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exemplary damages in this state would not be allowed; and we are not inclined, in view of the reasons given for the decision in that case, to extend, by implication or loose reasoning, the power of a jury to assess damages by way of punishment under the permission of the statute to assess exemplary damages. This question of exemplary damages is one that has called forth a great deal of discussion by the courts, but we are inclined to think that it was the intention of the legislature, in granting the jury the right to assess this peculiar, and not very welldefined, character of damages, to grant them only the right to assess actual damages, which could not be assessed, in the absence of this provision, under the general laws governing attachments. We do not mean by the term "actual damages" the actual damages expressed by the statute, of course,-such damages as could be definitely determined as the actual loss which the debtor would incur by reason of the attachment, and which loss could be determined or computed,-but an undetermined loss and damage, which is no less actual by reason of its indeterminate character, such as damage to reputation, damage to pride and to feeling, and damage of that character, some of which, it is true, are more or less sentimental, but that it never was the intention of the legislature to place in the hands of the jury the power, without any data whatever, to assess an arbitrary punishment against an attaching creditor, for the mere purpose of punishing such creditor, or as an example to others. One of the most comprehensive and exhaustive opinions which has been handed down on this subject is that of Judge Greene, of the supreme court of West Virginia, in Pegram v. Stortz, 31 W. Va. 220, 6 S. E. 485. There, under a statute which is fully as broad, if not broader than ours, the court held, after a searching investigation and review of all the authorities, that the term "exemplary damages" did not comprehend damages by way of punishment. In summing up the opinion, the court, in this case, says: "But, in my judgment, the decided weight of reason, as deduced from these decisions, is opposed to the allowance to the plaintiff, in any case, of any but compensatory damages, and that in no case should any damages be awarded the plaintiff, not as compensation to him, but as punishment of the defendant. In most of the cases above cited the courts have not reasoned at all on the subject, but they have simply announced views of the law; and the language used by them has very generally been so indefinite as really to furnish no safe conclusion as to what was thought by the court of the question we are discussing." With this view of the law, which we are satisfied is the correct one, the instruction above cited was manifestly erroneous.

The motion of the defendants for a nonsuit in this case should have been granted also on other grounds. There was no evidence whatever adduced showing any malice on v.40P.no.6-25

the part of the plaintiff in the attachment proceeding. There was no disposition manifested on the part of the plaintiff to injure the defendants, but the whole record shows that the plaintiff carefully and cautiously examined into the standing of the defendants before this action was commenced; that they employed attorneys, not only to examine the law, but the facts of the case in relation to the standing of the debtor, defendant in the attachment proceedings, and that when the action was commenced it was upon the advice of their attorneys, with a full knowledge of all the facts in the case. That one firm of attorneys resided in Portland, and the other in Port Townsend, does not affect the case, one way or the other; and it is well-established law that probable cause is a question of law, this far, at least, that probable cause will be presumed when the action has been commenced by the advice of attorneys to whom have been submitted all the facts in the case. In Burton v. Railway Co., 33 Minn. 189, 22 N. W. 300, the court says: "What facts, and whether particular facts, constitute probable cause, is a question exclusively for the court. What facts exist in a particular case, where there is a dispute in reference to them, is a question exclusively for the jury. When the facts are in controversy, the subject of probable cause should be submitted to the jury, either for specific findings of the facts, or with instructions from the court as to what facts will constitute probable cause. These rules," says the court, "involve an apparent anomaly, and yet few, if any, rules of the common law rest upon a greater unanimity or strength of authority"; citing many authorities. In this case there was no controversy as to the question whether this action was brought by the advice of counsel familiar with the facts, and it must be conceded, then, that probable cause or reasonable cause existed for the bringing of the action. Now, our statute provides that the plaintiff may recover, if he shows that the attachment was wrongfully sued out, and that there was no reasonable cause to believe the ground upon which the same was issued to be true, the actual damages. Under the statute it is necessary, before a judgment can be obtained on an attachment bond, even for actual damages, that it should appear in the allegations of the complaint, and be estab lished by proof, not only that the attachment was wrongfully sued out, but that there was no reasonable cause to believe the ground upon which the same was issued to be true. A reasonable ground is nothing but a probable cause, and if it be conceded that the probable cause existed, by reason of the fact that the action was brought by the advice of the attorneys to whom the facts were submitted, then it could not be very well established that the action was brought without reasonable cause; and as no actual dam

ages could be recovered, under the statute, no exemplary damages could be recovered, under the ruling of this court in Helfrich v. Meyer, 39 Pac. 455. It was also held there that the costs of the original action could not be recovered in an action upon the attachment bond; citing Crockery Co. v. Haley, 6 Wash. 302, 33 Pac. 650.

Many other questions have been raised in this case, some of which, at least, we think are fatal to the respondent's case; but for the errors here commented upon the judgment will be reversed, with instructions to the lower court to grant the nonsuit asked for by the defendants.

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An unqualified judgment of reversal remands the cause for a new trial without an express direction to that effect.

Motion for modification of judgment. Denied.

For former opinion, see 40 Pac. 21.

PER CURIAM. Respondent asks us to so modify the judgment herein as to give express direction that the cause be remanded for a new trial. Such modification is unnecessary, since the effect of the unqualified reversal is to remand the cause for a new trial. Stearns v. Aguirre, 7 Cal. 443; Argenti v. San Francisco, 30 Cal. 459; Ryan v. Tomlinson, 39 Cal. 639.

RANDALL v. DUFF et al. (No. 15,758.) (Supreme Court of California. May 14, 1895.)

JURISDICTION OF SUPREME COURT.

Under Const. art. 6, § 4. giving the supreme court jurisdiction in cases at law only where the demand, exclusive of interest, amounts to $300, the court has no authority to review an order made after final judgment, taxing a bill of costs of less than that amount.

Department 2. Appeal from superior court, Humboldt county; G. W. Hunter, Judge. Action by A. W. Randall against Julia R. Duff and others to quiet title. Const. art. 6, § 4, grants the supreme court jurisdiction in cases at law only where the demand, exclusive of interest, amounts to $300. Defer dants appeal from an order made after final judgment, taxing costs which were less than $300. Dismissed.

S. M. Buck and W. C. Belcher, for appellants. W. L. Duff, H. S. Foote, and L. D. McKissick, for respondent.

PER CURIAM. Respondent's motion to dismiss the appeal in this case is granted, and the appeal dismissed, on the ground that the court has no jurisdiction thereof, on the authority of Fairbanks v. Lampkin, 99 Cal. 429, 34 Pac. 101.

(107 Cal. 243)

BUENA VISTA FRUIT & VINEYARD CO. v. TUOHY et al. (No. 18,350.)

(Supreme Court of California. May 13, 1895.) EQUITY RESCISSION OF CONTRACT-FRAUD.

The complaint alleged that defendants, by fraudulent practices, induced plaintiff to purchase property from them for twice what it was worth; that part payment thereof had been made, and notes and mortgages given for the residue. Held insufficient to maintain an action for the canceilation of the notes and mortgages, where the property received was worth more than the part payment made, without offering to put the vendors in statu quo.

Commissioners' decision. In bank. Appeal from superior court, Tulare county; W. W. Cross, Judge.

Action by the Buena Vista Fruit & Vineyard Company against John Tuohy and others to set aside a judgment, and to cancel certain notes and mortgages. From a judgment for defendants, plaintiff appeals. Affirmed.

Morehouse & Tuttle and J. A. Percy, Jr., for appellant. Daggett & Adams and C. L. Russell, for respondents.

SEARLS, C. This action is brought by the corporation plaintiff to have a judgment of foreclosure against its property and a deficiency judgment entered after a sale in foreclosure set aside, and to have the mortgages and notes upon which the foreclosure proceedings were had set aside, annulled, and canceled, and that the defendants, and each of them, be enjoined and restrained from conveying, disposing of, or incumbering the land and premises mortgaged. Defendants demurred to the complaint by two separate demurrers, one on behalf of Tuohy, and the other by all the other defendants. These demurrers were sustained by the court, and, plaintiff declining or failing to amend after notice and leave so to do, final judgment was entered in favor of defendants. Plaintiff appeals from the judgment.

The complaint, with the exhibits thereto attached and made a part thereof, covers over 50 pages of the printed transcript. To epitomize it within brief limits, and at the same time illustrate it fairly, is quite difficult. The following synopsis will illustrate its more salient features: On the 13th day of May, 1891, John Tuohy, one of the defendants, was the owner of 720 acres of land situate in the county of Tulare, state of California; also of certain water rights, stock in water companies, etc., and certain personal property, consisting of six mules, etc., their harness, five wagons, and a quantity of farming tools. On said last-mentioned day

said Tuohy entered into an agreement in writing with E. J. Cox, E. De Witt, and P. F. Wood, the other defendants herein, as parties of the second part, by the terms of which he agreed to sell to them and they agreed to buy all of the property aforesaid on September 1, 1896, with interest at the rate of 8 per cent. per annum, payable semiannually in advance, from and after September 1, 1891. The parties of the second part were to take possession of the property at once, to prepare the land for planting trees and vines, to plant 200 acres to trees and vines during the season of 1832, to care therefor, and to plant the residue to other crops. They further agreed to incorporate a stock company to plant the land to fruit and vines, to advertise the same, and use due diligence to sell the same; and, if they carried out the agreement, Tuohy was to convey all of the property by good and sufficient deed, etc., on the 1st of September, 1891; and, if the second parties failed to perform, they were to return the property to Tuohy on September 1, 1891, until which time they were to have the option to buy, but, if they failed, they were to pay all expenses up to said last-mentioned date.

On

the same day, Cox, De Witt, and Wood, the parties of the second part in the foregoing agreement, entered into another agreement, as parties of the first part, with the persons whose names are thereto subscribed, each separately, and not one for the other, which recited that whereas it is proposed to form a corporation, etc., to be entitled the Buena Vista Fruit & Vineyard Company, with a capital stock of $144,000, divided into 720 shares of $200 each, for the purpose of purchasing 720 acres of land (then follows a description of the land and property as in the first agreement), at the price of $100 per acre, and to plant and set out thereon fruit trees and vines of first-class marketable varieties. The agreement then proceeds as follows: "Now, therefore, this agreement witnesses that the said parties of the first part hereby agree to sell to the said parties of the second part, and the said parties of the second part hereby agree to purchase from the said parties of the first part, the above-mentioned lands, water rights, and personal property, and all improvements that shall be made thereto up to the 1st of September next, at the price of $100 per acre; the title to said lands to be shown to be good and valid at law, by an abstract to be furnished to said parties of the second part, to be paid as follows: $10,000 cash out of the first payment upon subscription to the stock as hereinafter mentioned, and the balance on the 1st of September, 1896, with interest thereon in the meantime from said 1st of September next, until paid, at the rate of 8 per cent. per annum; said interest to be paid by even and equal half-yearly payments in advance. And it is agreed that on the 1st day of September next, upon said payment

of $10,000 and interest, a deed shall be made to said corporation of said lands and premises, and a mortgage thereof by said corporation for the balance of the purchase money and interest. The said parties of the second part do hereby severally covenant and agree, each for himself, to and with the parties of the first part, that they will each severally take the number of shares of the capital stock of said corporation set opposite their respective signatures hereto, and pay at the. time of their signature hereto, to E. J. Cox, cashier of the Tulare County Bank, as treasurer and trustee, $20 per share upon the actual number of shares so respectively subscribed for by each of them, the said parties of the second part; and on the 1st of December next, and quarterly thereafter for the term of three years next ensuing, the sum of $5 per share for said shares, making in all $80 per share; such payments to be made quarterly as aforesaid. Said E. J. Cox, as such treasurer and trustee, shall and he is hereby authorized and directed to apply said money so to be received by him as follows: First in payment of said cash payment on said lands and interest, and the balance as the board of directors of said corporation shall direct in the improvement of said lands, as follows, viz.: The planting, in the season of 1891-92, in a good and workmanlike manner, of about 200 acres of said lands to grapes, and including the Chinese contract of about 100 acres of fruit trees, and the balance to grain, etc.; and thereafter, unless the directors appoint another treasurer, said money shall be paid by said treasurer, for the planting in the season of 1892-93 of so much of said land as the directors shall determine, and thereafter as said directors shall direct. The parties of the first part to pay all the taxes against said land for the term of five years. This agreement is made conditional and dependent upon the subscription, on or before the 1st of September next, of at least 600 shares of said capital stock; and, should that number not be subscribed by that date, then the said treasurer shall repay to said subscribers all such deposits or cash payments he may have received to the respective persons who shall have paid the same." The agreement was signed by defendants Cox, De Witt, and Wood, and by some 47 persons as parties of the second part, with the number of shares taken by each set opposite his name, aggregating 674 shares. Each of the defendants herein, including Tuohy, subscribed for 25 shares. To this agreement is appended (1) a list of eight names of those who subscribed for an aggregate of 85 shares, with a statement, signed by Cox, De Witt, and Wood, to the effect that said eight parties have been relieved from taking their stock, and are "relieved from payment, their stock never having issued"; (2) an assignment of the agreement with the claims accruing therefrom to the Buena Vista Fruit & Vine.

yard Company, which it is recited has been organized by the undersigned. This assignment is signed by said Cox, De Witt, and Wood, and is acknowledged before a notary public January 14, 1892. Neither of the above documents mentioned in 1 and 2 is dated.

The corporation was organized according to the complaint on or about the 6th day of June, 1891, for the purposes, with the capital stock and number of shares, etc., as specified in the agreement set out and quoted herein, but with other and further objects than those specified in said agreement. John Tuohy, D. W. Madden, E. De Witt, P. F. Wood, N. A. Hummel, J. F. Boller, and R. B. Bohannon were named as the directors of said corporation; and John Tuohy was elected president; D. W. Madden, vice president; and R. B. Bohannon, secretary. On the 16th day of September, 1891, the corporation plaintiff, pursuant to resolution of its board of directors, and for the purpose of completing the purchase of the property hereinbefore mentioned, and paying the purchase price thereof over and above the cash payment of $10,000, made its two several promissory notes, payable to defendant Tuohy, one for $36.000, and the other for $26,000,-payable September 1, 1896, with interest at 8 per cent. per annum, payable semiannually in advance, etc., and, to secure the payment of said notes, executed to said Tuohy two several mortgages upon the real estate hereinbefore mentioned. The mortgages provided that, if default should be made in the payment of interest when due, the whole sum, principal and interest, should become due at the option of the mortgagee. The $26,000 mortgage was subject and the lien thereof subordinate to that of the $36,000 mortgage. Default having been made in the payment of interest on the $36,000 note, an action was brought to foreclose the mortgage on or about June 13, 1892. An answer was filed admitting the making of the note and mortgage by the corporation; and thereafter, and, on the 8th.day of February, 1893, a decree of foreclosure was entered, under which, on or about April 1, 1893, the land was sold, John Tuohy becoming the purchaser, for $32,300, leaving a deficiency of $8.339.80, for which judgment was entered in favor of Tuohy, and against the corporation plaintiff herein. Tuohy, as president, and Bohannon, as secretary, executed, for and in the name of the corporation, the foregoing notes and mortgages. In January, 1893, a set of directors was elected, not including the defendants herein or any of them; and thereafter, and on the 20th day of September, 1893, this action was instituted. The property referred to was conveyed to the corporation plaintiff by Tuohy on the 16th day of September, 1891, the date of the execution of the mortgages, which conveyance, together with the mortgages, was duly recorded. The foregoing contains a chronological state

ment of the more important transactions involved in the case, irrespective of the fraud charged.

The more important allegations of frauds are: (1) The defendants herein, on or about June 6, 1891, agreed among themselves that with Bohannon, Boller, Madden, and Hummel they would organize a corporation to which the property should be sold; that Cox, Wood, and De Witt should act as promoters of said proposed corporation, represent to the public that they were the owners of the property to be sold, that the value thereof was $72,000, for which sum they would convey it to the corporation about to be formed; that defendant Tuohy should receive $36,000 thereof from the corporation, and that the residue of the purchase money should be received by the other defendants as a commission for acting as promoters; that this agreement was kept secret among the defendants, who held out to the world that Cox, Wood, and De Witt were owners of the property, and, to cheat and defraud the subscribers to said corporation, prepared and circulated the agreement (Exhibit B) which represented them as the owners, and that the value of the property was $72,000, and could not be bought for a less sum; that they well knew they were not the owners, and that their representations were false, and that the property was only worth $36,000; that the subscribers and stockholders knew nothing of their agreement to purchase at $36,000 from Tuohy until about November, 1892; that said defendants Wood and De Witt circulated the agreement for signatures, and that subscribers to the extent of 85 shares were fraudulent and false, and were obtained only for the purpose of causing the bona fide subscribers to believe they were genuine, and to induce others to subscribe, and, believing them to be genuine, others were induced to sign; that in fact 600 shares had not been subscribed for in good faith on the 1st of September, 1891, all of which defendants well knew, but, with intent to cheat and defraud the subscribers out of the sum of $10,000 paid in upon subscriptions, they represented that 674 shares had been subscribed, when in fact only 589 had been subscribed; that defendants paid nothing on the 25 shares subscribed by each of them, and that only $9,780 was paid in, which defendants appropriated to their own use; that they withheld all knowledge that Cox, Wood, and De Witt were to receive a commission of $36.000 from the subscribers, etc. (2) That, with a design to cheat and defraud the bona fide subscribers out of the sum of $36,000, defendants and a few others, on or about June 6, 1891, without the knowl edge of the bona fide subscribers, met and | organized the corporation, although it was understood and agreed by and between the parties to agreement B that the corporation should not be formed until September 1, 1891; that the object of sooner forming the

corporation was to defraud the subscribers out of $36,000, and to enable themselves to be elected directors, that they might control and manage the corporation for their own purposes. The complaint then proceeds

to charge that, with a view to defraud the subscribers out of the $36,000 aforesaid, the directors called a special meeting of the board, at which none of the subscribers were present, resolved to consummate the purchase of the lands and water rights, accept the deed thereof, and to execute the notes and mortgages for the purchase price, less $10,000, paid in cash, etc.; that most of the subscribers

were nonresidents of Tulare

county, and were not at Tulare city, the principal place of business of the corporation, and, believing the conduct of the corporation to be fair and honest, took stock in the corporation, and paid therefor as provided in agreement B. There are various other allegations of fraud going to support the main charge, to the effect that the value of the property was but $36,000, $10,000 of which has been paid, and that the defendants are seeking to defraud the bona fide stockholders out of the residue of the purchase money, and that the second note and mortgage are in fact held for the benefit of defendants Cox, Wood, and De Witt.

The first suggestion which presents itself to the mind upon a perusal of the complaint is that the plaintiff is seeking equity without doing equity. In other words, it has received a conveyance of property admitted to be of the value of $36,000, upon account of which it has paid $10,000, and given its notes and mortgages as security for the payment thereof, for the residue of the pur chase price. It now seeks by this action to have tuese notes and mortgages set aside and annulled, without canceing the conveyance to it of the property, and without pay ing or offering to pay the value of the property which it has received. Manifestly, this cannot be permitted in a court of equity. Practically, it is an attempt to rescind so much of the contract as militates against the interest of the plaintiff, while claiming the benefit of that portion of it in its favor. As a precedent for such claim, we are re ferred to the case of Water Co. v. Flash, 97 Cal. 610, 32 Pac. 600. An examination of that case will show that it does not sup port the contention here. The germ of that case was that the defendants, promoters of a corporation, had by their agents falsely and fraudulently represented that 4,500 acres of land had been contracted for at $25 per acre, whereas in fact it had been contracted for at $5.05 per acre. The land was con veyed to the corporation at $25 per acre. The corporation or its stockholders had alreedy paid a sum to the defendants in excess of the purchase price of $5.05 per acre, and had given its notes, secured by a mortgage, for the residue of the purchase price at $25 per acre, amounung to $75,000. The

action was brought to cancel and annul a decree of foreclosure of the mortgage and the notes anu mortgages, etc. Under these circumstances, the defendants having been paid more than was justly due them, it was heid that a rescission of the sale by plain tiff was not necessary; and, as no injustice had been done to defendants, the decree, in accordance with the prayer of plaintiff's com plaint, was upheld. Every complaint in an action should be founded upon a theory under which the plaintiff is entitled to re cover, and should state all the facts essen. tial to support such theory. Failing in these respects, it is radically defective, and does not state facts sufficient to constitute a cause of action. A party defrauded may rescind and restore within a reasonable time all of value which he has received under the contract, or he may affirm it and sue for dam. ages. Gifford v. Carvill, 29 Cal. 590; Herrin V. Libbey, 36 Me. 357; Burton v. Stewart, 3 Wend. 239; Burbank v. Dennis, 101 Cal. 90, 35 Pac. 444. In the case last cited, this court held, in substance, that, where a promoter of a corporation has been guilty of fraud, the company may elect to set aside the contract or to recover the promoter's secret profits. This is not an action to recover the secret profits made by the defendants as promoters of the corporation. accounting of such profits is sought. No rescission of the conveyance is averred or asked for.

No

The theory of the complaint is: (1) That defendants were promoters of the corporation plaintiff. (2) As such promoters, they were guilty of fraudulent practices, whereby plaintiff was induced to purchase property for $72,000, which was only worth $36,000, and to pay therefor $10,000 in cash, and to give their notes secured by mort gages for the residue of $62,000. (3) That, these notes and mortgages being fraudulent, plaintiff may retain the property conveyed to it so worth $36,000, and maintain an equitable action for the cancellation of the notes and mortgages without further com pensation for the property purchased. Conceding the facts in support of this theory to be well stated, they do not entitle plaintiff to recover. He who would rescind a con tract must put the other party in as good a situation as he was before, otherwise he cannot do it. Chit. Cont. 276. And his complaint, framed with this object, must state facts showing that he has performed or offered to perform on his part every act necessary to thus place the defendant.

2. If he would confirm the fraudulent contract, and recover in damages for the fraud, he must so state the facts that the court can see that he is entitled to the relief demanded or to some specific and certain relief, or his complaint will be held bad on demurrer. In cases where an answer is filed, the court may, under section 580, Code Civ. Proc., grant "any relief consistent with the case made by the complaint and em

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