Mack v. White
| Citation | 218 P.2d 76,97 Cal.App.2d 497 |
| Court | California Court of Appeals |
| Decision Date | 15 May 1950 |
| Parties | MACK v. WHITE. Civ. 17653. |
Nat Wilk, Los Angeles, for appellant.
Anna Zacsek and Henry Silver, Los Angeles, for respondent.
From a judgment in favor of plaintiff in an action to recover damages from defendant for having obtained money from plaintiff through fraudulent representations, defendant appeals.
Prior to the events narrated herein plaintiff was married to a Mr. Mack and was still married to him when in 1934 she and defendant commenced living together as husband and wife and so continued until February, 1948. She did not procure a divorce from her former husband until 1937. In 1939 she and defendant purchased a piece of real property for $2,800, plaintiff making the down payment of $350.00, and defendant making all the monthly payments thereafter until the property was sold in 1947 for $8,000. By the transaction they each netted $3,229.92. At the time the property was purchased defendant was employed by the Works Progress Administration and for that reason title to the property was taken in plaintiff's name. Repeatedly during the time they lived together defendant promised to marry plaintiff and finally when she became insistent that he do so, he said he would when she put the title to the property in their names jointly. In 1946, in order to show her readiness 'for sacrifice,' plaintiff went to a notary public and signed a purported deed in which the property was placed in the name of plaintiff and defendant as joint tenants. In February 1947, the property was sold and plaintiff gave defendant half of the proceeds of the sale in consideration of his promise to marry her. Defendant admitted that he did not at any time intend to marry plaintiff and on February 2, 1948, plaintiff left defendant and thereafter demanded return of the money which she had given him in consideration of his promise to marry her.
Questions: First: Since the allegations of fraud in the complaint were in general terms and not of specific facts, did the complaint fail to state a cause of action against defendant for obtaining money from plaintiff through fraudulent representation?
This question must be answered in the negative. It is the general rule that where a complaint alleges fraud in general terms and the parties go to trial without filing a special demurrer to the complaint on the ground that fraud has not been sufficiently alleged, such infirmity in the complaint is waived and may not be successfully urged for the first time on appeal. (Campbell v. Genshlea, 180 Cal. 213, 218, 180 P. 336; McKay v. New York Life Ins. Co., 124 Cal. 270, 273, 56 P. 1112.)
In the present case the complaint alleged fraud in general terms, to wit: '* * * defendant fraudulently represented to plaintiff that he had the intention of entering into a valid marriage relationship with her, if plaintiff would authorize defendant to receive one half of the sales price for said property, deposited at the escrow department of the Security First National Bank of Los Angeles * * *'; and that 'on or about the same time, plaintiff on the strength of defendant's promise and relying on his representations, plaintiff gave her consent and authorization that defendant could receive said money.'
Neither a general nor special demurrer was filed to the complaint, and the parties went to trial on the theory that the complaint stated a cause of action for fraud. Hence the above rule is applicable and the defendant may not at this time urge that the complaint failed to state a cause of action.
Second: Was plaintiff's cause of action outlawed by the Anti-Balm Statute, Civil Code 43.5(d)? 1
This question must be answered in the negative. The present action is not one for breach of promise to marry but is an action for obtaining money upon fraudulent representations. Hence section 43.5(d) of the Civil Code has no application to the case.
Third: Was plaintiff's cause of action barred by the Statute of Frauds, section 1624 of the Civil Code? 2
This question must also be answered in the negative. The section of the statute of frauds relied on by defendant is applicable to actions ex contractu, while the present action is not founded upon a contract but is an action ex delicto to recover damages for fraud perpetrated by defendant.
Fourth: Did the evidence support the findings that plaintiff relied on defendant's promise to marry her before dividing with him the proceeds from the sale of the property which she had purchased?
This question must be answered in the affirmative. Plaintiff testified that her reason for giving him half of the sale price of the property was because she believed his representations that he would marry her if she did so.
Fifth: Did the fact that plaintiff had executed a deed to the property showing the title in herself and defendant as...
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Barbara A. v. John G.
...different from an action for "[s]eduction," which is indeed precluded by Civil Code section 43.5. 7 (Cf. Mack v. White (1950) 97 Cal.App.2d 497, 500, 218 P.2d 76.) Nevertheless, respondent argues that the public policy considerations underlying the statutory bar to seduction actions are sou......
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Shin v. Kong, A087452.
...and false promises of marriage to obtain money. (Barbara A. v. John G. (1983) 145 Cal. App.3d 369, 193 Cal.Rptr. 422; Mack v. White (1950) 97 Cal.App.2d 497, 218 P.2d 76.) Appellant has not pled a direct misrepresentation was made to him about the insemination procedure.9 Rather, appellant'......
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Maiorana v. Rojas, 2004 NY Slip Op 50481(U) (NY 6/3/2004)
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Marriage of Buckley, In re
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