
    SACRAMENTO SUBURBAN FRUIT LANDS CO. v. STERN et al.
    Circuit Court of Appeals, Ninth Circuit.
    December 17, 1929.
    Rehearing Denied February 10, 1930.
    No. 5682.
    Butler, Van Dyke & Desmond, of Sacramento, Cal., and Arthur C. Huston, of Woodland, Cal., for appellant.
    Ralph H. Lewis and George E. McCutchen, both of Sacramento, Cal., for appellees.
    Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.
   WILBUR, Circuit Judge.

This is a companion ease to Sacramento Suburban Fruit Lands Co. v. Melin (No. 5671) 36 F.(2d) 907, to which reference is made for a more particular statement of the facts.

The alleged fraud consisted of misrepresenting the value of the land, relied upon by the appellee, and the representation that the land was “rich and fertile, capable of producing all sorts of farm crops and products, and that said land was entirely free from all conditions and things injurious or harmful to the growth of fruit trees, and that the said land was perfectly adapted to the raising of fruits of all kinds.”

The appellant requested an instruction, No. 14, to the effect that the plaintiff could only recover upon the proof of the false representations alleged in the complaint and not for other false representations. This was a proper instruction, and the court, after stating the allleged fraud in the terms of the complaint, instructed the jury in effect that, if it was shown that the land was not capable of raising fruit in commercial quantities as represented in the appellant’s book, plaintiff could recover. For illustration, the court instructed the jury as follows:

“So, Gentlemen of the Jury, taking the plaintiffs’ evidence, and the defendant’s evidence, in respect to the adaptability of the land for commercial orcharding,' if you find by the greater weight of the evidence that this land is not adapted to commercial orcharding, and is not worth $350 an acre, then you proceed to the next step.”

Judgment reversed.  