This is a companion case to Sacramento, etc., v. Melin (No. 5671) 36 F.(2d) 907 , to which reference is made for a general statement of the situation involved in this ease.

The appellants asked the court to give the following instruction:

This request was refused, and exceptions noted to the refusal. On that subject the court instructed the jury as follows: '

While this instruction covers in a general way the ground covered by the proposed instruction, it is erroneous, for by it the jury were informed that they might conclude from the evidence that the defendant was not entitled to the presumption of innocence and fair dealing. The presumption of innocence and fair dealing is of universal application. No one is ever, to be deprived of the presumption as a matter of law or because a jury may decide that the person is not entitled to the benefit of the presumption.

In addition to the foregoing error, which requires reversal of the judgment, the trial court made extended comments on the testimony of the witness C. G. Hopkins, who testified for the defendant. This witness, on direct examination, testified as follows:

It will be noted that on his direct examination he testified to the facts concerning his cultivation of this thirty-acre tract in the Rio Linda district. He was not called upon in his direct examination to give any opinion concerning the commercial fruit-bearing possibilities of the soil. The only thing in the nature of an opinion ventured by him in bis direct examination was the following:

The cross-examination of this attorney at law was apparently conducted in, and replied to, in a jocular vein. The cross-examination is as follows:

In view of the part of the charge presently to be quoted, it should be noted that, although the question was asked of the witness whether he considered his operations profitable because of the exercise he got out of it, his first answer ignored that factor, and the second answer merely stated that he took that into consideration in arriving at his conclusion that it was profitable. There is no indication in his cross-examination that he considered the ranch profitable solely and only because of the fact that it offered an opportunity for exercise. On the contrary, he testified up to that point fully with regard to his operations. It was apparent also that, under his policy of planting out five acres each year, he may not have made an aetual money profit during that period.

The court instructed the jury, with reference to Mr. Hopkins’ testimony, as follows:

This instruction is not only unfair in its general purport, but it misstates the evidence of the witness Hopkins as follows : “He said it was profitable because of the exercise it gave him. * * * He might not raise a dollar of stuff, yet the exercise might have kept him in good health and training, but a commercial orchard would be a different thing.” In view of the fact that .the witness had testified that he had produced a ton of dried prunes per acre from his prune orchard, this observation was obviously unfair. An even more objectionable feature of this instruction is the definition given of a commercial orchard. The representation made by the defendant concerning the possibility of raising fruit commercially is a representation of a material fact so far, and only so far, as it is a representation of an *932 existing condition and that condition is the fertility and depth of the soil.

• The definition given by the court of a commercial orchard, while it may be correct as an abstract proposition, as applied to the facts in this ease, converts the representation concerning the commercial fruit-raising possibility of the land into one of opinion upon which an action for fraud cannot be predicated. In arriving at a conclusion under this instruction, the jury are' required to speculate as to what will be market conditions over a long period of years, upon the length of life of the trees, upon what constitutes reasonable care and attention during the life of the trees, and upon this basis to determine whether or not a material fact as distinguished from an opinion was misstated by the defendant as an inducement to the plaintiff to purchase the- land in question. The real question involved in the case is whether or not the land is so devoid of plant food and so underlaid with an impervious hardpan, that it was not adapted to raising fruit for the market as distinguished from the raising of fruit for family use.

Judgment reversed.