majority">Belcher, C.

This is the second appeal in this case. The decision on the first appeal is reported in 78 Cal. 202. After the case was sent back for a new trial, the pleadings were amended so as to conform to that decision. The case was then tried before a jury, and the result was a verdict and judgment in favor of the plaintiff, for two thousand five hundred dollars damages. The defendant moved for a new trial, which was denied, and has appealed from the order denying his motion.

We think a new trial should have been granted.

It was held, on the former appeal, that the plaintiff could not rescind the contract of March 14, 1887, and recover for a breach of the contract of January 13,1887, even though he was induced to make the change by *558fraud, unless he was damaged by the change; and it was said: “It was necessary for the plaintiff to allege and prove that the last property contracted for was of less value than the first, or other facts sufficient to show that he was damaged by the making of the last contract.”

And on the new trial the court instructed the jury that they could not find for the plaintiff, unless he had proved by a preponderance of evidence that he was damaged by the agreement to take the lots last contracted for in lieu of those first contracted for.

It is clear, we think, that the plaintiff did not prove by a preponderance of evidence, if at all, that he was damaged by the making of the last contract in the sum of two thousand five hundred dollars, or in any appreciable sum; and if this be so, the damages allowed should at most have been only nominal.

To prove the value of the six McGee lots which were to be conveyed to him under the first contract, plaintiff called as a witness one Scott, who testified that on the 9th of March, 1887, defendant executed a written agreement to sell him the Dennison subdivision of the McGee tract in Pasadena, containing ten acres, and subdivided into sixty lots; that he was to pay for the six lots in question, in the aggregate, six thousand five hundred dollars; that in making the purchase he was acting for other parties, who represented the Santa Fé Railroad Company; and that the company wanted the property for railroad purposes. He then went on to testify that he did not think the lots were worth what he agreed to give, and told the parties he was buying for, at the time, that they were wild to give any such price for the property; that it was not worth half of it; that the inside lots were really worth about $400, and the corner lots about $450.

Plaintiff also called another witness, one Evans, who testified that he was in the real estate business in Pasadena in 1887, and knew the lots, and that he considered them worth, in March, 1887, four hundred dollars to five hundred dollars per lot.

*559The above was all the testimony introduced by the plaintiff as to the value of the lots.

The defendant called two witnesses, Wilson and Phillips, to show the value of the McGee lots. Wilson testified that he was in the real estate business at Pasadena, and knew the lots, and that they were worth, in March, 1887, about $400 to $500 each; and Phillips testified that he owned adjoining land, and that in March, 1887, the inside lots were worth $300, and the corner lots $450.

The respondent claims that the price at which Scott agreed to take the lots is controlling as to their value; but in view of the other testimony upon the subject, we do not think this can be so. It is true that the price at which a thing is sold may be shown as tending to prove its value; but property is sometimes sold for more and sometimes for less than its market value, and it is the market value — that is, the price at which an equivalent thing might be bought— that is controlling in a case like this. (Civ. Code, sec. 3354.) The plaintiff wanted the lots to build a residence on for himself, and the evidence shows that he could have purchased as good if not better lots for that purpose, in the immediate vicinity, for much less than Scott agreed to pay.

As to the value of the lots in the Banta tract, on Fair Oaks Avenue, which the plaintiff was to take under the second contract, the decided preponderance of the evidence was, that they were, in March, 1887, worth much more than the McGee lots. The plaintiff himself testified that he sold some lots on that avenue in July, 1887, for eight hundred dollars each, and one for one thousand dollars.

Under the showing made, the verdict seems to have been clearly contrary to the instructions of the court, and should have been set aside for that reason.

We advise that the order appealed from be reversed, and the cause remanded for a new trial.

Temple, C., and Vanclief, C., concurred.

*560The Court.

For the reasons given in the foregoing opinion, the order appealed from is reversed, and the cause remanded for a new trial.

Rehearing denied.

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