exceptions, and the specifications in which the decision of the court below is not sustained by the evidence, and the specifications of errors of law, as our guide in reviewing the case, and to these alone. If a question is presented by such specifications, and is properly saved in the statement or bill of exceptions, this court will look no further, but must presume that the question was properly presented to the court below, and passed upon in its ruling upon the motion for a new trial.

We do not put this upon the ground of waiver by the opposite party, as is done in some of the earlier cases, but upon the sole ground that we must look alone to the statement or bill of exceptions for the questions to be determined, in the absence of any showing by the respondent that no notice, or an insufficient one, was given. Undoubtedly, the notice of intention is necessary, but if it has not been given, or has been given too late, that must be shown by the respondent as against the settlement of the statement or bill of exceptions, or at the time of and in opposition to the motion for a new trial; and if the court below rules againt him, he must cause the facts necessary to present the question to be then included in the statement or a proper bill of exceptions, so that this court can determine whether a proper notice has been given or not.

The specifications in the statement or bill should conform to the notice of intention to move for a new trial.

If they do not, the opposite party should move such amendments thereto as will remove therefrom all matter foreign to the grounds stated in the notice, and in settling the same the court below should see that the statement does not go beyond the notice, either in the body of it or in the specifications. If this is done, and the statement or bill is properly made up, no injury can result to any one from the failure to bring up the notice.

It has been held by this court in a number of cases that it must be made to appear by the statement that a notice of intention has been given, or that the giving of such notice has been waived. (Calderwood v. Brooks, 28 Cal. 151; Wright v. Snowball, 45 Cal. 654; Dominguez v. Mascotti, 74 Cal. 269.)

There may be other cases to the same effect. The legislature has said, in effect, that the notice need not come to this court as a part of the judgment roll, and has made no provision for bringing it here in any other way. The conclusion that must necessarily be drawn from this is, that it was not the intention that it should come to this court at all, and we so hold.

The cases cited above, and all others laying down a rule of practice, under the code as it now stands, in conflict with the practice as above stated, are overruled.

As to the merits of the case, but one question is presented by the briefs, viz., whether certain findings of the court are sustained by the evidence. Counsel for appellants contend with great earnestness that there is no evidence against them as to some of these findings, and then proceed in elaborate and able briefs to prove that the evidence against them is unworthy of belief. We have carefully examined the transcript, and find that all the findings attacked are supported by some evidence. Counsel simply ask us to enter upon an investigation of the evidence to determine the credibility and weight to be given to the testimony of the witnesses, and especially that of the defendant Cohn. This we cannot do under the well-established rule that where there is a substantial conflict in the evidence, as there is here, this court will not disturb the decision of the court below. (Bernal v. O'Hanlon, 59 Cal. 284; Capital Savings Bank v. Reel, 62 Cal. 425.)

The importance of the case and the elaborate arguments of counsel might seem to call for a review of the evidence. But it seems to us to be unnecessary, and

that to extend this opinion in that way could serve no

useful purpose.

Judgment and order appealed from affirmed.

THORNTON, J., MCFARLAND, J., BEATTY, C. J., and SHARPSTEIN, J., concurred.

Rehearing denied.

[No. 20502. In Bank.-March 14, 1889.]

THE PEOPLE, RESPONDENT, v. JOHN H. O'NEIL, APPELLANT.

CRIMINAL LAW-HOMICIDE-VERDICT.-The failure of a verdict of "guilty as charged," under an information for murder, to specify the degree of murder, vitiates the verdict.

APPEAL from a judgment of the Superior Court of Contra Costa County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

Joseph H. Budd, James H. Budd, and H. C. Levynsky, for Appellant.

Attorney-General Johnson, for Respondent.

The COURT.-Appellant was tried upon an information which alleged that he feloniously, unlawfully, and with malice aforethought, killed and murdered one Philip Stump. The jury returned a verdict in these words: "We, the jury, decide the defendant, John H. O'Neil, guilty as charged, the penalty to be imprisonment for life." The code provides that "whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty." It has been uniformly held that a failure

to specify the degree of murder under that section vitiates the verdict. (People v. Campbell, 40 Cal. 129.) The attorney-general confesses error.

Judgment and order reversed, and cause remanded for a new trial.

[No. 12592. In Bank.-March 14, 1889.]

SAMUEL B. BAILEY, RESPONDENT, v. JOHN FOX, APPELLANT.

FRAUD RESCISSION OF CONTRACT-LACHES-WAIVER-PARTNERSHIP.— A party who seeks to avoid a contract for fraud must rescind the same promptly after the fraud is discovered, or he will be deemed to have waived it. A delay of four months after the discovery of fraud in a partnership contract, during which business is carried on as usual under the contract, is fatal to a claim of right to rescind the contract for the fraud.

ID. TENDER AS A CONDITION OF RESCISSION-DAMAGES.-There must be a tender back of the identical thing purchased as a condition of rescinding the contract of sale upon the ground of fraud. If the party complaining has parted with the thing purchased so that he cannot make such tender, he cannot rescind, but must resort to an action for damages. It is not sufficient to tender the proceeds of the sale of the thing purchased.

CONTRACT-FRAUDULENT

ID.-PLACING IN STATU QUo.-If it becomes impossible to place the parties in statu quo, there can be no rescission of a contract. ID.-PARTNERSHIP REPRESENTATIONS-DAMAGES-PLEADING.-In order to entitle a party to rescind a contract for fraud, he must show that some damage has resulted to him therefrom. In an action to rescind a partnership contract for fraudulent representations as to previous profits of the business it is necessary to allege that plaintiff was induced thereby to pay more for the goods than he would otherwise have done, or that the business was not profitable after the purchase, or to show that plaintiff was in some way injured by the representations.

APPEAL from a judgment of the Superior Court of Stanislaus County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

Schell & Bond, and W. E. Turner, for Appellant.

The decree operates as a despoliation of the defendant's property for the benefit of plaintiff. As the plaintiff cannot rescind, his relief must be confined to redress by way of damages. (Sinclair v. Neil, 1 Hun, 85; Hogan v. Meyer, 5 Hill, 391; Benjamin on Sales, secs. 415, 452, note d.) No damage sustained was either pleaded or proven. This was fatal to plaintiff's right of recovery. (Kerr on Fraud, 49; 3 Wait's Actions and Defenses, 442; Morrison v. Lods, 39 Cal. 385; Purdy v. Bullard, 41 Cal. 447; Story's Eq. Jur., sec. 203; 2 Parsons on Contracts, 268.) Restitution must be made so as to place the parties in statu quo as an indispensable condition of rescission; and if that is impossible, there can be no rescission. (Civ. Code, sec. 1691; Fry on Specific Performance, 3d ed., secs. 703-712, 1029; Benjamin on Sales, secs. 415, 452, note d; Pullman v. Alley, 53 N. Y. 638; Gould v. Cayuga County National Bank, 86 N. Y. 79; Thayer v. Turner, 8 Met. 552; Ross v. Titterton, 6 Hun, 280, 283.) Rescission must be prompt, and the right is lost by unreasonable delay. (Fratt v. Fiske, 17 Cal. 380; Barfield v. Price, 40 Cal. 535; Getty v. Devlin, 54 N. Y. 415; Upton v. Tribilcock, 91 U. S. 45; Morrison v. Lods, 39 Cal. 381; Herman v. Haffenegger, 54 Cal. 161; Collins v. Townsend, 58 Cal. 608; Bohall v. Diller, 41 Cal. 532; Ross v. Titterton, 6 Hun, 282, 283.) Where a party has been defrauded in a contract, he may waive the fraud and adopt the contract. He may do so by positive act, or his conduct may show that he acquiesces. (Vernol v. Vernol, 63 N. Y. 45; Atwood v. Small, 6 Clark & F. 432; MacBride v. Weeks, 22 Beav. 533; Doughty v. Doughty, 7 N. J. Eq. 227; Moffat v. Winslow, 7 Paige, 124; Crawley v. Timberlake, 2 Ired. Eq. 450; Cobb v. Hatfield, 46 N. Y. 536; Sinclair v. Neil, 1 Hun, 82.) If the plaintiff retains his interest and deals with the property after full knowledge of the fraud, he loses his right of rescission. (Grannis v. Hooker, 31 Wis. 476; Matteawan