Millar v. James

• Decision Date: 20 September 1967
• Citation: 62 Cal.Rptr. 335,254 Cal.App.2d 530
• Court: California Court of Appeals Court of Appeals
• Parties: Madge W. MILLAR, Plaintiff and Appellant, v. Helen JAMES et al., Defendants and Respondents. Civ. 30395.

Page 335

62 Cal.Rptr. 335

254 Cal.App.2d 530

Madge W. MILLAR, Plaintiff and Appellant, v. Helen JAMES et al., Defendants and Respondents.

Civ. 30395.

Court of Appeal, Second District, Division 4, California.

Sept. 20, 1967.

Sam Houston Allen, Van Nuys, for plaintiff and appellant.

Helen James, in pro. per., and William F. Powers, Los Angeles, for defendant and respondent Helen James.

Robert J. Schmorleitz, No. Hollywood, for defendant and respondent Crete Dye.

FILES, Presiding Justice.

Plaintiff recovered judgment for the restitution of real property which she had been fraudulently induced to convey. Plaintiff is appealing from the judgment insofar as it fails to make an award against the defendants Helen James and Crete Dye for the use of the property and as exemplary damages.

The trial was by the court sitting without a jury. The findings of fact reflect the following:

On June 19, 1962, defendants, by means of fraudulent misrepresentation, induced plaintiff to sign an agreement to sell her property to defendant James for a price of $45,000, of which $12,000 was to be paid in cash and the balance was to be secured by a trust deed. On August 16, 1962, defendants, by trickery, obtained plaintiff's signature to a document which subordinated the purchase money trust deed to a first trust deed securing a loan to defendant James in the amount of $25,000.

On August 21, 1962, plaintiff conveyed title to defendant James, and defendants caused a first trust deed to be recorded to secure a loan of $25,000 made by defendants Edwards and St. Claire. $9,287.87 of the proceeds of that loan was disbursed to plaintiff. The balance of it, after deducting escrow and title expenses, went to the defendants. Since that transaction, the defendant James has made payments to plaintiff aggregating $1,350.

The judgment canceled the deed to defendant James, and quieted plaintiff's title against the holders of the trust deed upon payment by plaintiff of the sum of $9,287.87 to the lenders, Edwards and St. Claire.

The findings of fact also state:

'That the defendant HELEN JAMES has been in possession of the said real property since the 23rd day of August, 1962, and still is in possession thereof; that the reasonable rental value of the said property is and at all times herein mentioned has been the sum of $100.00 per month.'

The trial court's conclusions of law ¹ declare that:

'since plaintiff has elected to rescind her aforesaid deed and to have her title and possession restored she may not recover damages for the loss of possession during the period she has been deprived thereof.'

Under the facts as found by the trial court, plaintiff was entitled to recover not only the property itself, but the monetary equivalent of its use during the time it was in the possession of defendant James. (Civ.Code, § 1692; Kenney v. Parks, 137 Cal. 527, 532, 70 P. 556; Austin v. Barnes, 139 Cal.App. 747, 35 P.2d 142; see Rest., Restitution, § 157.) As an offset, defendant James may be entitled to credits for the amount, if any, which she paid plaintiff or expended for the benefit of the property. (Civ.Code, § 1692, 4th par.; Security F. & S. Bank v. Southern Pacific Railroad Co., 214 Cal. 81, 88, 3 P.2d 1015; see Gatje v. Armstrong, 145 Cal. 370, 374, 78 P. 872; Rest., Restitution, §§ 158, 159.)

Defendants rely upon cases which state generally that rescission and damages are alternative and inconsistent remedies. That rule is simply a way of pointing out that a defrauded party who rescinds the transaction and recovers what he gave up is in a different position from a party who elects to affirm the transaction and collect damages for the deceit practiced upon him. But there is nothing inherently inconsistent between recovery of specific property and an additional recovery of money to compensate for the loss of use while the property was in the hands of the wrongdoer.

Furthermore, the 1961 enactment of Civil Code section 1692 makes clear the policy of this state to give full relief in a case of rescission, unimpeded by any technical distinction between restitution and damages. The third paragraph of that section provides:

'A claim for damages is not inconsistent with a claim for relief based upon rescission. The aggrieved party shall be awarded complete relief, including restitution of benefits, if any, conferred by him as a result of the transaction and any consequential damages to which he is entitled; but such relief shall not include duplicate or inconsistent items of recovery.'

With respect to exemplary damages, Civil Code section 3294 provides:

'In an action for the breach of an obligation not arising from...