Volume 150 — California Reports

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Prohibition to the Superior Court of Santa Clara County and Walter L. Crow, Receiver thereof. John R. Welch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Lease—Option to Purchase—Construction—Exclusion oe Excepted Area—Easement.—A lease by a railroad company of land for salt works, saving and reserving from the leased premises its railroad track and a space twenty feet in width on either side of the center of the track, and granting an option to purchase the leased premises for a fixed-, price, does not include within said option any part of the excepted area, and such exception cannot be construed to be merely the reservation of an easement over a part of the leased premises.</p> <p>Id.—Mistake in Deed—Reformation—Pleading and Proof.—Where, by mistake in the deed executed under the option, the excepted area was included therein, it is immaterial whether the mistake was mutual or a mistake of the plaintiff, known or suspected by the defendant; and where the mistake was alleged in each form, the plaintiff was entitled to reformation of the deed upon sufficient proof of either.</p> <p>Id.—Carelessness in Failing to Read Deed.—The mere failure of a party to read an instrument with sufficient attention to perceive an error or defect in its contents will not prevent its reformation at the instance of the party who executes it thus carelessly. Such carelessness does not constitute a neglect of legal duty, within the meaning of section 1577 of the Civil Code; and the conditions on which the contract may be reformed, specified in section 3399 of the Civil Code, do not require the refusal of relief because the party asking it might have discovered the mistake béfore signing.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Sullivan & Sullivan, Theo. J. Roche, and H. D. Gill, for Appellants.</p>

PETITION for Writ of Review to annul orders of the Superior Court of the City and County of San Francisco striking out a memorandum of costs and quashing execution thereon. J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court.

<p>Breach op Contract—Measure g¡f Damages—Probable Result Contemplated by Parties.—The only damages recoverable for breach of contract are such as the parties may be reasonably supposed, in the light of all the facts known or which should have been known to them at the time of making the contract, to have considered as the probable result of a breach, or as likely to follow therefrom, in the ordinary course of things, and therefore to have, in effect, stipulated against. Other damages are too remote and cannot be recovered.</p> <p>Id.—Breach of Contract for Water Supply—Loss op Premises by Fire, when Recoverable—Definite Contract.—-It is only where a definite contract calls for the continuance of an instituted water service for the purpose of extinguishing fires, or calls for a service to be instituted at a definite time, under circumstances known to the parties, making it essential that particular protection from fire should then commence, that loss of the premises by fire may be recovered as having been reasonably supposed to have been within the contemplation of the parties.</p> <p>Id.—Indefinite Contract—Remote Damages.—Under an alleged contract for a general water supply and for a fire-hydrant to be installed, in which no definite time appears to have been fixed for its commencement, and no special circumstances appear making it essential that the agreed service should be commenced at any particular time, or within a reasonable time, and the rate agreed upon was to begin only when the service was installed, damages resulting from the loss of the premises by fire before the installation of such service, are too remote to be considered as within the contemplation of the parties and cannot be recovered.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Public Park—Use rob Public Library—Administration Purposes— Injunction.-—The erection of a building for a public library in a public park, with rooms therein as a meeting-place for the board of library directors of the city, is a legitimate use of a portion of • the park which cannot be enjoined at suit of .an abutting owner and taxpayer; but the use of the library building for administration purposes, such as for rooms for the board of education, or for any other municipal body, may be enjoined.</p>

<p>APPLICATION for Writ of Habeas Corpus to the Chief of Police of the City of Los Angeles.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Judgment for Alimony—Collateral Attack—Defective Complaint—Prayer for General Relief—Jurisdiction.—A judgment for alimony included in a judgment for divorce based upon a complaint stating a cause of action for divorce for extreme cruelty, but containing no averments concerning property or the husband's ability to pay alimony, and containing only a prayer for divorce and for general relief, is not void upon its face nor subject to collateral attack. The defect in the complaint does not go to the jurisdiction to include alimony in the judgment.</p> <p>Id.—Remedies in Superior Court.—The superior court has no power to set aside such judgment for alimony as an act done without jurisdiction. It can be modified therein as in excess of the relief specifically prayed for in ease of default only by proceedings under section 473 of the Code of Civil Procedure, or by proceedings in equity.</p> <p>Id.—Appeal from Order Modifying and Vacating Permanent Alimony—Remarriage of Plaintiff—Jurisdiction not Reviewable. —Upon an appeal from an order of the superior court modifying the judgment as to permanent alimony by enforcing it for accrued payments and vacating it from a fixed date, under a motion to vacate and modify it solely on the ground that equity and justice required that it should be vacated because of the remarriage of the plaintiff, the original jurisdiction of the court to render the judgment for alimony is not reviewable.</p> <p>Id.—Right of Husband to Vacate Alimony upon Remarriage of Wife —Exceptions—Presumptions.—The divorced husband may, in general, secure an order vacating the decree for permanent alimony upon remarriage of the divorced wife, excepting where it appears to have been awarded in lieu of the wife’s rights of property, or where it appears that the second husband is unable to support her. In the absence of any averments of the complaint as to the husband’s property and of any showing to the contrary, it must be presumed that the alimony allowance had no other basis than her husband’s general obligations of support and maintenance; and in the absence of any showing that the second husband is unable to support her, his ability to do so must be presumed; and where no rights of children are involved, all alimony accruing after the remarriage should be vacated.</p> <p>Id.—Laches not Imputable to Husband—EstoFpel of Wife.—The delay of the defendant in proceeding for a vacation of the decree for a period less than the statute of limitations does not constitute laches, where it appears that he had no actual knowledge of the allowance and nothing was said about it in the complaint, and before the decree the wife made a conditional agreement in writing with the husband that she would not ask alimony, and not long after the decree she removed from the state and remarried in another state nine months after the divorce, and gave him no notice that she had obtained such allowance. The wife in such ease is estopped to complain of the delay of the husband; and he was not required to proceed to avoid a liability of which he was ignorant.</p> <p>Id.—Assignment op TJndemanded Alimony after Remarriage—Caveat Emptor—Subjection to Attack.—A judgment for alimony is not a negotiable instrument; and where it was assigned long after the wife’s remarriage, and no part of it had ever been paid or demanded from the husband, it is eminently a ease for the application of the maxim caveat emptor, and the assignee purchasing the judgment got the right he bought and no more. The judgment. is subject to the same attack in his hands as it would have been had it remained in the name of the original plaintiff; and he is not entitled to enforce any unpaid alimony accruing after the plaintiff’s remarriage.</p>

<p>Corporations—Subscriptions to Stock—Liability Limited to Registered Owner.—The registered owner of the stock of a corporation is alone liable to the corporation for assessments or calls for payment of subscription, until a transferee thereof causes the transfer to be entered upon the books of the corporation or deals with the corporation as a substituted stockholder and is accepted by the corporation as such.</p> <p>Id.—Action by Insolvent Bank—Calls for Unpaid Subscriptions— Distributee of Stock not Liable.—An action by an insolvent savings bank, which has called in all unpaid subscriptions to its stock, cannot be maintained against a distributee of stock whose name is not upon its books and who has done no act to establish privity with the corporation, it appearing that the stock still stands upon the books in the name of the decedent personally.</p> <p>Id.—Pleading—Ownership of Stock—Conclusion—Uncertainty.— An averment by plaintiff that defendant became and is the owner and holder of the stock, which is a mere conclusion from the facts specifically alleged as to the distribution of the stock to her, and that she "accepted” the certificate and retained the same, does not, as against a general demurrer and a special demurrer for uncertainty and ambiguity, show that defendant made herself liable for the unpaid portion of the subscription made by the decedent. [Per Beatty, C. J., on petition for rehearing.]</p>

<p>Negligence—Injury from Wire Bope—Obvious Danger—Assumption of Bisk by Tenant—Landlord not Besponsible.—Where premises were leased with full knowledge by the tenant, and without warranty by the landlord, concerning an obvious danger from a wire rope imbedded in the earth on the lot, which supported a telegraph-pole forming part of the landlord’s electric system, which rope was not part of the leased premises, and where the tenant had lived thereon sixteen months before injury resulted to the tenant’s wife from a fall upon the rope, the tenant and his wife had assumed all risk from such obvious danger; and no actionable negligence is imputable to the landlord in maintaining the wire rope, nor is he responsible for such resulting injury.</p> <p>Id.—Latent Danger from Sharp Points—Contributory Negligence. —Conceding, without deciding, that the landlord was guilty of negligence in allowing sharp points of wire near the ground at the end of the wire rope to remain without protection or guard, where it appears that the wife’s fall upon the wire and her resulting injury upon the sharp points were the consequence of her own contributory negligence in coming in contact with the exposed wire, the ease is one where her contributory negligence in part caused her injury, and there can be no recovery for any negligence of the defendant contributing thereto.</p> <p>Id.—Insufficient Pleading—Inconsistent Averment of Care.-—The complaint by the tenant and his wife against the landlord, which alleges facts negativing the actionable negligence of the landlord in maintaining the wire rope and facts showing her own contributory negligence, is insufficient; and it is not sustainable by reason of an allegation that she was using all due care to avoid the wire, which is incompatible with the averment of her familiarity with its position and with the absence of any averment of extraordinary circumstances making it necessary for her to come in contact with it.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mandamus — Continuance for Sickness of Party — Discretion of Court.—A writ of mandate will not lie to control the discretion of the court in refusing a continuance, notwithstanding the sickness of a party preventing his attendance on the court. Such sickness' does not ipso facto require the court to grant the application. It is for the trial court in all cases, except where otherwise expressly provided by statute, to determine whether or not the circumstances shown upon an application are such as to make it proper that a continuance should be granted, and its conclusion thereon will not be disturbed unless there has been a plain abuse of discretion.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Dupont-Street Bonds—Special Fund—Judgment against City not Supported by Complaint-^Failure to Pay Bonds.—The DupontStreet bonds issued by the city and county of San Francisco under the act of March 23, 1876, for the widening of Dupont Street, were payable only out of a fund to be raised by taxation of lands within a specified district declared to be benefited. All claims against the city were waived, and it cannot be held liable to a personal general judgment. Where no breach of duty was alleged in an action against the city except failure to pay the bonds, the complaint cannot support a judgment against the city.</p> <p>Id.—Fund not Alleged not Presumed—Mandamus not Supported. —Where the complaint did not allege the existence of a fund sufficient to pay the bonds, such fund cannot be presumed; but the complaint having failed to allege an existing duty and a failure - to perform it on demand, cannot support a mandamus, which only lies to compel the performance of an act which the law especially enjoins as duty resulting from an office, trust, or station.</p> <p>Id.—Bight op Action to Establish Bonds—Prevention of Bar 'of Statute—Prayer of Complaint Disregarded.—Though the plaintiff has no right of action for a general judgment against the city, or for a writ of mandate, yet he is entitled to maintain the action in order to establish the bonds, and to prevent the bar of the statute of limitations thereupon; and a judgment may be rendered establishing the debt for that purpose. The prayer of the complaint for a general judgment against the city may he disregarded as not measuring the plaintiff’s rights; and since the complaint entitles him to some relief, a general demurrer thereto was properly overruled.</p> <p>Id.—Erroneous Judgment upon Pleadings—Interest after Maturity not Allowable.—Not only was the general judgment against the city erroneous, but it was further erroneous in rendering judgment upon the bonds for interest after maturity, for which the statute does not provide. The provision is only for coupons to be attached for.each year’s interest accruing up to the time of maturity; and no coupons being attached for interest accruing after maturity, the statute must be understood as intending that no such interest was to accrue. Section 1917 of the Civil Code does not apply.</p> <p>Id.—Overissue of Bonds—Validity—Insufficient Defense.—In case of an overissue of the bonds, they would all be valid except those issued after the limit was reached; and a defense alleging such overissue without alleging that plaintiff’s bonds were included in the overissue is insufficient.</p> <p>Id.—Effect of Limited Judgment—Parties not Affected—Bights of Property-Owners.—The limited judgment establishing the bonds and removing the bar of the statute may be rendered without making the property-owners parties; but a judgment having that effect against the city alone would not bind the owners of the property nor estop them from showing that the bonds were invalid or not enforceable for other reasons.</p> <p>Id.—Questions Affecting Property-Owners.—The questions whether in view of the recitals on the face of the bonds the defense of overissue can be raised against the plaintiff, and whether judgmeats enjoining the tax-collector from collecting the tax against certain property-owners, hind the city and the bondholders who were not parties thereto, are questions which should not be deterinined in the absence of the property-owners as parties.</p> <p>Id.—Beversal oe Judgment—Parties.—Where the ease is remanded by reason of the erroneous judgment, the property-owners should be made parties, if plaintiff desires to attempt in this action to obtain judgment for any relief other than the special relief grant-able against the city alone.</p>

order of the Superior Court of the City and County of San Francisco refusing to restrain the execution of a Writ of Assistance. Frank J. Murasky, Judge. The facts are stated in the opinion of the court.

<p>Taxation—Assessment of Commercial Vessels—Registry at Domicile of Owner.—Vessels employed in foreign or interstate commerce, which had not by the manner of their use acquired an actual situs elsewhere, are properly assessed for taxation at San Francisco, the port of the domicile of their sole owner, where they are registered under the laws of the United States, regardless of the fact that they were outside of the waters of the State from a date preceding the first Monday in March in the year of the assessment and at the time of the assessment and collection of the tax, and that some of them had never been within its waters.</p>

PROCEEDING in Certiorari to review and annul an order of the Superior Court of Lassen County. P. A. Kelley, Judge. The facts are stated in the opinion of the court.

<p>APPLICATION for Writ of Prohibition to the Superior Court of Lassen County. F. A. Kelley, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Taxation—Void Assessment and Sale oe Street.—An assessment of a portion of a public street is void, and creates no lien upon the land assessed; nor can a sale and conveyance by the tax-collector to the state for a delinquent tax thereupon transfer title to the state, nor would a grantee from the state acquire any right in the land, or by reason of such sale be authorized to close the street from use by the public.</p> <p>Id.—Payment by Lot-Owner to Prevent Sale—Protest—Code Provision Inapplicable.—A payment by a lot-owner abutting on the street but not on the part of the street assessed, made under protest, to prevent a sale of such part of the street, is not rendered involuntary by the protest under section 3819 of the Political Code, which provides merely that taxes paid under an illegal assessment by the owner of land under protest shall not be regarded as voluntary, and has no application to a payment by one who is not the owner of nor interested in the land assessed. The interest of the lot-owner in that part of the street was no different from that of any other proprietor whose lot bordered on any other part of the street.</p> <p>Id.—Voluntary Payment with Knowledge oe Facts—Presumption —Absence op Coercion—Money Paid not Recoverable. — The payment of the money by such lot-owner into the city and county treasury under protest, to prevent such sale, made with full knowledge of the facts and with presumed knowledge that the sale was made without any authority and created no lien, was voluntary and without compulsion- or coercion, or any duress or threatened exercise of power over his person or property; and the money so paid cannot be recovered back by action against the city and county.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Injunction—Fraudulent Diversion or Bakers ’ Business—Damage. —Plaintiffs, whose bakery had been known as the ‘ ‘ Old Homestead Bakery, ’ ’ and whose bread was stamped with the words ‘ ‘ Old Homestead,’’ the word "Old” being stamped above the word "Homestead,” may enjoin the fraudulent diversion of their business . by the defendant, who offered for sale bread stamped "New Homestead,” of the same size and stamped in the same style as the loaves of the plaintiffs, with the fraudulent intent to injure and divert the business of plaintiffs, and to deceive and mislead their previous purchasers and customers, and which had that effect, to plaintiffs’ damage, for which judgment was given.</p> <p>Id.—Gist of Action—Trademark not Involved—Fraudulent Appropriation of Trade.—The plaintiffs’ right to recover in the action does not depend upon plaintiffs’ right to the exclusive use of the words in question. The gist of the action is not the appropriation and use of another’s trademark, but is based upon the fraudulent injury to and appropriation of another’s trade.</p>

<p>Pawnbrokers—Definition.—To constitute a person a pawnbroker he must receive goods in pledge for loans of money at interest, and this must be his business, or a well-defined part thereof, as contra-distinguished from a single transaction or occasional loans upon pledge.</p> <p>Id.—Nature and Limits of Business.-—Although a pawnbroker limits his business,, as such, to pledges of jewels and jewelry only, and, at the same time and place, conducts the business of a ¿honey-lender and requires the pledgor or pawnor of jewelry to execute a note or chattel mortgage upon jewelry transferred to his possession as security for loans of money thereon at interest, such facts do not render his business of receiving goods in pledge for such loans any the less that of a pawnbroker.</p> <p>Id.—Pledge Distinguished from Mortgage.—Every contract by which the possession of personal property is transferred as security only is deemed a pledge; and the very fact that the pawnbroker took possession of the property as a pledge, and relied upon it as such, negatives the conception of a chattel mortgage.</p> <p>Id.—Business a Subject of Police Begulation.—The business of . pawnbroker has always been the subject of police regulation for the benefit of the public, and it is unlawful if not conducted under the provisions, restrictions, and requirements of the law.</p> <p>Id.—Statutes for Protection of Public—Violation—Void Contract. —Wherever a statute is made for the protection of the public a contract in violation of its provisions is void.</p> <p>Id. — Violation of Penal Laws Begulating Pawnbrokers — Void Pledge—Becovery by Pledgor.—Where a pawnbroker has violated a city and county ordinance requiring a special license, and the provisions of the Penal Code on that subject, and also its penal provisions requiring him to make a complete registry of each transaction, and to deliver a written copy thereof to the pledgor, and forbidding loans on pledges in excess of ten per cent per annum, a contract of pledge in violation of such penal provisions is void, and the right of' the pledgee to hold the property is lost, and the possession thereof may be recovered by the pledgor.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. V. Morehouse, J. E. Alexander, and M. C. Dufficy, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John S. Chapman, Johnston & Jones, Stanton L. Carter, Platt & Bayne, and H. H. Welsh, for Appellants.</p>

<p>The facts are stated in the opinion of the court. •</p>

<p>Contract for Purchase of Salt—Action for Breach—Ruling as to Immaterial Evidence—Exclusion of Contract—Amendment— Second Offer Unnecessary.—In an action for damages for breach of a contract showing the purchase of a.quantity of salt, under a scale of prices fixed according to quality, to be ordered for shipment before a time fixed, where the court ruled that the contract should be excluded from evidence, as being an executed contract which was void for incompleteness, want of materiality^ and uneer-tainty, and allowed an amendment setting forth the specific orders made for the delivery of salt at a certain price, but declaring at the same time that no amendment of the pleading would affect its construction of the contract, no second offer of the contract was neeessaiy after such amendment and declaration by the court. The law does not require the doing of vain things.</p> <p>Id.—Proof of Execution of Contract—Signature by Plaintiff Corporation—Authority of President—Admission of Pleadings.— Where the execution of the contract was sufficiently proven against the defendants sought to be charged, no proof of the authority of the president of the corporation to sign the contract for it is necessary, where no issue was raised as to his authority, which was alleged in the complaint; and an alleged demand by plaintiff corporation for a fulfillment of the contract showed a ratification of the president ’a signature, rendering proof of his authority unnecessary.</p> <p>Id.—Partnership of Defendants—Variance—Question for Jury.— If any variance existed between the complaint and the evidence as to the partnership of the defendants, without deciding that it did exist, the question as to such variance was one for the ■ jury, and the court would not be justified on that ground in summarily withdrawing the ease from the consideration of the jury by an instruction to find for the defendants.</p> <p>Id.—Construction of Contract—Error of Court.—Applying the proper principles for the construction of contracts, the court erred in holding the contract to be an executed contract, which was void for the* reasons assigned. It does not evidence a completed sale, which would be open to the objections of uncertainty and want of mutuality; but at the most it is an executory contract of sale, and at the least an option to purchase good until withdrawal, and binding if the option was exercised before withdrawal.</p> <p>Id.—Executory Contract—Obligations and Eights of Parties.— Treating the contract as an executory contract of sale, plaintiff had bound itself to take a specified quantity of salt, and had a specified time in which to select the kinds or. one kind of salt which it would use, the prices thereof being fixed, and defendants had bound themselves to supply this salt at those prices as delivery of the same should be demanded during the time fixed. If 'plaintiff failed to take that quantity of salt of a specified kind or kinds by the time fixed, it would be the right of the defendant salt company to have insisted upon plaintiff taking such kind and quality of salt as would be most advantageous to it.</p> <p>Id.—Option to Purchase—Acceptance.—Treating the contract as an option to purchase, the legal effect is not different. Hot having been withdrawn, it became binding upon an acceptance evidenced by the demand for the shipment of the quantity and kind of salt ordered under the terms of the contract within the time limited and the offer to pay the agreed price therefor.</p> <p>Id.—Certainty of Contract—Code Maxim.—The maximum amount of quantity being fixed by the contract, the uncertainty as to the quantity and quality of particular kinds of salt which might be chosen is not the kind of uncertainty which renders an executory contract unenforceable. The agreement is relieved of uncertainty wh.en the choice is exercised; and such contracts come within the maxim embodied in section 3538 of the Civil Code, that “that is certain which can be made certain. ’ ’</p> <p>Id.—Construction Upholding Contract Preferred.—There being two permissible constructions of the contract in question which fairly express the meaning of the parties and which make a valid and binding instrument, and if it be conceded that a construction making the contract an executed sale-is .possible, under which it would be invalid, then the rule must be applied that a construction which establishes a valid contract is to be preferred to that which does not.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Heller & Powers, Edmund Tauzsky, and A. A. Moore, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Mechanics’ Liens—Action by Sub-Contractors — Personal Judgment against Owners.—In an action by sub-contractors to enforce liens for material and labor furnished by them to the contractor' for the construction of a building, they are entitled only to enforce their claims against the “"land; and a personal judgment against the owners is erroneous.</p> <p>Id.—Delay in Performance of Contract—Deduction of Damages by Owners against Lien-Holders.—Where the contract was valid and properly recorded, and the rights of all parties rest upon it, and it provided for the allowance of damages to the owners for delay if the building was not finished in five months, the damages proved by the owners to have resulted from such delay should be deducted from the contract price as against lien-holders.</p> <p>Id.—Construction of Code—Provision against Offsets.—The provisions of section 1184 of the Code of Civil Procedure against the diminution of the contract price as to all liens except the contractor’s by any indebtedness, offset, or counterclaims in favor of the owners against the contractor, has reference to offsets not arising under the terms of the contract, and as to which from an inspection of the contract, materialmen and laborers could have no notice.</p> <p>Id.—Attorneys ’ Fees—Unconstitutional Provision.—The provision for attorneys’ fees in favor of the plaintiff in mechanics’ lien suits, made in section 1195 of the Code of Civil Procedure, in favor of each lien claimant whose lien is established, without any allowance to the defendant, and without like allowance in other cases, is in violation of the fourteenth amendment to the federal constitution, and of the provisions of the state constitution requiring that general laws shall be uniform, prohibiting special laws, and declaring the “inalienable rights of all men to acquire, possess, and protect property. ’ ’</p> <p>Id.-—Costs—Expense op Filing Liens.—The expense of filing liens is properly included as part of the “costs and disbursements” upon foreclosure thereof; and the provision of the code for the allowance of such expense as part of the costs is not unconstitutional.</p>

The facts are stated in the opinion rendered upon the former appeal, 139 Cal. 507, and in the opinion of the court upon the present appeal.

<p>Public Nuisance—Unauthorized Construction of Railroad in Street —Private Action—Special Injury—Rules of Pleading—Statement of Facts.—A railroad constructed on a public street without authority constitutes a public nuisance; but a private person may maintain an action therefor if it is specially injurious to himself, but not otherwise; and he must allege facts showing a special injury, not only greater in degree but different in kind from that suffered by the general public. General allegations of special or irreparable injury are insufficient; and the pleader must state facts from which the court can determine whether such injury exists.</p> <p>Id.—Street Railroad — Action by Abutting Owner — Injunction — Insufficient Complaint.—A complaint in an action by an abutting owner to enjoin the construction, operation, and maintenance of a double-track street railroad in a public street without right, which merely alleges as a resulting injury that “the property of plaintiff and the property rights of plaintiff will be irreparably injured and damaged in this, that the value of said property will be greatly diminished, free access in and to said property will be irreparably injured, and the rental value of said property will be greatly and permanently decreased,”—without stating the width of the street, or the proximity of the tracks to plaintiff’s property, or whether any embankment or depression will be created preventing acce'ss to plaintiff’s property, or that the operation of the road itself will affect him,—is insufficient, and a general demurrer thereto was properly sustained.</p> <p>Id. — General and Special Allegations of Irreparable Injury — Opinion or Conclusion of Pleader.—The allegations in the complaint of irreparable injury in general, and of the particular specifications relative to it, amount to nothing more than the expression of an opinion or conclusion of the pleader, and do not constitute a statement of facts from which the court could determine whether the plaintiff’s apprehensions of special injury are well founded or not.</p>

<p>Corporations — Liability op Stockholders — Untenable Action by Creditors against Distributed Estate op Stockholder.—Creditors of an insolvent banking corporation, who became such subsequent to the settlement of the final accounts of the executors of a deceased stockholder, who presented no claim against the estate, cannot, after distribution of the estate, which closed it so far as any claims against it were concerned, maintain any action against the executors to enforce the personal liability of the deceased stockholder.</p> <p>Id.—Pendency op Appeals prom Decree.—The pendency of appeals from the decree of distribution which only involved the rights of the distributees as between themselves, cannot affect the right of the creditors of the corporation to maintain such action after the entry of the decree appealed from.</p> <p>Id.—Affirmance of Judgment upon Motion — Termination op Appeals prom Decree — Discharge of Surviving Executor. — A motion by the respondent to affirm the judgment should be granted upon the record showing that the action was commenced after the original decree of distribution, as well as for the reasons appearing from a showing that the appeals therefrom had been finally determined, and the estate finally distributed, and the sole surviving executor, respondent, as well as the estates of the deceased executors, had been finally discharged from all liability, so that no administration is pending, and no relief asked for by the appellants could be made applicable or be enforced.</p>

<p>Preliminary Injunction—Power of Court to Modify Sua Sponte.— It seems, on principle and authority, that the court which has granted a preliminary injunction ex parte which by its terms is to continue until further order of the court, may dissolve or modify it of its own motion whenever it becomes satisfied that the order was improvidently or erroneously made.</p> <p>Id.—Construction of Code—Question not Determined—Power to Modify under Stipulation.—The question raised whether section 532 of the Code of Civil Procedure, providing for dissolution or modification of an ex parte injunction upon notice before trial, excludes the power of the court to act upon its motion, is not definitely determined, it being the clear effect of a stipulation upon the hearing of the case that “the entire matter should be submitted as a whole, pleadings, motions, orders, and the evidence.” Thus the court has power to modify the injunction order after such submission before the final decision of the case.</p>

PETITION for Writ of Mandate to the Superior Court of the City and County of San Francisco. Frank H. Kerrigan, Judge. The facts are stated in the opinion of the court. Garret W. McEnerney, Walter Rothchild, Joseph H. Mayer, Joseph Hutchinson, James S. Hutchinson, Chas. S. Wheeler, Amicus Curiœ, and J. F. Bowie, Van Fleet & Mastick, William H. H. Hart, and Bishop & Hoefler, Amici Curiœ, for Petitioner.

<p>APPEAL from a judgment of the Superior Court of Riverside County and from an order denying a new trial. Benjamin F. Bledsoe, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Attorney and Client — Evidence — Privileged Communications.—■ Communications made by clients to their attorney concerning a material matter of controversy for which he was employed in their behalf during the existence of the relation between them are priviledged and are not admissible against the clients without their consent.</p> <p>Id.—Object of Statute—Protection of Client—Existence of Delation.—Subdivision 2 of section 1881 of the Code of Civil Procedure, respecting privileged communications between attorney and client, is intended for the protection of the client, and to encourage him to give to the attorney whom he consults the fullest information concerning the facts upon which he asks the attorney’s advice or action; and if the relation existed when the communications were given, the subsequent cessation of the relation does not make the communications admissible.</p> <p>Id.—Action to" Set Aside Deed—Fraud and Undue Influence—Conflicting Evidence.—Admission of Letters to Attorney—Material Error.—In an action to set aside a deed alleged to have been procured from plaintiffs by the fraud and undue influence of an uncle, who had long stood to them in a relation of trust and confidence, and whose promises they relied upon, though he did not intend to keep them, where there was evidence tending to sustain the plaintiffs’ action, and counter-evidence in support of the defense, and the judgment was against the plaintiffs, it was material error requiring a reversal of the judgment to admit letters written by plaintiffs to an attorney employed by them, while the relation of attorney and client subsisted, which contained admissions material to the defense.</p> <p>Id.—Immaterial Circumstances—Cessation of Delation before Deed —Action of Clients—Attorney as Witness to Agreement.—The circumstances that the relation of attorney and client was discontinued before the execution of the deed, and that the clients acted independently in the conveyance to their uncle out of their personal regard for him and in reliance on his promises; and that the attorney subsequently became a witness to a written agreement made eotemporaneously with the deed, even if his signature was requested by them, could not tend to make their previous letters to the attorney, written while the relation of attorney and client subsisted, admissible, or to waive their right to object to their introduction in evidence.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Promissory Note—Consideration—Sale op Stock;—Support op Finding.—In an action upon a note, the consideration of which was assailed, a finding that the consideration was the sale of shares of stock in a corporation is sufficiently sustained where testimony for the plaintiff, an admission in the answer, and the terms of the contract of purchase showed that it was a sale, and it appears that the stock was transferred on the books in the name of the purchasers, who finally disposed of the same as owners.</p> <p>Id.—Terms op Contract—Collateral Security—Dividends—Power op Disposition.—The fact that the contract provided that the stock was to be held by the vendor as collateral security for the purchase money, and that while so held all dividends thereon should be owned by and paid to the transferees, does not tend to negative their ownership of the stock where it also gave them full power to sell and dispose of the stock while so held.</p> <p>Id.—Action upon Secured Note op One Purchaser;—Evidence—Oral Agreement—Guaranty to Co-Purchaser.—Where the note sued upon was the secured note of one purchaser of the stock, to which the other was' not a party, evidence that the payee had given to the other purchaser an oral promise to guarantee him against liability on the note in suit was immaterial for the want of sue> liability, and incompetent to affect any right of contribution between the co-purchasers upon payment of the note, and also as being inadmissible to change or vary the terms of the written contract for sale of the stock by any prior or subsequent oral agreement.</p> <p>Id.—Evidence—Actual Value op Stock at Time op Sale—Qualification op Witnesses—-Market Value.—It was not error to exclude the evidence of witnesses as to the actual value of the stock at the time of the sale, with respect to which there was no evidence of their qualification to testify on that subject, where it appears that so far as its market value was concerned they were allowed to testify.</p> <p>Id.;—Fictitious Market Value op Stocks—Irrelevant Evidence.— Where there was no evidence showing that the stock in question had any fictitious value in the market, it was not error, after appellants-’ witnesses had been allowed to testify as to the absence of a market value of the stock, to exclude as irrelevant a general question whether stocks may not have a fictitious value in the market.</p> <p>Id.—Construction op Issues and Findings—Fraud—Contract as to Interest and Dividends—Non-Liability por Interest—Defense not Pleaded.—Where the court found for plaintiff for the note and unpaid interest and against the defenses of want of consideration and fraud of the vendor of the stock in misrepresenting its value, and the answer in pleading the fraud set forth part of the terms of the contract representing and guaranteeing that interest would be kept paid out of dividends, and alleged there were no dividends or resources therefor, but did not especially plead the defense of non-liability for interest, the court was not required to find thereupon, or to find whether there were sufficient dividends paid upon the stock to discharge the interest on the note.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Fire Insurance—Reinsurance—Surrender of Covering Note after Loss—Mistake—Rescission.—An insurance company which had reinsured against part of the risk on one of its policies, and after loss, at the request of the reinsuring company, and under mistake of fact as to the loss, surrendered the -covering note of the company, is entitled to rescind the cancellation thereof on account of such mistake, and to recover against the reinsuring company the amount which was actually due therefrom when its covering note was cancelled.</p> <p>Id.—Nature of Mistake—Unconscious Ignorance of Fact—Belief in Non-Existent Fact.—It is immaterial to the nature of the mistake of fact, under sections 1576 and 1577 of the Civil Cod#, whether it be considered an "unconscious ignorance ’ ’ of the fast of loss or a “belief’’ in the present existence of the property insured.</p> <p>Id.—Recovery for Mistake not Inequitable.—The plaintiff may' recover what it has parted with by mistake of fact, where its success would not render a recovery inequitable, nor subject the defendant to any loss which in equity and justice it ought not to suffer.</p> <p>Id.—Intent to Surrender Unknown Claim not Imputed—Absence of Express Understanding.—An intent to surrender an accrued claim, the existence of which was not known, should not be imputed to the plaintiff in the absence of evidence of an express understanding to that effect.</p> <p>Id.,—Closed Transactions—Subsequent Dealing with Another Company.-—Where the transactions between plaintiff and defendant company had been closed by the loss and the mistaken surrender of its covering note before the second reinsurance was effected in another company, the subsequent dealing by plaintiff with such other company, whatever may be its legal effect, could not destroy the rights thus vested in plaintiff against the defendant.</p>

<p>Action fob Services—Pleading—Quantum Meruit—Implied Promise —Express Promise—Surplusage.—A complaint stating that plaintiff performed certain services for the defendant and alleging their reasonable value, and that they were rendered at the special instance and request of the defendant, states a sufficient cause of action on quantum meruit. From these facts the law implies a promise to pay the reasonable value, and an averment of an express promise to that effect is surplusage which will not vitiate the pleading.</p> <p>Id.—Variance—Evidence of Contingent Contract—Breach without Cause—Support of Quantum Meruit—Nonsuit.—Although proof of a contingent contract would be a fatal variance, where a contract to pay a definite sum absolutely is alleged; yet where the cause of action is upon a quantum meruit, and a contingent contract has been broken, proof of such contingent contract and of its breach without cause, shows no variance justifying a nonsuit, but supports the quantum meruit.</p> <p>Id.—Wrongful Discharge of Employee—Rescission of Contract— Recovery of Reasonable Value of Services.-—Where an employee is discharged by his employer without cause during the term of his employment, he may regard the contract as rescinded, and sue upon a quantum meruit, and recover the reasonable value of his services, as if the special contract of employment had never been made.</p> <p>Id.—Immaterial Infirmities in Contract—Uncertainty.—A plaintiff in quantum meruit does not sue upon an express contract or for a specific performance of it; and it is immaterial what infirmities exist in the contract actually made, or whether it is or is not void for uncertainty, or for any other cause.</p> <p>Id.—Employment by Corporation—Manager de Facto—Knowledge of Directors—Implied Ratification.—A contract of employment by a corporation may be made by one who is its manager de facto; and where the terms of the contract of employment were known to the majority of its directors individually, and they did not dis-affirm the contract, they are deemed in law to have ratified it.</p> <p>Id.—Evidence—Terms of Employment—Statements of Manager.—■ Statements made by the manager of the corporation during the course of the continuous employment of plaintiff by the corporation under the manager’s authority with reference to the terms of the employment were admissible as tending to show those terms.</p> <p>Id.—Contingent Employment for Life—Success of Business—Discharge—Evidence of Present Condition.-—Where, by the terms of the contract of employment, plaintiff, as an expert assistant in a business, was to have a position for life when the business was successful, with ample remuneration, and meanwhile was to have a small weekly salary for living expenses, his discharge could be justified only by proof of cause therefor, or that the business was in fact a failure; and mere evidence that it had not paid expenses and that the company had present indebtedness not paid, without any pretense of failure of the enterprise, was inadmissible.</p> <p>Id.—Receipts op Weekly Salary in Full—Measure op Compensation—Explanation of Purpose—Instructions.—In view of the circumstances and terms of the contract, the court properly refused an instruction that receipts for weekly salary “in full for account” must be regarded as a deliberate admission that the rate of compensation stated therein was the rate expressly agreed upon, and properly instructed the jury “that a receipt is never conclusive; it is always open to explanation, and the purpose for which it was given may be shown.”</p> <p>Id.—Services Outside Scope of Employment—Reasonable Compensation—Instruction—Question for Jury.—An employee in a particular service has the right to a reasonable compensation for services rendered outside the scope of. his employment, although there is no express agreement therefor. Where plaintiff’s evidence justified an instruction to that effect, it was properly given; and the question whether services were in fact rendered by plaintiff outside the scope of his employment was one for the jury to determine.</p> <p>Id.—Instruction as to Wrongful Discharge—Fact not Assumed— Duty of Defendant.,—An instruction that if the jury found that the agreement was that plaintiff should work for two dollars and fifty cents per day until the company was in a condition to pay more, or until it got in a more prosperous condition, “then the defendant had no right to discharge the plaintiff without cause,” does not improperly assume that plaintiff’s discharge by defendant was wrongful, or take that question from the jury. It was subject to a reasonable application by the jury to the evidence; and if defendant wanted it more clearly stated, it should have asked the court to°make it so.</p> <p>Id.—Instruction as to Effect op Employer’s Action.—An instruction “that where a servant has been wrongfully discharged during the term of his service, or where the term of service is otherwise closed by his employer’s action, the employee may treat the contract as rescinded and sue on a quantum meruit for the reasonable value of the services performed” neither assumes a “wrongful discharge” nor is objectionable in the use of the words “or where the term of service is otherwise closed by his employer’s action.”</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Insolvent Corporation—Action upon Subscription by Decedent—Distribution—Claim not Presented—Discharge op Executors— Appirmance op Judgment.—Where it appears that an action by an insolvent corporation upon a subscription to its stock by decedent was commenced after distribution of the estate and without any presentation of claim against it, and a judgment was rendered against it upon demurrer to the complaint, and that pending the appeal therefrom the surviving executor and the estates of deceased executors were discharged after final settlement of all accounts, and there is no estate, nor any executor to represent it, and the further prosecution of the action can he of no avail to the appellant, the judgment will he affirmed on that ground.</p>

<p>The facts are stated in thte opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate directed to the Judge of the Superior Court of San Luis Obispo County. E. P. Unangst, Judge.</p> <p>The facts are stated in'the opinion of the court.</p>

<p>Water-Eights—Conveyance of Land—Appurtenant Eight — Subsequent Division and Agreement—Bight to Dispose of Surplus Water.—Where the owner of a farm having a water-right, for the purpose of irrigating the farm and disposing of the surplus water to other farms, sold and conveyed a part of the farm and a proportionate share of the water-right, with the right to convey the water across lands of the grantor to the lands of the grantee, and they subsequently divided the water by agreement, by means of flumes, so as to give an increased flow to the grantee, by the terms of which agreement they agreed to convey to each other the right to receive and use all the water that might flow in their respective flumes and ditches, and to share the proportionate expense of the main ditch to the point of diversion, and that the grantee’s right should be appurtenant to his lands, as a part thereof, and for the benefit of said lands,—the grantee has the right to dispose of the use of any surplus water flowing through his flume and ditch to owners of adjoining lands when not needed for full use on his own land.</p> <p>Id.—Construction of Agreement — “Appurtenant” — “Benefit of Land.”—The effect of the agreement making the water-right of the grantee ‘ ‘ appurtenant to his lands, ’ ’ and ‘ ‘ for the benefit of said lands,” merely embodies the legal definition of an “appurtenance” to land given in section 662 of the Civil Code, making a thing “appurtenant to land when it is by right used with the land for its benefit,” and the expression “for the benefit of said lands” merely couples with the word “appurtenant” its legal definition.</p> <p>Id.—Covenant of Grantor to Grantee and Subsequent Owners Only. —A covenant binding the grantor to the grantee and all subsequent owners of the land, “but to no other person or persons,” does not at all have the effect to limit the grantee’s use of the waters secured to him to his own lands exclusively, but is merely intended to prevent a transfer of the whole body of the water-right to any third person apart from a sale of the land.</p> <p>Id.—Eights of Grantor not Infringed—Action by Grantee to Determine Eight to Use of Surplus Water—No rights of the grantor were infringed by the disposition by the grantee of the surplus water flowing in his flume and ditch; and where the grantor has wrongfully interfered therewith, and claimed the right to sell all surplus water, the grantee may maintain an action to have his rights to dispose of the use of his own surplus water determined.</p> <p>Id.—Special Damages—Insufficient Proof—Limit of New Trial.— The grantee has the right to recover special damages arising from the interference by the grantor with the grantee’s right of disposition of surplus water, if clearly proved; but it is held that the proof is insufficient to show the amount of special damages awarded, and that a new trial must be granted on that issue only.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Fire Insurance—Change of Interest—Option to Purchase not Exercised.—A mere option given to a third party to purchase which is not exercised by payment of the purchase money does not create a change of interest in the property insured against fire within the meaning of the fire-insurance policy, avoiding it for a change of interest.</p> <p>Id.—Construction of Policy—Loss and Bisk not Changed.—The change of interest referred to in the policy, in view of the well-known rule of construction, that policies are to be construed most strongly against the insurer, refers to some change of interest, which would make the loss in case of destruction fall upon the buyer, and cause the insurer to' lose his interest in protecting the property from fire, and not as referring to a mere option to purchase, which does not change the risk in ease of loss.</p> <p>Id.—Qualified Possession to Test Property Insured—Change not Effected,—Common Possession.—Where the person holding the option to purchase mining property insured had only a qualified possession, for the purpose of operating a smelter thereon to test slag and ore, under an agreement that during such testing the insured giver of the option or his agent "shall have full access to said property and its management, in every respect the same as though _ to all intents and purposes the work was being done by him,” and it appears that the insured kept a watchman on the premises, who was holding for him, such common possession did not work the change of possession which would avoid the policy.</p> <p>Id.—Increased Hazard:—Smelting Purnace—Permission by General . Agents — Increased Premium — Insufficient Indorsement —• Waiver—Estoppel.—Where an increased hazard from a smelting furnace was permitted by the general agents of the insurance company, with full knowledge of the facts, for an increased premium, who agreed to indorse the same upon the policy, but made an insufficient indorsement, owing to an erroneous description of the smelter as being in the policy, the case must be considered as if the agreement was not indorsed upon the policy under the law as to waiver and estoppel created by the conduct of general agents authorized to make contracts.</p> <p>Id.—Stipulation against Waiver or Permission not Indorsed— Waiver by Conduct.-—Stipulations in a policy against waiver or permission not indorsed do not preclude a waiver by the conduct of authorized agents in regard to future operations of the company, nor prevent the insured from relying on an oral contract by such agents to make an indorsement not effectively made.</p> <p>Id.—Failure to Describe Smelter in Indorsement—Estoppel.—The failure of the general agents of the company to accurately* describe the smelter in the slip attached to the policy setting forth the permission for the additional premium, was the fault of the company, and any attempt on its part to avoid the policy because of such failure would at once create an estoppel which would prevent the company from taking advantage of it.</p> <p>Id.—Power op General Agents to Waive Forfeitures—Oral Waiver Constituting New Contract.-—General agents authorized to issue and deliver new policies are regarded as having the same power to waive conditions and forfeitures as the companies themselves. The limitations embodied in the stipulation do not prevent them from making new contracts; and waivers constituting a new contract upon sufficient consideration need not be evidenced by writing nor inn dorsed upon the policy, if made by a general agent having power to make the contract, no matter what limitations or conditions may be expressed in the policy.</p> <p>Id.—Duty to Have Watchman—Works not Idle—Customary Operation—Presumption.—A clause in the policy making it the duty to keep a watchman day and night when the works are idle does not apply where the works are operated daily during usual and customary hours. .There is no evidence that it was usual or customary to operate such works at night, and the presumption is to the contrary, and in the absence of such evidence on the part of the defendant it must be concluded that the policy did not require a watchman at night when the works were in operation during the day; and the fact that one was employed and failed to watch did not affect the validity of the policy.</p> <p>Id.—Forfeiture not Favored—Substantial Operation of Part of Works—Forfeitures are not favored in law. It was not necessary that the whole works should be kept in operation or that all of the furnaces should be kept going every day. A substantial operation of the works is all that is required.</p>

The facts are stated in the opinion of the court in this case, and in ease No. 3498, ante, p. 440. Campbell, Metson & Campbell, G. W. Baker, and Thomas H. Breeze, for Appellant.

<p>Eoad District—Transfer from General Fund Unauthorized.;—There is no statutory provision which authorizes the supervisors to transfer money from the general fund to the fund of any road district.</p> <p>Id.—Expense of Bridges—Payment Out of General Funds—Exclusive Method.—Section 2712 of the Political Code authorizes a portion of the expense of the construction, maintenance, or repair of a bridge to be paid for out of the general road fund of the county, when it appears that the road district would be unreasonably burdened by the expense thereof, or, by vote of two thirds of the supervisors, they may, in their discretion, pay a portion of it out of the general fund as well as out of the general road fund. This method is exclusive.</p>

<p>Guardian and Ward—Settlement of Final Account—Notice Required—Construction of Code.—Under section 1789 of the Code of Civil Procedure, providing that the proceedings for the settlement of the account of a guardian, and the notice required thereof, are the same as those required upon the settlement of the accounts of an executor or administrator, section 1634 of that code, providing for a final settlement of the accounts of an administrator or executor upon petition for distribution, is applicable as to the notice required for the settlement of the final account of a guardian, and notice must be given for the full period of ten days before the hearing.</p> <p>Id.—Death of Ward—Settlement with Administrator—Notice of Hearing.—Upon the death of a ward, before settlement of the final account of the guardian, the guardian is required, under section 1754 of the Code of Civil Procedure, to settle his accounts with the legal representative of the ward, who must have actual or constructive notice of the hearing for the period of ten full days in his representative capacity to make it at all effective.</p> <p>Id.—Delay of Guardian to Settle with Ward—Insufficient Notice to Administrator—Jurisdiction—Void Settlement and Lien.— Where a guardian delayed settlement with the ward after becoming of age, and presented the final account after her death, while petition for letters upon the ward’s estate was pending, and the administrator thereof was appointed seven days before the hearing, and did not appear thereat, or have constructive or actual notice as administrator for the required period, the court had no jurisdiction to settle the account, or to impose a lien for the balance of account upon the real estate of the deceased ward, and the order settling the account and imposing such lien was void.</p> <p>Id.—Action to Foreclose Lien—Beoitals in Becobd—Posting of Notices—Appearance not Presumed—Evidence to Show Want of Jurisdiction.—In an action to foreclose such lien against the estate of the deceased ward, where the recitals in the record settling the account of the guardian show that notice thereof was given by posting, it will not be presumed that jurisdiction was acquired by appearance; and evidence is admissible to show that the legal representative of the ward’s estate was not in existence to receive notice during a necessary part of the ten days required.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Page, McCutchen, Harding & Knight, and W. S. Barnett, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from orders of the Superior Court of the City and County of San Francisco refusing to compel payment of legacies and making partial distribution of real estate. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Sylvester G. Williams, and Edwin A. Meserve, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Action by Minor for Negligence—Erroneous Appointment of Guardian ad Litem—Consent not Presumed.-—In an action by a minor aged sixteen years for injuries from alleged negligence of the defendant the appointment of a guardian ad litem by the superior court, not made as required by section 373 of the Code of Civil Procedure, upon application or nomination of the minor, but made solely on the application of the person appointed, is erroneous. It cannot be presumed upon appeal, against the record, that the consent of the minor was given to the appointment; and the error shown by the record, being jurisdictional, would, if not cured, necessitate a reversal of the judgment.</p> <p>Id.—Cure of Error—Affirmance after Majority Pending Appeal.— The error must be deemed cured where it appears that the minor attained majority pending appeal before the hearing, and upon the hearing affirmed all that had been done in her behalf, and declared her willingness to be bound ’in all future matters by the proper judgments and orders of the court.</p> <p>Id.—Permanent Injuries to Plaintiff—Testimony of Attending Physicians—Power and Duty of Court to Order Personal Examination.—Where the plaintiff seeks recovery for permanent injuries which are objective and physical, and offers the testimony of attending physicians to prove the nature and extent of the injuries sustained, the court has power, and it is its duty, to order a physical examination in the presence of plaintiff’s physicians and the physicians of the defendant, to ascertain the nature and extent of such injuries.</p>

<p>Criminal Law—Murder—Insanity—Commitments to Asylum—Evidence—Affidavits—Examinations—Certificates.—Upon a trial for murder, where the defense was insanity, and it appeared that defendant had been twice, prior to the day of the homicide, committed to a state hospital for the insane on account of alcoholism, and', after brief detention, had been discharged therefrom, the affidavits, reports of examining physicians and their certificates, upon those commitments, offered in evidence by the defendant, were properly rejected. The certificates were purely hearsay, and not admissible for any purpose.</p> <p>Id.-—Absence of Judgment-Roll—Commission a Creature of Statute —Status not Fixed.—There is no judgment-roll upon the commitment of a person to a state hospital for the insane, in the sense that it determines conclusively anything. The commission of physicians established in each county is purely a creature of statute, to determine whether the mental condition of the person examined is such as to warrant his detention in the asylum for treatment. It is not intended as a tribunal in which the status of the alleged insane person is fixed.</p> <p>Id.—Commitment on Day of Homicide—Protest by Defendant—Subsequent Discharge on Habeas Corpus—Evidence—Petition and Proof.—Where the defendant was a third time examined and committed to the asylum on the day of the homicide, at the instance of deceased, against defendant protest that he was not insane, and ought not to be sent there, and he subsequently voluntarily petitioned for a discharge upon habeas corpus, the petition presented, with its declaration as to his sanity, which it appears he read and understood, and his testimony on that question at the hearing, were admissible, as bearing on the question of his mental capacity when the homicide was committed.</p> <p>Id.—Defense of Insanity—Rule of Evidence.—It is a rule of evidence in this state that, where the defense of insanity is interposed against a criminal charge, the acts and conduct of the accused at' the time of, and within a reasonable time before and after, the alleged criminal act is committed may be presented to the jury upon the question of insanity existing at the time of its commission.</p> <p>Id.—Admissions of Defendant—Constitutional Rights.—The admissions and statements of the defendant, and the testimony given by himself upon habeas corpus proceedings, bearing wholly on the question of his sanity, in which there is nothing that can be construed as amounting to a confession of guilt, are admissible against him, and are not violative of any of his constitutional rights not to be a witness in a criminal case against himself, whether they are voluntary or not.</p> <p>Id.—Rebuttal—Order of Proof—Discretion.—Where upon rebuttal of . the insanity of the defendant some evidence was allowed to be offered which might have been given in chief, it was within the discretion of the court to allow a departure from the order of proof, and the fact of such departure constitutes no ground of complaint where no abuse of discretion affirmatively .appears.</p> <p>Id.—Misconduct of District Attorney—Honest Mistake as to Evidence—Correction by Court.—An honest mistake by the district attorney as to evidence, as to which, after discussion, he was corrected by the judge, and which was not persisted in, does not constitute misconduct prejudicial to the defendant.</p> <p>Id.—Argument of District Attorney—Inferences from Evidence.—It was not objectionable for the district attorney in his argument to speak of certain inferences and deductions from the evidence' which the jury should make where no statement was made of any facts which the evidence did not disclose. .</p> <p>Id.—Burden of Proof of Insanity.—Where the defense of insanity is relied upon, the burden of proof rests upon the defendant to establish that defense by a preponderance of evidence.</p> <p>Id.—Conflicting Evidence—Support of Verdict.—Where the homicide was admitted, and the evidence was conflicting as to the insanity of the defendant being such as would excuse him from crime, the verdict is sufficiently supported.</p> <p>Id.—Commitments to Asylum not Conclusive Excuse for Crime.— The several commitments of the defendant to the insane asylum do not prove that he was insane to the extent that the law would exempt him from responsibility for his criminal acts. A person may be partially insane upon one or several subjects, and for that reason be a proper person for confinement in a state insane asylum, to be cared for and treated for his mental disorder, and yet at the same time such person may be perfectly sane upon all other subjects and entirely responsible under the law for a criminal act committed by him.</p> <p>Id.—Insanity, When and When not a Defense.—That insanity may be available as a defense to a crime charged it must appear that the defendant when the act was committed was so deranged and diseased mentally that he was not conscious of the wrongful nature of the act committed. Although he may be laboring under partial insanity, or an insane delusion, yet if he has reasoning capacity sufficient to distinguish between right and wrong as to the particular act he is doing, and to know that it is wrong and criminal and will subject him to punishment, he must be held responsible for his conduct.</p> <p>Id.—Effect of Last Commitment—Evidence of Rationality—Pris.on Threat—Question of Pact for Jury.—The commitment of the defendant to the asylum on the day of the homicide as being dangerous and laboring under an insane delusion is not conclusive, where there is counter evidence that he was rational on that day and prior and subsequent thereto, and also evidence to show that when last previously discharged he had threatened to kill any one who would send him there again. Under such evidence, it was a question of fact for the jury to determine whether at the time of the homicide defendant was insane, and to what extent; and their verdict that he was then sufficiently sane to be responsible therefor will not be disturbed.</p>

<p>' Gas Company—Use of Gas fob Heating and Cooking—Franchise not Forfeited.—A gas company having the right and franchise to lay pipes in the streets for the purpose of supplying illuminating gas to the inhabitants of a city, under section 19 of article XI of the constitution, does not. forfeit its franchise by the supply of gas for cooking and heating as well as for lighting purposes which does not subject the streets to any additional burden.-</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of San Bernardino County granting a motion of the stockholders of the Vivienda Water Company to set aside a judgment against it in favor of appellant. Frank F. Oster, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>W. S. Day, for Appellant.</p>

<p>Deed of Trust—Reformation of Description of Property—Outlawed Note.—Where the property secured by a deed of trust located the property described in the wrong county, an action may be commenced in the county in which the property deeded was in fact located, to have the deed reformed, notwithstanding the note secured thereby was barred by the statute of limitations when such action was brought.</p> <p>Id.—Effect of Deed of Trust—Title in Trustee—Power to Sell for Outlawed Debt.—A deed of trust to secure a debt is not a mortgage, but passes the legal title to the trustee, for the purposes of the . trust which remains in him until the debt is paid or a sale is made of the premises under the deed; and the fact that the debt secured is outlawed does not affect the title of the trustee, or his power to sell to pay the debt.</p> <p>Id.—Effect of Reformation of Deed.—The reformation of the deed so as correctly to describe the property secured is not to do a vain thing, but to perfect a valuable right to property in the trustee for the purposes of the trust.</p> <p>Id.—-Laches—Discovery of Mistake.—Laches is not imputable to the creditor or the trustee, where they had no knowledge of the mutual mistake in the description of the property until about one month prior to the commencement of the action to reform the deed.</p> <p>Id.—Ignorance of Trustee—Failure to Examine Deed.—The fact • that the trustee, who did not know that the trust-deed was among his papers, did not examine the deed so as to discover the mistake, is not evidence of any laches that would defeat the action to reform the deed. The mere failure of the grantee to read the instrument with sufficient attention to perceive the error or defect in its contents will not prevent its reformation at his suit.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County refusing to grant an injunction -pendente lite. M. T. Allen, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court."</p>

<p>Wills—Void Devise to Charitable Society.—Under section 1313 of the Civil Code a devise to a charitable society, made less than thirty days before the decease of the testator, is void.</p> <p>Id.—Common-Law Bule Abrogated—Void Devise—Title oe Heirs— Besiduary Devise.—The common-law rule, that a devise of real property speaks as of the date of the will, is abrogated by section 1332 of the Civil Code, providing that “A devise of the residue of the testator’s real property passes all the real property which he was entitled to devise at the time of his death, not otherwise effectually devised by his will,” and an invalid or ineffectual devise of real property in this state does not pass to the heirs, but must go to the residuary devisee, unless a contrary intent is clearly expressed by the terms of the will.</p>

<p>The facts are stated in the opinion of the court. ■</p>

<p>The facts are stated in the opinion of the court.</p>

APPEALS from a judgment of the Superior Court of Los Angeles County from an order refusing to render a different judgment and from an order refusing a new trial. M. T. Allen, Judge. . The facts are stated in the opinion of the court.

<p>Taxation—Deed to State—Recitals—Expiration of Time for Redemption.—A defect in a tax-deed to the state executed July 6, 1900, for land sold to it for delinquent taxes assessed for the year 1894, in failing to recite the time when the right of redemption had expired, was cured by the act of February 28, 1903, the purpose of which was to confirm, validate, and legalize certain tax-deeds. Such act is constitutional and valid.</p> <p>Id.—Assessment of Property Sold to State.—A tax-sale to the state is not rendered void by reason of the fact that on the assessment-roll for the next ensuing year there was stamped the words “Sold to state,’ ’ without a statement that it was “sold for taxes” and the date of the sale.</p> <p>Id.—Certificate of Sale—Repeal of Sections 3776 and 3777 of Political Code.—Sections 3776 and 3777 of the Political Code, which provided for the issuance of a certificate upon the sale to the state for delinquent taxes, having been repealed by the act of 1895 (Stats. 1895, p. 19), the attempt afterwards to amend the repealed sections by the Statutes of 1895, page 327, was of no effect. And a certificate, issued after the repeal of said sections, for delinquent taxes for the year 1894, will be disregarded in determining the validity of the sale.</p> <p>Id.—Delinquent Tax-List—Omission of Dollar-Mark.—In the delinquent tax-list, immediately under the heading “amount,” were the figures “4 00,”—there being a space between the figure 4 and the two ciphers, as usually appears when they are intended to mean “dollars,” but there was no dollar-mark. Held, that the delinquent list clearly indicated that dollars were meant, and that the absence of the dollar-mark did not invalidate the assessment or the tax-sale.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Taxation—Void Description op Land—Deed to State—Cloud on Title—Injunction.—A description of land in an assessment-roll, as follows: “In the county of San Di'ego, state of California, . . . lot 1, block 17, Ocean Beach,” is insufficient, and renders the assessment void; and an injunction will lie to restrain the county officers from executing a deed to the state for unpaid taxes based upon such assessment, by a description legally sufficient to charge the property, as such a deed, with the presumptions that it carries with it of the prima facie regularity of antecedent proceedings, would cast a cloud upon the title to the property, and result in injury to the owner.</p> <p>Id.—Payment op Taxes as Condition to Injunction.—Conceding such assessment to be void, and that nothing was due for taxes under it, the fact that the court, as a condition to the granting of the injunction, required the plaintiff to pay an amount found to be the just and legal amount for which the property could have been taxed, was without' prejudice to the defendants.</p> <p>Id.—Power, op Court to Determine Amount op Taxes.—Where the amount of taxes, the value of the property, the tax-rate, and the amount due, had all been fixed by the proper fiscal officers, the court had power by its decree to determine that the amount so fixed was the just and legal amount of taxes due on the property, and to order its payment to the tax-collector as a condition to the granting of the injunction. If there could be any question of the general powers of a court of equity to render such a decree, there can be none as to its power in this state, under section 187 of the Code of Civil Procedure, which provides that whenever jurisdiction over any matter is conferred, all means necessary to carry the jurisdiction into effect are conferred with it.</p>

<p>Will—Devise of Life Estate Subject to Charge.—A will which devises certain lands to the grandchildren of the testatrix with the proviso that their respective mothers, who were the daughters of the testatrix, should have “the full control and possession and all rentals and income of the lands willed to their children during their natural lives, except that each one shall every year put out one hundred dollars at interest (to be divided between her two children), until her youngest child attains the age of twenty years,” creates a life estate in each of the respective mothers as to the land devised to the grandchildren, subject only to a charge of one hundred dollars per annum, or fifty dollars each, in favor of their respective children, until the youngest child attains the age of twenty years, and subjects the devise to the grandchildren to the estate for life in the mothers.</p> <p>Id.—Direction for Accumulation of Income—Suspension of Power of Alienation.—By the provision for the benefit of the children it was intended that each child was to have, so long as he or she lived, until the youngest child attained the age of twenty years, or would have attained that age if living, the sum of fifty dollars per annum out of the life interest given to the mother, and that these sums were to be invested for his or her benefit and remain at interest during that period. To the extent stated, it is an attempted disposition of the income of the real property, and a direction for the accumulation thereof. So construed, there is no forbidden suspension of the absolute power of alienation, as such suspension is permitted for a period not longer than during the continuance of lives of persons in being at the creation of the limitation or condition; and in the ease of each child, the trust for accumulation cannot continue longer than during the life of the designated beneficiary in being at the time of the creation of the trust.</p> <p>Id.—Period for Accumulation of Income Limited to Minority of Beneficiary.—Under section 724 of the Civil Code, providing that the accumulation cannot be for a longer term than the minority of the beneficiary, and section 725 of the same code, providing that if the direction for accumulation is for a longer term, “the direction only, whether separable or not from other provisions of the in- " strument, is void as respects the time beyond such minority,” the direction for accumulation here should be held valid in the ease of each child for the period of his or her minority, and void as respects the time beyond such minority.</p> <p>Id.—Trust During Minority of Beneficiary.—A provision in the will that “All moneys, notes &e. which I may have to be divided between my two children and four grandchildren, and my daughters to have exclusive control of their children’s money and invest it as they think best until they, the children, become of age,” creates a valid trust, as to the share of each grandchild, in his or her mother, to continue during his or her minority, and the bequest of the property is subject to such trust.</p>

<p>Action to Determine Adverse Claims to Realty—Pleading.—The complaint in an action to determine adverse claims to real property, brought against a corporate defendant properly named and four other defendants sued by fictitious names, which alleges that the names of the defendants sued by fictitious designations were unknown to the plaintiff, that the title in fee to the land was in the plaintiff, and in the usual manner avers that the defendants, without right, make some claim thereto adversely to plaintiff’s title and estate, states a cause of action under section 738 of the Code of Civil Procedure, and not under sections 749-751 of that code.</p> <p>Id.—Proceeding under Sections 749-751 of the Code of Civil Procedure.—Where the action was begun after the act of March 8, 1903, amending sections 749, 750, and 751 of the Code of Civil Procedure, took effect, the question whether or not it is a proceeding under those sections is to be determined by the terms of the sections as then amended.</p> <p>Id.—Judgment by Default—Evidence not Required.—In such an action a judgment by default against the named defendant, who had been personally served with summons, is not void for the failure of the record to show that the court heard or required evidence in proof of the plaintiff’s ease. No such proof was required, as the default of the defendant in an ordinary action of this character admits, so far as such defaulting defendant is concerned, the absolute verity of all the allegations of the complaint.</p>

<p>Vendor and Vendee—Covenant to Deliver Actual Possession.—A written contract for the sale and purchase of real estate by the terms of which the vendor agrees to sell the land to the vendee for a specified sum and “to deliver” the same by a specified date, and the vendee agrees “to take” the land and pay the specified sum, imposes the obligation on the vendor to put the vendee in the actual physical possession of the land, and until such possession is tendered the vendee is not in default.</p> <p>Id.—-Land in Possession of Tenants—Written Contract Cannot Be Varied by Contradictory Oral Understanding—Pleading.—In an action by the vendor to recover damages for the breach of such contract, allegations in the complaint that the writing was not intended to and did not embrace all the details of the contract, and that it was agreed between the parties as a part of the contract that the tenants on the land should remain and become tenants of the vendee, must be construed most strongly against the pleader, and it must be inferred that the land was in the possession of tenants and that an actual delivery thereof was not tendered to the purchaser. The facts so alleged did not obviate the necessity of an actual delivery of possession by the vendor, as the written contract, expressly requiring such delivery, could not be added to or varied by a contemporaneous oral understanding in direct contradiction thereof.</p> <p>Ib.—Agreement of Tenant to Attorn to Purchaser.—In such action an allegation by the vendor, that at the time of the contract the premises were leased to a designated person, “who consented and agreed to and with the vendee to become and be the tenant of the vendee on said premises,” is not sufficient to avoid the necessity of an actual delivery of possession by the vendor, there being no allegation that such agreement of the tenant was a part of the contract between the vendor and vendee, or that the purchaser agreed to accept such person as her tenant; and the vendor, not being a party to such agreement, cannot take advantage of it for the purpose of relieving himself from the failure to perform the stipulations of his'contract.</p> <p>Id,—Knowledge by Purchaser of Possession by Tenants.—The fact that the purchaser knew at the time of the contract that the land was in the possession of tenants cannot be considered in construing the contract so as to make the obligation to deliver merely an obligation to deliver the land in the condition in which it was,—that is, as subject to lease and in the possession of tenants.</p>

<p>APPLICATION for a Writ of Prohibition to the Superior Court of the City and County of San Francisco and to Frank H. Dunne, the Judge thereof.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>APPLICATION for a Writ of Habeas Corpus.</p>

J. Biggy, an elisor appointed by the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court. Henry Ach, Samuel M. Shortridge, Frank J. Murphy, and Charles H. Fairall, for Petitioner. William H. Langdon, District Attorney, and Francis J. Heney, Assistant District Attorney, for Respondent.

<p>Parent and Child—Duty op Parent to Support Adult Child—Action to Enforce Maintenance—Judgment.—Under section 206 of the Civil Code the duty imposed upon parents to maintain their adult children who are poor and unable to maintain themselves by work is a legal duty, and creates a correlative legal right in the children to have such maintenance, and they are proper parties to an action to enforce such right and compel the performance of such duty. Such right may be enforced by an action in equity, and in such action the court would have full jurisdiction to pronounce a judgment, reserving the power to modify it in the event that the changed conditions in the future should justly demand a modification.</p> <p>Id.—Action to Enforce Statutory Bight.—Where a right is given by statute without any prescribed remedy it may be enforced by any appropriate method recognized by the general law of procedure.</p> <p>Id.—Suit Money, Counsel Bees, and Maintenance Pendente Lite. —In an action to enforce the right given by section 206 of the Civil Code the court has power to make all orders necessary for that purpose, including orders for suit money, counsel fees, and maintenance pendente lite.'</p> <p>Id.—Bather and Mother as Defendants — Change of Venue.—A mother may be joined with the father as a defendant in an action by a child to enforce the right of maintenance, and where an action is brought in the county of her residence the place of trial will not •be changed to the county in which the father resides if the mother does not join in the motion for the change.</p>

<p>Beopening Case—Conflicting Evidence—Appeal.—A motion to reopen the ease, made upon conflicting affidavits, is addressed to the discretion of the trial court, and its action thereon will not be interfered with on appeal.</p> <p>Id.—Newly Discovered Evidence—New Trial.—The refusal of othe trial court to grant a motion for a new trial upon the ground of newly discovered evidence will not be interfered with on appeal when the evidence submitted on the motion is conflicting or the alleged new evidence was merely cumulative.</p>

APPEALS from judgments of the Superior Court of Kern County. M. L. Short, Judge. The facts are stated in the opinion of the court and in the opinion in Youle v. Thomas, 146 Cal. 537, [80 Pac. 714]. James F. Peck, Solinsky & Wehe, and Charles C. Boynton, for Appellants. Laird & Packard, Galpin & Bolton, T. M. McNamara, and Charles G. Lamberson, for Respondents.

<p>Taxation—Assessment op City Lots—Failure to Designate City.— Under subdivision 3 of section 3650 of the Political Code an assessment of land, as follows:—</p> <p>“In Los Angeles County. In Jefferson St.</p> <p>City or Town Lots</p> <p>Lot Block</p> <p>5 3</p> <p>6 3“</p> <p>which entirely fails to designate the city or town, and which is unaided by reference to any map, plat, or tract, is void, and all subsequent proceedings, and the deed made thereunder, are likewise void.</p>

<p>Succession prom Illegitimates—Construction op Sections 1388 and. 1386 op Civil Code.—Section 1388 of the Civil Code, which prior to its amendment provided “if an illegitimate child, who has not been acknowledged or adopted by his father, dies intestate, without lawful issue, his estate goes to his mother, or in ease of her decease, to his heirs at law,” established the rule of succession to the whole estate of an illegitimate, not acknowledged or adopted by his father, who dies intestate without lawful issue, except in so far as it may be qualified by section 1387 of' that code; and this rule,' being contrary to the general rules of succession prescribed by section 1386, must prevail over anything contained in that section, as that section, by its express terms, is limited to cases not otherwise expressly provided for.</p> <p>Id.—Succession by Heirs op Mother op Illegitimate — Surviving Husband Excluded.—Under section 1388 of the Civil Code, where an illegitimate woman who had never been acknowledged or adopted by her father dies intestate without issue, leaving a husband her surviving, her entire separate property is succeeded to by the heirs at law of her mother to the exclusion of her surviving husband.</p> <p>Id.—Succession by Illegitimate Halp-Sister op Illegitimate.—Under section 1387 of the' Civil Code an illegitimate child is an heir of his mother, and where. an illegitimate woman, who had never been acknowledged or adopted by her father, dies intestate without issue, leaving surviving a husband, and an illegitimate half-sister by another father, as the sole heir at law of her mother, her entire separate estate is succeeded to by her illegitimate half-sistef, to the exclusion of her surviving husband.</p> <p>Id.—Legislature Determines Succession.—The question as to whether a surviving spouse of an illegitimate should inherit is one solely for the legislature, and the courts cannot substitute their own views thereon f»r the views of the lawmaking power.</p>

<p>Negligence—Street Railway—Ordinary Care Required.—The operator of a street railway is only required to use ordinary eare and caution in the management and operation of its cars to avoid inflicting injury upon a person traveling upon or using the street upon which the cars are being operated. Ordinary care is that degree of care which a person of ordinary prudence would use under the same or similar circumstances. The standard by which such degree of care is to be measured is not absolute, but varies with the circumstances attending the operation of the cars, such as the character of the cars, the agency of propulsion, the locality in which they are operated, whether in the country or in a city, whether over much-traveled or unfrequented streets, and the possibility or probability attending their operation.</p> <p>Id.—Instructions—Application to Evidence.—Where the court correctly instructs the jury as to the duty of a street-railway company to use ordinary care in the operation of its cars it cannot be assumed on appeal that the jury were unable to apply the instruction to the facts and circumstances of the case. It is to be assumed that the jury understood the instruction and applied it to the evidence, and if the appellant thought the instruction was too general, he should have presented more definite and specific instructions.</p> <p>Id.:—Contributory Negligence—Collision with Wagon.—In an action against a street-railway company to recover damages for personal injuries resulting from a collision between a wagon in which the plaintiff was sitting and an electric ear operated by the defendant, it is proper to instruct the jury that “in determining whether or not the plaintiff was negligent you should consider whether or not under all the circumstances of the ease it was his duty, using ordinary care for his own safety, to have jumped from the wagon. ’ ’ Such' instruction leaves the question of the plaintiff’s negligence to be determined from all the circumstances in the case, and, if given, renders without prejudice the refusal to give an instruction requested by the plaintiff which referred more particularly to the circumstances to be considered by the plaintiff in determining whether he should have left the wagon or not, where the circumstances were such as jurors would naturally take into consideration whether their attention was called to them or not.</p> <p>Id.—Construction of Instructions.-—In determining whether a jury has been properly instructed, the instructions, taken as a whole, must be considered, and if, when the entire charge is examined, the omissions or inaccuracies in a particular instruction appear to have been supplied, and the jury fairly and consistently instructed generally as to the law, this is sufficient to defeat any claim of error predicated on defects in particular instructions.</p> <p>Id.—Last Clear Chance.—In such an action, the plaintiff tendered an instruction which in effect informed the jury as to the care to be exercised by the defendant in the ordinary operation of its cars, and that it would be liable to plaintiff for injury resulting to him by reason of its negligence, “and not by reason of his own negligence.’’ The court gave the instruction as tendered,, substituting for the italicized words the following: “unless you find that the plaintiff was negligent and that such negligence contributed to such injury.” Held, that the instruction was not intended as a statement of the doctrine of the "last clear chance,” and that the omission of the word ‘ ‘ prorimately ’ ’ before the word ‘ ‘ contributed ’ ’ in the substituted clause did not render it erroneous, where other instructions clearly stated the rule as to the duty of the employees of the defendant to avail themselves of the last clear opportunity to avoid injuring the plaintiff after discovering his peril, even though such peril was occasioned by Ms own contributory negligence.</p>

<p>The facts are stated in the opinion of the court.</p> <p>L. J. Norton, E. W. Camp, Paul Burks, and E. E. Milliken, for Appellant.</p>

<p>Constructive Trust — Deed from Parents to Daughter — Promise without Intent to Perform.—A deed made by parents to their daughter, in whom they reposed full' confidence, solely upon the conditions and in consideration of her promises to pay the balance of a mortgage on the land conveyed, and that the grantors should have and retain the premises as their home as long as the mother lived, which latter promise was made by the grantee without any intention of performing it, is obtained by fraud, and under such circumstances the law raises a constructive trust in favor of the grantors.</p> <p>Id.—Parol Evidence of Constructive Trust.—Parol evidence is admissible to establish such a constructive, trust. Section 852 of the Civil Code, declaring that a trust in lands can only be created by an instrument in writing, has no application to constructive trusts.</p>

<p>Practice—Amendment of Complaint—Imposition of Terms—Appeal —Appropriation of Water.—Where on the trial of an action to quiet title to the appropriated waters of a specified stream, the plaintiff, after a jury have been impaneled, asks leave to file an amended complaint setting up title by appropriation to the mingled and combined waters of such stream and another stream, in lieu of his claim of title to the waters of the stream specified in the complaint, it is within the discretion of the trial court, under section 473 of the Code of Civil Procedure, to allow the amendment, and to impose such terms as may be just; and the appellate court will not review the exercise of the discretion, but may review the justness of the terms imposed. And it is not necessary that the propriety of imposing terms should be shown by affidavits, where the motion for the amendment is made in open court, and the defendant resists it on the ground that if allowed he would not be able to go on with the trial, and that a continuance would be necessary.</p> <p>Id.—Justice of Terms Imposed—Per Diem and Mileage of General Jury Panel.—In granting leave to,file the amended complaint, under such circumstances, the court is limited in the imposition of terms to such only as are just,—that is, to such as will compensate the adverse party for the loss or inconvenience which he will suffer by granting the application,—and is not limited to imposing only such costs as might be properly taxed in the case. Within this rule the court may require the payment by plaintiff of the fees paid by the defendant for the per diem of jurors impaneled and sworn to try the case, the expenses incurred by the defendant in obtaining the attendance of witnesses and in the employment of attorneys, and his own expenses in attending the trial, but cannot, in addition, require the payment to the clerk of the court for the county of the per diem and mileage paid by and due from the county to the general panel of jurors summoned for the trial.</p> <p>Id.—Payment of Just Terms.—If the court in fixing the terms for the granting of the amendment imposed the payment of an aggregate sum, some of the items of which are just and some unjust, it was not incumbent on the plaintiff to offer to pay the amounts which he deemed were properly assessed in order to avail himself of the error of the trial court in imposing the unjust items; nor is it material that the court might have refused to allow the amendment unconditionally.</p> <p>Id.—Good Faith or Amendment—Review or Order Remising Amendment—Evidence.—In reviewing the refusal of the court to grant the amendment to the complaint unless the unjust terms were complied with, it must be assumed that the amendment was sought in good faith, and that the allegations in respect to the appropriation of the combined waters were true. And such error will not be deemed harmless, as there could be no trial of the cause on its merits, nor determination of the plaintiff’s rights, by limiting the inquiry to the appropriation of the waters of the single stream specified in the complaint; and especially will the error not be deemed harmless where the defendant, on the cross-examination of the plaintiff’s witnesses, and in introducing evidence in support of his own case, brought out the fact that the plaintiff's lands were watered by such combined waters, and the court again refused to permit the amended complaint to be filed in order that the pleadings and proof might conform.</p>

<p>Contract to Engage in Beal Estate Brokerage Business Construed —Individual Speculation.—Upon a construction of the contract sued on, whereby the parties agreed to engage in a “general real estate, rental, collection, and insurance business,” and to divide the profits resulting therefrom, held, that the contract did not contemplate anything more than the usual brokerage business conducted by real estate and insurance agents, and did not entitle plaintiffs to a share of the profits resulting from the purchase and sale of land by the defendant on its own account.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Mechanics’ Liens—Foreclosure—Statutory Provision for Attorney’s Fees Unconstitutional.—The provision of the statute purporting to authorize the allowance of attorney’s fees for the plaintiff in an action for the foreclosure of mechanics’ liens is unconstitutional and void.</p> <p>Id.—Sufficiency of Notice of Lien.—A notice of mechanic’s lien, sufficient as to the owner, cannot be void as to third persons without knowledge of the extrinsic facts.</p> <p>Id.—Description of Land to be Charged with Lien—Evidence of Identity.—In a notice of a claim for a mechanic’s lien, the description of the property to be charged with the lien need only be such as will be “sufficient for identification,’’ and in an action to enforce the lien evidence may be received for the purpose of determining its sufficiency, and to identify the land sought to be charged with the land described in the notice.</p> <p>Id.—Imperfect Description by Metes and Bounds—General Description.—In a notice of a claim for a mechanic’s lien, an imperfect attempt to describe the land sought to be charged by metes and bounds may be aided and rendered sufficient by a further statement in the notice that a particular person is the owner of the land, and the building erected thereon, and that the lien is claimed for materials furnished a specified contractor while such contractor was engaged in constructing the building for such owner; and in an action to enforce the lien, evidence is admissible to identify the land described in the complaint with the land so described in the notice.</p> <p>Id.—Binding—Land Necessary for Convenient Use of Building.—• In such an action, a finding that the building covered a large portion of the land, and that all of the land, which had a frontage of one hundred and six feet and eight inches, and a depth of one hundred and sixty-four feet and one inch, was necessary for its convenient' use and occupation, is sustained by evidence showing that the building was constructed for a hospital, having a dimension of sixty-eight feet in width and one hundred and eight feet in depth, containing "40 bedrooms for patients, and also operating-rooms, sterilizing-room, washrooms, bathrooms, nurses’ dormitories, dining-rooms, and nurses’ classrooms,” although there was no evidence showing the particular portion of the lot upon which the building stood. Brom such evidence the court could determine, as a matter of general knowledge, that the entire lot was necessary for the use of the hospital.</p> <p>Id.—Consolidation of Actions—Issue Tendered by One Plaintiff— Binding.—Upon the consolidation of several actions to foreclose mechanics’ liens, there is only a single action by the respective plaintiffs against the defendants, and the decision thereon is to be made as if the cause of action had been presented in a single complaint, and is to be embodied in a single set of findings, in which all facts in issue in the consolidated action are to be incorporated; and an issue as to the amount of the land necessary for the convenient use and occupation of the building, tendered in any of the original complaints, and the findings and judgment thereon, operate in favor of all of the plaintiffs in the same manner as if they had originally joined as plaintiffs in bringing the action and raising such issue.</p>

MOTION to dismiss an appeal from an interlocutory judgment in partition of the Superior Court of the City, and County of San Francisco. Frank H. Kerrigan, Judge. The facts are stated in the opinion of the court,

<p>New Trial—Motion on Minutes of Court — Submission without Argument—Review on Appeal from Order and Judgment—-Statement of Case.—Where the record, on appeal from an order, denying a new trial shows that, the statement, which contained no copy of the notice of intention to move for a new trial, was settled and filed subsequent to the date on which the order was made, it must be inferred that the motion for a new trial was made on the minutes of the court; and under section 661 of the Code of Civil Procedure, the appellate court, on an appeal from such order, can review only the matters presented and argued to the lower court in support of the motion. And where the record affirmatively shows that the motion was submitted without argument it cannot be presumed that any of the grounds of the motion were argued, and the order of the trial court in denying the motion cannot be reviewed, and must be sustained without an examination of the evidence. Such statement may, however, be used on appeals from the judgment taken within sixty days after its rendition, for the purpose of determining the sufficiency of the evidence to support the findings.</p> <p>Corporation — Unpaid Subscriptions — Suit by Creditors. — A court of equity, at the instance of a creditor or creditors of an insolvent corporation, has jurisdiction to compel its stockholders to pay their subscriptions in order to satisfy the corporate debts.</p> <p>Id.—Creditor as Stockholder—Set-off—Ratable Contribution. — A creditor of a corporation who is himself a stockholder, and indebted to the corporation for unpaid subscriptions, may maintain an action against other stockholders to enforce their liability on their subscriptions, and cannot be compelled to set off his liability on his own subscription against the indebtedness of the corporation due him. In such an action the plaintiff stockholder must contribute ratably with' the defendant stockholders towards the liquidation of his demand against the corporation.</p> <p>Id.—Liability of Stockholders—Joinder of Parties—Extent of Recovery.—The liability of the stockholders for unpaid subscriptions is several, and in a suit by a creditor of the corporation to enforce such subscriptions, it is not necessary to join all of the stockholders, and the creditor is not limited in his recovery to the amount represented by the proportion which the defendants’ unpaid subscriptions bears to all unpaid subscriptions. The creditor may sue any one stockholder and recover from him his total debt, provided it does not exceed the amount of the defendant’s liability for subscriptions. No different rule applies when the plaintiff himself is a stockholder.</p> <p>Id.—Bringing in Other Stockholders.—In an action by a creditor stockholder against some of the stockholders of a corporation to enforce their liability for unpaid subscriptions, if the presence of the other stockholders was necessary to a complete adjudication of the rights of the parties, and a determination of the amount ultimately due from each, the defendants should have taken steps to have had such other stockholders brought in,</p>

<p>Pleading—Complaint on Joint and Several Contract—Trial and Judgment against One Dependant.—A complaint in an action against several defendants, alleging the employment of the plaintiff, and that the defendants agreed to pay him for his services the reasonable value thereof in a sum specified, ^is based upon a joint and several contract, and under sections 414 and 579 of the Code of Civil Procedure, the court was authorized to proceed with the trial against a single defendant who had voluntarily appeared, and to render judgment against him.</p> <p>Id.—Denial of Contract by Single Defendant—Sufficiency of Findings..—In such an action, where the defendant appearing separately answered, denying the contract as set out, and denying that he ever . agreed to pay for such services, or that they were ever rendered, or that they were of the value alleged or any value in excess of a smaller sum which was claimed to have been paid, findings that the contract set out was entered into between the plaintiff and the defendant appearing, and that such defendant agreed to pay the reasonable value of the services, and that the same were rendered and were of the value as alleged in the complaint, and that such defendant had paid no part thereof, are not at variance with the issues raised by the pleadings, and are sufficient to sustain a judgment against such defendant.</p> <p>Id.—Appeal from Judgment—Finding of Non-Payment by Single Defendant.—Upon an appeal from the judgment upon the judgment-roll alone, the language of findings is to be given the broadest possible meaning, whenever it is necessary to do so in order to support the judgment; and the finding that the defendant who had appeared had not paid for the services is equivalent to a finding that the same had not been paid, either by himself in person or by his co-obligors.</p> <p>Id.—Statute of Limitations—When Finding Unnecessary.—No finding on a plea of the statute of limitations is necessary to support a judgment against the defendant, where the admitted facts demonstrate that a finding thereon could not have been otherwise than against him.</p>

<p>Negligence—Street ' Bailway—Duty of Traveler on Track—Seasonable Care.—One riding or walking along the track of a street-railway company must use reasonable care in the exercise of his faculties of sight and hearing to watch and listen for ears going in either direction. A failure to hear or see the ear is not, per se, proof of negligence in all. cases. Whether such exercise of the faculties as, under all the circumstances of the ease, was reasonable, would have averted the injury is a question of fact. The degree of vigilance to be exercised by the person on the track is to be determined by the jury, and not laid down as matter of law, wherever the question of contributory negligence is proper to be submitted to the jury at all.</p> <p>Id.—Bicycle Eider — Instruction — Contributory Negligence—Evidence.—In an action by one riding a bicycle along the track of a street railway, to recover for personal injuries inflicted by a car of the defendant, an instruction to the jury which required the exercise by the plaintiff of a greater degree of care than the law demanded is without prejudice, and will not warrant a reversal of a judgment for the defendant, when the undisputed evidence contained in the record on appeal showed that the plaintiff’s conduct while so riding was so lacking in every element of proper care for his own safety that the court would have been bound to set aside any verdict based upon a finding that he had not been guilty of contributory negligence.</p> <p>Id.—Appeal—Error in Instruction Must Be Shown by Evidence.—• It is incumbent upon the party appealing to show, not only abstract error, but error prejudicial to him upon the facts in evidence, and to avail himself of the point that an instruction was erroneous, he must bring before the court sufficient evidence to show that, upon a proper instructioh, there might have been a finding in his favor.</p> <p>Id.—Last Clear Change.—In such an action, an instruction purporting to state the law on the subject of the care to be exercised by the plaintiff to avoid injury, which is silent as to the law of the “last clear chance” doctrine, is not erroneous, if the instructions taken as a whole fully charged the jury as to that doctrine.</p> <p>Id.—Instruction -Assuming Facts — Evidence Sustaining Assumptions.—It was not error to charge the jury that “If you find from the evidence that the motorman in charge of defendant’s car, when about a block away from the point of the accident, saw the plaintiff riding upon his bicycle between the inner rails of the defendant’s east-and-west tracks, and far enough away from the track on which he was propelling his ear so that his said ear could have passed the said plaintiff safely, and that he gave warning of' his approach, and that the front of his ear did pass the plaintiff, and that the plaintiff then, either through excitement or otherwise, lost his balance, veered in towards the car, and that the hind step of said ear struck plaintiff, and that the said car was traveling upon a straight track at the time of the accident, then I charge you that your verdict must be for the defendant,” when there was evidence which, if believed by the jury, sustained each element of the hypothesis stated in the instruction.</p> <p>Id.—Presumption of Care in Starting to Bide on Tracks.—Where all the evidence showed that the plaintiff had been riding along or upon the track for a block and a half before he was struck by the defendant’s car, it is immaterial whether he had exercised due care at the time he started to ride along the street; and an instruction that the law presumes, in the absence of evidence to the contrary, that he looked and listened to ascertain whether a car was approaching from the rear, before getting upon the track, is properly refused as being inapplicable to the facts.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Mechanics’ Liens—Priority between Lienors—Constitutional Law —Laborers not Entitled to Priority over Materialmen.—Section 1194 of the Code of Civil Procedure, providing for a priority of liens against property: First, to all persons performing manual labor in, on, or about the same; second, to persons furnishing materials; third, to subcontractors; and fourth, to original contractors, does not violate section 15 of article XX of the constitution, providing that “Mechanics, materialmen, artisans, and laborers of every class shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and material furnished; and the legislature shall provide by law for the speedy and efficient enforcement of such liens,” in so far as it prefers the laborers and materialmen to contractors and subcontractors. That section is unconstitutional in so far as it attempts to give a priority to persons performing manual labor over persons furnishing materials.</p> <p>Id.—Constitutional Provision Conferring Lien Self-Executing.— Section 15 of article XX of the constitution is self-executing to the extent that it confers upon the classes of persons enumerated therein a lien, and makes them equal, in point of rank, with regard to each other.</p>

<p>Practice—Dismissal op Action—Want op Diligence in Prosecution. —The superior court, in ruling upon a motion to dismiss an action for want of diligence in prosecuting the same, may properly consider any facts appearing in the record of the case and bearing upon the question of diligence and good faith, whether the same occurred before the action was begun or afterward, and in reviewing the action of the superior court, and considering whether or not its discretion was properly exercised, the appellate court should also take such circumstances into consideration.</p> <p>Id.—Pacts Showing Want op Diligence.—An action by a banking corporation which is in process of liquidation, to recover an unpaid subscription from a former stockholder, who had transferred his stock without consideration, is properly dismissed for want of prosecution, when it appears that the corporation continued to do business for more than three years after its officers knew of its insolvency without questioning the validity of the transfer; that after a call had been made it delayed until the last day possible to bring the action in order to avoid the bar of the statute of limitations, and then brought the aetion in the wrong county, and that it waited for three years before pressing for hearing a motion to transfer to the proper county, and more than a year after issue joined before taking any steps to bring the cause to trial, during all of which time constant and repeated efforts were being made to settle and adjust the ease.</p>

<p>Taxation — Payment under Protest — Interest ¡Recoverable Only after Judgment.—In an action to recover taxes paid under protest, under section 3819 of the Political Code, interest after payment and before trial is not allowable, and can only be allowed against the county and state from the time of the adjudication declaring the money due.</p> <p>Id. — Affidavits Authenticating Assessment-Book — Failure to Make in Time Limited—Defect Subsequently Cured.—A defect in an assessment, caused by the omission of the clerk of the board of supervisors and of the county auditor respectively to affix to the corrected assessment-book their affidavits, as required by sections 3682 and 3732 of the Political Code, within the time therein limited, is cured under section 3885 of that code as to a party assessed who pays his taxes under protest, by the making and affixing of such affidavits to the assessment-book prior to the payment of the taxes. The making and affixing of such affidavits are “acts relating to the assessment or collection of taxes,” within the meaning of that section, which are not rendered illegal because the same were not completed within the time required by law.</p> <p>Id.—Notice by Tax-Collector.—The fact that the tax-collector had given the notice to the taxpayers, as required by section 3746 of the Political Code, before the affidavits were attached, and gave no further notice after they were attached, did not affect the validity of the tax. The entire failure to give such notice would not make the tax invalid.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, J. W. P. Laird, and Rowen Irwin, for Appellant.</p>