Moore

Plaintiff sued for the rescission of a contract to purchase a sublease on an oil and gasoline service station together with all equipment and stock in trade. The cause was tried without a jury and the court •gave judgment for plaintiff, from which the defendants appeal on a bill of exceptions.

The defendants had been operating the station under lease and during the year 1924 had averaged a sale of 1242 . gallons of gasoline a day. The Sierra Refining Company was the lessee of the real property and held a contract with defendants for the sale to them at wholesale of all the gasoline dispensed upon the premises. Under the agreement with the refining company the defendants were obligated to pay a monthly rental of $150 plus one cent a gallon per month for each gallon of gasoline sold on the premises.

In the latter part of January, 1925, negotiations were had between plaintiff and defendants for the sale of the station and plaintiff insisted that this lease be changed to a flat rental. Thereupon a new lease was executed by the refining company to the defendants for an extended period at a monthly rental of #400, all of which was done with the written consent and agreement of…