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representatives of the company had made certain representations, uses the following language: "That said representations so made by defendant and its representatives, both before and after the arrival of the plaintiff at Arboga, were false, as defendant and its representatives then and there well knew." This is not a direct allegation that anything said or written by Hallner was either false, or known by him to be false. The special demurrer calls direct attention to this defect. An analysis of the letter shows that the principal purpose of the writer was the building up or founding of a Swedish colony of his own religious faith. This is not alleged to be either false or fraudulent. After speaking of the conditions in Arboga, the letter states "a great quantity of potatoes was recently harvested, the largest and finest I have ever seen, all bearing witness to its extraordinary fertility." From all that appears in the complaint, Arboga Colony may have produced a large quantity of potatoes, and of a quality asserted by Hallner. The language of the complaint is, "that a great quantity of potatoes had been recently harvested on said land." This is not an allegation that such potatoes were not raised in Arboga Colony; it is, at most, only an allegation that they were not raised on the small tract bargained for by the plaintiff. The letter further states that market communications are good; this is not denied; that the deeds to the different tracts in Arboga Colony contain stringent clauses restricting the liquor traffic. The truth of this statement is not questioned. Then follows a reference to what one J. M. Henderson, of Sacramento, has done for the Swedish people. Upon this question the complaint is also silent. A comparison is then drawn as to the respective values of land in Turlock, California, and lands situate in the Arboga Colony. There is nothing in the complaint showing that this statement was not made in good faith, and, when carefully analyzed, whether such statement is not in fact true. The letter then concludes with the statement of the writer's belief in the advisability of colonizing and gathering the Swedish people together in large communities; that the writer had been requested to prepare plans for a Swedish meeting-house or church. There is nothing in the letter, nor is there anything in the complaint, from which the trial court could infer that Hallner knew anything about any hard-pan underneath the lands in Arboga Colony, or from which it can be inferred that Hallner was fraudu

lently or otherwise concealing such fact, if it be a fact. Nor is there anything in the complaint, or in the letter, from which the trial court could infer that Hallner was concealing from the plaintiff that the lands involved are worthless or of no value, if such be the fact. The language of the complaint in this particular, in the first instance, is as follows: "That in said letter said Hallner fraudulently concealed from plaintiff the fact that said land was worthless and of no value." And further on, as a basis for charging the valuelessness of the lands, the complaint alleges: "That said land was inundated from flood-waters to the plaintiff's great damage, rendering the same entirely unfit for the purposes for which it was falsely represented to be fit, as aforesaid." This is not an allegation that the lands were otherwise than as represented by Hallner, or that they are not, in fact, both valuable and fertile; nor is there any allegation in the complaint alleging the actual existence of hard-pan underneath the lands described therein, the nearest approach being the statement that said Hallner concealed from plaintiff that there was present in it certain hard-pan located at such distance from the surface that it was impracticable to drain the same. If such were, in fact, the case, there might be "certain hard-pan" in the land, and yet the tract, as a whole, still fertile and valuable.

Much time and space has been occupied by counsel in their briefs touching the question as to when an expression of opinion may be regarded as equivalent to a statement of a fact and rescission granted, but from the analysis of the complaint and the letter upon which it is based, as hereinbefore set forth, it does not seem to the court necessary to review a long list of authorities on questions which are not disputed.

The real point involved in this action is decided in the case of Baker-Boyer National Bank v. Hughson, 5 Wash. 100, [31 Pac. 423]. The court there says: "The simple statement that such representations were false and fraudulent, in the absence of any statement of what the real facts were, is a simple conclusion of law, and no issue of fact could be made upon it." That the mere expression of opinions by a vendor is not such a misrepresentation as might avoid a sale, even although such opinions are not warranted by the facts, is too well established to require the citation of authority. The allegation in that case was as follows: "That it was falsely and fraudulently

32 Cal. App.-35

represented that said real estate was situated," etc. Here, it is not pretended that Hallner fraudulently represented anything, it being alleged only that he falsely represented and pretended. This language does not include any element of willfulness or lack of good faith on the part of the person making the representation, or that the truth is actually different from such representations.

In the case of Spreckels v. Gorrill, 152 Cal. 383, [92 Pac. 1011], the language of the complaint was, "falsely and fraudulently," but the court points out, on page 386 [152 Cal.] that no special demurrer was interposed, and says: "If the objection had been raised by special demurrer for uncertainty, perhaps it might have been held fatal, but no demurrer was filed to the complaint; the defendant answered, denying practically all the substantial allegations of the complaint, and the case was tried upon the theory that the complaint was sufficiently direct and positive." The court further says: "The lack of a direct allegation that the statements were untrue, conceding it to be a defect, is one of that character which, in the absence of a special demurrer, is cured by the verdict of the jury or the findings of the court, and which cannot be taken advantage of when urged for the first time on appeal." And further, the same rule applies to the defect of allegation of fraudulent intent on the part of Gorrill. While the allegation that he made the statements falsely and fraudulently to induce Spreckels to buy, might not in the face of proper special demurrer supply the place of a direct allegation that Gorrill knew them to be untrue, or made them in a manner not warranted by his own information, although he believed them to be true, nevertheless it implies all this, and where no special demurrer is interposed, it will be held sufficient after the verdict or decision upon the merits."

In that case it was alleged that the representations were made falsely and fraudulently and with intent to deceive. In the case at bar, it is only when Hallner falsely pretended and represented without any fraudulent intent; and, so far as the complaint goes, without any purpose to deceive or mislead the plaintiff in any particular. The trial court upon demurrer held "that it was not alleged in the complaint that the false statements were made with intent to deceive the plaintiff or induce him to make the purchase to his injury," citing Sutherland on Code Pleading, sec. 6886; Barber v.

Morgan, 51 Barb. (N. Y.) 116; Heller v. Dyerville Mfg. Co., 116 Cal. 127, 133, [47 Pac. 1016]. And further, that there was no allegation in the complaint that the plaintiff had, in fact, been injured by reason of his purchase, citing Truett v. Onderdonk, 120 Cal. 581, 588, [53 Pac. 26]. This defect in the complaint further appears by reference to 12 Ruling Case Law, section 167, where it is stated, "fraudulent intent must be alleged in all cases where it is a material ingredient of a fraud relied on. In an action of deceit, it is proper to allege facts showing knowledge on the part of the defendant that his representations were false, and generally in such an action scienter must be alleged either expressly or by alleged facts which are tantamount thereto. It must also be alleged that the representations were made with a fraudulent intent, and for the purpose of inducing the other party to act on them. In all cases where the representations relied on relate to matters of opinion, it must be alleged that they were knowingly false, and were not honestly given." Nothing of this kind appears in plaintiff's amended complaint. If the necessary facts existed to constitute a cause of action, the trial court allowing twenty days within which to file a second amended complaint, provided ample time.

We are of the opinion that the defendant's demurrer to plaintiff's amended complaint was properly sustained, and that the judgment of the lower court should be affirmed. It is so ordered.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 19, 1917, and the following opinion then rendered thereon:

THE COURT.-In denying the petition for a hearing in this court after decision by the district court of appeal of the third appellate district, we deem it proper to say that we do not desire to be understood as approving everything stated in the opinion of that court.

It seems to us that there can be no question of the correctness of the action of the trial court in sustaining the demurrer on the ground, among others, that it was not alleged in the

complaint that the false statements were made with intention to deceive the plaintiff or induce him to make the purchase to his injury.

This being so, the judgment of that court would have to be affirmed in any event.

[Civ. No. 1603. Third Appellate District.-January 20, 1917.] COUNTY OF MODOC, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA, Respondent; OTTO LYTLE, Applicant.

WORKMEN'S COMPENSATION ACT-REVIEW OF AWARD-EXTENT OF INQuiry—JurisdiCTION.-Upon an application for a writ of review to annul an order of the Industrial Accident Commission awarding compensation for injuries received in an accident claimed to have occurred in the course of employment, the inquiry can extend only to the question of jurisdiction, but if there is no substantial evidence to support a material finding of the commission the award must be set aside and annulled.

ID. INJURY TO LABORER-DRIVING OF TEAM-TEMPORARY EXCHANGE OF LABOR-ANNULMENT OF AWARD.-An award of compensation for injuries received by a laborer while driving a team hauling a gravel wagon during a temporary exchange of work with the teamster, must be annulled for lack of evidence to support the finding of the commission that the injury arose out of and in the course of employment, where it appears from the testimony of the applicant that he was employed to do the work of a laborer in shoveling gravel, and, from other testimony, that the custom of occasionally exchanging work between teamsters and shovelers was unknown to their employer.

ID.-CUSTOM -COURSE OF CONDUCT ESSENTIALS.-Before an alleged course of conduct can be legally held to have developed into a custom, it must be of such general and continuous practice among those engaged in the work as to constitute a regular course of conduct, and an occasional and sporadic departure from the usual and prescribed course of procedure among a part only of those to whom the custom is attributed does not meet the requirement of the rule.

APPLICATION for a Writ of Review originally made to the District Court of Appeal for the Third Appellate District to annul an order of the Industrial Accident Commission awarding compensation for injuries.

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