able time, to rescind the contract, and restore the parties to their former condition, or to affirm the contract, and claim compensation or damages for the injury he has sustained by reason of the fraud. The rule is so stated in Gifford v. Carvill, supra, quoting the language of the court in Herrin v. Libbey, 36 Me. 357. 29 Cal. 592. See, also, Burton v. Stewart, 3 Wend. 239, and other cases cited on page 592 of 29 Cal. It is well settled that a party cannot recover damages for a false representation without showing by averment and proving damage. Morrison v. Lods, 39 Cal. 385, and cases there cited. The plaintiff here does not aver that he has been damaged at all. The words "damage" and "damages" cannot be found in the complaint. The complaint seems to be framed on the idea or hypothesis that, by reason of the false and fraudulent representations made by the defendant in regard to the 10 shares of stock, the plaintiff, on offering to return the stock and the dividends recovered on it, is entitled to recover the sum of $14,000, the amount for which, it may be inferred from the complaint, though there is no express averment of such a fact, he received it.

But, conceding it is averred in the complaint that the plaintiff was damaged by reason of the false representations to the amount of $14,000, there is an entire want of averment showing that plaintiff has sustained any such damage, or any damage at all. There is no averment of the value of the interest in the concern which plaintiff assigned by defendant's direction in exchange for the stock, nor is there any averment of the value of the notes which were assigned by plaintiff as part of the consideration for the stock. It does not appear by averment that the firm was solvent, or that the notes were of any value whatever. Non constat, but that the firm was insolvent and the notes worthless. As the complaint shows that the plaintiff received of defendant on the transaction $2,500 in money, for which he transferred the interest and notes, which do not appear to have had any value, conceding that the shares of stock were of no value, it appears that plaintiff, instead of suffering any damage, was benefited to the amount of $2,500. It does not appear in any way that defendant warranted the stock to be worth $14,000; and we know of no rule of law which would justify a court in presuming or assuming or inferring that the interest and notes assigned to defendant by plaintiff were, in the absence of an averment as to their value, of any value whatever. To state it briefly, the complaint in legal effect, shows that the plaintiff exchanged property of no value for valueless stock and $2,500. It is thus made to appear that the plaintiff, instead of being damaged, was benefited to the amount above stated. Such a mode of pleading cannot be considered as charging defendant with any damage for which he can be held responsible in law to the plaintiff, or any one else. The complaint is not made suflicient by the amendments in it.

If defendant has had to pay $1,000 for an assessment on the stock, he is still benefited to the extent of $1,500. The complaint, in our judgment, is insufficient, in any view that can be taken of it. The demurrer of the defendant to the complaint should have been sustained, and the court erred in overruling it. The judgment and order denying a new trial are therefore reversed, and the cause remanded, with directions to the court below to sustain the demurrer to the complaint, with leave to plaintiff to amend his complaint, should he be so advised. Ordered accordingly

We concur: MCFARLAND, ; SHARPSTEIN, J.

(82 Cal. 214) HAGENMEYER v. BOARD OF EQUALIZATION. (No. 12,428.)

(Supreme Court of California. Dec. 28, 1889.) TAXATION-BOARD OF EQUALIZATION-PROCEDure. 1. A rule of the county board of equalization, framed under Pol. Code Cal. § 3673, provides that, when it is proposed to increase or lower an assessment, notice of the same must be given by the clerk of the board depositing in the post-office, at his regular place of business, a circular letter, postage paid, addressed to the person whose interests are to be affected, stating the valuation placed by the assessor on the property to be raised or lowered, and the valuation to which said property is proposed to be raised or lowered, and directing him to appear before the board, within seven days from date of notice, to show cause why such change should not be made, but there was no requirement that a return on the letter mailed as ordered should be made to the board. Such notice was sent to plaintiff on July 11th, and on July 18th the board made an order increasing plaintiff's assessment. The board was informed by its clerk, at the time of making the order, that proper notice had been mailed to plaintiff, and plaintiff did not deny receiving the notice. Held, that plaintiff had proper notice to give the board jurisdiction.

2. Where the board makes a copy of its rules relative to giving notice to persons interested of an intention to increase or reduce an assessment a part of the return to a writ of review, it is proper to refuse, on the motion of the board, to strike the same from the return.

3. It was not error for the court to strike from the return a copy of the notice and affidavit of proof of mailing, etc., when the same were not considered by the board at the time it made its order raising plaintiff's assessment.

4. As the rules of the board did not require a prescribed manner of proof of giving such notice, any legal testimony, at the time of making the order, was competent to establish the fact.

5. Where a party has notice of the intended action of a board of equalization in regard to the assessment of his property in time to have a full and fair hearing during the session of the board, such notice is sufficient, unless it appears affirmatively that a full and fair hearing was denied him by the action of the board.

6. When the record of a board of equalization does not show affirmatively that the board did not act on evidence before it in raising an assessment, its order in the premises is conclusive that it did act on such evidence as was necessary.

Commissioners' decision. Department 2. Appeal from superior court, Mendocino county; R. MCGARVEY, Judge.

Application by G. Hagenmeyer for a writ of review to annul an order of the board of equalization of Mendocino county raising his

assessment of taxes.

for plaintiff, and the board appealed.

J M. Mannon, J. Q. White, and Atty. Gen. Geo. A. Johnson, for appellant. T. L. Carothers, for respondent.

FOOTE, C. This was an application for a writ of review, the purpose of which was to annul an order of the board of equalization of Mendocino county, increasing the assessment of taxes upon the property of Mr. Hagenmeyer, the plaintiff. The court below seems to have been of the opinion that the board had exceeded its jurisdiction, and ordered that its action in the premises be annulled. From the judgment rendered this appeal is prosecuted.

One question upon which the determination depends, as it appears, is whether or not the plaintiff had due notice that the board proposed to increase or lower his assessment. The return to the writ of certiorari showed that, according to a rule made by the board, notice as to such matters was to be given by the clerk of that board, "by depositing a circular letter in the U. S. Post-Office, addressed to each of the persons whose interests were to be affected, at his regular place of business, with the postage thereon prepaid." "Said notice to state the valuation placed by the assessor upon the property to be raised or lowered, and the valuation to which said property is proposed to be raised or lowered by said board, and a direction that the owner of such property appear before the board, within seven days from the date of the notice, and show cause why such change should not be made." It further showed that, according to the minutes of the board, such a notice was sent to the plaintiff on the 11th of July, 1887. The order increasing his assessment was made on the 18th of the same month and year.

The affidavit of the clerk of the board showed that such notice had been mailed and sent to the plaintiff on that day by the clerk; but, according to his evidence as a witness on the trial, such notice and affidavit, proving mailing, etc., were not before the board at the time it made the order; and that he appended his affidavit of proof of mailing, etc., some days after the order was made. He also testified that he had told the board, on the day when the order was made, that such a notice had been duly mailed on the 11th of July, 1887. And he thought then, and still thinks, from his memory of the matter, that he had done so as a matter of fact. It is a significant circumstance in this connection that the plaintiff does not appear and testify that he did not receive such a notice.

It is contended that the court erred in not striking out, on the appellant's motion, the copy of the rules of the board with reference to giving notice. As this was made a part of the return, so far as the appellant could make it so, even although it was not properly a part thereof, (Water-Works v. Schottler, 62 Cal. 69-100,) it ought not to be allowed to prevail in its contention that the court

Again, the appellant urges that the action of the court was erroneous in striking out of the return the copy of the circular letter or notice, and the affidavit of proof of mailing, etc., of the clerk of the board. The part of the return thus stricken out was, according to the clerk's evidence, not before the board when the order was made; and the action of the court in striking it out was not prejudicial error. But after it was stricken out it still appears, by the testimony of the clerk, in support of the recitals of the minutes of the board, that such a notice, complying with the rule of the board, was, according to his recollection, mailed on the 11th of July, 1887, the date of the notice, to the plaintiff's address, at his regular place of business.

The rules of the board (framed under the authority conferred by section 3673 of the Political Code) did not require that any return upon the circular letter mailed as ordered should be made by any one to the board that such notice had been given, nor that any affidavit of proof, or any other action, should be taken, of a prescribed character, to inform the board that such notice had been mailed, and when. That proper notice was given by mailing was left to be shown to the board at the time when it might take action as to the raising or lowering the assessment. This fact could be established by any proper legal testimony, either oral or in writing. It seems that the board was by the clerk informed that the notice, as required by the rule, had been mailed; and his evidence on this trial shows that it was so mailed. So that it is clear the proper notice was mailed to the plaintiff, to his address, on the day of its date, the 11th of July, 1887.

But the respondent argues that, as the order sought to be annulled was made on the 18th of July, 1887, it did not comply with the rule, supra, as to notice; that it was made before the seven days had expired within which the plaintiff was cited to appear before the board and "show cause," etc. The view entertained by the respondent seems to be that he had all of the time intervening between the 11th and the 18th, and including the whole of the 18th, and up to and on the 19th of July, in which to show cause; and that, as the order was made on the 18th, it was made too soon. This contention is declared to be without merit in Misch v. Mayhew, 51 Cal. 516, where section 12 of the Code of Civil Procedure is construed. The rule as to the matter of notice in such cases as that in hand is well stated in Water-Works v. Schottler, 62 Cal. 103, as follows: "In our opinion, as intimated in Patten v. Green, 13 Cal. 330, such tribunals as the boards of

supervisors ought not to be held to any great strictness of procedure in the matters above discussed herein, and if, under a rule or an order of such boards, a party has notice of the intended action of a board of supervisors, sitting as a board of equalization, in regard to the assessment of his property, in time to have a full and fair hearing during the sessions of the board, we shall hold such notice to be sufficient, unless it appears affirmatively that a full and fair hearing was denied him by the action of the board. Of course, the rule as to time here laid down is not intended to apply to a case where the law requires a notice of a definite number of days to be given, and no such notice has been given." Taking the view that the rule of the board in such a case as this is to be regarded as a law upon the question of the kind of notice to be given, and the time within which the party to be affected may appear and be heard, it is clear that the plaintiff had such notice as the law required, and the board had jurisdiction of his person.

The further point is made in favor of the judgment of the court below that the record does not show that the board took any evidence by which to be guided in raising the assessment, and that, under section 3676 of the Political Code, it could not, without any evidence, raise an assessment. The record does not show by affirmative proof that the board did not act upon evidence before it. Therefore its order in the premises is conclusive that it did act upon such evidence as was necessary. Humboldt Co. v. Dinsmore, 75 Cal. 604, 607, 608, 17 Pac. Rep. 710. For the reasons stated we advise that the judgment be reversed.

We concur: BELCHER, C.C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed.

(82 Cal. 351)

COLTON . STANFORD et al. (No. 11,983.)

(Supreme Court of California. Jan. 2, 1890.) DEALINGS BETWEEN TRUSTEE AND CEstui que TRUST-FRAUD-COMPROMISE.

1. Where a beneficiary, in negotiating with her trustees for a settlement, renounces all confidence in them, and acts exclusively on the advice of her own personal friends and advisers, specially selected by her to make investigations, and counsel her, a contract of compromise entered into between her and the trustees, who during the investigation acted in good faith, and disclosed everything within their knowledge, will not be set aside on the ground that the trustees did not impart all the knowledge which they might have acquired by diligent and skillful search.

2. Where the trustees furnish a statement of the assets of a company, in which they and the beneficiary are interested, believing such statement to be correct, and stating that they know nothing except what is shown by their books and vouchers, and the beneficiary, not relying on such statement, employs counsel to look into the affairs of the company, and experts to examine the books and vouchers, the trustees offering every facility

for a thorough investigation, and such an investigation being had, the beneficiary cannot have a contract of compromise, entered into on the faith of such investigation, rescinded on the ground that the statement of assets was false.

3. The fact that such company, a few days after the compromise, paid a large indebtedness to another company with bonds of a third company at 90 cents on the dollar, while before the compromise these bonds were represented to the benefi ciary to be worth only 60 cents, is not fraud on the part of the trustees; nor does it constitute an equitable estoppel, preventing the trustees from denying that the bonds were worth more than 60 cents at the time of the compromise, where the trustees owned the stock of all three companies, and fixed the value of the bonds arbitrarily.

4. Under Civil Code Cal. § 1568, providing that consent to a contract is deemed to have been ob

tained through fraud, mistake, etc., only when it would not have been given had such cause not existed, a contract of compromise will not be rescinded on the ground of misrepresentation, where it ap pears that it would have been executed notwithstanding such representation.

5. In an action to rescind a contract of compromise, it appeared that plaintiff's testator had been associated with defendants in the building of railroads on a large scale, their transactions involving many millions of dollars, and that at the time of his death defendants were much in need of money to carry on their operations. Plaintiff, not wishing to share the risks and continue with defendants in her testator's place, insisted on a settlement, and against the wishes of defendants, who urged her to remain with them, a compromise was made, whereby she was allowed to draw out testator's share. Before making the compromise plaintiff employed able counsel and experts, who thoroughly investigated the affairs and accounts of testator and defendants; the latter doing all they could to aid them in their investigation. At the time of his death testator owed large sums of money in the schemes in which he and defendants were interested, and the railroad securities owned by him were such that they would have brought little had defendants chosen to sell him out, instead promise. Held, that the facts do not show that of buying his interest, as they did under the comthe compromise was obtained through any fraud or undue influence on the part of defendants.

In bank. Appeal from superior court, Sonoma county; JACKSON TEMPLE, Judge.

Stanly, Stoney & Hayes and E. W. McKinstry, for appellant. Creed Haymond and Garber & Bishop, for respondents.

PATERSON, J. From the 5th day of October, 1874, down to the time of his death, Da

vid D. Colton was associated with defendants in the ownership, control, and direction of certain corporations. Prior to that time defendants and Mark Hopkins had been the principal owners of the stock of the Central Pacific Railroad Company, the Southern Pacific Railroad Company, and of various other subordinate and connected railroad companies, and also of the Contract & Finance Company. They had associated themselves together for the purpose of securing the cooperation and assistance of all in the furtherance of certain railroad enterprises, and of such others as they should from time to time agree upon. In pursuance of the terms of their asssociation and agreement they had invested, respectively, large sums of money, and were giving their time and labor to the management and direction of the corpora tions above named, and to the acquisition