4. That in order to induce plaintiffs to enter into the above-mentioned contract defendant Withers stated and represented to plaintiffs that said property was of great value by reason of the presence thereon of a valuable mineral substance known as magnesite; *** that said deposit had been discovered by means of certain shafts, and that he, the defendant Withers, had caused said property to be carefully examined by an expert engineer and mineralogist, and caused the quality and quantity of magnesite discovered in place to be examined and reported upon by said expert, and that said expert examined the said magnesite in place on said property and reported the value and amount thereof at the sum of $50,000.

5. That plaintiffs, and each of them, relying entirely upon the said representations of defendant Withers hereinbefore set out, and upon the judgment and conclusion of the above-named expert, and induced thereby, entered into a contract with defendant Withers to purchase the above-described property.

6. That on or about June 29, 1906, and subsequent to the making of said contract and to the payment of said sum of $1,000 to the defendant State Bank and Trust Company of Los Angeles, plaintiffs procured a copy of said report of said expert concerning the abovedescribed property, and plaintiffs then discovered that said expert had made a mathematical error in his computation of the quantity of said magnesite discovered in place on such property, and that the true value of the magnesite, according to the judgment of said expert as deduced from his figures, was $5,000, instead of $50,000, and said expert admitted to plaintiffs that he had erred in his computation as above set out; that immediately after making such discovery plaintiffs notified defendants thereof and gave notice that the plaintiffs would refuse to proceed with the contract to purchase the property hereinabove described; and on or about July 3, 1906, plaintiffs served on defendants, and on each of them, formal notice of their election to rescind said contract by reason of such misrepresentation and mistake, and plaintiffs further offered to deliver to said Withers everything of value received from him, and further demanded payment of said sum of $1,000 held in escrow by the defendant State Bank and Trust Company of Los Angeles; but that defendants, and each of them, then refused, and still refuse, to pay to plaintiffs said sum of $1,000, or any part thereof.

For a second cause of action plaintiff alleges:

1. [Here follows averment as to incorporation of defendant company.]

2. That on or about June 19, 1906, in the county of Los Angeles, state of California, defendants, State Bank and Trust Company of Los Angeles and W. S. Withers, received from plaintiffs, to and for the use and benefit of plaintiffs, the sum of $1,000, which sum defendants, and each of them, promised to pay to plaintiffs on demand.

3. That thereafter and prior to the commencement of this action plaintiffs demanded of defendants, and each of them, payment of said money, but defendants have not paid the same, nor any part thereof, and the whole amount is now due and wholly unpaid.

Wherefore, plaintiff prays judgment for $1,000, with interest thereon from July 3, 1906, together with the costs of this action. Cryer & Tuttle, Attorneys for plaintiffs.

[Verification.]

FORM No. 1076-Cross-complaint in action to rescind contract for purchase of real estate, and to recover portion of purchase price paid.

(In Kornblum v. Arthurs, 154 Cal. 246; 97 Pac. 420.)

[Title of court and cause.]

The defendant complains of the plaintiff, and for cause of action, and by way of cross-complaint, alleges:

that on the 14th

1. [After allegation of incorporation:] day of November, 1904, the said Abbot-Kinney Co. made, executed, and delivered to one Fanny M. Kelley a certain agreement of sale of real estate, in words and figures following, to wit: [Here follows a copy of said agreement of sale, the same being declared upon in the complaint, and which agreement plaintiff seeks to have rescinded.]

2. That on the 18th day of April, 1905, the said Fanny M. Kelley duly sold and assigned all her right, title, and interest in and to said agreement of sale to this defendant, who ever since has been, and now is, the legal owner and holder thereof.

3. That on the 6th day of July, 1905, the plaintiff and the defendant, Mary M. Arthurs, agreed together as follows: That the defendant, Mary M. Arthurs, would sell, and the plaintiff would buy, all her interest under said agreement for the sum of $12,470, to be paid as follows: $1,000 at the date of said agreement; $2,000 on the 28th

day of July, 1905; and $9,470 on or before the 1st day of November, 1905, said last-named payment to bear interest at the rate of seven per cent per annum from the 28th day of July, 1905, until paid; and the plaintiff, under and by virtue of said agreement, also undertook and agreed to pay the two deferred payments mentioned in said agreement of sale between the Abbot-Kinney Co. and Fanny M. Kelley, which became due on the 14th day of November, 1906; that plaintiff paid to the defendant the $1,000 aforesaid, and the $2,000 aforesaid, and on said July 28, 1905, took possession of the premises described in said contracts, and has failed and refused to pay any portion of the $9,470, or the interest thereon, and has also failed and refused to pay the payment which became due to the Abbot-Kinney Co. under said agreement, on November 14, 1905, and this defendant, for the purpose of preventing forfeiture under said Abbot-Kinney Co.'s contract was compelled to, and did, on the 16th day of November, 1905, pay said payment, with the interest thereon, amounting to the total of $1,337.50.

4. That this defendant is now, and ever since the making of this contract between this defendant and plaintiff has been, ready and willing to comply with said agreement in every part and particular, and before the bringing of this action offered to, and still offers to. comply with that portion of the agreement to be by her performed, on the performance by said plaintiff of his portion of said agreement. 5. That this defendant has duly performed all the conditions on her part under said agreement between herself and plaintiff.

Wherefore, this defendant prays judgment against the plaintiff : That there is now due from the plaintiff to this defendant, under said agreement, the sum of $10,808.33, with interest on $9,470, at the rate of seven per cent per annum, from the 28th day of July, 1905, and with interest on $1,337.50 thereof, at the rate of seven per cent per annum, from November 16, 1905; that the court fix a date on or before which plaintiff shall pay such sums of money, and, on a failure to pay the same, that plaintiff be foreclosed of all right under said agreement to purchase. This defendant prays for general relief and costs of suit.

Tanner, Taft & Odell, Attorneys for defendant, Mary M. Arthurs, cross-complainant. [Verification.]

FORM No. 1077-Defense of no consideration and of matters that would

justify a decree of rescission.

(In Dunlap v. Plummer, 1 Cal. App. 426; 82 Pac. 445.)

[Title of court and cause.]

Comes now the defendant, and, answering plaintiff's complaint on file herein, for himself, and not for his co-defendant, alleges:

1. That there was no consideration received by this defendant for the execution of the note declared upon in this action, and that the said Wight, assignor of the plaintiff, did not part with anything of value or suffer any detriment by reason of the fact that this defendant signed said note; that the plaintiff paid no consideration for said assignment to him of said note.

2. And further answering said complaint, this defendant avers that at and prior to the time of the execution of said note one Frank 0. Wakely was the agent of Richard H. Wight, the payee therein. named, and had theretofore, as plaintiff is informed and believes. and therefore states, been selling real estate of the said Wight, and collected the money from said sales, and had not accounted for the full amount received; that the said Wakely was at that time, and ever since has been, insolvent, with little capacity to earn money, all of which facts were well known to his said principal, Richard H. Wight; that in order to cover the deficiency due from the said Wakely to the said Wight as aforesaid, the said note was made up by the defendant Wakely in his office, and signed by this defendant at the request of said Wakely and the said Wight; that at that time the defendant had no knowledge of the financial condition of the said Wakely, or that the note was being given for a previous debt from the said Wakely to said Wight; that the said Wight well knew that the said defendant was acting in ignorance of the transaction, and that the said defendant would have to pay the said note if he signed it, by reason of the insolvency of the said Wakely as well as his incapacity to earn money.

3. [Here follow averments "for a further answer," to the effect that at the time of the signing of said note the defendant Plummer, the maker, was physically and mentally incapacitated, owing to sickness of a long standing, from transacting any business or entering into any contract. The absence of the strengthening, and otherwise essential, averment that the parties with whom the defendant Plum

mer was dealing knew of such incapacity is supplied in the following:] * that defendant received no consideration for the same, and, as he now ascertains, was wholly unacquainted with either the said Wight or the said Wakely; that this defendant did not at said or any time receive any consideration whatever for the signing of said note; that by reason of said incapacity of this defendant during said period, and particularly at the time of the signing of said note, defendant avers that he did not execute the note set out in the complaint herein, inasmuch as he was not capable at said time of comprehending and understanding the nature of the obligations of the contract he was entering into or the liabilit; he was incurring thereby.

Wherefore, this defendant prays, that plaintiff take nothing as against this defendant, and that this defendant have judgment for his costs and reimbursements in this action expended, and for such other relief as may be proper in the premises.

[Verification.]

§ 462. JUDGMENT [OR DECREE].

Dunnigan & Dunnigan,

Attorneys for defendant.

FORM No. 1078-For defendant and cross-complainant.-Action to rescind contract for purchase of real estate, and to recover portion of purchase price paid.

(In Kornblum v. Arthurs, 154 Cal. 246; 97 Pac. 420.) [Title of court and cause.]

This cause came on regularly to be heard on the 26th day of November, 1906, before the court sitting without a jury, a jury trial having been duly and legally waived, David Goldberg, Esq., and Clarence Meily, Esq., appearing as counsel for plaintiff, and Tanner, Taft & Odell for defendant, Mary M. Arthurs. Said action was tried upon the complaint of plaintiff, the answer of defendant, Mary M. Arthurs, the cross-complaint of the defendant, Mary M. Arthurs, and the answer thereto by the plaintiff, and the evidence being closed, the cause was submitted to the court for its decision, and the court having filed its decision, in writing, in which it orders judgment according to the prayer of the cross-complaint and for the defendant, as against the original complaint. Wherefore, by reason of the law and the foregoing: