
    [Sac. No. 1615.
    Department One.
    September 24, 1908.]
    E. R. LAURENCE, Respondent, v. J. N. KILGORE, and J. P. MASSIE et al., Appellants.
    Agency for Purchase of Land — Excessive Purchase Price Paid to Agent — Action to Recover — Rescission.—-Where an agent buys land for his principal and fraudulently represents to him that the purchase price was an amount in excess of the sum actually paid by the agent, an action by the principal against the agent to recover the portion of such excess as was paid to him in money and to cancel a note given for the balance is not one for the rescission of the contract of purchase, and the principal as a condition precedent to maintaining the action is not required to return the land.
    Id. — Finding as to Agency- — Conflicting Evidence. — In sueh an action, where the evidence as to the existence of the relation of principal and agent between the parties is conflicting, a finding that the agency existed will not be disturbed.
    APPEAL from an order of tbe Superior Court of San Joaquin County refusing a new trial. F. H. Smith, Judge.
    The facts are stated in the opinion of the court.
    
      W. Goodwin Williams, and N. J. Manson, for Appellant Massie.
    Plummer & Dunlap, for Respondent.
   SHAW, J.

The only appeal remaining in this cause is that of defendant Massie from the order denying his motion for a new trial.

Kilgore, acting as agent for Laurence, who was absent from the state, bought for Laurence a farm of Claiborne at the price of eighty-seven hundred and fifty dollars, taking the deed in his own name. He represented to Laurence that the price was $20,330 and that he had taken title in his own name for convenience in making the purchase, and upon this representation obtained from Laurence $10,166.50 of the supposed purchase price, in cash, and a note to himself and Massie for the unpaid portion of the price, whereupon he conveyed to Laurence. Massie received the note without consideration. On discovering the truth Laurence brought this suit against the defendants to recover of Kilgore the sum of $1416.50, being the excess of the money paid by him to Kilgore, over the price paid by Kilgore to Claiborne, and to cancel the note to Kilgore and Massie. Judgment was given against Kilgore for the sum claimed and against all the defendants for the cancellation of the note.

The main point argued is the insufficiency of the evidence to sustain the finding of the court that Kilgore was the agent of Laurence to buy for him the land of Claiborne. The most that can be said in favor of the appellants is that the evidence is in substantial conflict on the subject. Under the rule of law governing the power of this court on appeal, we cannot consider the weight of the evidence in such cases, and must take the fact as found by the trial court.

The suit is not for the rescission of the contract, and hence the plaintiff was not required to return the land, or place the plaintiff in statu quo, as a condition of maintaining the action.

No other points are presented.

The order'is affirmed.

Angellotti, J., and Sloss, J., concurred.

Hearing in Bank denied.  