McLaury

Councel for appellants in his petition for rehearing complains that the court has failed to pass upon one of the vital questions in the case.

It is true that the point was made in appellants’ brief that Montgomery had condoned the alleged fraud of McLaury by seeking favors of him after discovery of the fraud, thus bringing the case within the principle of Schmidt v. Mesmer, 116 Cal. 267 . The facts of this case, however, are so utterly dissimilar to the facts in Schmidt v. Mesmer that the decision in that case has no application.

The so-called favors solicited by Montgomery were these: He called upon McLaury to refund water assessments which had accrued prior to the exchange of properties, and which he had been compelled to pay. He accepted a new deed tendered by McLaury for the perfection of his water-right. He wrote to McLaury to say that he should require an additional five hundred dollars, which he claimed McLaury had offered to advance him on the security of his mortgage of the Riverside lands.

But, according to his testimony and the findings of the court, all this was prior to the discovery of the fraud that had been practiced upon him.

The court found that owing to…

This is a litigation arising out of the alleged fraud of the defendants, C. S. and J. L. McLaury, in inducing the plaintiffs by false representations to exchange their Minnesota farm for thirty-five acres of land in Riverside County in this state. The defendants appeal from a judgment canceling a mortgage on the Riverside land, and awarding damages in the sum of eighteen hundred dollars. Thejr also appeal from an order denying their motion for a new trial.

The agreement for the exchange of lands, and the deeds, mortgage, note, etc., by which it was effected, were made and executed in Minnesota, where all the parties were. C. S. McLaury, who conducted the transaction on behalf of himself and J. L. McLaury, visited the farm of the plaintiffs and had an opportunity of inspecting it. The plaintiffs knew nothing in regard to the Riverside lands, except what he told them, until after the exchange of deeds on the third day of March, 1899. They claim that he made numerous false representations as to the condition, character, and value of the Riverside land for the purpose of inducing them to make the exchange, that they relied upon his representations, and as soon as they discovered…