Edwards

In 1927 plaintiff purchased from defendants 160 acres of land in Napa County. Approximately three and one-half years later she brought this action against defendants for damages for mistake, alleging that a 19-acre tract of timber had been represented by defendants as a part of the 160-acre tract, whereas it was not so contained, and if the particular 19 acres of wooded land had been a part of the larger tract it would have been of a greater value. The jury awarded plaintiff $2,500 as damages therefor.

Appellants by demurrer and answer set up subdivision 4 of section 338 of the Code of Civil Procedure as a bar to the action and now urge that point as ground for reversal.

Plaintiff, in response to an advertisement, communicated with Joseph Sergi, one of the defendants and appellants herein. Thereafter by agreement, plaintiff and defendant Joseph Sergi, who at all times was acting upon behalf of and by authority of appellant Emile Sergi, the undisclosed owner, met and examined the 160-acre tract of land and spent approximately the entire day in viewing the property. Plaintiff had on several occasions told defendant ° Joseph Sergi she' was particularly interested in a wooded tract…