of contract and for damages for fraud. Following the order sustaining the demurrer without leave to amend a judgment of dismissal was entered, from which judgment plaintiff appeals.

It is contended on appeal that the complaint stated a cause of action on all counts.

It is argued:

“ (1) That a contract for the sale and conveyance of land to Plaintiff was signed by Lawrence on behalf of the owner-seller of the land.

“ (2) That the identity of the owner-seller was not disclosed to Plaintiff when the contract was signed.

“(3) That in fact, the owner-seller is either Burke or the Wilshire-Cochran Corporation.

“(4) That the contract contains a provision that the sale is subject to the approval of the seller.

“(5) That Burke controls the Wilshire-Cochran Corporation, and that it is his alter ego.

“(6) That all Defendants are mutual agents.

“ (7) That Plaintiff had no knowledge of whether Lawrence was authorized in writing or not, but that Defendants are estopped to deny the authority of any Defendant to execute the contract, if the said authorization is not in writing.

“ (8) That Plaintiff has performed all conditions precedent and is ready, willing and able to carry out the terms of the contract, but that despite demand by Plaintiff, Defendants have refused to execute the conveyance.

“Plaintiff submits that these allegations establish the execution by Defendants of a valid and subsisting contract for the purchase and sale of the real property involved, and that Defendants should not be permitted by their own internal manipulations to take advantage of a statute of frauds defense, where Plaintiff has alleged facts to show that the signature of Lawrence is, in effect, the signature of the owner of the property involved.

“In support of her third cause of action, Plaintiff further alleges that Defendants made a series of misrepresentations after the contract was signed as follows:

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