Lindquist

I concur. While the authorities are not uniform upon the subject, I am of opinion that, where the facts are undisputed, the question as to whether or not a man exercising ordinary care about his own affairs would have discovered that he had been defrauded, when he ascertained the facts that were brought to the attention of the defrauded party, is a question, or inference, of law to be determined by the court, and not an inference of fact to be determined by the jury. I am persuaded to that conclusion by the uniform conclusion of all the courts to which my attention has been directed, except Washington (Noyes v. Parsons, 104 Wash. 594 , 177 P. 651 ), that it is incumbent upon a plaintiff, whose complaint reveals that the fraud practiced upon him occurred beyond the period of limitations, to show in his pleading that he- did not actually discover the fraud until within the statutory period, and the facts and reasons why he did not actually discover the fraud earlier, in order that the court may determine upon the faets pleaded whether or not he should in fact be charged with notice of the fraud, although he might have been actually ignorant thereof. Lady Washington v. Wood, 113 Cal.…

This is another of the Sacramento Suburban Fruit Lands Cases [see Melin Case (C. C. A., No. 5671) 36 F.(2d) 907 ].

The contract of purchase, alleged to have been procured through fraudulent representations, was executed September 29, 1921, and the complaint herein was filed April 24, 1928. The only averment in the complaint to account for the delay is that “plaintiffs did not discover the falsity of -said representations or any of them until January 1928.” Defendant demurred upon 'the ground that the complaint did not state facts sufficient, and particularly because the cause of action was barred by subdivision 4 of section 338 of the California Code of Civil Procedure, which provides that an action of this ‘character must be commenced within three years from the time the aggrieved party discovers the facts constituting the alleged fraud. The demurrer should have been sustained. Lady Washington Cons. Co. v. Wood, 113 Cal. 482 , 45 P. 809 , and see the Melin Case, supra. But in its answer defendant pleaded the same defense, and upon the trial, without objection on its part, plaintiffs introduced evidence of particular circumstances and conditions tending to show why they had not…