"A party will always be held to make good his statement in the form in which he makes it. If he states a thing as true in general terms without qualification, then he is presumed to do so upon his own knowledge, or at his own peril, and must make good his assertion."

In Groppengiesser v. Lake, 103 Cal. 37, 42, 36 Pac. 1036, 1037, an action for the rescis sion of a contract because of fraudulent representations, the court said:

"It does not matter that defendant did not know that what he stated was untrue, or that he believed it to be true."

[3, 4] Whether or not appellant's contention be correct, it is not sufficient for the plaintiff to show that the financial report contained false statements, but he must prove that he placed his reliance upon them in making the purchase, although he need not show that they were the sole inducement. Macdonald v. de Fremery, supra. The plaintiff testified that he made the purchase on the information obtained from the published reports, the statements of the president at the stockholders' meeting, and the representations made by the defendant at the time of the transaction. On cross-examination he testified as follows:

is all Greek to me. Q. Then you just went
by what you saw here at the top? A. Up here,
the way I seen it was; that is the way we took
it, the Newman Bank was so much that they
had in, etc., and the First National Bank, we
was considering the First National Bank; it
was much better than the Newman Bank. Q.
Now, that also applied to the other issues in
this paper, your testimony applies to all the
other issues in this paper which have been in-
troduced here in evidence? A. They have."

In connection with this testimony, the
court may have logically considered the fact
that the only misrepresentations averred by
the plaintiff were those alleged to have been
made at the very time of the transaction.
Since the plaintiff did not allege that he was
influenced in making the purchase by the
published reports, it is fair to infer that he
did not have such reports in mind when he
filed his answer to the cross-complaint, and
from this inference, considered in connec-
tion with the uncertainty of his testimony
relative to his knowledge of the contents of
the reports, it was not unreasonable to con-
clude that he did not have them in mind at
the time of the purchase. While it cannot
be said that the evidence is insufficient to
support a finding that the published reports
were among the inducements which caused
the plaintiff to buy the stock, neither can it
be said to be such as to compel a finding to
that effect.

[5] Appellant urges that, since the stock was of no intrinsic value (whether or not it had a market value not appearing from the record), there was a total want of consideration for the contract, and that, even if both parties were mistaken as to its value, appellant was entitled to a rescission on the ground of mutual mistake. This contention finds support in the case of Neale v. Wright, 130 Ky. 146, 112 S. W. 1115. The case cited, however, seems to be in conflict with the decisions of this state and with the great weight of authority in other states. The consideration for the payment of the purchase price was 10 shares of bank stock, not the value thereof. There was no mistake as to what each party was to receive. In Sutro v. Rhodes, 92 Cal. 117, 28 Pac. 98, the plaintif sought to recover money paid for worthless bonds; both parties believing them to be valuable at the time they were transferred. The court said:

"Q. I want to ask you if you have an independent recollection now of having read the financial report of the First National Bank of Newman, in the West Side Index, a newspaper, published on the 22d day of July, 1919? A. I am reading it and I have read all the issues of the Index and I take an interest to look at the way the bank was progressing; I read them all; now, if you ask me if I read a certain number, I read them all, because I was used to reading them. Q. You have no independent recollection of having read this particular number at that time? A. I have read them all. As I say, I am reading the whole papers very carefully and every issue almost, and, if I miss an issue, I will go into the office and get it. Q. Now, the only recollection that you have as to having read these various reports published in these various issues of this paper which has been introduced here in evidence is that you do read the paper, and that is all the recollection you have? A. 1 do read them all very carefully; yes. Q. That is the only reason that you have for believing that you read this particular one, is that correct? A. Well, that is just the way I am expressing myself. Q. Let me ask you what was the report of the total resources published *July 21, 1919? A. It was over a million. Q. Will you discard that paper; now, what was the total liabilities at that time? A. I was just reading, taking the figures of the Newman Bank and the First National Bank, to see how they were getting up. Q. If this total published here shows $993,751.20 instead of away over a million, as you assumed it to be, why you were not so much influenced by this statement as you thought you were? "Where a party obtained what he contracted A. Ain't it over a million? I don't remember; for, he cannot avoid his contract on the ground I read one below, one million; ain't this over that what he received is less valuable than he a million, $1,161,000, that is what I was going supposed or that it has no value at all, unless by. Q. That is loans and discounts. A. That he shows fraud or mistake as to the subject

* * *

*

as

"In the case at bar, as in Otis v. McCullum, 92 U. S. 447, the appellants 'got exactly what they intended to buy, and did buy'that is, certain written instruments."

To the same effect is the decision in Harvey v. Dale, 96 Cal. 160, 31 Pac. 14:

S

(211 P.)

matter of the contract." Black on Rescission | other consideration than support of her brothand Cancellation, § 166.

In Peck Colorado Co. v. Stratton (C. C.) 95 Fed. 741, where the defendant sought to avoid payment of the purchase price of stock which was worthless, the court said: "The stock was the definite thing that he purchased, and he received the consideration selected by him. As distinguished from the consideration, the defendant seeks to set up the

er and love and affection for grantee, that the property was all she possessed, and that she had acquired none since, held sufficient, in the absence of evidence that grantee furnished any support or parted with anything since the deed was made, to support a judgment for plaintiff.

3. Fraudulent conveyances 80-Transfer of all of one's property in consideration of support of one whom grantor is not bound to

motive of the contract, and then to show that support is void.
his expectation of deriving valuable benefits
from this purchase *

串串

A transfer of all of one's property in conhas not been real-sideration of the future support of one whom grantor is not obligated to support, as well as a transfer in consideration of the future support of grantor, is void.

ized; but such motive is not to be confounded with the consideration of the contract."

"The rule of caveat emptor applies as well to the sale of stocks as of chattels. The vendor can only be made liable for misrepresentation or fraud. Here, although the stock was worthless, there is not sufficient proof of any representation of its value, or any act that would amount to fraud either at law or in equity." Renton v. Maryott, 21 N. J. Eq. 123.

See, also, Hunting v. Downer, 151 Mass. 275, 23 N. E. 832; Long v. Symonds, 216 Mass. 595, 104 N. E. 476; Jones v. Garlington, 44 S. C. 533, 22 S. E. 741; Rothmiller v. Stein, 143 N. Y. 581, 38 N. E. 718, 26 L. R. A. 148.

It is not contended that, if the transfer of the stock is binding upon plaintiff, he is not liable to the defendant for the assessment paid by the latter. The payment was not voluntary, but under compulsion. 6 Fed. Stat. Ann. (2d Ed.) p. 723 (U. S. Comp. St. ga 9689). See People's Home Savings v. Stadtmuller, 150 Cal. 106, 109, 88 Pac. 280. The judgment is affirmed.

We concur: BURNETT, J.

asked

plaintiffs as to defendant's testimony before referee concerning matters as to which she was not asked held improper as not crossexamination.

In an action to set aside a fraudulent transfer of property by one defendant to the other, an objection to a question, asked plaintiff on cross-examination, as to whether he remembered that grantor, as to whose testimony before

court referee he had testified on direct examination, testified that she had transferred the property many years before, but had never recorded anything, was properly sustained as not cross-examination, where she was not asked when the deed was made or whether it was ANDERSON, Judge pro tem.; recorded, but was asked questions regarding her assets before and after it was made. 6. Appeal and error 1048(6)—Question on cross-examination of plaintiff as to defendant's transfer of property without recordation held not prejudicial to defendant.

CEINAR v. HAWES et al. (Civ. 4299.) (District Court of Appeal, First District, Division 2. California. Nov. 18, 1922.)

In an action to set aside a fraudulent transfer of property from one defendant to another, sustaining an objection to a question asked plaintiff on cross-examination as to whether he remembered that grantor, as to

1. Fraudulent conveyances 263 (5)-Complaint, although not directly alleging facts whose testimony before a referee he testified showing conveyance of all of grantor's prop-on direct examination, testified that she transerty, held sufficient.

In action to set aside a fraudulent transfer of property, a complaint, not directly alleging the facts, but containing such allegations that the inference was strong, that the conveyance transferred all of grantor's properties, and that she had not since been the owner of any, held sufficient.

2. Fraudulent conveyances

297-Evidence held sufficient to support judgment setting aside transfer as fraudulent.

In an action to set aside a fraudulent transfer of property, the judgment roll in a former case and grantor's oral testimony before a referee that she transferred the property for no

ferred the property many years before, but never had anything recorded, was not prejudicial to defendant, as an affirmative answer would have strengthened plaintiff's case, by tending to show that the transfer was a secret, while defendants would neither have been assisted nor injured by a negative an

swer.

7. Judgment 256(2)-Finding of no consideration except love and affection and future support of grantor's brother held sufficient to support judgment setting aside convey

ance.

In an action to set aside a fraudulent transfer of property, the court's finding that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 211 P.-54

there was no consideration therefor except erty described in the complaint for the suplove and affection for grantee and the future port of her brother and for the love and support of grantor's brother was sufficient to affection which she bore the grantee and for support a judgment for plaintiff, whether treat- no other consideration; and that she fured as a finding of no consideration or that ther testified that the property conveyed the consideration was the support of a member of grantor's family; the case being ruled constituted everything she possessed, and by Civ. Code, § 3442, in either event. that she owned nothing and had nothing since. There was no evidence that the gran

Action by William Tracey Ceinar against Mary E. Hawes and another. Judgment for plaintiff, and defendants appeal. Affirmed. Edward J. Lynch, of San Francisco, for Baxter, 19 Cal. App. 238, 125 Pac. 359. appellants. In other jurisdictions the rule is the same when, as here, the support to be furnished is to be furnished to some person whom the grantor is under no legal obligation to support. No reason is presented why a different rule should be declared in this w. 944, 21 Ky. Law Rep. 664. state. Brown et al. v. Moore et al., 52 S.

STURTEVANT, J. The plaintiff commenced an action against the defendants to obtain a judgment declaring a certain trans fer of real and personal property fraudulent and to obtain a decree setting the same aside. did not know of the existence of the indebt[4] The trial court found that the grantee Judgment was entered in favor of the plain-edness of the grantor. tiff, and the defendants have appealed.

(211 P.)

Mary E. Hawes, for said Elizabeth E. Burke,! W. H. Carlin, of Marysville, for respondand the future support of the father of said ents. Elizabeth E. Burke."

Whether said finding be treated as a find- BURNETT, J. The appeal is from a judg. ing that there was no consideration, or as a ment in favor of defendants and the record is finding that the consideration was the sup- presented by the alternative method. Appelport of a member of the family of the gran-lants have filed herein only what is denomtor, we need not determine. In either event inated "Appellants' Opening Brief." Therethe case is ruled by the provisions of section in they have not set out the pleadings or the 3442 of the Civil Code. evidence in the case, but have contented themselves with the discussion of the legal question whether a vendee by failure to make pay

The judgment is affirmed.

We concur: LANGDON, P, J,; NOURSE, J.ments at the time specified in a written con

LEBALLISTER et al. v. MORRIS et al.
(Civ. 2524.)
(District Court of Appeal, Third District,
California. Nov. 18, 1922.)

1. Vendor and purchaser 95 (2)-Default
in payment of Installment under land con-
tract not ground for forfeiture where prompt
payment impliedly waived.

tract for the sale of real property, wherein time is made of the essence thereof, does not subject himself to the penalty of forfeiture. The consideration, though, as thus presented is of no assistance in the absence of an exposition of the particular facts of the case. However, what has been omitted by appellant has been supplied by respondents, and as the statement by the latter is not denied by the former, we may virtually adopt it as a proper portrayal of the real situation. On August 8, 1919, a written agreement of the sale and purchase of a tract of land near Gridley, in Butte county, for the sum of $20,000 was executed by the parties herein. Four thousand dollars were paid by 'respondents at that time, and it was agreed that the balance should be paid in 32 consecutive installments of $500 each on February 8 and

Where an installment under à contract for the sale of realty in which time was made of the essence was payable at a bank on August 8th, and on August 9th and 10th plaintiffs made demand for payment forthwith, and defendant made payment August 10th, which payment the cashier of the bank accepted before he was told by plaintiff not to do so, prompt payment on August 8th was impliedly waived and a for-August 8 of every succeeding year until paid, feiture on such ground would not be sustained. 2. Vendor and purchaser. 101-Where prompt payment of installments under land contract has been waived, right of forfeiture for future delays can only be restored by special notice.

Where by the acceptance of partial payments for the sale of realty after they became due, there has been a waiver of performance in accordance with the terms of the contract, the right of forfeiture for a future delay in payment is temporarily suspended and can only be restored by giving a definite and speIcial notice to that effect.

3. Appeal and error 197(7)—Objection to pleadings cannot be made for first time on appeal.

In a suit to declare a forfeiture of an installment land contract for failure to make prompt payments, an objection that defendants did not plead a waiver of promptness of payment cannot be made for the first time on appeal.

with interest upon deferred payments at 6 per cent. per annum. The payments were to be made at the Gridley branch of the Rideout Bank at Gridley, and the bank was to receive the moneys, give receipts therefor and hold the deed, which had been placed in escrow. On February 8, 1920, respondents made the first payment of the balance amounting to $980. They made the next payment on August 9 of $965. The next payment, which became due February 8, 1921, respondents paid in two installments, $550 on February 8, and $416 on August 1, 1921. These payments were received by the bank and accepted by appellants. The next installment became due and payable on August 8, 1921. On the next day, appellants demanded payment of this money from respondents, who then had only $200, which they offered to pay; this appellants refused to accept on account, and threatened to ter minate the contract. On the following day, as soon as the Bank of Gridley was open for

Appeal from Superior Court, Butte County: business, respondents went to the bank and H. D. Gregory, Judge.

Action by James G. Leballister and another against John Morris and another, to cancel an agreement for the sale of real estate. Judgment for defendants, and plaintiffs appeal. Affirmed.

paid to the cashier for appellants the sum of $935.35, the total amount then due. This money was received by the cashier who had charge of this account, and a deposit tag was made out in the name of appellants and as respondent, John Morris, was turning away from the counter a telephone message came

George E. Gardner, of Oroville, for appel- from appellants' attorney to the cashier not

lants.

to receive the money, but it had already been

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

paid in, and said respondent left it there. I Thereafter, upon the same day, appellants served upon respondents a written notice of cancellation of the instrument, but respondents refused to surrender possession of the premises, and the action was brought for an annulment of said agreement, for the restitution of said premises, and for damages in the sum of $2,000 for breach of contract. The trial court found against plaintiffs on all the material issues, and particularly as to said belated payment that

said last two payments making a total of $966, which constitutes and was the total amount which should have been paid on February 8, 1921. However they were paid in two installments as aforesaid, and by plaintiffs with full knowledge of the respective times of payment, namely, February 8, 1921, $550, and August 1, 1921, the balance in the sum, of $416, accepted and received from defendants and credited and applied upon said written agreement as full payment of the principal and interest which became due and payable under said agreement on the 8th day of February, 1921; the next payment, coming due and pay"Time is of the essence of said written agreeable under said contract on the 8th day of ment and the sum of $500 and interest under August, 1921, was paid by defendants to plainsaid agreement became due and payable by and tiffs at said bank in the manner and at the from defendants to plaintiffs at the Rideout time hereinbefore in these findings found and Bank in the city of Gridley, county of Butte, specified." state of California, on the 8th day of August. 1921, under the terms of said written agree[1] We must assume that these findings are ment, said money was not paid on said 8th day of August, and on the 9th day of August, supported by the evidence, and it follows that plaintiffs demanded of defendants that they there was no forfeiture by defendants upon forthwith make said payment at said bank, either of two theories. In the first place, there and again on the 10th day of August, 1921, was an implied waiver as to the prompt payplaintiffs again demanded of defendants at the ment of the installment due on August 8 by the hour of about 8 o'clock a. m. of said day that receipt for plaintiffs on August 10th of said they, defendants, forthwith pay said money; and thereafter, at the hour of 9:30 a. m. of amount by the cashier, and also by the demand said day, defendants went to said city of Grid-of plaintiffs, made on August 9th and August ley, and then and there paid into said bank for said plaintiffs at said bank the sum of $935.35, being the full amount of the payment which became due and payable under said written agreement on the 8th day of August, 1921, with interest as specified in said agreement up to and including the 10th day of

August, 1921; that said money was received

by the assistant cashier of said bank, and a

deposit tag made out in the usual way for the purpose of depositing said money to the credit of plaintiffs upon the books of said bank. Plaintiffs did, on said 10th day of August, 1921, but not until the hour of about 4 o'clock p. m. of said day, and long after said money had been paid into said bank as aforesaid, make, sign, and serve upon defendants a written notice purporting to cancel, annul and terminate said written agreement."

"From and after the execution of said con

10th, that defendants forthwith pay the money. After such demand and an immediate compliance with it plaintiffs could not stultify themselves by insisting that there already had been a forfeiture by reason of the failure to pay on the 8th of August.

[2] It is also apparent from the foregoing findings that the case falls within the principle enunciated by the authorities that where, by the acceptance of partial payments after they became due, there has been a waiver of strict performance in accordance with the terms of the contract, the right of forfeiture for a future delay in payment is temporarily suspended, and can only be restored by giving a definite and special notice of an intention to that effect. Boone v. Templeman, 158 Cal. 290, 110 Pac. 947, 139 Am. St. Rep. 126; Myers

In this connection the trial court further v. Williams, 173 Cal. 301, 159 Pac. 982; Pearfound: son v. Brown, 27 Cal. App. 125, 148 Pac. 956. [3] There is no merit in the point that detract or agreement on the 8th day of August, fendants did not plead a waiver. Respond1919, defendant duly and regularly made pay-ents in their brief have set out a portion of ments of principal and interest to plaintiffs the answer, which clearly meets this objecat the Gridley Branch of the Rideout Bank in the city of Gridley, county of Butte, state of California, as therein required as follows, to wit:

tion. Besides, as far as we are advised, no such objection was made at the trial, and appellants should not be heard to make it now for the first time.

The judgment is affirmed.

We concur: FINCH, P. J.; HART, J.