Patterson v. Almond City Land & Development Co.

HAVEN, J.

J.—The appeal is from a judgment in favor of the plaintiff in a suit to rescind a contract for the exchange of real property upon the ground of fraud, and to set aside a prior judgment of the superior court in Alameda County in a suit which grew out of one phase of the dealings between the parties under the contract. The appeal is taken in the so-called “alternative” method. The typewritten transcript of testimony covers something over four hundred pages and the findings of fact alone cover twelve typewritten pages.

[1]

As an appendix to appellants’ brief there is printed what is designated a

resume

of the evidence of three witnesses,

[287]

with some references to transcript pages. In the brief itself are certain conclusions of fact, to support which no reference is made either to the transcript or the appendix. There is nothing printed in either brief to inform the court clearly what the issues were before the lower court, and but a single one of the findings is printed, and that in the appendix to respondent’s brief. Under these circumstances, the court will not examine the voluminous typewritten transcript in search of error upon which to base a reversal.

(Scott

v.

Hollywood Park Co.,

176 Cal. 680, [169 Pac. 379] ;

Randall

v.

Allen,

26 Cal. App. Dec. 852.)

While the above authorities, and many other pronouncements by the appellate courts of this state, justify a refusal to examine any portion of the record not printed in the briefs, we are loath to refuse to pass upon the merits in any case where counsel have endeavored properly to present their points. In this case the appellant contends the judgment should be reversed because of laches on the part of the plaintiff, because of her waiver and ratification of the fraud perpetrated upon her, and because of her failure promptly to meet every requirement of the law in regard to rescission. Giving to the appellants’ statement of evidence its strongest force, it appears from the similar unsatisfactory statement of evidence in the respondent’s brief that there was a clear conflict of evidence as to the time when plaintiff had knowledge of the fraud, and as to the extent of such knowledge, upon which facts the defenses of laches, waiver, and ratification are all dependent. It must be assumed, therefore, the findings were supported by sufficient evidence.