Pao Ch'en Lee v. GREGORICU

Opinion — McComb

McCOMB, J.

From a judgment in favor of plaintiffs after trial before the court without a jury in an action to recover damages for fraudulent misrepresentation, defendants appeal.

The trial court found, supported by substantial evidence, that plaintiffs bought a two-story house and lot from defendants in reliance on their fraudulent oral misrepresentation that they did not intend ever to build on an adjoining lot (owned and retained by defendants) so as to obstruct plaintiffs ’ view; that defendants thereafter built a one-story extension to the house on their lot, obstructing plaintiffs ’ view from the lower story; and that plaintiffs suffered damage in the sum of $4,900.

Defendants contend:

First:

The trial court committed error in making an order permitting the filing of the first amended complaint without notice to defendants, since a demurrer had been filed to the original complaint• and not ruled upon.

This contention is devoid of merit. After the amended complaint was filed, defendants filed an answer thereto and went to trial without making any objection. The error, if any, was thus waived by defendants.

(Cf. McGlure v. Donovan, 33 Cal.2d 717, 731 [12] [205 P.2d 17] ;

Baker v. Southern Calif. Ry. Co., 114 Cal. 501, 505 [46 P. 604].)

Second: The judgment is void because the trial court, without notice to defendants, changed its findings of fact in material particulars.

This contention is likewise devoid of merit for the reason that the record fails to show that the trial court amended its findings after they had been signed and filed.

Plaintiffs state in their brief that there were no other findings signed or filed by the trial judge. This contention is not contradicted by defendants. Therefore, we assume that defendants concede the correctness of plaintiffs’ statement and that the alleged error does not exist.

(Blanton v. Curry, 20 Cal.2d 793, 810 [129 P.2d 1] ;

H. Moffat Co.

v. Rosasco, 119 Cal.App.2d 432, 443 [13] [260 P.2d 126];

Castriotis v. Cummins, 93 Cal.App. 654, 656 [269 P. 1115].)

Third: The evidence fails to show that plaintiffs suf *505 fered any damage and thus the finding of the trial court to the contrary is not sustained by the evidence.

This contention is also untenable. The purchase price of the property was $25,500, including some furniture. Deducting the value of the furniture, the court found the value of the real property at the time of the purchase, with an unobstructed view, to be $24,900. A witness testified that the value of the property after the view was obstructed was $20,000. This evidence supports the trial court’s finding that plaintiffs suffered damages in the sum of $4,900. (See Primm v. Primm, 46 Cal.2d 690, 693 [1] [299 P.2d 231].)

Fourth: Plaintiffs did not suffer any damage, because during the trial a son of defendant Mrs. Gregoriou offered in open court to purchase the property for $26,000 and tendered a cashier’s cheek for $10,000 in part payment.

The check and offer were properly received as evidence of the present value of the property.

(County of Los Angeles v. Faus, 48 Cal.2d 672 [312 P.2d 680].) However, it was not conclusive on the court, since the weight of such evidence and the bona tides of the offer were questions of fact for the determination of the trier of fact.

(Muller v. Southern Pac. Branch Ry. Co., 83 Cal. 240, 243 [23 P. 265].) In the instant case the trier of fact may well have concluded, in view of the. offeror’s relationship to one of the defendants, that the offer was a mere attempt to accomplish restitution by indirection, thus avoiding the payment of damages for the fraud, and that it did not represent the true value of the property.

Fifth;

Since the promise of defendants not to build on their property so as to obstruct plaintiffs’ view was oral, it was unenforceable (1) under the statute of frauds (Civ. Code, § 1624, subds. 1 and 4 * ) and (2) as an attempt to vary a written contract of the parties by parol evidence.

In their answer defendants pleaded as a defense the statute of frauds as set forth in section 1624, subdivisions 1 *506 and 4, of the Civil Code. However, defendants permitted proof of the oral representations to be made, without objection, by five witnesses. Also, they did not make any motion to strike this testimony.

They thus waived the right to urge on appeal error in the reception of the oral evidence, since it is settled that (1) a defendant waives his right to rely upon any provisions of the statute of frauds (Civ. Code, § 1624) by failing to (a) demur to the complaint, (b) object to the introduction of testimony to prove the oral agreement at the time of trial, or (c) make a motion to strike such testimony (Howard v. Adams, 16 Cal.2d 253, 257 [4] [105 P.2d 971, 130 A.L.R. 1003] ;

Nunez v. Morgan, 77 Cal. 427, 432 [19 P. 753] ;

Coleman v. Satterfield, 100 Cal.App.2d 81, 83 [223 P.2d 61] ;

Aaker v. Smith, 87 Cal.App.2d 36, 43 [7] [196 P.2d 150] ;

Ingraham v. Smith, 83 Cal.App.2d 807, 808 [1] [189 P.2d 721]) and (2) the admission of parol evidence to vary or add to a written instrument cannot be objected to for the first time in the appellate court (Jacoby v. Wolff, 198 Cal. 667, 676 [3] [247 P. 195] ;

Nunez v. Morgan, supra; Graham v. Smither, 53 Cal.App.2d 701, 706 [5] [127 P.2d 1024] ;

Palm v. Smither, 52 Cal.App.2d 500, 507 [6] [126 P.2d 428] ;

Bonner v. Finney, 110 Cal.App. 518, 521 [2] [294 P.

466]; Tennant v. Wilde, 98 Cal.App. 437, 441 [2] [277 P. 137] ;

Anthony v. Crocker First Nat. Bank, 95 Cal.App. 347, 350 [2] [272 P. 767] ;

Inner Shoe Tire Co.

v. Tondro, 83 Cal.App. 689, 693 [2] [257 P. 211] ;

Caine v. Polkinghorn, 54 Cal.App. 387, 390 [1] [201 P. 936]

; McComish v. Kaufman, 43 Cal.App. 507, 510 [3] [185 P. 476]). Any statements in Lifion v. Harshman, 80 Cal.App.2d 422 [182 P.2d 222], to the contrary are disapproved.

The judgment is affirmed.

Gibson, C. J., Shenk, J., Carter, J., Schauer, J., and Spence, J., concurred.

Traynor, J., concurred in the judgment.

* Section 1624 of the Civil Code reads in part as follows:

‘‘The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent:

“1. An agreement that by its terms is not to be performed within a year from the making thereof;

“4. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.”