The above disposes of the objections urged to the complaint herein by the flume company.

It follows from the foregoing that there was error in sustaining the demurrer of the defendant company to the complaint herein, and the judgment is, therefore, reversed, and the cause remanded with a direction to the court below to overrule the demurrer and permit the above-named defendant to answer.

Ordered accordingly.

BEATTY, C. J., PATERSON, J., and SHARPSTEIN, J., concurred.

WORKS, J., did not participate in the decision of this

cause.

MCFARLAND, J., dissenting.—I dissent. The complaint is based upon the contract between the owners of the property and the original contractor, Johndrew. But as that contract was not recorded, it was, under section 1183 of the Code of Civil Procedure, as amended in 1887, "wholly void." In such a case, labor and materials shall be deemed to have been done and furnished "at the personal instance of the owner," and a lien can be had "for the value thereof." (Stats. of 1887, p. 153.) But the complaint was not drawn upon that theory; and therefore I think that the demurrer to it was properly sustained, and that the judgment should be affirmed.

Moreover, in my opinion, a material-man cannot have a lien for exploded powder after, like the "unsubstantial pageant" in the Tempest, it has "melted into air, into thin air." It is true that this point is not much argued in the briefs, but it seems to be necessarily involved in the demurrer.

[No. 12848. In Bank.-January 29, 1889.]

J. M. MARRINER, RESPONDENT, v. G. L. DENNISON, APPELLANT.

VENDOR AND PURCHASER--EXECUTORY CONTRACT OF SALE-DESCRIPTION--PLEADING EVIDENCE.-The rule as to particularity of description required in executory contracts to convey land is extremely liberal in favor of their sufficiency. An incomplete description may be aided by extrinsic parol evidence to apply it to the subject-matter, provided the land can be thereby identified, and a new description is not introduced into the contract. But the complaint must aver the necessary extrinsic matter, to show in connection with the description what particular land was intended; and it is not sufficient in an action for damages for non-performance of the contract to allege that by an imperfect description contained in the contract the parties intended to convey certain property, nor can such contract be received in evidence under such an averment.

ID.-FRAUD RESCISSION-DAMAGES.-A purchaser cannot rescind a contract releasing the vendor from an executory contract of sale, and substituting a new contract for other property, merely on account of fraudulent representations in procuring such release and substitution, unless damage or injury is shown, to authorize such rescission; nor can he maintain any action for damages, in such case, when, for aught that appears, he might have been benefited rather than injured by the second contract.

ID.-VALUE OF SUBSTITUTED PROPERTY-PLEADING.-If an action is brought for damages for fraud in procuring a release of a first contract of sale, and in indorsing a new contract for other property, it is necessary to allege the value of the substituted property as well as that of the property first agreed to be sold, in order to show that any damage has accrued from the fraud. If the action is for damages for breach of the first contract, and not for the fraud, the fraud should not be alleged by way of anticipation of an expected defense. In any view of the cause of action, if the complaint avers a rescission of the second contract for fraud, it must show damage from the fraud to justify the rescission, and must aver the value of the substituted property.

ID. SELLING PROPERTY TWICE-FALSE REPRESENTATIONS.-False representations by a vendor as to his fears respecting a criminal prosecution and imprisonment for selling property twice are not such representations as a purchaser can rely upon, and are not ground for rescission of a contract substituting other property for that first contracted to be sold. But a misrepresentation as to the fact that the property had been before sold is ground for such rescission, provided damage resulted from the substitution of other property for that first contracted.

ID.-DUTY OF VENDOR TO DISCLOSE KNOWLEDGE EVIDENCE OF FRAUD.It is not the duty of the vendor to disclose to the vendee his knowledge of the proposed location of a railroad, affecting the value of the

property sold, but when he seeks to relieve himself by rescission of the contract of purchase, and fraud is charged in procuring such rescission, the fact of such knowledge by the vendor should be considered as a material circumstance tending to show fraud, as furnishing a motive for the attempt to relieve himself from his contract.

ID.-EVIDENCE-PAROL PROOF.-In an action for breach of a contract of purchase, where the complaint alleges that a contract which the defendant represented he had made before the contract with plaintiff was executed was in fact made afterward, the evidence of the second contracting party is relevant and material to prove the allegation; and he may testify by parol that such contract was made when the question is not as to the contents of a writing, but as to whether one has been made or not, and comes collaterally in issue. EVIDENCE-CERTIFIED COPIES OF INSTRUMENTS.-It is error to admit in evidence certified copies of a deed and contract without accounting for the absence of the originals.

ID. IMMATERIAL EVIDENCE-DISPROVING PLAINTIFF'S CASE.-Evidence on the part of the defendant to disprove what the plaintiff has failed to allege and prove, and which was necessary to sustain his cause of action, is properly excluded as immaterial. INSTRUCTIONS-APPLICABILITY TO ISSUES.-A correct instruction upon a matter with respect to which the pleadings are silent, and upon which no issue is presented by them, is properly refused.

ID. INSTRUCTION PARTLY ERRONEOUS.-An instruction asked as a whole, which is erroneous in part, is properly refused, though another part of the instruction be correct.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

W. H. Clark, for Appellant.

The contract upon which the suit was brought is within the provisions of the statute of frauds, and the memorandum of agreement set forth in the complaint is insufficient to satisfy the statute. (King v. Wood, 7 Mo. 389; Holmes v. Evans, 48 Miss. 247; 12 Am. Rep. 372; Hudson v. King, 2 Heisk. 560; Clark v. Chambers, 112 Mass. 19; Holmes v. Johnston, 12 Heisk. 155.) The same elements are necessary to constitute fraud, whether relied upon as a defense to a contract, or as the foundation of an action for damages. (King v. Eagle Mills, 10

Allen, 548; Wilder v. De Con, 18 Minn. 470.) There must be a false representation of a material fact made to one who, believing it to be true, acts upon it to his injury. (Vernon v. Keys, 12 East, 637.) For aught that appears, the second contract which plaintiff claims to have rescinded upon the ground of fraud was advantageous to him. (Currey v. Keyser, 30 Ind. 214; Purdy v. Bullard, 41 Cal. 444; Commissioners S. J. v. Younger, 29 Cal. 176.) The copies of the deed and contract were improperly admitted in evidence, the absence of the originals not being accounted for. (Code Civ. Proc., sec. 1951; Brown v. Griffith, 70 Cal. 14.) Mere passive concealment, where there is no fiduciary relation between the parties, and no legal obligation to make disclosures, is not fraud. (Laidlaw v. Organ, 2 Wheat. 178; Smith v. Countryman, 30 N. Y. 655; Paddock v. Strowbridge, 29 Vt. 470.)

M. C. Hester, and Enoch Knight, for Respondent.

The uncertain description might be made certain by extrinsic evidence. (2 Parsons on Contracts, 72; Lick v. O'Donnell, 3 Cal. 63; 58 Am. Dec. 383; Stanley v. Green, 12 Cal. 163; McConnell v. Brillhart, 17 Ill. 354; 65 Am. Dec. 661; Howe v. Dewing, 2 Gray, 476; Little v. Little, 36 N. H. 224; Barry v. Coombe, 1 Pet. 640; Hawley v. Blackford, 1 Dana, 1; Couch v. Meeker, 2 Conn. 302; 7 Am. Dec. 274.) A contract may be rescinded when the consent thereto has been obtained through fraud of the other party. (Civ. Code, secs. 1572 and 1689.)

WORKS, J.-Action by the vendee for damages for the breach of a contract to convey real estate.

The memorandum of agreement to convey was lows:

as fol

"This agreement made this day between G. L. Dennison, of Los Angeles, and J. U. Marriner, of Vineland, California, is as follows:

"Said Dennison agrees to convey to said Marriner

lots one, two, thirty-three, thirty-four, sixty, and fifty-nine in his subdivision of the Magee tract, and for same six lots said Marriner agrees to convey to said Dennison the ten acres with new house and improvements on same built by him, and lot number fifty-two, building lots in Malden, Massachusetts, bought of E. S. Converse, size of lot 6,440 square feet, viz., 572 feet by 115 deep."

It is alleged in the complaint that by this agreement it was intended by the parties thereto that the defendant was to convey to plaintiff within a reasonable time certain real estate in Los Angeles County, of which he then owned the equitable title, and which is specifically described; that plaintiff was ready, willing and able to comply with the agreement on his part, and tendered a deed of conveyance to defendant as provided therein, and demanded a deed for the property. The complaint further alleges, in substance, that defendant represented that he could not comply with the contract, for the reason that prior to the execution of said agreement he had contracted to sell the land to another party; that he supposed the party had abandoned his purchase, but now he was insisting upon holding him to the contract, and that he, defendant, further represented to plaintiff that "he was in danger of indictment and criminal prosecution for selling the said lots to him after he had sold them to said other person, and that he was so fearful of being sent to the state prison for said offense that he could not sleep at night," and then proposed to plaintiff to deed him other lots if plaintiff would release him from said contract; that plaintiff was unwilling to release him, but defendant then, and at divers subsequent interviews, made and repeated said representations with so much earnestness and apparent sincerity, and manifested such real fear of said criminal prosecution, that plaintiff, then believing defendant's said statement and representations to be true, consented to take said other lots in lieu of those contracted for; that the representa