Wantz

Petition for rehearing denied.

Appellants Barteaux and Elliott urged in their petition for a rehearing as to them that under the rule laid down in McDonald v. Southern California Ry. Co., 101 Cal. 206 [ 35 Pac. 643 ], and other cases cited, the allegations of rescission as a defense cannot be used as evidence of such fact; that there being no other proof of such fact there could be no recovery, and that the statement used in one defense cannot be used as evidence upon another issue, be *107 cause to so hold would deprive the defendant of the benefit of his denials.

In our opinion such rule is not applicable to the situation disclosed by the pleadings and evidence in the instant case. The complaint here was in four counts, each of them duplicates of the other except for the fact that a different contract to purchase was involved in each count and different amounts were paid on each contract. The allegations in each were sufficient to charge fraudulent representations by the defendants inducing the execution of such contract, exclusive of the paragraph charging the use of the name Calivalli Development Company by defendants. By each count it is sought to recover the payments made…

Appeal by defendants from a judgment against them based on the verdict of a jury awarding $21,269.21 as damages for alleged fraudulent representations in the purchase and sale of lands and as inducement to plaintiff’s entering into contracts for the improvement of the lands so agreed to be purchased.

It appears without question that the defendant Union Bank & Trust Company held the legal title to the lands in question for the benefit of the owner, Los Angeles County Farm Land Company, and J. M. Barteaux, who was purchasing them under an agreement to improve and sell the same, and that at the time plaintiff made his first purchase of land the improvement and development of the tract was being done by the Calivalli Development Company.

On April 17, April 19, May 24 and May 31 in 1928, plaintiff entered into four separate agreements with the defendant Union Bank & Trust Company of Los Angeles for the purchase of four parcels of land aggregating 100 acres, and on the same dates also entered into four separate agreements, called “Development Contracts”, with said Calivalli Development Company for the development of such tracts “in conjunction with a general planting scheme on said…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 100 Appeal by defendants from a judgment against them based on the verdict of a jury awarding $21,269.21 as damages for alleged fraudulent representations in the purchase and sale of lands and as inducement to plaintiff's entering into contracts for the improvement of the lands so agreed to be purchased. It appears without question that the defendant Union Bank Trust Company held the legal title to the lands in question for the benefit of the owner, Los Angeles County Farm Land Company, and J.M. Barteaux, who was purchasing them under an agreement to improve and sell the same, and that at the time plaintiff made his first purchase of land the improvement and development of the tract was being done by the Calivalli Development Company. On April 17, April 19, May 24 and May 31 in 1928, plaintiff entered into four separate agreements with the defendant Union Bank Trust Company of Los Angeles for the purchase of four parcels of land aggregating 100 acres, and on the same dates also entered into four separate agreements, called "Development…