more than $10,000, and plaintiff has nothing. Defendant executed and delivered a deed to plaintiff, and afterward, while a partner of plaintiff, took the deed from the safe into his own possession. The deed he not only destroyed, but to make assurance doubly sure he obtained a reconveyance by calling the paper a release. These matters all appear by the evidence, and the reasonable inferences to be drawn from such evidence. It may be that defendant can show the facts to be different; but the court should carefully look into and examine every fact and circumstance in order to arrive at the truth. If defendant paid any consideration for a reconveyance of the land, he will be allowed to show it. If he legally held the title to the land as security, the court can determine the amount of indebtedness due him by plaintiff. Surely the defendant should not be allowed to keep the proceeds of the sale of the lands if the above facts are true; and as before stated, we must here consider them true.

It is said that the plaintiff cannot complain because he was guilty of negligence in not reading the paper before he signed it. If such were the rule, it would indeed be a harsh one, and one that would work injustice upon many nonsuspecting persons. When the plaintiff had been asked to copy the release and had done so; when he had heard nothing else spoken of but a release, and was asked to sign the release with Allyn and Herrington, who were parties to the contract which was released, it is not surprising that he did not read it through to see if hidden within there was a deed of conveyance. He appears to have had confidence in defendant, and relied upon the statements made by defendant to him. It would hardly be presumed that defendant would call the paper a release in the presence of Allyn and Herrington unless he intended thereby to get it signed as a release.

The authorities fully sustain the proposition that relief will be granted under such circumstances.

In Higgins v. Parsons, 65 Cal. 280, [3 Pac. 881], the contract was that a certain note secured by mortgage should bear interest at the rate of "one per cent per month," but by mistake the note was made to read "one per cent per annum." The trial court held that the mistake could not be corrected in a court of equity on account of defendant's negligence in. not reading the note. The supreme court held otherwise and

reversed the case, and in the opinion said: "The finding that plaintiff might have discovered the mistake which he seeks to have rectified is an immaterial one. The right to have an instrument revised so as to have it truly express the intention of the parties is not made to depend upon the fact whether the party seeking to have it so revised might have discovered the mistake before signing such instrument."

In Calmon v. Sarraille, 142 Cal. 639, [76 Pac. 488], it appeared that the agent of plaintiff, in negotiating for the purchase of certain lands for $11,500, falsely represented to plaintiff that the vendor of the land insisted upon a deed of a lot belonging to plaintiff, and presented a deed as a part of the consideration, representing that it was a deed to the party. from whom plaintiff was purchasing, when in fact it was a deed to the agent, and the party selling to plaintiff had not heard of such deed, and only received the $11,500. Plaintiff, relying upon the representations of such agent, did not read the deed but signed it. The court gave relief, and in the opinion said: "The proposition of the appellant that inasmuch as the contents of the instrument were open to the plaintiff equally as to Garnier, and that as they signed it without reading it or having it read to them they are bound by its terms, is without merit. . . . Even when contracting parties are adverse to each other, either has the right to rely upon an express statement made by the other of an existing fact of which the truth is known to the other and not to him. (Mead v. Bunn, 32 N. Y. 275; Bank of Woodland v. Hiatt, 58 Cal. 234.)"

In Resh v. First Nat. Bank, 93 Pa. 397, where a suit was brought upon a promissory note, the defendant was allowed. to prove that he signed the note believing it to be a receipt. for moneys that had been paid to him, and that he relied upon a statement that it was a receipt for the money that he had so received. No suggestion was even made that defendant should have read the paper which was falsely represented to him to be a receipt.

In Pomeroy's Equity Jurisprudence, third edition, note d to section 896, the author quotes the language of Jessel, M. R., from Redgrave v. Hurd, L. R. 20 Ch. D. 1, as follows: "Nothing can be plainer, I take it, on the authorities in equity than that the effect of false representation is not got rid of on the

ground that the person to whom it was made has been guilty of negligence."

In our opinion the above-quoted authorities lay down the correct rule which should govern courts of equity in such matters. Nothing is more common than for a party who has agreed to give a deed or other contract relating to some specific subject, to sign it upon being told that it is the deed or contract which had been orally agreed to. The party who so signs has not exercised the greatest degree of care; but that will not excuse the party who intentionally misleads him. No one has a right, either in law or in morals, to complain because another has placed too great reliance upon the truth of what he himself has stated. In this case it comes with poor grace from defendant to say that plaintiff had no right to rely upon the statements made by himself to the effect that the instrument was a release.

It follows that the judgment should be reversed, and it is so ordered.

Kerrigan, J., and Hall, J., concurred.

[Civ. No. 190. Third Appellate District.-July 12, 1900.] In the Matter of the Estate of W. B. SHIVELEY, Deceased. DANIEL SHIVELEY and WILLIAM B. SHIVELEY, Administrators, Appellants.

APPEAL DISMISSAL-FAILURE TO FILE BRIEF.-An appeal will be dismissed upon motion of the respondent for failure to file any brief for appellants, though three years have elapsed since the transcript was filed, no appearance having been made for appellants to con test the motion.

MOTION to dismiss an appeal from a judgment of the Superior Court of Humboldt County. G. W. Hunter, Judge.

The facts are stated in the opinion of the court.

H. L. Ford, and J. S. Burnell, for Appellants.

J. N. Gillett, for Respondent.

THE COURT.-This is a motion to dismiss the appeal on the ground that appellants have failed to comply with supreme court rule No. 2, subdivision 4, [144 Cal. xl, 78 Pac. vii], requiring them to file their brief thirty days after the filing of the transcript. The motion is not contested, and as it has been more than three years since the transcript was filed and no brief has ever been filed, it seems to be peculiarly a case for the enforcement of said rule.

The appeal is dismissed.

[Civ. No. 559. Third Appellate District.-July 12, 1909.] A. DALTON HARRISON et al., Respondents, v. O. J. WOODWARD et al., Appellants.

ESCROW-ACTION TO RECOVER ESCROWED PAPERS-SETTLEMENT OF CORPORATIONS-ASSUMPTION OF DEBTS-FAILURE TO PAY AGREED SUM -TIME OF ESSENCE.-Where, upon the settlement of the affairs of a corporation, it was agreed that all of its stock, and other papers, should be deposited in escrow, and that plaintiffs should advance money to pay its debts on specific terms, and that a special advance of $40,000 should be repaid from assets or by defendants within six months, time being of the essence, and if not so paid, plaintiffs should be entitled to recover all of the escrowed papers, and there being default in such payment, plaintiffs were entitled to maintain an action to recover the same, making the defendants parties, so as to determine against them the breach of the conditions of the escrow. ID.-APPLICATION OF PAYMENTS-DEDUCTION OF EXPENSES UNDER CONTRACT EXCLUSIVE MODE OF APPLICATION.-The parties themselves having determined by the contract for the settlement of the corporation affairs that all expenses incurred in the course of liquidation by the plaintiffs shall first be deducted before any payments shall be applied upon the stipulated sum, the rule of application of payments established under the terms of the contract must be deemed exclusive.

ID. SETTLEMENT OF CORPORATE AFFAIRS BETWEEN STOCKHOLDERS-RELATION OF DEBTOR AND CREDITOR NOT INVALID-MISTAKEN APPLICATION OF PAYMENT ESTOPPEL.-In the settlement of the affairs of a corporation between stockholders, the relation of debtor and creditor does not exist between them, especially where defendants are merely privileged and not bound to make payments, and the rule of application of payments between debtor and creditor does not apply, and an improper credit of payment by plaintiffs does not estop them from deducting expenses incurred pursuant to the contract from such improper credit, before the application of payments under the contract.

ID. NATURE OF ACTION TO RECOVER ESCROWED PAPERS-FORFEITURE NOT INVOLVED.-The action by plaintiffs to recover the escrowed papers for nonpayment of the agreed sum within the time limited is not in the nature of an action to enforce a forfeiture, but is authorized by section 3280 of the Civil Code to recover specific personal property not belonging to the escrowee, but held by him in trust, and which the plaintiffs are entitled to enforce pursuant to the terms and conditions of the escrow.

ID.-VALUE OF PROPERTY NOT INVOLVED

PLEADING.-The value of the

things held in escrow is not involved in the action, and plaintiff is not required to allege their value, nor can the escrowee defend the action on the ground that the things held by him are of no value to the plaintiff. The action is not a claim and delivery; and the plaintiff is only required to show that he is entitled, under the terms and conditions of the escrow, to recover the specific and identical things held by the escrowee.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Franklin P. Nutting, and Henry Brickley, for Appellants.

Wright & Wright, for Respondents.

BURNETT, J.—The determination of the controversy really turns upon the construction of a certain agreement between James E. Bell and A. Dalton Harrison, the parties of the first part, and John M. Seropian and George M. Seropian, the parties of the second part, executed on the twenty-third day of January, 1904. These parties were the owners of all but