MacNair

In its general background the ease is like Sacramento Suburban Fruit Lands Co. v. Melin (No. 5671) 36 F.(2d) 907 , this day decided. The, contract which appellee alleges he was fraudulently induced to make was executed February 3, 1920. This suit, brought to recover damages for the alleged fraud, was commenced more than 8 years thereafter, namely, on March 5, 1928. In its answer appellant averred that the cause of action was barred *951 by subdivision 4 of section 338 of California Code of Civil Procedure, which provides that an action for such relief must be brought within 3 years from the “discovery, by the aggrieved party, of the facts constituting the fraud.” At the close of all the evidence it moved for a directed verdict upon this and other grounds, and to a denial of the motion it took exception.

The question we consider is whether, or not, upon the evidence, it should be held as a matter of law that the statute had run. Plaintiff testified that he was 40 years old, had been a farmer all of his life, and that in the latter part of 1919 and the early part of 1920 he was living on a farm near Winnipeg, Canada. At that time he had never been in California and knew nothing…