accused because he might have engaged in boxing should be assumed by the jury, "but that the sole purpose is to show whether he is a man of physical power," and solely upon that theory and in rebuttal of any inference unfavorable to the people's case which the jury might draw from the questioning of the doctor by defendant's attorney, as above indicated, the testimony was allowed.

We think the testimony was proper. The issue as to the ability of the defendant to inflict a violent blow upon the person of another was injected or introduced into the trial by counsel for the defendant himself, and it thereupon became important for the prosecution to show, if it could, that by the mere size or physical appearance of the defendant the jury were not to be entirely governed in determining whether the blows inflicted by him upon the deceased were or could have been of sufficient force to produce the injury from the effect of which he is supposed to have died. This is particularly true in view of the fact that the defendant sought to establish the proposition through the cross-examination of the people's main medical witness that the cause of death was chronic heart affliction. But in no event could the testimony complained of have worked very serious damage to the defendant, since the witness Mathews declared that, when he saw the boxing-match between the defendant and another party several years before, he formed the opinion that the accused was a very unskillful boxer.

7. One of the grounds upon which the motion for a new trial was based and pressed was that of newly discovered. evidence. In support of the motion on this ground, a number of affidavits by an equal number of persons was filed. Some of the affiants deposed that Gaffney was intoxicated on the day and at the time he was struck by the defendant, and that they witnessed a part of the difficulty leading to the death of Gaffney, and then recited in their affidavits certain facts and circumstances to which they would testify, if a new trial were granted, and which would tend or appear to tend to the vindication of the conduct of the accused in the striking the deceased. Others deposed that they had known the deceased for many years in the vicinity of Bodega Bay and that they could and would testify that, when under the influence of intoxicating liquor, he was of a quarrelsome and belligerent disposition. Again, others of the affiants declared, in addi

tion to stating that Gaffney was intoxicated on that day and was the aggressor in the trouble with the defendant, that the chief witness for the people, Roberts, was himself greatly intoxicated on the occasion of the difficulty, the inference being that his mental condition was such that he could not have formed a very clear or accurate conception of how it occurred or who started it or how it started, notwithstanding that he was present at the commencement, during the progress, and at the termination of the trouble.

A new trial may be granted "when evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." (Pen. Code, sec. 1181, subd. 7.)

It is apparent even from the record as it is presented to this court that the defendant could not have exercised the degree of diligence required to procure the testimony which the affidavits state the makers of them would give in the event of a new trial. Some of the affiants were, as seen, in the saloon at the time the difficulty was begun and in progress. These witnesses should certainly have been known to the defendant. As to the testimony respecting the character of the deceased for peace and quiet, the defendant surely ought to have been able, by proper diligence, to have procured its presentation to the jury. He had known the deceased in Bodega Bay and vicinity, no doubt a small community, so far as population is concerned, in which presumably everybody knows every other resident and is more or less familiar with his personal character and disposition. But, however that may be, it is settled that "whether a motion for a new trial should or should not be granted upon the ground of newly discovered evidence is a proposition which is addressed to the sound discretion of the trial court, and that the denial of a new trial on that ground will not be reversed unless it clearly appears that the court abused its discretion by its action in that regard." (People v. Lim Foon, 29 Cal. App. 270, 283, [155 Pac. 477]; People v. Loui Tung. 90 Cal. 377, [27 Pac. 295]; People v. Tallmadge, 114 Cal. 427, 430, [46 Pac. 282].) Quite clearly it cannot be said in this case that the trial court abused its discretion in denying a new trial on the ground of newly discovered evidence.

Lastly, it is contended that the evidence does not support the verdict. We have by the above recital of the facts shown

that there is no tenable ground for this contention. The testimony alone of the witness, Roberts, who was in no degree impeached, except in so far as testimony introduced by the defense varied from his, is amply sufficient to support the verdict and to have justified it, if the jury, as appears to be true, believed it.

No legal reason has been shown for sending the case back for a trial de novo, and, therefore, the judgment and the order appealed from are affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 1723. Third Appellate District.-December 3, 1917.] Respondent, v. SACRAMENTO CLAY PRODUCTS COMPANY (a Corporation), Appellant.

E. G. CARR,

CONTRACT-PERSON NOT ADJUDGED INSANE-RESCISSION.-In order for a person to avail himself of section 39 of the Civil Code, which provides that a conveyance or other contract of a person of unsound mind but not entirely without understanding, made before his incapacity has been judicially determined, is subject to rescission as provided in the chapter on rescission of such code, it is not necessary for a person to be incompetent to make any kind of contract or to transact any business, however simple, but the test is as to whether he was mentally competent to deal with the subject before him with a full understanding of his rights, and of the nature, purpose, and effect of the contract.

ID.-RELEASE FOR PERSONAL INJURIES-RESCISSION-APPEAL-REVIEW OF EVIDENCE.-In determining whether a trial court was justified in finding that an employee seeking to avoid a release for injuries was mentally incompetent, the evidence must be regarded in the light most favorable to such conclusion.

ID. CANCELLATION OF RELEASE-SUFFICIENCY OF EVIDENCE.-A release of damages for personal injuries obtained from an employee enfeebled mentally and physically, unable to work, and without financial resources, for an inadequate amount, upon the misrepresentation that the employee was only entitled to a certain amount under the Employers' Liability Act, is properly set aside on the ground of fraud.

ID. DELAY IN BRINGING ACTION-LACK OF LACHES.-An employee who delayed bringing an action to rescind a release of damages for per

sonal injuries upon the advice of an attorney that he had no case cannot be held guilty of laches, where he subsequently consulted another attorney who advised him that he had a case, and brought suit to rescind within three weeks thereafter, the other party to the release having suffered no prejudice from the delay.

ID.-LACHES QUESTION OF FACT.-The question of laches in bringing an action is primarily a question for the trial court, and the solution of the question depends upon the particular circumstances of each case.

APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. Martin I. Welsh, Judge.

The facts are stated in the opinion of the court.

Myrick & Deering, and James Walter Scott, for Appellant.

Downey, Pullen & Downey, and Donald McKisick, for Respondent.

BURNETT, J.-The action was for damages resulting from an injury suffered by plaintiff through the negligence of defendant. The cause was tried before the court without a jury, and the plaintiff was awarded the sum of seven thonsand five hundred dollars, and the appeal is from the judgment and order denying the motion for a new trial. It is not disputed that the evidence was sufficient to justify a finding that the defendant was negligent as charged in the complaint. In fact, the court found that it was a case of gross negligence, and this finding is not attacked. There is no claim that plaintiff was chargeable with contributory negligence nor is there any contention that the amount awarded is excessive. The only points insisted upon by appellant are that it has been released from all liability for the accident by virtue of the payment of a certain sum of money to plaintiff in accordance with an agreement executed by the parties hereto and that plaintiff was guilty of laches in rescinding said release. It will be necessary, therefore, to set out the facts only in so far as they bear upon these defenses. As to the alleged release the court found: "That plaintiff signed said alleged release on August 29, 1913, at the request of defendant; that said defendant at said time for the purpose of inducing plaintiff to execute said alleged release, and in order to obtain from plaintiff a release of all liability to

plaintiff on account of injuries sustained by plaintiff through the negligence of defendant on or about the nineteeth day of July, 1913, willfully, falsely, and fraudulently represented to plaintiff that defendant's liability to plaintiff was limited by law to sixty-five per cent of plaintiff's wages for a period of twelve weeks and one hundred dollars hospital, medical, and surgical bills, and that there was in existence in California a law limiting defendant's liability to plaintiff to $217. The court finds that plaintiff did rely upon said representations and each of them, and did believe said representations and each of them to be true, and by reason of believing and relying upon said representations and each of them, did sign said alleged release; that said representations and each of them so made as aforesaid were false, fraudulent, and untrue and were known to defendant to be false, fraudulent, and untrue when made; that the consideration, to wit, $217, paid to plaintiff by defendant for said alleged release was grossly inadequate consideration; that on the date of the signing of said alleged release by plaintiff and for some time prior thereto, and continuously subsequent thereto, to wit, until about the first day of May, 1914, plaintiff was by reason of bodily injuries and because of surgical operations and of sickness, worries, and troubles, of great weakness of mind, and was so enfeebled and weakened mentally and physically that he did not have sufficient mental capacity or sufficient physical energy to transact the business of negotiating said alleged release, and he did not have sufficient mental capacity to understand the nature, purpose, and effect of said alleged contract of release or of the rights arising in his favor because of said personal injury by him sustained on July 19, 1913; that defendant well knew on said twenty-ninth day of August, 1913, of said weak mental and physical condition of plaintiff, but nevertheless induced plaintiff to sign said alleged release, and insisted that plaintiff sign said alleged release; that on or about the 1st of April, 1914, plaintiff first became aware of the facts which entitled him to rescind said alleged release, and first became aware of his right to rescind said alleged release." Then follows a finding that within a reasonable time thereafter plaintiff rescinded said release and offered to return the $217, together with interest thereon. The foregoing constitute the only findings that are seriously contested herein by appellant. It is claimed by respondent,