Roland

Plaintiffs appeal from a judgment in favor of defendants in an action for damages for fraud arising out of the sale of real property. Plaintiffs Roland, husband and wife, were purchasers; defendants Hubenka, husband and wife, were sellers; defendant Smith was a real estate broker whom the court found was an agent of Hubenka; and defendant Boyd was a salesman employed by Smith.

The action was premised upon alleged false representations by defendants respecting the size and boundaries of the property. Initially defendants sought rescission and damages, but at the trial waived their claim to rescission. Following presentation of plaintiffs’ case defendants moved for judgment pursuant to section 631.8 of the Code of Civil Procedure. The court granted the motion; made findings of fact adverse to plaintiffs’ position on the issues of fraud and damages; and entered judgment accordingly.

Plaintiffs, in their complaint, alleged defendants Boyd and Catherine Hubenka, respectively, represented the size of the property to be at least one acre, the property complied with zoning regulations requiring a minimum area of one acre, and “the most westerly extension of the southerly…