Morris v. Harbor Boat Bldg. Co.

• Decision Date: 28 August 1952
• Citation: 112 Cal.App.2d 882,247 P.2d 589
• Parties: MORRIS v. HARBOR BOAT BUILDING CO. et al. Civ. 19010.
• Court: California Court of Appeals Court of Appeals

Page 589

247 P.2d 589

112 Cal.App.2d 882

MORRIS v. HARBOR BOAT BUILDING CO. et al.

Civ. 19010.

District Court of Appeal, Second District, Division 1, California.

Aug. 28, 1952.

As Modified on Denial of Rehearing Sept. 15, 1952.

Hearing Denied Oct. 23, 1952.

Gustave L. Goldstein, Los Angeles, for appellant.

R. D. Sweeney and John L. Mace, Los Angeles, for respondents.

DORAN, Justice.

The plaintiff has appealed from a judgment on the pleadings rendered in an action to recover damages for fraud. On May 16, 1949, appellant Morris entered into a written contract with respondents Harbor Boat Building Co., and Dair N. Long and Associates, for the purchase of a 'Harco 40 Cruiser' with certain special equipment, the total purchase price being $30,215, which was paid by Morris to the respondents.

The complaint alleges that 'at the time the aforementioned contract was entered into * * * and prior thereto, the defendants, their agents, servants and employees, for the purpose of inducing plaintiff to enter into said contract and obligate himself thereby * * * among other things, represented to plaintiff that the aforementioned boat Harco 40 Cruiser 'Karimore II' * * * was capable of, and would attain and maintain, a speed of 36 miles per hour and at that speed had a cruising range of 250 miles'. It is also alleged that 'plaintiff made known to defendants that he was interested in the purchase of said boat as an express cruiser and would buy same only if said boat could and would attain and maintain' such speed and crusing range; 'that otherwise he was not interested in buying nor, would he buy, said boat'; that 'defendants and each of them were power boat experts of long experience in that field', and that defendants' statements 'were not mere expressions of hope or layman opinions but were representations of fact upon which plaintiff was entitled to and did believe, rely and act'.

Other allegations are that after taking delivery, appellant found 'that said boat never was capable of, nor did it ever attain, at speed of 36 miles per hour or a cruising range of 250 miles', but that the maximum speed ever attained was 28.32 miles per hour with a maximum average speed of only 20 miles per hour, and an average crusing range of 175 miles. The other customary allegations of fraud appear in the complaint. The prayer is for 'the difference between the actual value of the property with which plaintiff parted and the actual value of that which he received', namely $15,237.53, and examplary and punitive damages of $15,000.

The answer denied the alleged fraud and the making of 'any representations to the plaintiff other than those which are set forth in said agreement, Exhibit 'A' attached hereto, and particularly the warranty contained therein'. By way of affirmative defense, the answer avers that the complaint does not state a cause of action, and that 'it is the intention of these defendants at the time of trial herein to move the Court to exclude any evidence offered on behalf of the plaintiff without further notice'. A second affirmative defense calls attention to a contract clause providing that 'When accepted by the purchaser, the seller, and the Harbor Boat Building Co., this order shall constitute the entire agreement * * * and no other agreements, written or oral, shall apply to this contract except the standard Harco 40 warranty printed on the reverse side'. (Respondents' italics.)

As a third affirmative defense respondents state that 'the current and only literature that defendants, or any of them had published or used * * * consisted of a four page pamphlet' containing a paragraph entitled 'Performance', setting out a schedule of engine horsepowers, maximum speeds, and crusing ranges, which gives the 'Maximum Speed' of '2-225 H. P.' (the engine in question) as 36 M.P.H. and its 'Crusing Range' 250 miles. Following this schedule is the following parenthetical statement, '(Speeds and cruising ranges given, although not guaranteed are based on actual trial data and the performance of individual boats may be expected to vary somewhat'. It is then alleged that 'plaintiff purchased special equipment' weighing 'approximately one ton, which added weight will and does affect the speed and crusing range', which facts were known to the plaintiff.

A fourth affirmative defense alleges that the respondent Dair N. Long and Associates, were not agents, servants, or employees of the Harbor Boat Building Co. and had no authority to make any representations. A further affirmative defense alleges that 'plaintiff has carelessly and negligently maintained said Harco 40 Cruiser', which rendered the boat incapable 'of developing the maximum speed to which said Harco 40 Cruiser would have developed', otherwise.

The case was noticed as a jury trial, and in the absence of the jury and before any evidence had been offered, respondents' attorney moved 'for a judgment on the pleadings, provided that, in order to make the record certain here, Mr. Turnbull will stipulate * * * that the entire contents of the written contract, Exhibit A annexed to the answer, is before the court for the purpose of this motion'. The appellant's counsel did so stipulate. In connection therewith, Mr. Turnbull, appellant's counsel, stated, 'There was only one contract between the parties, but I wouldn't want to limit myself to the fact that these representations of fact were not in writing'. Respondents' attorney then stated, 'I don't want to bar him by this stipulation from relying on literature in the trial, if the trial ensues * * *'. Mr. Turnbull then stated, 'That's right. The reservation I made was that part of the inducement made to sign that contract were representations in writing', to which respondents' attorney replied, 'I understand that you so claim, and I do not by this stipulation bar you from that claim'. The motion was then argued, and the Court said, 'I will have to grant this motion for judgment on the pleadings'.

The judgment entered thereon, after reciting the above stipulation, states that 'after considering the arguments of counsel, the pleadings and the facts herein set forth, and it appearing to the court and the court funds that no evidence is admissable to prove the false representations alleged * * * it is hereby ordered, adjudged and decreed that plaintiff take nothing * * * and that the defendants have judgment against plaintiff'. The present appeal is from this judgment.

Appellant's first point is that a motion for judgment upon the pleadings is, in effect, a general demurrer to the complaint, and that since the complaint herein states a cause of action, the trial court should have denied such motion. As appellant avers, 'There is ample authority for this statement', as evidenced by the case of Davis v. City of Santa Ana, 108 Cal.App.2d 669, 685, 239 P.2d 656, 665, where the court says: 'A motion by defendant for judgment on the pleadings operates as a general demurrer to the complaint, and the averments of the complaint, for the purpose of the motion, must be treated as true'. And in Gill v. Curtis Publishing Co., 38 Cal.2d 273, 275, 239 P.2d 630, 631, it is said that where a judgment on the pleadings has been granted, the case should be reviewed 'the same as would be a judgment of dismissal entered following the sustaining of a general demurrer, and the allegations in plaintiffs' complaint must be taken as true, and so taken the question is whether a cause of action has been stated'.

Seeking to avoid the force of the above rule, respondents' brief suggests that while the motion 'was verbally designated a motion for judgment on the pleadings (Rep.Tr. p. 2, line 23), consideration of the...