Volume 163 — California Reports

<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>Vendor and Vendee—Agreement for Good Title Free of Encumbrance.—Where one makes a contract in writing to sell and convey land, without any exception, or reservation, or provision as to the title or encumbrances, the law implies an agreement on his part to convey a good title free of encumbrance. And if one encumbrance thereon is specially provided for, there is an implied agreement that the title shall be conveyed free from any others.</p> <p>Id.—Land Subject to Prior Mortgage—Vendee may Elect to Take Land—Adjustment of Purchase Price.—Under an optional contract for the purchase of land' encumbered by the lien of a prior unmatured mortgage, as to which no provision was made in the contract, the vendee has the right, at his election, either to insist on a good title and refuse to exercise the option if it is not offered, or to accept such title as the vendor has, and demand an adjustment of the payment of the purchase price, in such a manner as may be just, to protect him as far as may be against loss from the defect in the title.</p> <p>Id.—Tender of Performance by Vendee—Offer to Assume Mortgage and Pay Difference.—Under such circumstances, the vendee may compel the vendor to perform by offering to assume the payment of. such mortgage, and to pay the difference and to otherwise comply with the agreement, provided he keeps his tender good.</p>

APPLICATION to dismiss appeals from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Curtis D. Wilbur, Judge. The facts are stated in the opinion of the court.

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

<p>Bank—Action for Balance of Deposit—Defense of Payment on Checks Fraudulently Raised by Agent of Depositor—Pleading Facts Constituting Estoppel.—In an action by a depositor against a bank to recover an alleged balance on deposit, liability for which the bank denied on the ground that it had paid out the amount claimed on certain checks fraudulently raised by an employee of the depositor, and that the payments were made under such circumstances as to justify it in charging the same to the account of the depositor, evidence in support of such defense may be considered on appeal without any averments in the answer of acts of negligence on the part of the depositor which might operate to estop it from denying its responsibility for the checks in the form in which they were presented for payment.</p> <p>Id.—Liability of Bank for Payment of Forged Checks—Modification of General Rule—Estoppel of Depositor from Denying Regularity of Payment.—The general rule, that as between a bank and its customers the payment of forged or altered checks by the bank is made at its peril and cannot be charged against the depositor’s account, is not applied unqualifiedly, and is modified to the extent that when some negligent act on the part of the customer has contributed to the payment by the bank, or the facts in a particular case surrounding the forgery of a cheek and its presentation and payment are of such character as call for the application thereto of some general principle of law or equity, they may be relied on by the bank as an estoppel against the customer precluding him from denying the correctness of the payment.</p> <p>Id.—Agency—Liability of Principal for Fraud of Agent.—A principal is liable to third parties not only for the negligence of its agents in the transaction of the business of the agency, but likewise for the frauds, torts, or other wrongful acts committed by such agent in and as part of the transaction of such business.</p> <p>Id.—Liability for Checks Altered by Agent of Depositor—Presentation and Payment by Agent in Course of His Employment.— An agent of the depositor, who during a period of several years had been intrusted by his principal with the duty of filling out in his own handwriting the body of checks drawn payable to “cash” or “bearer,” and, after the same were signed, of presenting them to and having them cashed at the depositary bank, was acting within the direct scope and course of his employment, so far as Such bank is concerned, in presenting for payment and cashing at the bank either a check, the body of which was in his handwriting, and which had been originally drawn to the order of a third person for a small amount, but had been changed by him so as to make it payable to bearer for a much larger amount, or a check, similarly written, which had been originally drawn payable to bearer for a specified amount and had been raised by him to-a larger amount.</p> <p>Id.—Checks Regular in Appearance—Loss Palling on Depositor.— Where there was nothing on the face, or in the appearance of such checks to raise suspicion as to their validity, the loss occurring by reason of their payment by the bank to the agent of the depositor guilty of the fraud must fall upon the depositor and not upon the bank.</p> <p>Id.—Rules of Agency Applicable to Relation of Bank and Customer.—There is no such particular relation existing between a bank and its customers that denies the application of the general rules of agency which apply in other relations, and when an agent of a customer of a bank, while acting in the course of the employment with which the customer has intrusted him, commits a fraud upon the bank, the same rule of responsibility for the fraudulent conduct of the agent is applicable, as applies to other relations between parties where the acts of the agent in the course of his employment are involved.</p>

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

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

<p>Appeal—Order Refusing New Trial—Certificate of Clerk to Correctness.—The record on appeal from an order denying a motion for a new trial sufficiently shows that the order was made, when a copy of the minute order to that effect is contained in the transcript, properly certified in his certificate attached thereto by the clerk.</p> <p>Negligence — Master and Servant — Fellow-servants — Slingman and Winchman Engaged in Unloading Vessel.—A slingman engaged in the general work of unloading a vessel, whose particular duty it was to receive merchandise hoisted by a steam winch from the hold of the vessel, and as it was lowered on flat ears on the wharf, unhook the hoisting tackle, is a fellow-servant with the operator of the winch, and, under the law as it was at the time of the accident in question, the employer was not liable for an injury to the former due solely to the mere negligence of the latter.</p> <p>Id.—Defective Machinery — Unsafe Place to Work—Proximate Cause of Injury.—An employee cannot recover on account of defective machinery or appliances or unsafe place in which to work, unless the same has directly caused or contributed to the injury, in other words, was a proximate cause of the injury.</p> <p>Id.—Injury to Slingman Due to Incomfetenoy of Winchman.—If such winchman was unfit or incompetent to perform his duties as such, by reason of any cause, and the employer knew or would have known of it if he had exercised ordinary care in the matter of his employment or retention in that capacity, the latter is liable for personal injuries to such slingman of which the unfitness or incompeteney of the winchman was the proximate cause.</p> <p>Id.—Ignorance of Winchman of Language in Which Orders were Given—Evidence of Incompetency.-—Where it was the custom to control the operation of such winch by orders given the winchman in the English language, the jury were justified in concluding that one who, by reason of Ms lack of knowledge of that language, was unable at once to appreciate the meaning of a direction so given Mm, was not fit or competent for the discharge of the duties of such position. In the present ease, the evidence, although conflicting, is held sufficient to support the conclusion that the winchman was so deficient in his knowledge of the English language, and that the accident to the slingman was due to his inability to understand an order given him in connection with the operation of the winch.</p> <p>Id.—Ordinary Care in Selection op Employee.—The term “ordinary care,” as used in defining the care an employer is required to use in the selection of his employees, means that degree of care that a man of ordinary prudence would use in view of the nature of the employment and the consequences of the employment of an incompetent person—a degree of care commensurate with the nature and danger of the business and the grade of service for which the servant is intended, and the hazards to which other servants are to be exposed from the employment of a careless or incompetent person.</p> <p>Id.—Ordinary Care Question por Jury.—Whether the employer, having knowledge of the winehman’s ignorance of the English language, exercised ordinary care in assigning him to his work, was a question upon which reasonable minds might well differ, and therefore one for the jury.</p> <p>Id.—Special Verdict — Findings That Several Dipperent Things were Proximate Cause op Injury—Verdict not Inconsistent.— The fact that the jury by their special verdict found that each of several things, including the ineompetency of the winehman, was the “proximate cause” of the injury to the slingman, does not render it and the general verdict so inconsistent as to require that it and the general verdict in favor of the slingman be set aside. Properly construed, the special verdict means that all such things contributed to the injury, and the general verdict will be sustained if one of the matters specially found on is sufficient to support it.</p> <p>Id.—Evidence op Incompetency — Prior Acts op Negligence.—Evidence of individual acts tending to show negligence or ineompeteney is admissible for the purpose of showing that the employee was in fact unfit or incompetent. Consequently there was no error in allowing evidence that on a prior occasion the winehman, while acting as such for the defendant, had caused damage to property by reason of his manner of handling the winch, and that such matter was known to the defendant.</p> <p>Id.—Impeachment op Party’s Own Witness—Adverse Testimony— Failure to Give Expected Testimony—Evidence not Prejudicial. The rule that where a witness called by a party has given damaging testimony against him, the party calling him may show, where he is surprised by the adverse testimony given by him, that such witness has previously made , statements inconsistent with his testimony given on the trial, has no application where such witness does not testify adversely to the party calling Mm, but merely fails to give certain testimony expected of him. In the present case, the admission of the testimony objected to, although it may not have been justified by the foregoing rule, is held to have been without prejudice to the defendant.</p> <p>Id.—Impeaching Testimony—Statements must be Inconsistent— Natural Impression or Effect of 'Statements is Criterion of Inconsistency.—To justify the admission of a prior statement for the purpose of impeaching a witness, after the proper foundation has been laid, there must be an inconsistency between it and the testimony of the witness, and such inconsistency must appear prima facie before the alleged impeaching declaration can be introduced. Such inconsistency is to be determined, not alone by the individual words or phrases used, but by the natural impression or effect of the two statements. The prior statement is then open to explanation as to its meaning by the impeached witness if he has any explanation to make, and its effect may be limited by instruction to the jury solely to the question of the credibility of the witness.</p> <p>Id.—Amended Answer Filed Without Permission—Striking from Files.—An amended answer, filed without leave of court after issue has been joined, may be stricken from the files.</p> <p>Id.—Impairment of Employer’s Eight to Select Employees—Selection Limited to Members of Labor Union.—The defendant is not exonerated from liability for an injury to such slingman due to the incompeteney of the winehman by the facts that they were both members of the same Longshoremen’s Union, members of which were employed by him in the loading and unloading of vessels; that one of the rules of that union, to which both of such employees had subscribed, was that the defendant should not be permitted to employ any person other than members of said union, so long as such members presented themselves for work; that they both presented themselves to defendant for employment, as members of such union, and worked together for one day and a part of another, and that the slingman made no complaint, either to the union or to the defendant, as to the competency of the winehman, but had accepted him as such and worked with him without complaint until the time of the accident. Such facts do not show either that defendant’s right to select a competent winehman was in any degree impaired, or that the slingman in any way guaranteed the fitness or compe- • tency of the winehman.</p> <p>Id.—Employer Liable for Neglect of Agent.—An employer is liable for the nonperformance of any obligation which the law imposes upon him, notwithstanding the neglect to perform is that' of an agent to whom he has delegated the performance, even though he exercised due care in the selection of such agent.</p> <p>Id.—Instructions.—Upon a review of the instructions it is held that no prejudicial error was committed in giving those complained of or in refusing to give those requested by the defendant.</p>

The facts are stated in the opinion of the court. Hatch & Lloyd, Davis, Kemp & Post, and H. M. Bar stow, for Appellant W. R. Price. S. G. Barker, and Roland G. Swaffield, for Defendant and Appellant R. R. Christie.

L. G-. Harrier, Judge presiding at trial; A. J. Buckles, Judge refusing new trial. The facts are stated in the opinion of the court. Chickering & Gregory, P. W. Hall, Curtis H. Lindley, and Henry M. Hoyt 2d., for Appellant.

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

<p>Arbitration—Stipulation for—Eight to Offer Evidence—Denial of Eight Invalidates Award.—The parties to a stipulation for a common-law arbitration have the right to introduce evidence in support of their claims; and to decide the matter in controversy before the evidence thereon, and the matter itself, have been submitted to the arbitrators for decision, is a denial of such right, and a defense to an action based on the attempted award of the arbitrators.</p> <p>Id.—Finding That Matter had not Been Submitted—Conflict of Evidence.—A finding in an action on such an award that the matter had never been submitted to the arbitrators will not be disturbed on appeal, when the evidence on that issue is conflicting.</p>

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

<p>APPLICATION for a Writ of Mandate directed to the Secretary of State of the State of California.</p> <p>The facts are stated in the opinion of the court.</p> <p>Arthur L. Levinsky, J. G. De Forest, and Heller, Powers & Ehrman, for Petitioner.</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>W. S. Goodfellow, Jesse W. Lilienthal, Albert Raymond, Lilienthal, McKinstry & Raymond, and Goodfellow, Eells & Orrick, for Appellant.</p>

<p>Lease—Repudiation by Lessee—Right to Recover Rent.-—The repudiation of a lease by the lessee does not operate at once to mature all the rent reserved in the lease and to enable the lessor to recover, not only the installments already accrued, but those to accrue in the future.</p> <p>Id.—Remedies op Lessor upon Repudiation by Lessee.—When a lease is repudiated and the premises abandoned, the landlord may pursue one of two courses, he may rest upon his contract and sue the tenant as each installment of rent, or the whole thereof, becomes due; or, he may take possession of the premises and recover damages, which damages will be the difference between what he may be able to rent the premises for and the price agreed to be paid under the lease.</p> <p>Id.—Pleading—Cause of Action fob Damages—Insufficient Allegations.—Notwithstanding a general allegation in the complaint by the lessor that the lessee has “renounced and repudiated” the lease, no cause of action for damages is shown, where it affirmatively appears therefrom that there has been no actual repudiation, and nothing more than a mere threat on the part of the lessee that he would not be further bound by the lease, notwithstanding which he continued to occupy the premises, and did not actually default in the performance of any of the conditions of the lease.</p>

<p>Contract for Shares in Corporation to be Formed—Employment as Corporate Official—Corporation not Liable if Contract is not Accepted by It.—An agreement, which by its terms only purported to bind the individuals executing it, whereby the promissors agreed, in consideration of the assignment of certain property rights to a corporation to be subsequently formed, that the promissee should receive a certain amount of paid up stock therein and should be employed as an official thereof at a stated salary, and which contained a provision that its substance should be embodied in the by-laws of the corporation and a contract made by it accordingly, if unaccepted by the corporation, is not enforceable against it.</p> <p>Id.—Pleading—Insufficient Allegations of Acceptance by Corporation.—In an action to recover for the breach of such agreement, brought against the corporation subsequently formed and the individuals executing it, the complaint is insufficient to show that the corporation accepted the benefits of the contract with knowledge of its terms, if it merely avers the making of the agreement by the individual parties, the assignment to the corporation by the plaintiff, and the failure of the defendants to carry out the terms of the agreement, without any averment that the corporation, at the time it took the assignment, had any knowledge of the agreement. This is so, although the complaint also alleges that the individual defendants own nearly all of the issued stock of the corporation.</p> <p>Id.—General Verdict for Plaintiff on Several Demands—Failure of Evidence as to One Demand.—Where the plaintiff in such action claimed two elements of damage, one for the failure to issue the stock to him, and the other for the failure to employ him as an official of the corporation, a general verdict returned for the plaintiff in a single sum, in pursuance of instructions to the jury presenting for determination the issues relating to both elements, cannot be upheld, if substantial error was committed with respect to one of such elements, even though the verdict rendered was for the exact amount prayed for in connection with the other.</p> <p>Id.—Breach of Contract to Employ—Allegation of Performance— Proof of Prevention of Performance.—A cause of action for the refusal and failure of the defendants to employ the plaintiff as such corporate official, which is predicated upon averments to that effect in the complaint, and upon a further averment that the plaintiff had performed the contract on his part, is not sustained by evidence that the corporation did employ the plaintiff as such official, and that he was prevented by the defendants from performing his duties as such.</p> <p>Id.—Excuse for Nonperformance Does not Sustain Allegation of Performance.—An allegation in a complaint that the plaintiff had performed the contract sued on on his part, will not justify a recovery on proof of a valid excuse for nonperformance.</p> <p>Id.—Agreement for Corporate Stock Construed.—The provision in such agreement that the plaintiff was to receive “paid up stock in such corporation” to a specified amount, did not entitle him to receive stock actually worth that amount, but merely to have stock of that nominal or par value issued to. him.</p> <p>Id.—Measure of Damages for Failure to Deliver Stock—Actual Value—Burden of Proof.—For the failure to issue such stock, the measure of damages would be the detriment suffered by the plaintiff for such failure, that is, the actual value of the stock at the time when he should have received it. The burden of proving such damages was on the plaintiff. In the present case the record is held to disclose no substantial evidence tending to show with any approach to accuracy the value of the stock.</p> <p>Id.—Stock Having No Market Value.—Ordinarily the amount recoverable for failure to deliver stock of a corporation is measured by the market value of the stock, but where it has no market value then the actual or intrinsic value must be taken as the basis.</p> <p>Id.—Par Value as Prima Facie Value—Evidence op Actual Value. Conceding that in the absence of evidence the par value of the stock is, prima facie, its actual value, the .defendants could meet such prima facie case by proof that the actual value of the stock was not equal to its par value, and where there is no established market for the' shares, the inquiry into the actual or intrinsic value should not be closely restricted. In the present case, it is held that the court erred in restricting the inquiry into the business affairs and conditions of the corporation defendant for the purpose of showing such value.</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>Evidence—Destruction of Records—Secondary Proof of Contents— Proof of Loss or Destruction of Original Document.—The rule of section 1951 of the Code of Civil Procedure, declaring in effect, (1) That every -instrument affecting real property, duly acknowledged, may be read in evidence without further proof; (2) That the original record of such conveyance or instrument thus acknowledged may be so read in evidence without further proof; and (3) That a certified copy of the record of such conveyance or instrument may be so read in evidence with the like effect as the original instrument without further proof, is itself a modification of the general rules of evidence requiring proof of loss or destruction or inability to produce the conveyance or instrument before secondary evidence of its contents is admissible, and should not be unduly extended. Consequently secondary evidence of the contents of such conveyance or instrument, upon proof of the destruction of the original record thereof, and without proving the loss or destruction or inability to produce the original conveyance or instrument, is inadmissible.</p> <p>Id.—Secondary Evidence of Contents of Deed.—The testimony of a witness, purporting to give the contents of a deed, is inadmissible without proof of the loss or destruction or inability to produce-the original.</p> <p>Id.—Abstract of Recorded Documents—Admissibility in Evidence.— Under section 1855a of the Code of Civil Procedure as it existed prior to its amendment in 1911 (Stats. Ex. Sess. 1911, p. 64), it is only an abstract of title made, certified to, and issued before the loss or destruction of the original recorded documents that is admissible, after their loss or destruction, as secondary evidence of the contents of such documents, without further proof than that it was prepared and made in the ordinary course of business prior to such loss or destruction. An abstract not so prepared is inadmissible where there was no proof of the loss or destruction or inability to produce the original documents, and no evidence from the makers of the abstract showing the correctness of their transcripts.</p> <p>Ib.—Proof of Want of Knowledge of Existence of Original Instrument.—That section, as amended in 1911, requires the party undertaking to show the contents of an instrument by means of an . abstract, to prove that he does not know of the existence of the original instrument.</p>

<p>The facts are stated in the opinion of the court.</p> <p>L. G. Harrier, T. T. C. Gregory, and Theodore W. Chester, for Appellants.</p>

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

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

APPEALS from judgments of the Superior Court of the City and County of San Francisco and from orders refusing new trials. F. J. Murasky, Judge. The facts are stated in the opinion of the court. J. E. Foulds, William F. Herrin, and Peter F. Dunne, for Appellant. Charles S. Wheeler, J. W. Dorsey, and J. F. Bowie, for Respondents Ellen Dore et al.

<p>Pleading—Breach of Contract>-^Plaintiffs Suing as “Formerly Copartners”—Amendment—Change of Cause of Action.—A cause of action to recover damages for breach of a contract, as set forth in an original complaint in which the plaintiffs were described as “formerly copartners,” is not changed by an amendment which averred that the plaintiffs continued to be copartners in the subject matter of the cause of action.</p> <p>Id.—Statute of Limitations—Breach of Written Contract.—An action to recover damages for the breach of a written contract is founded upon a written instrument, within the meaning of subdivision 1 of section 337 of the Code of Civil Procedure, providing a four years’ limitation for the commencement of such actions.</p> <p>Id.—Contract to Purchase as Required in Business—Ability to Furnish After Breach.—In an action by a manufacturer of ice to recover damages for breach of a contract by the terms of which the defendant, a retail dealer, agreed to purchase all the ice necessary for him to supply his customers, the plaintiff, as a condition of recovery, need not show that he was in a position to deliver ice after the date of the defendants’ breach, of the contract.</p> <p>Id.—Measure of Damages—Difference Between Cost of Manufacture and Contract Price—Special Damage Need not be Alleged. Under section 1512 of the Civil Code, the measure of damages for breach of such a contract is the difference between the cost of manufacturing the ice and the contract price. Such loss of profits, being the natural result of the contract and implied from a breach, may be recovered without allegation of special damages.</p> <p>Id.—Estoppel—Injunction Against Breach of Contract.—The manufacturer, by electing to sue for an injunction against the violation of such contract, was not estopped from maintaining a subsequent action for its breach.</p>

<p>Pleading—Parties—Defendant cannot Bring in New Parties by Way of Cross-complaint.—Under section 442 of the Code of Civil Procedure, providing that “whenever the defendant seeks affirmative relief against any party to the action, relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may . . . file ... a cross-complaint,” a defendant is not authorized to bring in new parties by way of cross-complaint.</p> <p>Id.—Foreclosure of Mortgage—Cause of Action for Improper Levy of Attachment in Prior Action cannot be Set up by Cross-complaint.—In an action for the foreclosure of "an equitable mortgage securing a promissory note, the defendant cannot set up, by way of cross-complaint, a cause of action against the plaintiff for damages for the improper issuance and levy of an attachment on the property of the defendant in a prior action instituted by the plaintiff on the note. Such cause of action does not arise out of the transaction set forth in the complaint.</p>

<p>Public Highways—Open Water Ditch Along City Street—Public Nuisance—Evidence—Dedication of Highway Prior to Construction of Ditch.—In an action by a municipality to enjoin as a public nuisance the maintenance of an open water ditch along a street of the city, it is held, upon a review of the evidence, including the deeds and conduct of the owner who made the dedication of the land in question, that the trial court was warranted in finding that prior to and at the time the ditch was constructed the street was and ever since has been a public highway, and that when the ditch was constructed it was constructed on land included in said highway.</p> <p>Id.—Use of Portion of Highway Dedicated—Unused Portion not Abandoned.—-After the dedication by the owner of a strip of land for a public highway, the use of only a portion of it for such purposes by the public shows no abandonment of the unused portion. The acceptance by user of a portion of a road dedicated is an acceptance of it in its entirety.</p> <p>Id.—Partition Decree—Easement for Water Ditch—Location of Ditch—Prior Easement for Public Highway.—A provision in a partition decree preserving to the several allotees a rigid of way for a water ditch for irrigation over and upon the allotments lying above them, did not give an allotee the right to enter upon any portion of the lands of the owners of other allotments that he saw fit; and an allotee, or his successors in interest, in constructing the ditch over a strip of land which they knew had theretofore been dedicated and accepted as a highway, made their location subject to the prior easement vested in the public for highway purposes and subordinate to the right of the public to so control the easement for the ditch that it should not interfere with such prior and paramount right, and subject to a reasonable regulation of the use of the easement for ditch purposes by the municipality in which the highway was situated, in the exercise of its police powers for the safety and comfort of the civic community.</p> <p>Id.—Ditch in Street of Municipality—Regulation by City Under Police Power.—The right of a water company to occupy a public street of a municipality with a ditch, is subject to regulation by the municipality, under section 11 of article XI of the constitution empowering it to enforce within its limits “local, police, sanitary, and other regulations.”</p> <p>Id.—Public Nuisance—City may Require Changes in Construction of Ditch.-—An open water ditch located on a public street in a residential district of a municipality, along that portion of it where a sidewalk would ordinarily be, and raised a foot and a half above the line of the street, is a public nuisance, and the city, under its . police power, has authority to require the owner of the ditch, the easement for which is subordinate to the easement for the public street, to change the manner of its construction so as not to endanger the public safety or interfere with the free and unobstructed use of the street.</p>

<p>Mortgage Securing Future Advances — Running Account—Extinguishment op Lien—Credit in Favor op Mortgagor.—The lien of a mortgage given to secure a specified present indebtedness and also future advances to the mortgagor, and which contains a provision avoiding it upon payment of all sums due or that may become due to the mortgagee, is not extinguished by the mere accidental circumstance that on one or two occasions during the continuance of an Unbalanced running account between the parties there was a credit in favor of the mortgagor. (Frank 3. Buck Co. v. Buck, 162 Cal. 300, [122 Pac. 466], approved.)</p> <p>Id.—Estoppel—Dealing With Mortgagee as Corporation.-—A mortgagor who deals with the mortgagee as a corporation in the execution of his mortgage and the notes secured thereby, is estopped from denying its corporate capacity in an action by it to foreclose the mortgage.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Munson & Barclay, Flint, Gray & Barker, Hunsaker & Britt, and J. W. McKinley, for Appellants.</p>

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

<p>Water Company—Bight to Water may be Limited to Stockholders— Water not Dedicated to Public Dse.—A corporation organized for the sole purpose, of supplying water to its stockholders, for use by them on a specific tract of land, is not a public service corporation. Such a corporation may limit the right to receive water to its stockholders, and waters distributed by it are not necessarily dedicated to public use.</p> <p>Id.—Water Supplied for Accommodation of Another Company.—The mere accommodation by such a corporation of another water company with some of its surplus water does not constitute those supplied by the latter company the customers of the former.</p> <p>Id.—Waiver of Bight to Dse of Water so Supplied—Estoppel of Consumers.—Where prior to its delivery to the distributing company, the consumers of the waters so furnished by the accommodating company joined in signing a written document in which they acknowledged themselves to be mere licensees of the water, and waived all right, whether existent or prospective, to its use, they are, in the absence of fraud, estopped from asserting that the accommodating company became obligated to continue to supply the distributing company with water for their use.</p>

<p>MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. E. N. Rector, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>J. H. Stewart, and White, Miller & McLaughlin, for Appellant.-</p>

<p>Taxation — Bulb os Strict Construction — Applicability to Tax Levy.—The rule of strict construction in tax matters, in so far as it is applicable to the determination of the validity of a tax levy, only means that the validity of the levy must be determined from a consideration of the language of the board of supervisors used in making it without resort to extraneous evidence to prove its intention.</p> <p>Id.—Construction op Order por Levy op Taxes—Clerical Errors to be Disregarded—Intention Determined by Consideration op Entire Order.—Where the validity of a tax levy is attacked for the alleged reasons that the tax rate fixed by the order was uncertain, and that a portion of the taxes levied was not levied for any specific purpose and was not apportioned to any particular fund, the intention of the board in such respects is to be ascertained from a consideration and construction of the entire order for the levy, and errors which clearly appear to be merely clerical are to be disregarded.</p> <p>Id.—Tax Deed to State—Recitals—Expiration of Period of Redemption—Error op One Day in Fixing Date.—Under section 3785 of the Political Code, requiring a tax deed to the state to recite “the time when the right of redemption had expired,” a deed is not invalid by reason of reciting that the time of redemption expired on a specified date which was one day after the last day of the redemption period.</p>

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

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

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

<p>APPLICATION for a Writ of Mandate directed to the Secretary of State of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County admitting a will to probate, and from an order-refusing a new trial. N. D. Arnot, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Isidore B. Dopkweiler, Walter R. Leeds, and Robert B. Murphey, for Appellants.</p>

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

<p>Appeal—Written Opinions of Trial Judge Embodied in Record—Support of Findings.'—Written opinions of the trial judge, notwithstanding these are embodied in the bill of exceptions used on appeal, cannot be considered in determining whether or not the findings are sufficiently supported by the evidence.</p> <p>Mortgage—Fraud on Creditors of Mortgagor—Evidence—Findings not Supported.—In an action to foreclose a mortgage, in which the defense was interposed by a judgment creditor of the mortgagor that the mortgage and the note secured thereby were without consideration, and were executed by the mortgagor with the intent to hinder, delay, and defraud his creditors, and were accepted by the mortgagee with knowledge of such facts and with the intent to assist the mortgagor in such fraudulent purpose, it is held, upon a review of the evidence, that the findings sustaining such defense are not supported by the evidence.</p> <p>Id.—Mortgage Given for Valuable Consideration—Burden of Proof —Mortgagee’s Knowledge of Fraudulent Intent of Mortgagor. In such action, if a valuable consideration for the note and mortgage were shown, the burden of showing the mortgagee’s knowledge of a fraudulent intent on the part of the mortgagor was on the judgment creditor.</p> <p>Id.—Consideration for Mortgage—Loan to Mortgagor—Failure to Arrange for Bate of Interest at Time of Loan—Execution of Mortgage Specifying Bate—Inference of Fraudulent Intent.— Where a loan of money to the mortgagor was the consideration for such note and mortgage, and nothing was arranged at the time of the loan as to the rate of interest it should bear, the fact that the note and mortgage subsequently accepted called for interest at the rate of eight per cent per annum compounding quarterly, did not warrant any inference of a fraudulent intent on the part of the mortgagee with relation to the other creditors of the mortgagor.</p> <p>Id.—Acceptance op Evidence op Indebtedness in Excess op Amount Due—Evidence Tending to Show Fraud.—The acceptance by a creditor from a debtor known to be financially involved of an evidence of indebtedness calling for more than is due, either in principal or interest, is not conclusive evidence of fraud. At most such a fact may be evidence tending to show fraud, which is purely a question of fact and not of law, except as otherwise provided in sections 3440 and 3442 of the Civil Code. Its importance as a circumstance tending to show fraud is necessarily dependent upon the facts of the particular ease.</p>

APPEALS from orders of the Superior Court of Los Angeles County denying motions for a temporary injunction. George H. Hutton, Judge. The facts are stated in the opinion of the court.

<p>Injunction—Discretion in Granting Preliminary Injunction—Irreparable Injury.—A preliminary injunction is not a matter of right. An application therefore, on the ground that unless it were granted the plaintiff would suffer great and irreparable injury, is addressed to the discretion of the court, and in denying it the court does not necessarily determine anything as to the merits of the main controversy. It may conclude that from the evidence produced on the • application it does not appear that pending a trial any possible injury can result to the plaintiff, and may decline to grant an injunction until after the trial of the cause.</p> <p>Id.—Diversion of Water—Refusal to Grant Preliminary Injunction to Riparian Owner—Absence of Injury.—It is not an abuse of discretion for the trial court to refuse to grant a preliminary injunction, at the instance of a riparian proprietor, to restrain the diversion of the waters of a stream, if the only injury which the plaintiff claimed it would suffer pending the trial was that a tenant of its property would be deprived of water for the use of his cattle, and the showing made by the defendant on the hearing of the application warranted the conclusion that no such injury would result.</p>

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

<p>Election—Charter of City of Oakland—Recall Election—Officers of Election Boards.—Under the provisions of the charter of the city of Oakland, section 1142 of the Political Code, determining the qualifications and method of appointment of the officers of election boards, applies to recall elections held under such charter.</p> <p>Id.—Apportionment of Officers Between Different Political Parties—Mandamus to Compel.—A writ of mandate will not lie to compel the city council of such city to apportion the officers of the election boards at a recall election among persons belonging to different political parties, as required by that section, in the absence of an averment that the council threatens to disobey the section in that particular.</p>

<p>APPLICATION for a Writ of Mandate to compel the city council of the City of Oakland and ex-officio Board of Election Commissioners, to appoint as officers of the election boards at a recall election persons of whom half belong to the Republican party and half to the Democratic party, as required by section 1142 of the Political Code. The further facts are stated in the opinion of the court.</p>

<p>Estate of Deceased Persons—Contest of Will—Costs of Unsuccessful Proponent—Allowance cannot be Made Until Termination of Contest.—While section 1720 of the Code of Civil Procedure places the matter of allowing costs and expenses incurred upon the contest of a will within the discretionary power of the court, and permits it to be exercised in favor of an unsuccessful proponent of a will, still this discretionary power should be exercised in his favor only “as justice may require,” where he has acted in good faith, and can be properly exercised only upon the final determination of the litigation.</p> <p>Id.—Premature Order of Allowance—Reversal Without Consideration of Merits.—An order allowing an unsuccessful proponent of a will his costs and expenses incurred in the contest, prior to the final determination thereof, is- premature, and will be reversed without a consideration of the merits.</p>

The facts are stated in the opinion of the court. Percy Y. Long, City Attorney, and J. F. English, Assistant City Attorney, for Petitioner. J. D. Fredericks, District Attorney for Los Angeles County, and Byron C. Hanna, Chief Deputy, Amici Curiae, for Petitioner.

<p>APPLICATION for a Writ of Mandate directed to Prank H. Smith, Judge of the Superior Court of San Joaquin County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank Freeman, Owen D. Richardson, and Harry I. Stafford, for Appellant.</p> <p>U. S. Webb, Attorney-General, J. Charles Jones, Deputy Attorney-General, and Raymond Benjamin, Deputy Attorney-General, for Respondent.</p>

<p>Quieting Title to Grocery Business—Unsustained Finding of Sole Ownership—Transfer in Trust for Family of Transferer.— In an action to quiet title to a certain grocery business, a finding, in accord with the allegations of the complaint, that the plaintiff is the sole owner of the business, is held not to be supported by the evidence, which shows that the plaintiff acquired the business by a transfer from his father, its former owner, in trust for the benefit of the members of his family, including the plaintiff and the defendants, and that he had been merely managing the business as such trustee for their benefit.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Anderson & Anderson, and Gibson, Trask, Dunn & Crutcher, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William B. Bosley, John P. Coghlan, and Charles W. Thomas, for Appellants.</p>

<p>Water-rights—Appropriation of Extraordinary Flood Waters as Against Riparian Proprietor.—-The flood waters of a stream, which are of no substantial benefit to the riparian owner or to his land, and are not used by him, may be taken at will by any person who can lawfully gain access to the stream, and conducted to lands not riparian, and even beyond the watershed, without the consent of the riparian owner and without compensation to him.</p> <p>Id.—Flood Waters not Parcel of Riparian Land.—Such flood waters are not a part of the flow of the stream which constitutes a “parcel” of the land of the riparian owner, within the meaning of the law of riparian rights.</p> <p>Id.—Ordinary Flood Waters Part of Usual Flow of Stream.—The foregoing rule is not in conflict with the decisions in the cases of Miller v. Say Cities Water Co., 157 Cal. 256, Miller J Lux v. Madera etc. Co., 155 Cal. 59, and Miller Lux v. Enterprise Co., 145 Cal. 652. In those cases the water in question, although in a sense high water, or flood water, was nevertheless a part of the regular and usual flow of the stream for a considerable part of each year and at a time when such flow was of substantial use and benefit to the riparian lands, or the flow of such waters in their accustomed place was necessary to the gathering of water in subterranean strata from which the owners of overlying land were entitled to take it.</p> <p>Id.—Threatened Diversion of Ordinary Flow—Action to Enjoin— Disclaimer as to All Waters Except Flood Waters—Other Issues Rendered Immaterial—Costs.—In an action by riparian owners to enjoin the defendant from making a threatened diversion of a certain portion of the waters of then ordinary flow of a stream, under a notice of appropriation thereof previously made, and by means of diversion works then in course of construction, an answer, in which the defendant denied any intention of taking water under such prior notice, and disclaimed any right to or intention to take any waters except flood waters, under a notice posted subsequent to the commencement of the action, accompanied by a statement to a similar effect made at the trial, had the effect to eliminate the question of the right and intent of the defendant to take a part of the usual and ordinary flow of the stream; and where the judgment gave the defendant no right to any waters except unusual flood waters, the evidence as to the other water-right once claimed by the defendant under its prior notice, and errors of law in admitting or excluding evidence of it, became, for the purposes of an appeal by the plaintiffs, wholly immaterial and harmless, except upon the question-of costs.</p> <p>Id.—Allowance of Costs in Equitable Action—Discretion not Abused.—In such an equitable action costs are allowed, apportioned; or withheld in the discretion of the court. Under all the circumstances shown, it cannot be said that the trial court abused its discretion in awarding costs to the defendant.</p> <p>Id.—Only Lands Bordering Stream have Riparian Rights.—In law, only those tracts of land which border upon the stream, notwithstanding others may be included within the watershed thereof, are endued with riparian rights.</p> <p>Id.—Judgment Awarding Flood Waters to Appropriator—Possibility of Use by Riparian Proprietor.—As such extraordinary flood waters do not come within the protection of the law of riparian rights, a judgment awarding an appropriator a portion thereof for nonriparian use cannot be assailed by riparian owners because of a mere possibility that they might in the future desire to impound such waters for use on their own lands.</p> <p>Id.—Appeal—Immaterial Evidence and Rulings Thereon—Use of Water by Appropriator.—On an appeal by the riparian owners from the judgment awarding the appropriator a portion of the extraordinary flood waters, the evidence concerning the recording of the notice of appropriation, and as to the exact amount of the riparian land, and the use to which the defendant intended to apply the water, becomes immaterial, and errors in relation thereto require no consideration, as they could not operate to the prejudice of the appellants.</p> <p>Id.—Findings as to Percolation and Seepage—Evidence.—The evidence, although conflicting, is held to sustain the finding that there was no percolation or seepage of water from the stream which benefited the riparian land, and was ample to have warranted the court in concluding that the water to be taken by the defendant would have no appreciable effect upon such seepage or percolation as may occur, and that its flow down the stream would not in that matter benefit the plaintiffs’ land.</p> <p>Id.—Findings—Situation of Headgate—Judgment Requiring Head-gate to be Maintained in Conformity With Conditions Existing—Finding of Amount of Ordinary Flow Immaterial.—-Where the findings in such action determine that the headgate of the defendant’s diversion dam is situated at such a height above the stream that it will not divert any water therefrom except during unusual floods and freshets, and the judgment awarding it a portion of such unusual flood waters requires such headgate and the bed of the stream to be kept in conformity with existing conditions so that no other water will ever be taken, and specifies the width and depth at which the channel of the stream is to be maintained for that purpose, the riparian proprietors are sufficiently protected thereby against the taking of the ordinary flow and ordinary flood waters, and a finding as to the exact amount of the ordinary flow and ordinary flood waters is immaterial.</p> <p>Id.—Judgment a Mandatory Injunction—Defendant may be Compelled to Maintain Relative Position of Headgate With Bed of Stream.—Such judgment operates as a mandatory injunction against the defendants taking any portion of the ordinary flow or ordinary flood waters of the stream, and safeguards the plaintiffs against changes of conditions from any cause, natural as well as artificial. If the bed of the stream should fill up, either naturally or artificially, so that the water to which the plaintiffs were entitled was diverted by the headgate, the defendant could be compelled to refrain from diverting any water at all until it had restored the stream to the condition, with respect to its capacity to carry water past the gate, as that in which it was at the time the judgment was rendered.</p> <p>Id.—Failure to Find as to Exact Amount of Ordinary Flow of Stream.—The failure of such judgment to specify in miner’s inches, or in any other artificial measure of quantity the amount of water which must be suffered to flow in the stream before the defendant takes any, does not render the judgment uncertain.</p> <p>Id.—Construction of Judgment on Appeal—Law of Case.—The construction given to such judgment by this court, in determining- the-appeal therefrom, becomes the law of the case and binding on the lower court in all subsequent proceedings and whenever its interpretation is material.</p> <p>Id.—Witness not Hydraulic Engineer—Evidence of Measurement of Flow of Stream—Correct Method op Measurement.—It was^not error, on the trial of such action, to allow a witness who was not a hydraulic engineer to testify to certain rough measurements he had made of the quantity of water flowing in the stream, where the methods of measurement adopted by him were correct in principle. The weight of such evidence was for the trial court.</p> <p>Id.—Qualification of Witness to Make Measurement—Cross-examination may be Limited.—It was discretionary with the trial court to limit the cross-examination of a witness as to his qualifications to make such measurements, when it appeared that he pursued the usual and correct method of measurement.</p> <p>Id.—Order Refusing New Trial—Newly Discovered Evidence—Sufficient Opportunity to have Produced Evidence.—It was not error to refuse the plaintiffs a new trial of such action because of newly discovered evidence concerning the relative elevations of the head-gate and the stream, and the physical characteristics of the stream at that point, when the answer, disavowing any claim to the usual flow and claiming only the flood waters, was filed in February, 1909, and the trial was begun in the following December.</p> <p>Id.—Review of Findings—Affidavit Used Solely on New Trial—Map not in Record.—An affidavit used in the trial court only upon a motion for a new trial cannot be considered on appeal in determining the sufficiency of the evidence to support the findings, and a map which is not in the record at all cannot be considered for any purpose.</p>

<p>APPLICATION for a Writ of Certiorari directed to the Superior Court of the City and County of San Francisco and to W. M. Conley, the Acting Judge thereof.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Order Denying New Trial—Notice of Intention—Failure to Embody in Bill of Exceptions.—A copy of the notice of intention to move for a new trial, although printed in the transcript, if not authenticated by a bill of exceptions, cannot be considered as a part of the record on appeal from an order denying the motion.</p> <p>Id.—Recitals of Grounds of Motion in Order Denying New Trial— Reference to Statement of Case—Bill of Exceptions Considered as Statement—Insufficiency of Evidence to Sustain Findings. Where the order denying a new trial recites that the motion therefor was presented "upon all the grounds stated in the notice of intention to move for a new trial and upon the statement of the case heretofore settled,” and the record on appeal fails to contain a copy of the notice, but does contain a bill of exceptions in which the insufficiency of the evidence to sustain the findings is specified, that document will be deeméd to be the statement of the case referred to in the order, and the recital in the order will be sufficient evidence that the objections set forth therein were the grounds of the motion.</p> <p>Id.—Absence of Showing of Service of Notice of Entry of Judgment —Review of Evidence on Appeal from Judgment—Time of Taking Appeal.—Where the record on appeal does not show that any notice of the entry of the judgment was ever served, the party wishing to take advantage of the fact that it was served, for the purpose of preventing a consideration of the evidence on appeal from the judgment taken more than sixty days after its entry, must show that \ such notice was served more than sixty days before the taking of such appeal, otherwise the appeal will be considered as having been taken under sections 941a, 941b, and 941e, of the Code of Civil Procedure. In such a case, by sections 941b and 941c, the sufficiency of the evidence is reviewable in the same manner as if the appeal had been taken within sixty days of the entry of the judgment under section 939.</p> <p>Partnership—Action for Accounting—Properties not Part of Firm Assets—Findings Sustained by Evidence.—In an action between partners for an accounting, it is held that the evidence does not sustain the contention of the plaintiff that the properties in controversy, although purchased by the defendant with his individual funds, belonged to the firm, for the alleged reasons that the defendant paid the consideration therefor in part by the performance of services in and about the properties, and thus his attention thereto prevented him from giving due attention to the firm business, and that he obtained the consent of the plaintiff that they should not be bought on firm account by concealing from the plaintiff the real character of the property or by failing to inform him thereof, and that the trial court properly found that the same were not a part of the firm assets.</p> <p>Id.—Duty of Partners to Each Other—Highest Good Faith Required.—The relation between partners is confidential, and with respect to the firm property and business each is trustee of the other. In the conduct of the business each must act in the highest good faiti toward the other, and may not obtain any advantage over him by the slightest misrepresentation or concealment.</p> <p>• Id.—Partner Engaging in Other Business.—X general partner who agrees to give Ms personal attention to the partnership business may not engage in any other business which gives him an interest adverse to that of the firm, or which prevents him from giving to the firm business all the attention which would be advantageous to it. Except as thus bound he may engage in any other business without being accountable to the firm for the profits thereof.</p> <p>Id.—Partner Need not Extend Individual Credit or Loan Money to Copartner.—A partner is under no obligation to use his own credit in borrowing money to loan his copartner to go into a business transaction either as a member of the firm or on Ms own account, and with respect to new enterprises in which the firm has no interest he is not bound to pay money for his copartner as a contribution for the latter to the enterprise.</p>

<p>Restoration of Destroyed Court Records—Restoration of Judgment-roll—Motion for New Trial Pending at Time of Destruction— Impossibility of Restoring Bill of Exceptions.—Under the provisions of the act of June 16, 1906 (Stats. 1906, Ex. Sess., p. 73), for the restoration of court records “lost, injured or destroyed by conflagration or other public calamity,” a judgment creditor in an action in the superior court of the city and county of San Francisco, the entire record of which was destroyed by the conflagration of April, 1906, may maintain a proceeding for the restoration of the judgment-roll therein, notwithstanding the fact that at the time of such destruction a motion for a new trial and the settlement of a bill of exceptions to be used thereon were then pending, and it is impossible to restore the contents of the bill of exceptions.</p> <p>Id.—Effect of Restored Record not Involved in Proceeding for Restoration.—On an application for the restoration of such judgment-roll, or on an appeal from the order of restoration, no question is involved as to the effect of the judgment-roll when restored, or as to the right of the judgment debtor to relief by or on account of the pendency of his motion for new trial.</p>

<p>APPEAL from an order of the Superior Court of Napa County denying a petition for the revocation of letters of administration on the estate of a deceased person, and refusing to issue letters of administration to the petitioner. Henry C. Gesford, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

APPEALS from an order of the Superior Court of Santa Cruz County granting a new trial as to one of the issues raised in the contest of a will, and from an order refusing a new trial as to other issues. George H. Buck, Judge presiding. The facts are stated in the opinion of the court.

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

<p>Criminal Law—Investigation by Grand Jury—Appointment oe Stenographic Reporter—Any Competent Person may be Appointed.— Under section 925 of the Penal Code, the grand jury, when criminal causes are being investigated before them, is authorized to appoint as stenographic reporter any competent stenographer. It is not essential that the one selected be the official reporter of the superior court, and sections 270 and 271 of the Code of Civil Procedure have no application to such an appointment.</p> <p>Id.—Irregularity in Appointment and in Serving Defendant With Testimony—Objection cannot be Taken on Motion to Set Aside Indictment or in Arrest of Judgment.—Objections that no copy of the testimony taken before the grand jury was served on the defendant within the time required by section 925 of the Penal Code, and that the grand jury never caused the person appointed as "stenographic reporter to transcribe such testimony, are not available on a motion to set aside an indictment or on a motion in arrest of judgment.</p> <p>Id.—Irregularities not Affecting Jurisdiction of Court.—The failure to observe the requirements of section 925 of the Penal Code respecting the appointment of a stenographic reporter by the grand jury, the reporting and transcription of the testimony, and the giving of a copy of the testimony to the defendant indicted within a certain time, does not affect the jurisdiction of the superior court, to try the defendant under the indictment found.</p> <p>Id.—Furnishing Defendant With Testimony Before Grand Jury— Object of Statute Requiring.—The object of the provision of section 925 of the Penal Code, requiring a longhand copy of the testimony taken before the grand jury to be furnished the defendant “within five days after the discharge of the grand jury, or if the grand jury has not been discharged, at least five days before the cause is set for trial,” is to enable him to know the testimony upon which the charge against him is founded, and to enable him to make his defense.</p> <p>Id.—Time for Furnishing Testimony—Directory Provision of Statute—Sufficient Time to Prepare Defense.—Such specification as to time is directory merely, and if the defendant is served with a copy of the testimony within a reasonable time and early enough to enable him to properly make his defense, the failure to comply literally with the terms of the statute is without prejudice to the defendant, and he cannot be heard to complain thereof.</p> <p>Id.—Discharge of Grand Jury—Reporter’s Duties not Terminated by.—The powers and duties of the reporter appointed by the grand jury did not end with the discharge of that body. The statute expressly made it his duty to transcribe the testimony in all cases where an indictment is returned, and contemplates that in some eases it would-necessarily be done after the grand jury had adjourned.</p> <p>Id.—Sufficiency of Indictment fob Murder,—An indictment charging that the defendant, at a specified time and place, “willfully, unlawfully, feloniously, and of his malice aforethought, did kill and murder one William Kaufman, a human being, contrary to the form, force and effect of the statute in such cases made and provided and against the peace and dignity of the people of the state of California,” sufficiently charges the crime of murder for all the purposes of an indictment.</p> <p>Id.—Defendant Witness in Own Behalf—Cross-examination—Mere Asking of Question not Prejudicial.—On a prosecution for such murder, where the defendant on his direct examination had testified that he did not remember anything about an attack made by him on the deceased and a third person, it is held, that it was proper on cross-examination to ask him if he did not remember laying in wait in an alley for the latter person. Even if such question was not proper cross-examination, the mere asking of it, in the absence of an answer thereto, will not be deemed prejudicial.</p> <p>Id.—Question Assuming Pact not Shown—Answer Rendering Question Unprejudicial.—The defendant was not prejudiced by being asked the question whether when he had stabbed the deceased and knew he was dead, he remembered leaving, although it improperly assumed that the defendant knew that the deceased was dead, if he answered substantially that he had no recollection of any of such things.'</p> <p>Ib.—Argument of District Attorney—Defense of Insanity.—It is held, in view of the instructions, that the defendant was not prejudiced by remarks made by the district attorney in his argument regarding the defense of insanity.</p> <p>Id.—Expert Witnesses on Insanity—Sufficient Opportunity for Observation.—Where medical witnesses, competent as experts on insanity, had officiated as commissioners on an examination of the defendant for insanity, one of them having also had him under observation for an hour or more a few days prior thereto, their opportunity for examination and observation was sufficient to warrant the court in allowing their opinions as dip the sanity or insanity of the defendant at the time of the exanünptign to be given in evidence.</p> <p>Id.—Intimate Acquaintance—Warden .qf State Prison Having Custody of Defendant.—A warden of a state prison, who had had the defendant in custody for three years next preceding the homicide, and had conversed with and observed him during that period, was qualified, as an “intimate acquaintance” of the defendant, within the meaning of subdivision 10 of section 1870 of the Code of Civil Procedure, to give his opinion as to his mental sanity.</p> <p>Id.—Immaterial Question Asked Warden not Prejudicial.—A question asked the warden, whether the deceased, who was killed while confined in prison, had the reputation while there of being a busybody, although immaterial, was without prejudice to the defendant.</p>

<p>Mechanics’ Liens—Abandonment by Contractor—Completion of Work by Owner—Amount Available for Liens.—Where a contractor for the making of certain alterations and additions to a building, abandoned the work before completion, and notice of cessation of labor was duly filed by the owner, which proceeded to complete the work itself, the rule for ascertaining the amount available for liens of persons other than the contractor was, prior to its repeal in 1911, that fixed by the provisions of section 1200 of the Code of Civil Procedure.</p> <p>Id.—Determination of Value of Work and Materials at Time of Abandonment—Value of Completed Improvement.—The value of the work done and materials furnished at the time of the abandonment of the work, “estimated as near as may be by the standard of the whole contract price,” as provided by that section, is to be determined by taking such proportion of the actual value of the work and materials done and furnished at the time of abandonment as the total contract price bore to the actual total reasonable cost of the complete improvement, the last mentioned figure being reached by adding to the actual value of the work done and materials furnished at the time of the abandonment, the reasonable cost of completing the building.</p> <p>Id.—Finding of Dltimate Fact of Value at Time of Abandonment. In an action to foreclose mechanics’ liens, involving the determination of the amount available for liens after abandonment by the contractor and completion by the owner, it was not necessary to make a specific finding of the reasonable cost of completing the work after the cessation of labor by the contractor. That was an evidentiary matter, and was included in the finding of. the ultimate fact of the value of work done and materials furnished at the time of cessation, estimated as required by section 1200.</p> <p>Id.—Owner not Entitled to Allowance for Premature Payments. Under such circumstances the owner is not entitled to an allowance for payments made to the contractor before they were due under the contract. All that he is entitled to deduct, under section 1200, is the sum of the payments then due, and actually paid according to the terms of the contract. And it is immaterial that such premature payments, under an agreement between the owner and the contractor, were made directly to subcontractors, materialmen, and laborers, and that a portion thereof came into the hands of the lien claimants.</p> <p>Id.—Payments Made Pursuant to Architect’s Certificates may be Premature.—A provision in the specifications that “payments will be made only on the certificate of the architect,” was for the protection of the owner alone, but did not purport to make the certificate conclusive in favor of the owner or against lienors; and payments so made by the owner before they became due are to be regarded as premature, notwithstanding they were made pursuant to architects’ certificates.</p> <p>Id.—Owner not Entitled to Allowance for Damages for Delay.— Under section 1200, the owner was not entitled to deduct from the balance applicable to liens the damages suffered by it through the failure of the contractor to complete the building within the stipulated time.</p>

<p>APPEAL from a judgment of the. Superior Court of the City and County of San Francisco, from an order refusing a new trial, and from an order denying a motion in arrest of judgment. Frank R. Willis, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>W. D. Cardwell, Eugene G. Strickler, and D. F. Conway, for Appellant.</p> <p>U. S. Webb, Attorney-General, John H. Riordan, Deputy Attorney-General, C. M. Fickert, District Attorney, and J ames F. Brennan, Assistant District Attorney, for Respondent.</p>

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

<p>Assignment of Expectancy by Heir—Equity will Enforce After Devolution of Estate—Rules of Law and Equity.—Notwithstanding the provisions of sections 700, 703, and 1045, of the Civil Code, the courts of this state have recognized and applied the doctrine of equity that a conveyance or release by an heir of his expectancy in the estate of his ancestor, will, under some circumstances, be enforced against his share of such estate, after it has devolved upon him by the death of the ancestor. Those sections of the code do not charge the pre-existing rules of equity on the subject, but merely declare the pre-existing rules of the law relating thereto.</p> <p>Id.—Equitable Assignments of Future Interests—Applicability of Rule to Vested Interests and to Mere Possibilities.—The California cases recognize the rule as a general one that equity will uphold assignments, not valid in law, of any future interest, as a rule applying alike to those which are vested, but relate to property to come into existence in the future, and those which rest only in possibility, provided they are fairly made and not against public policy.</p> <p>Id.—Enforcement of Assignment in Equity—Consideration—Public Policy.—A mere expectancy, such as that of an heir in the estate of his ancestor, is assignable in equity for a valuable consideration; and when the expectancy has fallen into possession, the assignment, in whatever way it may come before the court, will be upheld and enforced, if founded upon a valuable consideration and not contrary to public policy, to the extent that it is fair and reasonable.</p> <p>Id.—Assignment Only Enforceable so Far as Reasonable—Exorbitant Interest Will be Reduced.—Where the consideration for such an assignment is a loan and the interest is exorbitant, or .the terms unconscionable, the courts will compel each party to do equity. The assignee, on the one hand, will be allowed to enforce his equitable charge on the property only to the extent of the sums actually advanced and reasonable interest; and the heir, on the other hand, will be given a decree setting aside the assignment only upon the condition that he shall repay the sums advanced, with interest and costs.</p> <p>Id.—Present Equitable Charge Created by Assignment as Security for Loan—Lien Attaches When Descent is Cast.—Upon the execution of such an assignment by the heir, as security for a loan, there is created a present equitable charge on the property, which equity recognizes as vested, although it is neither vested nor valia at law, and which, when the descent is cast, at once ripens into a lien upon the property for the security of the money loaned.</p> <p>Id.—Equitable Assignment Valid Against Assignor in Bankruptcy —Effect of Discharge in Bankruptcy.—As a general rule, an f assignment, invalid at law but good in equity, is valid in equity ' against the assignor in bankruptcy, whether the thing is assigned ; absolutely or only as security for a debt. In the latter case, the discharge in bankruptcy terminates the legal personal obligation to pay the debt, and the right granted or assigned is limited to the : enforcement of the payment of the money loaned, with interest, out ^ of the property which is the subject of the grant or assignment.</p> <p>Id.—Personal Liability for Debt not Necessary to Equitable Charge,—The continued existence of the debt as a personal obligation to pay money, is unnecessary to the enforcement of an equitable charge or lien upon specific property.</p> <p>Id.—Lien Created by Assignment Preserved by Bankrupt Act—■ Enforcement After Discharge in Bankruptcy of Assignor.— The lien created by such an assignment, if made more than four months before the filing of a petition to have the assignor adjudged a bankrupt, was preserved by section 67 of the Bankrupt Act of 1898, and the discharge of the assignor in bankruptcy, prior to the descent being east, did not divest the assignee of his existing equitable charge on the assignor’s prospective inheritance, or of his right to subsequently enforce it against the property after it had come into the assignor’s possession.</p> <p>Id.—Assignment Enforceable in Equity Notwithstanding Inequitable Features—Unconscionable Interest will be Reduced.— The existence of inequitable or unconscionable features in connection with such grants or assignments does not prevent their enforcement in equity so far as they are just and equitable; and if such an assignment is given as security for a loan, bearing an unconscionable rate of interest, the court will allow only such interest as is just and fair.</p> <p>Id.—Consent of Ancestor not Essential -to Assignment.—It is not necessary to the enforcement of such an assignment in equity, that at the time it was executed it was approved or consented to by the ancestor.</p> <p>Id.—Assignee Need not be One Having Interest in the Property.— It is not essential to the validity of such an assignment that it be made to one who already has some interest in the property or some possibility of an interest, as, for example, a coheir or one of the ancestors.</p>

<p>Deed—Building Restrictions—Lot Forming Part of Tract—Covenants. Running With Land for Benefit of Other Lots—Violation of Restriction.—A restriction in a deed of a lot forming part of a tract of land belonging to the grantor, to the effect that no building other than a residence with the customary outbuilding should be placed upon the lot, and that such residence should be erected not less than a specified distance from the front line of the premises, and which is expressly made to operate as a covenant running with the land for the benefit of other lots in the tract or their owners, is valid, and for its violation, an action may be maintained by the owner of any lot in the tract for the benefit of which the restriction was imposed.</p> <p>Id.—Purpose of Restriction.—The purpose of such a restriction is to prevent the encroachment of substantial parts of a building.</p> <p>Id.—Encroachment of Porch of Residence.—A residence so constructed that the roof of its porch extends two feet and four inches over the restricted space, and the pillars of which encroach five inches thereon, is in violation of the covenant, but the placing of steps within the restricted space is not.</p> <p>Id.—Plaintiff Suffering Damage from Erection of Particular Building—Violation of Restriction by Other Lot Owners— Right of Action not Waived.—The plaintiff, who had been damaged by a residence erected by the defendant in violation of such covenant, did not waive her right to maintain an action therefor by reason of the fact that before the defendant bought his lot buildings had been put upon various other lots in the tract in violation of the restriction, without objection by the plaintiff or other lot owners, where there is nothing to show that the plaintiff was damaged by such other violations, or had any knowledge thereof until after the commencement of her action.</p> <p>Id.—Stipulation as to Agreed Facts—Findings Unnecessary.—A written stipulation that certain allegations of the pleading are true amounts to an agreed statement of facts, and no findings thereon are required.</p> <p>Id.—Complaint for Damages and Injunction—Judgment for Damages Only.—Where the complaint states a cause of action for damages for violation of such covenant, and also one for an injunction against maintaining the residence ás erected, the defendant cannot complain of a judgment merely because it awards the plaintiff damages without granting her an injunction.</p>

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

<p>Adoption—Proceedinss for are Statutory.—The adoption of a child was a proceeding unknown to the common law, and it exists in this state only by virtue of the statute, which, in section 224 of the Civil Code, expressly prescribes the conditions under which adoption may 'be legally effected.</p> <p>Id.—Consent of Parents When Essential—Jurisdiction.—Consent of the parents lies at the foundation of statutes of adoption, and under our law this consent is made absolutely essential to confer jurisdiction on the superior court to make an order of adoption, unless the conditions or- exceptions exist specially provided by the statute itself, and which render such consent unnecessary. Unless such consent is given, or, for the exceptional causes expressly enumerated is dispensed with, the court has no jurisdiction in the matter.</p> <p>Id.—Child in Custody Under Order of Juvenile Court—Desertion or Abandonment by Parent.—In proceedings for the adoption of a minor, the fact that the child had been taken from the custody of the mother and placed under the control of a third person, under an order of the juvenile court, and the circumstances surrounding such taking, can only be considered for the purpose of determining whether the child was deserted or abandoned by its parents within the meaning of section 224 of the Civil Code, and hence, by the terms of that section, the consent of the mother was rendered unnecessary.</p> <p>Id.—Order for Adoption Without Parent’s Consent—Court Without Discretion to Make—Interest of Child.—In adoption proceedings, no discretion is committed to the superior court to make an order therefor, regardless of the consent or wishes of the parent, or the existence of the prescribed conditions dispensing with such consent and solely because it is satisfied that the interest of the child will be promoted thereby.</p> <p>Id.—Parents Derelict in Parental Duty—Proceedings Authorized to Take Custody of Children.—If there exists such dereliction of parental duty as necessitates the taking of children out of the custody of their parents, the state, as parens patriae, in aid of the welfare of children, has provided means, through guardianship or other judicial proceedings, or under the juvenile court law, by which it may be accomplished without completely destroying the natural relation existing between the parent and child.</p> <p>Id.—Statutory Proceedings for Adoption must be Strictly Construed—Conditions Dispensing With Parent’s Consent must be Clearly Established.—The power of the court in adoption proceedings to deprive a parent of his child being in derogation of his natural right to it, and being a special power conferred by the statute, such statute must he strictly construed, and in order to warrant the exercise of the power and sustain an order for adoption made in opposition to the wishes and against the consent of the natural parent on the ground that conditions prescribed by statute exist which make that consent unnecessary, the existence of such conditions must he clearly proved, and the evidence bring them within the terms and intent of the statute.</p> <p>Id.—Divorce—Provision of Decree Awarding Custody of Children.— . In proceedings for divorce the court has power and authority to make such orders as it may deem necessary and proper for the custody of the children of the marriage, without being constrained in any respect by the cause for which the divorce is granted, and may at any time vacate or modify such order.</p> <p>Id.—Consent of Parent Divorced for Cruelty—Section 224 of Civil Code Construed.—While section 224 of the Civil Code provides generally that consent shall not be necessary to the adoption of children of the marriage from the parent against whom the decree is granted on the ground of cruelty, it stops there, and does not assume to interfere with the orders of the court in divorce proceedings as to the custody of children.</p> <p>Id.—Consent of Guilty Parent Awarded Custody of Children Necessary to Adoption.—It is the intent of that section, when a divorce is granted for cruelty and the custody of the children is awarded absolutely to the innocent party, to dispense with the requirement in adoption proceeding of the consent of the guilty parent. Where, .. however; such "divorce decree absolutely awards the • custody • of the children to the parent -found guilty of the cruelty, that parent’s consent is absolutely essential to the validity of any order for their adoption, unless the children had been deserted or abandoned, within the intent and meaning of section 224 of the Civil Code.</p> <p>Id.—Children may be Awarded to Mother Adjudged Guilty of Cruelty by Divorce Decree.—The fact that a mother has been guilty of cruelty toward her husband does not compel the court in awarding him a decree of divorce on that ground to also award the custody of the children to him.</p> <p>Td.—Desertion—Child Remaining With Neighbor After Eunning Away.—Permitting a child, who had run away from the home of its mother having its legal custody, to remain for a few days with the family of a neighbor, does not constitute desertion by the mother.</p> <p>Td.—Abandonment of Child Defined—Intent to Abandon.—In order to constitute abandonment of a child by the parent, 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. There must be an intention to abandon, express or implied from the conduct of the parent respecting the child.</p> <p>Id.—Leaving Child in Care of Another for One Year Without Provision for Support.—An abandonment of such character is that contemplated by section 224 of the Civil Code, in the provision that “any child left in the care and custody of another by its parent or parents, without any agreement or provision for its support for the period of one year, is deemed to be an abandoned child.”</p> <p>Td.—Abandonment by Mother—Child Awarded to Care of Third Per-1 son Under Order of Juvenile Court—Absence of Consent of Mother.—The fact that a child, without the consent of the mother having its custody and against her wishes and desire, was taken from her custody under an order of the juvenile court, and placed in that of a third person, and remained in the custody of the latter for upwards of a year, despite the personal efforts of the mother to secure its return, and while she remained under the mistaken belief that she could not enforce its return by judicial proceedings, does .not establish an abandonment of the child by the mother.</p> <p>Td.—Appeal by Parent from Order of Adoption—Beversalt—Bestoration of Child to Parent—Void Order of Juvenile Court—Habeas Corpus.—On an appeal by a parent from an order for the adoption of a child, the custody of which hadi been committed to a third person by an order of the juvenile court, the appellate court cannot, on reversal of the order, direct the child to be restored to the parent. If the juvenile court proceedings are void, and the child illegally detained thereunder from its parent, its possession may be obtained under habeas corpus proceedings.</p>

<p>APPEALS by the defendant from judgments of the Superior Court of Los Angeles County, and from an order refusing a new trial, and appeals by the plaintiff from portions of such judgments. Walter Bordwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Gibson, Trask, Dunn & Crutcher, and Edward E. Bacon, for Plaintiff, Appellant in No. 2774 and Respondent in No. 2764.</p> <p>J. W. McKinley, and W. R. Millar, for Defendant, Respondent in No. 2774 and Appellant in No. 2764.</p>

<p>Town of Santa Cruz—Act of Congress of July 23, 1866—Grant by United States of Land Within Corporate Limits.—The Act of Congress of July 23, 1866, providing “that all the right and title of the United States to the land within the corporate limits of the town of Santa Cruz in the state of California, as defined in the act of the legislature of that state incorporating said town, be and the same are hereby relinquished and granted to the corporate authorities of said town and their successors, in trust for and with authority to convey so much of said lands as are in the bona fide occupancy of parties upon the passage of this act by themselves or tenants, to such parties,” operates to grant all the land within the corporate limits of such town then belonging to the United States, whether the same was occupied or unoccupied, but charged the corporate authorities with the duty and trust to convey to every bona fide occupant the land he occupied.</p> <p>Id.—Grant to “Corporate Authorities”—Title Passed to Municipality.—Although the act granted title to the “corporate authori-' ties” of the town, and no’t to the town itself, that expression was used to describe the corporate entity, and not the individuals who then held office as such authorities, and title thereunder vested in the town as an incorporated body.</p> <p>Id.—Tide Lands on Navigable Bay—Title in State for Uses of-. Navigation and Fishery—Grantee Takes Subject to Such Uses. Tide land situated on a navigable bay is held by the state in trust ■ for the benefit of the people. The right of the state is subject to the public rights of navigation and fishery, and, theoretically, at least, the state can make no disposition of them prejudicial to the right of the public to use them for the purpose of navigation and fishery, and whatever disposition she does make of them, the grantee takes them upon the same terms upon which she holds them, and of course, subject to such public rights of navigation and fishery.</p> <p>Id.—Preparing Tide Land for Uses of Navigation—Constructing Seawall—Filling in Land—Use for Navigation Divested—Disposition for Private Use.—When in preparing such tide land for the purpose of navigation, the state finds it necessary to make a seawall and fill in the land between it and the open water and thereby or in some other way for the same purposes, excludes some part of such land from use for purposes of navigation, the public use for navigation, as to that part, becomes divested or abandoned, and it becomes proprietary land, which the state can dispose of to private use.</p> <p>Id.—Construction of Grant by State—Grant Subject to Paramount Bights of Navigation and Fishery.—The act of March 21, 1872, providing, that “all of the tide lands within the corporate limits of said town, between the line of high and low tide, are hereby dedicated as public grounds, and the title thereto is granted to the town of Santa Cruz in trust for the use of the public, and without power to sell or in any manner to- dispose of the same or any part thereof, but nothing herein contained shall in any manner be construed so as to prevent the construction ... of wharves over, in, and through said lands by authority of the laws of the state of California, or the free use thereof for fishing purposes,” was evidently enacted in recognition of the fact that Santa Cruz has always been a summer resort, especially adapted to sea bathing and other sports and diversities of similar character, and its purpose was to dedicate the tide land to such uses, subject to the use for navigation and fishery, and to transfer the title to the town for that purpose as custodian . or administrator of that public use. The city’s title is, therefore, subject to these paramount rights of navigation and fishery.</p> <p>Id.—Wharf Constructed for Bailroad Purposes—Grant of Franchise by Municipality—Due Enactment of Ordinance Admitted. In an action involving the right of a railroad company to operate a wharf constructed by it for railroad purposes over tide lands situated within the corporate limits of the town of Santa Cruz, under an ordinance of that town, enacted on January 9, 1875, purporting to grant a franchise therefor for fifty years, an admission on the trial that the ordinance was duly and regularly adopted, implies that all the necessary jurisdictional steps had been taken before its passage and that it received the two-thirds vote of the town council, required for a railroad franchise by section 470 of the Civil Code.</p> <p>Id.-—Failure of Ordinance to Describe Quantity of Land to be Used for Wharf—Statutory Provision Directory.—The requirement of section 2911 of the Political Code, that a grant of tide land for wharf purposes shall particularly describe the quantity of land over which the right of way is given, is directory only, at least to the extent that upon a collateral attack a failure to observe the requirement will not, of itself, be sufficient to make the grant wholly void.</p> <p>Id.—Ordinance Granting Wharf Franchise, to Bailroad—Construction in Favor of Grantee—Nature of Wharf to be Built—Aid to Commerce Carried on Bailroad—Wharf Constructed by Authority of Laws of California—Exception in Grant to Town. An ordinance of the town of Santa Cruz, granting a railroad company a franchise to construct and maintain a railroad along a named street “to and upon the wharf of said grantee to be constructed at or near the foot of” said street, in view of the fact that the grant was in furtherance of the paramount public use of navigation for which the state holds tide lands in trust, and had been accepted and a wharf erected thereon by the grantee, and maintained and used for many years without objection, should be liberally construed in favor of the grantee, in so far as it purports to grant such right; and as such town had power and authority over its waterfront and bay, the grant would imply and carry with it the authority to the grantee to build the wharf at the foot of the street, and to connect it therewith, and to extend it into the water for such distance as should be necessary to connect it with deep water and make it convenient for the commerce to be carried on over the railroad, and to maintain and use it, when built, so long as the franchise continued. Such wharf is -built “by authority of the laws of the state of California” within the meaning of the exception in the grant of tide lands to Santa Cruz under the act of March 21, 1872.</p> <p>Id.—Constructing Railroad Over Public Bay or Roadstead—Grant from City or Town When Necessary.—Sections 465 and 475 of the Civil Code, in effect, give the privilege of constructing and operating a railroad over any public bay or roadstead in the state, not within a city or town, to any railroad corporation that accepts the privilege and uses it. As to the waters of such bay or roadstead which are within a city or town, a grant from the council is necessary.</p> <p>Id.—Franchise for Mere Wharf—Duration of Right—Wharf Larger Than Necessary for Railroad—State Succeeds to Right of Possession of Excess.-—The grant of the right to construct and maintain such wharf would endure as a purely wharf franchise, under section 2911 of the Political Code, only twenty years from the date of the grant; and if, upon the expiration of such franchise, the wharf is larger than is necessary for railroad purposes, the state, and not the city of Santa Cruz, would succeed to the right of possession of the excess, and alone could maintain an action to recover possession.</p> <p>Id.—Grant of Wharf Franchises—Local Bodies Act as State Agencies—Title to Tide Lands Remains in State—Termination of Franchise—Wharf Part of Realty and Becomes Property of State.—The sections of the Political Code giving power to boards of supervisors and cities and towns to authorize the construction of wharves bordering on navigable waters for purposes of navigation, do not transfer to the county, city or town, or to the governing authorities thereof, any right or title to the tide lands, or to the wharves erected under the authority given by those bodies. Such subordinate political bodies are merely constituted agents of the state and empowered as such to grant the franchises mentioned on behalf of and for the state. The title to the tide lands for that purpose remains in the state, and when the right granted by the local authority has terminated, the wharf, being suitable for the paramount public use of navigation, and also a structure of a permanent nature affixed to the realty, is a part thereof, and becomes the property of the state.</p> <p>Id.—Operation of Wharf After. Termination of Franchise—Acquiescence by State—Tenants at Sufferance—City cannot Question Title of Party in Possession.—Upon the termination of a wharf franchise granted by the town of Santa Cruz, the wharf erected in pursuance thereof over tide lands within the limits of the town, become the property of the state, and the state has the right to maintain it or to permit it to remain for the public use of navigation. If thereafter it is operated by the grantees of the franchise for the benefit of the public and with the acquiescence of the state, for the purposes of navigation, such grantees are, at least, tenants by sufferance under the state, a title which third persons, including the city of Santa Cruz, having no interest or privity with the state with respect to such use, cannot question.</p> <p>Id.—Obstruction to Beach not in Aid of Navigation—Bight of City to Remove or Prevent—Obstruction in Aid of Paramount Eight of Navigation.—The city of Santa Cruz, as custodian of the subordinate use relating to its tide lands under the act of March 21, 1872, would have the right to remove, or cause the removal, or prevent the erection of, any obstruction placed upon the beach by the grantee of the wharf franchise that was not appropriate for wharf purposes and was not useful in aid of navigation, on the ground that it was an unnecessary purpresture upon that particular public use, but it cannot complain of an obstruction that is necessary to the use or preservation of the wharf for the paramount purpose of navigation.</p> <p>Id.—Eight to Maintain Spur Track on Wharf.—The right to maintain and operate such wharf includes the right to construct and maintain thereon, as a reasonable convenience for its operation, a spur track connecting the main track thereon with the line of another road.</p> <p>Id.—Encroachment of Wharf on City Street—Rendering Wharf Accessible from Street—Authority of City.—Under its general power to improve its streets, the town of Santa, Cruz had authority to have a small part of the street, along which the railroad had been granted its franchise, and at the foot of which the wharf was constructed, to be so improved by making it'a part of the wharf as to give access thereto for footmen and vehicles, if the use of the street for ordinary purposes was not impaired thereby.</p> <p>Id.—Proprietary Lands of City—Title by Prescription may be Acquired—Possession Held Under Ordinance Granting Franchise—Claim of Eight.—Proprietary land belonging to the city of Santa Cruz not dedicated to public use, situated between such street and the tide land, is'subject to the ordinary rules concerning title by prescription, and the possession thereof by the grantee of the wharf franchise, under claim of right by virtue of the grant contained in such ordinance, for over thirty years, is sufficient to establish a prescriptive title thereto, for the term of the grant, even' if such ordinance w'ere'invalid.</p>

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

<p>False Representations—Deceit—Resulting Detriment Necessary to Cause of Action—Executory Contract.—A plaintiff has no cause of action for fraud or deceit, no matter what their nature, unless detriment has been caused thereby. Therefore, if one party by fraud has been induced to enter into a contract executory as to both parties and nothing whatsoever is done under that contract, he has ordinarily suffered no injury therefrom.</p> <p>Id.—Performance of Executory Contract Induced by Deceit—Deceit not Merged in Contract.—On the other hand, it may not be said that the deceit which has induced the making of an executory contract is merged and ends in the contract itself. If the deceit does not end in the making of the contract, but still further influences a party to the contract in his conduct under it, it is a deceit of a continuous nature, of which the injured party may justly complain.</p> <p>Id.—Mere Expression of Opinion—General Rule.—As a general rule, an action for deceit cannot be founded upon the mere expression of an opinion, but the qualifications and modifications of such rule are numerous and as important as the rule itself.</p> <p>Id.—Expression of Dishonest Opinion—Action for Deceit will Lie. As the expression of an opinion, if honestly made, is an expression of what the speaker believes to be a fact, it follows that by the expression of a dishonest opinion to one entitled' to rely upon it, deceit is practiced, injury may be worked and an action will lie.</p> <p>Id.—Opinion When Affirmation of Fact.—Wherever a party states a matter which might otherwise be only an opinion and does not state it as the mere expression of his own opinion, but affirms it as an existing fact material to the transaction so that the other party may reasonably treat it as a fact and rely and act upon it as such, then the statement clearly becomes an affirmation of fact within the meaning of the general rule and may be a fraudulent misrepresentation.</p> <p>Id.—Action for Deceit in Inducing Building Contract—Pleading— Want of Architectural Skill—Mis statements as to Cost of Building—Preparation of Plans and Estimates of Cost.—In an action to recover damages for fraud and deceit, a complaint which avers that the plaintiff was induced to enter into a contract to employ the defendant to erect for it a building for a specified percentage of the moneys to be expended by it in its construction, by reason of his false and fraudulent misrepresentations (1), that he had great architectural and structural skill, when in truth and in fact he possessed none; (2), the positive assertion of the fact, or as an expression of opinion, that the maximum cost of the building such as plaintiff desired to erect, and the erection of which actually cost seven hundred thousand dollars, would not exceed three hundred thousand dollars; (3), that if plaintiff would sign the contract the defendant would, without delay prepare full and complete plans and specifications of the kind provided for in the contract, and would forthwith make an actual detailed estimate of the cost such estimate “to be accurate to the last nail thereof,” and (4), that if such estimate exceeded three hundred thousand dollars, the defendant, by the exercise of his knowledge and skill, could and would change and modify the plans and specifications so as to reduce the cost of the building to a sum not to exceed three hundred thousand dollars, and which further avers the commencement and partial erection of the building in pursuance of such contract, and the resultant loss to the plaintiff, states a cause of action.</p> <p>Id.—Continuing Misrepresentation as to Skill.—The effect of the false representation by the defendant of his special skill and knowledge did not terminate with the making of the contract, and the plaintiff, during the period of its execution, was justified in relying upon such representation.</p> <p>Id.—Continuing Misrepresentation as to Cost—Declaration of Fact.—The representation as to the cost of the building, whether regarded as a representation of fact or as an expression of opinion, was also of continuous influence and effect. It is held, however, that the representation in that connection imports the declaration of a fact, rather than the expression of an opinion.</p> <p>Id.—Waiver of Fraud—Estoppel by Conduct—Insufficient Allegations of.—Further averments in such complaint to the effect that after the execution of the contract the plaintiff failed to exact of the defendant the presentation of the plans and specifications of the building and a detailed estimate of its Cost, as contemplated by the contract, and also paid on account of the building all but fifty thousand dollars of the estimated amount of its cost, before its fears were excited that the contract could not be completed within the stated figure, are held, under the circumstances alleged, not to show that the plaintiff was guilty of such dereliction or culpable neglect in such matters as to constitute either a waiver of the fraud or an estoppel by conduct from charging upon it.</p> <p>Id.—Agent fob Construction of Building—Duty to Principal—Right of Principal to Rely on Representations.—Prom the moment the contract was entered into between the parties they ceased to be dealing at arm’s length, and the defendant became, as architect, contractor, and superintendent of construction under the pay of the plaintiff, its trusted agent, charged with the duty to make full disclosure of all knowledge which he possessed and which it was desirable or important that his principal should know, and the latter had the right to rely upon his representations antecedently made and, subsequent to the contract, oft repeated.</p> <p>Id.—Ordinary Prudence of Principal—Means of Knowledge to Discover Agent’s Deceit.—In determining whether the plaintiff acted with ordinary prudence in such matters, the real test is whether or not it was guilty of a carelessness such as to bar its right of action for deceit against its trusted agent dealing with matters peculiarly within the knowledge of the agent and under false representations directly made by the agent, because it did not employ every avenue and means of knowledge open to it to discover the agent’s perfidy.</p> <p>Id.—Trust Reposed by One Party to Contract in the Other—False Representations.—When one of the parties to a contract places a known trust and confidence in the other, any misrepresentation by the party confided in with respect to a material fact and constituting an inducement to the other party by which an undue advantage is taken of him, is regarded as a fraud. The same is true where the circumstances are such that one of the parties must necessarily trust in the representations of the other.</p> <p>Id.—Repudiation of Contract upon Discovering Deceit—Completion of Building by Principal.—The plaintiff had the right, upon discovering the defendant’s deceit while the building was in an unfinished condition, to repudiate its contract with the defendant, and to complete the building at a reasonable cost, and in so doing it did not waive its right of action to recover damages for the defendant’s deceit.</p> <p>Id.—Action for Deceit—Damages Recoverable.—In such action the plaintiff is entitled to recover by way of damages the amount paid the defendant by way of commissions, and the excess cost of the building above the sum which it contemplated expending, and upon which alone it can receive any fair and adequate return by way of rental.</p>

<p>APPLICATION for a Writ of Prohibition directed to the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate directed to the Secretary of State 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>White, Miller & McLaughlin, and B. F. Geis, for Appellants.</p>

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

<p>Election Contest—Order Continuing Hearing Beyond Twenty Days —Directory Provision of Statute—Jurisdiction.—An order continuing the hearing of an election contest beyond the twenty days allowed by section 1121 of the Code of Civil Procedure, is unauthorized, and although the provisions of the section are merely directory, and their observance not essential to the jurisdiction of the court to complete the hearing after an unwarranted continuance, it is nevertheless the duty of the court to conform to the law as far as possible.</p> <p>Ip.—Mandamus to Compel Hearing—Writ Denied When Delay is-Inappreciable.—The supreme court will issue a writ of mandate to- compel the trial court to hear such contest within the time limited/ by the statute, if it appears necessary for the protection of the rights of the contestants. It will, however, deny an alternative writ," where the application therefor was made so late that' only one week - would intervene between' the day on which the return thereto could' be heard and the day set for the hearing of the contest.</p>

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

<p>Contract—Repudiation of Entire Contract by Promissor—Part Performance by Promissee—Quantum Meruit for Services Performed.—Upon the breach and repudiation by the defendant before complete performance by the plaintiff of an entire contract, by the terms of which the plaintiff was to sell a specified number of shares in a corporation in consideration of which the defendant agreed that certain benefits and advantages should be received by the plaintiff, the latter may maintain an action in quantum meruit, for the value of his services performed under the contract.</p> <p>Ed.—Election of Remedies upon Breach of Contract.—Where one party to a contract repudiates it or prevents the other party from fully performing it according to its terms, the latter may treat the contract as broken and at an end, and at his election sue either for damages consequent on its breach or for the value of his services performed under it up to the time of the breach as upon a quantum meruit.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Wm. A. Cheney, George P, Adams, and LeBoy M. Edwards, for Appellant.</p> <p>John W. Shenk, City Attorney, E. B. Young, Assistant City Attorney, and Leslie B. Hewitt, for Bespondents.</p>

<p>Appeal—Order Refusing New Trial—Error op Law—Bill op Exceptions Failing to Show Rulings or Exceptions.—On an appeal from an order refusing a new trial, the appellate court cannot review any alleged errors of law committed at the trial, when the bill of exceptions fails to indicate any ruling of the court or any exception registered on behalf of the appellant.</p> <p>Divorce—Evidence—Finding That Parties had Never Been Husband and Wipe.—In an action for a divorce, the evidence, although to a certain extent conflicting, is held sufficient to' sustain the finding that the parties had never been husband and wife.</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>Pleading—Accounting fob Proceeds of Sale of Lots—Complaint Sufficient as Against General Demubber—Averment of Consideration.—A complaint in an action for an accounting, which alleges that the plaintiff purchased a certain tract of land for a particular purpose, and that by mutual arrangement between the plaintiff’s board of directors and the defendant it was agreed that the deed to the property should be taken for plaintiff in the name of defendant, that the latter “should advance for plaintiff such sums as might be necessary for the purchase of said lands, and for certain necessary improvements thereon,” and that the portion of the property not needed for such purpose should be divided into lots and sold by the defendant for and in behalf of the plaintiff, and that defendant should receive the revenue arising from the sale of lots and should fully account to plaintiff for all moneys received and paid out by him, and which further avers the purchase of the property for plaintiff in defendant’s name, the sale of lots and «the receipt of more money from the transactions than the defendant had advanced, including interest on the advances, and that defendant had conveyed to plaintiff all of the premises remaining unsold', sufficiently shows, as against a general demurrer, a consideration moving from the plaintiff to the defendant, sufficient to support the contract.</p> <p>Id.—Meaning of Word “Advance.”—The word “advance,” as used in such agreement, implies “to furnish money for a specific purpose, understood between the parties, the money or some equivalent to be returned.”</p> <p>Id.—Repayment of Money Advanced Implied—Interest Presumed. The allegation of an advance, upon a mutual agreement of one to take and pay for property for another in his own name, implies an agreement upon the part of the beneficiary of such payment to reimburse the one who made the advancement. Such a loan, unless otherwise expressly stipulated in writing, is presumed to be made upon interest.</p> <p>Id.—Implied Agreement to Pay for Services—Quantum Meruit.— The allegation in such complaint that certain services were to be performed for plaintiff by defendant implies an agreement to pay a quantum merwit.</p> <p>Id.—Imperfect Statement of Facts—Special Demurrer.—Where the essential facts are stated in the complaint defectively or without clearness, or appear by necessary implication, the defects may only be reached by special demurrer.</p>

<p>Vendor and Vendee—Sufficiency of Performance by Vendor— Acceptance of Deed Tendered—Deficit in Amount of Land Con veyed—Estoppel of Vendee.—The vendee under a contract for the sale of a specified tract of land described as containing a certain number of acres, who pays the purchase price therefor and without objection accepts a deed tendered by the vendor in performance of the contract, with knowledge that the acreage conveyed is less than that called for by the contract, is estopped, under section 2076 of the Code of Civil Procedure, from afterwards questioning the sufficiency of the vendor’s performance of the contract.</p> <p>Id.—Objection to Deed must be Made at Time of Tender.—It is immaterial how soon after the consummation of the sale the vendee made objection to the sufficiency of the deed. It was his duty to assert his unwillingness to accept the land offered at the time of the tender, and failing to do so he is estopped from demanding the acreage representing the difference between the amount of land mentioned in the contract and that conveyed.</p> <p>Id.—Specific Peefoemance—Pleading Pacts Constituting Estoppel. In an action by the vendee for specific performance of such contract, or, if that were no longer possible, for damages arising from its breach, the vendor is entitled to take advantage of such estoppel, without pleading it in haec verba, if the facts establishing it are otherwise sufficiently averred.</p> <p>Id.—Adequacy of Consideeation—Insufficient Allegation.—An averment in the complaint in an action for specific performance that the contract for the sale of the land “was fair, equitable and reasonable,” is not a sufficient allegation of adequacy of consideration.</p>

<p>Constructive Trust—Action to Establish—Land Purchased With Monet Fraudulently Procured—Statute oe Limitations.—An action to charge the defendant with a constructive trust as to certain real property, on the ground that the purchase price thereof was fraudulently procured by the defendant from the plaintiff, that the property be sold, and from the proceeds thereof he be repaid the amount so fraudulently procured, is based on fraud as the substantive cause of action, and, under subdivision 4 of section 338 of the Code of Civil Procedure, is barred upon the expiration of three years after the discovery by the aggrieved party of the facts constituting the fraud. The four years’ limitation provided by section 343 of that code is not applicable to such action.</p>

<p>Patents—License to Manufacture and Sell Patented Invention— Recital in Contract—Defense That Nothing Passed by Contract.—A recital in a contract purporting to grant the exclusive right to manufacture and sell a patented invention in a specified territory, that the grantor possesses such right, is an admission on the part of the grantee of the grantor’s title and right to make the grant; and in an action by the grantor to recover sums due under the contract, it was incumbent on the grantee, in support of a defense that nothing passed by the contract, to establish that fact by competent evidence.</p> <p>Id.—Article Manufactured Identical With Invention—Evidence.— In such action, a finding by the trial court that the article manufactured by the defendant was essentially the same as that covered by the contract and secured by the patents, is held sustained by the evidence.</p>

<p>Practice—Dismissal of Action—Delay in Serving Summons.—Notwithstanding section 581a of the Code of Civil Procedure (Stats. 1907, p. 712), making it mandatory upon the trial court to dismiss an action where the summons had not been issued within one year, or served and returned within three years, the court still retains the discretionary power to dismiss for undue delay in issuing or serving summons even though the delay has been for a shorter period than that named in the section.</p> <p>Id.—Appeal—Review of Order of Dismissal—Conflicting Affidavits. In reviewing an order dismissing an action for undue delay in serving the summons, based upon conflicting affidavits of the respective parties, it must be assumed that the trial court found the facts to be as asserted, by the moving party.</p> <p>Id.—Discretion—Delay of More Than Two Tears—Knowledge of Whereabouts of Defendant.—The trial court did not abuse its discretion in dismissing an action for a delay of two years and three months in serving the summons, when the moving affidavits warranted the conclusion that the plaintiff knew where the defendant was during all of that period, and could have served her at any time had he so desired, and also tended to show that the matters involved in the action had been fully compromised and settled by the parties, and that in the mean time a-material witness for the defendant had died.</p> <p>Id.—Waiver of Eight to Dismissal—Demurring and Moving for Change of Venue.—The defendant, after being served with summons, did not waive the right to have the action dismissed for undue delay in making the service by demurring to the complaint and moving for a change of the place of trial.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Thomas J. Lennon, Judge presiding at trial. J. J. Van Nostrand, Judge denying new trial.</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>Constitutional Law—Construction of Amendment.—The first step in the application and interpretation of an amendment to a constitution or statute is to consider the conditions existing prior toi its adoption, so as to ascertain its objects and purposes.</p> <p>Id.—Municipal Corporations — Operation of Public Utilities— Amendment of Section 19 of Article XI of Constitution.—At the time of the adoption of the amendment of 1911 to section 19 of article XI of the state constitution, municipal corporations, unless expressly authorized by charter, were without power to make or operate the several public utilities mentioned in the amended section.</p> <p>Id.—Effect of Amendment—Municipal Control of Public Utility Corporations—Power to Prescribe Conditions.—The effect of such amendment is to make to all municipal corporations a direct grant of power to make and operate public works of the kinds enumerated, and to place all works of like kind privately operated in control of the municipality. It expressly limits the pre-existing powers and rights available to private corporations and natural persons, who are permitted to engage in such enterprises within the city only “upon such conditions and under such regulations as the municipality may prescribe under its organic law.”</p> <p>Id.—Conditions That Municipality may Prescribe.—The use, in that amendment, of the word “regulations” as something distinct from “conditions,” implies a broader meaning in the latter word than mere regulation in the manner of use. It is used in its legal sense as meaning “a qualification, restriction or limitation modifying or destroying the original act with which it is connected,” or defeating, terminating, or enlarging an estate granted. The conditions prescribed may, therefore, include every kind, conditions precedent as well as conditions subsequent, if they may be made under the city charter.</p> <p>Id.—Imposition of Conditions by Municipality—Effect of Charter Provisions.—Irrespective of any provisions in the charter of a city giving it power to prescribe the conditions upon which persons and corporations may establish and operate such works, the provision of the constitutional amendment itself, by necessary implication, gives each city power to prescribe such conditions. With respect to the mode of imposing and enforcing the conditions, the city is bound by the provisions of its charter, and cannot impose inconsistent conditions nor abrogate those of the charter. If the city has prescribed conditions, they must be observed, or the construction and operation of such works will be unlawful.</p> <p>Id.—Policy of Municipality With Respect to Public Utilities— Monopolistic or Competitive Method may be Adopted.—The intent of such amendment is to allow each municipality to determine for itself the policy of adopting either a monopolistic or competitive method of operating its public utilities. So far as concerns new systems of works, and not systems in prior operation, the amendment allows the municipality either to establish works of its own, excluding all others, or to permit but one system of works by refusing more than one franchise, or to encourage competition by allowing rival companies to enter the field, either in competition with its own system or with those of others.</p> <p>Id.—Ordinances of City of Los Angeles—Conditions Imposed upon Use and Excavation of Streets.—Under the' amendment of 1911 to section 19 of article XI of the state constitution, the city of Los Angeles had authority to enact ordinances, (1), making it unlawful for any person, firm, or corporation to make any excavation in a street for any purpose without first obtaining permission in writing from the board of public works, and requiring the applicant, before the permit issued, to state the purpose for which the excavation is to be made and show legal authority to occupy and use the street for that purpose; and (2), providing that no person, firm, or corporation shall exercise any franchise or privilege to lay or maintain pipes or conduits in or under any street of the city for the transmission of gas, water, heat, steam or other substance, without having first obtained a grant therefor from the city in accordance with the city charter and said ordinance, unless such person, firm, or corporation is entitled to do so “by direct and unlimited authority of the constitution of the state of California, or of the constitution and laws of the United States.”</p> <p>Id.—Gas Company Established Prior to Amendment—Ordinances Enforceable Against—Excavating Street not Previously Used. Such ordinances are valid and enforceable against a gas company excavating a trench in which to lay its gas-pipes in a street not before occupied or used by it for that purpose, notwithstanding the works of the company were established prior to the adoption of the constitutional amendment, and were built with the intent to supply gas in every section of the city, and of a size sufficient for that purpose.</p> <p>Id.—Constitutional Grants—Construction in Favor of Public.—It is an established principle of construction, applicable to constitutions as well as to statutes, that grants thereby made .to private persons or public service corporations of rights belonging to the state or to the public are to be construed most strongly in favor of the public.</p> <p>Id.—Rights op Gas Company in Streets Prior to Constitutional Amendment—Use op Particular Street Essential to Acquisition op Right—Acceptance op Opper.—Prior to the amendment of 3911 to section 19 of article XI of the state constitution, the privilege thereby granted to individuals or corporations of using the public streets or thoroughfares of a municipality and of laying down pipes and conduits therein for the purpose of supplying the city and its inhabitants with gas or other illuminating light, or with water, became effective as to any particular street of the municipality only upon its acceptance as to such street, manifested by the act of taking possession and occupying the street for the purposes allowed. The right offered was not intended to take effect in any street before it was actually used, or to vest as to all of them the moment that use was begun in good faith in one. Prior to the acceptance of such offer, the people had the right to repeal the constitutional provision and withdraw the offer.</p> <p>Id.—Right op People to Change Constitution Bepore Acceptance— Investment op Money in Gasworks—Estoppel.—The investment of money in such gasworks designed to supply additional territory was not such an acceptance and could not operate as an estoppel against the state or the people to divest them of their sovereign authority to change the constitution. The company must be deemed to have had knowledge of this sovereign power and to have assumed the risk that the power might be exercised before it had further availed itself of the existing offer.</p>

<p>Estates op Deceased Persons—Action for Accounting Against Estate op Deceased Administrator—Statute of Limitations— Finding on Plea Unnecessary.—An action against the personal representative of a deceased administrator, and the sureties upon his official bond, for an accounting of the property of his intestate, is an action to compel a trustee to give an account of the property held by him in trust and of his administration of the trust, to have that account audited and settled by the court and a balance struck. In such an action the plea of the statute of limitations against various items of the account is not open to the defendants, and a finding on such plea is unnecessary.</p> <p>Id.—Repudiation of Trust by Trustee—Knowledge of Beneficiary. . In the case of a trust such as this, only an unequivocal repudiation of the trust by the trustee, with knowledge of this brought home to the beneficiary of the trust, could set the statute of limitations in favor of the trustee in motion.</p> <p>Id.—Duty of Administrator to Account.—The duty of the administrator to account is a continuing duty and does not become barred.</p> <p>Id.—Pleading—Right to Accounting not Dependent on Fraud— Unnecessary Allegations of Fraud.—The right of the beneficiaries to seek such an accounting does not rest upon and is in no way dependent upon any allegations of fraud or malversation, and the inclusion of such allegations in the complaint does not change the action into one for .tort, nor broaden its scope.</p> <p>Id.—Recitals in Bond of Administrator Conclusive on Surety.— The recital in an administrator’s bond that it was given in pursuance of an order of court requiring it is conclusive upon the surety.</p> <p>Id.—Surety Liable for Prior Breaches of Trust by Administrator. The surety upon the bond of an administrator which is general in its terms, and does not limit his liability to the acts of the administrator after the execution of the instrument, becomes liable for the breaches of trust of the administrator committed prior to his becoming such surety, as well as for those committed subsequent thereto.</p> <p>Id.—Claim Against Estate of Deceased Surety—Form of Claim.— A claim presented by the estate of such intestate, against the estate of a deceased surety on the bond of the administrator, is sufficient in form, to sustain the action for an accounting against the estate of the surety, if it recites that it is for cash due in a specified amount to the claimant by reason of the surety becoming such on .the bond of the administrator, and to interest on said sum from a date specified at seven per cent per annum.</p> <p>Id.—Sufficiency and Purpose of Claim.—A claim against the estate of a deceased person is not required to state the facts with all the preciseness and detail required in a complaint. Its purpose is to advise the party against whom it is presented of its nature.</p>

<p>The facts are stated in the opinion of the court.</p> <p>George C. Sargent, Frank H. Gould, and Vincent Surr, for Appellant.</p>

<p>APPLICATION for a Writ of. Mandate directed to the Superior Court in and for the County of Solano. A. J. Buckles, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Regents of University of California—Misnomer in Complaint and Judgment—Appeal Taken in True Name.—The Regents of the University of California may take an appeal in that its true name in an action in which it was sued and judgment rendered against it in the name of the “Board of Regents of the University of the State of California.”</p> <p>Id.—Taxation—Mortgage to Regents—Sale for Delinquent Taxes Against Mortgagor—Deeds to and by State—Mortgagee’s Interest not Affected.—Where land is mortgaged to the Regents of the University of California, and a tax-sale and conveyance of the mortgagor’s interest is made to the state and a re-sale and deed thereupon is made by the state to an individual, under section 3897 of the Political Code, all at times when the constitutional provision was in force declaring that for purposes of taxation the interest of the mortgagor and that of the mortgagee in the land mortgaged should be distinct interests and separately taxable, such sales and deeds did not operate upon the mortgage interest or lien of the mortgagee or vest title in the tax-sale purchaser free from the mortgage lien.</p> <p>Id.—Mortgage to Regents Property of State—Exemption from Taxation.—A mortgage of land, executed to the Regents of the University of California, to secure money due said body for any purpose for which it was created, and the interest which it thereby, for the purposes of taxation, holds in the land, is the property of the state, within the meaning of section 1 of article XIII of the constitution, exempting state property from taxation, and as such the said interest is exempt from taxation.</p> <p>Id.—Sale and Deed Under Assessment Against Mortgagor—Interest of Mortgagor - Only Passes.—The mortgage interest belonging to the regents being thus free from taxation, it follows that the lien of the tax assessments, made upon the interest of the mortgagor alone, did not extend to or include the interest vested in the state by virtue of the mortgage to the regents, and the tax-sales and deeds, made in pursuance of such assessments, were confined to the interest of the mortgagor, and did not operate to transfer or convey the exempt interest of the state represented by the mortgage.</p> <p>Id.—Purchaser Under Tax Deed Takes Subject to Mortgage to Regents.—The purchaser at the tax sale by the state only acquired the right and title of the mortgagor in the land, that is, the right to pay off the mortgage at any time before a foreclosure sale, and the right to redeem from said sale for six months after it was made, and thereupon to hold the land discharged therefrom. His title was subject to the mortgage and to a foreclosure judgment and not paramount to them.</p> <p>Id.—Constitutional Law—Construction of Provisions Apparently Conflicting.—The foregoing results follow, nothwithstanding section 4 of article XIII of the constitution declares that a tax levied upon either the interest of the mortgagor or that of the mortgagee, shall be a lien upon both interests. Such section should be construed so as to harmonize with section 1 of the same article, and must be understood as referring wholly to the taxation of private property and to mortgages made to private persons and not to those belonging to the state. The rule that a tax lien is paramount 'and prior to a mortgage lien must for like reasons give way when the mortgage lien is exempt from taxation because the mortgage is the property of the state.</p> <p>Id.—Taxation Laws Only Refer to Private Persons and Property. The constitution and laws upon the subject of taxing property are to be understood as referring to private property and persons, and not including public property of the state, or any subordinate part of the state government.</p> <p>Id.—Laws Giving Liens for Taxes or Right of Sale not Applicable to Public Property.—The general rule applied in all such eases is that statutes authorizing liens on or forced sales of property, generally, will not be held applicable to public property, unless the intention to make them so expressly or plainly appears.</p>

<p>Railroad—Right of Wat—Abandonment—Ejectment for Possession.—Where there has been an abandonment of a railroad right of way consisting of an easement only, the owner of the fee may maintain ejectment to recover possession.</p> <p>Id.—Nonuser—Intent to Abandon—Evidence of Intent.—Mere nonuser, not accompanied by an intent to abandon, will not divest the right of the railroad company to the easement. A long continued nonuser is, however, some evidence of an intent to abandon.</p> <p>Id.—Intent to Abandon Question of Pact—Conflict of Evidence.— The existence of the intent to abandon is a question of fact, to be determined by the trial court or jury from a consideration of the conduct of the railroad and the surrounding circumstances, and where the evidence in connection therewith is such that a finding either way might reasonably be made, the conclusion of the trial court must be upheld on appeal.</p> <p>Id.—Entry and Use Under License for Special Purpose—Revccability BY Owner of Fee.—The entry into possession of land for certain purposes under license from the owner, together with the designed use of the land, confers a right on the licensee which is not revocable at the mere will of the owner of the fee. The nature and extent of the right acquired must, however, be measured by the terms of the license under which entry was made.</p> <p>Id.—Abandonment of Railroad Right of Way—Evidence—Nonuser—Establishment of Parallel Line.—The abandonment of a right of way for a railroad is sufficiently established by evidence that the licensee, who had entered upon the right of way under a license to construct and operate a steam railroad over the same to and from a specified terminal point, for the purpose of carrying passengers and otherwise doing a general railroad business, had failed for a period of several years to carry any passengers over its road or to maintain any service with such terminal point, and had permitted) a part of its track to become so covered with debris as to be useless, had run no cars over the other part except intermittently for the transportation of certain kinds of freight, but not for the accommodation of the public, and had constructed another parallel line which it used for the transportation of passengers to and from such terminal point.</p> <p>Id.—Ejectment Against Public Service Corporation.—The rule that a-private individual cannot maintain an action of ejectment against a corporation which has entered upon his land, where the effect of a recovery would be to stop a public service which has grown up in consequence of plaintiff’s acquiescence in the entry and use, has no application where the corporation has abandoned the use of the property for a public service.</p> <p>lb.—Parties—Occasional Shipper of Freight not Necessary Party. In an action by the owner in fee of the land embraced in the right of way to recover its possession after its alleged abandonment by the railroad, persons who were occasional shippers of freight over the portion of the road so intermittently used are not necessary parties.</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>Haas, Garrett & Dunnigan, and Haas & Dunnigan, for Appellant.</p>

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

<p>Fraudulent Conveyance—Cancellation—Deed to Escape Confiscation by Revenue Officers—Grantee in Confidential Relation With Grantor.—A deed to one standing in a relation of trust and confidence to the grantor, which was induced by the false and fraudulent representations of the grantee that it was necessary to prevent the property conveyed from being confiscated by United States revenue officers for alleged infractions by the grantor of the revenue laws, may be set aside on the ground of fraud. Under such circumstances the rule denying equitable relief where the parties are in pari delicto has no application.</p> <p>Id.—Cancellation When Parties Occupy Relation of Trust and Confidence.—Where a defrauded grantor acts under the influence and domination of another standing in a relation of trust and confidence, and the conveyance is obtained by means of that very relation, equity will always cancel the deed.</p>

<p>Vendor and Vendee—Description op Land in Contract fob Sale must be Definite.—The description of the land to be conveyed is one of the most essential parts of an agreement to sell. Such a contract must be in writing, subscribed by the party to be charged, and must contain such description of the land, either in terms or by reference, that the property may be identified without resort to parol evidence.</p> <p>Id.—Insufficient Description—Specific Performance—Insufficient Pleading of Identity of Land.—A description of the real property agreed to be sold as “our land of 1060 acres,” in a contract dated “Wilkins Baneh, September 22nd, 1909.” is not sufficiently definite to admit of the specific performance of the contract by the vendee, where the complaint in an action therefor fails to aver any extrinsic facts showing that the description was intended to designate the land particularly described therein, as for instance, that the tract sued for was known as the “Wilkins Ranch,” or was the only realty containing such number of acres possessed by the vendor.</p> <p>Id.—Averment op Intent op Vendor.—An allegation in such complaint that by such vague description the vendor intended to designate the land in a certain county particularly described therein, is an averment of a mere conclusion, and insufficient to cure the defect in the description.</p> <p>Id.—Abstract of Title Furnished by Vendor.—The circumstance that in the agreement the vendor promised to furnish and did subsequently furnish abstracts of title is immaterial. •</p> <p>Id.—Prior Conveyance by Vendor—Recording Deed Before Tender of Purchase Price—Estoppel of Prior Grantee.—A vendee under an optional contract for the purchase of land is not entitled to specific performance against a prior grantee of the vendor, whose deed was recorded after the option but before the tender by the vendee of the purchase price, in the absence of any conduct on the part of such grantee operating to estop him from asserting his title.</p> <p>Id.—Insufficient Allegations op Estoppel in Pais.—The mere allegations that such grantee refused to join in the execution of the contract for sale, declaring at the time that he had no interest in the land, and that the vendee was thereby induced to act upon his statements, is insufficient to show an estoppel in pais, in the absence of further allegations that the grantee acted fraudulently or with such gross negligence as amounted to constructive fraud, or that he was apprised of the true state of his own title when he made such statements, or that the vendee was without knowledge or means of knowledge of the true condition of the title.</p>

<p>Reclamation District—Land Capable op Independent Reclamation —Right to Establish Independent District not Absolute—Discretion op Board op Supervisors.—The owners of a compact body of land within a reclamation district, in which the lands have not been reclaimed,' who petition to have their property set oft from such district and established as an independent district, are not entitled as of right, under section 3481 of the Political Code, to an order of the board of supervisors permitting them to separate their land from the old district, merely upon demonstrating that such segregation is possible, without reference to the effect of such action on the remaining lands in the district or the cost of independent reclamation of the tract sought to be set aside. Their petition is subject to the discretion vested in the board by section 3449 of that code, and if in the exercise of such discretion the supervisors determine that the proposed excision of lands from the district already formed would increase the cost of reclamation to all parties concerned or make the work" of protection of their lands less effective, they have the right to reject the application.</p> <p>Id.—Reclamation Defined—Independent District cannot be Created from District Already Reclaimed.—The word “reclamation,” as used in such sections means “practical protection from probable dangers,” and if the district could be properly classed under the evidence as one in which the land had been so reclaimed, the petitioners are entitled to no relief under section 3481 of that code.</p> <p>Id.—Lands not Capable of Independent Reclamation—Conflict of Evidence—Determination of Board.—In a proceeding in mandamus to compel the board of supervisors to approve the plan of the petitioners for a segregation of their lands, the determination of the board that such lands were not capable of independent reclamation will not be interfered with, when the evidence respecting that question is conflicting.</p> <p>Id.—Inspection of Land by Supervisors.—An inspection of such lands, made by the board in person, is the taking of evidence on such question, and sufficient to support their determination that the lands were incapable of independent reclamation.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. T. Miller, J. R. Dorsey, and Thomas Scott, for Appellant.</p>

<p>Sale of Standing Timbee to be Behoved—Absolute Sale—Covenant fob Bemoval.—A contract for the sale of standing trees to be removed at a future date may make the sale of the timber absolute, and the agreement to remove within a specified or reasonable time merely a covenant. In such ease the timber remains the property of the purchaser, although not removed within the specified time.</p> <p>Id.—Law of Case—Consteuction of. Contbact—Bemoval Within Specified Time—Covenant fob Bent and Payment of Tases.— It is the law of this case that the contract in question, construed in the ease of Peterson v. Gibbs, 147 Cal. 1, was an absolute conveyance of the timber standing on the land of the defendant, and that there was nothing in its terms which can be construed as making the removal of the timber a condition precedent to the passing of title, or as causing delay in such removal beyond the period of ten years from the date of the instrument, or failure to pay the rental reserved or one-half the taxes, to operate as a divesting of the title conveyed; and that the provisions of the agreement obligating the purchasers to pay rental in the event the timber was not removed within ten years, and to pay one-half of the taxes until the removal, were mere covenants not affecting the title to the timber.</p> <p>Id.—Sale of Poetion of Land Afteb Sale of Timbee—Payment of Entibe Bental to Selleb—Pebfobmance of Covenant.—Where a purchaser of timber standing on a tract of land has covenanted to pay the seller a specified rental of the land until the timber is removed, and prior to its removal the seller makes a conveyance of a portion of the land, without any apportionment of the rental as between himself and his grantee, the payment by the purchaser of the entire rental to the seller is a performance of the covenant.</p> <p>Id.—Contract Contemplating Removal of Timber—No Right to have Timber Perpetually Remain.—The contract in question, after conveying all the timber standing on a tract of land, and providing that the purchasers should have a period of ten years in which to remove it, and giving them full rights of ingress and egress over the land for its removal, further provided that the purchasers, in the event • that the timber was not removed within that period, should thereafter pay the seller a stipulated yearly rental for the privilege of removing it, and that all the covenants of the seller and the privileges granted by the agreement should continue until the timber was removed. It was further agreed that each of the parties should pay one-half of the taxes on the land until the timber was removed. Held, that the agreement showed that the timber was sold in contemplation of its removal from the land, and with the understanding of the parties that it should be so removed, and that it did not give the purchasers the absolute right to perpetually maintain the timber on the land, upon the payment of the stipulated rental and taxes.</p> <p>Id.—Equitable Relief to Owner of Land—Segregation of Interests of Owner of Timber and Owner of Land.—After the expiration of the period provided by the contract during which such purchasers had the absolute right to maintain, the timber on the land, the owner of the land, upon a showing that the land is valueless to him so long as the timber remains thereon, and would be valuable if it were removed, is entitled to equitable relief for the segregation and beneficial appropriation of the respective interests in the property of the respective owners, analogous to the relief granted in an ordinary action for partition between parceners, joint tenants, or tenants in common.</p> <p>Id.—Form of Judgment Segregating Interests—Reasonable Time to Remove—Removal by Owner of Land—Accounting for Proceeds of Timber.—In an action by such purchasers to enjoin a grantee of the vendor of a portion of the land from removing the timber therefrom, the defendant may set up such facts by way of cross-complaint, and, upon proof thereof, is entitled to have the judgment fix a reasonable time within which, the plaintiffs shall remove their timber from the land, and provide that if they fail to do so, the defendant may remove and sell the same at the expense and for the benefit of the plaintiffs, accounting to them for the net proceeds thereof. Such judgment should further provide that if the timber be not removed within the time so fixed, the defendant shall be entitled to retain from the proceeds of his sale of the timber, such an amount as will reasonably compensate him for his loss of the use and occupation of the soil from the expiration of the period fixed by the court for such removal to the time of actual removal, such amount to be determined by the court. The judgment given should be interlocutory in its nature, the court retaining jurisdiction of the cause for the purpose of an accounting between the parties, in the event that plaintiffs fail to remove the timber within the specified time. Under such contract, the defendant is not entitled to any compensation for the maintenance of the timber on the land prior to the expiration of such time as may be fixed by the judgment, except possibly such portion of the annual rental as may be fairly apportioned to the land purchased by him.</p>

Frank T. Nilón, Judge presiding at trial; Joseph W. Hughes, Judge refusing new trial. The facts are stated in the opinion of the court.

<p>Real Estate Broker—Right to Commission—Commission When Earned.—Under an agreement to pay a real estate broker a commission for his services in “introducing a purchaser and effecting a sale” of certain real estate, the broker is not entitled to his commission unless he has either procured a valid contract to purchase, which can be enforced by the vendor if his title is perfect, or, if he does not procure such contract, unless he has brought the vendor and the proposed purchaser together, so that the vendor may secure such a contract, unless he is willing to trust to an oral agreement.</p> <p>Id.—Readiness to Purchase—Contract op Purchase.—The readiness and willingness of a person to purchase the property can be shown only by an offer on his part to purchase; and unless he has actually entered into a contract binding him to purchase, or has offered to the vendor, and not merely to the broker, to enter into such contract, he cannot be considered a purchaser.</p> <p>Id.—Action por Commission—Evidence to Explain Apparent Contract op Purchase—Mutual Mistake.—In an action by the broker to recover his commission, parol evidence is admissible to show that a written agreement between the vendor and the proposed purchaser, although in form a contract for the purchase and sale of the property, was not intended as such, but was a mere memorandum of price to be used in future negotiations, and was executed as the result of the mutual mistake of the parties.</p> <p>Id.—Parol Evidence Varying Written Contract—Rule Applicable Only Between Parties.—The rule excluding parol evidence which tends to vary or contradict a written contract applies only in actions between the parties thereto or their privies.</p> <p>Id.—Optional Contract op Purchase.—One who enters into a mere optional contract to purchase, and subsequently fails to exercise the option, is not a purchaser within the meaning of the foregoing rules.</p> <p>Id.—Notes Given por Commission—Failure op Consideration'—Lapsing op Option.—In an action to enforce the collection of certain promissory notes which had been given the broker for his commission at the time such optional contract of purchase was executed, parol evidence is admissible to show a total failure of consideration due to the lapsing of the option.</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>P. S. Driver, Devlin & Devlin, Charles W. Thomas, and Charles W. Thomas, Jr., for Appellants.</p>

<p>Landlord and Tenant—Plate Glass and Marble Front Erected by Tenant Becomes Part of Building.—In the absence of any agreement between a landlord and tenant for their removal, a heavy plate glass and marble stone front erected by a tenant so as to form the front of a store leased by him, and attached to the demised premises by means of screws, become an integral part of the building and cannot be removed by the tenant.</p> <p>Id.—Tenant cannot Remove Such Improvements as Trade Fixtures. The removal of such improvements would necessitate the removal of a portion of the building itself, and is not authorized, under section 1019 of the Civil Code, as being things affixed to the demised premises for purposes of trade or ornaments to attract patronage.</p>

<p>Will—Residuary Bequests to Different Legatees—Gift not to Class—Undisposed Residuum Passes to Heirs at Law.—Where the will of a testatrix directed that the whole of her residuary-estate should be converted into cash and “apportioned, appropriated and paid out” to fourteen different legatees in specified percentages to each, such legatees do not constitute a class, in the sense that the legacies which may have failed by reason of death, revocation, or other cause, should be ratably distributed amongst the remainder of the class. Such legacies are undisposed of by the will, and pass to the heirs at law of the testatrix.</p> <p>Id.—Effect of Codioil—Direction That Possible Heir at Law Shall Have Nothing.—Such construction is not affected by the fact that in a codicil revoking the legacy to one of such legatees, who under a certain contingency would have become one of her heirs at law, the testatrix expressed the wish that he should receive only a nominal sum from her estate, and that her other heirs should see that her wish was carried out.</p> <p>Id.—Lapsed Legacies—Legacies to Predeceased Relatives.—The legacies to strangers in blood who predeceased the testatrix became a part of the undisposed residuum "of the estate and passed to the heirs at law; the legacies to predeceased relatives who died leaving lineal descendants passed to such descendants under section 1310 of the Civil Code.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco distributing the estate of a deceased person and settling the accounts of an executrix. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a decree of the Superior Court of Sacramento County distributing the estate of a deceased person. Peter J. Shields, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Practice — Dismissal — Delay in Service of Summons.—Judgment affirmed on the authority of Witter v. Phelps, ante, p. 655, [126 Pac. 593.]</p>