Sacramento Suburban Fruit Lands Co. v. Johnson

An instruction was requested in this case on the question of intent to defraud or deceive similar to the request considered by this court in Sacramento Suburban Fruit Lands Co. v. Melin, 36 F. (2d) 907, just decided. The request was refused, and no instruction .of like import was given in its place. For this error the judgment must be reversed.

There was likewise error in the instruction on the question of the statute of limitations. The Code of Civil Procedure of California prescribes the time within which actions must be commenced. Subdivision 4 of section 338 reads as follows: “Within three years: * * * An action for relief on the ground of fraud or mistake. The eause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” The following instruction relating to the discovery of the fraud was given: “Moreover, he is told by the circular that to bring an orchard to bearing takes five to seven years. He has a right to test it out. He wouldn’t be obliged to grasp and believe anybody’s statement if he heard it, that it was not adapted to commercial orchards, and he would have five to seven…