Marriner

This is the second appeal in this case. The decision on the first appeal is reported in 78 Cal. 202 . After the case was sent back for a new trial, the pleadings were amended so as to conform to that decision. The case was then tried before a jury, and the result was a verdict and judgment in favor of the plaintiff, for two thousand five hundred dollars damages. The defendant moved for a new trial, which was denied, and has appealed from the order denying his motion.

We think a new trial should have been granted.

It was held, on the former appeal, that the plaintiff could not rescind the contract of March 14, 1887, and recover for a breach of the contract of January 13,1887, even though he was induced to make the change by *558 fraud, unless he was damaged by the change; and it was said: “It was necessary for the plaintiff to allege and prove that the last property contracted for was of less value than the first, or other facts sufficient to show that he was damaged by the making of the last contract.”

And on the new trial the court instructed the jury that they could not find for the plaintiff, unless he had proved by a preponderance of evidence that he was damaged by the…