Aрpellant is the administrator of the estate of George A. V. Smith, deceased. Appellant was substituted in this action as plaintiff, the case having been originally filed by Smith, who died thereafter. For purposes of convenience, however, plaintiff and appellant will be sometimes referred to as Smith. As a result of a contract executed on May 29, 1931, Smith оbtained from the defendant, in addition to other consideration, four several promissory notes of $12,500 each, in return for the exclusive rights in the United States (except the state оf Oregon) to an invention of a particular type of turntable which was covered by certain letters patent.
There were a number of transactions between Smith, one A. T. Lawrence, and defendant, prior to the execution of said contract. The facts pertaining to each, while pertinent to the instant inquiry, are so extended and ramified in nаture that it would require several pages of concise résumé to set them forth with any sort of clarity. It is sufficient to say that Smith and Lawrence, aided and abetted by Reverend A. B. Gardner, a рsychic divine, known as “Mother Gardner”, who conducted and operated “The Church of the Open Door of Truth”, and who held herself out as being able to give business and financial adviсe obtained from “divine” psychic sources, practiced with success a series of impositions upon defendant to their mutual profit, although the lion’s share went to Smith. With the cоnstant help of Lawrence and the continuous “divine” assistance of “Mother Gardner”, Smith managed to administer the final cotop de grace to defendant in the form of the contract referred to. Before the blow was dealt, however, there were a variety of representations made, all of which the evidence in a superabundance reveals to have been without a basis in fact. Some of these representations were as follows:
(1) That this turntable was perfected excepting for a few minor improvements.
(2) That Smith had spent $40,000 in perfecting this device.
(3) That Smith had five tona fide orders for this turntable.
*399 (4) That Lawrence had paid Smith $10,000 for a one-half interest in the Los Angeles County rights to this turntable device.
(5) That this device could be manufactured and sold at a profit of $200 to $300 per table.
(6) That there was a great demand for said product.
Since the notes were not paid, Smith brought the present action, which was tried before a jury, the jury finding for the defendant. To Smith’s complaint, in four counts (one for each note), defendant pleaded several defenses, including fraud, rescission and failure of consideration. No damages were pleaded in the fraud defense, and this, as well as a number of other defects, is called to our attention as a reason for reversing the judgment entered upon the verdict of the jury. The facts, however, are ample support for the implied finding оf the jury that there was fraud, a failure of consideration, and that a rescission ought to be had. The answer does not properly plead a failure of consideration, but there are sufficient facts pleaded upon which to predicate such an affirmative plea. Evidence was introduced at the trial on this issue, and it was treated as an issue in the case. Under such circumstances, even though there is an entire absence of an essential allegation, the point may not be raised for the first time on appeal. (2 Cal. Jur. 246, 247, 254;
King
v.
Davis,
Generally speaking, a notice of rescission must be served before an action to declare that a rescission has in fact taken place can be brought. (Civ. Code, sec. 1691.) There are, however, several well-settled exceptions to this rule. Some of the exceptions are: (1) where the plaintiff is entitled to retain that which he has receivеd; (2) where the rights of the defendant can be fully protected by the decree, or where an
*400
accounting is necessary to determine the relative rights of the parties; (3) where, without any fault of the plaintiff, peculiar complications have arisen which make it impossible for plaintiff to offer full restoration.
(California Farm & Fruit Co.
v.
Schiappa-Pietra,
“There are exceptional eases where restoration or an offer to restore before suit brought is not necessary—as, for instance, where the thing rеceived by the plaintiff is of no value whatever to either of the parties; or where the plaintiff has merely received the individual promissory note of the defendant ; or whеre the contract is absolutely void; or where it clearly appears that the defendant could not possibly have been injuriously affected by a failure to restore; оr where, without any fault of plaintiff, there have been peculiar complications which make it impossible for plaintiff to offer full restoration, although the circumstancеs are such that a court of chancery may by a final decree fully adjust the equities between the parties— ...”
In Zeller v. Milligan, supra, the court, at page 627, says:
“The instant action was commenced on the day following the disсovery by plaintiff of the alleged fraud which had been practiced upon her by the defendants. The law abhors idle acts. A formal notice of rescission on the same day оn which the suit was instituted would have given the defendants no information differing either in nature or extent from that contained in the allegations of the complaint; nor were defendants’ rights in the premises in any manner changed or prejudiced by reason of the plaintiff’s failure to give such notice. ’ ’
According to the allegations of defendant’s answer, which were bоrne out by the evidence, he “only shortly prior to the commencement of (the) action learned that said representations were false and untrue”; and in his answer defendаnt alleges: “That the defendant has received nothing from plaintiff except some alleged assignments of patent applications and these he now offers, to cаuse to be reassigned to plaintiff upon plaintiff paying to him the sums of money paid by him to plaintiff and the cancellation of said notes *401 which were executed by defendant tо plaintiff, and further offers to do equity.” This offer was repeated by defendant in open court, upon the conclusion of the evidence and before the case went tо the jury.
Defendant did not initiate the instant proceedings. His answer affirmatively shows an offer to restore. He might have served a notice of rescission and then filed his answer, or prоperly a cross-complaint. The case of Zeller v. Milligan, (supra) is direct authority to the effect that the service of a notice under such circumstances would have been an idle аct. Furthermore, there is no doubt that the court “by a final decree (could) fully adjust the equities between the parties”. We therefore conclude that the jury was well within its rights in finding that a resсission should be adjudicated. A question was raised in the trial court that in view of the equitable nature of the defense defendant was not entitled to a jury trial, and a motion was made tо dismiss the jury. Defending the motion, defendant agreed to dismiss “from the action our claim for cancellation”. The motion was denied. Defendant’s agreement was not equivalent to а dismissal of his right to a rescission in the event the fraud pleaded and proved showed that defendant was entitled to one. In any event, the trial court, sitting as a court of equity, had the disсretion to retain the jury in an advisory capacity. Even though the verdict of the jury, because of the equitable issue, be considered an advisory one, it is clear that it was satisfаctory to the trial judge, who, not only accepted it and caused judgment to be entered thereon, but in addition denied a motion made by appellant for a new trial.
Our attention has been directed to certain instructions requested by appellant and refused by the trial court, and to others which are alleged to have been erroneously given. We have examined and scrutinized the instructions called to our attention, as well as the charge as a whole, and we are satisfied that no prejudicial error has beеn committed. (Art. VI, sec. 4½,
Const.; Clarke
v.
McClurg,
The judgment is affirmed.
York, Acting P. J., and Doran, J., concurred.
*402 A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 31, 1936.