(dissenting).
The misrepresentations charged against the officers of the Bank are for the most part in the nature of promises and expressions of opinion. In fact, all of them are of that character with the exception of the representation that the Wesco Builders were then engaged in building projects at Twin Falls and Idaho Falls, which representation it is alleged was untrue as to the Twin Falls project. This constitutes a representation as to existing fact, and perhaps would be sufficient, when taken together with the promises alleged, to state a cause of action for fraud, the representa*393tion and. the promises being alleged as the means by which the cross-complainants were dissuaded from filing their respective liens and by which each was persuaded to accept title to a duplex, and a promissory note made by Wesco Builders, as payments on account.
As to the duplexes, it appears from the pleading that the amount realized by the cross-complainants out of these assets was in each case so near the credit given, as to indicate that the value of the duplexes was not fraudulently misrepresented.
As to the notes, the cross-complaints show they were accepted by the cross-complainants after they learned that the credit of the maker was not good. However, if the pleadings had stopped here, I would agree that they were good as against a general demurrer.
The representations and promises complained of are charged to have been made in the course of a number of conferences occurring between the parties in September, 1949, after substantial performance of the contracts. These negotiations apparently culminated in the transfer of the duplexes and the delivery of the notes. The cross-complainants then go further and allege that on or about January 31, 1950, they were each “induced and persuaded” by the Wesco Builders and the Bank to accept title to another duplex, and another note made by Wesco Builders, for credit on their respective accounts. Thus it appears that four months after the promises were made, and no profits appearing from the Twin Falls or Idaho Falls projects, and apparently as the result of further dissatisfaction expressed on their part, they were “induced and persuaded” to give credit for additional duplexes and promissory notes of the Wesco Builders (whose credit they knew was not good). Thus, they dealt with the party to whom they furnished the materials and labor, on the apparent theory of settling their claims, and accepted assets from the builders, from which the builders might otherwise have received a greater return, and caused the builders -and the Bank to change their position in an effort to reach a settlement. By so doing they have waived any cause of action they may have had for any fraud previously practiced upon them. 37 C.J.S., Fraud, § 69; 24 Am.Jur., Fraud and Deceit, Par. 214; Beggs v. Spalding, 56 Cal.App. 21, 204 P. 429; Monahan v. Watson, 61 Cal.App. 417, 214 P. 1001; Anderson v. Laws, 176 Or. 46S, 159 P.2d 201; Schied v. Bodinson Mfg. Co., 79 Cal.App.2d 134, 179 P.2d 380; Conzelmann v. Northwest Poultry & Dairy Prod. Co., 190 Or. 332, 225 P.2d 757.
The Bank’s demurrer was properly sustained and the judgment should be affirmed.