of one thousand one hundred dollars. One month thereafter he received a semi-annual dividend of twenty-five dollars from profits earned by the stock prior to his purchase, the rate of dividend being approximately five per cent per annum. Shortly thereafter the fire of 1906 occurred in the city and county of San Francisco, causing a suspension of the dividends upon the stock. On January 3, 1907, ten months after defendant had received the dividends referred to, he sold said ten shares of stock to the plaintiff herein for the sum of one thousand one hundred dollars, said sum being the exact amount that defendant had paid for the stock eleven months previously. The following day plaintiff resold the stock to his sister-in-law, a Mrs. Schweitzer. No dividends were declared on said stock during the succeeding years of 1907 or 1908, or until July 1, 1909, when a dividend of three dollars per share was paid, followed semi-annually by similar dividends up to the time of the trial in March, 1914. In February, 1911, at a point of time four years and over subsequent to the date of the sale and transfer of the stock to Mrs. Schweitzer, the Central Trust Company and the Anglo-California Trust Company became merged. At the time of the merger Mrs. Schweitzer delivered up her shares, and received in exchange therefor six shares of Anglo-California Trust Company stock, and the sum of $80, which sum was the equivalent of a fractional two-thirds share of said stock. On February 1, 1913, six years after the sale of the stock to the plaintiff, he was informed that his sister-in-law, Mrs. Schweitzer, felt bitter toward him on account of his having sold her the stock, and upon interviewing her upon the subject she informed him that she had not received any dividends on the stock until July, 1909, and also that he had misrepresented the value of the stock to her, and that it was not worth the sum of $110 per share at the time of her purchase. Thereafter plaintiff claims he paid to Mrs. Schweitzer the sum of $420. This sum, it appears, was the difference between eight hundred dollars, which was the value that the plaintiff and Mrs. Schweitzer determined the stock to be worth, and the sum of one thousand one hundred dollars, the price paid to plaintiff by Mrs. Schweitzer for the stock; and it seems this sum was sufficient to include interest from the date of the invest

On May 16, 1913, six years and four months after the sale by defendant to the plaintiff of the stock, and four years

subsequent to the resumption of the payment of regular dividends thereon, plaintiff filed his complaint herein alleging fraud in the procurement of the sale. Plaintiff alleged in his complaint as a basis for his cause of action that at the time of the sale by defendant to plaintiff, the defendant represented to him that said stock was worth the sum of one thousand one hundred dollars, being $110 per share, and was bearing interest at the rate of six per cent per annum. The evidence in support of this allegation shows that defendant informed plaintiff that he had paid the sum of $110 per share for the stock. With reference to the alleged representations of defendant concerning the interest, the evidence is not clear upon the point as to whether or not the defendant represented that the stock was paying five or six per cent at the time of its transfer from the defendant to plaintiff. However that may be, the judgment cannot stand for the reason that there is absolutely no evidence in the record of the value of the stock either at the time of its transfer from the defendant, or at the time of its transfer from the plaintiff to Mrs. Schweitzer. The only evidence relating in any way to that phase of the case consisted of the testimony of Mr. Ouer, a witness for the plaintiff, who is the cashier of the Anglo-California Trust Company, and who was the assistant cashier of the Central Trust Company during the years 1906 and 1907. His testimony was to the effect that the nonpayment of dividends would not necessarily indicate a decrease in the actual value of the stock, and that the stock would really be worth more by the nonpayment of dividends, providing the company was doing a profitable business. He also testified that the stock was not a listed one; that he could not give its actual value in January, 1907, and that its value depended entirely upon supply and demand. From this testimony counsel for plaintiff argues that it follows that the stock was worthless at the date of both sales, and only became valuable at the time of the merger of the Central and Anglo-California Trust Companies, four years thereafter, at which time the damages became crystallized and fixed, and that therefore the date of the merger is the only date possible at which damages could be assessed in view of the plaintiff's alleged excusable delay in the discovery of the alleged fraud.

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. (Wegerer v. Jordan, 10 Cal. App. 362, 365, [101 Pac. 1066].) In cases of this character the measure of damages is the difference between the value of the stock at the time of the transaction if the alleged representations had been true, and what it was then actually worth. However, the amount of the verdict was undoubtedly based upon the compromise agreement made between plaintiff and his sister-in-law six years after the transaction took place; and that this is so is evident from the fact that the verdict is for the exact amount claimed to have been paid to her by the plaintiff. Conceding that this sum represented the difference in value of the stock between the time of sale and the date when the merger of the companies took place, it by no means affords a criterion of the value of the stock at the time of the sale. We conclude, therefore, that there being no evidence of the value of the stock at the time of the transfer, there is absolutely no basis upon which a verdict could be predicated.

Defendant also invokes the statute of limitations as a shield to the action. As before stated, the complaint was filed six years and four months after the alleged fraud. No facts are pleaded showing why the alleged fraud was not sooner discovered. The complaint contains the mere statement that the fraud was not known or discovered by the plaintiff until about the first day of February, 1913. Such an allegation is insufficient to excuse the delay in bringing the action. (People v. San Joaquin Valley etc. Assn., 151 Cal. 797, [91 Pac. 740]; Truett v. Onderdonk, 120 Cal. 581, 589, [53 Pac. 26].)

The judgment and order denying a new trial are reversed.

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

[Civ. No. 1416. Third Appellate District.-December 1, 1915.] JOHN W. ULM, Respondent, v. CLARENCE M. PRATHER et al., Appellants.

RECEIVER-APPEAL FROM ORDER OF APPOINTMENT-RECORD-BASIS OF ORDER PRESUMPTION.-Upon an appeal from an order appointing a receiver, where there is no bill of exceptions in the transcript or other record showing upon what evidence the court based its order, the presumption must be indulged in support of the action of the court, that it had before it facts sufficient to justify it in making the order, notwithstanding the facts which are disclosed by the complaint might not themselves, taken alone, be enough to warrant the appointment under section 564 of the Code of Civil Procedure.

APPEAL from an order of the Superior Court of Siskiyou County appointing a receiver. James F. Lodge, Judge.

The facts are stated in the opinion of the court.

Taylor & Tebbe, for Appellants.

B. K. Collier, James R. Tapscott, and Tapscott & Tapscott, for Respondent.

HART, J.-The plaintiff brought this action for an accounting and thereby a determination and adjudication of the amount to which the parties to this action are, respectively, entitled, by reason of an agreement of copartnership entered into by and between said parties on the first day of June, 1909.

Besides praying for an accounting, the complaint asks that a receiver to act pendente lite be appointed by the court to take charge of the partnership property and assets, "to properly protect and care for the same, and, as soon as practicable and for the best interests of all concerned, market the aforesaid property, and the whole thereof, under the directions of the court, accounting to this court herein for the proceeds thereof."

The court accordingly made an order appointing a receiver, naming one Parshall as such, said receiver immediately qualifying as such by taking the oath of office and entering into and filing an undertaking, with approved sureties, in the sum of six thousand dollars, the amount fixed by the court.

This appeal is brought here by the defendants from the order appointing the receiver.

The complaint discloses that the plaintiff, a resident of Chicago, was the owner of a two thousand acre tract of land in Siskiyou County, this state, and also owned farming implements and other personal property, which were, at the time the copartnership agreement was entered into, situated on said land; that defendants were also the owners of certain farming implements and other personal property suitable for farming purposes; that, by the agreement referred to, the defendants were to take possession of said land, together with the personal property belonging to both parties, and were to operate, farm, and manage said ranch for the mutual interest and benefit of the parties for the period beginning with the first day of June, 1909, and ending on the thirtieth day of September, 1913; that the returns to come from the operation of the ranch by the defendants as a stock and hay ranch should, after the payment of all necessary expenses in conducting the business of the ranch, and of the money used in buying additional stock, tools, implements, etc., and the payment of the principal and interest of any borrowed money or capital used in the business, be divided equally between the parties, either in money or property. It was further agreed that the parties of the second part (defendants) "shall have the right and privilege of using not to exceed seventy-five dollars per month, during each month, of funds produced hereunder, toward defraying their family expenses, which shall be charged against them and against their interest herein," etc.

The complaint alleges that it was mutually stipulated and agreed by the parties to said agreement that the certain personal property heretofore referred to and separately owned by the parties was, as soon as the agreement was signed, to become the joint property of the first and second parties to said agreement and be equally owned by them, half and half, and that any amount due or furnished by the one party over the amount furnished by the other should be considered as money loaned by such party to the coparties, and should draw interest at the rate of six per cent per annum, and should be a first lien against such joint property and payable, principal and interest, from the joint sales of such property, or of the proceeds of the ranch, "and that among the terms of said agreement, any party thereto contributing any amount in ex