as to that issue, but there was testimony of witnesses who stated that the requirement (or the water duty, as it was termed) was three acre-feet annually in order to meet needs in the production of average crops. This testimony furnished evidence of a substantial kind and, as this court has no duty to resolve the conflict, the conclusion of the trial judge upon that matter of fact must be taken as final. Upon the two main issues specified there was sufficient evidence.

[5] The fraud was not waived by the changing of the contract on May 20, 1915. At the latter date plaintiffs had not been made aware of the deficiencies in soil and water supply. The consent of the Delta Company to the release of the obligations of the plaintiffs as to one-half the quantity of land and water shares purchased was not in any way, so far as is shown, based upon a condition that the Delta Company should no longer be liable for any fraudulent representations made as an inducement to the plaintiffs to enter into the original contract. The contract of May 20th amounted to a modification of the original agreement; it carried with it the original mortgage security as then existing against the California property of the plaintiffs.

[6] Plaintiffs were not guilty of laches barring them from the equitable relief sought. In August of 1915 they obtained information respecting the inadequacy of the water supply. They then proceeded in an attempt to secure a cancellation of their contract, and negotiations proceeded, it may be gathered from the record, for several months thereafter. About March 20, 1916, they gave notice of rescission and on May 3d of the same year commenced this action. They acted with reasonable diligence in pursuing the remedy which the law afforded them. No conditions are shown as where the opposite party has so changed its situation, relying upon the contract, as to make it inequitable that it should now be compelled to release plaintiffs from the obligations assumed by them. The offer of the plaintiff's to release to the Delta Company all claim to the land or water stock was sufficiently expressed in the notice of rescission.

[7] The court in its findings recited that the representations made by defendants and their agents were "false, untrue, misleading and fraudulent and were positively asserted

by said defendants and their said agents, and each of them, to be true, in a manner not warranted by the information which they or either of them possessed at the time of the making thereof." Appellants argue that the burden rested with the respondents to show at the trial that the representations when made by defendants were not "actually believed by the defendants on reasonable grounds to be true." This point carries with it the suggestion that the finding of the court which has just been referred to was not sufficient to support the judgment. Aside from the provisions of section 1572 of the Civil Code, it is not established by the weight of authority in the United States that a party to a contract may innocently and with belief in the truth of his statements misrepresent to the opposite party conditions material to the consideration to be rendered by the former and escape liability. In a civil action the good faith of the party who procures the assent of another to the making of a contract by material misrepresentations is of no moment. "Many courts lay down the rule that the misrepresentation of a material fact may be ground for rescinding or avoiding a contract though there is no actual fraud, and though it is innocently made. Such a representation is considered to be constructively fraudulent because of its effect of imposing upon and deceiving the person to whom it is made." (12 R. C. L., p. 343, par. 98.) The rule of the criminal law requiring proof of a specific intent to defraud in false pretense cases does not apply to civil actions.

Errors alleged to have been committed by the trial judge in his rulings on the admission of evidence have been examined and as to none of them is it made to appear that the appellants have been so prejudiced as to entitle them to a new trial. There was competent evidence to the main issues which have been herein before discussed. Such evidence supports the findings and judgment.

The judgment is affirmed.

Conrey, P. J., and Shaw, 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 June 8, 1922.

All the Justices concurred.

[Civ. No. 3709. Second Appellate District, Division One.-April 11,

1922.]

F. M. TETER, etc., Appellant, v. L. R. THOMPSON, Respondent.

[1] SALES-BREACH OF CONTRACT BY VENDEE-PRIOR SALE TO THIRD PERSON RIGHT OF VENDOR TO SUE IN CLAIM AND DELIVERY.Where a motor-truck is sold under a conditional sale contract and the vendee defaults in his payments, thereby giving the vendor the right to recover possession, the vendor may maintain an action to recover possession of the truck, or the reasonable value thereof in case delivery of the truck cannot be had, notwithstanding the vendee has transferred the truck to a third person and does not have it in his possession at the time of the commencement of such action.

[2] ID. CONDITIONAL SALE OF TRUCK-TERMINATION OF CONTRACTSUFFICIENCY OF ELECTION.-Where a contract for the conditional sale of a motor-truck gives the vendor the right to elect to declare the agreement null and void upon the happening of certain conditions, the vendor is not required to declare his election in the very terms of the contract, but an election is accomplished when the vendor, upon the happening of such conditions, demands possession of the truck and, upon the vendee's refusal to comply with such demand, commences an action to recover the property or its value.

APPEAL from a judgment of the Superior Court of Los Angeles County. Lewis R. Works, Judge. Reversed.

The facts are stated in the opinion of the court.

C. E. McDowell for Appellant.

James W. Miller and John E. Carson for Respondent.

CONREY, P. J.-Action to recover possession of personal property, or the reasonable value thereof in case delivery of the property cannot be had, together with damages for the

1. Rights and remedies of seller on breach of contract of conditional sale, note, 133 Am. St. Rep. 563.

2. Effect of retaking of property by seller on the rights and remedies of the parties to a contract of conditional sale, note, L. R. A. 1916A, 915.

unlawful detention of the property. The plaintiff appeals from the judgment entered in favor of defendant.

[1] On the eighth day of June, 1918, pursuant to the terms of a contract of conditional sale, plaintiff delivered to the defendant a certain truck described in the contract. The purchaser paid five hundred dollars, and agreed to pay the further sum of two hundred dollars on the fifth day of July, 1918. By the terms of the contract, the purchaser agreed that if he fails to make any of the above payments when due, or within ten days thereafter, or violates any of the terms of this contract, then the seller at his option and without notice may elect to declare the whole purchase price due and payable, or the seller may declare this agreement null and void, and in that event the seller may take possession of said automobile, and the purchaser agrees to forfeit all payments made thereon and also forfeit all right and interest in said automobile, time being of the essence of this agreement. . . . The second party acquires no interest in or title to said property until all payments as agreed shall be made; when the first party agrees to execute to the second party a bill of sale to said property. . . . Time is expressly made of the essence of this contract."

Nothing was paid by the purchaser on account of this contract after the initial payment. In August, 1919, plaintiff made demand on the defendant for possession of the truck, but the defendant refused to comply with that demand. The fact was that prior to that time the defendant had sold and delivered the truck to a third party; since which time it never has been in possession of or under control of the defendant. By reason of these proved facts it was found by the court (contrary to the allegations of the complaint) that the defendant did not have possession of the truck either at the time of commencement of this action or thereafter. Counsel for appellant and counsel for respondent seem to agree that the judgment in favor of defendant rests upon the proposition that the plaintiff cannot maintain this action because the personal property sought to be recovered was not in defendant's possession at the time of commencement of the action. This presents the question upon which the appeal may be determined.

The principal decisions relied upon by respondent are Richards v. Morey, 133 Cal. 437 [65 Pac. 886], and Riciotto

v. Clement, 94 Cal. 105 [29 Pac. 414]. In Richards v. Morey, the court said: "This is an action to recover possession of personal property which, it is alleged, the defendant took against the will of the plaintiffs, and now detains from their possession. But the finding shows that the property sought to be recovered was not in the possession of the defendant when the action was commenced, nor within his power to deliver, and therefore said finding would not have sustained a judgment in favor of the plaintiffs for the delivery of the buildings, or for the value of them in case a delivery could not be had." Riciotto v. Clement was an action to recover possession of personal property belonging to the plaintiff, which had been seized by the defendant as constable acting under a writ of attachment against one Smith. At the time of commencement of this possessory action against the constable the goods had passed out of his possession. The court held that the action was one brought to obtain the benefit of a statutory remedy, the action being designated by the court as "an action of claim and delivery." The court held that neither "the action of replevin in the detinet" nor "the action of claim and delivery" can be supported against a defendant not in possession at the time of commencement of the action.

It should be noted that in the cases mentioned above the cause of action had its origin in a wrongful taking, or tortious seizure of property by the defendant. In Faulkner v. First Nat. Bank, 130 Cal. 258 [62 Pac. 463], it was held that where the defendant obtained possession lawfully under a contract of bailment, but detained the property unlawfully, an action may be maintained to recover possession of the property or its value from the bailee, even though prior to the commencement of the action the bailee has wrongfully transferred the property to other persons. The court said that this was just the kind of wrong for which at common law the action of detinue was especially appropriate; and that it was no defense to an action of detinue to plead that the defendant before the commencement of the action had wrongfully disposed of the property and therefore was not in possession of it. After citing sundry authorities, the court said: "The principles declared in the foregoing authorities are eminently just, and are founded on the maxim that no one can take advantage of his own wrong; and they are