Estrada v. Alvarez

CourtUnited States State Supreme Court (California)
Citation38 Cal.2d 386,240 P.2d 278
Decision Date08 February 1952
PartiesESTRADA et al. v. ALVAREZ. L. A. 21515.

Page 278

240 P.2d 278
38 Cal.2d 386
ESTRADA et al.
L. A. 21515.
Supreme Court of California, in Bank.
Feb. 8, 1952.

Page 279

[38 Cal.2d 387] Larwill & Wolfe and Charles W. Wolfe, all of Los Angeles, for appellant.

C. Paul Du Bois, Los Angeles, for respondent.

SCHAUER, Justice.

Plaintiffs appeal from a judgment for defendant entered after a demurrer to their third amended complaint '(For Rescission and Money Paid Under Void Contract)' had been sustained without leave to amend. The action grew out of a contract of conditional sale of a truck and trailer to plaintiffs, and defendant's repossession of the [38 Cal.2d 388] vehicles. Plaintiffs contend that they have stated three causes of action: (1 'For Rescission'): They were induced to enter into the contract by fraud of defendant, they paid certain sums on account of the contract, defendant has received back everything he delivered under the contract, and plaintiffs are entitled to restitution of the sums paid to and for the benefit of defendant or, in the alternative, to damages for fraud. (2 'For Money Paid Under Void Contract'): The contract does not comply with section 2982 of the Civil Code, which requires that a contract for the conditional sale of a motor vehicle must recite certain matters (whether the down payment was by cash or trade-in, etc.); therefore, under the holding of Carter v. Seaboard Finance Co. (1949), 33 Cal.2d 564, 574, 588, 203 P.2d 758, plaintiffs can recover the sums paid under the contract. (3) Plaintiffs purport to allege a common count for money had and received.

We have concluded that the demurrer to the purported cause of action based on fraud was properly sustained, but that plaintiffs have stated a cause of action under the holding of the Carter case. The purported 'third cause of action' uses the language of the common count for money had and received but it also incorporates by reference all the allegations of the 'second cause of action.' The second and third 'causes of action' are, therefore, identical and the 'third cause of action' need not be separately discussed. (See Orloff v. Metropolitan Trust Co. (1941), 17 Cal.2d 484, 489, 110 P.2d 396.)

A copy of the contract is attached to the complaint as an exhibit and incorporated therein by reference. The contract is one of conditional sale as defined by section 2981 of the Civil Code (par. (a), subd. 1). Section 2982 sets forth the form and recitals required of such a contract. The contract here violates section 2982 in

Page 280

the following respects: It does not recite the price at which the seller would have sold for cash (Civ.Code, § 2982, par. (a), subd. 1). It does not recite the amount of the 'time price differential' or the 'contract balance' (Civ.Code, § 2982, par. (a), subds. 7 and 8). Furthermore, subdivision 2 of paragraph (a) of section 2982 requires that the contract recite 'The amount of the buyer's down payment, and whether made in cash or represented by the net agreed value of described property traded in, or both, together with a statement of the respective amounts credited for cash and for [38 Cal.2d 389] such property.' The contract here incorrectly recites that the down payment was $3,500 'in cash,' whereas, plaintiffs allege, the down payment which they actually made was a Buick automobile of the reasonable value of $3,800.

According to the Carter case, 'The obvious purpose of the statute is to protect purchasers of motor vehicles against excessive charges by requiring full disclosure of all items of cost' (page 573 of 33 Cal.2d, page 764 of 203 P.2d); the form and requisites prescribed...

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41 cases
  • Greenwood & Co. Real Estate v. C-D Inv. Co., C-D
    • United States
    • California Court of Appeals
    • 29 Enero 1993
    ...against additional defendants. Consequently, we find Steiner to be distinguishable for the reasons stated. Estrada v. Alvarez (1952) 38 Cal.2d 386, 240 P.2d 278 is likewise distinguishable. In Estrada, the plaintiffs pled in the alternative for return of monies based upon theories of "Resci......
  • Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co.
    • United States
    • California Court of Appeals
    • 20 Enero 1977 pursuit of a contract remedy is estopped to pursue a tort remedy based upon the same set of facts, citing Estrada v. Alvarez, 38 Cal.2d 386, 391, 240 P.2d 278; Steiner v. Rowley, 35 Cal.2d 713, 720, 221 P.2d 9; Barrett v. Hammer Builders, Inc., 195 Cal.App.2d Page 823 305, 16 Cal.Rptr. 4......
  • Hicks v. Hicks
    • United States
    • California Court of Appeals
    • 19 Diciembre 1962
    ...been given, although 9 years have gone by; and, not being rescinded, the deed effecting the same is fully operative. (Estrada v. Alvarez, 38 Cal.2d 386, 390, 240 P.2d 278; Loud v. Luse, 214 Cal. 10, 12, 3 P.2d The court found that 132 of the 357 shares of Indian Wells stock acquired by the ......
  • Leeper v. Beltrami
    • United States
    • United States State Supreme Court (California)
    • 8 Diciembre 1959
    ...Rescission, whether legal or equitable, will not be permitted unless the plaintiff acts promptly in rescinding. Estrada v. Alvarez, 38 Cal.2d 386, 390, 240 P.2d 278; § 1691 of the Civil Code; Toby v. Oregon Pac. R. Co., 98 Cal. 490, 499, 33 P. 550; 9 Cal.Jur.2d 570, et seq. The complaint he......
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