fraud upon them, were entitled to rescind their contract with the vendor as an aider and abetter in the consummation of the fraud. [4] ID.-BREACH OF FAITH-ACTION TO RESCIND-INJURY-PLEADING AND PROOF. While it is a general rule that fraud without injury is not ground for relief, either in law or equity, in actions of this character it is not necessary that the parties complaining of the breach of faith on the part of their coadventurer should allege or prove that they have actually been injured by his breach of their confidence.

[5] ID. ENDEAVOR TO COMPROMISE CLAIM NOTICE OF RESCISSION SERVICE WITHIN REASONABLE TIME.-Where such coadventurers, after learning of the fraud practiced on them by their coadventurer and the vendor, entered into negotiations, extending over a period of about seven weeks, with the executrix of the will of said vendor and her legal advisers, in an endeavor to effect a settlement or compromise of their claim before serving notice of rescission of the contract, such notice was within a reasonable time.

[6] ID. INABILITY OF VENDEES TO RETURN SPECIFIC PROPERTY-MONETARY COMPENSATION-WHEN OFFER TO RETURN UNNECESSARY.Where, in an action of this character, a return in specie of all the property received by the plaintiffs is rendered impossible by reason of their having parted with a portion of it before discovery of the fraud, the requirements of justice are satisfied by a return of the property on hand with compensation in money for the remainder. If, after allowing defendant's claim for the reasonable market value of all ore and bullion that plaintiffs may have sold, if any, there is still a balance due plaintiff, no express offer to return, in money, the actual value of such ore or bullion is necessary. The equities of the parties may be fully adjudged without such unnecessary circumlocution.

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[7] PLEADING CONSTRUCTION OF COMMON-LAW RULE ABROGATED.— The common-law rule that a pleading must be construed most strongly against the pleader has been abrogated and superseded by the more liberal rule of the statute. The code requires not only a liberal construction, with a view to substantial justice between the parties, but also that the court shall disregard any defect in the pleadings which does not affect the substantial rights of the parties.

[8] ID.-FACTS WITHIN KNOWLEDGE OF DEFENDANT UNCERTAINTY OF COMPLAINT.-As to those matters that lie peculiarly within the defendant's or her testator's knowledge, the defendant cannot be heard to complain that plaintiff has not alleged them with sufficient certainty.

APPEAL from a judgment of the Superior Court of Los Angeles County. Lewis R. Works, Judge. Reversed.

The facts are stated in the opinion of the court.

Harry W. Elliott and Schweitzer & Hutton for Appellants.

Mulford & Dryer for Respondent.

FINLAYSON, P. J.-Judgment was entered against plaintiffs upon a demurrer to their third amended complaint. The demurrer was general and special. This appeal is from that judgment.

The complaint shows plaintiffs' case to be substantially as follows: On November 5, 1913, T. H. Oxnam, since deceased, as party of the first part, and these three plaintiffs and defendant MacDonald, as parties of the second part, entered into a written contract whereby Oxnam agreed to sell to plaintiffs and MacDonald an undivided four-fifths of a mine then owned by Oxnam, upon these terms: The parties of the second part, four in number, were given the right to purchase the undivided four-fifths for twenty thousand dollars. This twenty thousand dollars was to be paid in two years, as follows: A promissory note, for seven thousand five hundred dollars, executed by MacDonald, payable on or before October 31, 1915, was to be given to Oxnam, and the balance, twelve thousand five hundred dollars, was to be paid out of the net proceeds from the mining property, which, it was agreed, should be worked by the four purchasers. It further was agreed that the purchasers, plaintiffs and MacDonald, should deposit the sum of twenty-two thousand five hundred dollars in bank. Of this sum, not less than fifteen thousand dollars was to be expended by the purchasers in the installation of a new cyanide plant, repairs to the mill, and installation of additional equipment, the balance, if any, to be used as working capital. It also was agreed that, after Oxnam had received from the profits of the mining operations all of the balance of the twenty thousand dollars, left after subtracting MacDonald's note for seven thousand five hundred dollars, and after plaintiffs and their associate, MacDonald, had received thirty thousand dollars from the proceeds, then, but not before, Oxnam should be entitled to profits on the undivided one-fifth that he retained.

Before entering into the contract with Oxnam to purchase the undivided four-fifths, it was agreed between plaintiffs and MacDonald that if they made the contract with Oxnam they would operate the mine as equal and joint owners and equal active partners. All the details of the purchase and the negotiations leading up to the contract with Oxnam were left to MacDonald. Plaintiffs relied upon MacDonald's honesty and upon his becoming equally interested financially with them in the purchase. Oxnam knew MacDonald represented plaintiffs, and that he was acting for them as an equal partner.

Prior to and in anticipation of the execution of the contract to purchase from Oxnam the undivided four-fifths, MacDonald, notwithstandinghe and plaintiffs were coadventurers in the purchase of the property, entered into a secret side agreement with Oxnam, whereby Oxnam agreed with MacDonald that if the operation of the mine did not produce sufficient profits to enable the latter to pay his note to Oxnam for seven thousand five hundred dollars, within the two years, he should have the right to reconvey to Oxnam his one-fifth interest in the mining property, and Oxnam would thereupon return his note to him. This secret side agreement between Oxnam and plaintiffs' joint associate, MacDonald, was entered into "in consideration. of plaintiffs signing the said contract"-the contract of purchase that plaintiff's and MacDonald made with Oxnam. Had plaintiffs known of the secret agreement between their associate, MacDonald, and Oxnam, they would not have entered into the contract of purchase with Oxnam. The existence of this secret side agreement was not discovered by plaintiff's until August 11, 1915, when MacDonald informed them of it.

Plaintiff's and MacDonald entered into possession of the mining property and operated it. Its operation, however, proved unprofitable. MacDonald has never paid any part of his note to Oxnam. In operating the property plaintiffs expended, in all, $32,894.27, of which twenty-two thousand five hundred dollars was expended in installing the new cyanide plant and as otherwise provided in their contract with Oxnam; $4.486 was expended in other improvements which have become a part of the property, and the balance in operating expenses.

Oxnam died February 16, 1915. Thereafter letters testamentary were issued to the defendant and respondent, Mamie Oxnam, who is now the sole defendant, the action having been dismissed as to defendant MacDonald on plaintiffs' motion.

Upon discovering the secret side agreement between Oxnam and MacDonald, plaintiffs, claiming to have been defrauded thereby, and that they had been damaged by reason of the expenditures they had made under their contract with Oxnam during the time when they had no reason to believe the contract tainted with fraud, entered into negotiations with the executrix and her legal advisers, in an endeavor to effect a settlement of their claim for damages. These negotiations, extending over a period of about seven weeks, proving ineffective, plaintiff's served upon the executrix a notice of rescission, and about two weeks thereafter presented to her, as executrix, their verified claim for $32,841.66, the moneys so expended by them under their contract of purchase with defendant's testator. The claim having been retained by the executrix for more than ten days without being allowed, this action was commenced.

We shall first consider whether the complaint states a cause of action and is good as against the general demurrer. It is of no consequence whether appellants and their associate, MacDonald, ever became partners, in any strict sense of the term, nor what may be the respective rights and obligations of mining partners, inter sese. Appellants and MacDonald were joint adventurers in a common enterprise— an enterprise that contemplated the purchase of the undivided four-fifths of the mine and the operation of the property, not only for ultimate profit, but as a means of paying to their vendor the balance of the purchase price over and above the seven thousand five hundred dollars that MacDonald was to pay pursuant to the terms of his promissory note to their vendor.

The tendency of the modern decisions is to regard the right of joint adventurers, as between themselves, as governed practically by the same rules that govern the relations of partners. (15 R. C. L. 500.) [1] The relation between joint adventurers is fiduciary in its character. The utmost good faith is required of each in his dealings with the others. Each will be held strictly to account to his coadventurers.

He will not be permitted to enjoy any unfair advantage, or any greater rights than he and his coadventurers are entitled to under the terms of their agreement or understanding. The mere fact that he is intrusted with the rights of his coadventurers imposes upon him the duty of guarding their rights equally with his own. In accordance with the principles of good faith and confidence governing the relations of joint adventurers, a coadventurer may not conceal his interest or his profits from his associates in the enterprise. None will be allowed to obtain by secret agreement any advantage over the others. The consent of each to the joint adventure is usually given, and the money of each obtained, on the understanding and belief that the funds, interest, and aid of each are and will be given to the enterprise within the bounds agreed upon. [2] The failure of one of the several joint adventurers, in an enterprise looking to the purchase of property, to share with his coadventurers any secret advantage given by their vendor for inducing the purchase by the other coadventurers, is such a breach of confidence as amounts to constructive fraud, and will entitle his coadventurers either to rescind the contract, or to maintain an action for damages for fraud and deceit against either or both parties to the secret understanding, or to have the coadventurer receiving the benefit account to his associates in the enterprise. (15 R. C. L. 500-503; 23 Cyc. 452 et seq.; Noble v. Fox, 35 Okl. 70, [43 L. R. A. (N. S.) 933, and note, 128 Pac. 102]; Jefress v. Phillips, 31 Okl. 202, [120 Pac. 916]; Gilpin v. Netograph Mach. Co., 25 Okl. 408, [29 L. R. A. (N. S.) 477, 108 Pac. 382]; King v. White, 119 Ala. 429, [24 South. 710]; Kennah v. Hoston, 15 Wash. 275, [46 Pac. 236]; Grant v. Hardy, 33 Wis. 668; Lind v. Webber, 36 Nev. 623, [Ann. Cas. 1916A, 1202, 50 L. R. A. (N. S.) 1046, 135 Pac. 139, 141 Pac. 458]; Hambleton v. Rhind, 84 Md. 456, [40 L. R. A. 216, and note, 36 Atl. 597]; Humburg v. Lotz, 4 Cal. App. 438, [88 Pac. 510]; Richards v. Fraser, 122 Cal. 456, [55 Pac. 246]; Id., 136 Cal. 460, [69 Pac. 83]; Llewelyn v. Levi, 157 Cal. 31, [106 Pac. 2, 19]; Denis v. Gordon, 163 Cal. 427, [125 Pac. 1063]; Lomita L. & W. Co. v. Robinson, 154 Cal. 35, [18 L. R. A. (N. S.) 1106, 97 Pac. 10]; California etc. Min. Co. v. Walls, 170 Cal. 285, [149 Pac. 595].)