Opinion
JUDGES: Nourse, P.J. We Concur: Sturtevant, J., Spence, J.
OPINION
Nourse, Judge.
This is an action for fraud. The cause was tried before the court sitting without a jury. Plaintiff had judgment against the corporate defendants for $ 5929.60 from which they appeal upon typewritten transcripts.
Plaintiff is the assignee of fifty-one individuals who purchased memberships in the Deauville Beach Company through the instrumentality of the Deauville Holding Company. The Beach Company was a non-profit corporation organized under the laws of this state. The Holding Company was a corporation organized in Nevada and authorized to do business in this state. The incorporators planned to construct a beach club-house in Santa Monica upon land to be purchased by the Nevada corporation and club memberships were sold by agents of the holding company through means of a prospectus giving elaborate details regarding the type of building and the facilities to be offered club members.
The plaintiff pleaded three causes of action and had judgment upon the second cause only. This cause is a simple action in tort for fraudulent misrepresentations which the trial court found were the inducements which led plaintiff's assignors to part with the certain sums of money and which the court found caused damage in the precise amounts so paid. It would serve no useful purpose to detail the misrepresentations of facts upon which the plaintiff relied--it is sufficient to refer to one relating to the type of structure to be erected. It was alleged and found that defendant's agents represented to the purchasers that two buildings would be erected for the use of club members, one to be twelve stories in height and to contain five hundred sleeping rooms; that a gymnasium, out door plunge, nursery and special auto parking facilities would be provided. But the court found that but one building was constructed and that no sleeping rooms and none of the other promised facilities was included. It was alleged in the complaint that the failure to fulfil these promises depreciated the value of the memberships.
The sale having been made upon representations affecting the value of the thing sold, the vendees were entitled to recover damages for the fraud practiced upon them. The measure of such damages would be the difference between the actual value of the property purchased and the value it would have had if the representations had been true. ( Spreckels v. Gorrill, 152 Cal. 383, 92 P. 1011, Hines v. Brode, 168 Cal. 507, 143 P. 729 ). In its judgment herein the trial court awarded damages in the exact sums paid in by the purchasers after finding that the property purchased had no value to the plaintiff at the time of the trial.
In his first cause of action plaintiff sued for " money had and received" under the theory that the contracts were all void " ab initio" because they were executed before the corporation had legal authority to contract. In his second cause the plaintiff elected to affirm the contracts and to sue for damages for the fraud. The inconsistency of the two positions is apparent, but the trial court expressly denied recovery upon the first cause and limited its judgment to the second. The third cause was in equity to impress a trust; but, upon this, judgment went for the defendants.
We are thus faced with the pertinent question whether an action in tort of this character is capable of assignment. Archer v. Freeman, 124 Cal. 528, 532, 57 P. 474 ; and Jones v. Manning 35 Cal.App. 321, 323, 169 P. 912 are cited by appellant. The respondent relies on Kemp v. Enemark, 194 Cal. 748, 756, 230 P. 441, and Harris v. Miller, 196 Cal. 8, 18, 235 P. 981 . These cases are not in conflict. They all follow the general rule that " a naked right to bring an action for fraud unconnected with any property or thing which had itself a legal existence and value independent of the right to sue for fraud" is not assignable. In the cases cited by respondent the action involved the title to specific property and the fraud was merely incidental to the cause of action assigned. In the cases cited by the appellants the causes of action assigned were simple claims for damages from fraud and deceit " unconnected with any injury to property" .
As we have said the judgment here is based upon the second cause of action alone. This is a simple action in tort for fraud and deceit. The assignments transferred to the respondent the right to sue for this tort alone. They did not, as was done in the Kemp and Harris cases, transfer the contract or the property rights under the contract, but the assignors retained in themselves all right of property in the membership in the beach club--which was the only property or " thing" sold. The assignments simply covered " all sums of money and claims now due or owing to me from Deauville Holding Company" and others. In his second cause of action the plaintiff alleged that these sums were " due" as damages because of defendants' fraud and deceit. Herein the case is like Meldrim v. Doyle, 70 Cal.App. Dec. 83, 85, where a plain assignment " unaccompanied by any transfer of interest in the property" was held incapable of supporting a cause of action.
The application of this rule to the instant case must be apparent. Whatever damage was suffered by the individual assignors was personal to them. They had purchased memberships in a beach club which became a going concern, " affording the usual club facilities to its members" . Such membership may be of great value to one who was interested in such facilities while to others it may become boresome. The suit was commenced over two years after the memberships were sold. Many of the assignors had been using the club facilities in the meantime. Some may have become dissatisfied irrespective of the representations complained of. All have retained the right to continue to use the club. Suing for damages for the damage suffered by each it would be necessary to measure the " value" of the membership to each assignor. Hence when the " claim" or right to sue was assigned to plaintiff and the assignors retained in themselves all the proprietary rights in their certificates of membership in the club, they transferred to the plaintiff the " pure, naked right to bring an action for fraud" unconnected with any right of property or thing which itself " had legal existence and value" . Under the rule of Sanborn v. Doe, 92 Cal. 152, 28 P. 105 ; Emmons v. Barton 109 Cal. 662, 42 P. 303 ; and Archer v. Freeman, 124 Cal. 528, 532, 57 P. 474, the assignments are insufficient to support the second cause of action, and, as the judgment is based upon that cause alone, we may not consider their availability to the first and third causes.
The judgment is reversed.
We Concur: Sturtevant, J., Spence, J.