Plaintiff brought this action to recover from defendant the sum of $900 as a balance alleged to be owing and unpaid on account of the purchase price of certain laundry machinery. A written contract dated December 16,1907, described the property purchased as “one second-hand, No. 3, Troy Triplex Mangle.” Defendant answered the complaint, admitting the execution of the contract and the performance of all the conditions required to be performed by plaintiff thereunder, and then alleged: “That prior to the signing of the contract set out in the complaint, and in order to and for the purpose of inducing the defendant to sign and execute said contract, the plaintiff represented to defendant and stated to the defendant that the mangle referred to in said contract was all right and would do the amount and kind of work usually done by the best of such machines; that plaintiff was well acquainted with said machine and knew its character and condition and the kind, amount and quality of work that said machine would do; that defendant was unacquainted with the amount, kind and quality of work that said machine would do, but knew that plaintiff was well acquainted with said facts and the defendant relied on the aforesaid representations and statements of the plaintiff concerning said machine and was induced thereby to enter into and execute said contract, and but for said representations and statements would not have done so and would not have made said conditional or any purchase of said mangle.”

Allegations following recited that after the mangle was set up and operated it was discovered that it would not do the amount or kind or quality of work usually done by such machines and was in fact useless and worthless; that defendant immediately gave notice that it rescinded the contract, whereupon plaintiff promised to repair the mangle and put it into a condition to do the required work and did attempt so to do but failed, and that the machine remained useless and valueless; that defendant immediately gave notice to plaintiff that it insisted upon its rescission of the contract and offered to return the machine to plaintiff. Damages were alleged to have been suffered in the amount of $475, which defendant sought to recover under its counterclaim.

Upon the trial, defendant, after introducing the testimony of several witnesses going mainly to show the authority of the agents of the parties to make the contract sued upon, and while J. E. Eeid, the president of defendant company, was being examined as a witness, offered in evidence a writing dated September 16, 1907, purporting to be a contract whereby the use of “one Troy Duplex Mangle” and “one Electric Motor” was let by plaintiff to defendant for a stipulated rental for a period of ninety days. This witness, upon objection by plaintiff’s counsel being made, was not allowed to state what conversations were had with plaintiff’s agent at the time the contract of September 16th was entered into, and he was then asked whether he had any conversations with plaintiff’s agent at the time the contract of December 16th was executed. This line of inquiry was objected to and the trial judge in ruling remarked: “I will sustain any objection to any conversation prior to the first contract as immaterial. I sustain the objection as to conversations had at the time of entering into the second contract because they tend to vary the terms of a written contract. ’ ’

The court found that the contract of September 16, 1907, referred to the same machine as that mentioned in the contract of December 16, 1907; that defendant took possession of the property and retained it and still had possession of it; that the plaintiff did not, prior to the signing of the contract set out in the complaint, or at all, make the false representations alleged in defendant’s answer. Judgment for plaintiff followed, from which defendant has appealed.

The defendant complains that the court erred in excluding evidence offered in support of the allegations of fraud and to establish its counterclaim. This contention seems to be well founded. The answer of defendant presented, in an appropriate and sufficient way, an issue as to whether or not the consent of defendant to the making of the contract sued on had been obtained by fraud. If it had been made to appear in the record that the mangle described in the contract of September 16, 1907, was the same mangle as that described in the contract of December 16, 1907, and that defendant had used, or had had an opportunity of using, the mangle prior to the making of the last contract, the ruling would have been correct; for in that case defendant would or should have known just what work could be accomplished by the use of the mangle, and it could not then have been deceived by the false representations, if they had been made as alleged. “A false representation, to constitute fraud, must actually deceive; that is, it must be relied upon by the other party and must induce him to act to his prejudice. If it is not believed, or the party disregards it and makes inquiries for himself, there is no fraud. ... If the representation was one calculated to induce the other party to make the contract, the presumption is that he was influenced by it; and in order to take away his right to relief on the ground of fraud it must be shown that he did not rely upon it.” (Clark on Contracts, p. 232.)

A careful examination of the testimony, as shown by the record submitted here in the bill of exceptions, fails to disclose any evidence upon which to base the finding of the court that the mangles described in the two contracts were one and the same machine. The contrary seems established by reason of the difference in the machines as described in the respective contracts; in one it is styled a duplex machine, while in the other a triplex. The entire absence of evidence in support of a finding necessary to sustain a judgment presents a question of law. Identity not appearing, defendant was not estopped from asserting that it had been misled to its prejudice by the representations alleged. The effect of the evidence thus tendered would not have been to vary the terms of the written contract. (Maxson v. Llewellin, 122 Cal. 199 , [ 54 Pac. 732 ]; Civ. Code, secs. 1565, 1572.)

The judgment is reversed.

Allen, P. J., and Shaw, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on September 19, 1910, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 13, 1910.