Opinion
Department Two
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
COUNSEL:
The laches and conduct of the cross-complainant disentitle her to relief by rescission. (Hollbrook v. Burt, 22 Pick. 546; Green v. Wingley , 24 Me. 131; Benjamin on Sales, sec. 547, and the cases cited in note 3; Kokomo Straw Board Co. v. Inman, 58 Hun, 603; Lawrence v. Dale, 3 Johns. Ch. 23, 43; Masson v. Bovet , 1 Denio, 69; 43 Am. Dec. 651; Dennis v. Jones , 44 N. J. Eq. 513; 6 Am. St. Rep. 899; Baird v. New York , 96 N.Y. 567; Farlon v. Ellis, 15 Gray, 229; Johnson v. Evans, 8 Gill, 155; 50 Am. Dec. 672, and notes; Hoadley v. House , 32 Vt. 179; 76 Am. Dec. 167; Saratoga R. R. v. Row, 24 Wend. 74; 35 Am. Dec. 598; Selway v. Fogg, 5 Mees. & W. 83; Blen v. Water Co ., 20 Cal. 602; 81 Am. Dec. 132; Baker v. Lever , 67 N.Y. 304; 23 Am. Rep. 117; Norfolk etc. Hosiery Co. v. Arnold , 49 N. J. Ch. 390; McLean v. Clapp , 141 U.S. 429; Taylor v. Short , 107 Mo. 384; Hennessy v. Bacon , 137 U.S. 78; Perry v. Pearson , 135 Ill. 218; Conlan v. Roemer , 52 N. J. L. 53; Davis v. Read , 37 F. 418; Bell v. Keepers, 39 Kan. 105; Paine v. Harrison , 38 Minn. 346; McDowell's Appeal , 123 Pa. St. 381; Fratt v. Fiske , 17 Cal. 384; Gifford v. Carvill , 29 Cal. 593; Williams v. Mitchell , 87 Cal. 532; Bailey v. Fox , 78 Cal. 396; Hammond v. Wallace , 85 Cal. 530; Collins v. Townsend , 58 Cal. 608; 12 Am. & Eng. Ency. of Law, p. 603, and cases cited.) The cross-complainant waived her right to rescind by failing to offer to return the land and demand back the money at the time of her discovery of the so-called fraud, or until after she failed to make a compromise with the plaintiff. (Evans v. Montgomery, 50 Iowa 325; Rawson v. Harger, 48 Iowa 269; Grymes v. Sanders , 93 U.S. 55; Parsons on Contracts, 278; Thompson v. Lee , 31 Ala. 292; Kimball v. Cunningham , 4 Mass. 502; 3 Am. Dec. 230; Weeks v. Robie , 42 N.H. 316; Leaming v. Wise , 73 Pa. St. 173.) The cross-complainant having made, as she alleges, her contract with the Centinela-Inglewood Land Company, cannot say that the company was merely the agent of the plaintiff Freeman. (Ferguson v. McBean , 91 Cal. 63; Chandler v. Coe , 54 N.H. 561; Gillig v. Lake etc. R. R. Co ., 2 Nev. 216; Mecham on Agency, sec. 771; Winchester v. Howard , 97 Mass. 303; 93 Am. Dec. 93; Henderson v. Mayhew, 2 Gill, 393; 41 Am. Dec. 434; Baker-Boyer Nat. Bank v. Hughson, 5 Wash. St. 100.) The mere failure to perform an oral promise is not evidence of fraud unless it was intended, at the time the promise was made, not to perform it. (Bigelow on Fraud, pp. 473, 483; Brison v. Brison , 75 Cal. 527; 7 Am. St. Rep. 189; Lawrence v. Gayetty , 78 Cal. 131; 12 Am. St. Rep. 29; Nounnan v. Sutter County Land Co ., 81 Cal. 6.) The representation as to distance did not so deceive the cross-complainant as to entitle her to a rescission. (Slaughter v. Gerson, 13 Wall. 379; Gifford v. Carvill , 29 Cal. 589; Rendell v. Scott , 70 Cal. 514.) The representations as to value did not constitute fraud. (See Bigelow on Frauds, pp. 490, 491.)
This company is not bound by the attempted rescission, as the offer to rescind was made by the cross-complainant to the plaintiff, while the contract was made with this company. (Civ. Code, sec. 1691.) Cross-complainant could hold either principal or agent, but not both, and having elected to hold the principal, Freeman, by obtaining a judgment against him for a return of the purchase money, she is bound to pursue him only. (Mecham on Agency, sec. 698; Tuthill v. Wilson , 90 N.Y. 423.) The judgment for costs against the Centinela-Inglewood Company is erroneous. The plaintiff is allowed costs in an action for the recovery of money or damages when he recovers three hundred dollars or over, and in this case no judgment has been recovered against this company. (Code Civ. Proc., sec. 1022.)
George I. Cochran, and Henry Bleecher, for Appellant Freeman.
Albert M. Stephens, for Appellant Centinela-Inglewood Land Company.
J. L. Murphy, for Respondent.
The rescission in this case was full and complete. (Suber v. Pullin , 1 S.C. 273; Morrow v. Rees , 69 Pa. St. 368; Moral School v. Harrison , 74 Ind. 93; Hooper v. Taylor, 4 E. D. Smith, 486.) The action itself was a sufficient rescission. (Reese River etc. Mining Co. v. Smith, L. R. 4 E. & I. App. 73; Graham v. Halloway , 44 Ill. 385; Herrington v. Hubbard, 33 Am. Dec. 426.) The delay in making the rescission resulting from negotiations for a compromise cannot be held to constitute such laches as will bar the action. (Hoghton v. Hoghton, 15 Beav. 278, 314; Thompson v. Marshall , 36 Ala. 504; 12 Am. & Eng. Ency. of Law, 560, 561; Nudd v. Powers , 136 Mass. 273; Daggers v. Van Dyck , 37 N. J. Eq. 130; Platt v. Platt , 58 N.Y. 646.) The representations having been false the appellants should not be heard to say that this cross-complainant should not have believed them. (3 Sutherland on Damages, 586; Fishback v. Miller, 15 Nev. 428; Harvey v. Hadley , 87 Cal. 557.) The company was a proper party defendant. (Andrews v. Pratt , 44 Cal. 309; Raynor v. Mintzer , 67 Cal. 159; Wickersham v. Crittenden , 93 Cal. 133.) The defendant was a necessary and proper defendant to the cross-complaint. (Winter v. McMillan , 87 Cal. 256.) The costs were in the discretion of the court. (Code Civ. Proc., sec. 1025; Dupuy v. Leavenworth , 17 Cal. 263.)
OPINION
THE COURT The pleadings and findings in this case are voluminous, and we do not deem it necessary to make any particular statement of the matters alleged and found. In our opinion the findings are sufficient to sustain the judgment. While there was some delay on the part of the defendant in rescinding the contract made by her with the Centinela-Inglewood Land Company, we cannot say the delay was unreasonable and such as to deprive her of the right of rescission under the circumstances shown by the findings; nor can the effort or willingness on her part to effect a settlement of the controversy between her and the plaintiff growing out of the contract be considered as a waiver of her right to now insist upon its rescission. The Centinela-Inglewood Land Company was simply the agent of the plaintiff in making the contract with defendant for the sale of the land, and the plaintiff having accepted the benefit of the contract as well as an assignment thereof from his [35 P. 768] agent, is equally responsible with the agent for any fraudulent representations which induced it, and is liable to refund to defendant the money which she has paid under the contract, and which has come into the hands of the plaintiff. The plaintiff being the legal holder of the contract made by defendant with the Centinela-Inglewood Land Company, as well as the party for whose benefit it was made, the defendant properly offered to convey to him all her right, title, and interest in the land described, and vesting in her by that contract.
The Centinela-Inglewood Land Company was a proper, although not a necessary, party to this action, and the court did not err in giving judgment against it for costs.
Judgment and order affirmed.