Department One Rehearing (Denied, Granted) 55 Cal. 459 at 461.
Appeal from a judgment for the defendant, and from an order denying a new trial, in the Sixth District Court, County of Yolo. Denson, J.
The question asked the witness McCleery (referred to in the opinion) was as follows:
" Question. You have stated that it would not pay to work ore that assayed $ 40 to $ 60 per ton, because you have to pay $ 45 per ton for milling; now, if the company were to put a mill at the mine, say a twenty or forty stamp mill, and proper machinery--hoisting machinery--upon the mine, could the ore not be worked for much less than $ 40 per ton?"
The evidence showed, without any conflict, that the stock was of value, and there was no evidence that the defendant offered to return it. Before a person can rescind a contract, he must offer to return everything of value received under the contract. ( Civ. Code, § 1691; Miller v. Steen , 30 Cal. 402; Gifford v. Carvill , 29 id. 589.
The stock had a market value, and was selling at from fifty cents to a dollara share.
The Court erred in sustaining the objection to the question put by defendant to the witness McCleery. It might be true that a mine whose ores do not contain over $ 60 per ton would be valueless without proper machinery, and yet with proper machinery would be worth millions.
J. C. Ball, and J. W. Armstrong, for Appellant.
S. G. Harper, for Respondent.
The main point urged by counsel on his motion for new trial was that the defendant should have tendered the stock back to Strong. The stock however, was worthless. (The counsel here cited from the testimony in support of this position.)
JUDGES: Myrick, J. Sharpstein, J., and Thornton, J., concurred.
By the Court (in bank, on petition for rehearing):
This case was heard in Department 2 of this Court, and opinion filed August 18th, 1880. Application is made that the case be heard by the Court in bank. In addition to the facts stated in the opinion of the Department, the transcript shows that the defendant, in his answer, alleged that the payee of the note in suit induced defendant to execute the note by fraudulent and false representations as to the value of the mine and its stock, and that the representations were made for the purpose of cheating and defrauding defendant; that he represented the mine and its stock to be of great value, and that $ 10,000 worth of ore was on the dump; whereas, in truth and in fact, the stock and mine were of no value. There was evidence given by the parties relating to this issue; the evidence was conflicting; the Court properly instructed the jury regarding it, and the verdict is conclusive. Hearing in bank denied.