Curran v. Heslop

• Decision Date: 22 January 1953
• Citation: 115 Cal.App.2d 476,252 P.2d 378
• Court: California Court of Appeals Court of Appeals
• Parties: CURRAN v. HESLOP et al. Civ. 19225.

Page 378

252 P.2d 378

115 Cal.App.2d 476

CURRAN v. HESLOP et al.

Civ. 19225.

District Court of Appeal, Second District, Division 3, California.

Jan. 22, 1953.

Rehearing Denied Feb. 5, 1953.

Hearing Denied March 19, 1953.

Snyder & Fletcher, Owen E. O'Neil and W. Cloyd Snyder, So. Pasadena, for appellants.

John S. Bolton and F. V. Lopardo, Los Angeles, for respondent Bertha Curran.

Shatford & Shatford and Henry W. Shatford, Temple City, for respondent Herbert Hawkins.

VALLEE, Justice.

Plaintiff brought this suit against Victoria Heslop, Hortense Low, and Mercedes L. Foster, former owners of a parcel of realty, and Herbert Hawkins, a realtor, for rescission of a contract to purchase the realty, and for damages. Judgment was for plaintiff against the former owners, and for Hawkins against plaintiff. The former owners appeal. They will be referred to as the defendants.

About November 10, 1950, plaintiff agreed in writing to purchase a parcel of realty owned by defendants. The property was improved with a dwelling. The complaint alleged, and the court found, the defendants falsely represented to plaintiff that 1) the dwelling was a duplex ready for immediate rental and occupancy; 2) the dwelling and the rooms, portions and parts thereof, were constructed in compliance with all building codes, ordinances, and laws; 3) the plumbing in the dwelling complied with all plumbing codes, ordinances, and laws pertaining thereto, and was in satisfactory and usable condition. The complaint also alleged, and the court found, that defendants knew the representations were false, made them to induce plaintiff to purchase, and that plaintiff relied on them. The complaint further alleged, and the court found, that defendant concealed the following material facts, which were in violation of the building code of Alhambra where the property is located, and of the state housing act: 1) the kitchens had no window openings; 2) one bathroom opened directly into a kitchen; 3) one bathroom was an inside room with no windows; 4) the window area of the bedroom had less than the minimum window area; 5) another bedroom had less than the required ceiling height; 6) the laundry tray in a screen porch had no visible trap on the waste line.

Defendants' claim is that there is no substantial evidence to support the findings. While we find no evidence to support a number of the findings, we are satisfied there is sufficient substantial evidence to support one finding of fraudulent concealment. The house was an old one--at least fifty-five years old. The evidence is undisputed that at the time of the purchase there were various conditions which were violations of the Alhambra building code and the state housing act as they then existed. However, as to a number of the alleged violations, there was no evidence that at the time the work was done the conditions resulting constituted violations of the Alhambra building code or the state housing act in effect at that time. As will be developed, there was evidence that one of the alleged violations was a violation of the building code and the state housing act in effect at the time the work was done in 1949. It was undisputed that defendants did not tell plaintiff about any of the alleged violations. The questions are whether there is any substantial evidence to support the findings that defendants knew that the work done in 1949 was a violation of the building code or the state housing act, and whether, if they were under a duty to speak, they knowingly concealed the facts from plaintiff.

In 1944 defendants applied to the building department of Alhambra for a permit to add a bedroom on the southeast corner of the dwelling. The permit was issued and the room constructed. In 1947 they applied for a permit to construct a bedroom and a dining room with an open porch between them on the south side of the dwelling. The permit was issued and the construction done. In 1949, without obtaining a permit therefor, defendants enclosed the open porch and installed a laundry tray on the porch without a trap on the waste line. There was evidence that defendants knew in 1949 that enclosure of the porch without a permit was a violation of the then existing building code of Alhambra. There was evidence defendants knew that in order to make a structural alteration in the building, a building permit from the building department of Alhambra was required. There also was evidence that as a result of enclosing the porch a bedroom and a kitchen were left without a window opening directly into a street, public alley, yard, or court, as required by the building code and the state housing act.

Civil Code section 1572 provides: 'Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: * * * 3. The suppression of that which is true, by one having knowledge or belief of the fact'.

The Restatement says 'there is no privilege of nondisclosure, by a party who * * * knows that the other party is acting under a mistake as to undisclosed material facts, and the mistake if mutual would render voidable a transaction caused by relying thereon.' Rest.Contracts, § 472. In Comment b to section 472, it is said: '[I]f a fact known by one party and not the other is so vital that if the mistake were mutual the contract would be voidable, and the party knowing the fact also knows that the other does not know it, non-disclosure is the privileged and is fraudulent.' Concealment is classified as actual fraud in those cases where the seller knows of facts which materially affect the desirability of the property which he knows are unknown to the buyer. Dyke v. Zaiser, 80 Cal.App.2d 639, 653, 182 P.2d 344; Kuhn v. Gottfried, 103 Cal.App.2d 80, 86, 229 P.2d 137.

In Clauser v. Taylor, 44 Cal.App.2d 453, 454, 112 P.2d 661, 662, it is said: 'It is the law that, where material facts are accessible to the vendor only and he knows them not to be within the reach of the diligent attention and observation of the vendee, the vendor is bound to disclose such facts to the vendee, and upon his failure to do so, the vendee may rescind the transaction upon discovering the true state of facts.' See also Herzog v. Capital Co., 27 Cal.2d 349, 353, 164 P.2d 8; Rothstein v. Janss Investment Corp., 45 Cal.App.2d 64, 68-71, 113 P.2d 465; Barder v. McClung, 93 Cal.App.2d 692, 697, 209 P.2d 808; Milmoe v. Dixon, 101 Cal.App.2d 257, 261, 225 P.2d 273; Tatham v. Pettison, 112 Cal.App.2d 18, 245 P.2d 699. In Barder v. McClung, supra, it is said, 93 Cal.App.2d at page 697, 209 P.2d at page 811: 'The suppression of that which is true, by one having knowledge or belief of the fact, is actual fraud. Sec. 1572 of the Civil Code; Snyder v. Security...