Partamian v. Flodine (State report title: Partanian v. Flodine)
| Decision Date | 16 January 1950 |
| Citation | 213 P.2d 790,95 Cal.App.2d Supp. 931 |
| Court | California Superior Court |
| Parties | 95 Cal.App.2d Supp. 931 PARTAMIAN v. FLODINE. Civ. A. 7227. Civ. 910846. Appellate Department, Superior Court, Los Angeles County, California |
Youngdahl & Glick, Los Angeles, for appellant.
Astor & Astor, Los Angeles, for respondent.
Plaintiff sought a judgment awarding him the sum of $237.93, the amount he had paid in connection with two written contracts which, he claimed, he was induced to enter into by fraud, and as a result of which he obtained nothing. More specifically, he alleged that he had "made a written agreement wherein and whereby the said plaintiff placed an order with the said defendants for the purchase and subsequent delivery of an automobile known as Tucker Motor car, and that he was induced to enter into another contract whereby he agreed to purchase, and the defendants agreed to sell, certain accessories to be used in connection with the Tucker motor car, by the fraudulent representation of the defendants that he (the plaintiff) would be able to procure and purchase said Tucker motor car and would be able to use the accessories on it. The defendants knew, he further alleged, that Tucker cars were not being produced, and that plaintiff could not obtain one. The trial court found these allegations to be true and awarded plaintiff a judgment for the amount he had paid the defendants. We have concluded that the evidence fails to support the findings essential to the judgment.
There is very little conflict in the evidence. Plaintiff, as did one hundred other persons, entered into two written contracts with the defendant. The essence of one is in these words:
These are the significant terms of the other writing:
The plaintiff, no doubt, as the trial court became convinced early in the trial, desired to own a Tucker automobile, and that was why he signed the two agreements from which we have quoted. It appears that he was compelled to sign the accessory agreement in order to secure defendant's consent to that first set forth. No doubt, too, as the trial court stated, the two agreements constituted but one transaction.
It is also clear, however, beyond debate, that these two writings, taken together or singly, did not result in any agreement whereby plaintiff placed an order for the purchase or delivery of a Tucker car. That which plaintiff obtained, and all that he obtained with respect to the Tucker car, was an option to purchase one "if, as and when" defendant ever had one to deliver. Words could hardly be found to make this clearer than the words appearing in the writing. The plaintiff was not placing his order for a car, but was being allotted a place in line by virtue of which, when his turn came, if it ever did, he could purchase a car if he then wished to do so.
Postponing for a moment consideration of the contention that defendant's fraud induced the plaintiff to enter these contracts, we find nothing that makes them invalid. It appears that plaintiff came to the defendant voluntarily, and signed up under no duress or compulsion other than his own inner urge. Defendant was under no obligation, before plaintiff came in, to agree to prefer him over anybody else if, at some indefinite date, he (the defendant) had a Tucker car to deliver. Had plaintiff paid defendant $237.93 for the chance he was offered, without any accessories involved, we would see nothing unconscionable or illegal about the transaction, and dressing up the deal by including the accessories does not render it less valid. Plaintiff, so far as appears, was of age and mentally competent; the chance being taken was not in the nature of a lottery; he took a legitimate chance. That it did not pan out is no reason why he should have his money back.
Turning now to the matter of fraud, it is, of course, true that in spite of the provisions contained in the next to the last paragraph of the accessory purchase order, the plaintiff can, upon a rescission, present evidence of fraud in order to recover that which he was induced by fraud to pay. Speck v. Wylie, 1934, 1 Cal.2d 625, 36 P.2d 618, 95 A.L.R. 760; Herzog v. Capital Co., 1945, 27 Cal.2d 349, 353, 164 P.2d 8. The fraud may not, however, consist of promises contrary to those contained in the written contracts. Bank of America Nat. Trust & Savings Ass'n v. Pendergrass, 1935, 4 Cal.2d 258, 263, 48 P.2d 659; Cobbs v. Cobbs, 1942, 53 Cal.App.2d 780, 785, 128 P.2d 373. So it is that the "fraudulent representation," (neither alleged nor found to have been made, but strongly...
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