Apolito v. Johnson, CA-CIV
| Decision Date | 26 May 1966 |
| Docket Number | CA-CIV |
| Citation | 3 Ariz.App. 358,414 P.2d 442 |
| Parties | John L. APOLITO and Alice M. Apolito, husband and wife, and Howard E. Drensek and Dolores A. Drensek, husband and wife, Appellants, v. Florence JOHNSON and Lee Johnson, wife and husband, Appellees. 1288. |
| Court | Arizona Court of Appeals |
Stockton & Hing, by A. Henderson Stockton, Phoenix, for appellants.
Moore & Moore, by Robert C. Moore, Phoenix, for appellees.
Appellants have moved this court for a rehearing of our affirmance of the trial court's judgment entered in favor of appellees after granting the latter's motion for a directed verdict. They urge us to reconsider our holding that the case was properly withdrawn from the jury's consideration claiming the appellants' evidence, if believed by the jury, would justify equitable relief by way of rescission or reformation.
Appellants contend that our decision was erroneous in that we treated their claim as a fraud action when in fact their theory of recovery was mistake on their part caused by the fraud and inequitable conduct of the appellees. It is true that certain statements contained in our opinion 1 would engender this belief and to clarify the situation we deemed it advisable to issue this supplemental opinion.
We indicated in our original opinion that proof of the nine elements of fraud are essential to establish a prima facie case for submission to a jury's consideration. While this may be a correct statement of the law in an action for damages for fraud and deceit, the 'nine elements of fraud' principle was not applicable in this equitable action for rescission. See Miller v. Boeger, 1 Ariz.App. 554, 405 P.2d 57o (1965). We therefore modify our opinion in this respect. The representations attributed to appellees, however, were not as to a past or presently existing fact, an indispensable element in an action for rescission based on fraud. Han v. Horwitz, 2 Ariz.App. 245, 407 P.2d 786, 789 (1965).
Apart from the foregoing reason, appellants' case was doomed to failure as the alleged misrepresentations were contradictory to the provisions of the written contract. In order to form a basis for rescission, the misrepresentations must be as to some collateral matter and not mere contradictions of the provisions of the contract expressed in clear, unambiguous language. Newmark v. H. & H. Products Mfg. Co., 128 Cal.App.2d 35, 274 P.2d 702, 703 (1954). Mrs. Johnson's purported representations that appellants would not have to make any more payments and/or that the total purchase price was not as stated in the escrow instructions were contrary to and inconsistent with the express terms of the written contract executed by the parties. Evidence of such statements which are squarely...
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...Co., 124 Ariz. 540, 606 P.2d 30 (App. 1979); 7-G Ranching Co. v. Stites, 4 Ariz.App. 228, 419 P.2d 358 (1966); and Apolito v. Johnson, 3 Ariz.App. 358, 414 P.2d 442 (1966). Appellant cites authorities for the proposition that parol evidence is admissible to show fraud in the inducement even......
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Kilduff v. Adams, Inc.
...207 Conn. 179, 183, 540 A.2d 693 (1988); Apolito v. Johnson, 3 Ariz.App. 232, 236, 413 P.2d 291, modified on other grounds, 3 Ariz.App. 358, 414 P.2d 442 (1966); 37 C.J.S., Fraud § 114, p. 430; (3) in equity cases, a higher burden of proof is imposed to justify the availability of broader r......
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Stuart v. Stuart
...179, 183, 540 A.2d 693 (1988); [see also] Apolito v. Johnson, 3 Ariz.App. 232, 236, 413 P.2d 291, modified on other grounds, 3 Ariz.App. 358, 414 P.2d 442 (1966); 37 C.J.S., Fraud § 114, p. 430; (3) in equity cases, a higher burden of proof is imposed to justify the availability of broader ......
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Bosse v. Crowell, Collier and MacMillan
...of parol evidence for reformation purposes may hinge on an initial finding of one of these elements. See Apolito v. Johnson, 3 Ariz.App. 358, 414 P.2d 442 (1966). Even if such evidence is admissible for this preliminary inquiry, however, the district court did not base its disposition of th......