in the first place, that by reason of weakened mentality and of his inability to understand the nature, purpose, and effect of said release Carr, by virtue of the provisions of section 39 of the Civil Code and in harmony with the decisions construing said section, was authorized and permitted to rescind. the release and to be restored to his former status. Said section provides: "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 this code." It is contended-and rightly so that to avail himself of this statutory remedy, it is not necessary for a person to be incompetent to make any kind of a contract or to transact any business however simple, but the test is: Was the party mentally competent to deal with the subject before him with a full understanding of his rights? (Union Pacific Ry. Co. v. Harris, 158 U. S. 326, [39 L. Ed. 1003, 15 Sup. Ct. Rep. 843].) Did he actually understand the nature, purpose, and effect of the contract? (Jacks v. Deering, 150 Cal. 272, [88 Pac. 909]; Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712, [103 Pac. 190]; Edmunds v. Southern Pacific Co., 18 Cal. App. 532, [123 Pac. 811].) Such is the question to be determined by the court or jury, and if there is found in the evidence any rational ground for holding that the person executing the release was thus mentally deficient, his contract may be avoided. In determining whether the court was justified in so finding as to Carr, we must, of course, regard the evidence in the light most favorable to such conclusion.

His physician, Dr. Charles B. McKee, testified that plaintiff was suffering from traumatic hysteria, bordering on melancholia; that he complained of disorders in digestion, did not sleep well, did not care for social intercourse with friends or relatives, was depressed, had financial worries, did not seem to carry on conversation to any extent, "on account of his injury which resulted in more or less depression-traumatic hysteria; for that reason I do not think that the man was in a position to judge the result of the form of this contract"; his nervous condition had some effect upon his will power; "his mental condition was certainly abnormal" from August 15, 1913, to May, 1914. An expert witness for the defendant, Dr. Dargitz, in answer to a hypothetical question based upon facts as testified to by plaintiff's witnesses, declared that such

condition might result in traumatic neurosis, and that in his opinion "a person afflicted with traumatic neurosis would not be competent to transact business if the affliction was very well defined." Mrs. Carr, plaintiff's wife, testified that normally her husband was a jolly, healthy, sociable man, but predisposed to nervous disorder; "at times he was almost bordering on insanity"; just before the accident his mental condition was good; shortly after leaving the hospital the first time and before the release was given he became depressed and declined to converse with her. He would shun his neighbors, whom he had previously been glad to see; he took no interest in home matters and neglected his personal appearance, "he was nervous, forgetful, stupid, and dull, and would hardly sleep. At the time the release was executed he was morbid and melancholy and did not seem to be in a fit condition to transact business of any importance.' She further testified that this condition continued until a short time before the trial. Carr himself testified to certain facts along the same line. It is true that certain circumstances were elicited by appellant tending strongly to a contrary conclusion, but we think the evidence is such that we are precluded from disturbing the finding of the trial court. No doubt the complexity of the situation involving serious legal propositions, such as the doctrine of actionable negligence and the interpretation of certain provisions of the Employers' Liability Act of 1911, [Stats. 1911, p. 796], was carefully considered by the trial judge in determining the competency of Carr's impaired intelligence to understand the nature and effect of the release.

Again, there is reason for the contention of respondent that the release was fraudulent under section 1572 of the Civil Code, as virtually found by the court. The plaintiff testified in reference to the transaction as follows: "Mr. Ayre went and figured out and said I was entitled to twelve weeks, sixty-five per cent of my wages for twelve weeks, and wanted to know what I thought in regard to it. I told him that I was not satisfied. Mr. Walton spoke up, he says: 'Don't you think you will get well in that time?' I told him I hadn't any information of my being well, I had no authority on it, and he went to work and cited a case which was either his grandson or his own son that had a fracture of the forearm and went back to work in twelve weeks. Mr. Ayre said in addition to the sixty-five per cent of my wages they would

pay the hospital bill, which was $96.40, and he says, 'In no event do we allow more than one hundred dollars for hospital and medical fees,' and said that I was getting all that I was entitled to under the act, which was twelve weeks, he said, sixty-five per cent of my wages for twelve weeks was all I was entitled to under the act. He said he took out his watch and looked at it--he said he would have to catch the train for San Francisco at 3:30, he says to hurry, 'Do you want to take that or do you want to sue the company?' 'Now,' he says, 'if you sue the company, it will be a long drawn-out proposition; aside from that we have a signed statement from the foreman that it was entirely your own fault you got hurt.' I did not see any use in my beginning suit against the company when I was only entitled to twelve weeks pay at sixtyfive per cent, so therefore I, under those conditions, why, I did not see where I had any advantage in bringing a suit, and settled. I certainly believed the statement Mr. Ayre made to me."

Mr. Ayre was familiar with said employers' liability law and he knew that appellant had not elected to accept the compensatory provision of that act and that neither party was subject to that portion of the law. He knew that plaintiff was not restricted for his damages to sixty-five per cent of his wages during a period of twelve weeks, and he was acquainted with the laws relating to personal injury and the right of plaintiff to damages as it existed in this state at that time. On the other hand, plaintiff testified that he was entirely ignorant of all these matters. We must therefore accept this as the situation: The representations, as found by the court, were made by appellant; as to the compensation to which respondent was entitled said representations were false and known by appellant to be false, and they were made for the purpose of deceiving respondent; plaintiff relied upon said representations and he was induced thereby to execute the release in question. Thus is the case brought within the provisions of said section 1572.

Against this conclusion the point is made that "a contract of settlement, like any other written contract, can only be impeached for fraud by clear and convincing evidence." No doubt such is the case, but the rule is for the guidance of the jury or trial judge, and it has no place in the consideration. of an appellate court. Therein no difference between this

class of cases and others is recognized as to the sufficiency of the evidence to support the finding. (Mattson v. Eureka Cedar Lumber & Shingle Co., 79 Wash. 266, [140 Pac. 377].)

It is contended, also, that if any misrepresentation was made, it merely related to a question of law, which cannot be regarded as fraudulent. But as pointed out by respondent, the representations may be considered as involving a matter of fact, because they implied that defendant had accepted the optional compensatory features of said Employers' Liability Act, and, therefore, the statement that said law limited the liability of defendant-which under some circumstances might be the expression of a mere opinion not constituting the basis for an action-was herein a false and fraudulent statement of a condition that did not exist. The representations of appellant were in effect, therefore, the same as though it had positively stated to respondent that the former had accepted said compensatory provisions, and, therefore, its liability was limited as provided in said act; and, hence, it cannot be said that we are dealing with a mere matter of opinion or question of law. Neither can it be doubted that the representations were such that respondent was justified in relying upon them. The matter was peculiarly within the knowledge of appellant, and the circumstances surrounding the transaction did not exact of respondent the duty of making an independent investigation. In some cases, of course, a party relies upon false representations at his peril, but we are not confronted with that situation. Our attention has been called to a long number of cases supporting respondent's position, but it is sufficient probably to cite Brandt v. Krogh, 14 Cal. App. 39, [111 Pac. 275]; Browne v. San Gabriel River Rock Co., 22 Cal. App. 682, [136 Pac. 542, 544]; Henry v. Continental Bldg. etc. Assn., 156 Cal. 667, [105 Pac. 960]; Barron Estate Co. v. Woodruff Co., 163 Cal. 561, [42 L. R. A. (N. S.) 125, 126 Pac. 351]; MacDonald v. De Fremery, 168 Cal. 189, [142 Pac. 73]; Woods v. Wikstrom, 67 Or. 581, [135 Pac. 192].

In the Henry case, supra, it is said: "A party inducing another to contract in reliance upon estimates or opinions professedly based upon alleged facts known to the party stating them to be nonexistent will not be permitted to escape responsibility by the plea that he was merely declaring his opinion."

In the Barron Estate Company case the following from Pomeroy's Equity Jurisprudence is quoted with approval: "Whenever a party states a matter which might otherwise be only an opinion and does not state it as the mere expression of his own opinion, but offers it as an existing fact material to the transaction so that the other party may reasonably treat it as a fact and rely and act upon it as such, then the statement clearly becomes an affirmation of fact within the meaning of the general rule and may be a fraudulent representation."

So it is true, as held in many cases, that the affirmation of belief is an affirmation of a fact, that is, of the fact of belief, and if it is "fraudulently made to mislead or cheat another to abuse his confidence, or to blind his judgment, it is in law and morals just as reprehensible as if any other fact were affirmed for the same purpose."

Furthermore, under section 1578 of the Civil Code, "mistake of law" may be a ground for setting aside a contract. The right may exist where there is a "misapprehension of the law by one party, of which the others are aware at the time of contracting, but which they do not rectify." There was ground for the trial court to conclude that Carr was ignorant of the law as already indicated, and that appellant had the information furnished by the statute, and the latter made no effort to rectify the former's mistake and misapprehension. The situation was emphasized, furthermore, by the circumstance that Carr was of impaired mentality, and appellant not only failed to inform him of his rights but intentionally deceived him as to the remedies available to him. As to this legal proposition, a host of witnesses might be summoned, but it can hardly be disputed. The matter is pretty fully covered by this quotation from 2 Pomeroy's Equity Jurisprudence, section 847: "The scope and limitations of this doctrine may be summed up in the proposition that a misapprehension of the law by one party of which the others are aware at the time of the entering into the transaction but which they do not rectify, is a sufficient ground for equitable relief. A court of equity will not permit one party to take advantage and enjoy the benefit of an ignorance or mistake of a law by the other, which he knew of and did not correct. While equity interposes under such circumstances it follows a for