Mаrch 31, 1937, appellants contracted to purchase from respondents certain described real property in Jefferson county, together with one hundred fifty inches of water appurtenant thereto. In October, that year, appellants notified respondents thеy desired to rescind, claiming they had been defrauded as to the amount of land under cultivation and its freedom from morning glory and Canadian thistle. Upon respondents’ refusal to rescind aрpellants instituted this action for rescission resulting, after a trial before the court without a jury, in judgment for respondents rendered by the trial court on these findings:
“VI
“The court further finds from the evidence that the defendants did not represent to the plaintiffs that there was only one-fourth of an acre of morning glory or other noxious weeds upon the above described land, and in this connection the court finds that the plaintiffs were well informed be *265 fore the said contract dated March 31st, 1937, was entered into that there was considerable morning glory and some other nоxious weeds on the above described premises and plaintiffs failed to make any further invеstigation as to the quantity of lands so infested with noxious weeds after being so informed prior to the making of said contract dated March 31, 1937.
“VII
“The court further finds that it was not represented to thе plaintiffs by the defendants, or by anyone in behalf of said defendants, that there were 60 acrеs of cultivated land on the above described premises, it having been represented that there were about 60 acres of land in cultivation and that it appears from the evidеnce that there is a little in excess of 52 acres of land cultivated upon said premises, and that there are approximately 6 acres of additional land upon said premises that can be placed under cultivation.
“VIII
“The court further finds that there is no evidencе in the record of this ease wherein it has been shown that the plaintiffs have suffered any damаge or injury by reason of any statements or representations which may have been made to said plaintiffs by the defendants or by anyone in behalf of said defendants. The court finds that the plaintiffs have failed to prove by clear and convincing evidence the material аllegations of the amended complaint.”
Fraud will not be presumed and appellants had the burden of establishing all the elements of the fraud alleged by clear and convincing evidence.
(Fehr v. Haworth,
Mr. Elser, a prior tenant on the land, testified he told appellants there was some weed infestation but did not state a definite amount and that in answer to appellants’ inquiry as tо what was the matter with the place he answered “nothing except the morning glory.” Other witnesses whom appellants knew were well acquainted with the land, informed him there was a considеrable quantity of *266 morning glory on it. Likewise there is evidence to the effect that neither resрondents or their agents made positive statements as to the exact amount of land hаving weed infestation or the exact amount of land under cultivation. There is a dispute as tо the amount which had been cultivated, varying from 42 to 53 acres, with testimony that an additional 6 acres could be cultivated and irrigated. Appellants contended it was positively stated there were 60 acres under cultivation. Respondent Taylor testified, and there is no contrаdiction of his testimony, that he personally had never farmed the land and did not know the amount cultivated.
While there was snow on the .ground in March when appellants looked at the prоperty, making such inspection ineffective so far as the dispute involved herein is concerned,
(Baylies v. Vanden Boom,
Thus the facts and circumstances herein are sufficiently like those in
Breshears v. Callender,
Appellants assign as error the refusal to admit in evidence a broker’s listing card. The briefs neither cite authorities nor argue this assignment which will therefore not he considered.
(Berg v. Aumock,
The judgment is affirmed. Costs to respondents.