Fitch

The defendants appeal from the judgment herein adjudging that a certain promissory note and mortgage in favor of defendant Fitch for $9,439.04 are invalid for any amount in excess of $1,787.89 and enjoining the defendants from collecting any greater sum upon said note. The facts are fully set forth in the opinion this day filed deciding plaintiff’s appeal (ante, p. 329 [ 208 Pac. 328 ]) from the judgment holding the note and mortgage valid to the extent of $1,787.89.

Appellants contend that the plaintiff is not entitled to a judgment of cancellation because there is neither allegation nor proof that the plaintiff restored or offered “to restore defendants to the same position they would have been if they had not relied upon the instrument sought to be canceled.” As pointed out in the opinion reversing the judgment, the defendants’ position has not changed but they may still pursue every remedy which was available to them at the time of the execution of the note. The reversal of the judgment on plaintiff’s appeal necessitates a retrial of all the issues raised by the pleadings as fully as if the case had never been tried. The other points argued on this appeal will not probably…