What is the basis for a claim against appellant as a representative of non-appealing defendants in a property transaction?

The complaint sued on is for rescission and cancellation of [162 Cal.App.2d 116] certain written contracts, including said promissory note, and is based upon the fact that certain fraudulent misrepresentations were made to purchasers. The pleadings significantly contain no separate cause of action alleging fraud or deceit as a basis for damages against appellant as agent or representative of the non-appealing defendants, or otherwise. In this important respect, the instant case is clearly distinguishable from Stirnus v. Adams, 50 Cal.App. 730, 195 P. 955, upon which respondent has relied.

As is well stated in the case of Leavens v. Sharp, 66 Cal.App.2d 425, 428, 152 P.2d 460, 462, 'An action in rescission presupposes the relation of vendor and vendee and the restoration of both parties to their former position. In the instant case, there was no contractual relation between the respondent vendees and appellant agent. An action for damages based upon the alleged fraud would have been respondents' only recourse against appellant, but by electing to proceed in rescission, their right of recovery under the pleadings herein was limited to the consideration paid for the property. The fact that appellant, as agent for the vendors, handled the deposit and was empowered by them to direct the disposition through escrow of the balance of the purchase money did not render him personally liable.'