CALEDONIA SAND AND GRAVEL CO. v. Joseph A. Bass Co.

I concur with the conclusion that the demurrer to the replication should be sustained. The facts pleaded do not specifically and affirmatively establish that the defendant was guilty of fraud in the procurement of the settlement of December 31, 1957 to squarely frame triable issues of fact on the claim. I depart from the majority opinion in its holding that the demurrer should be sustained for want of an allegation of restoration or tender.

Whatever the shortcomings of the pleading may be on the issue of fraud, it is manifest that the purpose of the contract of December 31, 1957, referred to…