White

This is an appeal from an order denying a motion for a new trial. The only questions presented are as to whether certain of the findings are in accord with the evidence and as to whether certain issues are found upon at all.

The action was brought to rescind an executed contract of exchange and for damages, the subjects of the exchange being certain real property of the appellant, situated in California, and certain notes held by the respondent and which were secured by mortgages on real property near Port Morgan, Colorado. Judgment went for the respondent. The negotiations leading up to the trade were held at Pomona, California, and the rescission was asked because of certain misrepresentations claimed to have been made by respondent concerning the Colorado property, in his endeavor to bring about the exchange. The nature of these representations it is not necessary to mention, as the trial court found with appellant that they were not true. It was further found, however, that “plaintiff did not rely on each, all or any of the representations made by the defendant,” and it is to the question of the propriety of this finding that we must first give attention, as it is one of the…