¶1It is alleged in the complaint herein, that on March 18, 1901, plaintiff was the owner and holder of a note for the sum of one thousand dollars executed and delivered to him by the defendants Chauvet, and that on said day he indorsed and delivered such note to defendant Florindo Nicholini; that at the time of such indorsement, "and for a long time prior thereto, and ever since, plaintiff has been an old and infirm man, enfeebled in mind and body, and unable to attend to his property interests or rights, and was and is very susceptible to the overtures of others and was and is easily influenced, and such weakness of mind was and is of such character and degree that plaintiff was and is unable to attend to any business affairs in which he is concerned without independent advice"; that plaintiff had implicit confidence and faith in each of the defendants Nicholini, and believed that they advised him in good faith and would protect him; that said defendants fraudulently procured and induced plaintiff to indorse and deliver said note under a promise that they would provide food, clothing, shelter, and the necessaries of life for plaintiff during the remainder of his natural life; that plaintiff never received anything of value for said note, and "said defendants have not provided plaintiff with clothing, food, shelter or necessaries of life." The prayer was, "that said agreement be declared rescinded and said note and everything of value obtained from plaintiff as aforesaid be returned, and for costs, and that defendants be restrained from collecting the same, and for such other relief as is proper." After the action was commenced plaintiff was adjudged insane and a guardian ad litem was appointed. The action was dismissed as to defendants Chauvet, and the other defendants answering denied all the averments of the complaint. The court found against the defendant Florindo Nicholini on the issues thus joined, and rendered judgment that plaintiff was "the owner of and entitled to the *692 possession of the said promissory note." From such judgment and the order denying his motion for a new trial defendant Florindo Nicholini appeals upon a bill of exceptions specifying particulars in which the evidence is insufficient to support the findings and containing many assignments of error. After the cause had been submitted for decision, and on the same day the findings and judgment were filed, without notice to appellant or his attorneys, the complaint was amended by inserting the following amendment: "That during all the times mentioned herein said plaintiff was of unsound mind and entirely without the capacity of understanding or comprehending the nature of said transaction and of the transactions in said complaint set forth, and that Florindo Nicholini knew and had knowledge of said facts and circumstances." The court found in accordance with such averment and after the judgment was entered the appellant in due time and form made his motion to strike out such amendment, and to set aside the finding and judgment on the grounds that said amendment was not served upon appellant or his attorneys, "and that the said amendment was not made to meet the proofs in said cause and was not justified thereby." The motion was denied, and appellant appeals from the order denying said motion. This appeal is supported by a separate bill of exceptions, and we think that the vital questions involved should be considered first.
¶2Section 469 of the Code of Civil Procedure provides that "No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits," and the next section provides that "Where the variance is not material, as provided in the last section, the court may direct the fact to be foundaccording to the evidence, or may order an immediate amendment, without costs." Under these sections there can be no doubt that when evidence pro and con has been admitted touching a fact material to the cause of action stated in the complaint, the court may pursue either or both of the methods mentioned at any time before the rendition of judgment. And it is equally clear that the words "immediate amendment," by necessary implication, exclude the necessity for service and further hearing. "The law neither does nor requires an *693 idle act," and it would be idle to require service or a trialde novo when the subject-matter of the amendment had been gone into upon the trial, and it is only in such contingency that amendments to conform to proof can be allowed. (Board ofDirectors v. Tregea,88 Cal. 358, [26 P. 237]; Firebaugh v.Burbank,121 Cal. 186, [53 P. 560]; Lee v. Murphy,119 Cal. 364, [51 P. 549, 955]; Herman v. Hecht,116 Cal. 559, [48 P. 611]; Duke v. Huntington,130 Cal. 274, [62 P. 510]; Jackson v. Jackson,94 Cal. 462, [29 P. 957].) The objection that "the amendment was not made to meet the proofs, and was not justified thereby," is so intimately connected with the point that the findings based on such amendment are not sustained by the evidence, that both of these contentions should be considered together. Sections 38 and 39 of the Civil Code emphasize the difference between contracts made by persons of unsound mind who are "entirely without understanding" and contracts by persons of unsound mind who are "not entirely without understanding," made before incapacity has been judicially determined. The plaintiff's incapacity was not judicially determined until March 12, 1904, nearly three years after the note was transferred, and this fact must be kept in mind in considering the question before us. A careful analysis of the averments of the complaint shows, beyond question, only a case of action to rescind a voidable contract. (More v.Calkins,85 Cal. 188, [24 P. 729].) And a similar analysis of the amendment shows an averment rendering the contract absolutely void under said section 38 It is obvious that evidence that plaintiff was of unsound mind would be sufficient to support the allegations of the complaint, while something more, showing his entire want of understanding, would be essential to support the amendment. The importance of this distinction between averments and proof relating to void as distinguished from voidable contracts has been recognized in many well-considered cases, and such distinction cannot be ignored in reaching a correct solution of the problem under consideration. (More v. Calkins,85 Cal. 190, [24 P. 729];Castro v. Geil,110 Cal. 296, [52 Am. St. Rep. 84, 42 P. 804]; More v. More,133 Cal. 494, [65 P. 1044]; Murphy v.Crowley,140 Cal. 150, [73 P. 820].)
¶3Actions to rescind a contract are necessarily based on the theory that there is a contract binding upon the parties unless *694 rescission is had. (Civ. Code, secs. 1688, 1689, 1691, 3406, 3408.) And the mere statement of this proposition should suffice to show that an amendment alleging, in effect, that there was no contract could hardly be germane to the original cause of action. But waiving this, and viewing this as an action to set aside or cancel the indorsement and to recover the note, still the amendment and finding cannot be justified or sustained. Granting the utmost weight to all evidence bearing on his mental capacity, it only shows that he was of unsound mind. There is not a scintilla of evidence showing that he was at any time entirely without understanding. He was called as a witness, and the examination to test his competency as such clearly indicates that he understood the questions and answered them quite as intelligently as could be expected of one whose knowledge of the English language was limited. The learned judge of the trial court believed him quite rational as to most subjects, and so stated. Indeed, his answers at that time, and even his self-serving declarations narrated by other witnesses, create a strong impression that he fully understood the transaction here assailed and only desired security for its faithful performance by Nicholini. The witnesses as to his sanity seemed to agree that his condition at the time of the trial was, to say the least, no better than it was at the time the agreement was made, and, if so, it certainly cannot be said that he was entirely lacking in understanding. As his incapacity had not been judicially determined at the time the contract was made, it follows from the foregoing that the amendment was unauthorized and that the finding based thereon is not sustained by the evidence. With this finding eliminated, the judgment, which was evidently based on the assumption that the agreement and indorsement were absolutely void, is unsupported by the findings. Even if it could be considered as a judgment for rescission, however, there is no finding as to facts essential to support such a judgment. (Civ. Code, secs. 39, 1691, 3408; More v. Calkins,85 Cal. 190, [24 P. 729];Wilson v. Sturgis,71 Cal. 229, [16 P. 772]; Marten v. PaulO. Burns Wine Co.,99 Cal. 357, [33 P. 1107]; SouthernPacific R. R. Co. v. Choate,132 Cal. 280, [64 P. 292];Kelley v. Owens,120 Cal. 510, [47 P. 369, 52 P. 797].) And if there was such finding there is no evidence in the record *695 to support it. It could serve no useful purpose to consider other specifications or assignments, inasmuch as the objections urged may be obviated upon a retrial of the cause.
¶4The judgment and order are reversed.
¶5Chipman, P. J., and Buckles, J., concurred.
¶6A petition for a rehearing of this cause was denied by the district court of appeal on October 30, 1905, and the following opinion was then rendered: —