This appeal is here for further consideration after decision by the district court of appeal for the third appellate district affirming a judgment in favor of the defendant.

The action was brought to recover the sum of twenty thousand dollars received by defendant from R. L. Patterson, W. E. Dingley, and H. H. Dingley, assignors of plaintiff and from plaintiff pursuant to a certain option to purchase land. The court made a general finding that the averments of the complaint, except as to the corporate capacity of plaintiff, were untrue, and rendered judgment in favor of defendant. The appeal is from the judgment on a bill of exceptions, the claim of appellant being that the evidence does not sustain the finding.

It appears that on January 17, 1907, defendant executed to R L. Patterson, or assigns, a contract whereby he gave to the latter “the right and option to purchase from me all that certain tract or parcel of land in the county of Fresno, state of California, described as follows: An undivided one-half interest in and to all of the S. E. %, see. 6, T. 26 S., R 15 E., M. D. B. & M., . . . upon the following terms and conditions: The price of which is forty thousand dollars, payable in four equal payments of ten thousand dollars each at intervals of six months, commencing January 27th, 1907. If said R. L. Patterson elects to purchase said property, he shall on or before January 27th, 1907, three o’clock p. m., pay me the sum of ten thousand dollars (in addition to the sum of ten dollars herein paid), and upon such payment he shall have and he is hereby given until February 27th, 1907, three o’clock p. m., to search the title of said property; and if the title is found good and valid he is to pay me the balance of the money, to wit: ten thousand dollars July 27th, 1907; ten thousand dollars January 27th, 1908; and the balance of the purchase price, ten thousand dollars, on July 27th, A. D. 1908, upon my tendering to him a grant, bargain and sale deed, conveying to him or his assigns, said above described property, with valid title free and unencumbered, which I hereby agree to do. Said deed to be placed in escrow with the Bank of Coalinga upon the deposit of the first payment of ten thousand dollars. ... If the title cannot be perfected within said time I agree upon demand to return to said R. L. Patterson or his assigns, all sums paid on account of this option. All sums paid herein shall apply to the purchase price of said property, but if said R L. Patterson or his assigns, fails to comply with the conditions herein set forth, any payments heretofore received by me are to be forfeited to me as liquidated damages. Upon payment of first installment said Patterson or his assigns shall be given possession of said land and permitted to enter upon and drill said land for oil.” There are other provisions in the option immaterial to the present consideration.

Subsequently, and prior to January 27, 1907, the date provided for making the first payment under the contract, the defendant indorsed upon it that “for and in consideration of the sum of one thousand dollars to me in hand paid” he extended the time for payment therefor to February 25, 1907, the said one thousand dollars to constitute part of said payment of ten thousand dollars if Patterson or his assigns should “elect to take the property”; if he did.not so elect defendant was “to retain said sum of one thousand dollars as and for liquidated damages.”

In February, 1907, Patterson conveyed an undivided one-third interest in the option to H. H. Dingley and E. W. Dingley and notice of such conveyance was given to the Bank of Coalinga. On February 25, 1907, Patterson and the Dingleys paid into the Coalinga Bank for defendant the sum of nine thousand dollars. About the time of this latter payment defendant and Patterson deposited with the said bank the escrow papers and instruments, the defendant at that time also depositing therewith pursuant to the option agreement a deed in favor of Patterson to an undivided one-half interest in the property as described in the option, and to which interest it was stipulated on the trial that when the option was executed defendant had title.

On March 25, 1907, before the second payment under the option became due Patterson and the Dingleys transferred all their rights and interests under the option to the plaintiff, and on July 27, 1907, paid defendant said second installment of ten thousand dollars. It was stipulated on the trial “that there was a partition of the land described in said paper writing (the option) leaving the absolute title to the south-half of the southeast quarter of section six in the defendant U. M. Thomas, and that this partition took place on the 25th of March, 1907.” Subsequent to the date when the partition was made the defendant deposited with the bank a deed dated March 27, 1907, in favor of Patterson conveying the south half of the southeast quarter of the section.

When the third payment under the option became due on January 27, 1908, it was not paid or offered to be paid and on the next day, in response to a telegraphic demand from defendant for the return of the two deeds to him they were sent to him by the cashier of the bank.

Prior to January 27, 1908, plaintiff informed defendant of its probable inability to meet the third payment then falling due and asked for an extension which the defendant refused to grant. Subsequent to January 28, 1908, the parties had several conversations about the option, at one of which—in October, 1908—plaintiff offered to pay the twenty thousand dollars for which it was in default under the option, with interest and any damages which the defendant had sustained through failure of the plaintiff to make the payments when due, but defendant refused to consider the matter of the option at all. At no time did plaintiff or any one in its behalf tender to the defendant any money on account of the purchase price of the land. At all the meetings with defendant abové referred to (which were sought by plaintiff alone) the defendant refused to talk with plaintiff on the basis of the option having any existence. His position after January 27, 1908, consistently adhered to, was that the option was at an end and that he was in no way further obligated by reason of its having been executed or, as described by one of the witnesses of the plaintiff, his position was “that he considered the Skookum Oil Company had forfeited all of its rights under the option and he would not discuss the matter with reference to the option.”

The points made by appellant are: 1. That time was not of the essence of the option agreement and that the offer of the plaintiff to pay for all damages sustained should have been held to excuse the delay; 2. That the condition in the contract for a forfeiture should have been strictly construed; 3. That the defendant at the time he treated the option as forfeited—■ default in the third payment—the entire subject-matter of the contract had been changed and defendant was not in a position to deliver the land specified in the contract, as he had converted an undivided interest in the whole quarter section held by him when the option was executed into a sole ownership by him of the south half thereof.

The first two points were fully discussed and the law respecting them clearly declared in the decision of the district court of appeal when this matter was before it, and we quote and adopt what is there said in disposing of them.

That court said:—

The third point made by appellant for reversal is that prior to the time defendant treated the option as forfeited there had been an entire change of the subject-matter of the option and defendant was not in a position to convey to the plaintiff the interest in the lands specified and mentioned in the contract. This point is based on the fact that the option agreement called for the conveyance by defendant to Patterson on performance of its terms by him of an. undivided one-half interest in the whole quarter section described in the option, a deed therefor to him having been originally deposited in the bank in escrow; and the further facts that on the trial it appeared that subsequent to the execution of the option eon- tract and deposit of this deed, and prior to the default of the plaintiff in making payments there had been a partition of the land described therein leaving the absolute title in the defendant to the south half of the southeast quarter of the section, and that subsequently defendant deposited in bank in escrow a deed from himself to Patterson to said absolute interest as a substitute for the original deed by him of an undivided one-half interest in said quarter section as mentioned in the option.

Under these facts the appellant seeks to invoke the rule that “if the vendor is unable to convey a proper title according to his contract at the time of performance because he has no title, or has a defective title, or has a less estate in the land than he agreed to convey, the vendee may treat the contract as at an end and may recover in an equitable proceeding for rescission the money he has paid on account of the purchase price.” (29 Am. & Eng. Ency. of Law, p. 727.)'

But it is quite apparent from an examination of the record in this case that the stipulation as to partition was only made :n connection with the formal proofs which plaintiff was making respecting the option contract, the assignment from Patterson to the Dingleys, and from all of the latter to the plaintiff, and to show the situation, in fact, respecting the property to which the option applied when it was claimed by defendant that all rights under it had been forfeited. No claim was made in the court below that the legal effect of the partition and change in the subject-matter of the option operated as a rescission of the contract entitling plaintiff to recover back the payments previously made. The ease was tried on no such theory and the point was made for the first time in the district court of appeal and insisted on here. This of itself would afford good reason for refusing to consider a claim upon which no reliance was placed in the trial court and is urged for the first time on appeal as a ground for reversal. But it is not necessary to dispose of the point for any such reason. The claim of plaintiff is based solely on the ground that it was shown by stipulation that there had been a partition of the property. It does not appear who asked for the stipulation as to this fact, though from its place in the record it may be assumed that plaintiff did. No reason or purpose in asking for it was given by the plaintiff and de ifendant seems to have made no inquiry as to why it was desired. There appears to have been just the bald stipulation entered into bétween the parties, early in the trial, of the fact of the partition without any reliance being placed on it by plaintiff upon the trial or until it is now relied on to overthrow the finding of the trial court in favor of defendant. If, under the stipulation, appellant had, on the trial, claimed a right to recover on account of the change in the subject-matter of the option contract affected by the partition the defendant would have had the right, if he could, to show that the partition had been effected by mutual consent of the assignors of the plaintiff and the defendant; and if now, on an examination of the record sufficient evidence appears from which this fact may be fairly inferred, it will dispose of the claim of appellant. Necessarily, as no claim was made by plaintiff under the partition on the trial it could hardly be expected that evidence addressed directly to the circumstances under which the partition was made would appear. There was, however, evidence introduced on other subjects which, in a measure, also bears on the matter of the partition, and which we are satisfied sufficiently warrants a reasonable inference that the partition was effected with the knowledge and consent of Patterson and of the Dingleys, the assignors of the plaintiff.

The partition between defendant and his cotenant was made on March 25, 1907, and on that same day a deed to the property as described in the option was made to the plaintiff -by Patterson and the Dingleys, the latter having theretofore acquired an interest in the option from Patterson. Prior to this date the plaintiff had been organized as a corporation and the Dingleys from the time of its organization had been officers thereof—W. H. Dingley being vice-president up to March 9, 1908, and from that date thereafter its president; and W. E. Dingley had been its secretary ever since its organization. Both, later, owned all the issued stock of the corporation save five shares, and they were the persons most actively engaged in attending to the interests of the corporation under' the option and who had the several interviews with the defendant subsequent to the default of the corporation in making payments under the option, at which interviews they endeavored to persuade the defendant to renew the option or allow it to be carried out, notwithstanding the default, or refund the moneys previously paid under it. In all these interviews, while various reasons were urged by them why the option should be extended or renewed or the payments refunded, no claim was made, or even intimated, in any of these interviews that the corporation had a legal right to have the payments returned on the ground that a rescission of the contract had been worked prior to the default of plaintiff by a change in the subject-matter of the option by reason of the partition and the substituted deed, although the defendant in all these interviews refused to recognize that the corporation had any rights whatever under the option or to discuss matters on the basis of the existence of any rights in favor of the corporation under it or to restore any payments which had been made. It further appears that the deed of March 27, 1907, from defendant to R. L. Patterson, deposited by the former with the bank in lieu of the original deed, was deposited there “after the division of the property between Mr. Webb and Mr. Thomas.” This sufficiently indicates that the partition was effected between these two—Webb and Thomas—as cotenants of the property, though we attach importance to this only as it bears upon another item of evidence. Plaintiff introduced in evidence a letter written by defendant to the Coalinga Bank on April 2, 1907. In this letter were inclosed three deeds—the first, a deed from Webb and others to the defendant; the second a deed from defendant to Webb; the third a deed from defendant to Patterson and others. Respecting these deeds the defendant wrote “the first deed (Webb to the defendant) is unsigned, but I am told Webb will have it executed in accordance with an agreement with Patterson. When this is done the deed (defendant to Webb) can be delivered to Webb; the third deed (defendant to Patterson) you will keep in escrow in place of the deed sent you, which deed you can return to me. This third deed (defendant to Patterson and others) can be delivered to Patterson when the last of the $40,000 payments is made."

It is quite apparent from this letter, in connection with the testimony previously referred to showing that the division or partition of the land was between the defendant and Webb as cotenants, that the partition was effected and the deed from Webb to defendant and from the latter to Patterson and others of an absolute portion of the quarter section was made under an arrangement and agreement with Patterson prior to the deed to the plaintiff. It further appears in the record that prior to the commencement of the present action the plaintiff had brought an action against defendant which had been tried, though it does not appear what was the result. That action was to enforce specific performance of the option contract against defendant and the complaint was verified on behalf of the plaintiff by H. H. Dingley as its president. It was alleged that plaintiff, as assignee of Patterson, had offered to perform all the covenants contained in the agreement between defendant and Patterson and pay the balance under the agreement, and that defendant refused to make a deed to the land and refused to return the twenty thousand dollars theretofore paid to him, and the prayer was for a decree to compel defendant to make and execute to it a deed to the “south-half of the southeast quarter of section six,” being the absolute interest:- which defendant had acquired under the partition and to which the substituted deed “in escrow applied.

Taking into consideration these facts disclosed by the record, and without further discussing them, it is sufficiently' apparent that the partition was effected with the consent of Patterson, the assignor of the plaintiff, and from the relations between Patterson and the Dingleys, individually and as officers of the plaintiff, that the partition was effected by Patterson with the understanding and consent of all of them and for their benefit. When all the matters recited are fairly considered, this is the reasonable inference to be deduced.

In his answer to the petition for rehearing respondent incorporated therein as an exhibit a copy of the complaint in the former action just referred to, certified by the clerk of the superior court as being correct. In this copy of the C9mplaint is set forth, among other things, a power of attorney by plaintiff to Patterson dated January 19, 1907, authorizing him to effect a partition of the property and an agreement for a division of the property between Patterson, respresenting defendant, and Webb, the cotenant of the defendant and persons claiming under an agreement to sell executed by Webb, and the interchange of the deeds effecting a partition of the land and vesting title in plaintiff to the south half of the southeast quarter. But this is not part of the record and cannot he considered by us. If we could do so it would only strengthen what is reasonably inferable from the record properly before us,—namely, that the partition and the substituted deed to the segregated portion of the quarter section were effected and made with the consent of the assignors of plaintiff prior to their assignment to plaintiff of their rights under the option.

The judgment appealed from is affirmed.

Angellotti, J., Shaw, J., Sloss, J., and Melvin, J., concurred.

Rehearing denied.