Akers

— Defendants obtained judgment against plaintiff for $5,000 on a cross-eomplaint, and plaintiff appeals.

The litigation grew out of a written contract whereby plaintiff purported to sell, assign and transfer to defendants the exclusive right to prospect and drill for, produce and market oil and gas pursuant to government permit from lands leased or about to be leased from the government. At the time of the execution of the contract defendants paid to plaintiff $5,000, and the contract called for an additional payment of $7,500, for which amount plaintiff brought suit. In their answer defendants denied the essential allegations of the complaint and as affirmative defense pleaded fraud and failure of consideration; and in their cross-complaint they asked for a rescission of the contract upon grounds similar to those urged in the affirmative de fense, and for the repayment to them of the $5,000 theretofore paid to plaintiff. At the commencement of the trial plaintiff moved for judgment on the pleadings, and the motion was denied; whereupon he rested his case. Defendants then proceeded to introduce evidence in support of "their cross-complaint and plaintiff objected thereto upon the…