Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.

         The following facts were alleged in the complaint: The plaintiff owned several hundred tons of wheat lying in the sack in Solano County, part of it north of Putah Creek, and part of it south of that creek. Defendants Ballard and Hall were commission merchants and partners, doing business in San Francisco, and purchasing wheat in Solano County, and defendant Hawkins was their agent in Solano County. Defendant Hawkins, as such agent, contracted with the plaintiff to buy his wheat, that part of it north of Putah Creek for twenty-seven dollars per ton, and that part south of Putah for twenty-seven and one-half dollars per ton. Plaintiff and defendant Hawkins told Hall what the contract was, and he then drew up the following contract in writing:

         " I hereby sell to V. Hawkins, from eleven to fourteen hundred tons of wheat in the Wolfskill Ranch; the part lying on the south side Putah at 1.27 1/2 (one twenty-seven and half cts.), and the part on the north side of said creek at 1.27 (one twenty-seven cts.), on ranch; said grain to be sacked in good order.

         " June 27, 1867."

         The plaintiff did not read the writing or hear it read, but defendants Hawkins and Hall told him it was like the verbal agreement, and supposing they told him the truth, he signed it. They knew the writing was not like the verbal agreement, and told him it was, to defraud him, and to induce him to sign it. The defendant Hawkins assigned the written contract to the other two defendants, and the plaintiff delivered them three hundred and seventy tons of wheat on the south side of Putah Creek, and four hundred and twenty-five tons on the north side. That they paid him for the wheat at the price fixed in the writing, and he receipted for it, telling them that if it was not right he should ask for a correction. Upon going home, he discovered the fraud that had been practiced on him, and asked them to rectify it, but they refused. The difference between the price as agreed on, and that fixed in the writing, was $ 1463.62. The plaintiff was illiterate, and scarcely able to read writing. The plaintiff asked to have the written contract and receipt declared void, and for judgment for the sum of $ 1463.62. The defendant demurred to the complaint, the court sustained the demurrer, and judgment was rendered for the defendants. The plaintiff appealed.

         COUNSEL

         Whenever the contents of a paper are wrongly stated, courts can set it aside and set up the correct paper. (See Vorley v. Cooke, 1 Giff. 234; Donaldson v. Gillett, L. R., 3 Eq. 277; Kerr, 50.)

         Even an innocent mistake becomes a fraud, if, when discovered, it is not corrected. (Kerr, p. 67, and authorities cited.)

         The doctrine of caveat emptor does not apply to cases of positive fraud and misrepresentation. Our courts have held the same views. (Belden v. Henriques , 8 Cal. 67.)