Sacramento Suburban Fruit Land Co. v. Lindquist

PER. CURIAM. This is one of thirty eases of the same general character, submitted to this court during the May session, 1929, in all of which the appellant herein was the appealing party. The cases will be found reported in 36 F.(2d) 907 et seq., and 39 F.(2d) 900. Among the eases thus submitted and decided was Sacramento Suburban Fruit Lands Co. v. Lindquist (No. 5703) 39 F.(2d) 900, supra, and No. 5702, the ease now under consideration. In case No. 5703 it was held that the question of the statute of limitations was properly submitted to the jury, whereas in the present case it was held that the cause of action was barred by the statute of limitations as a matter of law and that the court below should have so charged the jury. A petition for rehearing was filed in both Nos. 5-702 and 5703, and the court was then of opinion that the facts of the two eases were substantially identical and that the same rule of law should obtain in both. A majority of the court, as then constituted, was further of opinion that the decision in No. 5703 was right and the decision in No. 5702 erroneous. The petition for rehearing was accordingly denied in No. 5703 and granted in No. 5702. Upon a reargument of this case, counsel for appellant in effect conceded that there is no substantial difference in the facts in the two eases, and a re-examination of the two records convinces us that there is no such difference and that the facts of the two cases are strikingly alike. The judgment of the court below is therefore affirmed, and the former opinion of the court is withdrawn.