Perry v. Futch
| Decision Date | 06 August 1953 |
| Citation | 259 P.2d 971,119 Cal.App.2d 556 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PERRY v. FUTCH et al. Civ. 19379. |
S. L. Kurland, Los Angeles, for appellant.
No appearance for respondents.
When this action came on for trial defendants interposed an objection to the introduction of evidence upon the ground that plaintiff's amended complaint did not state facts sufficient to constitute a cause of action. The objection was sustained and judgment was rendered for the defendants. Plaintiff appeals.
The action is for damages. The complaint alleged that plaintiff agreed to purchase a residence from defendant Futch for $47,500; the agreement provided that the seller would provide a report of a licensed termite control operator showing the condition of the property with respect to termite infestation, dry rot and fungi and would pay for all work necessary to place the property in a condition free therefrom; defendant Futch represented that she had resided in the property for many years, that the house was in good livable condition, had no termite infestation, dry rot or fungi, and was free and clear of any defects. Defendant Futch employed defendant Herbert R. Packard, Jr., doing business as Packard Termite and Pest Control Co., to inspect the property and furnish a report; Packard furnished a report that the property was free from termite infestation, dry rot and fungi; the said representations were false and were known by each of the defendants to be false; the property was heavily infested with termites, dry rot and fungi; said facts were known to defendant Futch and were or reasonably should have been known to defendant Packard from a reasonable inspection of the property; said representations were made for the purpose of inducing plaintiff to purchase the property and were believed by plaintiff; in reliance upon the agreement and representations aforesaid plaintiff paid the purchase price of the property and went into possession; upon discovering the condition of the property plaintiff notified defendants thereof and demanded that they remedy the condition which they failed to do; plaintiff caused said condition to be removed and necessary repairs made at a reasonable cost of $3,475. There were other allegations of damage, namely, that plaintiff was required to expend $599 to repair holes in the roof; defendant Futch removed certain mirrors, plants and other articles of the reasonable value of $300; said defendant agreed to deliver possession on or before September 1, 1950 and failed to do so, to plaintiff's damage in the sum of $500. There was also an allegation that the actions of defendant Futch were willful and were committed with intention to oppress and defraud plaintiff and there was a request for $5,000 as punitive damages.
At the commencement of the trial defendants made a motion that plaintiff be required to elect between the claim of damages for fraud and those for damages for breach of contract. The motion was granted and plaintiff stated she would stand upon her cause of action for fraud. The court expressed the opinion that there was not a sufficient allegation of damage in that it was not alleged that the real property was worth less than the price paid, calling attention to section 3343 of the Civil Code. With the court's permission plaintiff amended her complaint to allege that the reasonable market value of the property at the time of the purchase was $44,025, being the difference between the...
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Albertson v. Raboff
...objection to the introduction of evidence on the ground that the complaint did not state a cause of action, see Perry v. Futch, 119 Cal.App.2d 556, 559, 259 P.2d 971, and entered a judgment of dismissal. Plaintiff Defendant contends that plaintiff's complaint herein was filed while her appe......
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Albertson v. Raboff
...objection to the introduction of evidence on the ground that the complaint did not state a cause of action (see, Perry v. Futch, 119 Cal.App.2d 556, 559, 256 P.2d 971) and entered a judgment of dismissal. Plaintiff Defendant contends that plaintiff's complaint herein was filed while her app......
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Bice v. Stevens
...exist or no relief can possibly be granted.' Miller v. McLaglen, 82 Cal.App.2d 219, 228, 186 P.2d 48, 53. See also Perry v. Futch, 119 Cal.App.2d 556, 559, 259 P.2d 971; Ser-Bye Corp. v. C. P. & G. Markets, 78 Cal.App.2d 915, 917, 179 P.2d 342; MacIsaac v. Pozzo, supra, 26 Cal.2d 809, 815, ......
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Dicker v. Bisno
...time on appeal. Diel v. Baxter, 58 Cal.App.2d 383, 136 P.2d 789; Frazure v. Fitzpatrick, 21 Cal.2d 851, 136 P.2d 566; Perry v. Futch, 119 Cal.App.2d 556, 259 P.2d 971. The appellants had an opportunity, had they been so minded, to request of the court that they be permitted to amend their a......