Miller v. First Savings Bank of Colusa

[388]

PRESTON (H. L.), J.,

pro

tem.

This is an appeal by the defendant First Savings Bank of Colusa from a judgment entered against it in the sum of $740.

The facts are briefly these: The defendant owned a small tract of land in Colusa County and through its cashier entered into an oral agreement to sell the same to plaintiffs for $3,716. Plaintiffs paid defendant this sum and defendant executed and delivered to them its deed particularly describing the land purchased, and reciting that it contained “9.29 acres, more or less.” Sometime after receiving the deed, the plaintiffs had the land resurveyed and found that it contained only 7.44 acres, or 1.85 acres less than that mentioned in the deed. Thereupon, demand was made upon defendant for the return of the overpayment, and said demand being refused, this action was brought to recover the alleged overpayment.

Plaintiffs contend, and the court found, that plaintiffs purchased the land upon the understanding that they were to receive 9.29 acres of land, for which they were to pay $400 per acre, or a total of $3,716. On the other hand, defendant contends that it sold the land to plaintiffs

en masse

for the sum of $3,716, and did not sell it on an acreage basis, and did not represent or guarantee that said land contained 9.29 acres.

The evidence, therefore, upon the vital issue in the ease is decidedly conflicting, but there is ample substantial evidence to support the conclusions of the trial court. The law is, of course, well established that the findings of the trial court upon conflicting evidence are conclusive on appeal, and all reasonable inferences are to be indulged in support of the findings, and the burden is upon appellant, who claims error, to show its existence. A few of the eases laying down this doctrine are as follows:

Wilbur

v.

Wilbur,

197 Cal. 7 [239 Pac. 332];