Thompson

The plaintiffs have appealed from an order granting a new trial in a suit to recover $1,000 paid upon an oral contract to purchase a dairy ranch, together with livestock and equipment. The action was commenced without a tender of further performance on the part of plaintiffs on the theory that the contract was void on account of alleged fraud and misrepresentations of the grantor. The statute of frauds was not pleaded. The court adopted findings adverse to the plaintiffs on the issue of fraud. A new trial was granted for lack of evidence to support the judgment. It is contended the court abused its discretion in granting the new trial.

The defendant owned a 260-acre dairy ranch near Santa "Rosa in Sonoma County, together with seventy milk cows, forty calves, farming machinery and equipment. In July, 1941, the plaintiffs, after a personal inspection of the property, orally agreed to purchase it for the sum of $52,000 to be paid in specified installments. The contract was subsequently orally modified by mutual consent. All of the terms and conditions of the sale of properties were stipulated. August 6, 1941, pursuant to that contract, the plaintiffs paid defendant $1,000 “to apply…