tiori that when the mistake of law by one party is induced, aided, or accompanied by conduct of the other more positively inequitable, and containing elements of wrongful intent, such as misrepresentation, imposition, concealment, undue influence, breach of confidence reposed, mental weakness, or surprise, a court of equity will lend its aid and relieve from the consequences of the error."

Another consideration, suggested, indeed, by what has gone before, is sufficient to justify the court's action in setting aside said contract. It is embraced within the provisions of section 1575 of the Civil Code and is denominated "undue influence." Such reason for relieving a party of his apparent contract may be found where one takes "an unfair advantage of another's weakness of mind" or "a grossly oppressive and unfair advantage of another's necessities or distress.

That plaintiff was enfeebled mentally and physically is a rational conclusion from the evidence. It further appears that he was in great financial distress. He was unable to work and had no financial resources. His wife was trying to keep the family alive by baking bread for the neighbors. Notice had been given him that he would be ejected from his home. He had no credit, and on the day the release was executed he had less than a dollar in the house. It appears that his hospital bill was $96.40 and the physicians' charge was $447. These things and others show, indeed, beyond question not only that he was financially embarrassed but that he was in the "very depths of despair." And it may be said with equal propriety that there was ground for holding that appellant took an unfair advantage of his necessities. The method employed in securing the release, the misrepresentations that were made, the concealment of certain facts, the withholding of information as to the legal rights of plaintiff and the inadequacy of the consideration are all circumstances, among others, pointing to the conclusion that the conduct of appellant was unconscionable, and it could not be regarded with favor by a court of equity.

It is true that the law does not discourage settlements of controversies by agreement, and is disposed as far as possible. to uphold them, but it is equally ready to relieve parties from fraud and imposition through which they have been induced to

barter away their rights. In cases like this especially, where the opportunity for over-reaching is so great, the law demands good faith on the part of the releasee and a full understanding on the part of the person injured as to his legal rights. (Kansas City R. Co. v. Chiles, 86 Miss. 361, [38 South. 498]; Mattson v. Eureka etc. Shingle Co., 79 Wash. 266, [140 Pac. 377]; McGrail v. Jersey Central Traction Co., 84 N. J. Eq. 261, [94 Atl. 81]; Edmunds v. Southern Pacific Co., 18 Cal. App. 532, [123 Pac. 811]; Russell v. Dayton Coal & Iron Co., 109 Tenn. 43, [70 S. W. 1].) In passing from this consideration we may state that it is manifestly immaterial whether plaintiff was actually physically incapable of transacting said business as found by the court. The important inquiry was as to his mental condition. Nor to support the judgment is it necessary to hold that appellant had actual knowledge of respondent's mental condition when the release was executed.

As to the defense of laches, neither can it be said that the court's finding is unsupported. Attention is called by respondent to these facts: Some time in November or December, 1913, Carr and his wife read a newspaper article concerning the Employers' Liability Act of 1911. This article stated that an employer was obliged to pay sixty-five per cent of the average weekly wages of an injured employee for a period depending on the length of disability. Carr thereupon consulted with an attorney, one W. T. Phipps, and the deputy labor commissioner, Mr. Blair. Mr. Phipps investigated the situation, found out that appellant had not elected to become subject to the compensatory provisions of said act, and that respondent had executed the release, and he advised Carr that he had no case, that he had better not "throw good money after bad." Respondent in following the advice of an attorney of the standing of Mr. Phipps can hardly be said to be guilty of inexcusable neglect. In his condition of ignorance of the law he was justified, therefore, in doing nothing further until at least he had reason to doubt the soundness of Mr. Phipps' opinion. But in the last of February, 1914, Mrs. Carr again read the clippings and consulted another attorney, Donald McKisick, who seems to have encouraged her in the matter, and after a consultation with Mr. Downey, the two attorneys reached the conclusion, and so advised Mr. Carr about the 1st of April, that he had a right to rescind the

release. On the 3d of April following, Mr. Downey wrote a letter to defendant repudiating on behalf of Mr. Carr the release, and asking that the matter be adjusted. On the 10th of April a letter containing a definite refusal to do anything further in the matter and an avowal to stand upon said release and to defend any action that might be brought by plaintiff was received from defendant. Notice of rescission was served on defendant April 23d following. Subsequently it developed that the full amount of the consideration for the release was not stated in the notice, and another notice stating the correct amount was served May 16, 1914, and suit was brought June 10, 1914.

In view of the foregoing, it cannot be said that plaintiff's delay was unreasonable. He acted promptly after ascertaining that he had a right to rescind. According to the testimony of Mr. Downey it was about the 1st of April when he informed Mr. Carr that he had a right to rescind, and there was, therefore, a delay of only about three weeks in giving. the notice of rescission. This was certainly a case of acting with reasonable expedition after he was actually aware of his right to rescind. (Hannah v. Steinman, 159 Cal. 142, [112 Pac. 1094].) Whether or not a reasonable time has elapsed is a question of fact primarily to be determined by the trial court, and the solution of the question depends upon the particular circumstances of each case. (Suhr v. Lauterbach, 164 Cal. 591, [130 Pac. 2].) One important feature to be regarded is the consideration whether any damage has been suffered by reason of the delay. (Cahill v. Superior Court, 145 Cal. 42, [78 Pac. 467].) A delay of a short period may bar the right to rescind by reason of the prejudice caused thereby, but, on the other hand, relief may be granted after several years. (16 Cyc. 156.) Laches in legal significance. is not mere delay, but delay that works a disadvantage to another. (Chase v. Chase, 20 R. I. 202, [37 Atl. 804].) It is manifest that in the case at bar the defendant was not prejudiced in any manner by the delay. It did not change its status. Indeed, no circumstance was disclosed that would make it inequitable to set aside said release upon the grounds herein before stated.

It would certainly be an unusual thing for this court to hold that under the circumstances as detailed by the witnesses for

85 Cal. App.-29

respondent his delay constituted such laches as to bar him from the right to bring an action or to rescind said release. The judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 2, 1918, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 31, 1918.

[Civ. No. 2339. First Appellate District.-December 3, 1917.] GREAT WESTERN ELECTRO-CHEMICAL COMPANY et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION and PETER J. CONNELLY, Respondents. WORKMEN'S COMPENSATION ACT-INJURY TO EYE OF EMPLOYEE OF CHEMICAL COMPANY LACK OF WILLFUL MISCONDUCT.-Under the Workmen's Compensation Act, the Industrial Accident Commission cannot be said to have acted beyond and in excess of its jurisdiction in making an award in favor of an employee of an electro-chemical company for any injury to his eye from getting caustic therein because he did not wear glasses at the time of the accident, as required by the company's rules, and was thus guilty of willful misconduct, where it was shown by the evidence that the caustic was spilled on the employee's back while he was stooping, and only got into his eye from an attempt to pull his shirt over his head, and that the injury would have probably occurred whether he had on his glasses

or not.

APPLICATION for a Writ of Review to annul an award of the Industrial Accident Commission.

The facts are stated in the opinion of the court.

Redman & Alexander, for Petitioners.

Christopher M. Bradley, for Respondents.

THE COURT.-The petitioners herein contend that the Industrial Accident Commission acted beyond and in excess

of their jurisdiction in the making of an award in favor of Peter J. Connelly, an applicant before it, in his application against the Great Western Electro-Chemical Company, his employers, and their insurer, Employers' Liability Assurance Corporation, Limited, the basis of their contention being that the undisputed evidence in the case shows that at the time of receiving the injuries for which the applicant, Peter J. Connelly, claimed compensation, he was guilty of willful misconduct from which his injuries directly arose, such willful misconduct consisting in his willful disobedience of the orders and instructions of his employers with respect to the wearing of glasses in connection with the doing of the work in which he was engaged at the time of the injury of which he complains.

The Great Western Electro-Chemical Company was engaged in the business of making caustic, which it was dangerous for its employees to handle or work with unless their eyes were protected by the wearing of glasses, which the said corporation furnished to its employees, and directly and expressly instructed them to wear when engaged in their work. The applicant for compensation had always worn such glasses theretofore in obedience to such express instructions, but a few moments before his injuries had taken off his glasses and omitted to replace them when he undertook to fill his kettle from a tank containing caustic by means of a pump connected with said tank. While so engaged a quantity of the caustic from the valves of said pump or tank was spilled upon his back, and from thence got into one of his eyes, causing the injury of which he complains.

The petitioner's contention is that the caustic got into the eye of the injured employee because his glasses were off; and that having removed his glasses in direct violation of the positive instructions of his employer, he was guilty of willful misconduct, by reason of which he is not entitled to recover.

An examination of the entire evidence taken before the Industrial Accident Commission, however, convinces us that there was a very serious question as to whether or not the absence of the glasses in any way contributed to or caused the applicant's injury, the evidence seeming to show quite clearly that when he was injured he was stooping down, and that while in this position the caustic was spilled upon his back, and only got into his eyes while an attempt was being