to have said well so left was irrespective of the question whether oil had been discovered on said land, or whether there was reasonable ground to believe that oil would be discovered thereon. If, therefore, you find that the Lorene Oil Company did not leave the well drilled by it in the condition above described, then your verdict must be for the plaintiff in an amount sufficient to place said well in such condition, not exceeding, however, the sum of twenty-two thousand five hundred dollars." Under this instruction the jury was practically told to find for the full amount of damages prayed for, regardless of whether there was oil in the land or not, or whether the well was of any value at the time of the removal of the casing, and regardless of whether the well would have been of any value if restored, or whether the well as left could have been made thoroughly useful at a less cost. We are of the opinion that the instruction was erroneous.

The instruction was based on the theory of plaintiff that he was entitled to have the casing remain in the well for the reason that the lease so provided, and that this right was not dependent or based upon the use to which the lessor might thereafter put such well, or whether thereafter he ever used it at all; that it was enough for the corporation to know that it was "so nominated in the bond." It is a fundamental rule of law that courts will not, except where exemplary damages are given, allow a party to a contract, to recover upon its breach more than he would have received by its due performance. The Civil Code, in providing for the measure of damages in the case of a breach of contract, lays down the rule that a party is entitled to recover an amount which will compensate him for all the detriment proximately caused by the breach, or which in the ordinary course of events would be likely to result therefrom (Civ. Code, sec. 3300). In the early case of De Costa v. Massachusetts etc. Min. Co., 17 Cal. 613, where the plaintiff had brought an action for damages. for the digging of a ditch across a piece of land, the court below awarded sufficient damages to pay the expense of filling and restoring the land to its original condition; and the supreme court, in reversing the judgment, said: "In assessing the damages the court proceeded on an incorrect basis, and of course arrived at an erroneous result. The plaintiff could not recover beyond the injury sustained, and it was improper to award compensation for an expense which might never have

been incurred. It is possible that the cost of filling up the ditch may far exceed any injury resulting from its present condition; and in that case it is not probable that the amount would ever be used for the purpose." (See, also, Harvey v.

Sides Silver Min. Co., 1 Nev. 541, [90 Am. Dec. 510].) So here defendants sought to ascertain from plaintiff whether or not he ever intended to pursue development work for oil, but upon objection by his counsel his intention was kept from the jury. Under the instruction here given, irrespective of the testimony of defendants' witnesses, that the land in question was not oil land, and that therefore the leaving of the casing in the well according to the agreement would have availed plaintiff nothing, the jury was obliged to find the amount of damages claimed based on the cost of the well, although convinced that plaintiff would have gained nothing by a full performance of the contract except the value of the casing when removed from the well. Again, by reason of the instruction, the value of the casing was ignored, and by it the first cost was made the criterion irrespective of the fact that the well was useless. Defendants introduced evidence, upon which there was a conflict, to show that in order to make the well a producing one, it would be less troublesome and expensive to accomplish this purpose with the casing taken out of the well than if left in. By this instruction the latter question was eliminated from the consideration of the jury. This was a proper matter to be considered in the assessment of the damages suffered; as plaintiff is entitled to recover his pecuniary loss only. In our opinion, these and kindred questions are proper ones for consideration by court or jury in determining damages in cases of this kind. If the land upon which the well was situated was barren and desert land, and its only value was for its oil contents, and it could be proved that it contained no oil, then the only damage suffered by plaintiff would be the value of the casing when removed from the well. If, on the other hand, the land contained oil, and it was necessary that the casing should be left in the well for its further and proper operation, then the damage sustained would be an amount which would compensate plaintiff for all the injury or detriment caused by its removal or which might result therefrom, and no more. Here if oil had been discovered, the plaintiff would have been entitled to receive the sum of twenty thousand dollars as the purchase price of

the land had the Lorene Oil Company exercised the option given it. No oil was discovered; and under the theory of the measure of damages adopted by the trial court the plaintiff by the verdict obtains a judgment for twenty-two thousand five hundred dollars, even conceding the fact to be that the land contained no oil and was otherwise worthless. The law affords no such remedy.

Certain rulings of the court on the admission of testimony are claimed to be erroneous. These rulings in the main were based upon the court's theory of the measure of damages, and it is unnecessary to discuss them in view of what we have already stated upon that subject.

Defendants further contend that by reason of the fact that the complaint contains an allegation that the land in question is oil land, the provision in the contract that the lessee should not remove the casing therefrom or plug any wells without the written consent of the lessor makes the contract void upon its face, and that the demurrer to the complaint should have been sustained upon that ground. The basis of this contention is that such provision is violative of the act to prevent injury to oil or petroleum bearing strata by the infiltration or intrusion of water therein (Stats. 1903, p. 399), and which requires that upon the abandonment of any oil well it shall be the duty of the owner to withdraw the casing therefrom and fill up such well.

The statute was not designed to affect a case of this character. The lessor had the undoubted right to reserve unto himself the right to further prosecute the development of the land, irrespective of the fact that the lessee might conclude to abandon the lease for the reason that he was of the opinion that it was useless to further prosecute the work of exploration.

And, finally, defendants call the attention of the court to the proclamation of the President of the United States withdrawing from entry certain mineral lands, including the land here in question; and they claim that by reason thereof the plaintiff had no title to this land, and therefore has no cause of action. The proclamation referred to was issued July 2, 1910; the time of the entry of the Lorene Oil Company upon the land as lessee, and the time of the removal of the casing, were both prior to such proclamation. Whatever rights had accrued as between the parties were not affected by it. Moreover, it is a rule of law that a tenant is not permitted to deny

the title of his landlord. At the time of the breach of the covenant in the lease the plaintiff was in lawful possession of the land as a locator under the mining laws of the United States, and his right to the land as against everybody except the United States government was the same as though he held the land in fee (Jennison v. Kirk, 98 U. S. 453, [25 L. Ed. 240]). Then, too, the validity or invalidity of the proclamation is not a matter that could be litigated in this proceeding. As to the defendants Katharine Brennan and E. H. Pauson, the prayer for damages against each of them is for less than three hundred dollars, and it is conceded that under the authority of Myers v. Sierra Valley etc. Assn., 122 Cal. 669, [55 Pac. 689], the superior court had no jurisdiction as to them, and a dismissal of the case as far as they are concerned is consented to.

For the reasons given the judgment and order are reversed, with directions to dismiss the action as to Katharine Brennan and E. H. Pauson.

Lennon, P. J., and Richards, 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 January 28, 1916.

[Civ. No. 1580. First Appellate District.-December 1, 1915.] WILLIAM GLINDEMANN, Respondent, v. WILLIAM EHRENPFORT, Appellant.

FRAUD-SALE OF CORPORATE STOCK-DAMAGES-UNWARRANTED JUDGMENT.-In an action to recover damages alleged to have been suffered by reason of certain false and fraudulent representations concerning the value of certain shares of corporate stock, and the interest or dividends that such stock paid, whereby the plaintiff was induced to purchase the same from the defendant, a judgment in favor of the plaintiff, who resold the stock the day following its purchase, cannot be sustained, where the amount of the same is based upon the difference between the value that the plaintiff and his purchaser determined the stock to be worth under a compromise agreement made between them six years after the occurrence of

the transaction, and the price paid to plaintiff by such purchaser for the stock.

ID. MEASURE OF DAMAGES.-In such an action the measure of damages is the difference between the value of the stock at the time of its sale by the defendant to the plaintiff and what it was then actually worth.

ID.-EVIDENCE-VALUE OF STOCK-DIVIDENDS.-While the payment of dividends and the amount thereof are elements affecting the value of corporate stock, it by no means follows that such stock has no value because of the failure to pay dividends thereon.

ID. PLEADING-DISCOVERY OF FRAUD-INSUFFICIENT COMPLAINT STATUTE OF LIMITATIONS.-A complaint in an action for damages for fraud in the procurement of a sale of corporate stock, filed six years and four months after the alleged fraud, which contains no facts showing why the same was not sooner discovered, but which simply recites that the fraud was not known or discovered until about a certain date, is insufficient.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Adolphus E. Graupner, Judge.

The facts are stated in the opinion of the court.

Liess & Sweasey, for Appellant.

James M. Hanley, for Respondent.

LENNON, P. J.-This action was brought to recover damages alleged to have been suffered by plaintiff, William Glindemann, by reason of certain alleged false and fraudulent representations made by defendant concerning the value of certain shares of corporate stock, and the interest or dividends that such stock paid, whereby plaintiff was induced to purchase said stock from the defendant. The case was tried with a jury, which rendered a verdict in favor of the plaintiff for the sum of $420, and this appeal is from the judgment rendered thereon and from the order denying the defendant a new trial.

It is insisted by the appellant that there is no evidence upon which the verdict and judgment can be sustained.

The facts leading up to the transaction, briefly stated, are these: In February, 1906, the defendant purchased ten shares of the capital stock of the Central Trust Company for the sum