May

This case is before the Court by reason of diversity of citizenship. Two causes of action are pleaded. The first is entitled “Specific Performance” and the second is on action for rescission of a purchase and sale of an oil royalty be *332 cause of fraud allegedly practiced upon the plaintiff by defendants.

There is no showing of fraud. Judgment must, accordingly, be for defendants upon the Second Cause of Action.

The First Cause .of Action presents a different problem. It is cast in the form of an action for specific performance of a contract. Defendants sold plaintiff an oil royalty. Although there was no fraud, plaintiff very shortly expressed dissatisfaction with his purchase and threatened defendants with legal action which, in the light of all the conversations and correspondence, defendants might well have believed to have been either threatened action for rescission based on breach of a warranty, an action for damages on the theory of fraud, or an action for relief based upon a theory of failure of consideration. The evidence at the trial does not show that any of such causes of action actually existed but it does show that although an exact theory was hot definitely…