Volume 170 — California Reports

<p>Divorce—Interlocutory Decree—Effect on Property Eights of Spouses.—With respect to the rights of a husband and wife, respectively, in the property of the other, an interlocutory decree of divorce, given under the provisions of sections 131 and 132 of the Civil Code, does not sever the marriage relation, and they remain in that relation until the final decree of divorce is pronounced.</p> <p>Id.-—Pinal Decree—Operation as to Community Property.—Where the final decree of divorce makes no disposition of the community property, the parties become tenants in common of such property. If the cause of divorce was neither cruelty nor adultery, each will thereafter he the owner of an undivided one-half of the community property without further order of the court, but if given for either of said causes, the respective interests of the parties in the community property left undisposed of is subject to the determination of a court of competent jurisdiction in a subsequent action or proceeding.</p> <p>Id.—Community Property Acquired After Interlocutory Decree.— Property acquired by the husband otherwise than by gift, devise, or descent, after the divorce action is begun and before the final decree, is community property, notwithstanding it was acquired after the interlocutory decree.</p> <p>ID.—Effect of Judgment by Default Against Defendant—Matters Adjudicated.—Where a defendant is served with summons and complaint stating the facts upon which he is required to act, and he makes default, he is presumed to admit all the facts which are well pleaded in the complaint. The judgment which follows upon this sort of admission is, in contemplation of law, a complete adjudication of all the rights of the parties embraced in the prayer for relief and arising from the facts stated in the complaint, including the facts in his favor as well as those against him.</p> <p>Id.—Allegation in Complaint of Nonexistence of Community Property—Default of Defendant—Final Judgment not Mentioning Property Bights.—In an action by a wife for a divorce upon a complaint which alleges that there is no community property, if the defendant after personal service makes default and final judgment is rendered dissolving the marriage but making no order, directions or even mention of property, or other rights, such judgment becomes, in effect, a contract between the parties that the judgment shall be final with respect to everything properly embraced within the allegations of the complaint and in the prayer for relief, and operates as an adjudication that at the time the action was begun there was no community property.</p> <p>Id.—Effect of Judgment on Community Property Acquired After Commencement of Action.—Such a judgment, however, is not an adjudication of the nonexistence of community property which was acquired by the husband after the commencement of the action and the rendition of the interlocutory decree, notwithstanding the parties might have litigated their rights as to such property in the divorce action at the time of the rendition of the final decree. Consequently such judgment does not prevent the wife from subsequently claiming an interest in the community property so acquired.</p> <p>Id.—Husband and Wife — Written Separation Agreement—Executed Oral Agreement for Annulment.—Where a husband and wife, who had executed a written separation agreement which purported to release her rights in the community and to declare after acquired property the separate property of the person acquiring it, subsequently agreed to become and were reconciled, and thenceforth for several months lived and cohabited as husband and wife, and in pursuance of the agreement so to live further orally agreed to and did set aside and annul the separation agreement, such conduct rendered the oral agreement executed, and it was a sufficient cancellation of the previous written agreement of separation.</p>

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

<p>Guaranty—Identical Fraud Set Up in Answer and Cross-Complaint —Failure to First Try Equitable Issues — Unprejudicial Irregularity.—In an action to enforce a guaranty, in which the defendants by answer set up fraud in its procurement as a defense, and also filed a cross-complaint setting up the same fraud and asking the equitable relief of cancellation, it is a mere irregularity, in no way prejudicial to the plaintiff, for the court to submit the whole case to the jury before disposing of the equitable issues raised by the cross-complaint, if it adopts the findings of the jury in favor of the defendants in making its own findings disposing of the equitable issues raised by the cross-complaint.</p> <p>Judgment—Essential Findings Supporting—Insufficiency of Evidence—Contradiction in Nonessential Findings.—It is only when a judgment rests upon some particular finding for its validity and support that the lack of sufficient evidence to support such finding, or the contradictoriness between two findings, treating of the same essential matter, will necessitate a reversal of the case.</p> <p>Id.—Finding That Guaranty was Procured by Fraud—Other Findings Immaterial to Support Judgment for Defendants^—In such action, clear, full, and explicit findings to the effect that the guaranty in question was procured by the fraud of the guarantee, are sufficient to support a judgment for the guarantor, irrespective of inconsistencies between or the lack of evidence to support findings on the issues raised as to the principal debtor’s indebtedness to the guarantee.</p> <p>Id.—Pleading—Inconsistent Defenses may be Set Up.—The defendants in such action were entitled to set up by their answer as many, even inconsistent, defenses as they had. Thus they were entitled to show, if they could, that the contract of guaranty was procured by fraud and therefore void, or, conceding its validity, that no liability had arisen under it by reason of the fact that no indebtedness had been incurred by the principal debtor covered by its terms.</p> <p>Id.—Evidence of Fraud in Procuring Guaranty—Fraudulent Misrepresentations and Concealment of Facts by Bank President. The evidence in the present case is held sufficient to support the findings that the guaranty sued on was procured through fraud practiced on the guarantors by the president of the bank in whose favor the guaranty was given, and who solicited the guaranty, which fraud consisted both in positive misrepresentations by him as to the legitimate nature of the business in which the principal debtor was engaged, the indebtedness of which the guaranty was designed to cover, and also in the concealment of facts and circumstances affecting the relation of the parties important for the intending guarantors to know and known to such president when he solicited the guaranty and concealed by him.</p> <p>Id.—Duty of Creditor to Disclose Facts to Intended Guarantor— Creditor Soliciting Guaranty.—Where a surety or guarantor comes forward at the request of the debtor and offers to give the creditor a certain guaranty, the general rule is that no duty of disclosure is incumbent upon the creditor, since, without breach of any faith, he may assume that the debtor himself has informed the intending surety of all that the latter desires to know. His duty, therefore, is performed if he fully and fairly answers the questions put to him, and conceals nothing which he himself believes might influence the surety’s conduct. Where, however, the creditor solicits the guaranty, his mere non-communication of circumstances affecting the situation of the parties, material for the guarantor to know, and within the knowledge of the person obtaining the guaranty, is undue concealment, though not willful or intentional, or with a view to any advantage to himself.</p>

<p>Street Assessment—Widening Street—Assessment for Amount Awarded in Condemnation Proceedings—Failure to Assess in Proportion to Benefits.—A special assessment to defray the cost of widening a city street for the distance of six blocks, levied on the lots fronting on the street, which were of widely different values dependent upon their respective locations, according to a plan whereby each particular lot was assessed the exact amount of the damages awarded to the owner in condemnation proceedings for the land taken, plus a front foot proportionate amount of the expense of the city in such proceedings, is invalid upon its face for not being an assessment in proportion to the benefits resulting to the owners of the respective lots.</p> <p>Id.—Foundation of Bight to Levy Special Assessments.—The return to the property owner by way of benefit is, under the constitutional limitations of our system of government, the basic foundation upon which the right to levy such special assessments rests.</p> <p>Id—Protest to City Council—Infringement of Constitutional Bights.—Such assessment being invalid for the infringement of the constitutional rights of the property owner, the latter is not debarred from questioning its legality in legal proceedings, by the fact that he protested against it before the city council and his protest was overruled by it and the assessment confirmed.</p>

<p>Deed—Covenant of Warranty—Not Contract to Convey Outstanding Title—Liability of Warrantor.—A covenant of warranty in a deed, whereby the grantor covenanted with the grantee that the land conveyed is free from all encumbrances, and that the grantor will warrant and defend the same to the grantee, against the just and lawful claims and demands of all persons whomsoever, cannot be construed as á contract whereby the grantor agreed to acquire and convey, or cause the owner thereof to convey, an outstanding paramount title to the grantee. Such warranty is merely an undertaking by the warrantor, that on the failure of the title which the deed purports to convey, by setting up a superior title, he will make compensation in money for the loss sustained by such failure of title. The rule of damages, where there has been an actual loss of the premises, is the purchase money and interest.</p> <p>Id.—Specific Performance to Compel Purchase of Outstanding Title.—Specific performance will not lie against the estate of the deceased warrantor to compel it to purchase an outstanding paramount title and convey it to the warrantee, notwithstanding an allegation that the owner of the outstanding title is willing and anxious to sell the same for its reasonable market value.</p> <p>Id.—Death of Warrantor—Contingent Claim Against Estate— Necessity of Presentation.—In ease of the death of the warrantor, the only way in which the warrantee could perpetuate the right to recover damages from the estate of the warrantor for a future breach of the warranty would be by presenting a claim based upon the covenant of warranty and having it allowed and established as a contingent claim against the estate. Unless so presented no action could be maintained thereon.</p> <p>Id.—Failure to Present Claim in Time—Absence of Claimant from State—Affidavit.—A contingent claim against the estate of a deceased person, not presented within the time limit provided in the notice to creditors for the presentation of claims, is barred, unless the creditor is entitled to the benefit of the exception contained in section 1493 of the Code of Civil Procedure, providing that “when it is made to appear by the affidavit of the claimant, to the satisfaction of the court, or a judge thereof, that the claimant had no notice as provided in this chapter, by reason of being out of the state, it may be presented at any time before a decree of distribution is entered.”</p> <p>Id.—Affidavit Accompanying Claim not Conclusive of Absence from State—Action on Claim.—In an action on a rejected claim which was not presented within the time limit provided in the notice to creditors, the affidavit filed by the claimant to avail himself of the exception contained in section 1493 of the Code of Civil Procedure, although sufficient in its averments, is not conclusive evidence of the fact that the claimant was out of the state during the time limited by the notice. The question of the presence in or absence from the state of the claimant during that period is one of fact in proof of which general evidence is admissible.</p> <p>Id.—Effect of Affidavit—Permission of Court for Presentation of Claim.—The requirement of that section as to the showing by affidavit of the claimant relates only to the method by which a claimant must present a prima facie right to avail himself of the benefit of the exception. It does not preclude the court from taking other evidence to satisfy itself whether the claimant, in fact, comes within the benefit of that exception. The whole purpose of the exception in favor of absent claimants is to give them additional time beyond ordinary claimants to permit the presentation of claims which otherwise would be barred, if the court in the probate proceeding in which application for permission to do so is made is satisfied it should be granted. If permission to present the claim is given and it is thereafter allowed by the executor or administrator and approved by the court in probate, it stands as other allowed claims, a legal charge against the estate. If permission to present it against the estate is denied, that is equivalent to a rejection of the claim, and it then is in the same position as any other rejected claim and must be established by an action at law in which the claimant must affirmatively establish all matters which it was essential for him to make proof of in the first instance to the judge or court to whom application was made to be permitted to present it against the estate.</p> <p>Id.—Foreign Corporation as Claimant—Corporation When Present in State.—Notwithstanding the claimant is a foreign corporation having its principal place of business in the state of its incorporation, a finding that it was not absent from this state within the purview of section 1493 of the Code of Civil Procedure, is sustained by evidence that long prior to and during the entire time the notice to creditors was being published all the property of the corporation was within this state, all of its officers and agents were there, all of its business was transacted there, all the meetings of its board of directors were held there, and that the corporation was organized for the purpose of carrying on business in the state of California.</p> <p>Id—Corporations Doing Business in State—Subjection to State Process.—When such foreign corporation accepts the privilege tendered it under our laws of doing business in this state, and prosecutes that business here through its resident managing agent, it submits itself to the control and effect of its process. This is true as to process issued in suits instituted against such corporation in this state, and it is equally true as to process generally. The publication of- notice to creditors is statutory process and when it has been given in compliance with the statute, as the proceeding under which it is given is one in rem, it is binding upon all the world except as to those who may be entitled to the benefit of the exception under section 1493.</p> <p>Id.—Finding That Claim is Barred by Statute—Other Findings Immaterial.—In an action by such foreign corporation upon its rejected contingent claim based upon such covenant of warranty, the finding that the right to have it established as a claim against the estate of the deceased warrantor was barred by the statute is determinative of the ease and renders immaterial findings on other issues.</p> <p>Id.—Joinder oe Causes oe Action—Misjoinder oe Parties—Action Against Devisee oe Deceased Warrantor.—The cause of action for the establishment of such contingent claim against the estate of the deceased warrantor, cannot be joined with a cause of action against the devisee of the land affected by the warranty, to recover, to the extent of the land devised, for the loss suffered by the plaintiff as a result of a breach of the covenant of warranty made by the deceased. Such a joinder would effect a misjoinder of parties defendant, by reason of the absence of unity of interest in the parties.</p>

<p>Personal Property Brokers—Act Defining and Regulating Charges and Business is Constitutional.—The act of April 16, 1909, as amended April 21, 1911 (Stats. 1909, p. 969; Stats. 1911,- p. 978), defining personal property brokers and regulating their charges and business, is not in violation either of section 11 of article I of the constitution, declaring that all laws of a generil nature shall have a uniform operation; nor of section 21 of that article forbidding the granting of special privileges or immunities to any citizen or class of citizens, which, upon the same terms, shall not be given to all; nor is it a special law, within the meaning of subdivision 23, section 25 of article IV of the constitution, forbidding special laws regulating the rate of interest on money.</p> <p>Id.—Uniform Operations of General Laws—Special Privileges and Immunities—Classification by Legislature—Review by Courts. It is not a violation of the first two of such constitutional provisions for the legislature to enact laws applying to persons throughout the state, but only to those of a specified class, provided the distinctions which mark the class are those which reasonably arise out of the nature of the things composing it and distinguish them from others not embraced within it in such a manner that the peculiar legislation is not arbitrary or unreasonable. The legislative judgment as to what is a sufBeient distinction cannot be overthrown by the courts, unless it is, beyond rational doubt, erroneous. A decision holding one statute invalid, upon the conditions relating to it, is not necessarily authority for a similar decision upon another statute, unless the facts and conditions are essentially the same in the one ease as in the other.</p> <p>Id.—Loaning Monet on Chattel Mortgages or Assignments of Wages—Business Subject to Special Classification and Regulation.—In the development of modern civilization the business of loaning money on chattel mortgages or like instruments, and that of loaning or advancing money on assignments or other transfers of wages, earnings, and the like, have become so well known and so capable of classification and recognition that the legislature is justified in describing them as a peculiar class and giving the persons conducting them the name of personal property brokers; and the abuses that have grown up in connection therewith are such that the legislature might well deem them to call for the regulations imposed by such law.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Stewart & Stewart, James H. Blanchard, and Will D. Gould, for Appellants.</p>

<p>Lease—Modification of Written Terms—Acceptance of Less Bent-Future Installments not Affected..—Where a lessor under a written lease, in which the rent reserved was payable in specified monthly installments, accepts from time to time a smaller amount for the installments due than that called for in the lease, and gives receipts in full for the installments then paid, such concessions, when supported by a consideration, are valid to the extent that a lower rent has been tendered and accepted as satisfaction in full of the installments thus paid. They are not sufficient to establish a change in the written contract so as to affect the amount of future intallments, where no such change of terms has been made in writing.</p> <p>Guaranty by Corporation—Admission of Execution in Pleadings— Want of Authority of President to Executor.—In an action against a corporation to enforce a guaranty executed in its name by its president, objection to its admission in evidence on the ground that no authority had been shown for the president to execute it, is properly overruled, where the answer admits its execution, and affirmatively avers that it was not made until after the execution of the original obligation and was without consideration.</p> <p>Id.—Guaranty of Payment of Bent Dp to Specified Amount—Continuing Guaranty.—Where a lease covered a term of ten years, and contemplated monthly payments during that period of a total rental of over forty thousand dollars, a guaranty of the “payment of the rent in said lease specified at the times and in the manner therein stated up to the amount of one thousand dollars,” is a continuing guaranty up to the amount specified and does not become inoperative upon the lessee paying rent in excess of one thousand dollars. That such is the correct interpretation is made apparent by a further provision that the guaranty is to hold good until certain furniture purchased by the lessee is fully paid for and a chattel mortgage thereof delivered to the lessor, an event which none of the parties contemplated would happen until rental far in excess of one thousand dollars had accrued under the lease.</p> <p>Action to Recover Rent—Rent Accruing After Commencement of Action—Supplemental Complaint—Waiver of Objection to Riling.—In an action to recover rent, the defendants cannot for the first time after judgment, make objection to the filing of a supplemental complaint seeking to recover rent which accrued after the commencement of the action, where they answered it on the merits and went to trial without any objection to the presentation of evidence offered to sustain its allegation's.</p>

<p>Estates of Deceased Persons—Family Allowance—Remarriage of Widow — Application and Order for Allowance After ReMarriage.—Under sections 1464, 1466, and 1467 of the Code of Civil Procedure, a widow is entitled to an allowance from her husband’s estate which may be retroactive, covering the' period from the date of the death of the decedent, to her remarriage. She is not deprived of the right by a remarriage before making her application or obtaining the order.</p> <p>Id.—Right to Homestead Lost by Remarriage.—The cases relating to homesteads are not applicable to such a situation. The homestead looks to the future enjoyment and is made for the purpose of securing to the widow a place in which to live during the time she may require it. She loses that right when she marries some one else. Therefore, when she does not make application until after she marries, the right is gone.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Railroad Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>Contract fob Sale of Land—Action fob Breach—Authorization to Agent—Findings Supporting Judgment for Defendant—Evidence.—In an action to recover damages for the breach of an alleged contract authorizing the plaintiff to sell certain land as the agent of the defendant, and also for the breach of a contract to sell the land to the plaintiff, the judgment in favor of the defendant is sustained by findings against the existence of the contracts and authorizations set up in the complaint, and determining that the plaintiff did not produce a purchaser, or accept any offer of the defendants to sell the property to him, and that the defendant •was not indebted to him in any sum. The failure to find on other issues is immaterial, and the evidence is held sufficient to sustain such findings.</p> <p>Id.—Specific Performance—Pleading—Fairness—Adequacy of Consideration.—A complaint for the specific performance of a contract to sell land fails to state a cause of action if it omits to aver facts showing the fairness of the contract or the adequacy of the consideration.</p> <p>Id.—Rejection of Offer Contained in Letter—Counter Offer.— Where a letter contains an offer to sell land at a specified price, an answer offering a less price is a rejection of offer contained in the first letter.</p> <p>Id.—Contract for Sale of Land must be in. Writing—Authorization to Broker.—A contract for the sale of real estate, or for the employment of a broker to sell real estate, must be in writing.</p> <p>Id.—Authorization to Agent to Make Contract for Sale—Estoppel by Oral Authorization.—An authorization to an agent empowering him to make a contract on behalf of the principal to sell real estate or employ an agent to sell it, must be in writing. The principal is not estopped to deny the sufficiency of a parol authorization.</p> <p>Id.—Intending Purchaser must be Able to Purchase to Entitle Broker to Commission.—A broker who seeks a commission for a sale must show that he has produced a purchaser not only ready and willing but also able to purchase on the terms authorized.</p> <p>Id.—Breach of Contract to Sell—Measure of Damages—Judgment for Seller.—In the absence of bad faith, the measure of damages for the seller’s breach of a contract to convey land is the price paid, and expenses properly incurred in examining the title and preparing the necessary papers. In an action to recover for such breach, no damage is suffered, and judgment is properly rendered for the defendant, if no price had been paid and no expense incurred by the purchaser.</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>Fred N. Arnoldy, and Irwin, White & Rosecrans, for Appellant.</p>

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

<p>Estate of Deceased Persons—Written Acknowledgment bt Father of Illegitimate Child—Construction of Writing.—Section 1387 of the Civil Code, providing that “every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child,” is to be liberally construed, and does not require an acknowledgment in any precise or set form of words. The writing need not declare that the child therein acknowledged is illegitimate, and it need not be attested or signed by the “competent witness” in whose presence it is executed.</p> <p>Id.—Acknowledgment Prior to Enactment of Section 1387 of Civil Code.—Where the father of an illegitimate child executed such a written acknowledgment in the year 1861, when the statute of 1850 (Stats. 1850, p. 220) was in force, and died after the taking effect of section 1387 of the Civil Code, the rights of inheritance of the child are to be determined by the latter section.</p> <p>Id.—Statutes of Succession—Law in Force at Ancestor’s Death Determines Eights of Succession.—Section 1387 of the Civil Code is simply a statute of succession or inheritance; and as no right vests in a presumptive heir until the death of the ancestor, the persons entitled to succeed must he ascertained according to the law in force at the date of the ancestor’s death.</p>

<p>Fraudulent Conveyance—Finding Against Fraud—Conflict of Evidence—Appeal.—In an action by a creditor of a grantor to set aside the conveyance on the ground that it was made to defraud the plaintiff, a finding that there was no intent to defraud and that there was a valuable consideration, is held to be sustained by the evidence, and consequently cannot be interfered with on appeal.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank Thanen, W. M. Singer, and Wm. Singer, Jr., for Appellants.</p>

<p>Husband and Wipe—Alienation op Appections—State op Feelings. In an action for alienating the affections of a husband or wife, the state of the feelings of such husband or wife is material.</p> <p>Id.—Action pos Alienation—Absence op Appection—Declaration op Spouse—Evidence.—A charge of alienating the affections of a husband from his wife is not sustained if it appears that, before the defendant acted at all, the husband entertained no affection for his wife, and that his actions toward her were the result of his own sentiments, instead of being caused by any persuasion or inducement of the defendant. Consequently, in such an action, the relations between the plaintiff and her husband, and the nature of his feelings toward her are a proper subject of inquiry, and his declarations as to his own state of affections are admissible.</p> <p>Id.—Improper Motive op Dependant—Dependant Parent op Alienated Spouse.—In such an action, a material point of inquiry is the intent with which the' defendant acted, and it must appear that he has acted from improper motives. A much stronger ease is required to be made out where the defendant is a parent of the spouse alleged to have been enticed.</p> <p>Id.—Exclusion op Material Evidence—Prejudicial Error—Similar Evidence by Impeached Witness.—In an action by a wife against her father-in-law for the alienation of her husband’s affections, the exclusion of evidence of the defendant, tending to show that his conduct was free from improper motives, and that the husband’s loss of affection for his wife was the result of his own sentiments, will not be deemed unprejudieial, merely because the husband was permitted to testify as to some of the matters concerning which the defendant’s testimony was excluded. This is particularly so where the husband’s credibility as a witness was impeached.</p> <p>Id.—Admissible Declarations — Form op Questions — Testimony Sought to be Elicited—Purpose op Testimony.-—Where declara-' tions as to which a witness is being examined are admissible generally and have a direct bearing on one of the main issues in the ease, the sustaining of objections to questions asked the witness, so framed as to show clearly the nature and purport of the declarations sought to be proved, is erroneous, notwithstanding the party conducting the examination failed to indicate to the court the nature of the testimony sought to be elicited, or the purpose for which the testimony was offered.</p>

<p>Partnership—Parol Agreement to Deal in Land—Parol Evidence to Show.—A copartnership for the purpose of engaging in the business of buying, selling, and dealing in real estate may be created by parol, and necessarily proof of its continued existence may be shown by oral testimony.</p> <p>Id.—Deed Taken in Name of Wife of Partner—Voluntary Trust— Statute of Limitations.—Where a wife of one of the partners accepted a deed in her own name to land purchased for the copartnership, with knowledge of the purpose for which it was made to her and of the partnership agreement, the law implied a promise on her part to reconvey. The transaction created a voluntary continuing trust in her, against which the statute did not begin to run until she repudiated it.</p> <p>Id.—Action to Enforce Trust—Advance of Purchase Price by Trustee.—In an action by the other partner to enforce such trust as to a portion of the land remaining unsold, the fact that the grantee had advanced to her husband, who was her agent, a part of his share of the purchase price, becomes immaterial, if she had beern previously repaid the amount so advanced from the proceeds of the portions sold.</p>

<p>Taxation—San Francisco—Taxes in Excess of Dollar Limit.— Josselyn v. City and County of San Francisco, 168 Cal. 436, hold- ‘ ing invalid certain taxes levied by the city and county of San Francisco, because the same were in excess of the “dollar limit” fixed by its charter, is followed and approved.</p> <p>Id.—Demand on Supervisors for Order for Refund of Taxes Illegally Collected—Inaction of Board for Unreasonable Time— Rejection of Claim—Where a taxpayer seasonably after payment of the taxes so illegally assessed by the city and county of San Francisco, made a proper demand upon the board of supervisors for an order for refund of the moneys so paid, as provided by section 3804 of the Political Code, and repeatedly requested the board to take action in the matter, its inaction for a period exceeding six months is so unreasonable as to amount to a rejection of the claim and thus to authorize an action to recover the amount of the taxes illegally collected.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco refusing to admit a will to probate, and from an order refusing a new trial. Marcel E. Cerf, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder Committed in Perpetration op Burglary— Killing Done by Co-perpetrator op Felony—Murder op First Degree.—Each of two persons engaged in the perpetration or attempt to perpetrate a burglary is a principal, and each is equally guilty in the eyes of the law of any act committed by either in the prosecution of the burglarious scheme. Consequently, under section 189 of the Penal Code, where a murder is committed in the perpetration or attempt to perpetrate such crime, the one who did not actually do the killing, is guilty of murder in the first degree.</p> <p>Id.—Murder Necessarily op First Degree.—In a case where such a murder is proved, no other verdict than that of guilty of murder of the first degree could properly be rendered.</p> <p>Id.—Suppiciency op Indictment por Murder Committed in Perpetration op Burglary.—An information for murder is sufficient if it follows the language of the statute defining the offense, whatever the circumstances of the particular case. Consequently, an information for a murder so committed need not specifically allege that it was committed in the perpetration or attempt to perpetrate a burglary.</p> <p>Id.—Instruction as to Single Degree op Murder.—In such a prosecution, it is proper to instruct the jury that where the killing is done in the perpetration or attempt to perpetrate one of the felonies specified in section 189 of the Penal Code, the jury has no option but to find the killing to be murder in the first degree.</p> <p>Id.—Temporary Retirement of Juror—Omission of Admonition—Error Without Prejudice.—To permit a juror, during the examination of a witness, to retire to an ante-room for two or three minutes, unaccompanied by an officer and without the statutory admonition, where no proceedings were had during his absence, and his retirement was not objected to by the defendant, is riot a forbidden separation of the jury, and even if erroneous, will not be presumed prejudicial and will not warrant a reversal of a judgment of conviction. Especially is this true in view of the provisions of section 4% of article "VI of the constitution.</p> <p>Id.—Signing of Warrant Fixing Date of Execution—Presence of Defendant not Necessary.—Under the statute of this state, the fixing of the time for the execution of the judgment imposing the penalty of death is no part of the judgment. This is done in the warrant signed by the judge and attested by the clerk, after the judgment is given. The presence of the defendant at the time the warrant is signed by the judge is not contemplated or required.</p> <p>Id.—Determination by Jury as to Nature of Punishment—Evidence to be Considered—Character and Habits of Defendant.—On a trial for murder, the determination of the jury, under the provisions of section 190 of the Penal-Code, as to death or life imprisonment, is to be based solely on such evidence as is admissible on the issues made by the indictment or information and the plea of the defendant, and it is not error to refuse to permit evidence for their consideration in determining that matter which is not relevant or material, such as testimony in reference to the defendant’s character and previous habits.</p>

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

<p>Corporation — By-law Providing por Calling Annual Meeting — Mandatory Provisions—Duty op President to Call.—A by-law of a corporation providing that “the annual meeting of the stockholders may be held in the first week of December in each year and shall be called as the directors may direct, or by a notice in writing by the president, delivered or mailed to each stockholder personally,” is mandatory as to both the alternative methods for calling the contemplated annual meeting. If the directors for any reason fail to call the meeting, then it becomes the duty of the president so to do.</p>

<p>Negligence—Electric Power Company—Maintaining Wires Along Road—Degree of Care Required.—A person or company maintaining an electric power transmission line along, or over a public or private road, while not an insurer of the safety of the public, is required to exercise a high degree of care in placing the wires so as not to interfere with traffic on the ordinary highway and so as to avoid contact with and injury to any person or object which may reasonably be expected to pass under the wires.</p> <p>Id.—Reasonable Cabe—Use oe All Known Means to Avoid Injury. The standard to be attained is that of ordinary and reasonable care, and this means such care as a reasonably careful and prudent person, having in view the dangers to be avoided and the likelihood of injury therefrom would exercise, under t'he circumstances, in order to prevent injury. Where death may be caused by an agency lawfully in use, ordinary care requires that every means known, or that with reasonable inquiry would be known, must be used to prevent it.</p> <p>Id.—Height oe Wires Above Ground—Ascertaining Height oe Objects Passing Under Wires—Height oe Existing Wires.—The •duty of the person maintaining such a power line, with respect to the height of the wire, where the line ran along or over a roadway, was to suspend them high enough to permit safe and unobstructed passage under them of all persons and things which could reasonably be expected to pass. In determining this question it was required to make careful inquiry into the conditions and customs of the country penetrated by its lines and ascertain the height of objects which it could reasonably be expected might be transported into, along or across the road over which its lines ran. The height of existing wires throughout the country where the conditions were similar to the territory penetrated by its line were proper for its consideration.</p> <p>Id.—Not Negligence to Suspend Wires at Altitude op Twenty-seven Feet, Eight Inches.—A power company cannot be charged with any lack of care or caution, as to persons or objects passing along, into or across the road along or over which its line ran, in fixing the altitude of its wires at a height of twenty-seven feet and eight inches above the ground, when the evidence shows that, both in the neighborhood of its line and elsewhere throughout the state, the country is webbed with telephone wires passing over the highways at heights varying from twenty to twenty-five feet, and that a large number of other power companies, some seventeen or more, were maintaining power lines in the state, several of them in the neighborhood of its line, and that the usual height of the wires of such companies above the ground was practically the same as its own, many of them being lower.</p> <p>Id.—Anticipation op Passage' op Objects op Greater Height.—The power company which had erected its transmission line at such an elevation cannot be charged with negligence in not anticipating or foreseeing that at a future date persons might want to transport along the road certain kinds of farming implements extending to a higher elevation above the surface of the ground.</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, Morrison, Dunne & Brobeck, and R. L. McWilliams, for Appellants.</p> <p>Stanley Moore, Lewis F. Byington, Ernest Weyand, and A. A. Moore, for Respondents.</p>

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

<p>Deeds — After-acquired Title — Estoppel by Grant.—The grantee under a grant, bargain, and sale deed purporting to convey the fee acquires any title to the land therein described acquired by his grantor subsequent t'o the date of the deed even if the grantor had no title whatever to the land at the time the deed was executed.</p> <p>Id.—Description—Recital of Quantity.—Clear words of description are not modified by a recital of quantity in the deed.</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>VENDOS AND VENDEE-ACTION TO ENFORCE VENDOR’S LIEN-DESCRIPTIONS —Variance Between Contract and Complaint — Admission of Pleadings.—In an action to enforce a vendor’s lien for the unpaid purchase price under an executory contract for the sale of certain mining claims, the fact that the descriptions of the claims in the contract vary from the descriptions found in the complaint and the findings is immaterial, where the complaint embodies a copy of the contract, and alleges that the property agreed to be sold by it is described as set forth in the complaint, and such allegations are not denied.</p> <p>Id.—Waiver of Lien—Action for Purchase Price.—Such a vendor, retaining the legal title, does not waive his lien by commencing an action at law for the recovery of the purchase price.</p> <p>Id.—Tender by Vendor—Answer Showing Conveyance Would have Been Befused.—In such action, technical defects in the tender by the vendor, or even a want of any tender, is immaterial, when the answer shows that a conveyance would have been refused in any event.</p> <p>Id.—Action One for Specific Performance—Pleading—Adequacy of Consideration—Just and Seasonable Contract.—An action by a vendor under an executory contract for the sale of land to recover the purchase price and to enforce a lien therefor, is one for the specific performance of the contract, in which it is necessary to sustain a judgment for the plaintiff that the complaint should allege and the court should find, facts showing that there was an adequate consideration for the obligation sought to be enforced, and that the contract was just and reasonable as to the defendant.</p> <p>Id.—Appeal from Judgment Foreclosing Lien — Modification of Judgment—Action for Purchase Price—-Jury Trial.—On an appeal by the defendant in such action from a judgment foreclosing the lien of the vendor, taken on the judgment-roll alone, the court is not warranted in ignoring the absence of such necessary allegations and findings, or in modifying the judgment by striking out everything but the provision for the recovery of the purchase price. An action for that purpose alone would be one at law, in which the parties would be entitled to a jury trial.</p>

<p>Statutory Bond—Reference to Statute—Compliance with Statutory Provisions—Filing -Statement of Claims.—In a suit by a materialman against a contractor and his surety on the. bond given for work done for a school district, where no verified statement of claims was filed by the materialman as required by Stats of 1897, pp. 201, 202, as amended by Stats. 1911, p. 1422, and the bond given makes no reference to such statutes, if the defeasance clause follows the wording of the statute, and the amount of the bond is approximately the amount required by the statute, and was executed on the same day as the contract, the bond will be deemed to be the statutory bond, and not a common-law bond, and plaintiff cannot recover against the surety without complying with the provision as to filing claims, although such filing would not be necessary to a recovery on a common-law bond.</p> <p>Id.—Recital in Bond.—A recital in such a bond that it is given pursuant to the statute is not necessary in order that it shall be the bond contemplated by the statute where it appears otherwise that the bond was in fact the statutory bond.</p> <p>Id.—Conditions in Bond Imposed by Statute.—The fact that one of the conditions of the bond is that the contractors will faithfully execute the terms of their contract to the satisfaction of the school district— a requirement which is not prescribed by the statute—does not impress the instrument with the character of a common-law bond.</p> <p>Id.—-Constitutionality of Statute Under Which Bond is Given.— The constitutionality of the statute is immaterial because if it was given -pursuant to the statute one seeking a recovery on it must comply with the provisions of the statute, and the uneonstitutionality of the statute would not change the character of the bond to that of a common-law bond.</p> <p>Id.—-Condition Precedent to Recovery—Complaint.—Under the statutes above cited the complaint' must allege that verified statements of the claims declared upon were filed within thirty days from the time the work was completed with board of trustees of the school district, and if it fails to do so if fails to state a cause of action against the surety.</p>

<p>Minor—Marriage of—Consent of Parents or Guardian.—The marriage of a female minor over the age of consent is valid independently of the consent of her parents or guardian. Such consent is necessary only when the minor is under the age of consent as provided in section 56 of the Civil Code.</p> <p>Id.—Guardianship—Cessation of Controversy—Appeal.—When the foundation of the controversy is as to who is legally capable of consenting to the marriage of a female minor, if the marriage has been solemnized with the consent of the minor after the appeal was taken, and is therefore valid without the consent of either parent's or guardian, the court will not pass judgment upon the validity of the appointment of the guardian because t'he judgment can have no practical effect.</p> <p>Id.-—Termination of Authority of Parents or Guardian by Marriage. The authority of parents or guardian over a minor ceases upon the marriage of the minor.</p> <p>Dismissal of Appeal—Cessation of Controversy.—When by the happening of an event after the taking of the appeal, the determination of the controversy becomes of no practical effect, the proper course is to dismiss the appeal.</p>

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

<p>Landlord and Tenant—Conversion.—The owner of land can recover for the conversion of beet-tops grown thereon by the defendants as tenants under an agreement that the beet-tops shall remain on the land .and be plowed under as fertilizer by the defendants, the profits received by defendants from such wrongful dealing with the property of plaintiff.</p> <p>Id.—Incidental Benefit to Plaintiff.—In such an action it is no defense that t'he defendants in disposing of the beet-tops conferred an incidental benefit upon the land of plaintiff from the fact that the beet-tops wrongfully sold by the defendants as fodder were fed to cattle on the premises and the cattle fertilized the land.</p> <p>Special Ownership—When It Limits Recovery.—Where defendants had no ownership in the property, the sort of ownership enjoyed by plaintiff is immaterial, since the rule that owners , of a special interest in property may recover only to the extent of such interest applies only to cases where the suit is brought against the owner of the remaining interest, or his assignee.</p> <p>Presumption of Damages—Application of Property- to Benefit of Owner.—The presumption dealt with in sections 3336 and 3337 of the Civil Code does not' apply to a case in which the owner received only a consequential benefit from the misapplication of the property and therefore the question as to whether or not the defendants had a possession rightful from the beginning is immaterial.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, E. B. Power, Assistant Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Appellant.</p>

J. Pillsbury, Will J. French, and Harris Weinstock, as members of and constituting the Industrial Accident Commission of the State of California. The facts are stated in the opinion of the court.

<p>Mechanic’s Lien—Void Contract—Lien op Subcontractor Limited to Agreed Price.—Where the original contract for the erection of a building is void as between the owner and the contractor, a subcontractor, who has furnished materials and done work upon the building for the contractor at an agreed price, is entitled to a lien, under section 1183 of the Code of Civil Procedure, only to the extent of such agreed price, notwithstanding the actual value of such materials and work exceeded that price.</p> <p>Id.—Notice op Lien—Name op Person to Whom Materials Were Furnished.-—The notice of lien of a subcontractor sufficiently shows the name of the person to whom the materials were furnished, when it states that a designated person “is the name of the contractor,” who on a day certain “entered into a contract in writing with” the claimants, under which the latter were to perform labor and furnish materials to be used in the construction of the building, and then sets out the subcontract, states that it has been fully performed by the claimant, and that the building has been completed.</p> <p>Appeal—Petition por Rehearing—-New Points not Considered.—The supreme court will not on a petition for a rehearing consider new points not mentioned in the briefs upon which the case was submitted.</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>Criminal Law—Murder—Capacity to Commit Crime.—One who has sufficient mental capacity t'o appreciate the character of his act, knew that it violated the rights of another and was in itself wrong and prohibited by the laws, and would entail punishment, and thus could appreciate the character and comprehend the consequences of his act, is to be judged accordingly, regardless of how deficient he may have been otherwise.</p> <p>Id.—Reopening Case por Further Testimony—Discretion op Trial Court.—Where after resting, defendant offered the testimony of a new witness admittedly of a similar character to much testimony already heard upon the question of mental capacity but dealing with a slightly later period, it is not an abuse of discretion by the trial court to refuse to reopen the case and allow the testimony to be heard as it would be most unreasonable to assume that such testimony could possibly have affected the verdict.</p> <p>Id.—Newly Discovered Evidence—Discretion op Trial Court—Review on Appeal—Applied to Case at Bar.—The question of the effect of newly discovered evidence is addressed to the discretion of the trial court and a new trial should be granted on this ground only when the effect of such evidence is such as to render a different result probable, and on appeal the decision of the trial court will be disturbed only when the appellate court can plainly see that this discretion has been abused. In the case at bar, no satisfactory showing being made as to why the results of examinations made after the trial were not obtained before trial, and it not appearing that the evidence would have produced a different result, the order denying a new trial will not be reversed.</p> <p>Id.—Juvenile Court—Age op Dependant.—The superior court has jurisdiction to proceed with the trial of a criminal prosecution against a defendant under the age of eighteen years, where no request to have the matter submitted to the juvenile court under the Juvenile Court Act (Stats. 1913, p. 1285), was ever made to the superior court or to the committing magistrate, although the evidence adduced at the trial may have shown that the defendant was under that age.</p> <p>Id.—Age of Defendant—Duty of Superior Court.—No claim based on section 19 of that act can be maintained in the appellate court when the question of age was not determined by the trial court, and no claim to the benefit of such provision was made prior to the appeal, notwithstanding that the evidence at the trial may have indicated the age of defendant, since there is no duty upon the superior court to take any action in the matter in the absence of a suggestion or request that it do so.</p>

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

<p>APPLICATION for a Writ of Habeas Corpus.</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>Probate Law—Trusts—Bule Against Perpetuities and Bestraints upon Alienation.—A bequest of money in trust to pay the principal and accumulated income to the beneficiary upon reaching the age of twenty-five years is not in conflict with the rule against perpetuities and restraints upon alienation since the ultimate duration of the trust is based upon a life in being.</p> <p>Id.—Vested Interest.—Such a bequest denotes a vested interest in the beneficiary.</p> <p>Id.—Accumulations.-—The direction for accumulation of income beyond the age of minority of the beneficiary is void but the trust itself is valid and the beneficiary after arriving at maturity is entitled to receive the income.</p> <p>Ib.—Time of Payment of Corpus and Income.—The corpus of such a trust is payable to the beneficiary at the time designated and accumulated income is payable to him upon arriving at the age of majority and the subsequent income as it accrues.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Keogh & Olds, I^eed, Black, Reed & Bingaman, and De-Lancey C. Smith, for Appellant.</p>

<p>Water—Diversion of Underground Flow Supplying Springs—Measure of Damages.—In an action to recover damages for the diversion of underground water supplying springs on the land of the plaintiffs, thereby causing the springs to become dry and depriving plaintiffs of water belonging to their land, the measure of damages is the difference between the value of the land before the diversion and its value if it were permanently deprived of the water so ' diverted.</p> <p>Ib.—Evidence of Damage—Hypothetical Questions Based Solely on Gross Revenue.—Hypothetical questions, based solely upon the element of the gross revenue derivable from the land when supplied with or deprived of water, are inadmissible to show the value of the land in such respective conditions or the damage caused by the diversion.</p> <p>Id.—Opinion Evidence as to Value—Qualifications of Witness.— Such values and damage may be shown by the opinion evidence of a competent witness as tO' it's respective values with and without the use of the water in question, after the witness has first established his qualifications by showing, for example, that he has seen and examined the land, or that he knows something of its character and condition, or the market values of land in that vicinity, if such values have been established, or the values of land similarly situated, and the like.</p>

<p>Inheritance Tax Law—Duty of Appraiser—Duty of Probate Court to Follow Statutory Procedure—Appeal by State Controller. The duties of an inheritance tax appraiser, differing from those of general probate appraisers, are to report on the character and probable value of so much of the estate as is liable for the inheritance tax and to determine whether transfers have been made by the decedent' which are subject to inheritance taxation. A hearing of a report of the inheritance tax appraiser before the probate court upon notice, a determination by the court after such hearing, and an authorization to the county treasurer to receive the inheritance tax when such formal proceedings have been taken, is provided by the law, and independently of whether the state sustains any loss through a course followed by the court differing from this, the state controller is entitled to insist that the procedure as outlined by the statute be followed. An order of final distribution made and later amended nunc fro tunc determining the amount of the inheritance tax, although the amount be correct, will not prevent the controller from insisting upon the statutory course.</p> <p>Id.—Appointment of Appraiser by Probate Court—Failure of Inheritance Tax Appraiser to Act With Probate Appraisers— Expenses of Appraisement—Course Suggested to Executor or Administrator.—The court in probate appoints three appraisers of whom one must be a regularly constituted inheritance tax appraiser. The court must appoint one inheritance tax appraiser but need not appoint more than one. If the inheritance tax appraiser fails to act with the probate appraisers, the expenses of making the inheritance tax appraisement are payable out of the funds of the estate. To avoid this expense an executor or administrator may well see to it that the inheritance tax appraiser acts with the probate appraisers.</p> <p>Probate Appraisers—Duty of Same.—The duty of appraisers in probate is to report upon the' character and probable value of the properties of the estate.</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>Metson, Drew & Mackenzie, John Hancock, and Horatio Ailing, for Appellants.</p>

<p>Husband and Wife—-Damages for False Communication—Sufficiency of Complaint.—A complaint is insufficient which alleges that defendant mailed a letter to an association of credit men of a building material dealer’s association, stating falsely that plaint®, a builder, owed defendant a sum of money for materials furnished, the contents of which in an unexplained manner was designedly made known t'o plaintiff’s wife, in consequence of which she underwent an altered physical condition and became estranged from plaintiff for a long time, which resulted in damage to plaintiff.</p> <p>Id.—Frivolous Appeal.—An appeal from an order sustaining a general demurrer to such a complaint is frivolous and a penalty of added costs will be imposed.</p>

<p>Action to Quiet Title—New Trial—-Validity op Execution op Contract op Sale.—In an action to quiet title by the grantee under a deed against one claiming under a contract of sale alleged to have been made by the grantor of the deed, an order granting a new trial on the theory that the contract is valid, will be set' aside where it appears that the contract as proved by the record, the original being destroyed, was signed “A B owner by C D agent,” contained the clause “subject to the owner’s approval” and the agent signed his name as witness to the signature of the owner after her death and between the time of its first and second recordations, that the name of the owner was wrongly spelled although she could write, and the authority of the agent was not shown, notwithstanding that the sister-in-law of defendant testified that she knew the owner in her lifetime, had seen her write, had seen her signature, and the original contract, and that the signature of the owner thereon was like her other signatures.</p> <p>Id.—Specific Performance—-Contract Executed by Joint Owner.— The order granting a new trial under such circumstances should be set aside where the contract of sale dealt with an entire tract of land of which the' alleged maker of the contract of sale was only a part owner and such contract was for that reason not specifically enforceable.</p> <p>Id.—Laches.—The failure of defendant claiming under such contract to take steps to enforce his -rights under it after being notified by the plaintiff, who claims under a deed from the alleged maker of the contract, that he would not convey the property in pursuance of the contract, constitutes laches which are a defense to the cross-complaint for specific performance based on the contract in an action to- quiet title brought by the grantee under the deed years after such notification.</p>

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

<p>Industrial Accident Commission—Remedies of Employee—Optional Right to Sue for Damages.—Under the Industrial Compensation Act, where t'he specified conditions of compensation exist, the optional right of an injured employee to either claim compensation under the act or to maintain an action at law for damages, is restricted to eases where the injury was caused by the employer’s gross negligence or willful misconduct of a certain specified character. In other cases the right to recover compensation in a proceeding before the commission is the exclusive remedy of the employee.</p> <p>Id.—Action" for Damages by Employee—Judgment upon Sustaining Demurrer to Complaint.—In an action by an employee against his employer to recover damages for personal injures received by him in the course of his employment, a judgment for the defendant, entered upon sustaining a demurrer to the complaint, merely determines that the allegations of the complaint failed to state a case of such character, and therefore the proper tribunal for the adjudication of the claim is the Industrial Accident Commission.</p> <p>Id.—Subsequent Proceeding Before Commission—Estoppel—Jurisdiction.—Neither the commencement of such action nor the judgment therein estops the employee from afterward pursuing his remedy before the commission, nor deprives the commission of jurisdiction of the proceeding instituted by him.</p>

<p>Judgments—Omission in Conclusions of Law—Power of Court to Amend Judgment.—In an action on a contract to compel the conveyance of land and stock in a water company on payment of the purchase price, in which findings of fact and conclusions of law were filed, the former referring to the stock and the latter containing no reference to it, and the oral decision of the court required the conveyance of both land and stock, but the judgment as entered by the clerk omitted reference to the stock, the court can amend the judgment as entered by adding the portion of the oral judgment relating to the stock even if the .judgment as entered has become final and has been satisfied.</p> <p>Id.—Power of Court to Amend Judgment as Entered.—A court can always amend the judgment entered by the clerk to make it conform to the judgment actually rendered, but it cannot alter the judgment as rendered, nor make the judgment as entered express anything not embraced in the judgment as rendered even if the court should rightfully have rendered a judgment in conformity with the amendment.</p>

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

APPEALS from orders of the Superior Court of Contra Costa County made after judgment. R. H. Latimer, Judge. The facts are stated in the opinion of the court.

<p>Guardianship op Minors—Abandoned Child—Bights op Parents.— A decree made under section 224 of the Civil Code that a child is an abandoned child judicially strips the parents of the then present right to the guardianship, care, custody, and control of the child, but if no action looking toward adoption or guardianship is taken, such decree does not destroy the right of a parent at a subsequent time upon a proper showing to be appointed guardian of such child.</p> <p>Id.—Powers and Duties op the State—Abandoned Child.—In the exercise by the state of its duty to guide and guard its helpless young, it is proper that it should make provision for abandoned children and to provide by process of law a forum for determining whether a child is abandoned, and, upon determining this question, to provide for the future care of the child by adoption or guardianship, and to determine under what circumstances the rights of parents to such guardianship shall cease and what acts shall constitute abandonment of the child.</p>

<p>Contract of Sale—Forfeiture for Non-payment of Installment.— Waiver—Estoppel.-—Evidence showing that the vendor led' the vendee to believe that the vendor did not propose to insist upon the forfeiture of a contract of sale of land, but would await the payment of the balance of the purchase price under condemnation proceedings then pending, if available within a reasonable time, constitutes a waiver of the right of forfeiture, at least until a reasonable time within which to make the payment after notice that the forfeiture would be claimed, and the vendor is estopped thereby to declare an immediate forfeiture:</p>

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

<p>Corporations—Stock Wrongfully Taken by Secretary—Pledge for Private Loan—Defense of Negligence.—Where the secretary of plaintiff corporation wrongfully took from its safe a certificate of its own stock pledged to the corporation as security for a loan to himself, and later pledged it to the defendant bank as security for a personal loan to himself, plaintiff can recover the stock from the pledgee as against a defense that the loss was caused by the negligence of plaintiff in allowing the secretary to have access to its safe and in placing him in a position of confidence upon which the defendant was entitled to rely.</p> <p>Id.—Estoppel.—No estoppel is created against -the plaintiff by reason of the facts that the secretary was a trusted official holding a responsible position with the plaintiff, which was known to the defendant, that he dealt with defendant on behalf of plaintiff in negotiating loans for it, and that the plaintiff did not notify defendant of the loss of the certificate until defendant requested a transfer of the st'ock, since these circumstances did not induce defendant to alter its situation to its disadvantage after the loan was made.</p> <p>New Trial—Notice Served Prior to Entry of Judgment—Additional Notice.—A notice of intention to move for a new trial served before entry of judgment is a nullity and a similar notice served within ten days after actual entry of judgment, whether or not the moving party had notice of such entry, is not prejudiced by the previous void notice.</p>

<p>Foreign Corporations—Noncompliance With Laws of this State— Leave to File Amendment to Answer Properly Refused.—In an action by a foreign corporation on a promissory note made outside of the state an amendment to the answer offered at the trial on information and belief denying that plaintiff corporation had complied with the law requiring a foreign corporation, doing business in the state, to file a copy of its articles of incorporation and a designation of an agent on whom process might be served, and alleging that plaintiff is now doing business in this state, is insufficient and it was proper t'o refuse leave to file it.</p> <p>Pleading and Practice—Answer to Amended Complaint—Time Within Which to Answer—Continuance.—The time within which to answer to an amendment to a complaint amended at the trial rests within the sound discretion of the court, and defendant has not as a matter of right a period of ten days within which to answer it under section 432 of the Code of Civil Procedure or the right to a continuance for that purpose.</p> <p>Id.—Effect of Code of Civil Procedure, Section 432.—Section 432 of the Code of Civil Procedure in declaring that the amendments to a complaint or the complaint as amended must be answered within ten • days or such time as the court may prescribe is but a direction to compel the joining of issues within a reasonable time so as t'o expedite the trial of actions.</p> <p>Id.—Allegation of Nonpayment—Discretion of Court as to Leave to File Amended Answer.—Where the allegation as to nonpayment of a promissory note was alleged in the complaint sufficiently to pass a general demurrer, but was amended at the trial so as to become more specific, and the answer alleged payment, it was not an abuse of discretion upon the part of the trial court to refuse to allow defendant to amend his answer as the same issue was already raised by the pleadings and defendant was not subjected to surprise.</p> <p>Id.—Judgment-roll.—If the complaint is amended the original answer is not thereupon functus officio, but is the answer in the ease until an amended answer is filed and such original answer is an essential part of the judgment-roll.</p> <p>Id.—New Trial—Authentication of Notice—Defective Record on Appeal.—A notice of intention to move for a new trial not authenticated and not contained in any statement or bill of exceptions, although printed in the transcript, renders the record insufficient upon which to consider the appeal from the order refusing a new trial.</p>

<p>APPEAL from an order of the Superiqr Court of the City and County of San Francisco granting a family allowance to the widow of a deceased person. Thos. F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Will—Bequest to Employees of Company—Working on January 1st—Construction.—Under a bequest in a will reading: “To all employees of the Henry Cowell Lime and Cement Company now working for said firm at Santa Cruz and who have been in said employ for twenty years, the sum of one thousand dollars each, and to all who have worked over two years, the sum of five hundred dollars each. ... In all cases these dates are as of January 1st, 1911,” it was not necessary, in order to qualify as a beneficiary an employee who had worked for the period of years required, that he should show in addition that he was actually working on the 1st of January, 1911. It is to be assumed that the testator knew that by reason of the first of the year being a holiday the employees of the company would not be actually working on that day.</p> <p>Id.—Temporary Suspension of Work by Company.—Continuance of Status of Employee.—An employee who had worked for the company to the end of December, 1910, when, without being formally discharged, he was paid off with the other employees in accordance with a custom of the company to pay off its men at the end of each month, and who afterward, with other employees, during a temporary suspension of work by the company, remained laid off for a short period before he resumed his work, was an employee of the company on the first day of January, 1911,, within the meaning of such bequest.</p>

<p>Criminal Law—Commitment bt Justice or the Peace—Constitutional Law.—It is proper to deny a motion to set aside an information upon the ground that the defendant was not committed by a magistrate', when he was committed by a justice of the peace, since sections 1, 11, and 15 of article VI of the constitution, adopted October 10; 1911, did not have the effect of abolishing justices’ courts.</p> <p>Id.—Evidence Showing Probable Cause—Habeas Corpus.—A motion to set aside an information upon the ground that the evidence before the magistrate was not sufficient to show probable cause is properly denied since such objection can be raised only in proceedings in habeas eorym.</p> <p>Id.—Questions—Jurors—Not Prejudicial to Dependant.—A question put to two jurors on their voir dire as to whether they would follow a certain instruction if given by the court, the instruction itself being contrary to law, where the question or the answer to it do not show misconduct on the jjart of the district attorney, is not prejudicial to the defendant.</p> <p>lb.—Conspiracy to Escape prom State Prison—Verdict Supported by the Evidence.—In this prosecution for murder for the killing of a guard at a state prison, where the evidence shows a planned and concerted action on the part of defendant, a life term convict and another prisoner serving a term less than life, to escape from the prison, and in the accomplishment of the escape to use such force as was found to be necessary, the facts that the defendant did not assault the deceased guard, and that no specific agreement was shown by the defendant and his associates to kill anybody in their concerted plan to escape, do not require a reversal of a verdict of guilty of murder in the first degree as unsupported by the evidence, since the killing of any person standing between them and the accomplishment of their purpose to escape is the material consequence of the execution of their common design, notwithstanding that it is not made a crime' by law for one undergoing a life sentence to escape or attempt to escape from a state prison.</p> <p>Id.—Escape from State Prison—Aiding and Abetting Same.—By the law of this state it is a felony for any one confined in a state prison for a term less than life to attempt to escape or to escape therefrom, and any one including one serving a life sentence in such prison aiding and abetting such, person in the commission of such felony is a principal therein.</p> <p>Id.—Conspiracy—Responsibility for Acts of Co-conspirator—Common Design.—If several persons conspire t'o commit an unlawful act, each person is criminally responsible for the acts of his associates committed in furtherance of their common design, although the act committed was not intended as a part of such design if it is nevertheless the reasonable consequence of such design; but a conspirator is not responsible for an act of a co-conspirator which is not a part of their common design, was not originally contemplated, is not in furtherance of it and not the legitimate consequence of anything connected therewith.</p> <p>Id.—Instruction to Jury—Felony.—An instruction that a prisoner in the state prison for a term of less than life, who attempts to escape is guilty of a felony, that any conspiracy for the purpose of accomplishing the escape of such person is a conspiracy for the accomplishment of an unlawful act, and that all persons concerned in the commission of a crime are guilty as principals whether they commit the act directly or merely aid and abet it, and that one who aids and abets a convict confined in. a state prison for a term less than life to escape therefrom is guilty of a felony, states the law correctly.</p> <p>Id.—Instruction Held not Prejudicial to Defendant.—An instruction stating it to be the duty of a convict informed of an expected attempt to escape by a convict confined in a state prison for a t'erm less than life, and not desiring to participate therein, to report the same, and stating further that if he aids and abets in such escape he is responsible for all the consequences that follow the conspiracy, is incorrect in stating the moral duty as to giving the information, but in view of the context is not prejudicial to defendant, since the portion of it relating to aiding and abetting the escape states the law correctly.</p> <p>Id.—Requested Instruction—Life-term Prisoner Assisting Convict for Term Less Than Life.—A requested instruction involving the proposition that it is not a crime for one serving a life term in a state prison to aid one confined therein for a term less than life to escape therefrom was properly refused.</p> <p>Id.—Specific Agreement.—A requested instruction declaring substantially that the defendant could not be convicted of murder unless he actually struck the deceased, or unless it was specifically agreed between the conspirators as a part of the conspiracy that they would “kill and murder any one who interfered” with their escape, was properly refused.</p> <p>Id.—Defendant as Witness—Scope of Cross-examination.—Although a defendant in a criminal action cannot be compelled to be a witness against himself, if he testifies he may be cross-examined as to such testimony as fully as any other witness, and may be questioned as to any fact which if brought out would be inconsistent with his direct testimony.</p> <p>Id.—Improper Cross-examination—Not Prejudicial to Defendant.— A question directed to defendant over his objection, as to whether he knew that his co-conspirator was serving a term in a state prison of less than life, although probably not proper cross-examination, was not of sufficient consequence to justify a reversal, since such knowledge on the part of defendant was not essential to his guilt as principal in the charge for which he is being tried.</p>

<p>The facts are stated in the opinion of the court.</p> <p>L. EE. Honey, J. G. Reisner, H. W. Brunk, and Wm. 0. Minor, fer Appellant.</p>

<p>Contracts—Personal Services—Bonus on Annual Profits.—One who enters the service of a corporation for a term of years under a contract determining Ms salary and providing that in addition he shall receive a bonus upon the yearly profits of the business, .varying according to the extent of the profits, is entitled to recover a bonus computed upon the business at the end of the first year, notwithstanding that the services are terminated before the time limited 'in the contract and that he had not requested such bonus after a number of years’ services until the cessation of his employment.</p> <p>. Id.—Depreciation.—As a basis of such calculation the inventory made up in part by the various employees of the company, following the custom used by the company for many years, was held sufficient in the light of the evidence before the court, and there was no error in not including in such inventory an item of depreciation under the circumstances here shown.</p> <p>Id.—Estimated Profits.—Under the contract shown the profits referred to are construed to be estimated profits.</p>

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

<p>Irrigation Corporations—Action on 'Contract Payments for Delivery of Water—Counterclaim.—An answer, entitled “cross-complaint,” to a complaint to recover the amount agreed to be paid to plaintiff irrigation company under a contract to supply water to defendant’s land, which seeks the recovery of damages for failure to deliver water to the land in accordance with a contract, there being no showing that it arose out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, or that it was eonneeted with the subject of the action of plaintiff, or that the agreement sued on by plaintiff and that alleged by the defendant in such answer are the same, is a counterclaim as defined in subdivision 2 of section 438 of the Code of Civil Procedure.</p> <p>Id.—Cross-complaint—General Demurrer to Cross-complaint—Dependent Covenants not Alleged—Allegation of Performance.— A general demurrer to such cross-complaint which alleges no dependent covenants or conditions, upon the ground that it does not state the defendant properly performed the covenants of the contract, is properly overruled.</p> <p>Id.—Sufficiency as Against General Demurrer.—The sufficiency of the cross-complaint as against a general demurrer must be determined entirely by its own contents.</p> <p>Id.—'Contracts—When Covenants are Independent—Breach No Excuse for Nonperformance by Other Party.—The covenants of parties to a contract to be performed at different stated times are independent covenants and the breach by one party of his covenants does not excuse performance by the other party.</p> <p>Id.—Contract to Supply Water—Waiver of Eight to Terminate.— Where an agreement provided that the company furnish water to certain land and that payments be made on a certain day of each year with the right to the company in case of default in payment continuing for thirty days to cancel the contract at its option, the company, by continuing to deliver water and by recognizing the contract as obligatory upon itself after the default, waived the right to terminate the contract for such default, so far as it affected the right of defendant to demand and receive water thereafter and to claim damages for the failure of plaintiff to furnish it.</p> <p>Id.—Measure of Damages for Failure to Supply.—The measure of damages for failure to deliver water under such contract is the difference between the rental value of the land with water and its value without it, and the lawful price of the water should also ¡be taken into consideration and deducted.</p> <p>Id.—Land Partially Supplied With Water.—Where certain quantities of water were furnished to the land each year, but certain parts of the land were without water for the entire year, it was proper for the jury to find from the conflicting evidence what portions of the land were left without water for the entire year and to apply the measure of damages above stated to the acreage thus found, although it would be improper to apply that measure of damages to land which had been partially supplied with water during the year.</p>

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

<p>Water-rights—Conveyances op Same—Riparian Rights—Appropriation—Estoppel.—Where the owner of a tract of land, part of which is riparian and part nonriparian to a lake, granted “all and singular the water and riparian rights and water-rights and privileges of every kind and description which belong or in any manner pertain to” said tract and later conveyed the land to another party, who thereupon made an appropriation of water from the lake to irrigate a portion of such land, the successor in interest of the grantee of such water-rights is entitled to the waters of the lake as against the subsequent grantee of the land claiming riparian rights, and such grantee is also estopped from asserting a right to such water based upon an appropriation for use upon the land.</p> <p>Id.—Appropriation—Effect on Prior Right—Effect on Subsequent Appropriation.—An appropriation of water under the code divests no existing prior right, but merely gives a preference over a subsequent appropriator or diverter and fixes the date of posting the notice of appropriation as the inception of the claim under it.</p> <p>Id.—Effect as Against the United States—Foundation of Right.— ! An appropriation of water made upon lands of the United States gives the appropriator a right to the water as against the United States, but that right exists solely because by the act of Congress of July 16, 1866 (14 U. S. Stats. 253), the United States declared that such appropriation, if recognized by local laws, should confer upon the diverter the riparian rights pertaining to the lands of the United States abutting on the stream. Such appropriation gives no right as against other landowners, and the right exists, not upon the theory that the water is held by the United States for public use, but because the United States, as proprietor of the land, by that act granted a part of its property to such diverter.</p> <p>Id.—Effect of Appropriation Under Laws of California—Foundation of Right.—An appropriator under the code thereby obtains a right as against the riparian rights of the state pertaining to land owned by it along the stream, but solely because the state in section 1410 of the Civil Code has so declared, and this declaration binds the state as to its proprietary lands, but such appropriation does not affect other land or water-rights pertaining thereto.</p> <p>Id.—Extent of Interest of California.—Except as to riparian rights pertaining to lands owned by the state bordering on non-navigable streams the state has no right to the waters thereof and therefore cannot dispose of them.</p> <p>Id.—Appropriation—Effect When Adjoining Lands in Private Ownership.—Where, at the time of appropriation of the waters of a lake, the lands bordering on the lake and its tributaries are all in private ownership no right is acquired by such appropriation.</p> <p>Id.—Conveyance of Water-rights Pertaining to Land—Scope of Operation.—The conveyance of all water-rights and privileges belonging or pertaining to a tract of land not specifically referring to a lake on which the land abuts, includes water percolating in the land regardless of its source or of whether it had entered the lake, as well as water which had already entered the lake.</p> <p>Id.—Law of the Case—Different Facts on New Trial.—The doctrine of the law of the case does not apply where the facts appearing upon a new trial are materially different from those on which the decision constituting the law of the case was based.</p> <p>Id.—Reservation in Conveyance—Absence of Covenant to Construct Conduit—Failure of Consideration.—Where in a deed executed by grantor and grantees conveying all water-rights belonging to a tract of land owned by the grantor, the right to water for domestic purposes and for watering stock is reserved with a right to the grantor to connect with the flume or pipe of grantees for the purpose of using such water, but the deed contains no covenant that the grantees shall construct such pipe or flume, the failure to construct such pipe or flume does not constitute a breach of covenant and is not a failure of consideration.</p> <p>Deeds—Failure of Consideration—Executed Conveyance.—Neither a failure of consideration nor a breach of covenant which does not amount to a condition is sufficient to avoid an executed conveyance of property rights.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Cushing & Cushing, and Charles B. Younger, for Appellant.</p> <p>H. A. van C. Torchiana, W. P. Netherton, J. Leslie Johnston, City Attorney, and Stratton, Kaufman & Torchiana, for Respondents.</p>

<p>Agreement for Sale of Land—Specific Performance—Findings— Payment not Voluntary When Made Pursuant to Decree.—In an action by the purchaser to compel specific performance of an agreement of sale of a tract of land encumbered by a mortgage, a finding that the payment of the mortgage by plaintiff was voluntary and was not made in pursuance of the judgment of the court, is not supported by the evidence where it appears that, in the course of the action a decree was made that plaintiff pay to the clerk the amount of the purchase price and accrued interest on the mortgage and defendant deposit with the clerk a deed of the land to plaintiff, and thereupon that the clerk deliver the deed to the plaintiff and pay out of such deposit the amount of the mortgage and the balance to defendant, and that on the final judgment, it appearing that plaintiff had deposited the money, it was decreed that if defendant failed to execute the deed the clerk should execute it for her and should thereupon from the moneys on deposit pay the mortgage and the balance to defendant, and that later upon ex-porte motion of plaintiff the court ordered the treasurer to pay the amount of the mortgage to the mortgagee, which was done pursuant to this order with the consent, and at the request, of plaintiff.</p> <p>Id.—Equitable Belief fob Payment Made Under Erroneous Decree.—In such a case plaintiff is entitled to relief out of the money so paid, if it shall be finally determined that she is not entitled to specific performance, since plaintiff should not be made to suffer loss by compliance with the judgment of the court, and it would be inequitable to allow defendant to profit by a successful appeal taken after plaintiff, in reliance on the judgment, had complied with its terms by paying on defendant’s debt money which plaintiff was otherwise under no obligation to pay.</p> <p>Id.—Subrogation to Bights of Mortgagee.—In such a case the court has power, under a supplemental complaint alleging the matters which took place in the course of the proceedings in the main case, and that in pursuance of the orders and judgment made by the court the acts of plaintiff were both authorized and required by the court, to decree that plaintiff shall be subrogated to the lien of the mortgage paid by her and to enforce such lien in her favor by an appropriate judgment in ease it should finally determine that plaintiff was not entitled to enforce the alleged agreement of sale, in order to restore to plaintiff the money paid by her for defendant in pursuance of its own erroneous judgment.</p> <p>Id.—Invalid Agreement—Authorization to Agent—Telegrams.— An agreement for the sale of land, in which the name of the owner does not appear, made in the name of and signed by an alleged agent, whose authority consisted of a letter from the owner requesting the agent “to try and find a purchaser for the property,” and who, after signing the memorandum, telegraphed to the owner “have sold house, $6,150. Wire confirmation” and received a telegraphic reply from the owner stating “terms satisfactory,” does not constitute a valid written memorandum of the agreement of sale sufficient to support an action for' specific performance by the purchaser against the owner.</p> <p>Id.-—Defective Execution.—A telegram from the owner saying “terms satisfactory” in reply to a telegram received from the agent saying “have sold house, $6,150. Wire confirmation” does not constitute an execution by the owner of a contract made in the name of the agent for the sale of land in which the name of the owner does not appear.</p> <p>Id.—Bequisites of Agreement to 'Support Specific Performance.— An agreement for the sale of land must show the names of the buyer and seller, the price to be paid, and the time at which it is to be paid, and must describe the property so that' it can be identified, in order to support an action for specific performance.</p> <p>Id.—Part Performance of Oral Agreement—Knowledge—Acquiescense.—Possession of the property taken by the purchaser under an alleged contract of sale, which is not known to the owner, and is taken without the owner’s consent, express or implied, and was repudiated by the owner as soon as she had knowledge of it, does not constitute part performance of an oral agreement of sale sufficient to support a decree of specific performance.</p> <p>Id.—Findings—Sufficiency as to Form.—A finding “that all of the denials and allegations contained in the answer of the defendants to said third amended complaint are, and that each and every of them is, supported by the evidence and true,” although an unusual form of expression, is clear and is equivalent to a finding that each allegation of the third amended complaint is untrue, which, as a form of finding, has always been held sufficient.</p>

<p>Criminal Law—-Murder in First Degree—Killing in Process of Unnatural Gratification of Passions.—A verdict of murder in the first degree is supported by proof that defendant strangled decedent to death in connection with a violent attack upon her person in an unnatural gratification of his passions, although no attempt to commit rape was proved.</p> <p>Id.—Insanity as a Defense—Continuance fob the Purpose of Obtaining Evidence.—A showing by affidavits that defendants counsel had learned that he had been confined in a distant insane asylum, that they wished to have issued a commission to take testimony of this fact, and hoped to get the evidence of distant witnesses, which they had been assured would be available, to the effect that the defendant had been insane and other similar matters, in view of the circumstances indicating lack of diligence shown in this case, would not justify setting aside an order refusing a continuance on that ground, as an abuse of discretion.</p> <p>Id.—Substance of Evidence to be Shown.—An affidavit in support of a motion for a continuance for the purpose of obtaining testimony should state the substance of such testimony in order to inform the court of its materiality.</p> <p>Id.—Character of Evidence Material in Proof of Insanity.—The only material evidence of insanity in such a case is that tending to show that at the time the crime was committed, defendant was insane to such a degree that he was incapable of distinguishing between right and wrong respecting it.</p> <p>Id.—Duty to Determine Present Sanity When Doubt Exists in Mind of Court.—A motion to try the present sanity of defendant made on the day set for the trial of the case under section 1368 of the Penal Code, based on the affidavit of counsel that he had conversed with defendant for an hour on two occasions and believed him insane, and was informed that he had been confined in an asylum, was properly denied, since the doubt of sanity which necessitates such investigation is a doubt in the mind of the court, and the showing made by the affidavit is not sufficient as a matter of law to compel such a doubt.</p>

D. Loveland, Alex Gordon, Edwin 0. Edger-ton, and Prank R. Devlin, as members of and constituting the Railroad Commission of the State of California. The facts are stated in the opinion of the court.

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

<p>Municipal Corporations—Illegal Payments from Public Funds— Suit by Taxpayer to Compel Repayment.—A taxpayer can maintain an action against the mayor and members of the city council of an incorporated city to compel them to pay into the city treasury for the benefit of the taxpayers and property owners of the city the amount of expenditures illegally made by them from the funds of. the city.</p> <p>Id.—Demand.—In such an action, where it appears that a demand upon the officers to commence such a proceeding would be unavailing, it is unnecessary to make such a demand.</p> <p>Id.—Nonjoinder of Municipality as Defendant—Sustaining Demurrer Without Leave to Amend.—While it is the general rule that the municipality itself, upon the refusal of its officers to maintain the action, should be impleaded as a party defendant, when the prayer of the complaint asks that the recovery be paid into the city treasury, it is improper to sustain without leave to amend a general demurrer to the complaint upon the ground that the municipality was not made a party defendant to the action.</p> <p>Id.—Charter of the City of Santa Cruz—Vrooman Act—Street Work.—Under the terms of section 246 of the charter of Santa Cruz, the method by which the powers granted in section 14 of article II of the charter, shall be pursued, is that prescribed in the Vrooman Act (Stats. 1885, p. 147), and the provisions of section 16 of the charter are but a specific grant of power authorizing the council to do these things in legal and proper cases, and does not •overthrow the general provisions of the Vrooman Act prescribing the method by which they shall act in the exercise of such power.</p> <p>Id.—Vrooman Act—Resolution of Intention—When Necessary.— The resolution of intention prescribed in the Vrooman act is jurisdictional and necessary in any case where it is sought to bind in whole or in part private property for the payment for the work to be done, but such resolution of intention is not necessary if the ■work be oí a character which the city proposes to do and may legally do at its own proper expense.</p> <p>Id.—Recovery of Money Illegally Paid Out—Sufficiency of Complaint Against General Demurrer.—A count alleging that work exceeding in cost sixteen thousand dollars, was t'o a large extent il-' legally done, without resolution of intention, competitive bids at the letting of a contract, and that it was paid for out of funds of the city when it should have been by assessment on private property, accounting for the uncertainty of the allegations as to the circumstances surrounding each item by the fact that the records do not enable the pleader more specifically to describe the illegal character of the claims and demands audited, allowed, and paid for the work, is sufficient to withstand a general demurrer.</p> <p>Id.—-General Welfare Clause—Includes Power to Light Streets Under Police Power.—A general welfare clause in a charter containing no express provision as to lighting streets, empowering the authorities “to exercise, within constitutional and statutory limits, all municipal and police powers necessary to the complete and efficient administration of the municipal government, although such powers may not be herein expressly enumerated,” authorizes the officials of the city to provide for, and incur expense in, lighting its streets.</p> <p>Id.—Street Lighting—-Act of 1905 Controls Exercise of Power in Absence of Charter Provision.—The authority of the officers of a city to light the streets of the city under the provisions of the general welfare clause above-stated is controlled by the provisions of the street lighting act of 1905, (Stat's 1905. p. 564).</p> <p>Id.—Contracts With Officials—Municipal Corporation Act— Rental of Surveying Outfit—Illegal Payment.—A payment for the rental of a surveying outfit upon a contract made with an official of the city in violation of the provisions of section 811 of the Municipal Corporation Act, which applies to cities of the fifth class of which Santa Cruz is one, is an illegal payment.</p> <p>Id.—Legal Services—Payment to Member of Board of Education— Illegal Payment.—A payment of a sum of money to a law partnership for services to be rendered by them under a contract entered into at a time when a member of the firm was a member of the board of education of the city, is an illegal payment.</p> <p>Id.—Humane Officer—Power to Employ Under Police Power.— The employment by a city of a person called a humane officer for the purposes indicated by the title given to him, although such officer is not referred to in the charter, is within the police powers of the city, and a payment to him for services is not illegal.</p>

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

<p>JUDGMENTS-SET-OFF—ASSIGNEE FOB VALUE AND WITHOUT NOTICE.A plaintiff is entitled to have a judgment obtained by one of the defendants against himself, and assigned to the other defendant, set off against promissory notes made to plaintiff by the defendant obtaining the judgment, who is now insolvent, although the judgment was assigned for value and without notice of the existence of the promissory notes.</p> <p>Id.—Failure to Set off Notes Against Demand on Which Judgment is Based.—Failure of a defendant to set off promissory notes of plaintiff made to, and held by, himself, in an action upon a demand which did not arise out of the same transaction as the promissory notes, does not preclude such defendant from maintaining an action to have such promissory notes set off against the judgment obtained against him in the previous action.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Page, McCutchen, Knight & Olney, and McCutchen, OIney & Willard, for Appellant.</p>

<p>Fraudulent Transfer—Action to Set Aside Conveyance—Insolvency—Intent to Defraud—Valuable Consideration.—In an action by a judgment creditor to set aside a conveyance by the judgment debtor on the ground of fraud, a motion for a new trial based upon alleged newly discovered evidence tending to prove insolvency of the grantor was properly denied upon the ground that the finding of insolvency was not necessary to support the judgment which was supported by the findings that there was no intent to delay or defraud creditors and that the transfer was made for a valuable consideration.</p> <p>Id.—New Trial—Newly Discovered Evidence—Different Result Improbable.-—A motion for a new trial on the ground of newly discovered evidence is properly denied where in the opinion of the trial court it is not probable that the additional evidence would have produced a different result.</p>

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

<p>APPLICATION for a Writ of Habeas Corpus directed against D. A. White, Chief of Police of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Damages for. Death—Action Against Personal Representatives of Wrongdoer—Abatement upon Death Prior to Action Brought. An action for damages for the death of the husband of plaintiff given by section 377 of the Code of-Civil Procedure cannot be maintained against the personal representatives of the person causing such death when not commenced in the lifetime of the wrongdoer. Such action abated upon the death of the wrongdoer prior to action brought.</p> <p>Id.—Eights at Common Law—Eights Under Statutes of California —Code Provision.—At common law no action of damages for death existed and such right of action in California is founded solely upon section 377 of the Code of Civil Procedure.</p> <p>Id*—Survival of Action.—The common-law rule that such an action would not survive the death of the wrongdoer under the circumstances here shown obtains in California except as it may be modified by statute.</p> <p>Id.—Effect of Section 385 Code Civil Procedure on Survival.— Section 385 of the Code of "Civil Procedure refers only Jo actions instituted prior to the death of a party to them, and applies only where the cause of action survives, and does not purport to change any existing rule as to the survival of causes of action.</p> <p>Id.—Scope of Section 1582 Code Civil Procedure.—Section 1582 of the Code of Civil Procedure authorizing actions to be maintained by or against executors or administrators in all cases where the same might have been maintained by or against their respective testators or intestates, is limited by iis terms to actions for the recovery of property, or the possession thereof, or to quiet title thereto, or to determine any adverse claim thereon and all actions' founded upon contracts.</p> <p>Id.—Construction of Section 377 Code Civil Procedure—Modification of - Common Law—Abatement of Actions.—Section 377 of the Code of Civil Procedure modifies the common law only to the extent of giving a right of action for damages caused by the death of a person to his heirs or personal representatives solely for the benefit of his heirs and in no way affects the common-law rules as to abatement of personal actions by death.</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>Judgment—Reduction of—Acceptance of Order for—Appeal.—An order reducing the _ amount of a judgment, in pursuance of the acceptance by the plaintiff of a conditional order denying a new trial, is not an entry of a new judgment. It does not destroy an appeal from the judgment already entered, nor make it necessary to take a new appeal from the judgment as so reduced, after the order reducing it is entered.</p> <p>Id.—Motion for New Trial—Statement on-—Extension of Time to Propose—Power of Court—Legal Holiday.—An extension of time by stipulation of the .parties to propose a statement on motion for a new trial to a legal holiday, operates to extend the time to and including the next day; and an order of the court made on the latter day extending the time further for thirty days is within time, and. is effective to extend the time to the latter date.</p> <p>Id.—Extension of Time—Rule of Court.—A rule of the superior court providing, in substance, that where time has been extended by stipulation, the court cannot order a further extension beyond the period of thirty days, inclusive of the time given by the stipulation, does not deprive the court of power to grant an extension where there has been a previous extension by stipulation covering the period of thirty days. The superior court, by section 1054 of the Code of Civil Procedure, is given power to extend the time for proposing a statement for the period of thirty days, and it cannot by its own rule divest itself thereof; and in the absence of any showing to the contrary it will also be presumed on appeal, that the court disregarded its rule, for sufficient cause and to subserve the ends of justice, as it has power to do.</p> <p>Id.—Appeal—Record on—Pleadings.—Where a ease was tried upon a third amended complaint, the previous pleadings need not be included in the transcript on appeal, unless they are necessary to present the question of the statute of limitations or of a departure from the original cause of action.</p> <p>Id.—Defect Going to Merits—Defective Transcript.—A defect which goes only to the merits will not be considered on a preliminary objection that the court cannot consider the appeal at all because of a defective transcript.</p> <p>Id.—Building Contracts—Breach of—Remedies of Contractor.— In controversies with regard to the performance of building contracts, the remedies of the contractor vary according to the circumstances of the case. If the owner has unjustifiably broken the contract and thereby prevented the contractor from performing the same, the contractor who has been and is ready and willing to perform, may sue to recover the damages sustained from the breach by the owner, and the damages in such a ease would consist of the profits he would have made if'he had been permitted to complete the work according to the contract. This would not he the entire contract price, hut the difference between the unpaid part of the contract price and the reasonable cost of completing that part of the work which he was not allowed to perform. If at the time the owner interferes the work is substantially completed, so that the portion lacking would come within the maxim de minimis non curat lex, and the owner refuses to accept the same or to allow further performance, the contractor may treat the contract as performed, the refusal to accept will be considered as unjustifiable and the contractor may recover the entire balance unpaid on the contract price. If the owner’s conduct constituted a breach of the contract, the contractor would have the further remedy of treating the contract as rescinded and suing upon t'he quantum meruit for the value of the work performed.</p> <p>Id.—Pleading—Construction op Complaint.—In an action by the contractor, where there is no allegation in the complaint concerning the termination of the contract by the owner before completion, or the cost of performing the part of the work remaining uncompleted at the time the owner took possession, but the demand is for the entire contract price, the complaint does not present a case of the owner unjustifiably preventing the contractor from completely performing the contract; nor is the complaint sufficient as a suit upon the quantum meruit to recover the value of the work done and materials furnished, where there is no allegation concerning the reasonable value thereof. Such a complaint can only be considered as an action to recover the balance of the contract price upon the theory that the work contracted for had been substantially performed.</p> <p>Id.—Pleading—Extra Work.—In such a case where the complaint avers that the contractor did extra work at the request of the owner, the reasonable value of which was a certain amount, for which judgment is asked, and the contract provided that this might be done, this part of the complaint is to be regarded as a suit upon the contract for the cost of the additional work.</p> <p>Id.—Misjoinder op Causes—Joinder op Causes op Action on Contract and IN Tort.—Where the contractor further complained that because of delays ensuing by reason of the conduct of the owner and others doing work upon the building under him, he was hindered in the performance of the work, was required to move materials from place to place, and otherwise damaged in a certain sum; and also that the owner had taken possession of his tools and appliances to his further damage in a certain sum, which causes of action were commingled with the cause of action for the contract price and the extras, there is an improper joinder of causes of action in that there is a joinder of a cause of action upon the contract with the cause of action for conversion of plaintiff’s tools and appliances, which is a cause of action in tort.</p> <p>Id.—Certificate op Architect—Delinquency op Contractor—Instructions.—Where a building contract authorizes the architect, as arbiter, to determine and certify that the contractor has failed or refused to supply a sufficiency of workmen, or material, or to do the work with diligence, or that the work done was unsound, when such fact or facts are material, his certificate of such fact is conclusive upon the parties, and can be impeached only by showing fraud, or gross mistake amounting to fraud. An instruction that the jury is at liberty to disregard the certificate if they found merely that it was incorrect, is erroneous.</p> <p>Id.—Duty of -Court to Instruct Jury—When Error Not Cured.—• The court should, at least, have instructed the jury that the certificate was conclusive unless they found from the evidence that it was given fraudulently; and the error in the instruction given was not cured by a prior instruction that the architect and engineer had been made “the judges as to whether or not the plant was completed according to the contract (and that) in the absence of fraud their certificate to that effect is conclusive,” as this instruction is inconsistent with the other, and it is impossible to say which direction the jury followed, or, that they understood either instruction, especially where this instruction was upon a different subject.</p> <p>Id.—-Certificate of Architect—Reference to Letter Enumerating Defects and Lack of Performance.—The certificate of the architect and engineer was/not vitiated by reason of a reference therein to a prior letter from them to the contractor which contained a schedule of the items of defects and lack of performance in the work, the reference being solely for that purpose, and it being written and signed as a .demand upon the contractor that he immediately remove the defects and make the work conform to the contract, which demand had no relation to the certificate to which the letter was attached and the letter not being referred to for the purpose of incorporating therein a demand for the resumption of the work.</p> <p>Id.—Pleading—Joinder of Causes.-—-Where the contract provided that the owner might, at any time, require alterations in the contract without avoiding the same, but that he should, in that event, reimburse the contractor for all damages necessarily caused to him thereby, so far as the cause of action stated in the complaint to recover a certain sum as damages is based on the damages arising from changes made by the owner in the plans for the work, or for other breaches by the owner of the expressed or implied obligations imposed on him by the contract, there was no misjoinder of causes of action and such damages would be a cause of action arising upon a contract.</p> <p>Id.—Completion of Contract by Owner—Right of Recovery for— Instructions.—Where the contract provided that, in the event of the termination of the contract the owner wquld be entitled to expenses incurred by him in finishing the work, as a deduction from any balance due upon the contract price, and that this expense should be audited and certified by the architect and engineer, whose certificate thereto was to be conclusive upon the parties, the court should have instructed the jury that the defendant was entitled to the reasonable expense incurred in completing the contract, instead of limiting the damages recoverable by him for the expense of completing the work to the “reasonable value” of the work and materials, as the reasonable value of the work and materials required would not necessarily be the same as the reasonable expense of completion, and the actual reasonable expenditures would be the measure of the owner’s right.</p> <p>Id.—Evidence—Reasonable Expense of Completing Building—Certificate of Architect—Admissibility of.—The certificate of the architect and engineer as to the amount of the reasonable expenses of completing the building was admissible in evidence and it was error to exclude it. If the plaintiff desired to impeach it for fraud or mistake, he was at liberty to do so, but his desire to do so, or the previous introduction by him of evidence on the subject, would not be good ground for refusing to admit it in evidence, and the sufficiency of proof of fraud or mistake, if any were given, would be a question for the jury.</p> <p>Id.—Substantial Performance op Contract—Definition of.—The definition of “substantial performance” of the contract in such a case is difficult to give in general terms. It is usually a question to be determined in each case with reference to the existing facts and circumstances.</p> <p>Id.—Substantial Performance op Contract—Meaning of.—Substantial performance means that there has been no willful departure from the terms of the contract, and no omission of any of its essential parts, and that the contractor has in good faith performed all of its substantive terms. If an omission is so slight' that it cannot be regarded as an integral or substantive part of the original contract, and the other party can be compensated therefor by a recoupment for damages, the contractor does not lose his right of action. A substantial performance must be established, in order to entitle the party claiming the benefit of the contract to recover; but this does not mean a literal compliance as to details that are unimportant.</p> <p>Id.—Failure to Instruct as to Substantial Performance—Absence of Request.—In such a case it cannot be said to be error to ¡fail to give an instruction on the subject of substantial performance, in the absence of a request therefor, although it is doubtful if there was a substantial performance and such an instruction would be eminently proper.</p>

<p>Flooding of Land—Damage—Insufficiency of Evidence.—Where the complaint alleges two causes of action, one on account of a change in the course of a creek in one year, and the other, on account of a second change in a subsequent year, and the court found in favor of the defendant as to the first cause of action because the claim was barred by the statute of limitations, and the judgment was given solely for the injury caused by the flood complained of in the second cause of action, but the testimony upon which damages were awarded included some damage caused by the flood complained of in the first cause of action and did not sustain the finding that the damages for the flood of the subsequent year amounted to what the court found, it is impossible to determine on appeal the amount the judgment should be reduced, and the judgment should be reversed for that reason.</p> <p>Jd._Judgment—Effect of.—Where the' findings were against the plaintiff on the first count and the judgment contained nothing whatever With respect' to this count, but the conclusion of law was that plaintiff was entitled to recover of the defendant a certain amount as damages for the injury suffered in the year mentioned in the second count, and the judgment declared that “in consideration of said findings of fact and conclusions of law,” the plaintiff shall recover the amount named and costs, it purporting to be the final judgment of the action and disposing of all issues, it is in effect - an adjudication against the plaintiff and in favor of the defendant upon the first cause of action, the reason being that, although not so appearing on the face of the judgment, it is actually and necessarily included therein.</p> <p>Id.—Judgment fob Plaintiff—Implied Judgment fob Defendant—Appeal.—Where the notice of appeal states that the defendant appeals from the final judgment “in favor of the plaintiff in said action and against said defendant, and from the whole of said judgment,” the appeal is solely from the judgment rendered in favor of the plaintiff and against the defendant upon the second count of the complaint, and it is not an appeal from the implied judgment in favor of the defendant against the' plaintiff on the first count. A reversal of the judgment appealed from will, therefore, not constitute a reversal of the judgment in favor of the defendant and against the plaintiff on the first count, and that cause of action stands ■ adjudicated and no new trial can be had thereon. If plaintiff was dissatisfied with that part of the judgment it was incumbent upon him to appeal therefrom.</p>

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

<p>Account Stated—Contracts—Definition of.—An account stated- is a document, a writing, which exhibits the state of account between parties and the balance owing from one to the other, and when assented to, either expressly or impliedly, it becomes a new contract.</p> <p>, An action on it is not founded upon the original items but upon the balance agreed to by the parties, and the original items cannot be inquired into. And the general rule is that when the stated account is admitted, it can be avoided only by averments and proof of fraud, mistake, et'e.</p> <p>Id.—Mutual Demands—Acknowledgment of Debt.—It is not at all necessary that there should be mutual or cross accounts or demands between the parties to an account stated. .The acknowledgment of a debt, though it consists of but a single item, may form the basis of such a stated account.</p> <p>Id.—Pleading—Fraud, Duress or Mistake.—The original transactions between the parties to an account stated not being the subject of inquiry, except for such equitable considerations as fraud, duress, or mistake, if it be sought to avoid the legal effect of the account stated upon any of these grounds, they must be pleaded.</p> <p>Id.—Demands of Account Stated—Reasons Immaterial.—The writing constituting an account stated need not aver or at all contain the grounds and reasons for the conclusion and declaration expressed. It is a complete stated account if it contains a signed and written acknowledgment of a present, unqualified indebtedness or liability with a promise to pay a named sum.</p> <p>Id.—Compromise of Claim—Consideration.—The compromise of a claim or demand, even if of doubtful validity, is a good consideration for an account stated, and the defendant will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust or invalid.</p> <p>Id.—Construction of Contract—Account Stated.—An instrument reciting that at a certain time prior thereto the promisee invested a certain sum of money in a certain association and that at that time the promisor entered into a contract with him to repurchase the stock and thereafter took it over in exchange for certain other stock which became valueless, and that the promisor then agreed in consideration of the premises to repay the original purchase price when financially able, and further providing that, the promisor "hereby acknowledges himself indebted to” the promisee “in the sum of $3,000 in the manner above mentioned,” and that the agreement was reduced to writing "to the end that in the event he has not been able to meet the said obligation prior to the time of his death, that t'he said promisee shall then and at that time have a valid and subsisting claim against his estate for the payment of said obligation,” constitutes an account -stated.</p> <p>Id.—Consideration—Burden of Proof.—Since a written instrument is itself presumptive evidence of the consideration, the burden of showing a want of consideration to support it lies with the party seeking to avoid it, but notwithstanding this rule the true consideration may always be shown. And where the plaintiff in an action on such instrument, after the court had ruled that it did not constitute an account stated, offered evidence that at the time the instrument was executed by the defendant, plaintiff was making certain claims against him for fraud in connection with the transfer of the stock to ^ him, and that for the purpose of preventing plaintiff from commencing an action for fraud, the agreement in suit was agreed upon and reduced to writing, it was error for the court to exclude the evidence.</p> <p>Id.—Lack of Consideration—When cannot be Shown.—It is not open to the defendant to defeat the legal effect of such a contract by showing a lack of consideration in any other way other than by fraud, duress, mistake, or other equitable ground; in other words, he cannot show that the account stated was based upon a disputed claim, which claim subsequently proved to be invalid, or that the amount justly due was very much less than the amount named in the account stated.</p> <p>Id.—Mistake in Law—Avoidance or Contract.—A mistake in law entertained by one party not under circumstances amounting to a fraud on the other is no ground for the avoidance of a contract.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying a motion to vacate and set aside a judgment of dismissal of a contest of will. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>William M. Abbott, William M. Cannon, and Thomas C. Ridgway, for Appellant.</p> <p>James H. Blanchard, William T. Kendrick, and Will D. Gould, for Respondents.</p>

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

MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco denying a petition for letters of administration upon the estate of a deceased person. George A. Sturtevant, Judge. The facts are stated in the opinion of the court. Edgar D. Peixotto, Leon Samuels, and J. R. Pringle, for 'Appellants.

<p>Mining Law—Possessory Bights or Locator—Title Passes to Heirs .—Bight op Sale During Administration.-—The possessory right of a locator of a mining claim is property, and upon his death passes to his heirs by descent and not directly to- them as the designated donees or beneficiaries of the United States under the mining laws, and such right may be subjected to adminstration and sold as other property by the executor or administrator.</p> <p>Id.—Probate Sales—Subsequent Patent to Heirs—Title Inuring to Purchasers.—Where the possessory title by inheritance to a mining claim was in course of administration when the purchase price was paid for the legal title to the United States government by the estate of the locator, and the patent was thereafter issued to his heirs, their legal as well as their equitable title inured to the purchasers at pro-, bate sales of the claim' during the administration. The patent did not defeat those sales which were not void but of full effect.</p>

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

APPLICATION originally made in the District Court of Appeal for the First Appellate District for a writ of mandate to compel the Council of the City of Richmond and the officers of said City to call an election for submitting to the voters of said City for approval or rejection of resolutions of the council, against which referendum petitions had been filed. The facts are stated in the opinion of the court. W. T. Kearney, Phil J. Strubel, and C. S. Hannum, for Petitioner.

<p>Municipal Corporation—City of Richmond—Proposed Ordinance to Acquire City Hall—Applicability of Initiative—Legislative Act.-—A proposed ordinance of the city of Richmond having for its purpose .the approval and acceptance of an offer in writing to convey to it certain lands in the city and to erect thereon, under plans to be approved by the city, at a specified cost, to be paid by the one offering the lands, a building adequate for a city hall, on condition that, upon the completion of the building, the city should-occupy and use the same as its permanent city hall for not less than ten years, and further proposing to locate the city hall upon the premises and to declare that the city should, upon completion of the proposed building, occupy and use the same for a city hall for the ensuing ten years, calls for the exercise of legislative powers of the city to which the initiative proceedings are applicable.</p> <p>Id.—Extension op Offer—When Question not Moot.—In such a case where the original offer was extended, and the proposed ordinance and its' conditions, if adopted, will be effective to accept the same, the question has not become a moot question by reason of the fact that the original limitation of time has expired. Nor did the extension of time convert it into a new offer or in any way affect the validity of the proposed ordinance if it should be carried by the people.</p>

<p>Husband and Wife—-Community Property—Partnership Profits— Formation of Partnership Before Marriage.—Where a business has been carried on and capital invested therein by a man before his marriage, the entire profits therefrom, after marriage, are not necessarily separate property of the husband. The interest of the husband in the capital of the partnership, as it' was at the time of his marriage, is the husband’s separate property, but the question as to what part of the subsequent profits arises from the use of this capital and what part from the personal activity, ability, and capacity of the husband, is to be determined by the court from the circumstances appearing in the case, and whatever accrues from the latter source is community property, and the remaining profits must be classed as his separate estate.</p> <p>Id.—Profits from Gambling Partnership—Community Property.— Where a partnership was formed by a man prior to his marriage to carry on the business of conducting a saloon and gambling, but the bulk of profits was made after his marriage (almost the entire profits being derived from the gambling business), and it appears that it was the practice of the partners to deposit' the firm money in bank and when the decedent’s partner needed money with which to gamble he would take it from the bank and when the. games were concluded, would deposit the gains to the partnership account, under the facts there was no intent on the part' of the decedent’s partner to make a gift to Mm, and the contention that because the gambling business was unlawful and therefore the decedent had no legal right t'o the profits therefrom, his partner was under no legal obligation to turn any part over to him, and they must, therefore, be considered as a gift, and consequently as separate property, cannot be maintained. The agreement of decedent’s partner to pay half the profits to him, which he carried out, whether legally good or not, was supported by a sufficient consideration, that is, the decedent’s services in running the saloon, and under section 164 of the Civil Code the profits accruing during the decedent’s marriage was community property.</p>

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

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

<p>Municipal Corporations—Santa Monica—Amendments to Charter —Commission Form op Government—Date op Taking Effect.— The amendment's to the freeholders’ charter of the city of Santa Monica, ratified by the electors on December 1, 1914, and approved by the legislature in January, 1915, establishing the so-called commission form of government, in so far as they provided what officers the city should have and what their duties and compensation should be, did not go into effect until January 1, 1916. Until then, the old provisions of the charter on such subjects remained in force.</p> <p>Ib.—Postponement op Operative Effect op Amendments.—Although an amendment constitutes a part of a charter from the time of the approval by the legislature, it is not' necessarily in all respects an operative provision thereof at once. Its operative effect can be postponed to a subsequent time.</p>

<p>Will—Contest of Probate—Mental Incapacity—Sufficiency of Evidence.—In this contest of the probate of a will the verdict of the jury that the testator was of unsound mind is held supported by the evidence that he was primarily the victim of a monomania, evidenced by his intense, unwarranted, and unexplained hatred of his wife, which not only influenced and colored all Ms life, but was actively present and operative in the testamentary act; that in addition, his mental trouble progressed from the stage of monomania until it assumed the form of a general insaMty, aided by the decay of Ms physical and mental powers due to advancing years.</p> <p>Id.—Direct Evidence of Mental Capacity—Conclusiveness.—Direct and uneontradicted testimony that at the time of the execution of Ms will the testator was of sound and disposing mind, is not conclusive upon the question of his then mental condition.</p> <p>Id.—Disinherison of Testator’s Family—Evidence of Mental Condition.—The fact that a testator wills all or most of his property away from his wife and children with whom he has lived on apparently friendly terms may be considered in determining Ms mental condition.</p> <p>Id.-—Trial of Contest—Depositions—Failure to Bule on Evidence Prior to Beading Answers Before Jury.—Where such contest was tried before a jury, on the single issue of the testator’s mental unsoundness, and the evidence was sharply conflicting, it was prejudicial error, in receiving in evidence the depositions of witnesses that were taken without limitation either as to the questions asked or the answers given, to refuse t'o rule upon the admissibility of the testimony until the answers were actually read before the jury, if such answers, in many instances, were not only immaterial and irrelevant, but highly improper and injurious.</p> <p>Id.—Intimate Acquaintances—Opinion as to Mental Condition— Opinion Based on Hypothetical Questions.—Intimate acquaintances, by virtue of the existence of such intimacy, are permitted to testify and to give their opinion upon the question of t'he sanity or insanity of the deceased, and the weight of this opinion evidence in each instance depends upon the facts forming the basis of it. Upon other matters t'heir opinion evidence is of no legal value and is inadmissible and cannot be given in reply to merely hypothetical questions.</p> <p>Id.—Improper Cross-examinations—Questions Tending to Create Hostile Atmosphere Before Jury.—On such a contest, it was error to allow the contestant, either on the direct examination of his own witness or on the cross-examination" of the witnesses of the proponent, to question them with ceaseless reiteration concerning endless matters about which they had denied any knowledge, where it appears that the purpose of such method of examination was not to elicit any facts, but to make weight, to create an atmosphere before the jury.</p> <p>Id.—Hostility op Witness—'Causes of cannot be Inquired into.— While on the cross-examination of a witness it is competent to prove the fact of his enmity or unfriendliness to the party against whom he testifies, the cause of the witness’ feelings is not a proper subject of inquiry.</p> <p>Ib.—Instructions—Singling Out Isolated Facts.—On such contest, where the sole issue was the soundness or unsoundness of the mind of the testator, and its effect upon his testamentary act, it was erroneous for the court', in its instructions, to single out and bring into prominence before the jury certain isolated facts, thereby, in effect, intimating to the jury that special consideration should be given to those facts.</p> <p>Id.—Abandonment of Certain Grounds of Original Contest.—Where the contestant included within the grounds of the original contest charges in addition to that of the mental incapacity of the testator, but abandoned such additional grounds at the trial, it was error for the court to refuse to instruct the jury that such grounds of contest had been abandoned.</p> <p>Id.—Validity of Provisions of Will not Involved on Contest.— Where the will in question contained certain charitable bequests, concerning the validity of which the contestants were permitted to introduce evidence on t'he trial of the contest, it was error to refuse an instruction, requested by the proponent, to the effect that questions as to the legality or illegality of any of the clauses of the will were immaterial at that time, and that the jury were not to consider any question concerning the legality of any charitable bequest.</p> <p>Id.—Presumption op Sanity.—It was error for the court to refuse to instruct the jury that it is a presumption of law that' every person is of sound mind until the contrary is proved, and that it was also a presumption of law that the testator was of sound mind at the time he executed the instrument offered for probate.</p> <p>Id.—Eight op Testamentary Disposition—Failure to Provide por Children—Eights op Heirs in Property op Ancestor—Justness op Will.—On such contest the proponent was entitled to have given instructions touching the right of every person of legal age and mental capacity to dispose of his property by will, in the form approved in Estate of E'olbeer, 149 Cal. 227; that no presumption of insanity arose merely because the testator made no provision in his will for his children; that the heirs of the deceased had no vested rights in the property of their ancestor because of their relationship; that if the jury found that the testator was of sound mind, it could make no difference in their verdict, whether they believed the provisions of his will to be just or unjust, equitable, or inequitable, and that their verdict must be rendered upon the evidence, eliminating sympathy, pity, and prejudice, or a desire to do charity.</p> <p>Id.—Application op Section 4% op Article VI op Constitution.— Section 4% of article VI of the constitution cannot be applied to uphold the decree refusing probate of the will in question.</p>

<p>School Lands—Purchase Under Act of 1868—Default in Purchase —Statutory Procedure for Forfeiture not Exclusive.—The method of judicial procedure provided by the act of 1868 (Stats. 1867-68, sees. 65, 66), for terminating the right of a defaulting purchaser of school lands purchased under that act was not exclusive, and he may not complain of a different method of procedure subsequently established by the state for accomplishing that end which did not impose upon him more onerous conditions than the former.</p> <p>Id.—Act of 1889—Termination of Rights of Defaulting Purchaser. The procedure established by the act of 1889 (Stats. 1889, p. 429) • for terminating the rights of such defaulting purchaser did not impose upon him more onerous conditions than those imposed by the act of 1868.</p> <p>Id.—Nature of Purchaser’s Interest in Land Purchased—Payment of Interest—Rescission of Contract by State.—A person who entered into an agreement with the state for the purchase of school land, under the act of 1868, obtained nothing but the right to acquire a title by compliance with the terms of his agreement. One of the requisites was the payment of interest in advance, and when he violated that stipulation in the contract he was in default and the state had the same right that an individual would have possessed to rescind the agreement. The right to rescind and a method' of asserting the right were both preserved by the act of 1868, but the method was not exclusive nor was it the sole measure of the power.</p> <p>Id.—Constitutionality of Act of 1889—Impairing Obligation of Contract—Due Process of Law.—The act of 1889, providing that whenever an applicant to purchase school lands shall have failed for five years to pay to the state the arrears of principal or of interest due for said land and the state shall have issued a certificate to another purchaser prior to the passage of said act, unless the holder of the prior certificate shall pay the entire residue of the interest remaining unpaid for such purchase within six months from and after the passage of the act, said holder shall be deemed to have lost all title to the land described in said certificate and to have surrendered all right' to complete the purchase of said land, and all moneys paid by said holder shall be deemed and taken as forfeited to the state, is not unconstitutional as impairing the obligation of the contract between the state and a defaulting purchaser of such land under the statute of 1868, nor does it' take the property of such purchaser without due process of law in providing for a rescisión of the contract without a restoration of the money previously paid, either as the purchase price or as interest.</p> <p>Ib.—Uniformity of Operation—Proper Classification.—Such act of 1889 is not unconstitutional for want of uniformity of operation, by reason of the fact that it operates alone upon those purchasers in default whose lands, or the lands claimed by them, had been subsequently sold. Such a classification is just and was within the power of the legislature to adopt.</p> <p>Id.—Statute of Limitations—Laches of Defaulting Purchaser.— A purchaser of school lands under the act of 1868, who had made default in the payment of interest to the state for thirty-eight consecutive years, during which period the state had sold the land to another person and had attempted foreclosure proceedings under the act of 1868, and in 1889 had constructively notified all persons interested of the intention to disregard any asserted right's to the land arising under the prior purchase unless the arrears should be paid, is barred by the statute of limitations and by laches from asserting any claim against the state to the land.</p> <p>Id.—Mandamus to Compel Issuance of Patent.—Under such circumstances, the defense of the statute of limitations and of laches may be interposed in a proceeding in mandamus by the prior purchaser to compel the register of the state land office to issue a patent to . the land.</p>

<p>Adverse Possession—Prescription—Construction op Code Sections. Section 321 et seq. of the Code of Civil Procedure, providing for the acquisition of title to land by adverse possession, and sections 1006 and 1007 of the Civil Code, providing for the acquisition of title by prescription, are correlated and to be construed together. They deal with but' one kind of title, which, indifferently, may be called title by prescription or title by adverse possession.</p> <p>Id.—Ejectment—Want op Continuity op Adverse Possession.—The evidence in this action of ejectment, in which the defendant relied on a prescriptive title, is held to show a lack of continuity of adverse possession essential to establish such title.</p>

<p>APPLICATION for a Writ of Review directed to the Industrial Accident Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sale—Breach of Agreement to Purchase—Allegation of Damages —Loss of Profits.—In an action to recover damages for the breach of an agreement to purchase twenty-one automobiles at a fixed price, an allegation of damages “that if the defendant had purchased the cars as agreed the plaintiff’s profit on each car would have been one hundred dollars, and that by reason of the defendant’s failure to purchase and pay for the cars, the plaintiff had suffered damages in the sum of $2100,” is good as against a general demurrer, whether the case falls within the rule as to the measure of damages fixed by section 3300 of the Civil Code, or that fixed by section 3311.</p> <p>Id.—Property not in Possession of Seller—Ability of Seller to Obtain.—The fact that the plaintiff did not have the cars on hand is immaterial to his right of recovery, where it appears that he could have procured them in a reasonable time if defendant had ordered them, especially where it also appears that the parties intended and expected to follow that method of procedure in carrying out the agreement.</p> <p>Id.—Evidence—Amount of Damage.—The evidence is held to show that if the defendant had performed its agreement, plaintiff’s profits would have exceeded one hundred dollars per car.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Stanley Moore, George K. Ford, and Wilder Wight, for Appellant.</p>

<p>Quieting Title—Executor, mat Maintain—Property Need not be Necessary for Administration.—Under section 1582 of the Code of Civil Procedure, an executor may maintain an action to quiet title to land against the adverse claims of one asserting title under a purported deed from the testator, without showing that the property is needed for purposes of administration.</p> <p>Id.—Grantee Having Interest as Devisee—Conflicting Claims of Devisees to Distributive Shares.—The fact that the defendant in such action is a daughter of the testator, and that if the deed under which she claims is set aside she will have to share the property with other devisees, does not prevent the executor from maintaining such action. That circumstance does not bring the case within the principle of the decisions holding that an executor has in general no interest in the conflicting claims of heirs and devisees as to their distributive rights in the estate.</p> <p>Id.—Delivery op Deed—Evidence—Inconsistent Acts and Declarations op Grantor.—In such action, which involved the question of the sufficiency of the delivery of the deed under which the defendant claimed, evidence is admissible of the acts and declarations of the grantor, after the date of the deed, showing conduct and statements inconsistent with a prior conveyance of the fee by him.</p> <p>Id.—Delivery to Third Person—Intent op Grantor—Question op Fact.—While a deed may be handed to a third party to be delivered to the grantee named in it' at the death of the grantor, such delivery will be held to pass title only if the intention of the grantor is to make such delivery absolute and place it beyond his power thereafter to rex-oke or control the deed. The intention of the grantor in such cases is a question of fact to be determined by the trial court from a consideration of all the evidence in a given case bearing upon the question.</p> <p>Id.—Finding Against Delivery—Evidence.—The evidence is held sufficient t'o sustain the finding that the deed in question had not been delivered, and to warrant the inference that the intent of the grantor necessary to a valid delivery was lacking.</p>

<p>Injunction—Temporary Injunction Granted After Nomos—Superior Court Cannot íStay Operation.—In view of the provisions of the law of this state, constitutional and statutory, a superior court, which, by order duly and regularly made upon notice and hearing, has granted a temporary or provisional. injunction absolutely restraining a defendant from the commission of certain acts during the pendency of the action, without reserving any right of revocation or modification, has no power subsequently to make an order staying the operation of the injunction until the final determination of t'he cause, or until a contemplated appeal from such order has been heard and determined.</p> <p>Id.—Preliminary Injunction can Only be Reviewed on Appeal.— The only review allowed of such a preliminary injunction is a review on appeal, except in the single case of an injunction to prevent the diversion, pending the litigation, of water used or to be used for irrigation or domestic purposes.</p> <p>Id.—Statutory Method of Review must be Followed.—The superior court' may not revoke, modify or otherwise disturb its judgments and orders regularly made in pursuance of plain statutory provisions, where the statute prescribes the method by which such judgments and orders may he reviewed, except as authorized by statute.</p> <p>Id.—Constitutional Law—Equitable Jurisdiction of Superior Court.—The provision of the state constitution of 1879 conferring on the superior courts “original jurisdiction in all cases in equity/’ does not prevent the legislature from enacting the scheme provided for by sections 525 to 533 of the Code of Civil Procedure, regulating the exercise by the superior courts of its equitable jurisdiction in the matter of provisional injunctions.</p> <p>Id.—Construction of Constitution—Similar Provisions in Prior Constitutions.—Such provision of t'he constitution of 1879, being substantially similar to the provision of the constitution of 1849 and identical with the amendment of 1862, should be given the same construction as that placed upon the prior constitutional provisions by the supreme court.</p>

<p>Workmen’s Compensation Act—Partial Permanent Disability op Less than Ten Per Cent.—The Workmen’s Compensation, Insurance and Safety Act, sections 12 and 15, liberally construed as required by section 86 (a), authorizes an allowance for a partial permanent disability to an employee where the proportion of disability to total disability is less than ten per cent.</p> <p>Id.—Power op Industrial Accident Commission—Statutory Limitations.—The power of the Industrial Accident Commission to award compensation is derived from the statute and exists only in the cases and to the extent defined therein.</p> <p>Id.—Allowance for Surgical Treatment—Liability op Insurance Carrier—Neglect to Provide Treatment.—An injured employee does not lose his right to hold the insurance carrier liable, under section 15 (a) of the act, for. surgical services, where it appears that, being dissatisfied With the advice given him by the surgeon first selected by the insurance company, he was directed by it to go to another surgeon, and finding him out of town, then went to his family physician for treatment. Such fact's warrant the conclusion that the employer and the insurance carrier neglected seasonably to provide the surgical treatment reasonably required.</p>

<p>Negligence — Personal Injuries — Railroad Crossing — Duty of Traveler.—It is the duty of a traveler on a highway approaching a railroad . crossing to use ordinary care in selecting a time and place to look and listen for coming trains; he should stop for the purpose of making such observations when necessary, and it is his duty to use all his faculties, and it is not enough if he merely ' listens believing that the people in charge of any approaching ■ engine will ring a bell or sound a whistle.</p> <p>Id.—Collision Between Train and Automobile—Contributory Negligence.—In this action to recover for injuries resulting from a collision between the plaintiff’s automobile and a rapidly moving train, the evidence is held to show a want of reasonable care in approaching the railroad crossing, which amounted as matter of iaw to contributory negligence barring a recovery.</p> <p>Id.—Railway Track—Sign of Danger—Care Required in Crossing. A person approaching a railway track, which is itself a warning of danger, must take advantage of every reasonable opportunity to look and listen, and the fact that the crossing is where ordinarily the engineer gives appropriate signals of the approach of the trains, does not justify the traveler in depending upon such custom or .even upon a duty, enjoined by law, to give such signals.</p>

APPLICATION originally made to the Supreme Court for a Writ of Review directed to the Industrial Accident Commission of the State of California. The facts are stated in the opinion of the court.

<p>APPLICATION, originally made to the Supreme Court of the State of California for Writ of Review directed to the Industrial Accident Commission.</p> <p>The facts áre stated in the opinion of the court.</p> <p>George H. Moore, H. C. Huntington, and L. A. Redman, for Petitioners.</p>

APPLICATION originally made to the Supreme Court of the State of California for a writ of review against the Industrial Accident Commission. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.</p> <p>The facts are similar to those stated in the opinion in Otis v. City and County of San Francisco, ante, p. 98.</p>

<p>Deed—Quieting Title by Executor—Want or Delivery.—Judgment affirmed on the authority of Bine v. Carey, ante, p. 748.</p>