*619Affirmed May 15, rehearing denied June 26, 1917.
On Petition for Rehearing.
(165 Pac. 1170.)
On petition for rehearing. Rehearing denied.
Mr. Henry M. Kimball, for the petition.
Messrs. Malarkey, Seabrook & Dibble, contra.
Department 1. Mr. Justice Benson delivered the opinion of the court.
In support of his motion for rehearing, counsel for appellant urges that the former opinion herein must have been hasty and ill-considered by reason of the fact that the opinion discusses certain allegations of the affirmative answer in regard to which there is no evidence in the record. By some inadvertence, it is true that the writer of the former opinion did refer to such portion of the answer upon the theory that it was not denied in the reply, and this is error. However, we have again read the testimony line by line, considering every suggestion made by counsel, and are unable to discover any good reason for changing the conclusion reached in the former opinion. The rehearing is therefore denied. Rehearing Denied.
Mr. Chief Justice McBride and Mr. Justice Burnett concur.
Mr. Justice Harrisdelivered the following concurring opinion:
1. The plaintiff earnestly insists that the conclusions expressed in the original opinion are not sustained by *620the evidence and that a rehearing should be granted. In the original opinion it is stated that:
“In 1912 property values were elevated. When Marmeni purchased there was talk of the construction of a bridge which would have materially benefited the property, but at the fall election the proposal to build the bridge was defeated. With the year 1914 came financial depression and marked reductions in realty values. The property was amply worth the price in 1912, but it was not worth the price in 1914.”
When checking over the pleadings, as printed in the abstract of record, paragraphs XI and XII of the answer and cross-complaint were treated as admitted by reason of the supposed failure of the plaintiff to deny them, but a re-examination of the abstract discloses that those two paragraphs were denied; and hence the quoted statements are not fully justified by the record, although the subject of the bridge and the decrease in realty values received more than passing notice at the time of the hearing. While there was no evidence concerning the bridge, for the reason that the court sustained an objection to an offer of the defendant to show the facts regarding the bridge, nevertheless, there was enough evidence to warrant the inference that the property was worth the purchase price in 1912. Deluchi, who was “in the real estate business,” said that at first Bellarts asked $4,000 for the property, but he consented to sell for $3,750. Deluchi considered the selling price was the fair value of the land, for in the language of his testimony: “I thought that was a fair purchase price, I told Mr. Bellarts, you know a real estate man tries to compromise, that is, wants to do the fair thing for both.” However, it is not essential, and perhaps not even important, to know the difference between the values in 1912 and in *6211914, although evidence of a material reduction in value, if competent at all, might tend to throw light upon the motives actuating Marmeni. In some jurisdictions the courts have taken judicial notice of a general depression in values of real estate: 7 Ency. of Ev. 934; but we shall assume, without deciding, that by reason of the language in Section 729, L. O. L., courts cannot take judicial notice of a general financial depression; and, therefore, not only what was said in the original opinion about the bridge but also what was said concerning the value of the premises in 1914, as well as all of the discussion about the bridge and values at the time of the hearing, will be laid out of the case.
Deluchi received a letter from J. Landigan on July 22 or 23, 1913. Deluchi immediately informed Marmeni of the letter and while the original opinion is not accurate in declaring that Marmeni “consulted with Montrezza” about this letter, it is nevertheless accurate to say that Montrezza was notified of the claim made in the Landigan letter, for according to the testimony of-Montrezza “Mr. Deluchi brought it to my attention himself. ’ ’
The petition for a rehearing questions the correctness of the statements made in the original opinion about the preparation of the $40 receipt. Montrezza had not yet been admitted to practice as an attorney at law when Marmeni purchased the property, and, on that account, Montrezza was unusually painstaking. He explained that he was very careful when examining the papers in Strowbridge’s office and he said that he was likewise careful in the preparation of the receipt, for he testified thus:
“I remember being naturally, you may say, waiting to be an attorney, and as an attorney to be at the time, I was careful what I was doing, as I had quite a large Italian practice at the time, before I was admitted.”
*622The plaintiff urges that Montrezza inserted the description of the property in the receipt at the time of the payment of the $40. The description may have been written in the receipt at the time Bellarts signed it; and, yet, the fact remains that Marmeni testified that “Mr. Montrezza drew that up, before we went to Mr. Bellarts.” No witness testified that the description was inserted after Marmeni, Deluchi and Montrezza visited the premises. The receipt was not produced; but the evidence overwhelmingly shows that the receipt mentioned the premises. Montrezza testified thus:
“I don’t remember whether I had the number of the lot or block, or the dimensions, or location of the property.”
Whether Montrezza' obtained the description or dimensions of the property before or at the time Bellarts signed the receipt is not material because the ultimate fact is that he had ‘J something connected with the dimensions, or location of the property.” While Montrezza testified that ‘ ‘ Mr. Marmeni paid me something for looking over the premises,” and Marmeni swore that “I didn’t pay him anything”; nevertheless, Marmeni is confronted with the indisputable facts that Montrezza prepared the receipt, was present when Bellarts signed it, was also present when the final papers were signed and passed, and was acting for and in behalf of Marmeni. Montrezza knew what property was being sold because he wrote the receipt. Montrezza was the agent of Marmeni and his knowledge was the knowledge of Marmeni.
When a witness for the plaintiff, Deluchi said that while he did not measure the distance from “the front to the back, between the two fences” he was “positive it was over a hundred”; but that it appeared “fully *623over a hundred feet” and that “anybody could see that.” In his printed brief Marmeni says that he “examined the premises and observed the boundaries but did not appreciate the distance.” If Marmeni is to be judged by his own evidence it will become reasonably certain that he has at least a fair idea of measurements and distances. When asked about his estimate of the dimensions of the house and after protesting that “I am a poor judge about that” he said that the house “must be 'more than forty-five by fifty; must be about forty-five by sixty, something like that; I am just guessing.”
If Bellarts is liable at all it is because of what Marmeni says that Deluchi told him. It is true that Marmeni testified that Bellarts told him when the receipt was signed that “everything Deluchi showed me inside the fence was all mine,” but it is also true that Bellarts denied this, and, although present on the occasion mentioned, neither Montrezza nor Deluchi undertook to corroborate Marmeni.
While Bellarts is responsible for whatever Deluchi said, by the same token Marmeni is chargeable with whatever he himself knew and also with whatever Montrezza learned when acting as his agent. "When speaking of the knowledge with which Marmeni was chargeable, the circuit judge who saw the witnesses and heard them testify remarked that
“a man who was so diligent as Mr. Marmeni in accumulating money in his business with which to buy property, it seems to me he would ascertain how many feet there were in the lot. I believe that Marmeni knew the dimensions of that lot after the examination of the abstract, because an attorney could not help by the reading of the abstract know that the lot was 45 feet frontage and 81.8 feet deep, that is the property which he was buying.”
*624The evidence shows that Marmeni knew or must be deemed to have known that it was more than 100 feet from the front fence to the rear fence which, he says, was pointed ont to him as the boundary of the premises ; he knew or must be deemed to have known that the property described in the receipt and deed delivered to him and in the mortgage signed by him was only 81.8 feet in length; and consequently he is in no position to claim that he was defrauded, especially after the long delay which followed the Landigan letter in 1913. The transcript of the testimony was read twice before the preparation of the original opinion and a third reading has only confirmed the conclusion there expressed. A petition for a rehearing should be denied.