Watts v. White

Citations

• 13 Cal. 321

Syllabus

<p>Gehebally a party seeking to rescind a contract, must restore the other party to the condition in which he was before the contract was made.</p> <p>Plaintiff and defendant were partners in the purchase of mining claims. Defendant was the active partner, and acquainted with the value of a certain claim owned by the firm, plaintiff being ignorant of its value. Plaintiff sold his interest in this claim to defendant for greatly less than its value. Held: that in a suit by plaintiff against defendant, to set aside this sale for fraud and for an account, etc. an averment that defendant is indebted to plaintiff, on the account, in a sum greater than that paid by defendant for the mining claim, is, in effect, an offer to place defendant in statu quo, as per tin rule of law.</p> <p>Where a suit for real estate is brought in the wrong county, a motion to change the venue, and not demurrer, is the proper remedy. And in such case there is no discretion in the Court, the change being matter of right.</p> <p>The right to try particular eases m particular counties is a mere privilege, which may be waived. It is not matter in abatement of the writ. The privilege must be claimed, by motion to change the venue, at the proper time and place.</p> <p>The Court is not bound of its own motion to change the venue. Vallejo v. JRandall overruled so far as it conflicts.</p> <p>The late Superior Court of San Francisco had no jurisdiction of a suit affecting real estate situated outside the city limits. If this point arose on the complaint, it would be fatal. And, probably, if the fact that the property was beyond the city, appeared anywhere in the record, it would be fatal.</p> <p>Mining claims are real estate within the Practice Act defining the venue of civil actions.</p> <p>The Superior Court of San Francisco had jurisdiction of a suit to settle the accounts of a partnership formed for the purchase of mining claims, where both parties resided in said city; but could not by its decree aff