Dumas v. Stark
| Decision Date | 12 April 1961 |
| Citation | 12 Cal.Rptr. 311 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Robert B. DUMAS, Plaintiff and Respondent, v. Robert L. STARK, Defendant and Appellant. Civ. 9973. |
Wallner & Miller, Sacramento, for appellant.
Clarence H. Pease, Sacramento, for respondent.
This is a judgment roll appeal from a judgment entered in an action for rescission of the sale of a business. Appellant challenges the sufficiency of the findings of fact to support the judgment.
The trial court found that defendant owned and desired to sell a business known within defendant's business organization as the 'Northern Division of the Ideal Scale Company'; that in a published advertisement, repeated orally in later negotiations for sale, defendant represented that the business was 'netting over $15,000 per year'; that in reliance upon said representation plaintiff entered into a preliminary written agreement for the purchase by him of said business from defendant, in which the same representation was repeated and which provided for the furnishing by defendant of a profit and loss statement; that the statement prepared covered the period of time from January 1, 1956, to May 31, 1956, and indicated collections and expenses, together with a net average profit per month of $1,365.17; that all of the representations so made and relied upon as to past net earnings of the business were false, material and fraudulent; that in reliance thereon plaintiff entered into a further written contract with defendant on or about July 20, 1956, which was supplementary to the preliminary agreement and, pursuant to said second agreement, agreed to purchase, and there was transferred to plaintiff, all of the assets, good will, stock in trade, fixtures, tools, equipment and other assets of the Ideal Scale Company as conducted in the area involved; that concurrently therewith plaintiff transferred to defendant real property, cash, secured promissory notes, money to discharge sales taxes accrued and a promissory note for $61,392.50, payable in five installments; that thereafter plaintiff discovered the falsity of the representations concerning the profits of the business and on February 19, 1957, rescinded the contract of sale and offered to restore the consideration received by him; that during the reported period of January 1, 1956, to May 31, 1956, the business had netted only $818.66 per month; that during the priod of time from July 1, 1953, to June 30, 1956, the annual net profit for three years averaged $9,305.60; that defendant had rejected plaintiff's offer of restoration on rescission and had refused to return the consideration received by defendant or any part thereof; that thereafter plaintiff had necessarily devoted time to the management, operation, control and preservation of the assets purchased and had suffered loss through undertakings on leases necessary in the operation of the business; that during the period of time he operated the business the plaintiff had received the total income of $37,251.21, and had incurred...
To continue reading
Request your trial