Conlan

This is an action of rescission. The findings of the court were in accord with the allegations of the complaint, and judgment went for plaintiff. The appeal is from the judgment, and the merits of the case will be determined by a consideration of the sufficiency of the complaint in stating a cause of action.

It appears substantially from the complaint that plaintiff owned a lot worth $700. By reason of a mistake of fact, he fully believed that it was mortgaged for $500, when it was another and different lot that was so mortgaged. He offered to sell the lot to appellants for $700, $200 to be paid in cash, the balance, $500, to be paid on the mortgage. The appellants, through their attorney, telephoned to the recorder and learned that respondent was mistaken, and that the lot was not encumbered at all. Then they agreed to buy the lot and pay therefor $700, to be paid as above stated. They did not intend to keep this agreement, but did intend to take advantage of respondent’s mistake, and to obtain the property for $200, and to defraud him of the balance of the purchase price, $500. The $200 was ¡paid, and the transfer made. Subsequently the plaintiff ••ascertained his mistake, and…