The earnestness and sincerity manifested by counsel for respondent in their petition for a rehearing herein has prompted a careful re-examination of all the evidence contained in the record. As counsel evidently misapprehend the decision rendered, we are admonished that perhaps it is not as clear as decisions of an appellate court should invariably be, and hence we deem it but just that an additional opinion be substituted for the terse formula usually adopted in passing upon such petitions. We did not intend to be understood as holding that there is no evidence to support a judgment of rescission. The evidence is entirely sufficient to do so. The judgment, however, is not that the contract be rescinded, the indorsements canceled, and the note restored, but "that the plaintiff is the owner of and entitled to the possession of" the note. Such judgment could only be based on the amendment and resultant finding, that plaintiff's mental condition was such that, as a matter of law the transaction was an absolute nullity. If the judgment be considered as for rescission, however, it must fall because the court failed to find on issues pertinent to rescission tendered by the last three denials in the answer. (More v. Calkins, 85 Cal. 190, [24 P. 729].)
The evidence is ample to show that plaintiff was of unsound mind, and hence to render the contract voidable and subject to rescission under section 39 of the Civil Code.
Our re-examination but strengthens the conviction that there is no evidence to show such want of understanding as would render it void under the preceding section. The utmost that can be said of the evidence touching his condition *Page 696 at the time of the transaction is that he did notfully understand the agreement or mode of carrying it into effect. The evidence hardly shows as much as was pleaded inMore v. Calkins, 85 Cal. 182, [24 P. 729], or proven inCastro v. Geil, 110 Cal. 295, [52 Am. St. Rep. 84, 42 P. 804], and yet the court there held that such facts did not show such want of understanding as would render the contract void.
The rehearing is denied.
Buckles, J., and Chipman, P. J., concurred.
A petition to have the cause heard by the supreme court after judgment in the district court of appeal was denied by the supreme court on December 1, 1905.