Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

íhe action was brought to rescind the notes and mortgage on the ground of fraud. The loan was for five years, the amount being one hundred and twenty-five thousand dollars, and the rate of interest ten per cent, per annum. The agreement for the loan was made on the 21st of November, 187 8, and evidenced on the part of the corporation by a resolution of its board of directors. The resolution referred to a previous offer by Henry Shrier, one of the defendants, to make the loan and advance the money from time to time, as required by the corporation; and after accepting the offer, provided that the president should give the notes of the corporation for such advances, and a mortgage upon the corporate property to secure their payment. The offer was communicated to the board by the defendant Baum, acting ostensibly as the agent of Shrier; but the court found that he was really acting for himself, and that Shrier merely lent his name to the transaction. The finding is quoted in the opinion. Baum was a director of the corporation, and Shrier was his partner in business. Prior to the 10th of July, 1879, advances were made, in pursuance of the resolution, to the amount of one hundred thousand dollars. For these advances the notes of the corporation were given, but the mortgage had not been executed. In the meantime, the present constitution was adopted, to go into effect on the 1st of January following, under which the mortgage would become an interest in the property for the purpose of taxation, and to that extent the payment of the taxes would devolve upon the mortgagee. In this condition of things counsel was consulted, who, in conjunction with the counsel for the corporation, prepared another resolution, to take the place of the previous one, and the resolution so prepared was adopted by the board of directors on the 10th of July, 1879. Baum did not vote on either of the resolutions. The board consisted of seven members, and the resolutions were passed by the votes of the other six. The second resolution differed from the first only in respect to the amount of the loan, which was stated at one hundred and thirty-seven thousand dollars; but, in point of fact, the loan was not to be increased, and it was understood that the additional sum of twelve thousand five hundred dollars included in the resolulution, and to be also included in the notes and mortgage, should be available to the lender simply as a means of indemnity against such taxes as might be imposed upon his interest as mortgagee under the new constitution. This understanding was merely verbal, and on the adoption of the resolution the residue of the loan was advanced, and the notes and mortgages in question were executed to Shrier, who subsequently assigned them to Baum. The notes previously given were surrendered and cancelled. The court found that from the 21st of November, 1878, the date of the first resolution, until the 10th of July, 1879, when the second resolution was adopted, ten per cent, per annum was a reasonable rate of interest; and that thereafter nine per cent, was a reasonable rate, the lender paying the mortgage tax. The judgment was, that the notes and mortgage be rescinded and delivered up for cancellation, on the repayment of the amount loaned, with interest as therein specified. The action was commenced on the 26th of June, 1880.