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39 Cal. 381

Morrison v. Lods

California Supreme Court

Decided July 1, 1870

California Supreme Court · decided 1870-07-01

<p>Appeal from the District Court of the Fourth District, City and County of San Francisco.</p> <p>This action was brought to secure the specific performance of a written contract entered into by the defendant to convey to plaintiff’s assignor the undivided half of a certain tract of land in the City of San Francisco. This tract of land was owned in fee simple by defendant and one Jacob Snyder, as tenants in common. On the 7th day of May, A. D. 1868, defendant and E. T. Steen entered into a written agreement, whereby defendant agreed to sell, and Steen agreed to purchase, the undivided half of said tract of land at the price of $1,250, in gold coin; and Steen thereupon paid a portion of the purchase money. Steen assigned the contract to plaintiff, who tendered the balance of the purchase money to defendant and demanded a deed, which defendant refused to execute, on the ground-of false and fraudulent representations made by Steen at the time the contract ivas executed, and by reason of which he was induced to enter into the same. Defendant alleges, in his answer, that he then tendered the portion of the purchase money received on account of said contract and demanded the cancellation of the same; he therefore prays judgment that the said contract may be rescinded and cancelled.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1870-07-01

How this case has been cited

Cited by 11 later decisions — most recently July 1920

11 state decisions

50187018801890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Rhodes, C. J.,

¶1delivered the opinion of the Court, Temple, J., and Wallace, J., concurring.

¶2In cases of this character it is to the interest of the parties—at least the losing party—to have a written finding of the facts filed. As to the tender by the defendant to the plaintiff, or his agent, of the money paid by the plaintiff’s agent, at the time of the execution of the contract of sale, the evidence is conflicting, and the presumption in support of the judgment is, that the Court found that issue against the defendant. It is clear that the defendant cannot have a rescission of the contract without making such tender.

¶3The evidence, in our opinion, clearly shows that the false representation set up in the answer, was made by the plaintiff’s agent. This fact would be fatal to the decree for specific performance of the contract of sale, had the defendant shown that such false representation occasioned him any damage; that is to say, that he would have been injured by the performance of the contract. The only evidence in the record, upon which he might have relied to prove the damage—the receipt given by the plaintiff to Dewey—was excluded upon his objection. The rule is well settled that a recovery cannot be had for a false representation, without proof of damage. (Pasley v. Freeman, 3 T. R. 51; 2 Smith’s L. C. 55; notes to saíne case.) It is equally well settled that a party to a contract cannot rescind or avoid the contract on the ground of a false representation made by the other party, unless he shows, in addition to the false represention, that he will be damaged by the performance of the contract. (1 Story’s Eq. Sec. 203.)

¶4Judgment and order affirmed.

¶5By Sprague, J. : I concur in the judgment.

¶6By Crockett, J.: I dissent.

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