Opinion
No. 5685.
December 17, 1929.
Appeal from the District Court of the United States for the Northern Division of the Northern District of California; George M. Bourquin, Judge.
Action by H.L. Fredericksen against the Sacramento Suburban Fruit Lands Company. Judgment for plaintiff, and defendant appeals. Affirmed.
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 appellee.
Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.
This is another of the Sacramento Suburban Fruit Lands cases. The specifications of error are based on a consent order overruling a demurrer to the complaint and on the following exception to the charge of the court: "Defendant notes an exception to the instructions of the court on the subject of intent and the absence of instructions upon that subject; also the instructions of the court upon the subject of the statute of limitations as outlined in the instructions proposed by defendant, and the failure of the court to instruct upon the affirmative allegations of the answer relative to the arrangement made in February, 1927, when the lands were retransferred by plaintiff."
The consent order cannot be assigned as error. The court gave no instruction on the subject of intent as that term is understood in the law of deceit, and the absence of an instruction cannot be assigned as error. The instruction on the statute of limitations (Code Civ. Proc. § 338), as outlined in the instruction proposed by the defendant, was not a proper one for the reasons stated in Sacramento Suburban Fruit Lands Co. v. Schreindl (C.C.A. No. 5684) 36 F.2d 932, just decided, and the answer contains no affirmative allegations such as are referred to in the exception.
The judgment is affirmed.