Snyder

This is an appeal by plaintiff from a judgment in favor of defendant, and from an order denying her motion for a new trial. This case has been here three times, and the decisions on those appeals are reported respectively in Horton v. Jack, 37 P. 652 ; Horton v. Jack, 115 Cal. 29 ; and Horton v. Jack, 126 Cal. 522 . Subsequently, Horton died, and the present plaintiff was substituted in his place. The facts are fully stated in the former decisions, and it is unnecessary to repeat them here. At the last trial the facts and evidence were the same as on the former trial, with one exception, which is immaterial. Before the last trial the defendant filed an amended answer, in which he averred that the sale of certain personal property of the estate of James A. Brown by Mrs. Catherine J. Brown, in her individual capacity, to the defendant Jack — and which constitutes the subject of the litigation — was made under a mutual mistake of law because Mrs. Brown and Jack each erroneously believed that the former had the legal right to sell the property to the latter. There were some evidence as to this mutual mistake; but in other respects the evidence and facts were the same as on…

A rehearing of this cause is denied, but the court deems it proper to say in response to the petition for rehearing that the judgment in this case cannot affect any claim that the defendant may have to such share of James A. Brown's estate as may be distributable to the estate or successor of Catherine J. Brown. *Page 587