SPEAR, Justice.
Shriveses (appellants) brought this action as vendors against the Talbots (re[340]*340spondents) to recover on a promissory note and to foreclose a mortgage. Talbots answered and counterclaimed for damages and for rescission, because of allegedly fraudulent representations made by Mr. Shrives.
This is the second appeal in this matter, the opinion of this court on the first appeal being reported in Shrives v. Talbot, 88 Idaho 209, 398 P.2d 448.
Frank Shrives and his wife, on March 17, 1961, sold certain farm property (hereinafter designated as the Weston property) situate in Franklin County to the Talbots for $40,000.00. For a down payment the Talbots transferred to Shriveses a smaller farm also located in Franklin County (hereinafter designated as the Clifton property) in which Talbots owned an equity of $11,278.97 over and above an encumbrance which Shriveses agreed to assume. The balance of the purchase price, i. e., $28,721.03, was represented by Talbots’ promissory note secured by their mortgage on the Weston property, i. e., the property transferred to them by Shriveses. At the time Shriveses filed the foreclosure action on the purchase mortgage in April, 1962, Talbots were ttnquestionably in default on the note, for with the exception of one small water assessment Talbots had paid no principal, interest, taxes or insurance as required under the terms of the promissory note and mortgage. However Talbots plead as a defense and as a counterclaim that they had been fraudulently induced to purchase the Weston property and to execute and deliver the note and mortgage by certain false and fraudulent statements purportedly made by Frank Shrives, the husband appellant. In the amended answer and counterclaim Talbots allege four different fraudulent misrepresentations. In the first trial the trial court held against Talbots on all these representations and the supreme court affirmed such judgment on all but one, i. e.:
“That plaintiffs had raised, and defendants could raise, fall wheat on one hundred and twenty acres of land on the hillside then owned by plaintiffs or that the one hundred and twenty acres could be watered by means of a sprinkling system which could be put in the spring and drain under the hill, and any crop could be raised thereon.”
The Weston property was divided into two parcels. The larger tract of some 300 acres was traversed by a drain which led from a spring on an adjoining farm and which fed into the West Cache Canal which cut across the far end of the property in a direction approximately at right angles to that of the drain. Some crops had been grown on the lower 180 acres of this larger tract, but its principal use was for pasturage. There were 120 acres on a bench above the drain at an additional elevation of about 90 feet. The land on the bench is sandy loam soil, unlike the heavier soil found below. No crop had been successfully raised on the bench property since at least 1955. Two springs located some distance apart along the path of the drain at the bottom of the hill fed into the drain. The flow of -water along the drain fluctuated between 25 to 50 inches, dependent upon the time of year and the amount of irrigation on the properties comprising the water table which feeds the drain. The smaller parcel consisted of 40 acres upon which the house and outbuildings are located. These 40 acres are irrigated, but from a source other than the drain. The 120 acres on the bench are classified as dry farm land.
Shrives is a design draftsman and resides in Portland, Oregon. He had inherited the Weston property upon the death of his father. Through correspondence, resulting from an advertisement placed in the Preston, Idaho, newspaper, Talbots arranged to meet with Frank Shrives at the Weston .property and look over the farm. The agreement previously mentioned herein was reached and the property sold. Shrives had not lived upon nor farmed that property for many years and was without intimate or first-hand knowledge of the farm. This fact was known to the Talbots. Talbots had farmed in the Franklin County area for many years and presumably were some[341]*341what more familiar than Shrives with the problem of farm operation in that area. They inspected the property and also were introduced to the preceding tenant, from whom they might have elicited information concerning the Weston property.
The conflicting evidence introduced by the respective parties relative to the alleged misrepresentation by Shrives that the 120 acres of bench dry land could be watered by means of a sprinkler system drawing water from the drainage ditch under the hill and that thereafter any crop could be raised thereon, is set forth in detail in the opinion of the court in the first appeal (Shrives v. Talbot, 88 Idaho 209, 398 P.2d 448) and repetition here is unnecessary. Suffice it to point out, the trial court found against Talbots’ contention in this respect but this was reversed by this court and remanded for a new trial. The law of this case was thus set by this court in the following portion of that decision to be found in 88 Idaho at page 215, 398 P.2d at page 451:
“The findings made indicate that the trial court relied quite heavily upon the fact that plaintiffs had not resided upon the property for a number of years and did not have firsthand knowledge of the crops raised and conditions affecting the premises, and that this was known to defendants. Such findings infer that defendants should not have relied upon statements made by the plaintiffs. However, the rule is otherwise. Plaintiff Shrives may not have been required to speak, but when he did speak it was his duty to state the facts fully and correctly, or to advise defendants that he did not know the facts. As to matters concerning which Shrives did make representations, defendants were under no obligation to make an independent investigation or to inquire of plaintiffs’ prior tenants.”
On the retrial, January 1966, the evidence, both oral and documentary, adduced at the previous trial, as set forth in the reporter’s transcript or record thereof, was by stipulation adopted and made a part of the record of the second or retrial. In other words, the second trial was merely supplementary of the first. Evidence relevant to the alleged misrepresentations made by Shrives was primarily a reiteration by both parties of the evidence submitted in the first trial. Examination principally was directed to establishing whether in fact the Talbots could draw water from the drain in sufficient amounts to economically irrigate the 120 acres of dry land on the bench. Talbots further sought to show the irrigation of the bench property was not a feasible operation, economically speaking, even had water in the drain been available as a source for the sprinkler system. One of Shriveses’ own expert witnesses testified that at best this would be a marginal operation. Also on the retrial there was introduced a written recorded agreement between the adjoining landowners (Washington Thompson et ux and Frank Shrives, Sr., the father of appellant husband herein) which provided for the joint construction, use, maintenance and cost of maintenance of the drain and for a right of way of 20 feet on each side of the center of the drain across the Thompson property as well as the Shrives or Weston property as referred to herein. Other evidence adduced proved that damming or obstructing the drain ditch for the purpose of securing sufficient water for a sprinkler system upon the bench land would defeat the entire purpose of the drain ditch and result in sub-irrigating, not only the 180 acre parcel of the Weston property adjoining the drain but also the property of neighboring landowner (McKay) to the extent of destroying crops growing thereupon.
On the basis of the evidence contained in the record of the first trial as supplemented by that adduced in the second trial, the trial court made the following pertinent findings of fact:
“XII.
“That prior to the execution of the aforementioned deeds, promissory note and mortgage and while the parties were negotiating upon the north 300 acres of [342]*342the Weston property owned by Plaintiffs, Plaintiff, Frank Shrives, Jr., referring to the upper 120 acres of bench land located on said tract and the spring and drain located below said bench land on the remaining 180 acres, made the following representations to Defendants:
“(a) That water could be removed from the drain extending from the original Thompson property and extending through the Shrives’ property and emptying into the West Cache Canal;
“(b) That the drain was his;
“ (c) That this water in the drain could be pumped upon the bench land and crops could be grown thereon;
“(d) That it would be feasible to install a sprinkler system in said drain and pump water to the bench lands for crops, and that any crops could be raised thereon;
“(e) That fall wheat had been grown on the bench land and that they could raise fall wheat on that ground.
“XIII.
“That the above representations by Plaintiff were material and untrue or half true because:
“(a) That at the time of making said misrepresentations" there was an agreement on record between Washington J. Thompson and his wife and Frank Shrives, Sr., and his wife, the owners of the property when the drain was dug and placed into effect, a copy of which at trial was marked as a joint exhibit and incorporated herein by reference thereto ; this agreement provides for the joint construction, use, maintenance and costs of maintenance of the drain and for a right of way of 20 feet on each side of the center of the drain.
“ (b) That the drain if dammed up near the boundary of the Thompson-Shrives’ property will make the Thompson and adjoining property too wet for farming purposes and would defeat the purpose of the drain. The soil types of the Shrives property and the Thompson property in the vicinity of the drain are generally the same and the damming of the drain for the purpose of installment of a sprinkler system would adversely affect the adjacent property.
“(c) That the flow of the water in the drain fluctuates between 25 to 50 inches, depending upon the time of year and the effect of irrigation on the lands adjacent thereto comprising the water table which feeds the drain.
“(d) That the optimum use of this size stream on the sandy loam soil on the 120 acres of bench land would not be over 40 acres.
“(e) That to place water on the bench land from the drain would require a lift from a pump of at least ninety feet because of the difference in elevation between the land and the drain, plus a piping of 500 to 600 or more feet to get to the boundary of the sandy loam, plus an additional main line in the land to be irrigated.
“(f) That to install such a sprinkler system, considering the expense involved and the supply of water, would at the very best produce only a marginal result, and would, in fact, not be a feasible operation for that area.
“(g) That no crop has been successfully raised on the bench land since at least 1955.
“XIV.
“That the said Plaintiff was ignorant of the truth of said representations and intended that Defendants should act upon the same.
“XV.
“That the Defendant relied upon the misrepresentations made by the Plaintiff and acted thereon by purchasing said property in ignorance of their falsity.
“XVI.
“That the north 300 acres was the bulk of the land in the sale for the raising of crops and the misrepresentations materi[343]*343ally affected the use and value of this land.”
The court concluded that the agreement between Thompsons and Shrives, Sr. created a drain easement and a covenant running with the land which prohibited cither party from interfering with the operation of the drain without the consent of the other, and that the water in the drain was not available for use by Talbots as represented to them by Frank Shrives, Jr.; that it was incumbent upon the plaintiff, Frank Shrives, Jr., to know the facts which he represented to the defendants to be true, since they were material and intended to induce the defendants to act; that no appurtenance is more important to or more directly affects the value of arid agricultural land than water and ditch rights for irrigation, that representations of plaintiff Shrives were made with such knowledge of their importance, and that because thereof Talbots were entitled to rescind the transactions between the parties and to be restored to their former position.
Based upon these findings and conclusions, the trial court entered judgment allowing Shrives nothing by way of their complaint and granting Talbots judgment on their counterclaim granting rescission of the warranty deed of the Weston property by Shriveses to Talbots and also permitting rescission of the promissory note and the mortgage executed by the Talbots to the Shriveses. The judgment further provided that within thirty days Shriveses should pay to Talbots the sum of $11,278.97, or in the alternative, at the election of Shriveses, Shriveses should deliver to Talbots the Clifton property and appurtenances (the down payment property conveyed to Shriveses by the Talbots). Should the Clifton property be returned to Talbots, they were granted thirty days within which to reimburse Shriveses for all payments including interest made by Shriveses on the mortgage on the property assumed by Shriveses as part of the 1961 agreement and thereupon the warranty deed used to ponvey the Clifton property from Talbots to Shriveses would be rescinded.
From this judgment Shriveses appealed.
In the first assignment of error counsel for Shriveses contends that findings of fact XII(c), (d) and (e), XIII(b), (d), (e), (f), (g), XIV, XV, XVI and the conclusions of law based thereon, are either immaterial, inconsistent, conjectural, incorrect or not sustained by clear and decisive evidence as shown by the record. All of these findings are set out in full previously herein. This contention is erroneous. All these findings of the trial court are supported by substantial, competent, although in some instances conflicting, evidence and will not be disturbed upon appeal. This principle was ably expressed in the dissenting opinion in the first appeal of this matter (Shrives v. Talbot, 88 Idaho at 211, 398 P.2d at p. 455, citing Thomson v. Marks, 86 Idaho 166, 384 P. 2d 69). More recent cases in which this court, by unanimous decision, has adhered to this principle are Jackson v. Blue Flame Gas Co., 90 Idaho 393, 412 P.2d 418; Meridian Bowling Lanes, Inc. v. Brown, 90 Idaho 403, 412 P.2d 586; Fairchild v. Matthews, 91 Idaho 1, 415 P.2d 43; and McKenney v. Anselmo, 91 Idaho 118, 416 P.2d 509.
Shriveses contend, however, that this principle is not applicable to fraud cases because all the essential elements of fraud must be established by the party asserting fraud, by clear and convincing evidence. The rule, that such degree of proof is necessary before the trial court, is well established in Idaho. Andrus v. Irick, 87 Idaho 471, 394 P.2d 304; Janinda v. Lanning, 87 Idaho 91, 390 P.2d 826; Thomson v. Marks, supra; Walker v. Nunnenkamp, 84 Idaho 485, 373 P.2d 559; Barron v. Koenig, 80 Idaho 28, 324 P.2d 388; Nelson v. Hoff, 70 Idaho 354, 218 P.2d 345. However, whether such alleged fraud has been proven by clear and convincing evidence is solely the determination of the trier of fact. On appeal that determination will not be reversed where supported by competent, [344]*344substantial, though conflicting, evidence. Gem-Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943, 948, where this court was discussing the question of whether the evidence had established by clear and convincing evidence that a conveyance absolute on its face was in reality a mortgage. In holding that this is a question primarily for the trial court, the case of Wright v. Rosebaugh, 46 Idaho 526, 269 P. 98 (1928), was quoted with approval as follows:
“The trial court is the appropriate tribunal to weigh the evidence, and determine whether it is convincing and satisfactory, within the meaning of the rule. It has been said that in such cases, as in others, the determination of that court in favor of either party upon conflicting or contradictory evidence is not open to review in the appellate court, [citing two California cases]”
See also Jones v. Adams, 67 Idaho 402, 182 P.2d 963.
Of the various essential elements of fraud, i. e., (1) a misrepresentation of a material past or existing fact; (2) the untruth or falsity of such representation; (3) the speaker’s knowledge of its falsity or ignorance of its truth; (4) his intention that it should be acted upon by the person to whom it is made; (5) ignorance of its falsity on the part of the person to whom it is made; (6) - reliance on a representation ; (7) his right to rely upon it; and (8) his damage occasioned thereby (Shrives v. Talbot, 88 Idaho at page 215, 398 P.2d 448), counsel for Shriveses in this appeal, both in his brief and in his oral argument before the court, relied principally on Tal-bots’ failure to prove elements (1), (6) and (8). The misrepresentation concerning the availability of irrigating water and the feasibility of a sprinkler system on the bench 120 acres which permit the growing of any crop, as more particularly set out in the court’s finding of fact XII, is amply supported by substantial and competent evidence. The conflicting evidence by Shrives himself was resolved by the trial court in favor of the version testified by the Talbots and this will not be disturbed upon appeal. But Shriveses contend that such statements were not representations of a past or present fact but mere opinion of future possibility. If this were true, such contention would be valid under the holdings in Barron v. Koenig, supra; Nelson v. Hoff, supra, and other prior holdings of this court, but there is more than mere opinion as to future possibility in the representations made by Shrives. Counsel for Shriveses, in cross-examining Talbot in the retrial, made every effort to establish this future possibility theory, but the closest he came to succeeding was in the following questions by Mr. Gee and answers of Talbot:
“Q So that the questions about irrigating the plateau, the bench land, and the other lands were future possibilities ?
“A He says it could be.
“Q These were future possibilities, weren’t they, sir?
“A Well, he says that’s what could be. He says that you could do it. If he said you could do it, I guess that would be up to the future.
“Q. Well, you knew that it would take a great deal of work, didn’t you, sir—
“A. Well—
“Q. In order to get the water up on the hill?
“A. It would, but there’s no water there, no way you could get it. You’d have to dig a well or something.”
The trial court was correct in concluding that the misrepresentátioris made by Shrives concerned past or existing facts, not mere opinion as to future possibilities.
Next Shriveses contend Talbots were not entitled to, and in fact did not, rely upon Shrives’ misrepresentations. That Talbots did not have the right to rely upon the representations of Shrives is completely answered in this court’s opinion on the first appeal, Shrives v. Talbot, 88 Idaho, at pp. 215-217, 398 P.2d 448, wherein this court quotes with approval [345]*345from Burger v. Calek, 37 Idaho 235, 215 P. 981 (1923); Gridley v. Ross, 37 Idaho 693, 217 P. 989 (1923); Brooks v. Jensen, 75 Idaho 201, 270 P.2d 425 (1954); Summers v. Martin, 77 Idaho 469, 295 P.2d 265 (1956); Fuchs Realty Co. v. Lloyd, 80 Idaho 114, 326 P.2d 381 (1958); and Janinda v. Lanning, 87 Idaho 91, 390 P.2d 826. Thus this is the law of the case and the Shriveses are bound by it on this appeal. United States Building & Loan Ass’n v. France et al., 58 Idaho 95, 70 P.2d 374; Creem v. Northwestern Mutual Fire Ass’n of Seattle, Wash., 58 Idaho 349, 74 P.2d 702; Southeast Securities Co. v. Christensen, 70 Idaho 338, 218 P.2d 342.
Concerning the contention that Talbots did not in fact rely upon these representations the court’s finding of fact XV that Talbots did in fact rely upon the misrepresentation, is amply supported by Plaintiffs’ Exhibit IQ which is an application for Farmers Home Administration services. This document is dated March 30, 1961, just 13 days after the agreement between the parties. On page 2 of this application Talbots were required to list the major changes and improvements in farm crops and livestock intended by them and listed therein is “Install sprinkling system in spring of 1964.” Obviously Talbots did rely on Shrives’ misrepresentations and fully intended to take advantage of the sprinkling system Shrives represented was possible and feasible.
Counsel for Shrives most seriously urges lack of sufficient proof of Talbots of another essential element of fraud, i. e., pecuniary damage, reliance being placed primarily on finding of fact VI of the trial court, i. e.:
“That values placed on the respective properties were reasonable values.”
Shriveses argue, this means the values of the properties were $20,000.00 and $40,000.-00 respectively, and since the property received by the Talbots was reasonably worth the purchase price paid, Talbots have failed in this essential element of the required proof and thus are not entitled to judgment. If Talbots had sought or received a judgment for money damages for the alleged fraud, then this contention of the Shriveses would be correct under existing Idaho case law, for this court has long been committed to the rule that in order to show damage from fraud the purchaser of property must show that the property he obtained was of less value than the price paid for it. Smith v. Neeley, 39 Idaho 812, 818; 231 P. 105, 106. This principle was reiterated as late as 1964, in Andrus v. Irick, 87 Idaho 471, 394 P.2d 304. Thus where the purchaser seeks damages for alleged fraud it appears Idaho is committed to the “out-of-pocket” rule which limits the recovery of damages to the difference between the real value of the property purchased and the price paid or contracted for. This court has often recognized the existence of a different measure of damages referred to as the “benefit-of-bargain” rule, under which the damages allowed are the difference between the real value of the property purchased and the value which it would have had had the representations been true.
However, it is well to bear in mind that in the second trial of this case Talbots abandoned any cause of action they may have had for the various damages alleged and relied entirely and solely on their right to rescission; and this is the judgment granted by the trial court. In finding of fact XVI the trial court specifically found:
“That the north 300 acres was the bulk of the land in the sale for the raising of crops and the misrepresentations materially affected the use and value of this land.”
This finding of fact by the trial court is amply supported by the record.
We have diligently researched all Idaho cases which have dealt with the application of the “out-of-pocket” rule in fraud cases and in none of them has this rule been applied to an instance where a defrauded purchaser has merely sought rescission rather than monetary damages. It is true [346]*346that this court in Bancroft v. Smith, 80 Idaho 63, at page 68, 323 P.2d 879, at page 881 stated that the out-of-pocket rule would apply to rescission as well as to a purchaser seeking damages. The exact language used is as follows:
“Assume the case of a defrauded purchaser who elects to rescind and forego damages. He must prove by clear and convincing evidence that the property is worth less than the purchase price. But, the amount of his damage is unimportant provided it is sufficiently substantial to warrant rescission.”
Thus this is pure dicta and cannot be relied upon as binding precedent upon the court.
Additionally this court, in Weitzel v. Jukich, 73 Idaho 301, 251 P.2d 542, in a four-member majority opinion written by Justice Porter, pointed out the two rules for measure of damages in appropriate cases of fraud, i. e., out-of-pocket rule and the benefit-of-bargain rule but specifically held that these rules are not exclusive and should only be used when appropriate under the facts. The court further observed:
“The underlying principle is that the victim of fraud is entitled to compensation for every wrong which is the natural and proximate result of the fraud. The measure of damages which should be adopted under the facts of a case is the one which will effect such result.”
Applying this principle to the facts at hand, where the purchasers (Talbots) have proved the value or worth of the property purchased to be materially and considerably less than it would have been had the representations made by Shrives been true instead of false, the purchasers are entitled to rescind the agreement even though the property received was in fact worth the purchase price.
By analogy this conclusion is supported by the cases collected in the annotation in 106 A.L.R., beginning page 141, cited for the proposition that:
“The rule supported by sound principle, as well as by the great majority of the cases, is that a purchaser’s right to rescind, upon the ground of misrepresentation or mutual mistake concerning the character or condition of the property sold, or suitability for a particular purpose (or, as concerns real estate, its location), is not, as a general principle of law, defeated by the absence of pecuniary damage.”
Nance v. McClellan, 126 Tex. 580, 89 S. W.2d 774, 106 A.L.R. 117 (1936); 23 Am. Jur., Fraud & Deceit, § 173, pp. 987-990; Mott v. Tri-Continental Fin. Corp., 330 F.2d 468, 470 (2d Cir.N.Y.1964); Boring v. Jungers, 22 Md. 458, 160 A.2d 780, 784-785 (1960); Turner v. Turner, 167 Cal.App.2d 636, 334 P.2d 1011, 1015 (1959). See Brooks v. Jensen, 75 Idaho 201, 270 P.2d 425. The right of a purchaser to rescind a real estate contract on the grounds of breach of an implied warranty that the property would be fit for the use intended, i. e., inhabitation, has recently been recognized by this court in Bethlahmy v. Bechtel, 91 Idaho 55, 415 P.2d 698.
There appears therefore to be no merit to the various objections raised by the Shriveses in their first assignment of error.
In their second assignment of error the Shriveses contend rescission should have been denied because of laches on the part of Talbots. This issue was not raised in the trial court, either in the first trial or in the second trial, nor was it raised on the first appeal or in the petition for a rehearing from the decision of the first appeal. It will not now be considered by this court, having been raised for the first time on the second appeal. Cantlin v. Carter, 88 Idaho 179, 397 P.2d 761; Robinson v. Spicer, 86 Idaho 138, 383 P.2d 844; Frost v. Mead, 86 Idaho 155, 383 P.2d 834; Cox v. Cox, 84 Idaho 513, 373 P.2d 929; Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692.
Finally the judgment on retrial is alleged erroneous in that:
(a) It collaterally reversed the amended decree of foreclosure entered Octoer 29, 1963 and set aside the sheriff’s sale there[347]*347under although Talbots requested, and have never appealed from, that decree which thereby became final.
This same argument was indirectly raised without success on both the first appeal in this case and the petition for rehearing which was denied. The issue it presents is patently without merit. Talbots correctly appealed from the judgment of foreclosure upon which the decree and order of sale were based. Where that judgment is subsequently reversed after execution and sale of the property, Shriveses become obligated to make restitution of all things received by virtue of that judgment. Here where there was no third party to the judicial sale and where respondents by their complaint sought rescission of the land sale agreement the district court correctly and equitably cancelled the deed of the Weston property running to Talbots and indirectly set aside the sheriff’s sale thus to place the parties in the positions which they occupied prior to the fraudulent transaction. 5 Am.Jur.2d, Appeal & Error, § 1004, p. 429. See Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838. Talbots’ requested amendments to the decree and order of sale cannot be considered a ratification of the court’s judgment. The execution upon and the sale of the property could not be stayed though the judgment of foreclosure had been appealed except by respondents’ filing a supersedeas bond in accord with the statutory authorization provided in I.C. § 13-207. See Eagle Rock Corp. v. Idamont Hotel Co., supra; Mays v. Winstead, 59 Idaho 677, 86 P.2d 471. Respondents had no reason to stay the sale of the property since their purpose was not to keep possession of the property but correctly took precaution to see that the sale was conducted according to law.
(b) It is confusing, contradictory and incomplete in ordering appellants to repay the $11,278.97 down payment, yet rescinding the deed to such property and leaving undetermined the amount paid by appellants on the Clifton mortgage and to whom that amount be paid.
This assignment is wholly without merit for in the first instance it is based upon an obvious misreading of the judgment. The court ordered cancellation of the deed to the Clifton property only in event the Shriveses choose to return the down-payment property to Talbots rather than pay Talbots the $11,278.97 which represented Talbots’ equity in that property when transferred. If the former alternative were chosen and the property returned, Shriveses would receive restitution in recompense for moneys they had paid on the outstanding mortgage on the property. Through proper construction the rights and liabilities of the respective parties are made clear and the judgment cannot be assailed upon the ground of uncertainty. Though the district court did not compute the amount paid by Shriveses on the mortgage debt, this amount can be definitely ascertained. The judgment is not invalid for indefiniteness or uncertainty; the parties may readily understand their rights and liabilities thereunder. Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952; Irvine v. Mazurette, 115 Cal.App.2d 612, 252 P.2d 362 (1953); Niles v. Louis H. Rapoport & Sons, 128 P.2d 50 (Cal.App.1942). See also 49 C.J.S. Judgments § 72, p. 191.
Judgment for Talbots (respondents) affirmed with costs on this appeal.
McQUADE and TAYLOR, JJ., concur.