Sr., guaranteed in writing the payment of both notes. In consideration of this guaranty the action on the six thousand five hundred dollar note was dismissed and the bank agreed to extend for one year the time of payment of the ten thousand dollar note, provided certain other conditions were complied with. On the day before this guaranty was made the title to the land covered by the mortgage passed by regular transfer to the guarantor, Wm. Seitz, Sr. The trial court found that the guaranty was given in consideration of the dismissal of the action mentioned, and that Wm. Seitz, Sr., received adequate consideration therefor. Judgment went for plaintiff against all three defendants, from which they gave notice of their desire to severally and separately appeal.

No answer appears in the record, but by way of cross-complaint defendants set up fraud in the purchase of the land, asked damages against Blochman and Heap, who composed the copartnership known as the Blochman Banking Company, and demanded the cancellation of the note and mortgage as against the plaintiff, Security Commercial & Savings Bank of San Diego. The allegations of fraud are that del Fungo took defendants Mack and Seitz, Jr., out to see the land sold and pointed out to them other and better land than that described in the deed and mortgage. It was also alleged that del Fungo represented to said defendants that the land he was offering them for twenty-two thousand five hundred dollars was worth more than fifty thousand dollars, whereas in fact the land actually conveyed was worth much less than twenty-two thousand five hundred dollars, the purchase price paid by defendants. In order to state a case against the crossdefendants, Blochman and Heap, it was alleged that del Fungo was their agent and employee, that the false representations were made in their behalf, and that they knew they were false. Treating the alleged cross-complaint as an equitable defense to plaintiff's cause of action because of the allegations of fraud in the execution and delivery of the note and mortgage (and we assume this was what was done by the trial court, although the record is silent upon this point), it is evident that this defense rests entirely upon the proposition that del Fungo was the agent of Blochman and Heap, that the false representations were made in their behalf, and that they knew them to be false. The trial court found against

defendants on all of these allegations, and this finding is amply supported by the evidence.

Appellants' position seems to be that, the note being nonnegotiable, the respondent is charged with knowledge of all of the legal defenses available to the mortgagors. In support of this they cite numerous authorities holding that one who is about to take the assignment of a mortgage is bound to inquire of the mortgagor if he has any legal defenses to the mortgage, and that if he fails to do this, he takes the mortgage subject to all legal objections or infirmities which could have been set up against it in the hands of the original mortgagee, being charged with all facts which such an inquiry would have disclosed.

[1] The facts of this case, as found by the trial court, show clearly that the rule of these decisions is not applicable here. The original mortgagee was the Blochman Banking Company, a copartnership, and not del Fungo, the party who is alleged to have committed the fraud. Against the bank appellants could raise no different defenses than they have raised against the assignee of the bank. If, as is found by the court, the original mortgagee was not interested in the land. purchased and had no knowledge of the representations of del Fungo, and he was not its agent in this transaction, it was not chargeable with the fraud of del Fungo.

All that has been said herein regarding the defense of fraud has been said on the assumption that the alleged fraud was properly pleaded. But the cross-complainants in the same pleading and in the same cause of action set up the alleged fraudulent representations and the damages resulting therefrom, seeking a rescission or cancellation of the note and mortgage as against one cross-defendant and damages for the fraud as against the others. They alleged that they did not discover the fraud until more than three years after it was committed, but did not explain why an earlier discovery was not made.

[2] In seeking affirmative relief cross-complainants were required to elect which one of two remedies they intended to seek damages after rescission or damages after affirmance. They could not seek both. (Hines v. Brode, 168 Cal. 507, 512, [143 Pac. 729].) [3] Whether the pleading be treated as a cause of action for rescission or one for fraud after affirmance, it was necessary to allege and prove, not only that

the fraud was not discovered within the three-year period, but that it could not have been discovered within that time by the exercise of reasonable diligence. (Montgomery v. Peterson, 27 Cal. App. 671, 676, [151 Pac. 23]; Truett v. Onderdonk, 120 Cal. 581, 589, [53 Pac. 26].)

[4] The presumption is always against fraud. This presumption is as strong as that of innocence of crime. One who seeks relief against the effects of fraud must allege it and prove it by clear proof and satisfactory evidence. "They must clearly show that they did not discover the existence or commission of the alleged frauds until within a reasonable time before the action was begun, that they proceeded promptly upon such discovery, and that their failure to make the discovery sooner was not due to their own lack of diligence. All this must be shown, not merely by a bare statement of the conclusions as we have stated them, but by a detailed statement of the facts and circumstances which caused the ignorance, which prevented an earlier discovery, and which constitute the diligence in seeking a discovery.' (Del Campo v. Camarillo, 154 Cal. 647, 657, [98 Pac. 1049, 1054].) [5] Cross-complainants not only failed to allege why they did not sooner discover the fraud or that they exercised diligence in seeking a discovery, but they wholly failed to make any offer of proof upon either of these matters. The trial court was fully justified in denying them affirmative relief upon this plea. As a defense to the main action they are in no better position. The trial court having found that respondent's assignor was not connected with the alleged fraud, respondent was justified in relying upon the presumption against fraud and the long acquiescence of the parties who claim to be the victims of the fraud, unexplained by any acts which would overcome this presumption.

[6] In support of the appeal on behalf of the appellant, Seitz, Sr., it is urged that there was no consideration for his guaranty of payment except that based on fraud, but the facts are, as the trial court properly found, that this guaranty was given in consideration of the dismissal of a certain action then pending in San Diego County in which Mack and Seitz, Jr., were defendants and this property was under attachment, Seitz, Sr., having previously become the title owner of the property. These facts clearly support the finding of the court that Seitz, Sr., received full and adequate consid

eration for the guaranty. [7] Furthermore, the complaint alleges that the guaranty was in writing and sets it forth in haec verba. The writing itself imports a consideration. The allegations of the complaint are not denied, and the want of consideration for the guaranty is not put in issue by the defendants.

For the reasons given the judgment is affirmed.

Brittain, J., and Langdon, P. J., concurred.

[Civ. No. 2045. Third Appellate District.-September 25, 1919.] VALLEJO HIGH SCHOOL DISTRICT OF SOLANO COUNTY, Petitioner, v. DAN H. WHITE, as County Superintendent of Schools, etc., Respondent.

[1] SCHOOL LAW-EMPLOYMENT AND DISCHARGE OF TEACHERS-CONFLICT BETWEEN STATE AND MUNICIPAL LAW.-The government of schools and the employment and discharge of teachers are not municipal affairs, and. by virtue of the provisions of article XI, section 8, of the constitution, whenever a conflict arises between the provisions of the state law and the provisions of a city charter, the state law controls.

[2] ID.-NOTICE OF TERMINATION OF SERVICES-RIGHT OF APPEAL TO COUNTY SUPERINTENDENT OF SCHOOLS.-Where a high school district after the first but before the tenth day of June of a given year, in writing, notifies the principal of the high school that his services will not be required after June 30th, such principal is not re-employed for the fiscal year beginning July 1st, following, and thereafter he is not a teacher in the employ of the high school district, and the county superintendent of schools has no authority or power to entertain his appeal for reinstatement or to reinstate him in his office as principal of the high school in that district.

PROCEEDING in Certiorari to review the action of the county superintendent of schools in reinstating a high school principal. Order for reinstatement set aside.

The facts are stated in the opinion of the court.

Breed & Burpee for Petitioner.

Arthur Lindauer, District Attorney, for Respondent.

ELLISON, P. J., pro tem.-The petition sets forth that the petitioner is a high school corporation; that the respondent is county superintendent of schools of Solano County, California; that the petitioner school district is composed of the city of Vallejo and adjacent territory of an area of approximately the same as the city of Vallejo; that prior to the year 1918 petitioner employed one Carl H. Nielsen, as principal of said high school, and he acted as such until the thirtieth day of June, 1919, at which time his employment ceased; that after the first day of June, and before the tenth day of June, 1919, petitioner, in writing, duly notified said. Carl H. Nielsen that his services as principal of said high school would not be required after June 30, 1919, and that this notice was served upon him before the tenth day of June, 1919; that thereafter said Nielsen appealed to respondent as county superintendent of schools and asked that the action of the board of trustees of petitioner be reversed and he be reinstated as principal of said high school; that respondent, without notice to petitioner herein, reversed its action and reinstated said Nielsen as principal of said high school. Petitioner, claiming that respondent had no authority of law to entertain the appeal or make an order reinstating said Nielsen, applies to this court for a writ of review and asks that said action of said superintendent of schools in reinstating said Nielsen be annulled and set aside.

Respondent, by return of the writ, has set forth all his actions and proceedings as superintendent in connection therewith.

The controversy between petitioner and respondent grows out of the fact that the charter of the city of Vallejo contains different provisions on the subject of employment of teachers from that contained in the Political Code, and one of the questions submitted for decision is: Are the parties' rights to be governed by the state law, as found in the Political Code, or by the provisions of the charter of the city of Vallejo? The record shows that the petitioner received no notice that his services would not be needed after the current fiscal year, prior to the first day of May, 1919.

Section 1617 of the Political Code, under the heading of the powers and duties of trustees and boards of education in said school districts, provides: except that teachers

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