Pereira v. Toscano

[528]

FINCH, P. J.

The plaintiff, a minor, by his guardian

ad litem,

brought this action to recover the amount which he alleges he paid on a contract for the purchase from defendant of a dairy business, livestock, and other personal property, and which contract the plaintiff disaffirmed on the ground of his minority. The court found in effect that the plaintiff had so paid the sum of $2,300, and that he had received from the sale of a part of the livestock the sum of $600, leaving a balance in his favor of $1,700. Judgment was entered accordingly and the defendant has appealed.

Appellant urges two grounds for reversal of the judgment : “First, that the evidence does not support or sustain the finding that plaintiff paid defendant the sum of $2,300 on account of the purchase price of said dairy. . . . Second, that the evidence does not sustain the finding that plaintiff disaffirmed said contract of purchase or offered to restore to the defendant the property and consideration received from defendant, and did further offer to pay defendant the equivalent of all property that plaintiff has received from defendant and could not return to defendant.”

' There is a substantial conflict in the evidence in some respects, but it is amply sufficient to support the findings. The evidence is clearly sufficient to establish the following facts: At the times of the transactions referred to herein, the defendant was president of the First National Bank of Los Banos, and his son, J. L. Toscano, was cashier thereof. Prior to December 1, 1920, the owner of a two-thirds interest in the dairy business and property involved in this action was indebted to the bank in the sum of $24,000, and J. L. Toscano took over the property and assumed such indebtedness. On December 1, 1920, he sold an undivided half of such dairy business and property to the plaintiff for the sum of $20,000, of which sum the plaintiff paid in cash $3,000. At the same time cross-defendant Cunha purchased the other half interest in the business and property. Prior to the time of such purchase the plaintiff and Cunha, as partners, owned 37 cows, for which they paid $4,400. Neither of .them can read English. Without their knowledge, but apparently without any fraudulent intent, J. L. Toscano caused these 37 cows to be included in the contracts which he executed with plain