Schroeder v. Dickinson & Gillespie Corp.

California Court of Appeal

Schroeder v. Dickinson & Gillespie Corp.

44 P.2d 425, 6 Cal. App. 2d 175, 1935 Cal. App. LEXIS 871

CourtCalifornia Court of Appeal

DecidedApril 13, 1935

DocketCiv. 9668

StatusPublished

Cited by4 cases

This text of 44 P.2d 425 (Schroeder v. Dickinson & Gillespie Corp.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Schroeder v. Dickinson & Gillespie Corp., 44 P.2d 425, 6 Cal. App. 2d 175, 1935 Cal. App. LEXIS 871 (Cal. Ct. App. 1935).

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Opinions

[177]*177CRAIL, J.

This is an appeal by the plaintiffs from a judgment of nonsuit in favor of the defendant, Security-first National Bank of Los Angeles in an action based on alleged false representations made by the agents of the bank’s predecessor in interest. For convenience no distinction will be made hereafter in this opinion between the bank and the bank’s predecessor in interest. Certain acreage, known as Los Altos Park, located in the Hollywood Hills and owned by the A. B. Crist Company, was conveyed to the bank, as trustee, for the purposes of subdivision and sales. The Crist Company was the beneficiary of the trust, and the Dickinson & Gillespie Corporation was appointed the selling agents. The improvements on the property had not been put in, but the bank required a guaranty from the Crist Company that the improvements would be put in within certain periods of time therein mentioned.

In October, 1926, Mr. Gammon, who was named as a defendant but was not served and did not appear, and who was an agent of the Dickinson & Gillespie Corporation and, as such, a subagent of the bank, met the plaintiffs and interested them in purchasing one of the lots in the tract, and this they finally did. It was alleged in the complaint and it was the contention of the plaintiffs at the trial that prior to the execution of the agreement for the purchase of the lot, Mr. Gammon and an agent named Solomonson, falsely and fraudulently represented to plaintiffs (1) that properly graded concrete streets, curbs and all improvements usual for a high-class subdivision soon would be placed upon the subdivision, (2) without any expense of any nature whatsoever to the plaintiffs, (3) that all of the money necessary for the purpose was already up and on deposit with the said trustee and was completely provided for, (4) that plaintiffs would be well protected in this connection by virtue of the fact that said trustee was handling and responsible for said funds and improvements, and (5) that said lot was worth $6,000 or would be. The latter, number (5), is not a representation of an existing fact but a mere opinion offered in puffing -the property for sale. The plaintiffs testified at the trial that they signed the agreement without reading it, but they admitted and admit in the briefs that they received their copy of the written contract within approxi[178]*178mately two months after it was executed and that soon thereafter they received a street improvement guaranty signed by the said Crist Company. Under the terms of this contract which was in the possession of the plaintiffs from that time on, the bank was not in fact contractually responsible for the improvements either by a direct promise or by a guaranty. On the contrary the contract provided that as between the bank and the plaintiffs the plaintiffs were liable for assessments for said improvements. It also contained a provision that the bank was not liable for any inducement, promise, representation or agreement not set forth therein. The contract was signed by the plaintiffs on October 11, 1926. This action was filed on September 11, 1931, after the depression was long under way and almost five years after the contract was entered into. A trial of the action proceeded for approximately three weeks, which time was consumed in the presentation of the plaintiffs’ evidence. The plaintiffs having rested, each of the defendants moved for a nonsuit. The motion of the bank for nonsuit was granted, but the motion of the other defendants was denied. As already stated it is from this judgment of nonsuit in favor of the bank that the appeal is taken.

We have carefully read the briefs, including the plaintiffs’ opening brief covering 172 pages, and have studied the record including the reporter’s transcript covering 819 pages. We reach the conclusion that the judgment of nonsuit was properly granted and that there is no merit in the appeal. Following Speck v. Wylie, 1 Cal. (2d) 625 [36 Pac. (2d) 618, 95 A. L. R. 760], and Haley v. Santa Fe Land etc. Co., 5 Cal. App. (2d) 415 [42 Pac. (2d) 1078].

Judgment affirmed.

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[177]*177CRAIL, J.

This is an appeal by the plaintiffs from a judgment of nonsuit in favor of the defendant, Security-first National Bank of Los Angeles in an action based on alleged false representations made by the agents of the bank’s predecessor in interest. For convenience no distinction will be made hereafter in this opinion between the bank and the bank’s predecessor in interest. Certain acreage, known as Los Altos Park, located in the Hollywood Hills and owned by the A. B. Crist Company, was conveyed to the bank, as trustee, for the purposes of subdivision and sales. The Crist Company was the beneficiary of the trust, and the Dickinson & Gillespie Corporation was appointed the selling agents. The improvements on the property had not been put in, but the bank required a guaranty from the Crist Company that the improvements would be put in within certain periods of time therein mentioned.

In October, 1926, Mr. Gammon, who was named as a defendant but was not served and did not appear, and who was an agent of the Dickinson & Gillespie Corporation and, as such, a subagent of the bank, met the plaintiffs and interested them in purchasing one of the lots in the tract, and this they finally did. It was alleged in the complaint and it was the contention of the plaintiffs at the trial that prior to the execution of the agreement for the purchase of the lot, Mr. Gammon and an agent named Solomonson, falsely and fraudulently represented to plaintiffs (1) that properly graded concrete streets, curbs and all improvements usual for a high-class subdivision soon would be placed upon the subdivision, (2) without any expense of any nature whatsoever to the plaintiffs, (3) that all of the money necessary for the purpose was already up and on deposit with the said trustee and was completely provided for, (4) that plaintiffs would be well protected in this connection by virtue of the fact that said trustee was handling and responsible for said funds and improvements, and (5) that said lot was worth $6,000 or would be. The latter, number (5), is not a representation of an existing fact but a mere opinion offered in puffing -the property for sale. The plaintiffs testified at the trial that they signed the agreement without reading it, but they admitted and admit in the briefs that they received their copy of the written contract within approxi[178]*178mately two months after it was executed and that soon thereafter they received a street improvement guaranty signed by the said Crist Company. Under the terms of this contract which was in the possession of the plaintiffs from that time on, the bank was not in fact contractually responsible for the improvements either by a direct promise or by a guaranty. On the contrary the contract provided that as between the bank and the plaintiffs the plaintiffs were liable for assessments for said improvements. It also contained a provision that the bank was not liable for any inducement, promise, representation or agreement not set forth therein. The contract was signed by the plaintiffs on October 11, 1926. This action was filed on September 11, 1931, after the depression was long under way and almost five years after the contract was entered into. A trial of the action proceeded for approximately three weeks, which time was consumed in the presentation of the plaintiffs’ evidence. The plaintiffs having rested, each of the defendants moved for a nonsuit. The motion of the bank for nonsuit was granted, but the motion of the other defendants was denied. As already stated it is from this judgment of nonsuit in favor of the bank that the appeal is taken.

We have carefully read the briefs, including the plaintiffs’ opening brief covering 172 pages, and have studied the record including the reporter’s transcript covering 819 pages. We reach the conclusion that the judgment of nonsuit was properly granted and that there is no merit in the appeal. Following Speck v. Wylie, 1 Cal. (2d) 625 [36 Pac. (2d) 618, 95 A. L. R. 760], and Haley v. Santa Fe Land etc. Co., 5 Cal. App. (2d) 415 [42 Pac. (2d) 1078].

Judgment affirmed.

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44 P.2d 425, 6 Cal. App. 2d 175, 1935 Cal. App. LEXIS 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schroeder-v-dickinson-gillespie-corp-calctapp-1935.

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