AUGUST AHRENS v. BAR ADLER, 33 Cal. 608

By the Court, Shatter, J.: The correctness of the ruling by which the evidence offered by the defendant after the complaint had been amended was rejected by the Court, depends upon whether the issues raised by the denials of the complaint were changed by the amendment in any material particular; and that is the point to which the argument of the appellant is addressed. Our judgment upon the question is, that the issues were not altered by the amendment, and that there was not even a complexional change made in them.

The defendant claims that the complaint, prior to the amendment, made a ease of money had and received by the defendant to the plaintiff’s use; the purpose being to recover back the consideration paid, on the ground that the contract had been rescinded by the plaintiff. But money had and received was not the case which the complaint presented. The action, in common law parlance, was not ex contractu but ex delicto. Its gist was a fraud practiced upon the plaintiff by the defendant through false representations—whereby the plaintiff was drawn into the contract for the purchase of the mines.

General damages were claimed; and they, it is to be observed, were not limited to the purchase money, but far exceeded it in amount. The clause of the complaint struck out under the leave to amend did not aver in direct terms that the sale had been rescinded, nor did the facts detailed in the clause amount to a rescission, or to an offer to rescind in legal effect. An offer “to return the deed” given by the defendant, to the plaintiff would not, if it had been accepted, have invested the defendant with the title to the mines.

There being, then, no effectual averment of an offer by the plaintiff to put the defendant in statu quo, rescission was not a point in the right counted on. The averment of an “ offer to return the deed ” was abortive from the beginning. We may, and if need be, we are bound to presume, that the case was tried as one sounding in damages; fraud being the gist, and not a mere stepping-stone to the gist.

A larger sum than the consideration, rendered for the conveyance,, might have been recovered under the ad damnum, and the circumstance that the amount recovered was but the equivalent of the consideration, though not destitute of argumentative weight, is far from demonstrating that the hearing was as of a claim by.a vendee for a return of purchase money eo nomine, on an allegation that the sale had been rescinded. Judgment affirmed. Mr. Justice Rhodes did not express an opinion.