Boucher

This is one of a series of thirty eases involving charges of fraud in the sale of land by the appellant In a 12,000-acre subdivision of lands near the city of Sacramento. The allegations of the complaint and the answer and the proof are similar to that stated in Sacramento Suburban Fruit Lands Co. v. Walter A. Melin (No. 5671) 36 F.(2d) 907 , to which reference is hereby made.

The court instructed the jury in part as follows:

To this instruction the appellant excepted as follows:

The appellee’s entire case hinged upon the question of whether or not the land was capable of producing fruit in commercial quantities. If it was, the representation to that effect was true, and the representation as to value was also true. The burden of proving the misrepresentation and of proving the falsity thereof was upon the appellee ; the burden did not shift to the appellant.

“The burden of producing a preponderance of evidence does not shift from side to side in the trial of a ease but constantly remains with a party having the affirmative issue.” 10 Cal. Jur. § 89, p. 783, citing Valente v. Sierra Ry. Co., 151 Cal. 534 , 91 P. 481 , and other eases. See, also, section 91, 10 Cal. Jur.…