Bobak v. Mackey
| Decision Date | 24 October 1951 |
| Citation | 236 P.2d 626,107 Cal.App.2d 55 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BOBAK v. MACKEY et al. Civ. 18213. |
Leo A. Freeman, Los Angeles, for appellant.
Victor Ford Collins, and Hyman Smith, Los Angeles, Frank J. Kanne, Jr., Los Angeles, for respondent.
The only question presented by appellant is whether the complaint of the respondent vendee states a cause of action in deceit against appellant as his vendor. The appellant as defendant below did not demur to the complaint nor did he in his answer aver by way of defense that the complaint did not state a cause of action. At the conclusion of the trial upon the issues which had been joined the trial court entered a judgment for damages based upon findings that the defendant had made certain misrepresentations of fact upon which the plaintiff had relied in the purchase of the real estate which gave rise to the lawsuit. The defendant below is here with an appeal based alone on the judgment roll.
The complaint alleged that plaintiff informed the defendant that he was looking for a piece of property suitable for a dwelling and with separate facilities wherein he could also carry on his business of manufacturing and selling a malted food drink powder. It was further alleged that the defendant falsely represented to the plaintiff as matters of fact:
(1) That the plaintiff could lawfully carry on his business of manufacturing and selling a malted food drink powder on said premises,
(2) That said premises were as a matter of fact located in a City of Los Angeles C-2 zone, in which type of zone light manufacturing activities could be lawfully carried on, including the plaintiff's business of manufacturing and selling a malted food drink powder.
And it was alleged:
(3) That said representations were false and fraudulent in that said premises were located in a City of Los Angeles R-3 zone, in which type of zone manufacturing of any sort whatsoever was unlawful.
(4) That the defendant knew that the representations were false, that they were made for the purpose of inducing the plaintiff to purchase the property, and that the plaintiff purchased the property in reliance on said misrepresentations.
Appellant contends that the misrepresentations charged against him in the complaint, which we have briefly summarized above, are at most representations of law and not of fact and hence no cause of action was stated upon which a judgment could legally have been rendered. For reasons presently to be stated we see no merit in the contention.
The complaint alleges that the premises which were the subject of a purchase and sales agreement between the parties were represented to the plaintiff by the defendant as being located within a certain territory of the City of Los Angeles which the City had zoned as C-2 when in fact...
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