Carpenter

This is an appeal from a judgment in an action to cancel and rescind two contracts for the sale and purchase of real property, and to recover the money paid by plaintiff on account of the purchase prices. The complaint' contains two causes of action, identical in form, each pertaining to a contract. In each count fraud and deceit, and partial failure of consideration, are alleged as grounds of recovery. The trial court found against plaintiff on all grounds. Apparently plaintiff has abandoned the question of fraud and deceit on appeal as it is not argued in his brief. Our examination of the record discloses that the evidence on this question preponderates in favor of defendants. We will, therefore, confine ourselves to a consideration of the question of partial failure of consideration.

William H. Burnham and others were trustors in a trust agreement wherein the First Trust and Savings Bank of Pasadena, which we will refer to as the bank, was trustee. The subject of the trust consisted of a number of lots at the easterly end of Balboa peninsula in the city of Newport Beach, in Orange County, title to which was vested in the bank. While the terms of the trust do not appear in the…