ments; and when such reference is made the original agreement and those referred to must be considered and construed as a whole. While the two subscription agreements in the present case were not executed at the same time, and although only the second agreement was signed by the plaintiff, nevertheless the second agreement showed upon its face that it was executed and intended as a subscription for a specified number of shares of stock in the "hotel project mentioned in the annexed 'List of subscribers to the capital stock in the San Mateo Hotel project,' . . .” The fact that the list referred to was not actually annexed to and did not accompany the second subscription agreement at the time it was presented to the plaintiff for signing, did not operate to destroy the legal unity of the two agreements. Actual annexation is not essential to a merger by reference of separately executed written instruments (Haughawout v. Raymond, 148 Cal. 311, [83 Pac. 53]); and we are of the opinion that it can be fairly said from the annexing clause of the second subscription agreement that either constructive or actual annexation was contemplated by the parties. That this is so is evidenced, we think, by the fact that the subject-matters of both agreements were not only the same in substance, but were intimately connected in intention by a specific reference, which upon its face shows that although separately executed the second subscription agreement was intended to be supplementary of the first. Consequently the second subscription. agreement, when it was presented to and signed by the plaintiff, carried constructive notice to him of the terms and conditions of the first subscription agreement; for "Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which by prosecuting such inquiry he might have learned such fact." (Civ Code sec. 19.)

Conceding that the testimony of the witness Doolittle affords a sufficient support for the finding of the trial court that he never knew save in a general way the terms and conditions of the original subscription agreement, still such finding is comparatively of minor importance and will not alone suffice as a basis for the further and controlling finding upon the issues raised by the cross-complaint, that

the plaintiff never knew the provisions of the original subscription agreement at the time he signed the supplementary agreement; and undoubtedly the testimony of Doolittle, coupled with that of the plaintiff and the fact of the legal unity of both agreements, would have supported, if it did not absolutely compel, a finding that the plaintiff had either actual or constructive notice of the provisions of the original subscription agreement, and consequently was bound thereby, when he signed the supplementary subscription agreement. Such a finding, had it been made, would necessarily involve the legal conclusion that, in calling for the sums due from subscribers to its stock, the defendant would be controlled by the terms and conditions of the original and supplemental subscription agreement rather than by the provisions of section 331. et seq. of the Civil Code. (People etc. Bank v. Sadler, 1 Cal. App. 189, [81 Pac. 1029].) Such a finding would have materially affected the relative rights and obligations of the plaintiff and defendant, for the plaintiff, being bound by the provisions of both agreements, and having received notice of all the calls for the payment of the sums subscribed for by him, he would be legally liable for the full amount of his subscription, which, after deducting the sum of four hundred dollars paid on call number 8, would be the sum of one thousand four hundred dollars. That being so, and assuming the correctness of the findings and conclusions made upon the main case, the plaintiff would not have been entitled to a judgment against the defendant for any sum in excess of six hundred dollars.

In brief, we are satisfied that the evidence adduced in response to the issues raised under the cross-complaint would have sufficiently supported findings and judgment upon that phase of the case in favor of the defendant to the extent at least of one thousand four hundred dollars, and that being so, the trial judge was invested with discretion in the matter of granting a new trial which cannot be interfered with here. (Wendling v. Glenwood, 153 Cal. 411, 416, [95 Pac. 1029].) The order granting a new trial being, as we have seen, general in its terms, reopened the entire case, and properly so, because the issues involved upon the entire case were so intimately interwoven as to render them practically inseparable,

and therefore incapable of consideration and determination

apart from one another.

The order appealed from is affirmed.

Richards, J., and Kerrigan, J., concurred.

[Civ. No. 1742. Second Appellate District.-June 15, 1915.] JOSEPH A. CURCI, Appellant, v. JOSEPH LAGOMARSINO et al., Respondents.

CONTRACTS-SALE OF WINERY-RESCISSION-FRAUD-VALUE OF PROPERTY SUFFICIENCY OF EVIDENCE-FINDING. - - In this action to rescind a sale of a one-third interest in a winery and distillery business and to recover the money paid therefor, on the ground of false representations, it is held that the record is sufficient to support the finding that the alleged misrepresentation as to the value of the tangible property of the business was not satisfactorily established; and that it is at least doubtful whether such alleged misrepresentation, even had it been established, would have entitled plaintiff to a rescission of his purchase, in view of the evidence that he was not wholly ignorant of the business, and that he visited the same and spent some time in making an examination thereof. ID. MISREPRESENTATION OF VALUE-WHEN STATEMENT OF FACT.A statement as to the value of property is not always made as a mere expression of opinion upon which the other party has no right to rely. It may be a positive affirmation of a fact, intended as such by the party making it, and reasonably regarded as such by the party to whom it is made. When it is such it is like any other representation of fact, and may be a fraudulent misrepresentation warranting rescission.

ID.-VALUE OF BUSINESS-EVIDENCE-PREVIOUS SALE PRICE.-The exclusion of evidence as to what the business had sold for about three months before the sale in question is not sufficiently erroneous to work a reversal of the judgment, where it is shown by other evidence that the property had changed in the mean time by reason of sales and other changes, and no showing made that the witness knew the price or conditions of the sale.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Frank G. Finlayson, Judge.

The facts are stated in the opinion of the court.

H. L. McNair, for Appellant.

O. H. Myrick, and Henry W. Nisbet, for Respondents.

CONREY, P. J.-This action was commenced on June 3, 1912, for the purpose of rescinding a sale made by defendants to plaintiff of a one-third interest in a certain winery and distillery business in the city of Los Angeles, and for the further purpose of compelling the return to plaintiff of the consideration paid by him in purchasing the said onethird interest in the business of defendants. The plaintiff appeals from the judgment and from an order denying his motion for a new trial.

The principal items of alleged false representations claimed by appellant as the basis of his right of action have been determined against appellant upon conflicting evidence and this is admitted by his counsel in his brief, with the one exception upon which he now relies. The plaintiff alleged in his complaint and the defendants admit in their answer that during the negotiation which resulted in plaintiff's purchase of an interest in the described business, the defendants represented to him that the total value of the tangible property of the winery and distillery connected with said business was in excess of the sum of twenty-four thousand dollars. Appellant contends that he established by uncontradicted evidence that this representation of value was made as a statement of fact and not merely of opinion, and that the representation was false.

The only direct testimony concerning the value of the property is that of the witness Bessolo and related to a date seven weeks prior to the transaction between plaintiff and defendants. Plaintiff's interest in the business was purchased by him on April 24, 1912. Bessolo's testimony related to February 1, 1912, at which time the defendants had bought the property and business in question from a brother of the witness Bessolo. This witness testified that at that time it would have cost about twenty-four thousand dollars to newly reproduce the property at the winery on Ord Street, and that it was worth in its then condition sixteen thousand dollars, Between February 1 and April 24, 1912, some sales

of wine had been made and other changes had occurred in the property, some of which would have a tendency to decrease the value of the stock and other of such changes would have a tendency to increase the value. The evidence does not furnish data sufficient to show whether the net result was an increase or was a decrease in value of the entire plant between these dates. There is no evidence showing what were the market values or what fluctuations occurred in the market values of these wines and brandies between February 1st and April 24th. Keeping in mind that the burden of proof was upon the plaintiff to establish fraud in the transaction by proving the falsity of the representation as to value, we think that the record is sufficient to support the court's finding that misrepresentation as to value was not satisfactorily established and that it had not been proved that the value of the tangible property was less than twentyfour thousand dollars.

It is at least doubtful whether the representation which defendants admitted having made would entitle the plaintiff to a rescission of his purchase, even if the value had been fully proved to be less than twenty-four thousand dollars. We agree with the statement cited by appellant and quoted from Crandall v. Parks, 152 Cal. 772, 776, [93 Pac. 1018]: "A statement as to the value of property is not always made as a mere expression of opinion upon which the other party has no right to rely. It may be a positive affirmation of a fact, intended as such by the party making it, and reasonably regarded as such by the party to whom it is made. When it is such, it is like any other representation of fact, and may be a fraudulent misrepresentation warranting rescission." Although the representation was made that the property had a value of twenty-four thousand dollars and the plaintiff believed that statement, it further appears, and is found by the court, that he was not wholly ignorant of the business in which he was about to become interested. It is admitted that his business elsewhere had been that of a saloon-keeper, which we may assume is not distantly related to the business of selling wines and brandies. The suggestion was made by plaintiff to the defendant Aquilino (who represented both defendants in these transactions) that Aquilino was recommended to him by the mutual friend who had introduced them and that he would