swer, and the defendant Mansfield Lovell to amend his answer by setting up in positive terms, and not upon information or belief, the allegations set out in his proffered amendment.

We concur: TEMPLE, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment appealed from is reversed, and the court below is directed to permit the defendant Lallah S. Highton to file her answer within 30 days after filing remittitur, and the defendant Mansfield Lovell to amend his answer by setting up in positive terms the allegations set out in his proffered amendment.

(98 Cal. xvii)

GRIFFIN v. SCOOFFY et al. (No. 14,806.) (Supreme Court of California. May 13, 1893.) Department 1. Appeal from superior court, Del Norte county; Jas. E. Murphy, Judge. Action by David R. Griffin against Ida M. Scooffy and others to establish right to purchase school lands. Judgment was rendered for plaintiff, and defendants Lallah S. Highton and Mansfield Lovell appeal. Reversed.

Chas. E. Wilson and R. W. Miller, for ap pellants. L. F. Cooper, L. F. Coburn, and Walter N. Linforth, for respondent.

PER CURIAM. This cause is in all respects, except in the name of the plaintiff and the land sought to be purchased, a counterpart of Burns v. Scooffy, (No. 14,805,) 33 Pac. Rep. 86, (this day decided on appeal.) Upon the authority of that case, and for the reasons given in the opinion therein, the judgment appealed from herein is reversed, and the_court below directed to permit the defendant Lallah S. Highton to file her answer within 30 days after filing remittitur, and the defendant Mansfield Lovell to amend his answer as per his motion therefor, heretofore made in the court below, except that the allegations in such amendment be positive in form, and not on information or belief.

(98 Cal. 253) WAINSCOTT v. OCCIDENTAL BLDG. & LOAN ASS'N. (No. 18,092.) (Supreme Court of California. May 12, 1893.) EQUITY-RESCISSION FRAUDULENT REPRESENTA

TIONS.

1. In an action by the vendee to rescind a purchase of land on the ground of fraudulent representations by the vendor, where the findings show facts indicating that, because of the fraud, plaintiff has been injured many thousand dollars, they support a judgment for plaintiff, though no specific amount of damages is found.

2. In an action by the vendee to rescind the purchase of a vineyard because of fraudulent representations by the vendor, where it appears that when plaintiff visited the premises, prior to the purchase, the vines were not sufficiently developed for any person, not an expert, to learn their condition except by a critical examination; that plaintiff was prevented from making such examination by the misrepresentations of defendant's employe, and vented from seeking information from a former owner, who was on the premises, by representations that the latter was opposed to leav ng the place, and by such inquiry the trade was liable to be broken up,-there is no pre

was pre

SEARLS, C. This is an action for the rescission of certain conveyances, and instruments connected therewith, growing out of an exchange of property owned by plaintiff, in the county of Placer, for a tract of land, with vineyard thereon, etc., owned by defendant, situated at Sonoma, in the county of Sonoma. The action is based upon false and fraudulent representations of defendant and its agents, whereby plaintiff is averred to have been defrauded. Plaintiff had judg ment, from which, and from an order denying a new trial, defendant prosecutes an appeal.

The first point made by appellant is that the complaint does not allege, and the court does not find, that the plaintiff was damaged, and hence that the findings do not support the judgment. In view of the doctrine enunciated by elementary writers, and fully concurred in by the courts of probably every state of the Union, it will be readily admitted on all hands that courts of justice do not act as mere tribunals of conscience to enforce duties which are purely moral, and involving no pecuniary or tangible injury. Falsehood, fraud, and deceit are not to be commended; but, so long as their practice only involves a question of morals, the duty of their extirpation rests elsewhere than in the courts. But when they are made use of in the business transactions of life to accomplish a fraudulent purpose, as against those having a right to rely upon their truthfulness, and who do so rely, and are thereby deceived and injured, courts intervene to redress the wrong and injury. The reproof of the moral delinquency is but an incident, an attending circumstance, of the paramount object, viz. the redress of the injury. It is said in such cases: "If any pecuniary loss is shown to have resulted the court will not inquire into the extent of the injury. It is sufficient if the party misled has been very slightly prejudiced, if the amount is at all appreciable." Pom. Eq. Jur. § 898, and cases cited. Do the complaint and findings of the court show that plaintiff was damaged? Damage is defined to be "loss, injury, or deterioration caused by the negligence, design, or accident of one person to another, in respect of the latter's person or property." Black, Law Dict. tit.

"Damage." The plural of the word "damage" signifies a compensation in money for a loss or damage. This action is not one to recover damages,-a money compensation. Doubtless, if plaintiff has a cause of action, he could have affirmed the contract, and sued for damages. He has, however, elected to seek a cancellation for the injury, the damage, sustained. A reference to a portion, only, of the findings, which follow substantially the allegations of the complaint, but are in some respects more full and explicit, will, it is thought, suffice to settle the question of damage: (1) Defendant was, and since December, 1888, had been, the owner of the property conveyed to plaintiff. (2) In May, 1890, its agent represented to plaintiff that he, as agent, but without disclosing his principal, had authority to dispose of the property for one Pickett, who lived upon the land as a tenant of defendant, and who wished to sell, by reason of his advanced age. (3) That the tract contained 43 acres, when in fact it contained. but 37 acres, a street being included in the inclosure. (4) That 38 acres were set out in a vineyard with foreign varieties of grapes. That eight tons per acre was not an uncommon yield of grapes from these vines per annum. That the vines were healthy, and free from phylloxera. That the place had yielded an average income for 10 years of $2,200 per year over and above all expenses. Whereas the truth was that the vineyard had not produced more than 18 to 20 tons of grapes per annum for several years. The vines had been attacked by phylloxera and other pests until three-fourths of them were dead, and the gross annual income had, for the last five or six years, gradually decreased from $1,000 to $600, which was little more than the expense of cultivation. That the vineyard was practically valueless, and had been leased to Pickett for the year 1890, who received the whole crop for taking care of the vineyard. (5) These and other statements were false, and known by defendant to be so when made, and were made with intent to deceive and defraud plaintiff. The latter relied upon their truthfulness, and was deceived and defrauded thereby into agreeing to purchase and in purchasing the property. It is hard to realize, in the face of these facts, that the plaintiff was not injured to the extent of many thousand dollars. The injury is shown to the court by the complaint and findings, and, although the technical word "damage" is not used, the record is replete with apt expressions of like import and significance. We find nothing in the cases cited under this head in conflict with the views expressed. Wainwright v. Weske, 82 Cal. 193, 23 Pac. Rep. 12, passed off upon the sufficiency of the complaint, and the court held, in substance, (1) that, treated as an action to rescind a contract, it was fatally defective, in not

showing an offer on the part of plaintiff to return certain money received by the plaintiff from defendant; (2) that, viewed as an action to recover damages, it was lacking in several elements essential to a recovery. He who would recover damages in a court of law must set forth in an orderly manner the facts showing his right to recover, and the amount to which he is entitled, to the exclusion of every presumption to the contrary. In such an action the damages are the essential thing. In an action to rescind upon the ground of fraud, the fraud is the essential thing; and while it must be coupled with loss, injury, damage, the precise amount of such damage is of secondary importance. Had plaintiff, in Wainright v. Weske, averred a tender of the money received by him, and demanded the return of his notes and property, his complaint would have contained sufficient to entitle him to a rescission of the agreement. Morrison v. Lods, 39 Cal. 385; Bailey v. Fox, 78 Cal. 398, 20 Pac. Rep. 868; Marriner v. Dennison, 78 Cal. 202, 20 Pac. Rep. 386. Purdy v. Bullard, 41 Cal. 444, differed in essential particulars from the case in hand.

The second position taken by appellant is that, no matter what representations are made in reference to the character and value of the property by a vendor, if the purchaser visit the property itself, it being land, prior to the sale, and makes a personal examination of it touching those representations, he will be presumed to rely, not upon the representations, but upon his own judgment in making the purchase. Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. Rep. 771, sustains the proposition contended for; but in the same connection it is proper to say that this rule must be taken subject to the proviso that the vendor does nothing to prevent his investigation from being as full as he chooses. Development Co. v. Silva, 125 U. S. 259, 8 Sup. Ct. Rep. 881. The findings show that on May 5, 1890, plaintiff, with an employe of defendant's agent, visited the vineyard, but that at that time the vines, except a few acres of Tokays, were not sufficiently developed for any person not an expert vineyardist to learn their condition, except by close and critical examination, or by inquiring of those who knew their condition; that plaintiff was prevented by the deceit and misrepresentations of the employes from making a critical or close examination of the vineyard, and from speaking to or inquiring of the former owner, who was on the premises at the time, and who well knew the facts, it being represented that the former owner's wife was opposed to leaving the place, and if the plaintiff talked to her she was liable to break up the trade; and much more, tending to satisfy and prevent any examination. At a later period and before the deeds were executed, similar artifices were resorted to. with good effect, to prevent plaintiff from

1. The fact that plaintiff's application to purchase state land, of some portion of which he is in possession, has been adjudged invalid, and that it has been determined that he has no right to purchase, makes him none the less a proper party to proceedings to determine a contest inaugurated by a protest in the surveyor general's office against the purchase of the land by defendant. Garfield . Wilson, 15 Pac. Rep. 620, 74 Cal. 175, and Perri v. Beaumont, 27 Pac. Rep. 534, 91 Cal. 30, followed.

2. The amendatory act of 1885, which does not require an application to purchase state land, not suitable for cultivation, to state that the applicant is an actual settler, does not cover applications made before its enactment, and render unnecessary proof that one previously applying is an actual settler, as required by the old statute.

3. Where, on appeal, a new trial is ordered without limitation for a specified reason, the new trial should not be limited to the one issue discussed. Chandler v. Bank, 61 Cal. 401; 4 Pac. Rep. 502, 65 Cal. 498; 11 Pac. Rep. 791, 14 Pac. Rep. 864, and 73 Cal. 317, -distinguished.

Commissioners' decision. Department 1. Appeal from superior court, Mendocino county; Robert McGarvey, Judge.

Proceedings by Abner D. Jacobs against J. B. Walker to determine their right to purchase state lands. From a judgment for defendant and order denying a new trial, plaintiff appeals. Reversed.

T. L. Carothers, for appellant. J. A. Cooper, for respondent.

TEMPLE, C. This a contest in regard to the right to purchase state land, and this is the second appeal to this court. 90 Cal. 43, 27 Pac. Rep. 48. On the first trial it was found that plaintiff in his application to purchase had falsely stated that there was no possession of any portion of the land adverse to his possession. It was found that in every other respect the matters stated in his application were true, but because of the one false statement it was adjudged that his application was invalid. This finding was affirmed on the former appeal. As to the defendant it was said that there was no finding that he was an actual resident upon the land, nor did it appear that there might not be some part of the land, equal to a legal subdivision, which was suitable for cultivation. The judgment was therefore affirmed as to plaintiff's claim, and as to the defendant it was reversed, and a new trial ordered. The complaint shows that the land in dispute is a part of a thirty-sixth section. That the defendant applied to purchase on the 23d of February, 1883, which application was approved May 3, 1883, and a certificate of purchase issued to defendant June 16, 1883. That plaintiff made his application May 6, 1884, and at the same time filed with the surveyor general a verified protest in writing Cal. Rep. 32-34 P.-19

against the issuance of any further evidence of title to the defendant. Attached to the

complaint is the certificate of the surveyor general to the fact of the protest, and referring the contest to the courts for determination. Defendant's answer fails to deny that there was a protest, and that there was is found by the court. Yet respondent in his brief claims that plaintiff has not protested, and that the contest was not inaugurated in the state land office. He contends that as it was adjudged that the plaintiff's application to purchase was invalid, and it has been determined that he has no right to purchase, the contest is ended so far as plaintiff is concerned, and he is out of the case. Of course, if this be so, plaintiff is not a party, and cannot appeal. It would seem, also, that, if the contest inaugurated by plaintiff's protest is ended, the courts have no further jurisdiction of the matter. For where there is no contest, the surveyor general must himself determine such questions as arise. As authority for this proposition he cites Ramsey v. Flournoy, 58 Cal. 260. But that case was expressly overruled in Perri v. Beaumont, 91 Cal. 30, 27 Pac. Rep. 534. So far as this question is concerned, I am unable to find any difference whatever in the last-named case and this. In both, the contest was inaugurated by a protest in the surveyor general's office by one who appeared on the face of the record to have made no valid application to purchase, though both had filed formal applications, and both were found to be in possession of some portion of the land. And in these respects both cases seem to be exactly like Garfield v. Wilson, 74 Cal. 175, 15 Pac. Rep. 620. In those cases this point was fully discussed, and the matter need not be again considered. Aocording to those cases, plaintiff is a proper party, and is entitled to be heard.

Respondent further contends that the speclfications in the notice of the motion for a new trial, which was made upon the minutes of the court, as to the alleged insufficiency of the evidence, are defective. One is to the effect that there was no evidence tending to show that the defendant was an actual settler upon the land, when he applied to purchase. At the time defendant made his application to purchase, 1883, it was necessary to state in the application that he was an actual settler upon the land. Of course, unless this statement were true, he had no valid application to purchase, and he would be left in the same position as the plaintiff. The stat ute was amended in 1885, so that this statement was not required when the lands were not suitable for cultivation. This does not cover applications made before that time which were invalid when made. This defect in the findings was noticed on the last appeal, but as it was not important, since a new trial was ordered, the consequences of such failure were not commented on. But this was a material issue on the last trial, and, if there was no evidence upon that issue, the