by it, are concerned. Where the failure of consideration is total, as where nothing of value has been received by the defendant under it and the plaintiff cannot perform it, no notice of rescission is required, but the defendant may plead want or failure of consideration." In discussing a similar question in the case of Richter v. Union Land etc. Co., 129 Cal. 373, [62 Pac. 40], the court expresses itself as follows: "Nor, where the failure of the consideration is total-which implies, of course, that nothing of value has been received under the contract by the party seeking to rescind-is it necessary that a formal rescission be made before bringing suit. In such cases a suit may always be maintained for the recovery of the consideration paid. (Citing cases.) Practically, there is no difference in the effect upon the contract between the successful defense of a plea of a want or total failure of consideration (or, it may be added, an action to recover back the money paid on a contract of which the consideration has wholly failed), and the successful termination of an action to rescind it. In either case the contract is rendered incapable of enforcement, the judgment being a bar to any future action." In the case of Clock v. Howard & Wilson Colony Co., 123 Cal. 10, [69 Am. St. Rep. 17, 55 Pac. 716], the court, in discussing the remedies for a breach of contract upon the part of the vendor, says: "Treating the vendor's breach as an abandonment, he [the vendee] may himself abandon it, when, the contract having thus come to an end, he may sue at law to recover what he has paid, in an action for money had and received; for, the contract being at an end, the vendor holds money of the vendee to which he has no right, and to repay which, therefore, the law implies his promise." (See, also, Chatfield v. Williams, 85 Cal. 518, [24 Pac. 839]; Duncanson v. Walton, 111 Cal. 516, [44 Pac. 174]; Hooe v. O'Callaghan (Cal. App.), 103 Pac. 175.)

Morcover, we are of the opinion that the facts alleged in the complaint and admitted or found by the court to be true constituted a rescission under subdivision 5 of section 1689 of the Civil Code. When defendant refused to perform the covenants of the contract on his part, and plaintiff, instead of asserting his rights thereunder, acquiesced in and assented to such repudiation and demanded the return of the money

paid, such facts were sufficient to constitute a rescission of the contract by consent of the parties.

It, therefore, follows from what has been said that the finding of the court as to want of rescission on the part of plaintiff, as well as the fact that plaintiff, within ninety days following the execution of the contract, made no tender of the balance of the purchase price, are facts wholly immaterial and do not affect plaintiff's right to recover upon the findings herein.

Under the circumstances disclosed by the record, it would be grossly unjust and inequitable to permit defendant to retain the money so received, particularly in view of the fact that he has not parted with anything of value constituting a consideration for the $2,000, and could not compel specific performance against plaintiff on account of being unable to comply with his part of the contract. "In such a case, there is a complete failure of the consideration, and the vendor has no more right to keep the purchaser's money, than he would have to compel specific performance of the contract." (Maupin on Merchantable Title to Real Estate, sec. 238a.)

The judgment is reversed and the cause remanded, with instructions to the trial court to render judgment upon the findings in favor of plaintiff in accordance with the prayer of his complaint.

Allen, P. J., and Taggart, 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 September 16, 1909.

[Civ. No. 674. Second Appellate District.-July 21, 1909.]

F. E. PROUD, Respondent, v. THOMAS STRAIN, Appellant.

ACTION FOR GOODS SOLD-ANSWER SETTING UP WRITTEN CONTRACTS— CAUSE OF ACTION-ISSUE.-Under a complaint to recover a balance for goods sold by plaintiff and his assignors, at defendant's request for an agreed price, and setting up quantum valebat counts, and an answer setting up written contracts for sales upon commission, the plaintiff's cause of action does not depend upon the writings or upon the cancellation thereof, but upon entirely new and distinct contracts of sale, and the issue raised is whether the contract pleaded by the plaintiff, or the one pleaded by the defendant, should determine the rights of the parties. ID.-AMENDMENT ORDERED BY COURT-SETTING ASIDE OF WRITTEN CONTRACT SUPPORT OF VERDICT.-When the plaintiff properly offered evidence in support of his original complaint, but the court sustained an objection thereto, as varying the written contracts alleged in the answer, and ordered an amendment to the complaint, requiring the plaintiff to allege the abandonment or setting aside of the written contract as a condition of the admission of evidence under the complaint, the allegation thus thrust into the pleading, or a finding thereupon in favor of the plaintiff, is not essential to sustain a verdict for the plaintiff.

ID. EVIDENCE SUPPORTING ABROGATION OF WRITING-WAIVER.—Held, that the evidence supports an express or implied finding by the jury that a new oral obligation had been substituted for the writing, and that an absolute sale made thereunder is evidence of a waiver of all rights of the defendant under the commission contract. ID. SUBSTITUTION OF ORAL AGREEMENT-CONSTRUCTION OF CODE.-When an oral agreement is substituted for an existing written agreement, section 1698 of the Civil Code has no application.

ID. WAIVER OF RIGHTS NOT REQUIRED TO BE EXPRESS.-The waiver of the rights of the defendant under the written agreement need not be in the nature of an express agreement.

LD. ESTOPPEL OF DEFENDANT ABSOLUTE PURCHASE.-The defendant could not, while making an absolute purchase from the plaintiff, say that the old written contract was in force as to the very goods which he was buying.

ID.-SUPPORT OF VERDICT-CONFLICTING EVIDENCE-WEIGHT OF EVIDENCE. Where the evidence is conflicting, the weight of the evidence is for the jury to determine in the first instance, and the decision of the

trial court in denying the motion for a new trial that the verdict is not against the weight of the evidence is conclusive upon appeal. Id.—Abuse of DISCRETION UPON QUESTION OF Fact not ReVIEWABLE.—

There is no review upon appeal for an abuse of the discretion of the trial judge in passing upon the question of fact as to the weight or preponderance of the evidence.

APPEAL from an order of the Superior Court of Orange County, denying a new trial. Z. B. West, Judge.

The facts are stated in the opinion of the court.

G. E. Harpham, for Appellant.

E. J. Marks, H. C. Head, and R. Y. Williams, for Respondent.

TAGGART, J.-Action for goods sold and delivered. Judgment for plaintiff, and defendant appeals from the order of the trial court denying his motion for a new trial.

From the bill of exceptions in the record it appears that plaintiff went to trial on a complaint which alleged the sale and delivery by plaintiff to defendant, at the latter's request, between March 22, and May 11, 1906, of a certain quantity of cabbage at an agreed price, the payment of a part of said price and the nonpayment of a balance of $667.09; the same matter was stated as a second cause of action for the same sum upon a quantum valebat count. The complaint also alleged seven other causes of action, doubly stated in the same manner, based upon sales of cabbage made to defendant by seven different persons who had assigned their respective claims therefor to plaintiff. All of said sales took place between March 19 and June 27, 1906. The aggregate of unpaid balances in the several causes of action being stated at $2,141.41, for which a judgment was asked. Defendant answered, denying that any sales of cabbage had been made. to him by plaintiff or any of his assignors, and alleged that all the cabbage mentioned in the several causes of action was received by him under and by virtue of several and distinct agreements in writing made by defendant with the plaintiff and each of said assignors, each of which writings was in substance as follows: "I agree to sell my cabbage for the

season of 1906 through Thomas Strain, he to receive 10% (ten per cent) and cost of crating and loading as compensation for marketing same." These writings were each set out in full in the answer, showing the signature of plaintiff and his assignors thereto, and the dates thereof, respectively, range from February 13, 1906, to March, 1906.

When plaintiff attempted to introduce evidence of the terms of the sale of the cabbage to defendant, at the trial, the defendant objected on the ground that the answer would be incompetent if it attempted to vary the terms of the written agreement set out in the answer, and on the further ground that it was not the best evidence, because the written contract set up in the answer was the best evidence of this. Plaintiff then offered to prove a sale of the cabbage, as alleged in his complaint, to Thomas Strain entirely separate and distinct from the agreement set out in defendant's answer. Whereupon defendant objected to the introduction of any evidence as to the terms of any agreement to sell, or sale, other than the written agreements set out in defendant's said answer, and the court sustained this objection and required plaintiff to amend his complaint by alleging the abandonment or setting aside of the contract set out in defendant's answer before he could offer any evidence as to any other sales. This allegation was inserted under the rul ing of the court, and it is contended by appellant that there is no evidence to support the special finding in plaintiff's favor on this issue, or the finding, in plaintiff's favor on this clement of his case, implied by the general verdict for plaintiff:

Plaintiff's cause of action did not rest upon the writing, or the cancellation of the writing, which the court required him to allege was set aside and abandoned, but upon a sale of the cabbage to defendant. The contract sued on by plaintiff was not an alteration of the writing pleaded in defendant's answer, but an entirely new and distinct contract. The pleadings as originally framed raised the issue whether the contract pleaded by plaintiff or that pleaded by defendant should determine the rights of the parties. It was not necessary that there should be an express destruction, cancellation or setting aside of the first contract in order that plaintiff might state a cause of action under the new. We do not regard the allegation thus thrust into the plaintiff's plead