Gamble v. Tripp

Citations

• 99 Cal. 223
• 33 P. 851
• 1893 Cal. LEXIS 643

Syllabus

<p>Bmi, of Exceptions—Genebal Specification of Insufficiency of Evidence— Conflicting Evidence.—Where the only specifications in a bill of exceptions, as to the insufficiency of the evidence to justify the findings, are “ that the court erred in finding that the allegations of the plaintiff’s complaint were true, and all the denials and allegations of the defendant’s answer were untrue, inasmuch as the testimony does not disclose such a state of facts,” and “ that the findings are not borne out by the testimony, fraud, and misrepresentation in law having been proven by the defendant and his witnesses,” such specifications are insufficient to meet the requirements of the code, and the findings cannot be reversed on that ground; neither could they be reversed where the evidence is conflicting, and there is evidence to sustain the findings, even if the specifications were sufficient.</p> <p>Note Given fob Shanes of Stock—Eraud—Rescission—Restitution.—Where the consideration of a note is shares of stock in a corporation, which the maker of the note alleges that he was induced to purchase by fraudulent representations of the payee, and it appears that the shares of stock had a market and supposed real value at the time of the sale, the maker of the note could only rescind his contract by doing so promptly upon discovering the facts entitling him to rescind, and by restoring or offering to restore to the payee of the note everything of value received under the contract.</p> <p>Id.—Delay in Rescission.—Wherein an action on the note, rescission of the contract was sought by the defendant in his answer, and the court found that no offer of rescission was made until after the commencement of the action, and it appears that more than four and a half months elapsed between the time of the defendant’s alleged discovery of fraud and his offer to rescind, he is barred of rescission by the delay, in the absence of an excuse shown therefor.</p>