Volume 156 — California Reports

<p>Divorce—Agreement for Division of Property in Event of Future Delinquency of Husband—Contract against Public Policy.—An agreement between a husband and wife, executed pending an action for divorce instituted by her, whereby she waived the pending cause of action and agreed to dismiss it, "and he agreed that in the event he should thereafter so conduct himself as to give her a new cause of action for divorce, and she should establish the same in a subsequent action, he would pay' her a specified sum of money, which she agreed to accept in full satisfaction of her property rights, is against public policy and void.</p> <p>Id.—Community Property—Profits of Separate Estate Invested in Business—Interest on Capital.—Where at the time of his marriage a husband has a definite amount of his separate property invested as capital in his business, which he afterwards continues to carry on at great profit, in determining what portion of such profit is community property, it must be presumed, in the absence of evidence to the contrary, that some of the profits were justly due to the capital invested and would constitute his separate property, and that the amount thereof would be equivalent to at least the usual interest on a long investment well secured.</p> <p>Id.—Appeal by Husband from Divorce Judgment—Increase of Property Award to Wife.—Upon an appeal by the husband from a judgment of divorce, which determined that the community property was of a specified value and awarded the wife a three-fifths part thereof, the court cannot change the judgment by increasing the share of the community property given to her.</p> <p>Id.—Modification of Judgment on Appeal—Deduction of Separate Property—Legal Interest on Capital of Business.—Where the trial court erred in including in such community property any portion of the profits of the business conducted by the husband properly to be credited to his separate property invested therein, and there was no evidence to show that such capital was entitled to a greater return than legal interest, this court may, on an appeal by the husband, upon the wife’s application therefor, direct the judgment to be modified, so as to allow the husband, as part of his separate estate, interest at the rate of seven per cent on the amount of such capital.</p> <p>Id.—Interlocutory Judgment—Property Eights may Be Determined—Custody op Children.—Under the amendment of 1903 to sections 131 and 132 of the Civil Code, the trial court has the power, at the time of rendering the interlocutory judgment of divorce, to try and determine the issues between the parties to the action with respect to property and the custody of children. While this may, and generally should be done, the court has the power, under such amendment, as it always has had the power under previous laws, to postpone the trial and decision of such issues to any reasonable time after the rendition of the judgment of divorce, whether interlocutory or final.</p> <p>Id.—Postponement op Finality op Interlocutory Judgment—Proper Practice.—The practice is to be commended of the trial court,. in an action of divorce, determining all the issues in one trial and rendering an interlocutory judgment declaring the rights of the parties upon all the issues, and providing that the same should in all respects become final only at the time when the decree of divorce became final, in the mean time allowing temporary alimony.</p>

<p>The facts are- stated in the opinion of the court.</p> <p>Ben Berry, for Appellant.</p>

<p>Quieting Title—Actual Possession by Plaintiff Sufficient to Support Action—Nonsuit.—In an action to quiet title to land, actual possession thereof by the plaintiff for any period, under claim of ownership, is sufficient evidence of title in the plaintiff to support the action, as against a trespasser or one who establishes no title in himself. And upon the plaintiff’s showing such possession, it is error to grant a nonsuit at the instance of a defendant who offered no evidence of any title or right of possession in himself.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Garret W. McEnerney, and Walter Rothchild, for Appellant.</p> <p>Charles W. Slack, Charles S. Wheeler, Bush Finnell, Charles E. Trower, and J. J. Dunne, for Respondent.</p>

<p>Mandamus to Enforce Corporate Eights.—The writ of mandamus Bes to enforce the plain rights of stockholders or members of corporations, in the absence of any other adequate remedy.</p> <p>Id.—Mutual Water Company—Right to Use of Water on Land—• Enforcement of Bight by Stockholder.—A stockholder in a mutual water company, organized for the purpose of securing a supply of water and distributing the same proportionately among its stockholders for use upon lands owned by them within certain defined boundaries, may maintain a proceeding in mandamus to compel the corporation to furnish him with the water to which he is entitled by reason of his membership in the corporation, for use in irrigating lands owned by him within such boundaries, which he had prepared for cultivation, and on which he had planted a crop which was ready for irrigation, and which would soon die if not irrigated. In such a case, there is not a plain, speedy, and adequate remedy in the ordinary course of law.</p> <p>Id.—Owner of Land—Occupant of Unsurveyed Public Lands.—A stockholder in the corporation, who occupies unsurveyed public lands of the United States within such defined boundaries, which he has entered with intent to procure the government title, will be deemed to be the owner of such lands, within the meaning and intent of the purposes for which the corporation was organized, when the status of all other lands within the district is the same.</p>

<p>APPEAL from a judgment of the Superior Court of Imperial County. Franklin J. Cole, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mandamus—Mutual Water Company-—-Enforcement by Stockholder op Bight to Use Water.—Miller v. Imperial Water Company No. 8, ante, p. 27, approved, and on the authority thereof the judgment of the superior court denying an application for a writ of mandate is reversed.</p>

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

<p>Loan to Redeem from Foreclosure Sale—Repayment upon Receipt of Sheriff’s Deed—Maturity of Obligation.—Under an agreement whereby money was advanced for the purpose of redeeming land from a foreclosure sale, by the terms of which it was agreed that the certificate of redemption should be assigned to the lender, and, if no other redemption was made, he should obtain the sheriff’s deed of the property and hold it as security for the loan, and that the borrower, as soon as the sheriff’s deed was so received would repay the money advanced, whereupon the lender would convey the property, the obligation to repay the money did not become absolute at the time of the expiration of the period of redemption. Such obligation did not mature until after the right to the sheriff’s deed had accrued and a reasonable time thereafter had elapsed within which the lender could have procured it. What such reasonable time would be, under the circumstances of the case, would be a question of fact for the trial court.</p> <p>Id.—Lien of Lender—Certificate of Redemption.—Upon loaning the money in pursuance of such agreement, and receiving the certificate of redemption, the lender acquired an equitable lien upon the land for the repayment of the money. Such certificate, until the deed was executed, was a sufficient evidence of the lien and preserved the rights of the lender.</p> <p>Id.—Unreasonable Delay in Execution of Sheriff’s Deed Induced by Borrower—Action to Enforce Lien—Statute of Limitations. ,—A delay for upwards of nine years in the execution of the sheriff’s deed, caused by the wrongful interference and groundless objections of the borrower, could not have the effect of compelling the lender to wait that period for the repayment of the money advanced. Under the circumstances of this case, an action to enforce the lien brought about three years after the right to the sheriff’s deed accrued was not premature, nor barred by the statute of limitations.</p> <p>, Id.—Amendment of Compliant—Change of Cause of Action.—In an action to enforce a lien upon the land for the money advanced, an amendment to the complaint, with respect to the time of maturity of the obligation to repay the money, changing it from an obligation to repay it immediately upon its advancement to an obligation to repay upon the execution of the sheriff’s deed, was not erroneous, and did not amount to a change of the cause of action.</p>

William S. Wells, Judge. The facts are stated in the opinion of the court. Charles S. Wheeler, Donzel Stoney, M. R. Jones, E. De Los Magee, for Appellant. The representative of both plaintiffs was merely an assignee of each for the purposes of the suit.

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

<p>APPEAL from an order of the Superior Court of Los Angeles County rendered in proceedings supplementary to execution. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Injunction—Irreparable Injury—Acts Involving Commission of Crime.—While equity will not attempt to restrain the commission of a crime as such, the fact that an act threatening irreparable injury to property rights is of itself criminal does not deprive a court of equity of its right and power to enjoin its commission.</p> <p>Id.—Continuing Trespass..—While equity will not enjoin against a trespass as such, yet when the acts committed and threatened are in the nature of a continuing trespass, working irreparable injury, they will be enjoined.</p> <p>Id.—Disputes Between Employer and Employees—Act of March 20, 1903.—Constitutional Law—Labor Union—Unlawful Boycott. —If the act of March 20, 1903, entitled “An act to limit the meaning of the word ‘conspiracy’ and also the use of restraining orders and injunctions as applied to disputes between employers and employees in the state of California,” should he construed as prohibiting the granting of an injunction, at the instance of an employer of labor, to restrain a labor union from maintaining an unlawful boycott working irreparable injury to his business, it would be void as violative of one’s constitutional right to acquire, possess, enjoy, and protect property, as well as obnoxious to the constitution in creating arbitrarily and without reason a class above and beyond the law which is applicable to all other individuals and classes.</p> <p>Id.—Special Legislation—Special Privileges and Immunities.—So construed, the act would legalize a combination in restraint of trade or commerce, entered into by a trade union, which would be illegal if entered into by any other persons or associations, and would exempt trades unions from the operation of the general laws of the land, under circumstances where the same laws would operate against all other individuals, combinations, or associations. It would thus not only be special legislation, obnoxious to the constitution (art. IV, see. 25, subds. 3, 33), but would also violate the constitution in attempting to grant privileges and immunities to certain citizens or classes of citizens which, upon the same terms, have not been granted to all citizens. (Art. I, see. 21.)</p> <p>Id.—Boycott when Enjoined—Illegal Means fob Enforcement.— Whether or not a court of equity may enjoin a boycott maintained by a labor union against the plaintiff’s business, depends upon the means employed by the defendants in carrying it into effect. If the means employed, or threatened to be employed, are illegal, the injunction will issue; otherwise it will not issue.</p> <p>Id.—Boycott When Legal—Justifiable Acts of Striking Employees.—An organized union of employees, by concerted action, where no contractual obligation interferes, has the right to maintain a “strike" in furtherance of trade interests, and may engage in a legal boycott. Such a boycott implies not only the right to the concerted withdrawal of social and business intercourse, but the right by all legitimate means of fair publication, and fair oral or written persuasion, to induce others interested in or sympathetic with their cause, to withdraw their social intercourse and business patronage from the employer. It implies also the right to request of another that he withdraw his patronage from the employer, and to use the moral intimidation and coercion of threatening a like boycott against him if he refuses so to do.</p> <p>Id.—Illegal Boycott—Picketing not Permissible—Want of Express Words or Acts of Intimidation.—The right of striking employees to maintain a legal boycott, as above indicated, does not give them the right to maintain a “picket” about the place of business of the person boycotted, although the pickets employed do not engage in any express words or acts of threats or intimidation. The end to be attained by picketing, however artful may be the means employed, is the injury of the boycotted business through physical molestation and physical fear caused to the employer, to those whom he may have employed or who may seek employment from him, and to the general public. A boycott, to the extent that it engages in picketing, is illegal and will be enjoined.</p>

<p>APPLICATION for a Writ of Certiorari to review a judgment of the Justice’s Court of the First Judicial Township, County of Contra Costa.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeals in Probate—Time for Taking—Dismissal.—Under section 1715 of the Code of Civil Procedure, appeals in probate proceedings must be taken within sixty days after the order, decree, or judgment is entered. If not so taken the appeal will be dismissed.</p> <p>Id.—Jurisdiction of Appellate Court—Admission of Service.—The objection that an appeal has not been taken within the time limited by law goes to the jurisdiction of the court, and is not avoided by the action of the respondent in indorsing upon the notice of appeal an admission of service. The acts of the parties cannot confer jurisdiction on the court in a case withheld by the law from its jurisdiction.</p> <p>Id.—Alternative Method of Appeal—Limitation of Time Inapplicable to Appeals in Probate.—Section 1715 of the Code of Civil Procedure, limiting the time of taking appeals in probate proceeding to sixty days after the order, decree, or judgment is entered, was not affected, nor repealed by implication by the act of March 20, 1907, adding sections 941a, 941b, and 941e to said code, and providing a new and alternative method for taking appeals from judgments, orders, or decrees of the superior court, and establishing a different limitation therefor.</p> <p>Id.—Effect of Alternative Method of Appeals to Probate Proceedings.—When chapter I, title XIII, part II, of the Code of Civil Procedure relating to appeals in general was enlarged by the addition of the new sections furnishing an alternative method of taking appeals, these sections, both by the generality of their language and by the terms of section 1714 of that code, were carried over and imported into probate proceedings, but, like the provisions which they supplemented, only in so far as they were consistent with the rules laid down in the title governing probate proceedings. The appellant may follow the method laid down in the new sections, and may perfect an appeal by filing a notice, without serving it or filing an undertaking. But in the matter of time for taking an appeal, section 1715 still remains in force.</p> <p>Id.—Repeals by Implication.—Repeals of statutes by implication are not favored, and only take place when there is an irreconcilable conflict between the two acts, so that it is manifest that the legislature did not intend both to be effective.</p> <p>Id.—Special and General Statutes.—Where two statutes treat of the same subject, one being special and the other general, unless they are irreconcilably inconsistent, the latter, although latest in date, will not be held to have repealed the former, but the special act will prevail in its application to the subject-matter as far as coming within its particular provisions.</p>

<p>Corporation—Failure to Pay State License-Tax—Forfeiture—Domestic Corporation not Engaged in Business.—Kaiser Land and Fruit Co. v. Curry, 155 Cal. 638, approved, to the effect that the act (Stats. 1906, p. 22), imposing a state license-tax on domestic corporations organized for pecuniary profit, and providing for a forfeiture of the charter of delinquent corporations, is valid, self-executing, and applicable to such corporations, although they may not be actually engaged in transacting business.</p> <p>Id.—Corporation Formed to Close up Business of Firm—Organization for Pecuniary Profit—Cessation of Business—Transfer of Assets to Another Corporation.—A domestic corporation formed by persons interested in the assets of a previously existing partnership which had been dissolved by the death of one of the partners, and organized for the purposes of taking over the firm property, with power to acquire the property of the firm, to dispose of the same as soon as it could be done without loss, to divide the proceeds among the stockholders, and, in the mean time, in order to preserve the value of the property, to carry on the business formerly conducted by the firm, and in the same manner, and to divide the net profits of the business among the stockholders annually as dividends, is organized for pecuniary profit, and is liable to the payment of a state license-tax, notwithstanding it has ceased to carry on business, and has transferred its assets to a foreign corporation organized for similar purposes, which has paid the license-tax required of foreign corporations doing business in this'state.</p> <p>Id.—Double Taxation—Charge Exacted as Condition of Corporate Existence.—The exaction of the payment of the state license-tax by such domestic corporation as well as by the foreign corporation is not double taxation. The charge is imposed not' alone for the doing of business, but as a condition for the corporate privilege and authority to do business, and must be paid by the California corporation as a condition of continued corporate existence, regardless of whether any business is done by it or not.</p> <p>Id.—Proclamation of Delinquency—Classification of Corporations. .—The proclamation required by the act to be issued by the governor declaring what domestic and foreign corporations are delinquent in the payment of the state license-tax, need not specifically designate which of the corporations named in the proclamation are domestic and which are foreign. A designation of each corporation, whether foreign or domestic; by its true corporate name is sufficient.</p> <p>Id.—Meaning of Words “Forthwith” and “Immediately.”—There is no precise definition, so far as time is concerned, of the- words “forthwith” and “immediately,” as used in a statute. In every case the meaning depends upon the circumstances of the case and the act to be performed.</p> <p>Id.—Time of Report and Filing and Publication of Proclamation.— The requirements of the act that the secretary of state shall, on or before the fifteenth day of September, report to the governor a list of all delinquent corporations, that the governor shall “forthwith” issue his proclamation of delinquency, that the same shall be “immediately” filed in the office of the secretary of state, and that he shall “immediately” cause it to be published in two daily newspapers of the state, are sufficiently complied with where there were, at most, but two business days between the date of the report and the date of the issuance of the proclamation, and a like period thereafter before the ensuing publication.</p>

<p>Corporation—Forfeiture for Non-Payment of State License—Subsequent Doing of Business—Transfer of Stock.—A domestic corporation which has forfeited its charter by reason of its failure to pay the state license-tax ceases to exist as such, and its property having been taken in charge by its directors as trustees, as provided in section 400 of the Civil Code, neither it nor its directors can be compelled to continue to do business by reissuing .stock transferred from one of its stockholders to another person.</p>

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

<p>Ejectment—Allegation of Value of Bents and Profits—Trial on Theory That Allegation Was Denied—Finding on Issue —Appeal from Judgment.—Where the complaint in an action of ejectment alleges that the value of the rents and profits of the land was a certain sum per day, and the answer, while not technically denying such allegation, does deny the allegation of the damage suffered by the plaintiff, a finding that the rents and profits were worth only a specified sum per month, much less than the amount alleged, implies that evidence was given upon that subject as if it were a fact in issue, and that such evidence was sufficient to support the findings. It thus appearing that the case was tried upon the theory that the answer put in issue the value of the rents and profits, the plaintiff cannot urge the contrary on appeal from the judgment.</p> <p>Id..—Finding on Fact Sufficient Showing of Issue Baised.—The presence in the record of a finding of a fact which the appellant claims was not in issue, is a sufficient showing that the action was tried upon the theory that the fact was in issue.</p>

<p>San Francisco Sea-wall Bonds—Mandamus by Prospective Bidder to Compel Signing.—A person who is merely desirous of bidding on the bonds authorized to be offered for sale under the so-called “San Francisco Sea-wall Act” (Stats. 1903, p. 247), has not a present status entitling him to maintain a writ of mandate to compel the governor, controller, and treasurer, now in office, to sign such bonds, to be issued in place of bonds already signed by their predecessors.</p> <p>Id.—Successful Bidder Entitled to Valid Bonds.—The writ will also be denied for the reason that the successful bidder at the sale will be entitled to bonds properly executed, and if the bonds 'tendered are not so executed as to make them valid securities he may then compel the issuance of others which are sufficient in every respect.</p>

<p>APPLICATION for a Writ of Mandate directed to the Governor, the Controller, and the Treasurer of the State of California.</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>Estate op Deceased Person—Annual Account-—Entire Estate not to Be Accounted por Until Pinal Settlement.—A decree settling an annual account of the administrator of the estate of a deceased person, filed .under section 1622 of the Code of Civil Procedure, need not charge the administrator with the entire property in his hands, but may simply determine the accuracy of Ms accounts as to money transactions which he has had with the estate. As to all other items of property belonging to the estate, an accounting is to be made upon final settlement.</p> <p>Id.—Enforcement op Contract for Purchase op Land—Distribution by Estate op Vendor to Heirs op Vendee—Payments by Estate op Vendee.—An administratrix, whose intestate was a vendee under a contract for the purchase of land belonging to the estate of the deceased vendor, and who, in his lifetime, had purchased and obtained conveyances from some of the heirs of the vendor of their interests in the property, is not limited, in order to perfect the title and secure possession of the land for the benefit of the estate of the vendee, to the proceedings to compel a conveyance of the land provided for by sections 1597 et seq. of the Code of Civil Procedure. If it was to the advantage of the estate of the vendee, she was justified in entering into an arrangement for the direct distribution of the land by the estate of the vendor to the heirs of the vendee, upon payment being made to the estate of the vendor. The fact that such payment was made without permission of the court would not render the expenditure improper, although its propriety would be subject to investigation at the time of the settlement of the accounts of the administratrix of the estate of the vendee.</p> <p>Id.-—Revocation op Letters Denied—Mismanagement op Estate— ■Delay in Accounting.—Upon appeal from an order refusing to revoke letters of administration, it is held, upon a review of the evidence, that the administratrix had not mismanaged the affairs of the estate, and that the delay in accounting complained of was with the full consent and approbation of the 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>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Elizabeth L. Kenney, Charles L. Batcheller, and Thos. C. Ridgway, for Appellants.</p>

<p>Street Assessment—Resolution of Intention—Insufficient Description of Work.—A resolution of intention for street work, in which the work proposed to be done is described merely as “to sidewalk and curb” a named street within defined limits, without any specifications of the character of the materials to be used in laying the sidewalks, nor of what materials the curb shall be constructed, is void.</p> <p>Id.—Pleading—Complaint Setting Porth Terms of Insufficient Resolution.—In an action to enforce an assessment based upon such resolution of intention, a complaint which alleges the passage of the resolution containing such insufficient description of the work, fails to state a cause of action, notwithstanding other allegations that the common council “duly passed and adopted a resolu- ' tion of intention,” and subsequently “duly passed and adopted and duly gave and made its order ordering said work to be done.”</p>

<p>Mechanics’ Liens—Statement of Time of Payment in Claim—• Variance.—There is no material variance between a statement in the claim of lien of a materialman that the contractor agreed to pay for the same at the current market or list prices at a certain place on demand, and his evidence, which, taken as a whole, indicated that the materials were to be paid for on demand after delivery, but that it was his practice not to make such demand until after the completion of the building.</p> <p>Id.—Motion for Nonsuit—Reopening Case to Explain Variance.— When a motion for a nonsuit is made at the close of the plaintiff’s testimony, on the ground of variance, it is within the discretion of the court to permit the plaintiff to reopen his ease and offer further testimony in exposition of the matter.</p> <p>Id.—Payment to Contractor—Check Indorsed to Materialman— Application of Payment.—Where an owner for whom a contractor is constructing two separate buildings gives the latter a check on account of the balance due him on both buildings, without any directions for the application of its payment, and the latter transfers the check to a materialman to whom he was indebted for materials furnished to both buildings, the materialman may apply it to the payment of the indebtedness due him from the contractor on account of either of the buildings.</p> <p>Id.—Evidence to Explain Receipt in Pull.—Parol evidence is admissible to show that a receipt, purporting to be in full of all demands, was not intended to include a particular demand concerning which the party giving the receipt knew nothing at the time it was given.</p>

<p>Negligence—Grading oe City Street—Liability eob Negligence oe Subcontractor—Obligation Imposed by Ordinance.—A contractor to whom a municipal corporation had given permission to grade- portions of a city street adjacent to a railroad track situated therein, the work to be done in accordance with the terms of an' ordinance which imposed on him the obligation of properly protecting such tracks and made him responsible for any damage caused by negligence or carelessness on the part of his employees, is liable for the negligence of a subcontractor doing the grading, in permitting loose earth to be deposited on the track in such a manner as to derail a train.</p> <p>Id.—Contractor Cannot Believe Himselt oe Liability.—Under such circumstances, the contractor could not relieve himself from the duty of doing the work in the manner required by the ordinance by contracting to have the work done by another, and the rule of respondeat superior applies.</p>

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

<p>Negligence of Street Bailroad—Injury to Passenger—Pleading— Admissions on Trial—Alighting from Oar in Motion—Instruction as to Liability.—Where the complaint in an action against a street-railroad company to recover for the negligent death of a passenger alleged that the act of starting the ear backward after it had stopped and while the passenger was in the act of alighting was the direct and only cause of the injury, and the plaintiff’s evidence was solely directed to proof of that act as the cause, which the defendant attempted to rebut solely by evidence that she got off the car before it had stopped and while it was in motion, and it was admitted at the trial that the defendant would be liable if the accident occurred as claimed by the plaintiff, but would not be liable if she fell in attempting to alight from the ear before it had stopped and while it was in motion, an instruction to the jury that there was but one issue for them to consider, viz.: “Did the car stop and then as the passenger was attempting to alight therefrom start backward? If so, the defendant is liable. If, on the other-hand, the passenger voluntarily stepped from the ear before the same had stopped and while it was in motion, the plaintiffs cannot recover,” was equivalent to a direction to the jury that the act alleged as the cause of the injury, if proven, was a negligent act. of itself, and sufficient in that respect to justify a recovery.</p> <p>Id.—Evidence—Boles of Company.—In such case, it was immaterial to refuse to admit in evidence certain rules of the company for the government of its employees, the only effect of which would have been to tend to prove the admitted proposition that the act .of starting the car backward, as the passenger was alighting, was negligent.</p> <p>Id.—Instructions Bendered Immaterial—Presumption op Negligence.—It was immaterial to refuse an instruction requested by the plaintiffs, to the effect that a presumption of negligence on the part of the defendant would arise from the fact that the accident happened to the deceased by the operation of its ear while she was a passenger, and also to give instructions which excluded from the consideration of the jury any act of negligence other than that alleged as the cause of the accident, or which put upon the plaintiffs the burden of proving the negligence of the defendant, without aid from the presumption of negligence arising from the happening of the accident to a passenger on its car.</p> <p>Id.—Presumption of Negligence prom Injury to Passenger—Burden op Proof.—The mere fact that a passenger is injured while aboard a ear, or while alighting therefrom, does not create a presumption that the injury was caused by want of care on the part of the defendant operating such ear, unless it be first shown that the injury came from the movement of the ear by those in charge of it, or from something connected therewith, or in control of the defendant. When this is done, the law then presumes, grima facie, that the particular thing thus shown to have caused the injury was due to the defendant’s negligence, and the burden is thrown on the defendant to disprove the grima facie ease thus made.</p> <p>Id.—Ball op Passenger—Starting op Oar.—The fact that a passenger on a car was injured by falling to the ground, creates no presumption of negligence. But if it is also shown that the fall came about from the sudden start of the ear as she was stepping from it, then it will be presumed that the sudden start was caused by the defendant’s negligence.</p> <p>Id.—Denial op Negligence—Preponderance op Whole Evidence— Instructions.—In such a case, it is proper to instruct the jury that if the alleged negligence of the defendant is denied, the plaintiff must prove it by a preponderance of the whole evidence.</p> <p>Id.—Evidence Equally Balanced.—In view of the pleadings and the admissions on the trial, it was proper to instruct the jury to find for the defendant, if the evidence is equally balanced, as to whether the ear stopped and then started backwards, as the deceased was attempting to alight therefrom, or as to whether she voluntarily stepped from the car while it was in motion.</p> <p>Id.—Contributory Negligence.—Such an instruction could not fairly have been understood by the jury as a direction that the defendant could establish the defense of contributory negligence, based on the theory that the passenger had attempted to alight from the car before it had stopped and while it was in motion, without proving it by a preponderance of evidence.</p> <p>Id.—Absence of Instruction on Contributory Negligence.—In such action, the plaintiff, in the absence of any request therefor, cannot complain that no instruction was given as to the burden of proof to show contributory negligence.</p>

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

<p>County Jail—Cells When Part of Structure—Independent Cages are Furnishings.—Depending upon their mode of construction, cells in a common jail may either be a part of the structure, or independent thereof. When they consist of steel tanks or cages erected within but quite independent of the jail building, they become a part of the jail furnishings.</p> <p>Id.—Furnishing of Public Building—Adoption of Plans and Specifications not Necessary.—Subdivision 8 of section 4041 of the Political Code requires that in the erection or reconstruction of a public building the contract shall be let and the work performed under plans and specifications previously adopted. But it makes no such requirement in the case of furnishing a public building.</p> <p>Id.—Discretion in Awarding Contract—Lowest Responsible Bidder. —The board of supervisors of a county, who have advertised for bids for the erection within the county jail of such steel tanks or cages, in accordance with general plans and specifications adopted by them, are not required to let the contract for the work to the lowest responsible bidder. They may exercise their discretion in the matter, and award the contract to such bidder as they may determine to be the most advantageous for the county.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County from an order dismissing a complaint in intervention, and from an order vacating an order granting leave to intervene. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Tenancy by Entirety Non-Existent in this State.—In this state, a tenancy by entirety in land is not recognized.</p> <p>Id.—Deeds to Husband and Wife as Joint Tenants.—A deed to a husband and his wife “as joint tenants with fee to the survivor,” and a deed to them “during their joint lives, as joint tenants, and afterwards to the survivor in fee simple absolute,” create a simple joint tenancy in' them.</p> <p>Id.—Wine May Declare Homestead on Land Held in Joint Tenancy—Subsequent Deed by Husband is Void.—Land held in joint tenancy by a husband and wife may be impressed with a homestead at the instance of the wife, and a deed by the husband alone of all his interest therein, made after the wife’s declaration of homestead, is inoperative and void.</p>

<p>Street Improvement—Erroneous Naming op Street.—Where a resolution of intention for a street improvement, and all subsequent proceedings based thereon, fail to designate the street by its proper legal name, the adjoining property-owners are not charged with notice of the proposed work, and an assessment therefor is void.</p> <p>Id.—Recording op Map—Acceptance op Dedication—Street Designated by Particular Name—Legal Name op Street.—Where a map of a tract of land within the limits of a municipality is recorded, showing a street therein designated by a particular name, such action amounts to an offer of dedication of the street to the public, and the subsequent acceptance by the municipality of the offer, confers upon the street the legal name indicated on the map.</p> <p>Id.—Name Changed on Subsequent Map—Subsequent Change op Name by Municipality.—The subsequent recording of a second map by other parties of a portion of such tract, in which such street and its continuation was designated by a different name, did not operate to change the name of the street as delineated on the map first recorded, and a subsequent ordinance of the municipality changing the name of the street as designated on the second map did not effect a change of the name of so much of the street as was delineated and named on the first map.</p>

<p>Street Assessment—Name of Street—Change of Name on Map.— Judgment and order affirmed on the authority of Peck v. Strassforth, ante, p. 201.</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>Fraudulent Representation Inducing Purchase—Remedies of Purchaser.—When a party has been induced by fraud to enter into a contract, he may elect either to rescind the contract by restoring whatever he has received under it, or he may affirm the contract, retaining whatever advantage he may have acquired, and still have his action for damages for deceit practiced upon him in making the contract.</p> <p>Id.—Subsequent Arrangements Affecting Subject-Matter of Contract—Waiver of Damages.—The foregoing rule is subject to limitations which apply whether the contract to which the charge of fraud is addressed is an executed or executory contract. One of such limitations is that when a party claiming to have been defrauded, enters, after discovery of the fraud, into new arrangements or engagements concerning the subject-matter of the contract to which the fraud applies, he is deemed to have waived any claim for damages on account of the fraud.</p> <p>Id.—Compromise Agreement—Waiver of Damages for Deceit.— Where a purchaser of stock in a corporation, after the discovery of the fraudulent representations of the seller inducing the purchase, enters into a compromise agreement with him by the terms of which his claim based upon the fraud was to be settled, he waives any right to damages he might otherwise have had, had be stood upon the original contract, and sued for damages for the deceit.</p> <p>Corporations—Agreement to Sell All Property of Corporation— Lawful Method Implied—Sale by Dissolution..—It will be assumed, in construing a contract between the owners of all the stock in a corporation, whereby it was agreed that all of the corporate property should be sold and the proceeds disposed of in a certain manner, without providing a method whereby this should be accomplished, that the parties had in contemplation any legal method and that such a method would be pursued. The dissolution of the corporation in the manner provided by law would be such a method. So construed, the contract is not illegal, as being a contract to sell the property of a corporation and divide the proceeds among the stockholders, within the inhibition of section 309 of the Civil Code.</p> <p>Id.—Consideration for Contract—Promise of Stockholders to Sell. —The promise of one of such stockholders to sell all the property of the corporation, including his own interest in it, for the benefit of the other party to the contract, constituted a sufficient consideration for the contract.</p>

<p>Evidence of Attending Physician—Mental and Physical Condition of ¡¡Testator—Information Derived in Professional Capacity.— An attending physician, who had treated a testator professionally at a sanitarium continuously for thirteen days prior to his death, and who during that period had diagnosed his case and observed his actions, conduct, and demeanor, but who was not called as an expert, is properly restrained, on a contest of his will, from testifying to the physical and mental condition of the testator at the time of the date of his will executed during such period, notwithstanding it was not directly shown, by preliminary inquiries, that all the information he had obtained on such matters was acquired while attending the testator in his professional capacity, and was necessary to enable him to prescribe or act for his patient.</p> <p>Id.—Intimate Acquaintance—Opinion of Trained Nurse.—A trained nurse, in attendance on the testator every hour of the day for three days prior to Ms death, and who during that period remained with him for intervals varying from a few minutes to an hour or more, during which they conversed on different subjects, may become an “intimate acquaintance” of the testator, within the meaning of subdivision 10 of section 1870 of the Code of Civil Procedure, and as such qualified to testify as to her opinion respecting his mental condition.</p> <p>Id.—What Constitutes an Intimate Acquaintance—Discretion or Trial Court—Appeal.—To constitute an “intimate acquaintance” necessarily requires a familiarity with the mental temperament of the person whose soundness of mind is in question, but this familiarity is not to be measured exclusively by an acquaintanceship for any particular length of time, although time may be an element in its determination. The matter is one within the discretion of the trial court, and in the absence of abuse, the appellate court will not interfere with its ruling on the subject.</p> <p>Id.—Contest of Will—Instructions—Senile Dementia.—On a contest of a will on the grounds of the unsoundness of the mind of the testator and undue influence, it is not error to refuse an instruction requested by the contestant as to the phase of insanity known as senile dementia, where the record fails to show any evidence of the testator being affected with that phase of insanity, or that it • was an issue in the ease.</p> <p>I'd.—Instruction as to Weight op Evidence—Oral Statements— Error Without Prejudice.—An instruction that “evidence which consists of mere repetitions of oral statements is subject to much imperfection and mistake; that the party giving such testimony máy have misunderstood what was said, and it frequently happens that a witness by unintentionally altering a few expressions really used gives an effect to the statement completely at variance with what the party did say,” even if erroneous as an. abstract proposition, is without prejudice, when the record fails to show that there was any testimony in the case of any oral statements made by any one.</p>

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

<p>Guardianship op Minors—Contest between Mother and Aunt— Fitness of Mother—Prior Judgment Determining Fitness—Res Adjudicata..—On an application by a mother to be appointed guardian of the persons, and estates of her minor children, which is contested by their aunt on the ground that the mother is not a fit person to act as such guardian, a prior judgment denying an application of the aunt for the guardianship of their persons, rendered in a proceeding instituted by her which was contested by the mother, in which her fitness was put in issue and determined in her favor, is res adjudicata between the parties as to the mother’s fitness to act as guardian of their persons,. so far as her fitness might be affected by circumstances existing prior to the former hearing, but not by circumstances subsequently occurring.</p> <p>Id.—Abandonment by Mother—Actual Desertion—Intent to Sever Parental Relation.—In order to constitute abandonment of her minor children by a mother, so as to forfeit her right to guardianship under subdivision 4 of section 246 of the Civil Code, there must be an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same. A mere temporary absence or neglect of parental duty is not sufficient.</p> <p>Id.—Children Left in Care op Third Person.-—In the absence of proof of the circumstances under which minor children were placed in the care of a third person, the mere fact that their mother allowed them to remain with her is not enough to establish an intent to throw off the obligations of a mother.</p> <p>Id.—Testamentary Appointment by Fatherv—Consent op Mother.— On a contest between the aunt of minor children and their mother as to their guardianship, the will of the deceased father of the minors, in which he appointed the aunt as their guardian, cannot be considered when unaccompanied by the written consent of the mother to the appointment.</p> <p>Id.-—Right op Mother to Guardianship.—On such a contest, the mother has the primary right to be appointed, and should be appointed in the absence of proof compelling a finding that she is not fit to act as guardian.</p>

<p>Specific Performance—Executory Contract for Sale of Land— Contract Hot Signed by Vendee — Acceptance of Becbipt-— Statute of Frauds.—In this state, a vendee who has not signed an executory contract for the sale of land and who has done no more than pay a part of the purchase price, accepting a receipt therefor, cannot he compelled specifically to perform.</p> <p>Id.—Subscription by Party to be Charged.—Under section 1973 of the Code of Civil Procedure, and sections 1624 and 1741 of the Civil Code, declaring that contracts within the statute of frauds are invalid unless they or some note or memorandum of them “be in writing and subscribed by the party to he charged or by his agent,” the “party to be charged” does not mean only the vendor, nor only the vendee, but means either of them who may he charged in court with the performance of the obligation.</p> <p>Id.—Signature by Vendee Defendant Heoessary.—Under these statu-" tory requirements, when an effort is made to charge the vendee, the signature of vendor plaintiff to the contract is not sufficient, but the signature of the defendant vendee is absolutely essential, saving in the exceptional class of cases where the conduct of the vendee has amounted to-such a performance or part performance of the contract as to relieve the contract from the necessity of his signature.</p> <p>Id.—Lack of Mutuality of Bemedy—Commencement of Action by Party Hot Signing.—Such interpretation of the statute does not render the contract liable to the objection of lack of mutuality of remedy. In equity, and under section 3388 of the Civil Code, the requirement of mutuality of remedy is satisfied when the non-signing plaintiff enters suit, since by the very bringing of Ms action he binds himself to abide by the decree of the court, and so empowers the court to decree specific performance against him.</p> <p>Pleading—Objection to Form of Contract May be Taken by Demurrer.—Where it appears upon the face of the complaint that the agreement sued upon is within the statute of frauds, and fails to comply with the requirements thereof, advantage of such defect may be taken by demurrer.</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>Edwin H. Lamme, Puterbaugh & Puterbaugh, and H. E. Doolittle, for Appellants.</p>

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

<p>Contract of Copartnership—Action fob Breach of—Representation of Partner.—Any breach of a contract of copartnership creates a cause of action in favor of the copartner who is injured, and not in favor of one whom such partner may have employed as a representative in the business.</p> <p>Id.—Pleading—False Representations—Bill of Sale to Daughter of Plaintiff.—A complaint, which alleges in effect that the plaintiff, through the false representations of the defendants, was induced to and did purchase a half interest in a dairy for the benefit of his daughter, causing the bill of sale to be executed in her favor and delivered to her, and which seeks damages for the amount of the consideration so paid, fails to state a cause of action, notwithstanding an averment that neither the daughter nor the plaintiff received anything for the consideration, where there is no allegation either that the daughter was not in a position to obtain a portion of the property, that she was not satisfied with such title as she had, nor that she was willing to surrender the bill of sale, and rescind the contract so far as she was concerned.</p>

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

<p>Husband and Wipe-—Deed to Both as Grantees—Presumption as to Wipe’s Separate Property.—Since the amendment of March 19, 1889, to section 164 of the Civil Code, it is presumed, from “the • fact that both husband and wife were named as grantees in a deed, that the wife took an undivided half interest in the land conveyed as her separate property.</p> <p>Id.—Purchase with Community Funds—Presumption op Gift.— Where the property so acquired was purchased with community funds, it is necessary, in order to make any portion of it her separate property, that it should have been given to her by her husband. Such a gift will be presumed, under section 164 of the Civil Code, where a gift is essential to the theory that the property is the separate property of the wife. This presumption is only a prima facie one, except in so far as purchasers and encumbrancers in good faith and for a valuable consideration are concerned.</p> <p>Id.—Evidence to Rebut Presumption—Finding—Appeal.—In a controversy between the' husband and the legal representative of the wife, the presumption may be controverted by other evidence, direct or indirect, and it is only where it is not so controverted that the court or jury is bound to find according to the presumption. Whether or not it is so controverted is a question of fact for the trial court, ' and its conclusion is conclusive upon an appellate court unless it ■ be manifestly without sufficient support in the evidence.</p> <p>Id.—Direction of Husband to Make Deed to Wife—Intent to Make Gift.—The mere fact that, in the purchase of real property with community funds, the husband directed that the deed should run to the wife as grantee, does not necessarily compel the conclusion that a gift to the wife was intended. Other facts and circumstances may so tend to show another reason than the desire and intent to make a gift, as to furnish ample warrant for a conclusion that no gift was intended, and, therefore, that there has been no executed gift.</p> <p>Id.—Intent to Vest Title in Wife as Separate Property—Inference " of Intent—Evidence.—Where a husband purchases property with community funds, and directs the conveyance to be made to his wife, with the intent to make it her separate property, the deed will operate to vest the property in her as her separate estate. The “intent” • to make it her separate property, is a material factor in such a case, and while such intent may, and possibly must, be inferred where there is no other evidence than that showing the mere direction by the husband, it may also be shown not to have existed by any competent evidence. In the present ease the evidence is held sufficient to sustain the finding that the husband did not intend to make a gift to his wife.</p> <p>Id.—Husband mat Testiet as to Intent.—In a controversy between a husband and the personal representative of the wife, involving the question of the legal effect of such a conveyance, the husband may testify that he never intended to make a gift of the property or any interest therein to his wife.</p> <p>Id.—Conclusion oe Witness—Immaterial Question.—In such a controversy, a question asked the husband, “Did you give the property or any portion thereof to your wife?” is improper as calling for the mere conclusion and opinion of the witness. Error in permitting such question to be answered in the negative is rendered harmless, in view of his other evidence that he never intended to make a gift.</p>

<p>Vendor and Vendee—Contract for Sale of Land in San Francisco— Destruction of Public Records by Fire—-Title Fairly Deducible of Record.—Where a contract of sale relating to real property in San Francisco made prior to the fire of April 18-20, 1906, the time fixed for the performance of which had not arrived at the time of said fire, was such as to entitle the' vendee to a title “fairly dedueible of record,” the vendee cannot be required to take such property in view of the destruction of the official records. The destruction of such record rendered the title defective within the meaning of such contract, and in determining the vendee’s rights consideration can only be given to the title as- it existed at the time fixed for the performance of the contract and the delivery of the conveyance.</p> <p>Id.—Recovery' by Vendee of Deposit.—In such case, the vendee is entitled to recover from the vendor the portion of the consideration paid at the time of the execution of the contract, where the agreement provides for such return if the title is found to be defective.</p> <p>Id.—-Agreement for Perfect Title.—Where the provisions of a contract for the sale of real estate are such as to call for a “perfect title,” the purchaser is entitled to a title free from reasonable doubt and fairly deducible of record.</p> <p>Id.—Provisions Equivalent to Agreement for Perfect Title.—Provisions in such a contract calling for a “valid title,” for a title that was not “defective,” and for a “perfected” title in the event that on examination the title was found to be defective, are equivalent to a provision calling for a “perfect title,” and when read in connection with a provision for “examination of the title,” will be construed as calling for “a good title by the record.”</p> <p>Id.—Notice of Rejection—Title not Fairly Deducible of Record.— A notice from the vendee to the vendor, given after the fire of April, 1906, rejecting the title for the reason “that there is no official record in the city and county of San Francisco showing that you are the owner in fee of said property or any part thereof, and nothing to show that the record title to the same' is vested in you,” is a sufficient notice that the rejection was made for the reason that the vendor did not have a title fairly deducible of record.</p> <p>Id.—Action to Recover Deposit against Vendor and Agent—Judgment against Vendor—Immaterial Variance.—In an action by the vendee to recover the deposit made at the time of the execution of the contract of sale, a judgment rendered in favor of the vendee against the vendor after trial upon the merits will not be reversed because the court improperly overruled a demurrer to the complaint on the ground of the misjoinder of the agent of the vendor as one of the parties defendant.</p> <p>Id.—Defendants Jointly Charged—Form of Judgment.—In this state, judgment may be given against such of several defendants jointly charged, as are shown to be liable, and in favor of the others who are not shown to be liable, subject perhaps to the qualification that the defendants held liable are entitled to be protected against any material variance between the pleadings and the proof.</p> <p>Id.—Immaterial Variance in Evidence—In such .an action, there is no material variance between a complaint alleging a joint liability by two “defendants” for the deposit, and evidence showing that as to one of the defendants the deposit was received by it solely as agent of the vendor.</p> <p>Id.—Seasonable Notice of Defect in Title.—Where the contract was entered into on April 11, 1906, and required the vendor to return the deposit on demand therefor, if the title was not found valid or was defective and was not made valid or perfected within sixty days after notice to the vendor of the defect, provided the vendee gave seasonable notice of the defect and rejection on account thereof, a notice of the defect given on June 4, 1906,—each day from April 20, 1906, to June 3, 1906, having been made a holiday,—was seasonably given.</p> <p>Id.—Demand for Repayment of Deposit—Notification to Perfect Title.—Where such notice was an unqualified and absolute rejection of the title as it then stood, a further notification therein that the vendee would insist upon a return of the deposit if the vendor could not or did not perfect the title within sixty days, the time allowed the vendor by the contract within which to obviate any defect found, did not operate to waive any right the vendee had to recover the deposit, although it was obvious to both such parties that the defect was such that it could not be obviated within such time or any reasonable time thereafter.</p> <p>Id.—Interest Recoverable on Deposit.—The vendee is only entitled to recover interest on such deposit from the date on which the demand was made for its return. In the absence of any other evidence, the date of the commencement of the action for its recovery will be assumed to be the date of the demand for the return of the deposit.</p>

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

<p>Contract of Minor.—Sufficiency of Disaffirmance—Notice to One Partner.—A contract entered into by a minor over the age of eighteen with a firm of attorneys at law, is sufficiently disaffirmed by him, within the requirements of section 35 of the Civil Code, by a conversation had by him with one of the members of the firm a few days before attaining his majority, in which he stated in effect, that he “denied the contract and did not intend to fulfill it,” or “I disaffirm that contract.”</p> <p>Id.—Intent to Repudiate Contract.—A contract or conveyance of a minor may be avoided by him by any act or declaration disclosing an unequivocal intent to repudiate its binding force and effect, and it is questionable whether express notice of disaffirmance to the adverse party is required, provided the act or declaration of repudiation is in its nature public and unequivocal.</p> <p>Id.—Notice to Assignee Unnecessary.—Assuming that the party contracting with the minor is entitled to some form of notice of the minor’s election to disaffirm, such notice need only be given to the party with whom the contract was made, and need not be given to such party’s assignee.</p> <p>Id.—Assignment of Part Interest in Contract.—Where the contract made between the minor and the firm of attorneys provided for the assignment to such attorneys of a specified interest in property of the minor which they undertook to recover, one who subsequently advances money to such attorneys to enable them to perform the contract, and takes from them a written assignment of a portion of their interest thereunder, takes the interest so assigned subject to the possibility of the contract being repudiated by the minor by notice given to the parties with whom he contracted.</p> <p>Id.—Notice of Repudiation to One Partner..—One of the partners in such firm of attorneys is the agent of the partnership in the transaction of its business, and a notice given to him by the minor of his disaffirmance of the contract is a sufficient notice to the other partner.</p> <p>Id.—Consideration—Professional Services to Be Rendered—Payment of Reasonable Value of Services Performed.—Where the only consideration which was to pass to the minor under such contract was the performance of professional services by the attorneys, the minor is entitled to disaffirm the contract, upon paying to the attorneys such a sum of money as is the equivalent of the services rendered by them. Such equivalent is the reasonable value of the services rendered prior to the time of disaffirmance. In the present ease, the finding that the amount of money paid the attorneys was ample compensation is held to be supported by the evidence.</p> <p>Id.—Value of Attorneys’ Services—Expert Testimony Unnecessary.—While the testimony of experts is admissible to prove the value of attorneys’ services, it is not essential. The court or jury may' determine such values by their own experience and knowledge of the character of such services.</p> <p>Id.—Services Rendered after Repudiation.—Such attorneys were not entitled to payment for work done after receiving notice that the minor had repudiated the contract, whether the work was intended primarily for their own interests or for the benefit of the minor.</p>

estate of a deceased person, and from an order refusing a new trial. G. W. Norton, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Pringle & Pringle, Henry E. Monroe, and William S. Andrews, for Appellant.</p>

<p>Execution of Instrument by Corporation—Official Signatures and Seal—Prima Facie Evidence of Authorization.—A written instrument purporting to be a lease by a corporation, which is signed by the proper officers and had the corporate seal attached, is prima facie evidence that it was executed under the proper authority. The same is true of an instrument purporting to be an assent of the corporation to an assignment of the lease, which is so signed and sealed.</p> <p>Landlord and Tenant—Covenant Against Assignment—Breach of Covenant—Assignment not Void.—An assignment of a lease without the consent of the lessor, although a breach of a covenant not to assign without such consent, is not void, but passes the term, subject to the lessor’s option to forfeit the lease on account of the breach of the covenant.</p> <p>Id.—Estate for Years Is Personal Property—Assignment of.—The estate of a lessee of land, being one for years, is not real property, but is a chattel real, and is to be regarded as a part of the personal estate of the lessee, and its assignment is governed generally by the rules applicable to the sale of personal property.</p> <p>Id.—Present Transfer of Leasehold Interest—Passing of Title— Delivery of Possession.—The title of the lessee to the estate for years in the demised property passes to the assignee whenever the lessee and the assignee agree upon a present .unconditional transfer of the leasehold interest. A delivery of possession of the demised property is not essential to the consummation of the transfer or the consequent passing of title.</p> <p>Id.—Construction of Written Assignment.—The question whether by certain written instruments, duly executed and delivered, the parties agreed upon a present unconditional transfer of a leasehold estate is to be determined by the terms of such instruments.</p> <p>Id.—Words of Present Transfer—Occupancy Remaining in Assignor—Payment of Bent—Delivery of Possession.—Where the actual words of assignment used show an unequivocal intention to effect a present transfer of the leasehold interest, and the habendum and tenendum clause show an equally unambiguous intent, the instrument of assignment will be construed as a present transfer of the. leasehold interest, unless other portions of the instrument show a contrary intention. Such a contrary intention is not shown by a proviso in the assignment which in no way refers to the leasehold interest assigned, but merely gives the assignor the right to remain in the occupancy of the demised premises for a limited period, “pursuant to said lease, notwithstanding such assignment,” and imposes on him the obligation of paying the rent for such time, and then delivering up the possession of the premises to the assignee.</p> <p>Id.—Destruction of Demised Premises Before Delivery of Possession—Obligation to Pay Purchase Price—Delivery of Possession Excused—Condition Precedent.—Where the assignment operated as a present transfer of the leasehold interest, and by its terms the assignee agreed to pay the purchase price therefor on the future date on which the assignor undertook to deliver possession of the demised premises, the total destruction of such premises before the date for the delivery of possession without the fault of the assignor did not relieve the assignee of the obligation of paying the purchase price, even if it be assumed that the delivery of possession was a condition precedent to the payment of the purchase price. Under such circumstances, the performance by the assignor of the delivery of possession as a condition precedent to his right to recover the purchase price was excused.</p> <p>Ib.—Completed Sale—Bisk Accompanies the Title.—In the absence of a special agreement to the contrary in a contract of sale, the risk accompanies the title, and when a present unconditional sale is actually consummated and the title has passed, the property is thenceforth at the risk of the buyer, so far as accidental destruction is concerned, even though possession thereof has not been delivered.</p> <p>Id.—Pleading Completed Sale—Evidence of Execution and Delivery of Assignment.—The complaint in an action to recover the purchase price agreed to he paid for such leasehold interest, which alleges that on a certain date the “plaintiff sold, assigned and delivered” such interest, is sustained by evidence showing the execution and delivery by the plaintiff, on such date, and the acceptance by the defendant, of the assignment of the lease.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Myrick & Deering, Weldon & Held, James W. Scott, and Thomas, Pemberton & Thomas, for Appellant.</p>

<p>Slander—Allegation of Use of Specific Words—Sufficiency of Proof.—In an action for slander, where the defendant is charged with the speaking of certain specified slanderous words, it is sufficient to prove the substance of the precise words alleged. By this is meant, not that it is sufficient to show the speaking of other words which would produce an impression similar to that which the words alleged would produce, but that the words alleged, or enough of them to amount to a charge of the particular offense alleged to have been imputed, must be substantially proved.</p> <p>Id.—Charge of Entering House and Stealing—Insufficient Evidence.—An allegation of the specific slanderous words of the plaintiff that she “entered my house and stole some of my jewelry, and still has it,” is not sustained by the evidence of a witness who nowhere stated that the defendant told him that the plaintiff had “entered,” or “went into,” or “was in” her house at all, or told him that the plaintiff “stole” any of her jewelry. And this .is so, notwithstanding a further allegation “that in using the words alleged defendant meant and intended to charge the plaintiff with . the commission of a felony, to wit: burglary, and defendant was so understood by those in whose hearing she so spoke as above alleged.”</p> <p>Id.—Proof of Different Words—Basis for Mere Inference.—Where a recovery is sought for the speaking of certain specified slanderous words, the allegations of the complaint are not sustained by proof of different words which do no more than establish a basis for an inference that the defendant intended to make against the plaintiff a charge similar to that embodied in the words alleged.</p> <p>Id.—Evidence of Absence of Actual Malice—Privileged Communications.—In an action for slander it is proper to allow the defendant, both to show absence of actual malice for the purpose of avoiding exemplary damages, and under the .defense of privileged communications, to testify as to whether or not she was actuated in anything she had said or done by any wish or desire or design or purpose to injure the plaintiff. Such testimony is competent and relevant and not immaterial, although the jury or trial judge is not bound to believe it.</p> <p>Id.—Unprejudicial Rejection of Evidence.—The refusal to admit such testimony is without prejudice, if the defendant fully testified as to her reasons in going to the persons in whose presence the alleged slanderous words were uttered, and such testimony was utterly irreconcilable with the theory of the presence of any feeling of ill-will towards the plaintiff, or any desire to injure her.</p>

<p>Habeas Corpus—Criminal Law—Complaint in Inferior Court.—The question whether a complaint in a court of limited or inferior jurisdiction states facts sufficient to constitute a public offense may be determined on habeas corpus.</p>

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

<p>Municipal Corporations—Consolidation op Cities—Petition for Consolidation—Conclusiveness .op Finding of City Council—• Notice of Election.—A finding of a city council, that a petition for the consolidation of two municipal corporations was signed by a sufficient number of the qualified voters, as required by the act of March 11, 1909 (Stats. 1909, p. 282), is conclusive in a proceeding to compel the city clerk to give notice of an election to determine the question of consolidation, in the absence of a showing of conduct amounting to fraud on the part of the council.</p>

<p>Deed—Delivery to Third Person for Grantee after Death of Grantor—Delivery Must Be Absolute.—A valid transfer of a fee simple estate, subject to a life estate in the grantor, may be effected by means of a deed delivered by the grantor to a third person with instructions to deliver it to the grantee at the grantor’s death. It is the essential condition of the validity of such transfers that the delivery to the third person be absolute so that the deed is placed beyond the power of the grantor to recall or control it in any event.</p> <p>Id.—Instructions to Custodian—Construction of Written Instructions.—The test of an effective delivery in such cases is the absolute relinquishment of the right of recall by the grantor in his instructions to the person charged with the duty of making the delivery. Where such instructions are entirely in writing, the effect of the transaction depends upon its construction, and it is a pure question of law whether there was an absolute delivery or not.</p> <p>Id..—Instructions to Deliver on Condition of not Returning from Hospital.—Where a grantor, about to undergo an operation, delivers deeds to a third person, with written instructions to deliver them only “in case of my not returning from the hospital where I am going for an operation,” the delivery is not absolute, it being implied that if he did return the deeds are to be at his disposal. That such is the proper construction of the instruction is corroborated by a further direction -to the custodian to lock them in his safe “and in case I should die to immediately hand them to the parties” named as grantees.</p> <p>Id.—Grantor’s Intent to Benefit Grantees.—The fact that it appeared from the testimony that the grantor wished the persons named as grantees in the deeds to have the property therein described, that his relations to them and his condition and circumstances made them the reasonable and meritorious objects of his bounty, and that he died believing the deeds delivered to the custodian would be sufficient to accomplish his purpose, does not cure the insufficiency of the delivery.</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>Negligence—Street Bailroad—Collision between Cars of Different Companies—Presumption of Negligence.—Where a passenger on the car of one street-railway company is injured as the result of a collision with a car of another company, no presumption of negligence on the part of such other company arises from the mere fact of the collision.</p> <p>Id.—Liability for Joint Act of Negligence.—Where the negligence of the managers of both vehicles contributed to the injury, the party injured may recover from the proprietors of either or both.</p> <p>Id.—Negligence when Question of Fact.—Negligence is a question of fact for the jury, even when there is no conflict in the evidence, if different conclusions upon the subject can be rationally drawn from the evidence.</p> <p>Id.—Negligence of Motorman in Approaching Crossing—Failure to Slow Down of Car Having Bight of Way.—It cannot be held, as a matter of law, that a motorman having under his absolute control an electric ear of great power and weight, acted as an ordinarily prudent man and with the exercise of ordinary care, in approaching the intersecting track of another street-railroad, while a ear of such other road was approaching the intersection on a level track and was within a few feet thereof and in plain sight, in such manner and at such a rate of speed that he could not stop his car in time to avoid a collision in the event that the other car continued to advance upon its track to the intersection; and this is so, even though he knew that under an established custom of the two roads, his ear had the right of way and the other ear should stop and allow him to pass, and even although the other car had slowed down.</p> <p>Id.—Sufficient Evidence of Negligence—-Passenger on Other Oar.— Evidence of such conduct on the part of the motorman of the car having the right of way is a sufficient showing of negligence to sustain a verdict in favor of a passenger on the other car who was injured as the result of a collision between the ears.</p> <p>Id.—Amount of Damages.—Kimic v. San Jose-Los Gatos Interwrban My Co., ante, p. 273, approved, to the effect that the verdict in favor of the plaintiff is not excessive.</p> <p>Id.—Instruction—Damages for Possible or Probable Injuries.—In an action to recover damages for personal injuries, where the evidence is conflicting as to whether the plaintiff was then afflicted with a certain disease by reason of the injuries received, and, if so as to the permanency of such condition, an instruction to the effect that the jury were the sole judges as to the extent and severity of the injuries, the then condition of the plaintiff in the respect specified and the probability of its permanency, and that in all these matters the burden was on the plaintiff to establish his ease by a preponderance of the evidence, which contains no intimation that damages might be awarded for future losses which were only possible or probable and not reasonably certain to ensue, is not erroneous.</p> <p>Id.—Earning Capacity of Plaintiff—Evidence.—In such an action, after the plaintiff had testified without objection that his time and business and earning capacity before the accident was a certain amount a day, and that he had not been able to attend to business since the accident, it is not a prejudicial error to permit him to answer in the negative to a question whether since the accident he had been able to earn that amount in his business.</p> <p>Id.—Evidence of Orders of Company to Motorman—Cross-Examination.—In an action against two railroad companies to recover damages for personal injuries occasioned to a passenger as the result of a collision between their respective cars, after a motorman of the car other than the one on which the plaintiff was riding, who was called by the plaintiff as a witness, had testified fully -on direct examination as to the custom between the two companies under which his employer’s cars had the right of way, evidence of the orders he may have received, from his company respecting the right of way at the crossing is incompetent and not proper cross-examination, and the sustaining of an objection to such evidence, interposed by the co-defendant alone, is proper.</p> <p>Id.—Court May Exclude Incompetent Evidence.—Even in the absence of any objection, the court has the right to exclude proposed evidence which is incompetent and inadmissible for any purpose.</p> <p>Id.—Bes Gesm—Statements Made by Motorman After Accident. —Where such motorman, on his direct examination, had testified that some seven or eight minutes after the collision he “spoke” to the man on the other ear, and that he had not discussed the accident with any one since its occurrence, and on cross-examination, admitted that immediately after the accident he had discussed the matter with the motorman of the other car, it is not proper, on cross-examination, to question him as to the substance of such conversation, if the object of the proposed evidence was not intended for purposes of impeachment. Such conversation was not part of the res gestae, and was incompetent and inadmissible as against the co-defendant.</p> <p>Id.—Statement as to Cause of Accident.—A statement by the motorman of the ear on which the plaintiff was a passenger as to the cause of the accident, made about seven minutes after its occurrence, is hearsay and not part of the res gestae, and not admissible against his employer.</p> <p>Id.—Graduate Nurse—Expert—Evidence as to Weakness of Patient.—A graduate nurse, who has been constantly engaged in the calling of a professional nurse for five years, may testify as an expert that the reason why he gave certain stimulants to his patient was because the patient was weak.</p> <p>Id.—Evidence as to Conversation with Plaintiff and Third Person—Cross-Examination—Immaterial Evidence. — Such nurse, on direct examination, testified from memory to the condition of the plaintiff while he attended him, and on cross-examination by the appellant company he testified that he had burned his charts, which he always did unless the patient wanted them, and that when he left the plaintiff’s home he asked him if he wanted the charts, and that the plaintiff said he would not need them as there would be no lawsuit. On redirect examination by plaintiff, he testified without objection as to the remainder of the conversation between himself and the plaintiff, saying that the plaintiff told him therein that the reason there would be no lawsuit was that the vice-president of the co-defendant had promised to do the right thing by him and give him everything he wanted, and he thought he would do so. Ho further testified that such vice-president had called on the plaintiff while he was nursing him. On reeross-examination by the appellant he was asked if he, the witness, was present when the original conversation between the plaintiff and such vice-president took place. Selct, that the sustaining of an objection to such question was not erroneous; that the substance of such conversation between the plaintiff and such vice-president was not competent except in so far as it might tend to affect the weight of the evidence of the witness as to his reason for destroying the charts, and that as bearing on that matter, its exclusion was not prejudicial.</p> <p>Id.—Medical Evidence—Shamming by Plaintiff..—Where a medical witness for the plaintiff had testified that he had no opinion to offer as to whether the plaintiff was now shamming any symptoms, it is not error to permit the plaintiff, in explanation of such testimony, to elicit further evidence from the witness that he had no intention to intimate that the witness was shamming, but that he meant that from a medical standpoint it was difficult and probably impossible to say whether or not he was shamming.</p> <p>Id.—Permanency of Injury.—It was permissible for a medical witness for the plaintiff to testify that in the case of a man of sixty-two years of age, which was the age of the plaintiff, the chances were that the injury complained of would be permanent if a muscle or a blood vessel were ruptured, or if there were an extravasation of blood amounting to a quart, as to all of which there was evidence.</p> <p>Id.—Erroneous Evidence of Damages Cured by Eemission from Verdict—New Trial.—The admission of indefinite evidence as to the amount of the medical expenses incurred by the plaintiff by reason of the injuries, is cured, if the plaintiff remits from the verdict the amount of such expenses, as a condition to the denial of a new trial.</p> <p>Id.-—New Trial—Affidavits on Information and Belief—Misconduct of Jury.—An affidavit in support of a motion for a new trial on the ground of the misconduct of the jury, which is made solely on information and belief, is unavailing.</p> <p>Id.—Affidavits of Jurors—Impeachment of Verdict.—An affidavit of a juror cannot be received to show misconduct of the jury, in order to impeach their verdict, except upon the single ground that the verdict was the result of a resort to the determination of chance. The same rule is applicable to the affidavits of third persons, detailing subsequent conversations with jurors tending to impeach their verdict.</p> <p>Id.—Prejudicial Influence of Knowledge Acquired by Misconduct. —Jurors cannot be heard to deny the prejudicial influence on their minds of knowledge acquired by misconduct. Affidavits of jurors may be used to disprove or explain the alleged misconduct, but cannot, admitting the misconduct, be used to show that the verdict was not influenced thereby.</p> <p>Id.—Immaterial Misconduct of Jurors.—A new trial will not be granted on account of misconduct of the jury, where such misconduct was of such trifling nature that it could not in the nature of things have been prejudicial to the moving party, and where the fairness of the trial has been in no way affected by such impropriety, the verdict will not be disturbed.</p> <p>Id.—Collision of Street Cars at Crossing—Unauthorized Inspection of Brakes by Jury.—In an action involving the question of the liability of two street railroads for a collision of their respective cars at a crossing, in which no issue was involved respecting the sufficiency of the mechanism of the brake of the appellant’s car, it is not misconduct warranting a new trial for the jury, while on their way to visit the scene of the accident, under an order of court limiting their inspection to the crossing, to make a cursory examination of the brake mechanism of the appellant’s car on which they were riding.</p> <p>Id.—Bemark by Juror During Inspection—Cause of Accident— Non-Assumption of Prejudice.—In such an action, a casual remark made by one of the jurors during the inspection at the time a car of the appellant was approaching the crossing, to the effect that “that is the way the plaintiff was injured, if the tracks were wet he could not have stopped his car before said crossing,” although reprehensible and in violation of the instructions of the court, cannot be assumed to have influenced the other jurors who may have heard it; and the trial court was warranted in assuming, so far as concerned the juror making the statement, that it did not necessarily show a prejudiced mind, or a desire to influence the other jurors, or to affect the juror’s mind in reaching a verdict.</p>

<p>Adverse Possession Under Color of Title—Entry Under Deed and Decree.—One entering into the possession of a tract of land under a deed and decree of distribution thereof claims under color of title.</p> <p>Id.—Occupation and Cultivation of Part of Tract.—The actual occupation and cultivation of a considerable part of the tract so claimed is sufficient, under section 322 of the Code of Civil Procedure, to constitute adverse possession of the entire tract up to the limits described in the deed and decree.</p> <p>Id.—Effect of Adverse Possession on Title.—Adverse possession, as defined in the Code of Civil Procedure, if continued for a period exceeding five years, is not only sufficient to bar a claimant under a legal title, but it is also sufficient to create a title. Such possession so continued vests in the possessor a title in fee simple against all other claimants.</p> <p>Id.—Payment of Taxes—Redemption from Tax-Sale.—Where a tax on the land adversely possessed is allowed to become delinquent and a sale has taken place, and, so far as appears, a redemption has been made thereof in good faith by the adverse possessor or his successor in interest while in undisturbed possession, such redemption operates as a payment of the tax, within the terms of the statute requiring the adverse possessor to pay the taxes upon the property claimed.</p> <p>Id.—Same Land Taxed to Different Persons—Payment by Adverse Possessor.—Where the person in the adverse possession of the land had it assessed in his own name, and paid the taxes levied thereon, he fully complied with the conditions of the statute requiring payment of taxes by the adverse possessor. And it is immaterial that the land was alst assessed to the owner of the legal title and the taxes paid by Mm.</p> <p>Mistaken Description in Deed—Proof of Direct Evidence Unnecessary.—Direct evidence of the manner in which a mistaken description became incorporated in a deed is not an indispensable requisite to a reformation thereof. If the circumstances proven are sufficient to induce the conviction in the mind of a reasonable man that there was a mutual mistake in drawing the deed, and to show clearly in what such mistake consisted, a reformation may he decreed although no witness testifies to personal knowledge of how it occurred.</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>Divorce—Pleading—Allegation op Desertion.—A complaint in an action for divorce on the ground of desertion sufficiently alleges a cause of action by the averment that the defendant, “on or about the first day of July, A. D. 1904, disregarding the solemnity of his marriage vow, willfully and without cause, deserted and abandoned plaintiff, and has continued to live separate and apart from plaintiff, against her will, and without her consent.” Properly construed, the allegation means that the desertion, commencing from the date specified, continued to the time of the filing of the complaint. An allegation that the desertion lasted longer than the reasonable period mentioned in section 124 of the Civil Code was unnecessary.</p> <p>Id.—Pleading Abandonment.—It was not necessary that such complaint should contain an additional averment that in the abandonment of the plaintiff the defendant remained away from her without sufficient cause, because the words “willfully and without cause” in the allegation, clearly modify the words “has continued to live” as well as the verbs “deserted” and “abandoned.”</p> <p>Id.—Cruelty—Wife Living Apart from Husband—Desertion by Husband.-—Where the wife, by reason of the husband’s cruelty, lives apart from him, it is not necessary, in order to make his conduct desertion on his part, that he should entertain, in connection with his acts of cruelty, any settled purpose to drive her from him. It is enough if such is the natural consequence of his acts.</p> <p>Id.—Pleading Extreme Cruelty—Acts of Intemperance,.—In pleading a cause of action for a divorce on the ground of extreme cruelty, allegations of excessive drinking of liquors may be coupled with other acts which, in themselves, amount to extreme cruelty.</p> <p>Id.—Testimony of Wife—Corroboration.—The testimony of the wife that her husband frequently spoke harshly to her and that she believed her life to be in danger, is sufficiently corroborated by the testimony of another witness to the same effect, notwithstanding the latter further testified that he had never personally seen the husband in a mood to hurt any one.</p> <p>Id.—Immaterial Allegation in Complaint—Omission to Find.—An allegation in the complaint in such action, to the effect that the defendant “is a highly nervous and excitable man,” is immaterial, and a finding thereon is unnecessary to support a judgment for the plaintiff.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gibson, Trask, Dunn & Crutcher, and Edward E. Bacon, for Appellants.</p>

<p>Judgment by Default—Refusal to Vacate—Conflict of Evidence. —When the evidence is conflicting as to the alleged fact upon which alone a defendant claimed the right to be relieved from a default judgment, the decision of the trial court refusing to vacate the judgment is conclusive on appeal.</p> <p>Id.—Amendment After Default—Service on Defaulting Defendant.—Where, after the default of a defendant has been entered, a complaint is amended in matter of substance as distinguished from mere matter of form, the amendment opens the default, and unless the amended pleading be served on the defaulting defendant, no judgment can properly be entered on the default.</p> <p>Id.—Amendment After Judgment by Default—Service of Amendment Unnecessary.—Where, however, in an action against several defendants, a judgment is entered against a defaulting defendant before any amendment was made, there being at the time of such judgment a good and sufficient complaint on file with a copy of which he had been duly served and which constituted the basis of the judgment, the action, at the time of the amendment, had been finally disposed of as to him, and it was unnecessary to serve the amended complaint on him. Under such circumstances, the defaulting defendant could not be “affected” by the subsequent amendment, within the meaning of section 432 of the Code of Civil Procedure, nor was he longer an “adverse party” within the meaning of sections 465 and 472 of that code.</p> <p>Id.—Defendants Charged as Joint Tort-Feasors—Default against One Defendant—Continuance of Action against Other.—In an action to recover damages for personal injuries against two defendants who are jointly charged to have been guilty of the negligence alleged to have been the cause of the injuries, the court has power, under sections 579 and 585 of the Code of Civil Procedure, to render a several judgment by default against one of the defendants, and to allow the action to proceed against the other.</p> <p>Id.—Judgment against Other Defendant—Satisfaction—Judgment not A- Bar.—It is no objection to such practice, that the court might proceed to the trial of the case as against the remaining defendant, and enter up a new and separate, and perhaps a different, judgment from the one entered against the defaulting defendant. No bar arises as to any of the joint wrongdoers until the injured party has received satisfaction, or what in law is deemed its equivalent, and a judgment against one wrongdoer which remains wholly unsatisfied is not such satisfaction.</p>

<p>Criminal Law—Uttering Check With Intent to Defraud—Variance—Corporate Character of Payee.—There is no material variance on the face of an information for uttering a cheek with intent to defraud, between an allegation that the cheek was made and uttered “with intent to defraud Lesser Bros. Co. (a corporation),” and a copy of the cheek set forth in hæe verba, which showed that it was payable to the order of “Lesser Bros. Co.,” with no mention of its corporate character, although there was no allegation elsewhere that the “Lesser Bros. Co.” mentioned in the check is the corporation before mentioned.</p> <p>Id.—Sufficiency of Information—Special Demurrer.—Such information sufficiently alleges the corporate character of the party intended to be defrauded, in the absence of a special objection on that ground in the demurrer.</p> <p>Id.—Uncertainty—Person to Whom Check was Delivered.—Any uncertainty in such, information, due to its failure to specify the person to whom the cheek was delivered or attempted to be delivered, cannot be taken advantage of on an appeal from a judgment of conviction, in the absence of a demurrer specifically raising the question of such uncertainty, especially where the demurrer did specifically state other matters as to which uncertainty was claimed.</p> <p>Id.—Construction of Information.—Such information stated a public offense. The allegation that the defendant “uttered” the check, taken in connection with its other allegations, means that with intent to defraud Lesser Bros. Co., a corporation, he asserted by words or actions to another that the cheek was good for what it called for, and attempted to pass the same as such a valid check.</p> <p>Id.—Continuance of Trial—Indefinite Absence of Counsel.—The trial court is not required to indefinitely .wait for the return of defendant’s counsel who is otherwise engaged before proceeding with the trial of a criminal ease.</p> <p>Id.—Denial of Continuance—Discretion of Trial Court—Defendant Appearing for Himself.—Where at the time such case is called for trial, the defendant’s counsel is engaged in the trial of another case outside of the state, it is not an abuse of discretion for the court to proceed with the trial, at which the defendant conducted his own defense, if the defendant made no request for a postponement in order to procure other counsel, and declined to avail himself of the offer of the court to appoint counsel for him, and gave no intimation that he was not ready to proceed with the trial in any other respect, except that he wished to get a deposition from a witness in the East, whose whereabouts was absolutely unknown, and so far as appeared never would be ascertained.</p> <p>Id.—Deposition of Witness whose Whereabouts Is Unknown.—It is not an abuse of discretion to refuse to continue the trial of a criminal case to enable the defendant to obtain the deposition of an alleged witness as to whose whereabouts nobody had any knowledge, and concerning whom there was no apparent probability that any knowledge would ever be obtained.</p> <p>Id.—Knowledge of Corporate Character of Patee.—It is immaterial whether the defendant, at the time he drew the check, knew that the party he intended to defraud was a corporation.</p> <p>Id.—Presumption of Regularity of Trial Court’s Action—Notification as to Challenge of Jurors.—Where an appellant alleges error it is incumbent upon him to show it affirmatively, and the appellate court will not presume that a trial judge failed to do what the law required him to do, but, in the absence of a showing to the contrary, will presume that he did what he was directed by statute to do. This rule is applicable to the trial of a criminal case, in which the defendant appeared in his own behalf, and in accordance therewith it will be presumed, in the absence of any showing on the subject either in the minutes of the court or the bill of exceptions, that the trial court complied with the provisions of section 1066 of the Penal Code, and before a juror was called, notified the defendant that if-he intended to challenge an individual juror he must do so when the juror appears and before he is sworn.</p> <p>Id.-—Minutes of Court—Pailube to Show Action of Tbial Coubt.— There is no statutory requirement making it essential that the matter covered by section 1066 of the Penal Code should be entered in the minutes of the court, and in the absence of such requirement, the failure of the minutes to indicate action by the trial court does not afford any evidence of the failure of the court to comply with the requirements of the section.</p> <p>Id.—Section 476a of Penal Code Is Constitutional—Special Legislation.—Section 476a of the Penal Code is not unconstitutional in that it is special legislation. It applies to the whole class of persons who draw and utter checks or drafts with intent to defraud, on a bank, banker, or depositary for the payment of money, and a defendant, guilty of its violation, cannot complain because persons who draw drafts or checks upon persons other than those named are not made subject to its provisions.</p>

<p>Chattel Mortgage of Growing Crop—Possession Taken by Sheriff under Illegal Attachment—Foreclosure by Mortgagee—Pleading.—A mortgagee, under a chattel mortgage given upon a growing crop, which after it was gathered and while on the ground was taken into his possession by the sheriff under an illegal attachment proceeding against the mortgagor, may maintain an action to enforce the lien of the mortgage on the property so taken. The complaint in such action which seeks a mere foreclosure and does not seek to recover from the sheriff as for a conversion, does not state two causes of action.</p> <p>Id.—Tortious ¡Removal of Crop.—The tortious removal of the growing crop from the premises did not impair the mortgagee’s right of foreclosure.</p> <p>Id.—Attachment Proceedings Must be Strictly Followed.—Proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed or no rights will be acquired thereon.</p> <p>Id.—Attachment of Mortgaged Personal Property—Payment or Tender of Mortgage Debt Essential to Lien,—Under sections 2968 and 2969 of the Civil Code, personal property subject to a valid recorded chattel mortgage, cannot be taken under attachment at the instance of a creditor of the mortgagor, without payment or tender to the mortgagee of the amount of the mortgage debt and interest, or deposit of the amount thereof with the county clerk or treasurer, payable to the order of the mortgagee. An. attempted attachment, without such payment, tender, or deposit, does no't create any lien in favor of the attaching creditor, and is, as against the mortgagee, a conversion of the property upon the part of the sheriff.</p> <p>Id.—Signing of Note by Surety after Execution of Mortgage.—Neither the lien of a mortgage, nor the right of the mortgagee in seeking relief by foreclosure to proceed only against the maker of the mortgage note and the property covered by the mortgage, is affected or impaired by the signing of the note by a surety, without consideration, after the execution of the mortgage.</p>

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

<p>Public Officers—Expenses in Determining Elections of Members of Legislature—Payment from Contingent Fund.—Any expense lawfully incurred by either house of the legislature, in the exercise of the power conferred on them by section 7 of article IV of the constitution of judging of the qualifications, elections, and return of its members, is a legitimate charge to be paid out of its contingent fund.</p> <p>Id.—Contest not Prosecuted before House—Expenses Cannot be Reimbursed.—The assembly has no authority to reimburse one of its members who has paid witnesses’ and attorneys’ fees, costs, and personal expenses, in the preparation for a contest which was not prosecuted before it, but which was merely dismissed by it on the ground that it had not been inaugurated within the period prescribed by section 274 of the Political Code. In such a case, there is no contractual relation which imposes a legal liability on the assembly to pay such charges, and any attempt to do so must fail because of the constitutional prohibition against gifts of public funds.</p> <p>Id.—No Implied Duty for Reimbursement.—No implied duty for reimbursement of a contestee arises from the constitution, or from the statutes that merely prescribe the procedure in election contests.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County and from an order refusing a new trial. Albert G. Burnett, Judge presiding at trial. Thomas C. Denny, Judge denying motion for new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Jurisdiction of Courts—Constitutional Limitations.—Where the judicial power of courts, either original or appellate, is fixed by constitutional provisions, the legislature cannot either limit or extend that jurisdiction.</p> <p>Id.—Appellate Jurisdiction of Superior Court—Inferior Courts.—Section 5 of article VI of the constitution expressly limits the appellate jurisdiction of the superior courts, as to the character of the tribunals whose proceedings may be reviewed, to eases of appeals from “justices” or “inferior courts” only, and the legislature has no power to enlarge the tribunals from which appeals to the superior court may be taken.</p> <p>Id.—Board of Supervisors—Judicial Functions.—The fact that a board of supervisors may exercise judicial functions does not make it an inferior court within the meaning of that term as employed in the constitution relative to the appellate jurisdiction of the superior courts.</p> <p>Id.—Inferior Courts Defined.—The term “inferior courts” has a well-recognized meaning. They are courts established for the administration of justice, charged with the exercise of judicial power as a substantive duty, but with limited jurisdiction in that regard, and that jurisdiction usually confined to the limits of the city or town for which they are mainly created. Police courts, municipal courts, and recorders’ courts are examples of such courts, and they are the character of courts to which the appellate jurisdiction of the superior court is limited.</p> <p>Id.—Order of Supervisors Establishing Irrigation District—Appeal from to Superior Court.—Section 4 of the act of 1897 for. the formation of irrigation districts (Stats. 1897, p. 254), providing for an appeal directly to the superior court of the county from an order of the board of supervisors granting an application for the formation of such a district, is unconstitutional and void.</p>

<p>Reclamation Districts—Legislative Acts.—The creation of reclamation districts and the setting off of lands and the delimiting of the boundaries of such districts are legislative acts.</p> <p>Id.—Control of Courts over Legislative Acts of Inferior Boards.—There is a broad distinction to be recognized between the control by courts over the general legislature acting within its powers, and the control which may be exercised over inferior boards and tribunals charged with the performance of an act enjoined by the legislature.</p> <p>Id.—Mandamus—Abuse of Discretion;—Enforcement of Particular Action.—While it is a general rule that mandamus will not lie to control the discretion of a court or officer, so as to force the exercise of discretion in a particular manner, it will lie to correct abuses of discretion, and to force a particular action by the inferior tribunal or officer, when the law clearly establishes the petitioner’s right to such action.</p> <p>Id.—Right to Establishment of Independent District—Mandamus Lies to Enforce Right.—Landowners who seek to have their lands in a particular reclamation district set off and erected into an independent district, and who have taken all the steps and proceedings to that end required by sections 3446, 3472, 3481, et seq. of the Political Code, and upon the hearing of their petition established all of the facts required by law by uncontradicted, material, sufficient, and competent evidence, may maintain a writ of mandate against the board of supervisors, upon their refusal to make an order establishing such independent district, to compel them to make such order. Upon such a showing being made, the petitioners are entitled to have their lands set off into an independent district, and the board of supervisors are without power to arbitrarily deny it.</p> <p>Id.—Hearing on Mandamus—Evidence to be Adduced.—On the hearing of the mandamus proceeding by the superior court, the facts asserted to have been proved before the board of supervisors by good and sufficient evidence without conflict are not to be tried de novo. The hearing should be had upon the same evidence presented to the board of supervisors, and if such evidence was uncontradicted, competent, and sufficient to prove satisfactorily all matters required by the Political Code, it will become the duty of the superior court to issue its mandate accordingly.</p> <p>Id.—Appeal to Superior Court from Order of Board—Constitutional Law.—The provision of the act of 1893 (Stats. 1893, p. 174), purporting to provide for an appeal to the superior court from the order of the hoard of supervisors, is unconstitutional and unnecessary.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John D. Pope, George P. Adams, and Gurney E. Newlin, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and Malcolm C. Glenn, Deputy Attorney-General, for Appellant.</p> <p>G. Russell Lukens, A. A. De Ligne, and Hiram W. Johnson, for Respondents.</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>Guardian and Ward—Conversion of Fund Belonging to Two Wards —Separate Claims against Guardian.—Where the guardian of two minor wards converts to his own use a fund, a respective half of which belonged to each of the wards in severalty, each of them acquires a separate claim against the guardian for his portion of the fund so converted.</p> <p>Id.—Death of Guardian—Claim against Estate.—After the death of the guardian, the presentation of a claim against his estate for'the money so converted, in which the claimants designated themselves as “joint claimants,” but which otherwise contained a true statement of their ownership of the fund, did not have the effect to make their claim against the guardian joint instead of several.</p> <p>Id.—Receipt of Fund by Guardian—Single Act of Conversion.—The fact that the guardian received the fund as a gross amount in settlement of claims in favor of his wards as legatees under a will, without segregation of the amounts severally due them, and commingled the entire fund with moneys of his own, did not make their claim against the guardian joint instead of several.</p> <p>Id.—Death of Ward—Personal Representative Must Enforce Claim.—Upon the death of a ward, his personal representative, and not his heirs, alone can sue the guardian or his estate to recover property belonging to the ward.</p> <p>Id.—Laches—Statute of Limitations.—The solution of questions arising by reason of the plea of the statute of limitations or of laches, in eases where a long period of time has intervened since the origin of the cause of action, depends upon the circumstances peculiar to each particular case.</p> <p>Id.—Actual and Constructive Fraud.—In the application of the doctrine of laches, a distinction is made between cases of constructive fraud and those where actual fraud is charged, and greater liberality in respect to lapse of time in the latter class is allowed than in the former.</p> <p>Id.—Pleading—Information or Knowledge Putting on Inquiry— Constructive Notice.—In cases where actual malversation is imputed and directly charged in the complaint, if the plaintiff seeking to avoid the operation of the statute of limitations or to excuse the delay which would, in the absence of a sufficient excuse, amount to such laches as would defeat his right of action, possessed information or knowledge of extraneous facts or circumstances, which, although not directly tending to show the existence of a prior conflicting right, are sufficient to put him, as a prudent person, upon inquiry, be is then charged with constructive notice of all that he might have learned by an inquiry prosecuted with reasonable diligence.</p> <p>Id.—Prosecution of Due Inquiry.—In every such case, the first question is whether the facts of which the party has information are sufficient to put him upon inquiry, so as to raise the prima facie presumption that he has obtained information of what he might have learned, and the further question is then presented, whether he has made a due inquiry without discovering the truth.</p> <p>Id.—Conversion of Fund by Guardian—Delay of Forty-Five Years— Laches not Shown.—In this action, which was one against the estate of a guardian to recover property of his wards converted by the guardian more than forty-five years prior to the commencement of the action, it is held, that the complaint disclosed no such extraneous facts or circumstances in existence during the minority of the wards or within a reasonable time thereafter, connected with the guardianship transaction complained of, as would put the wards, as prudent persons, upon any inquiry as to such transaction, so that their failure to make inquiry was a bar to the right to maintain the action.</p> <p>Id.—Special Circumstances Excusing Delay.—In such action, it is only where special circumstances are made to appear, calling for the relief demanded, that the courts are justified in excusing so long a period of delay in asserting the right, and in proceeding to adjust the differences between the parties.</p> <p>Id.—Failure op Guardian to Account—Concealment op Receipt op Fund.—In the present case, among the circumstances excusing the delay and justifying the relief demanded against the estate of the guardian are the facts that the guardian failed, for upwards of forty-four years, to file his final account, appraisement, and report of his guardianship, and that when he did file such papers, none of them disclosed the fact of the receipt by him of the fund sued for, and that during such period neither of the wards had knowledge of the receipt by him of the fund, or of circumstances putting them on inquiry.</p> <p>Id.—Repudiation op Trust by Guardian.—The intentional or fraudulent concealment from the wards by the guardian of money or property of which they had no knowledge and which they had no. reason to know belonged to them cannot be treated as a repudiation of his trust by the guardian, in the sense that the wards would thereby be barred by the statute of limitations from maintaining an action for the same within the statutory period after their discovery that the guardian did receive it.</p> <p>Id.—Action against Estate op Guardian—Claim por Money Converted—Prior Action por Accounting Unnecessary.—It is not essential to the maintenance of a suit to establish a claim existing against a guardian in favor of the ward, for money belonging to the ward which had been converted by the guardian, which is commenced after the death of the guardian against his estate, that a prior action for an accounting against his personal representives should have been brought, in which the claim had been established.</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>Practice.—Default in Serving Statement on New Trial—Belief under Section 473 of the Code of Civil Procedure.—Under the circumstances of this case, it was the duty of the trial court, under section 473 of the Code of Civil Procedure, to have relieved the appellant from his default in failing to serve his proposed statement on motion for a new trial within the time limited by law, for the reason that such default was of short duration, was due to the excusable mistake and inadvertence of the clerk of the attorney for the appellant in obtaining orders extending the time to prepare such statement, while such attorney was otherwise engaged, and the motion for relief was seasonably made.</p> <p>Id.—Liberality in Granting Belief,—It is the tendency of this court to relieve parties from their defaults and mistakes, upon proper showing, to the end that matters may be heard upon their merits.</p> <p>Id.—Belief from Mistake of Law.—Under section 473 of the Code of Civil Procedure, the court will, in a proper case, grant relief against a mistake of law.</p>

<p>Contract—Substitution of Contracting Party.—Where one party to a contract executes it in duplicate, under an understanding with the other real party in interest that his wife might be named in the instrument as the other contracting party, such arrangement does not permit of the execution of the contract by any other person substituted by such other party in interest. A contract executed by such a substituted party is not binding on the other.</p> <p>Id.—Evidence—Want of Ratification.—The evidence reviewed, and held sufficient to sustain the finding that the plaintiff had not ratified the contract in question, in which a person other than the one agreed upon had been substituted as the other contracting party.</p>

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

<p>Pleading—Damages for, Personal Injuries—Loss to Business— Joinder of Causes of Action.—In an action to recover damages for personal injuries, a complaint which alleges that by reason of these injuries the plaintiff was made to suffer, was unable to work and could not attend to his business, and that because of this inability to attend to his business “great waste and damage has resulted and will result to plaintiff’s said business and the plaintiff financially,” only states a single cause of action for injuries to the person, and does not join a cause of action for injuries to property.</p> <p>Id.—Damages Recoverable under General Allegation.—In such action the plaintiff may recover all the damages proximately caused by the injury, under a general allegation of the whole amount of damage so caused, without separate allegation of the amount of the loss that is caused by each element of damage.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Garret W. McEnerney, for Appellant Finnell Land Company.</p> <p>Charles W. Slack, and W. P. Johnson, for Appellant John Finnell, Jr., Administrator.</p>

<p>Subterranean Waters of San Fernando Valley—Natural Reservoir of Los Angeles River.—The subterranean waters of the San Fernando Valley are not percolating waters in the common law sense of that term. While they percolate, they do so only in the sense that they form a vast mass of water confined in a basin filled with detritus, always slowly moving ^downward to the outlet, in the effort, in conformity with physical law, to attain a uniform level. Such waters constitute the great natural reservoir and supply of the Los Angeles Biver.</p> <p>Id.—City of Los Angeles has Paramount Right to all Waters of Los Angeles River.—The city of Los Angeles, as the successor of the original pueblo, has the paramount right to the use of all the waters of the Los Angeles River, for legitimate uses either within the limits of the old pueblo or upon annexed territory not within such limits. The enjoyment of such use cannot be curtailed by the abstraction of the subterranean waters of the San Fernando Valley by landowners whose lands overlie such waters.</p> <p>Id.—Action to Enjoin Abstraction of Water in San Fernando Valley—Pleading—Quantity of Water Necessary for Use.— In an action by the city of Los Angeles, to enjoin such landowners from abstracting the subterranean waters of San Fernando Valley, in which it claims a paramount right to all the waters of the Los Angeles River, it was not necessary for it to aver in the complaint that any particular quantity of the water was necessary for its use, nor to give the boundaries and locations of the irrigable land for which the water was required.</p> <p>Id.—Finding as to Particular Quantity Required During Certain Season.—In such action, where the court properly decreed that the paramount right to the use of the water was in the city, and restrained the defendants from diverting water from the river at any time when the city was taking the entire surface flow for the purposes for which the city and its inhabitants required the water, it was neither necessary nor .practical for the court to attempt to define the amount of water which would, be required by the city from October first of each year to May first, of the following year.</p> <p>Id.—Expert Testimony—Hypothetical Question Based on Evidence of Another Witness.—The basing of a hypothetical question asked an expert witness, upon the assumption of the truth of the evidence given by another witness whose testimony was heard by him, while not to be commended, is not such an irregularity as to warrant a reversal.</p> <p>Id.—Geological Expert—Manner op Creation op River.—In such action, the opinions of geological experts, as to the manner in which the Los Angeles River was created, were admissible.</p> <p>Id.—Quieting Title to Right to Water—Bringing in New Parties— Abatement.—In an action to quiet title to the city’s asserted paramount right to the waters of the Los Angeles River, brought against a large number of landowners in San Fernando Valley, it is not error for the court to refuse the defendants’ motion to bring in other defendants similarly situated, or to refuse to abate the action until such parties were brought in.</p>

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

<p>Water-Rights-—Action to Quiet Title and Enjoin Diversion—Support op Findings.—In this action to quiet title to two hundred and fifty inches of the waters of San Jose Creek, and to enjoin the diversion thereof by the defendants, it is held that the findings for the defendants, so far as may be necessary to support the judgment in their favor, are sustained by sufficient evidence.</p> <p>Id.—Deed Partitioning Mexican Rancho—Effect of Covenant as to-Stream.—Where two owners of a Mexican rancho containing the body of San Jose Creek, made a deed partitioning the land between them, in which they mutually covenanted that notwithstanding the partition, “the rights to the use and benefits of the waters of the San Jose Creek flowing into said Rancho de la Puente or arising thereon, whether for water power, irrigation,, or other- purposes, shall continue and remain as heretofore, to be had, held, possessed and enjoyed by the parties in equal shares, and in their heirs and assigns,”' the effect of such covenant is to bind the successors of one party against the successors of the other, but not to bind the successors of one owner as between themselves.</p> <p>Id.—Effect of Covenant upon Grant of Non-Riparian Land.—The covenant does not necessarily secure riparian rights to a subsequent grantee of non-riparian lands if not so provided in the conveyance, and if no circumstances are shown raising an estoppel. The mere fact that it was part of the rancho to which riparian rights had extended while the ownership was continuous from it to the banks of the stream, would not preserve that right to the severed tract. The severance under circumstances not showing a contrary intent would cut off such tract from its riparian rights.</p> <p>Id.—Nature of Stream—Underground Flow—Wells of Upper Riparian Owners—Immaterial Finding against Evidence—Impervious Stratum.—Where the evidence clearly shows that it is the nature of the stream, in flowing from mountain sources through a valley, to have an underground flow in strata connected with the surface stream and forming a part of it, a finding against evidence that some of the underground flow is in a stratum impervious to the stream, and that wells sunk by riparian owners above take from this impervious stratum, is immaterial, where other findings clearly show that such wells materially diminish the customary flow from other strata to plaintiff’s land below.</p> <p>Id.—Unlawful Diversion not Justified..—If the wells and pumping plants of defendants constitute an unlawful diversion of the stream, it would be no defense that they also took water from another source.</p> <p>Id.-—Reasonable Use by Upper Riparian Owners—Issue as to Excessive Use not Tendered—Data for Apportionment Unsupplied— Case not Shown.—Where the court found that no defendant takes or uses more water in wells than is necessary for irrigation and-domestic use on his land, if it be conceded that the supply is shown to be insufficient for all riparian owners, yet, as plaintiff has tendered no issue as to excessive use by them from a common source of supply, and has supplied no data for a decree apportioning the stream between the parties, and has relie'd on a paramount right, it follows that if defendants are entitled to a reasonable use of the underground flow as upper riparian owners, plaintiff has shown no ease against them.</p> <p>Id.—Riparian Rights as to Underground Flow.—Where two or more persons own different tracts of land underlaid by porous material extending to and communicating with them all, which is saturated with water moving with more or less freedom therein,, each has a common and correlative right to the use of this water upon his land, to the full extent of his needs if the supply is sufficient, and to the extent of a reasonable share thereof, if the supply is so scant that the use by one will affect the supply of the others.</p> <p>Id.—Presumption against Unreasonable Share by Upper Owners—■ Burden of Proof.—The presumption is against the taking of an unreasonable share of the,underflow by upper riparian owners, and the burden is upon the plaintiff, as a lower owner, to prove that it is unreasonable, and such burden being unsustained, plaintiff cannot prevail against them.</p> <p>Id.—Underground Flow Connected with Surface Stream—Rights of Upper Owners—Prescriptive Title not Tenable.—If the underground flow is connected with and is a part of the surface stream, defendants as upper owners have a common right with plaintiff below to the flow of the stream; and the rights of the defendants cannot be lost by disuse, nor can the plaintiff below acquire adverse user or a prescriptive title as against them by taking the water after it passes their lands.</p> <p>Id.—Rule as to Percolating Water.—The owner of land in which there is percolating water which feeds a stream issuing upon other land below, has a right to the use of the percolating water on the overlying land, which is a right in common with the riparian owners on the stream fed by such percolations. If the supply is not enough for all, each is entitled to a reasonable share.</p> <p>Id.—Prescriptive Title Acquired by Adverse Claimant.—Where an upper adverse claimant had diverted the waters of the creek for many years by means of a dam and ditch, and sunk wells more than five years before suit to protect his appropriation and had used such wells adversely to the plaintiff and to the knowledge of the plaintiff for the full period of limitation and pleaded the bar of the statute, the action is clearly barred as to him.</p> <p>Id.—Small Well Bored within Five-Year Period—Substantial Injury not Shown Justifying Injunction.—Where it appears that a small well was bored within the five-year period, but the court finds that the flow from it is very small, it will be presumed from the findings and judgment that the quantity was negligible, and did not show a substantial injury justifying an injunction.</p> <p>Id.—Creation of Public Nuisance by Adverse Claimant—Bar of Statute not Defeated.—-The fact that the adverse claimant created a public nuisance by allowing his artesian wells to go uncapped in the winter season cannot preclude his obtaining a prescriptive title by adverse user during the irrigating season. A private owner, if specially injured, may sue for damages for such nuisance, but he cannot invoke the public right which is not barred, and thus avoid the effect of the statute of limitations upon his private right.</p> <p>Id.—Effect of Waste upon Underground Strata not Pleaded.— Whatever may be the effect of such waste to diminish the underground flow during the irrigating season, by decreasing the pressure thereon, and whatever, cause of action plaintiff may have upon that ground, no such waste being pleaded, he cannot rely upon a cause of action of that character.</p> <p>Id.—-Running of Statute of Limitations.—The running of the statute of limitations in favor of the defendant pleading the statute was not deferred until the extraction of the water had begun to diminish the flow at plaintiff’s dam, but ran from his diversion, where it appears that plaintiff had knowledge of the flow from the wells immediately and that it would tend to diminish such flow, and that the effect was immediately perceptible.</p>

<p>Criminal Law—Receiving Monet for Betting Purposes.—Section 337a of the Penal Code, making it a crime for one to receive any money, bet or wagered, or offered for the purpose of being bet or wagered by or for any other person, upon the result of any trial or contest of speed between men or beasts, is valid.</p>

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

<p>Pleading—Action to Recover Purchase Price of Goods Sold—Sufficiency of Complaint.—In an action to recover the balance of the purchase price of property sold, a complaint which merely alleges that the plaintiff “sold” the property for a stated sum of money,, that the defendant paid a certain sum on account thereof, and “that there is still due, owing and unpaid on account of said sale,” the balance sued for, “and that no part of the same has been paid,” is sufficient, after verdict and a trial upon the merits, to sustain a judgment for the plaintiff.</p> <p>Id.;—Implications Involved in Allegation That Property Was Sold.—The allegation, in such complaint, that the property was “sold” for a stated sum, implies that the price was agreed upon, that the buyer promised to pay it, and that the sale was consummated by-delivery or a passing of the title of the property, and that consequently the purchase price immediately became due on delivery or passing of the title.</p> <p>Id.—Meaning of Word “Sold”—Delivery and Passing op Title Implied.—When nothing appears in the context or circumstances to control it, the word “sold” primarily means a consummated sale, that is a sale and delivery, or a passing of the title.</p> <p>Id.—Allegation of Breach of Promise to Pay.—The allegation, in-such complaint, that “there is still due, owing and unpaid on account of said sale” the sum sued for, and “that no part of the same has been paid,” is a sufficient allegation of the breach of the promise to-pay.</p>

<p>Statute or Limitations—Amendment to Answer—Setting Up Statutes—Discretion.—The refusal of leave to plead the bar of the-statute of limitations by way of amendment to an answer already filed is not an abuse of discretion, unless it is made to appear that, the amendment will be in furtherance of justice.</p> <p>Id.—Action for Negligence—Inadvertence or Counsel in Remembering Statutory Limitation.—In an action to recover damages for an-injury caused by negligence, it is not an abuse of discretion to permit, an amendment to the answer setting up the statute of limitations, when the only reason advanced for the failure to set up such defense-in the original answer was the inadvertence of counsel in failing to note that by the amendment of 1905 to section 340 of the Code of Civil Procedure, the time allowed for the commencement of such an action had been reduced to one year. Such fact has no tendency to show that permission to plead the statute would aid in producinga just result.</p> <p>Id.—Handling Firearms—Degree of Care Required.—As firearms are extraordinarily dangerous, a person handling such a weapon is bound to use extraordinary care to prevent injury to others, and is held to strict accountability for want of such care. One who causes injury to another by discharging such a weapon must, in order to excuse himself from liability, show that he was absolutely without fault.</p> <p>Id.—Negligence when Question of Fact or Law.—While the question of negligence is ordinarily one to be determined by the jury, yet where the facts are undisputed, and no inference but that of negligence can be drawn from them, the court may determine that negligence is shown as matter of law.</p> <p>Id.—Shooting of Human Being While Hunting.—A person while deer hunting, who saw an object moving in the underbrush, and fired at it without taking time to discover whether it was a deer, as he supposed it to be, or a human being, as it turned out to be, is guilty of negligence. .</p> <p>Id.—Contributory Negligence of Person Shot.—The person so injured, if himself guilty of negligence directly contributing to the injury, is not entitled to recover of the person who negligently shot him.</p> <p>Id.,—Contributory Negligence Ordinarily for Jury.—The question whether the conduct of the plaintiff amounted to contributory negligence is ordinarily one for the jury.</p> <p>Id.—Erroneous Withdrawal op Question of Contributory Negligence from JURY.—In an action by the person so shot, it is error to refuse to submit to the jury the question of the plaintiff’s contributory negligence, based upon evidence that the parties, while deer hunting, had agreed to station themselves at widely separated points, that the defendant adhered to such understanding, but that the plaintiff departed therefrom, and when shot was moving about in the underbrush opposite the defendant’s station.</p> <p>Id.—Custom of Hunters—Inadmissible Evidence.—In such an action, the rejection of evidence offered by the defendant as to the custom of hunters in places similar to that in which the accident occurred, is not error, when it did not appear that the plaintiff knew of such custom at the time of the transaction, or when the plaintiff admitted having made the agreement, which went fully as far as the alleged custom.</p> <p>Id.-—Admission of Fault by Plaintiff—Declaration against Interest.-—The statement by the plaintiff, to the effect that the injury resulted from his own fault, was admissible in evidence as a declaration of a party against his interest. The exclusion of such evidence was without prejudice, where the facts upon which his conclusion was based, was fully shown by his own testimony.</p>

<p>Specific Performance—Laches—Demurrer.—The defense of laches to an action by a vendee for the specific performance of a contract for the sale of land, may be raised by demurrer. Such a defense is, in substance, that the complaint does not show equity, or fails to state facts sufficient to constitute a cause of action.</p> <p>Id.—Statute of Limitations—Application to Suit in Equity.—When an express statute of limitations applies to a suit in equity, mere delay to commence the suit for a period less than that of the statute is never a reason for dismissing the proceeding. There must be other circumstances which, taken in conjunction with the mere lapse of time, renders it inequitable to enter into the investigation or give the relief sought.</p> <p>Id.—Lapse of Time Constituting Laches.—There is no artificial rule as to the lapse of time or the circumstances which will justify the application of the doctrine of laches, and each case as it arises must he determined by its own circumstances.</p> <p>Id.:—Acquiescence of Vendee in Vendor’s Breach of Contract.— Where, after the vendor’s violation or express repudiation of the contract of sale, the vendee delays to proceed in the enforcement of the contract for such a length of time as to constitute acquiescence in the vendor’s breach, or to create a presumption of abandonment of his right to specific performance, relief in equity will be denied.</p> <p>Id.—Optional Contract of Sale—Delay of Three Years in Enforcing Contract.—Where an option, based upon a consideration of' twenty-five cents, and extending over a period of more than three-months, for the purchase of property worth one hundred thousand dollars, is expressly repudiated by the vendor before there has been any acceptance by the vendee, and is again repudiated when notice is given of acceptance and a tender is attempted to be made of the first installment of the purchase price, the delay of the vendee for more than three years from the refusal of such tender, and until the property had greatly increased in value, to indicate that he would oppose the repudiation, if unexplained and unaffected by other circumstances, constitutes an acquiescence in the vendor’s breach of the contract, and prevents its specific enforcement by the vendee.</p> <p>Id.—Sufficiency of Complaint—Judicial Notice of Prior Action.— In determining the sufficiency of the complaint in an action by the vendee, which disclosed such facts, the court cannot take judicial notice of a prior action brought by him to enforce the contract, for the purpose of excusing his apparent acquiescence and laches.</p> <p>Id.—Refusal of Leave to Amend Complaint—Appeal—Absence of Specific Bequest.—The appellate court cannot hold that the trial court abused its discretion in denying the plaintiff leave to amend such complaint, upon sustaining a demurrer thereto, by setting up the prior action for the purpose of excusing his apparent acquiescence and laches, when there is nothing in the record to indicate that he asked leave in the trial court to amend in any designated particular, or in any way specified therein the nature of any proposed amendment.</p> <p>Id.—Insufficient Complaint for Damages.—The complaint by the vendee, seeking specific performance of the contract, which is insufficient to warrant such equitable relief because it discloses acquiescence and laches, cannot be held sufficient to entitle him to damages, under section 3306 of the Civil Code, in the absence of any allegation tending to show the value of the estate to be conveyed at z the time of the breach, or any other allegation showing damage as to any other element prescribed in that section.</p>

<p>Appeal from Order Denting New Trial—Order Overruling Demurrer to Cross-Complaint.—An order overruling a demurrer to a cross-complaint is not reviewable on an appeal by the plaintiff from an order denying a new trial.</p> <p>Id..—Divorce—Denial of Application for Costs.—In an action for a . divorce, an order denying the wife’s application for costs is appeal-able.</p> <p>Id.—Alimony and Costs—Discretion—Necessity of Allowance.— The awarding of alimony or costs to the wife in an action for divorce is not a matter of right, but is one resting in the sound discretion of the trial court, but before any allowance is made the wife must show the necessity of the award.</p> <p>Id.—Costs of Subpoenaing Witnesses and Taking Depositions— Refusal to Disclose Purposes.—It is not an abuse of discretion for the court to refuse to make an allowance to the wife to cover the cost of subpoenaing some twenty-five or thirty witnesses and of taking the depositions of seventeen others, if the wife, at the time of her application, refuses to disclose the purposes for which they were to be called, in order to enlighten the court upon the question of the necessity of having such witnesses, or of her good faith in declaring that they were required.</p> <p>Id.—Refusal of Continuance of Trial—Dismissal of Action.—After the trial court has refused an application for such costs, it acted properly in compelling the parties to proceed with the trial of the divorce action, notwithstanding the wife’s objection to so doing on the ground that she was without means to obtain witnesses by reason of such refusal; and upon her refusal to offer any testimony in support of her complaint, her action was properly dismissed.</p> <p>Id.—Costs of Appeal—Discretion of Trial Court.—It is within the discretion of the trial court to make an allowance to the wife to cover the costs of an appeal from a judgment of divorce rendered against her. If the trial court is satisfied, from the record before it, that the proposed appeal is not undertaken in good faith, or with reasonable belief that it has merit, the application should be denied.</p>

<p>Will—Direct Devise—Postponement op Time op Enjoyment—Forfeiture on Happening op Condition Subsequent—Transfer op Devise.—Under a will which directly devised to the six sons of the testator all of his real estate, share and share alike, and provided that no portion thereof should be sold until ten years after his deatfi, and that, should any of the sons contract certain enumerated bad habits before such division, his share should be forfeited, or should he die before such division, his share should be divided in a specified manner, each of the sons acquired a vested interest at the time of the testator’s death in the undivided share devised to him, subject to divestiture or termination upon the happening of the subsequent act or event specified in the will. Such vested interest could be transferred by the devisee.</p> <p>Id.—Devise Passes to Assignee in Insolvency.—Under the Insolvency Act of April 16, 1880 (Stats. 1880, p. 82), the interest of such a devisee, upon his being adjudged an insolvent, becomes a part of his estate and liable for his debts, and vested in the assignee by the assignment made to him by the clerk of the court under section 17 of that act.</p> <p>Id.—Sale op Property Devised by Assignee—Want op Actual Possession by Assignee.—The assignee in insolvency had power, under subdivision 4 of section 21 of the Insolvency Act, to sell the undivided interest of the devisee in the land, notwithstanding at the time of the sale it was in the actual possession of the executor of the testator for purposes of administration, and had not been taken into actual physical possession either of the insolvent or his assignee.</p> <p>Id.—Quieting Title—Collateral Attack on Sale in Insolvency— Jurisdiction.—An action to quiet title to land which had been sold in insolvency proceedings is a collateral attack on such proceedings, and only such matters may be considered as go to the jurisdiction of the court in insolvency.</p> <p>Id.—Amounts Due Creditors—Omission op Dollar Mark in Schedule op Debts.—Where the petition in voluntary insolvency states that the schedule annexed contains the names of the petitioner’s creditors and the sum due to each creditor, and the schedule gives the names of the creditors in a column headed “Names of creditors,” and opposite each name, in another column headed “Sum due,” is placed a sum such as “70.00, 441.54,” and so on, aggregating “2551.03,” the figures so inserted will be deemed to denote sums of money, expressed in units of a dollar, notwithstanding the omission to place a dollar mark as a prefix thereto. So construed, the petition sufficiently shows that the petitioner’s debts exceeded three hundred dollars.</p> <p>Id.—Omission to Include Property in Inventory.—Where the original petition and schedules of a voluntary insolvent purport to contain a full, true, and perfect discovery of his estate, and, on their face, comply in all respects with the statutes, the mere failure of the petitioner to include in his inventory certain real property owned by him did not affect the jurisdiction of the court over the insolvency proceedings.</p> <p>Id.—Notice of Meeting of Creditors—Sufficiency of Publication.— The requirement of section 7 of the Insolvency Act, that a copy of the order adjudicating the petitioner an insolvent and appointing a time and place for a meeting of creditors shall immediately be published by the clerk in a designated newspaper as often as such newspaper is printed before the meeting of creditors, and be served forthwith by mail upon all creditors, and that the day named shall not be less than thirty days after the making of the order, is sufficiently complied with, when the adjudication of insolvency was made on a Monday, and designated a newspaper which was only published on Saturdays as the one in which the publication should be made, by a publication in such paper, for a period of thirty-six days, on every Saturday intervening between the date of the order and the time set for the meeting of creditors.</p> <p>Id.—Mailing Notice to Creditors—“Forthwith.”—The mailing of notice to the creditors four days after the making of the order, but prior to the first publication of the notice in the newspaper, and over thirty days before the time fixed for the creditors’ meeting, is a sufficient compliance with the requirement of the statute that such notice shall be mailed “forthwith.”</p> <p>Id.—Land Subject to Contract of Purchase by Testator.—Where a testator at the time of his death was in possession of a tract of land under a contract for the purchase thereof, which was after-wards performed by his executors, and a conveyance thereof executed to them as such in trust for the persons interested in his estate, the land so conveyed becomes a part of his estate, and subject to the terms of his will disposing of his real property.</p>

<p>Building and Loan Association—Note and Mortgage by Stockholder Unpaid—Shares not Material—Cancellation for Fraud —Unsupported Finding.—In an action to cancel a note and mortgage executed by a stockholder in a building and loan association, secured by Ms pledged shares, which is unpaid according to its express terms, for alleged fraud in its procurement by misrepresentation that it would be fully paid, canceled, and delivered up in seven years, which period had elapsed, it is held that a finding of such fraud, and a decree of cancellation based thereon, is unsustained by evidence of prospectuses, stating that the mortgage would be paid up in about seven years, on the assumption that the mortgagor complied with all the terms of his contract.</p> <p>Id.—Statements by Local Agent Unauthorized.—-Where circulars issued to local agents explicitly declared that they were without authority to make and conclude terms with prospective investors and borrowers upon the amount to be loaned or the time during which such loan should run, no mere statements made by such local agent to the plaintiff could support the findings .and judgment based upon fraud.</p> <p>Id.—Statements in Prospectuses—Matters op Speculation and Opinion.—The statements made in the prospectuses issued by the building and loan association, based upon prospective earnings,, which could in the nature of the ease be nothing more than an approximation that the obligation would mature in about seven years, must be construed to amount to nothing more than matter of speculation or opinion of the officers, and tables contained therein amounted to nothing more than an estimation or opinion as to the period of time of continuance of the obligation, and a finding of fraud cannot be based thereon.</p> <p>Id.—Mere Matter of Opinion not Binding.—No mere matter of opinion could bind the association. An assertion of that which is not true in order to constitute a false representation, cannot be held to include a mere opinion, however erroneous it may be as such, or however positively stated.</p> <p>Id.—Exception to Rule—Opinion Involving False Statement op Fact.—It is not a universal rule that an opinion cannot be fraudulent, for it may involve a false statement of fact, which would render it fraudulent, and the party making it in such ease cannot escape responsibility on the ground that he was merely expressing an opinion.</p> <p>Id.—Statement Based upon Experience.—If the building and loan, association had made it as a statement based upon its own experience that payments made upon its stock would mature and pay its loans once in seven years, that, if untrue, would be a fraudulent statement of facts; but where the records show no such statement, but merely speak of a general experience of fifty years commending the system adopted by this association, such statement is not fraudulent when the record shows that it has not existed so long.</p> <p>Id.—Terms of Prospectus not Embodied in Note and Mortgage.— Where no part of the prospectus is embodied in the note and mortgage, beyond the mere fact that the note and mortgage are to' mature in seven years, provided there is no prior default in pay- ' ments authorizing a foreclosure, the borrowing member cannot avail' himself of any agreement as to the number of payments which will mature his stock and pay the debt, when no such agreement is embodied in the note and mortgage.</p> <p>Id.—Statements Contradicting Contract Cannot Estop.—Oral or printed statements made by officers or agents of a building and" loan association in contravention of the plain language of the contract, whether relied upon by the person to whom made or not,, cannot be made the basis of an estoppel</p> <p>Id.—Improper Credits of Payments—Violation of State Law.—The law of this state regulates building and loan associations, and payments to be made upon loans made by it to its stockholders. The-trial court erred in violation of the law, in computing and crediting upon the note and mortgage the monthly payments made upon the-premium and the monthly installments upon the stock. The law authorized the very systems to which the respondents had bound themselves by their contract, and the court could not lawfully depart therefrom.</p> <p>Id,—Dual Relation of Borrower and Stockholder.—One who makes a loan from a building and loan association, under the law, occupies the dual relation of a borrower and a stockholder, each of which is distinct from the other, and payments made upon the stock cannot be credited upon the loan. A shareholder who is a mortgagor cannot default in his payments upon the loan, and upon his shares which are not paid up, and then claim the full benefit of all of his payments to extinguish the loan.</p> <p>Id.—Cancellation not Allowable when Debt Remains Unpaid.—A debt which remains unpaid upon a note and mortgage will not permit of the remedy in equity for cancellation, thereof.</p> <p>Id.—Mortgagor Entitled to Foreclose.—The debtor having defaulted in payment of the note and mortgage, the mortgagor is entitled to foreclose the same for the balance due and unpaid.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing a new trial. James M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>James M. Hanley, and George E. Lawrence, for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Franklin P. Bull, and Garret W. McEnerney, for Appellant.</p>

<p>Quieting Title to Community Property—Pleading—Title Taken in Name op Wipe—Intent to Make Gift.—In an action by a married • man to quiet title to land standing in the name of his wife, a com-' plaint alleging that he is the owner of the property, that it was acquired in February, 1907, after his marriage, with community funds, and that the title was taken in the name of his wife merely to please her, and with no intent to make a gift to her, sufficiently avers the community character of the property, the ownership of which the law places in the husband, and negatives the presumption that would otherwise arise under section 164 of the Civil Code, that it was her separate estate.</p> <p>Id.—General Creditor of Wife—Judgment Creditor—Encumbrancer in Good Faith;—Presumption op Separate Property.—A general creditor of a married woman who had recovered a judgment against her upon a debt originally accruing to him, prior to the time when a deed of community property was taken in her name, is not an encumbrancer in good faith and for a valuable consideration, within, the meaning of section 164 of the Civil Code, creating a conclusive presumption in favor of such an encumbrancer that property conveyed to a married woman by an instrument in writing is her separate estate.</p> <p>Id.—What Constitutes Encumbrancer in Good Faith—Payment of Consideration.—The phrase “encumbrancers in good faith and for a valuable consideration,” means persons who have taken or purchased a lien, or perhaps merely the means of obtaining one, and who have parted with something of value in consideration thereof. The payment of the money, or the parting with something of value, is essential.</p> <p>Id.—Intent to Make Gift—Evidence of Intention.—Where land is purchased with community funds, the mere taking a conveyance thereof in the name of the wife, would not constitute a gift of the property to her, in the absence of any intention to make a gift; and the testimony of the husband and wife as to their intention with respect to the conveyance is competent.</p>

<p>Exchange of Property Induced by Fraud—Sale for Money not Affected..—The fact that an exchange of property was induced by fraud does not give the party defrauded a cause of action based on the theory that the property surrendered was sold to the wrongdoer for an agreed sum of money.</p> <p>Id.—Waiver of Tort—Suing on Implied Contract.—In this state, one whose goods are wrongfully taken and used by another may waive the tort and sue in assumpsit for their value, as for goods sold and delivered. Such rule, however, does not extend to a case where the plaintiff voluntarily parted with his property in exchange for something received by him in return.</p> <p>Id.—Contract not Implied when Express.—No contract will be implied by law as against an express contract not disavowed by either party.</p> <p>Id.—Estate of Deceased Person—Action on Rejected Claim.—In an action against the estate of a decedent upon a rejected claim the plaintiff cannot recover .upon any other cause of action than the one set up in the claim which has been presented and rejected.</p> <p>Id.—Claim for Goods Sold—Amendment of Complaint—Cause of Action Based on Fraud.—Where a claim, as presented against the estate of a decedent, was in form for the purchase price of goods sold and delivered, and after its rejection, an action was brought thereon based on the theory of a sale, an amendment of the complaint, to conform to the proofs adduced at the trial, setting up a cause of action based upon the fraud of the decedent in procuring an exchange of property, is not permissible.</p> <p>Appeal—Immaterial Errors—Judgment.—Alleged errors of the trial court in admitting or rejecting evidence, or in instructing the jury, are without prejudice on appeal, when it appears from the record that the judgment rendered was the only one that could properly be rendered.</p>

<p>Negligence Causing Death—Amount op Damages.—Discretion op Trial Court and Jury.—The amount of damages to be awarded for a death caused by negligence is committed first to the sound discretion of the jury, and next to the discretion of the trial judge, who, in ruling upon a motion for a new trial, may consider the evidence .anew, determine anew the facts, and set aside the verdict if it be not just.</p> <p>Id.—Review op Damages on Appeal—Damages op Twelve Thousand Dollars not Excessive.—Upon appeal, the decision of the trial court and jury on the subject cannot be set aside unless the verdict is so plainly excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury. Under the circumstances of this case, a verdict of twelve thousand dollars in favor of the widow and infant child of a man who was killed at the age of twenty-six years, and who was then earning seventy-five dollars a month, will not be set aside on the ground that it is excessive.</p> <p>Id.—Death op -Husband and Father—Loss op Society and Care— Address op Attorney to Jury*—In determining the financial loss to the widow and infant child, resulting from the death of the husband and father, the jury may consider the financial loss accruing from the deprivation of the society, comfort,-care, and protection of the deceased, as well as of his support; and counsel, in addressing the jury, may comment upon the probable pecuniary privations resulting therefrom.</p> <p>Id.—Misconduct of Attorney—Statement as to Admission op Cause op Death.—In an action to recover damages for a death alleged to have been caused through the operation of an electric car by the defendant “carelessly, negligently and recklessly,” and the form of the denials in the answer leave it doubtful if there is a good denial of that allegation, it is not misconduct warranting a reversal for the attorney for the plaintiff, in addressing the jury, to remark that the defendant admitted having caused the death in a reckless, careless, and negligent manner, where the attorney for the defendant merely excepted to the remark, and neither asked the intervention of the court to caution the jury, nor referred to the pleading in any way.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Campbell, Metson & Campbell, and F. E. Borton, 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>The facts are stated in the opinion of the court.</p>

<p>Negligence—Master and Servant—Injury to Operator op Machine’ —Failure to Equip with Safety Appliances.—-The fact that an accident happening to an operator of a mangle occurred at a certain portion thereof which was not and in the nature of things could not be protected by a guard, did not excuse the employer from the obligation of fitting the machine with the usual modern appliances for preventing or minimizing injury.</p> <p>Id,—Negligence in Failure to Eepair Stopping Mechanism.—Where an operator of a mangle in a steam laundry was injured by having her hand caught between the rollers, the employer is liable therefor if he was guilty of negligence in permitting the mechanism for stopping the machine to get out of repair so that it could not be readily used, and the evidence shows that had such mechanism been properly adjusted and used to stop the machine, the accident would have been far less serious.</p> <p>Id.—Questions por Jury—Conflict of Evidence.—In an action by an employee against the employer to recover for personal injuries suffered in the course of the employment, questions as to the employee’s lack of experience, or the instructions given her by the employer, .or her knowledge of the dangers incident to the employment, are for the determination of the jury, and its finding thereon will not be reviewed when the evidence is conflicting.</p> <p>Id.—Negligence of Employee.—Whether or not the employee, under all of the circumstances revealed by the evidence, was guilty of negligence in the operation of the mangle, was a question for the jury.</p> <p>Amendment to Pleading—Determination by Trial Court.:—When and under what circumstances an order permitting an amendment to a pleading was made, and the substance of such amendment, are matters peculiarly for the determination of the trial court, and its conclusion will not be disturbed on appeal.</p>

<p>Municipal Corporations—Limitation on Powers.—A municipal corporation has only such powers as are expressly or by necessary implication conferred upon it by the constitution or by statutes passed under the constitution.</p> <p>Id.—Corporations of Sixth Class—Permit for Railroad—Restrictions on Grant.—The power conferred on municipal corporations of the sixth class by section 862 of the Municipal Corporation Act (Stats. 1903, p. 93), to permit the laying of railroad tracks, etc., “under such restrictions as they deem proper,” is legislative in its nature, and is not referable for its support to the power of making contracts. Unless the condition or restriction attached to the grant of the permit is within the legislative power of the municipality, it cannot be supported as a contract.</p> <p>Id.—Extraterritorial Conditions'—Condition that Road be Constructed Beyond Municipality Invalid—Undertaking without Consideration.—Where a municipal corporation of the sixth class grants the right to construct an electric railroad through such city on the condition that the grantees should, within certain periods, commence and complete the construction of their road between another place and such city and through such city, the condition is not severable. The construction to be undertaken is a single and complete thing, and the grant is an attempt by the municipality to grant a right upon condition that the entire contemplated road be constructed. Such an attempt of the municipality to exercise extraterritorial power vitiated the condition, and avoided, for want of consideration, an undertaking purporting to have been given by the grantees in consideration thereof.</p> <p>Id.—Estoppel to Deny Validity of Undertaking.—Under such circumstances, the grantees are not estopped to deny the validity of their undertaking.</p>

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

<p>Purchase of Outstanding Title by One of Several Persons Occupying Relation of Trust.—The general equitable principle, applicable in such cases as those of joint tenants, tenants in common, and generally persons placed in a situation of trust or confidence with respect to a thing purchased, that one of them cannot, without the consent of the other, buy in an outstanding title and appropriate the whole subject to himself, has no application in the absence of the relationship which forms the basis for its existence.</p> <p>Id.—Trust in Mortgaged Lands—Foreclosure—Certificate of Sale Acquired by Part of Beneficiaries..—Land encumbered by a prior mortgage was conveyed to a trustee to sell and apply the proceeds primarily to the payment of the mortgage debt, and the balance to three unsecured creditors of the mortgagor. As to each of such creditors, it was made a condition of the trust in his favor that he ■should advance one third of the sums necessary to pay taxes on the land, and the interest on the mortgage debt. This neither of them ■did, and the mortgage was consequently foreclosed, and a certificate •of sale was issued to the mortgagee, which was subsequently transferred to an assignee of two of the three beneficiaries of the trust. Held, that the remaining beneficiary was not entitled to participate in any of the rights acquired under the certificate of sale, merely upon offering to pay one third of the taxes and interest on the . mortgage, and a proportionate part of the amount necessary to extinguish the lien of such certificate, and that his relief was limited to a redemption of the land upon the payment of all prior claims.</p>

<p>Contract for Sale of All Oil Esquired in Business—Entire Contract—Dependent Covenants—Performance by Purchaser— Payment in Monthly Installments.—A contract whereby the seller agrees to sell and deliver to the purchaser, and the latter agrees to purchase and receive from the former, for a specified period of years, all the oil required by the purchaser for use in its business over and above certain specified exceptions, at a fixed price per barrel, to be paid monthly for all oil delivered during the preceding month, is entire and mutually dependent with respect to the covenants to sell and purchase, and the purchaser cannot maintain an action against the seller for a failure to deliver, without alleging and showing either performance, or a sufficient excuse for nonperformance of its obligation to take of the seller all the oil required in its business over and above the specified exceptions. The fact that the purchaser did not agree to take any specified quantity of oil is immaterial.</p> <p>Id.—Severability of Contract.—Such contract was not severable in to-as many distinct agreements of sale as there were months in the term during which deliveries were to be made. A contract will be treated as entire even when the obligations of one party consist of different acts to be separately paid for, where the nature and character of the agreement show that it was intended to be entire.</p> <p>Id.—Separate Enforcements of Payments for Installments.—The entirety of the contract with regard to the obligations to buy and sell the whole amount contracted for was not affected by the fact that the payment for installments actually delivered might be enforced separately after they became due.</p>

<p>Statute of Frauds—Contract of Hiring for More than One Year.— A contract of employment which by its terms was to continue for a period of ten years is within the statute of frauds (Code Civ. Proe., see. 1973, subd. 1), and required to be in writing.</p> <p>Id.—Memorandum of Contract—Essential Terms Must be Expressed.—To satisfy the statute of frauds the written memorandum of the contract must contain its essential terms, expressed with such a degree of certainty that it may be understood without recourse toparól evidence to show the intention of the parties.</p> <p>D).-—Failure to State Period of Employment and Salary..—A contract for the employment of the plaintiff for the period of ten years-from a certain date, at a monthly salary of three hundred dollars a month, to act as overseer of the lands and buildings of the defendants, is not sufficiently evidenced by a writing to meet the requirements of the statute, if such writing fails to state either the period; of the employment or the amount of the salary.</p> <p>Id.—Agent’s Authorization Must be in Writing.—The authority of am agent to enter into a contract for his principal, which is required by law to be in writing, can only be given by an instrument in writing.</p> <p>Id.—Contract by Agent—Want of Authority—Bill of Exceptions— Specification of Inadequacy of Evidence.—A specification contained in a bill of exceptions that there was no evidence to sustain a finding that the contract of employment alleged was entered into-between the defendants and the plaintiff is sufficient to raise the-question of the adequacy of the evidence of the authority of a person purporting to have made the contract for the defendants to act. as their agent in the matter.</p> <p>Id.—Sufficiency of Specifications.—Specifications of the insufficiency of the evidence to sustain the findings are sufficient when they are as specific as the findings themselves, and where there was no finding that the contract in question was made through an agent, there was no necessity for a specification directed to the fact of such agency.</p> <p>Id.—Estoppel to Deny Contract—Declarations of Unauthorized Agent.—Where a person purporting to act as an agent in the making of a contract of employment had no authority from the persons for whom he assumed to act, the latter are not estopped to deny the validity of the contract by reason of declarations made by the alleged agent at the time of the contract, unless they took some action with notice of the fact that such declarations had been made.</p> <p>Ib.—Authority of Agent to Contract in Writing.—The mere fact that an agent had authority to bind his principal by some sort of a contract does not, in the absence of proof of written authority, justify the inference that he had authority to bind him by a contract required to be in writing.</p> <p>Id.—Notice of Agent Having Exceeded Authority.—Even though a principal has knowledge that his agent has made a contract of employment on his behalf, his duty to inquire into the terms of the contract did not impute to Mm notice that the agent had exceeded Ms authority and had undertaken to bind him by an agreement required to be in writing.</p> <p>Id.—Part Performance of Invalid Contract for Services.—The mere part performance of a contract for personal services, which by its terms is not to be performed within a year, and which is invalid because not evidenced by a writing, does not render the contract valid and enforceable.</p> <p>Id.—Estoppel to Assert Statute of Frauds.—A court of equity will hold a person estopped to assert the statute of frauds, where such assertion would amount to practicing a fraud. The operation of this equitable doctrine is not limited to any particular class of contracts included within the statute of frauds, provided always the-essential elements of an estoppel are present.</p> <p>Ib.—Fraud Necessary to Estoppel.—To constitute an estoppel by acts or conduct, the presence of fraud on the part of the person estopped is necessary. To constitute such fraud an actual intent to mislead: is not essential.</p> <p>Id.—What Constitutes Fraud—Representations of Future Intention.—The acts, conduct, or statements relied on as constituting ground for the estoppel must generally be acts, conduct, or statements amounting to a representation of fact, as distinguished from mere expression of opinion or intention, or mere promise of something to be done in the future. The refusal to make a written contract, as agreed, is not ordinarily such a fraud as will take a case ■ out of the operation of the statute of frauds under the doctrine of equitable estoppel.</p> <p>Id.—Fraudulent Representation op Future Intention—Equitable Contract.—Notwithstanding the foregoing rule, a representation of a future intention absolute in form, deliberately made for the purpose of influencing the conduct of the other party, and acted upon by him, is generally the source of a right, and may amount to a contract enforceable as such by a court of equity.</p> <p>Id.—Circumstances not Creating Equitable Contract.—The doctrine that the mere omission or refusal to make a writing, as promised, is not such a fraud as will take a case out of the operation of the statute of frauds, is generally confined to cases, where the promise was not made under such circumstances as would warrant the conclusion that it constituted, in the eye of equity, a contract, the repudiation of which would be a manifest fraud on the other party.</p> <p>Id.—Promise to Give Written Contract in Future—Resignation op Official Position by Promisee—Repudiation of Promise a Fraud.—Where the defendants verbally promised the plaintiff, who was at the time occupying practically a life position in a police department, that if he would surrender his position and enter their employ they would engage him for a period of ten years at a stated salary, and would give him a written contract embodying the terms of his employment at a stated future time, and the plaintiff, in full reliance on such promise, irrevocably surrendered his position and ■entered the defendants’ employ, such promise, in the eye of equity, constituted a binding contract, the subsequent repudiation of which by the defendants would constitute such a manifest fraud as would estop the defendants from asserting the invalidity of the oral contract.</p> <p>Id.—Breach op Contract op Hiring—Measure op Damages—Contract Price for Entire Term.—In an action for the violation of the,terms of a contract of hiring, instituted before the expiration of the period for which the employment was to have continued, the measure of damages is, prima facie, the contract price for the entire period, less such earnings from other employments in which the plaintiff might have been engaged after his discharge, and also what he may earn, by the exercise of reasonable exertion and diligence, during the balance of the unexpired term.</p>

<p>Foreign Judgment—Attack on in This State—Evidence of Want of Jurisdiction.—It is always open to the person against whom the judgment of a court of record of another state is attempted to be used in this state to show by evidence other than the record of the judgment, and even by evidence opposed to recitals contained in such record, that the court purporting to give the judgment was without jurisdiction either of the cause or of the parties.</p> <p>Id.—Effect of Judgment,—If such lack of jurisdiction in one or the other of these respects is not made to appear, the judgment is as final and conclusive on collateral attack as would be a judgment of one of the superior courts of this state, but if such lack of jurisdiction is made to appear, the judgment must be regarded as a nullity.</p> <p>Id.—Colorado Judgment—Publication of Summons—Insufficient Affidavit—Action for Divorce.—Under the statute of Colorado, authorizing service of summons by publication “when the person on whom the service is to be made resides out of the state . . ., and the fact shall appear by affidavit filed in the office of the clerk of the court in which the action is pending, and it shall in like manner appear that a cause of action exists against the defendant in respect to whom the service is to be made,” the county court of that state does not acquire jurisdiction to order service by publication on a non-resident defendant in an action of divorce, in which the complaint was .unverified, when the only affidavit filed in support of the order was that of the attorney for the plaintiff, and was merely to the effect that he is informed and believes that the plaintiff “has good cause of action,” and that the defendant is a non-resident of Colorado, and that her last-known place of residence was a designated place outside of that state.</p> <p>Id.—Want of Jurisdiction of Person,—The order for publication made under such circumstances is ineffectual for any purpose, either on direct or collateral attack, and any attempted service made thereunder is insufficient to give the court jurisdiction over the person of the non-resident defendant.</p> <p>Id.—Sufficient Showing of Want of Jurisdiction—Record of Foreign Action.—Where the exemplified copy of the record in the Colorado action, certified to be “a true, perfect and complete copy of all records, papers and files in said cause,” and admitted in evidence without objection on a trial in this state, establishes that the only affidavit for publication filed in the cause was that of the attorney, the want of jurisdiction of the Colorado court is sufficiently shown, and this is so whether the affidavit for publication was a part of the Colorado judgment-roll or not.</p> <p>Id.—Premature Judgment by Default.—In an action in which the court had acquired jurisdiction of the defendant by a valid service, the premature rendition of a judgment by default is not a defect going to the jurisdiction.</p> <p>Id.—Adjudication of Status of Widowhood—Grant of Administration..—The granting of letters of administration on the estate of a deceased man, to a woman who subsequently, in proceedings to establish heirship in his estate, claimed to be his surviving wife, is not an adjudication of her status as his widow, when it does not appear that she based her claim to letters on the ground that she was his surviving wife, or that any such issue was ever tendered to the court for determination.</p> <p>Id.—Grant of Homestead to Woman as Surviving Wife.—The granting of an application by such woman for the setting apart of a homestead from the estate of the. deceased for the use of herself, as surviving wife, and her children, which was not contested and in which the question of her widowhood was never controverted, is not a judicial determination as to her widowhood binding in all future proceedings in the estate.</p>