Richards v. Fraser

Citations

• 122 Cal. 456
• 55 P. 246
• 1898 Cal. LEXIS 610

Syllabus

<p>Partnership—Trust Relation—Duty oe Partners.—Section 2411 of the Civil Code applied.</p> <p>Id.—Release—Fraudulent Advantage.—If a release is obtained from a partner by his copartners, by which they have secured a decided advantage over him, through concealing information of their actions which as his partners and as trustees for him they ought to have divulged, the withholding of such information is equivalent to a false representation at the time of the release.</p> <p>Id.—Setting Aside Release—Accounting—Evidence.—In an action to set aside a release alleged to have been fraudulently procured by the defendants as copartners of the plaintiff, and for an accounting of the partnership, the complaint in which also alleges fraudulent concealment and misrepresentation by the defendants as to the cost of the partnership property, and as to the conduct of the partnership, upon an inquiry upon the issue as to the fraudulent procurement of the release, the plaintiff should be allowed to prove the partnership, and such acts of misrepresentation and concealment by the defendants as to the affairs of the partnership as would tend to show that the defendants obtained a fraudulent advantage over the plaintiff in procuring the release.</p> <p>Id.—Rescission—Restitution, when not Required.—One who attempts to rescind a transaction on the ground of fraud, is not required to restore that which, in any event, he would be entitled to retain.</p> <p>Id.—Discharged Note and Mortgage Fraudulently Procured.—In an action to set aside a release on the ground of fraud, a note and mortgage given by plaintiff for the purchase price of partnership property, which were discharged when the release was given, and should remain discharged, if the complaint is not proved, but which are alleged to have been the fruits of a fraudulent misrepresentation and concealment of the price of the property, and which ought never to have been executed, if the complaint is proved, and should be disregarded upo