Volume 175 — California Reports

<p>Negligence—Collision Between Automobile and Stkeet-car—Contributory Negligence op Deceased—Evidence.—In an action for damages for death from a collision between an automobile which the deceased was driving and an electric street-car, the contributory negligence of the deceased was such as to bar recovery, where it is shown that he was thirty-six years of age, mentally and physically sound, in possession of his usual faculties, familiar with the conditions existing at the crossing where the accident happened, and that he saw the car approaching while he was forty feet from the track and could have turned in two directions or stopped and avoided danger, but instead attempted to cross the track ahead of the car.</p> <p>Id.—Driving op Automobile—Lack op Ordinary Skill—Negligence.— If a person does not possess ordinary skill in driving an automobile, it is lack of ordinary care to undertake to drive it in the vicinity of a dangerous street railroad crossing, and where injury results, recovery is barred by his negligence.</p> <p>Id.—Close Proximity op Passing Cars—Negligence not Excused.— In such an action it cannot he argued that deceased was excused in driving his automobile across the track because he was surprised by the close proximity of the special car with which he collided to another ear which had just passed, in view of t'he fact that he saw the special car when he was forty feet away from the track, and with due care could have avoided the injury.</p> <p>Id.—Street Bailway Crossings—Duty op Automobile Drivers—■ Bight op Way.—It is the duty of an automobile driver on approach-' ing a street railway crossing to give way to a street-ear about to pass at the same time, if necessary in order to avoid a collision, and a street railway motorman is not required to presume that such a driver will fail in his duty in such respect.</p> <p>Ld.—Applicability op Last Clear Chance Doctrine.—The last dear chance doctrine is applicable where the injured party by his own negligence has placed himself in a position of danger from which he cannot extricate himself, or of which he is obviously unconscious, and the defendant, seeing or knowing his peril, or seeing or knowing facts from which a reasonable man would believe him to be in peril, and being able by the use of ordinary care to avoid injuring the plaintiff in his perilous position, fails to use such care and thereby causes injury.</p>

<p>The facts are stated in the opinion of the court.</p> <p>E. W. Squier, District Attorney, and Fred H. Schaner, Deputy District Attorney, for Plaintiff and Appellant.</p>

<p>Dismissal of Action—-Want of Prosecution.—A defendant who has never filed an answer, and against whom a default has been entered for not answering, cannot have the action dismissed, under section 583 of the Code of Civil Procedure, on the ground that the plaintiff had failed for more than two years after answer filed to bring the action to trial.</p> <p>Id.—Order Vacating Judgment—Jurisdiction—Dismissal of Action. Pending appeal from a judgment, the superior court is without jurisdiction to vacate the judgment by consent of parties, and the making of such an order has not the effect of again setting in motion the time provided by section 583 of the Code of Civil Procedure, relating to the dismissal of actions, for bringing the action to trial.</p> <p>Id.—Effect of Appeal.—An appeal taken from a judgment has the effect of removing the case from the jurisdiction of the superioi court, so that it is no longer pending therein, for the purpose of amending the judgment or vacating it for errors apparent on the face of the record.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. L. Clayberg, Clark Clement, and Clayberg & Whitmore, for Appellants.</p>

<p>Deed—Delivery—Manual Tradition—Intent to Pass Title.—The delivery of a deed is not effected by a mere manual tradition of the instrument, unless the act be accompanied with the intent that the deed shall become operative as such, that is, that it shall presently pass title, without the reservation of any right of revocation or recall.</p> <p>Id.—Intent Question of Pact.—Whether or not the requisite intent existed is a question of fact for the trial court or jury.</p> <p>' Id.—Avoiding Administration on Estate of Grantor.—The mere fact that the grantor at the time of the manual tradition of deeds conveying lands to her children, stated that her purpose was to avoid the necessity of administration, is not necessarily inconsistent with an intent to presently and irrevocably pass title.</p> <p>Appeal from Judgment—Affidavits on New Trial.—Affidavits presented in connection with a motion for a new trial cannot be considered on an appeal from the judgment.</p> <p>Id.—New Trial—Newly Discovered Evidence—Affidavits.—On an appeal from an order denying a new trial, affidavits setting forth newly discovered evidence are without weight, in the absence of a showing that the evidence could not, with reasonable diligence, have been produced at the trial.</p>

<p>Insurance—Unlawful Killing of Insured by Beneficiary.—Where one insures his own life for the benefit of another person, and the beneficiary murders or unlawfully kills the person insured, public policy will not allow such beneficiary to recover upon the policy.</p> <p>Id.—Resulting Trust in Favor of Estate of Insured—Pleading in Action to Enforce—Unlawfulness of Killing Must be Averred. Whether in such a case, the terms and conditions of the policy having been fully performed by the insured, the law will not permit the policy to lapse in favor of the insurer, but will raise a resulting trust in favor of the estate of the insured and allow a recovery upon the policy by his personal representative, is not decided; but a complaint based upon such theory is insufficient to raise the question, in the absence of allegations of specific facts showing that the killing of the insured by the beneficiary was felonious within the definitions of the Penal Code.</p> <p>Id.—Pleading Commission of Felony.—If the fact that another person has committed a felony is essential to a cause of action or defense, the person asserting such cause of action or defense must, in order t'o maintain it, specifically aver every fact which it would be necessary to prove against such person to establish the crime and his guilt thereof in a criminal prosecution. An averment of the mere conclusion that such person did commit' the offense, or that he was guilty thereof, is insufficient.</p>

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

<p>APPEAL from an order of the Superior Court of Tulare County denying a motion to satisfy a judgment and to recall execution. W. B. Wallace, 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>The facts are stated in the opinion of the court.</p>

<p>Workmen’s Compensation Act—Injury prom Accidental Discharge op Gun Carried by Employee for Pleasure.—An employee who, in the course of his employment of driving a wagon to the place of work, was injured by the accidental discharge of a shotgun being carried in the wagon by a coemployee for Ms own pleasure, is not entitled to compensation for the injury under the Workmen’s Compensation Act, notwithstanding the employer knew the coemployee was taking the gun, as such accident bore no relation whatsoever to the nature of the employment.</p> <p>Id.—Accidents Arising Out op Employment.—The accidents arising out of the employment of the person injured are those in which it is possible to trace the injury to the nature of the employee’s work, or to the risks to which the employer’s business exposes the employee. The accident must be one resulting from a risk reasonably incident to the employment.</p>

<p>Criminal Law—Manslaughter—Grimes Act op 1850.—Section 23 of the Crimes and Punishment Act of 1850 (Stats. 1850, p. 229), defining the circumstances that would reduce an unlawful killing from murder to manslaughter, ceased to be the law in this state by failure to re-enact it in the Penal Code.</p> <p>Id.—Instructions—Killing in Heat op Passion—Question por Jury.—In the present condition of our law it is left to the jurors to say whether or not the facts and circumstances in evidence are sufficient to lead them to believe that the defendant did, or to create a reasonable doubt in their minds as to whether or not he did, commit his offense under a heat of passion; and an instruction which defines the nature of the passion itself and limits the exciting cause to a serious injury, or attempted injury, to the person of the defendant, is erroneous.</p> <p>Id.—Evidence Tending to Show Manslaughter.—The evidence in this case is held to entitle the defendant to a correct instruction on the law reducing an unlawful killing to manslaughter.</p>

<p>Appeal—Order Refusing to Vacate Settlement of Administrator’s Account.—An order denying a motion, made under seetion 473 of-the Code of Civil Procedure, to vacate an order settling the accounts of an administrator of the estate of a deceased person, is not appeal-able.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank Karr, R. C. Gortner, and A. W. Ashburn, Jr., for Appellant.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Edwin A. Meserve, Shirley E. Meserve, and Paul H. McPherrin, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Earle & McLaughlin, and Williams, Goudge & Chandler, for Appellant.</p>

<p>Public Utility—Fixing Bates by Railroad Commission—Review by Courts—Invasion of Constitutional Rights.—The only ground upon which the courts may interfere with the exercise of t'he function of rate-fixing by the Railroad Commission of the state of California is that the action in question impairs constitutional rights. The rates will not be' set aside except upon a clear showing that such rights have been invaded.</p> <p>Id.—Return of Six and One-halt Per Cent not Confiscatory—Attempted Allowance of Eight Per Cent—-A return of six and one-half per cent net upon the value of property devoted to public use by a corporation engaged in the business of supplying electric energy cannot be held confiscatory by the courts, as matter of law, notwithstanding the Railroad Commission, in a proceeding to fix the rates of the company, undertook to allow a return of eight per cent upon the value placed by the commission on the company’s property used and useful in the business.</p> <p>Id.—Hydro-electric Company—Water Rights—Valuation of.—The rights of such company to divert the water of a stream to generate power by means of hydro-electric plants are property, and the utility is entitled .to have their value considered in the fixing of its rates.</p> <p>Id.—Burden on Utility to Show Value—Cost of Acquisition.—The burden is on the utility to show the value claimed by it of such rights, and in the present proceeding, the allowance made by the commission for such value, based upon the cost incurred in the acquisition of the rights, is sufficient under the evidence.</p> <p>Id.—Going Concern Value — Deficits Incurred in Development Period.—In determining the value of the property of a public utility for rate-fixing purposes, the commission is justified in excluding the item of development cost as an element of going concern value, where . the evidence shows that since the development period the utility’s earnings over and above the eight per cent standard have been sufficient to balance all of the deficits of the development period, with interest thereon for the entire period.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. M. Barstow, Milton K. Young, Davis, Kemp & Post, Joseph Scott, A. G. Ritter, and Taylor & Forgy, for Appellants.</p>

<p>'Workmen’s Compensation Act—Parent and Child—Minor Working for Father not an Employee.—An unemaneipated minor child, of the age of nineteen years, who lived with his father on the latt'er’s ranch and performed services thereon as directed hy the father, without any agreement between them for compensation, is not' an employee of the father within the meaning of section 14 of the Workmen’s Compensation Act.</p> <p>Id.—Emancipation of Minor—Payment of Small Sums to Minor.— The emancipation of the son is not established by the fact that the father from time to time gave the son small sums of money, notwithstanding they each testify that these sums were on account of payment of wages.</p>

The facts are stated in the opinion of the court. Grant & Zimdars, William H. Bryan, and Geo. W. Towle, for Appellants and Respondents Louis M. MacDermot et al. Charles W. Slack, for Appellants and Respondents Mary E. Hayes, as Executrix, etc., et al. Morrison, Dunne & Brobeck, for Appellant and Respondent Standard Portland Cement Company. W. H. Smith, Jr., for Appellant and Respondent L. F. Young.

<p>Criminal Law—Appeal—Failure to Point Out Error.—The appellate court may decline to review alleged error in the admission or rejection of evidence in a criminal case, where the appellant’s brief fails to point out either the error or the injury of the rulings.</p> <p>Id.—Evidence of Identification—Experiment—Similarity of Conditions.—Where the prosecution had offered testimony identifying the defendant as the perpetrator of the crime, and the defense endeavors to show, as the result of experiment, the impossibility of the identification, it is not essential to the admission of evidence to that end that the physical conditions obtaining at the time of the experiment should coincide to the minutest degree with those existing at the time of the .offense.</p> <p>Id.—Murder—Accidental Killing During Perpetration of Burglary —Instruction.-—In a prosecution for murder, in which the evidence showed that the killing took place during an attempt of the defendant to commit burglary, it was proper to instruct the jury that if the death of a person results from the act of another while such other was engaged in perpetrating or attempting to perpetrate burglary, the fact that the killing was accidental is immaterial.</p> <p>Id.—Confession—Questioning by Police Officers.—The fact that a confession was elicited by the questions of police officers does not authorize an instruction that the method resorted to “presents an important item for consideration in determining whether or not the confession was of a free and voluntary character.” Such an instruction would be upon matters of fact.</p> <p>Id.—Intent—Means Used in Killing.—It was proper to instruct the jury that “in determining the intention of the defendant at the time of the transaction complained of, it is important to consider the means used to accomplish the killing. The intent or intention is manifested by the circumstances connected with the offense and the sound mind and discretion of the accused.”</p>

<p>Surety — Building Contract — Material Alterations. — Alterations and omissions in a contract for the erection of a building, aggregating in value upward of $575, are material, so far as affects the liability of the surety on the bond of the contractor.</p> <p>Id. — Alterations Without Consent of Surety — Exoneration of Surety.—Under sections 2819 and 2840 of the Civil Code, a surety of a contractor for the erection of a building is exonerated by any material alteration in the terms of the building contract, made without his consent, and it is immaterial whether the alteration has or has not been to the injury of the surety.</p> <p>Id.—Bulb of Exoneration Applicable to All Sureties or Guarantors.—The rule declared by those sections, exonerating a guarantor or surety, if, without his consent, the original obligation of the principal is altered in any respect, is applicable alike to compensated or- uncompensated sureties, whether individual or corporate, including those who make a business of entering into contracts of suretyship for compensation.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge. The facts are stated in- the opinion of the court.

<p>Nonsuit—Consideration op Evidence.—In passing upon a motion for a nonsuit, every favorable inference fairly dedueible and every favorable presumption fairly arising from the evidence produced must be considered as facts proved in favor of the plaintiff.</p> <p>Attorney in Fact—Employment op Broker to Sell Land—Ratification of Farol Agreement.—An attorney in fact under a general power of attorney has authority to contract to pay a broker a commission for selling the land of his principal, and to cure the defect of a parol agreement with the broker by s subsequent ratification in writing.</p> <p>Attorney at Law — Dealing "With Client. — An attorney at law is under no actual incapacity to- deal with or purchase from his client. All that is required where the relation of confidence exists and where the questioned transaction' has a bearing upon that relationship is a clear showing that there has been no abuse of confidence and no advantage taken.</p>

<p>Warranty of Fitness op Manufactured Pump—Written Contract— Capacity to Deliver Water from Well—Sanding Up of Well.— A manufacturer's warranty of the fitness of a pump, contained in a written contract for its manufacture and sale, that it would have a capacity to deliver a certain quantity of water per minute from a well of given dimensions to be sunk at a specified location, contemplates the working of the pump in a normal well of the designated size and depth; and the fact that the pump would not deliver such quantity of water from a well filled and filling with loose sand does not establish a breach of the warranty.</p> <p>Id.—Parol Evidence to Broaden Written Warranty.—In an action to recover for a breach of such warranty, the terms of the written agreement may not be extended by parol evidence of the understanding of the parties.</p>

<p>APPLICATION for a Writ of Mandate to compel the certification by a judge of the Superior Court of Los Angeles County of the stenographic reporter’s transcript for use in support of an appeal from a judgment. John M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Receipt of Consideration by Mortgagors—Evidence.— In this action to foreclose a mortgage securing a promissory note, the evidence is held sufficient to show that the defendants actually received the consideration for which the note was given.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, from an order refusing a new trial, and from an order taxing costs. N. A. Hawkins and Charles Wellborn, Judges.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Fraudulent Bepresentations—Sale op CItrus Orchard—Adequate Water Supply—Absence op Frost—Bescission.—Fraudulent representations of a vendor to a contract for the sale of land planted to young citrus trees, to the effect that a company furnishing water to the land for irrigation had an ample supply, that the water system used for distribution was in such perfect condition that for several years the cost of water to the users would be only the cost of production, that the land was located in a district that was absolutely frostless, and that damage by frost had never been known in the neighborhood, warrant a rescission of the contract by the vendee, a woman of little business experience, who knew nothing of the subjects of the representations, if she relied on the statements believing them to be true and because thereof was induced to enter into the contract.</p> <p>Id.—Expressions op Mere Opinion.—Matters which might otherwise be only expressions of opinion, when stated as accomplished facts by one of the parties to a contract and accepted and relied upon by the other as such, may, and often do, become the basis of actions for fraudulent representations.</p> <p>Id.—Opportunity for Investigation by Vendee.—In the absence of circumstances causing the vendee to question the truth of such representations of the vendor, the mere fact that she had opportunity for inquiry and investigation which, if made, would have disclosed the falsity of the representations, does not preclude her from the right of rescission.</p> <p>Id.—Laches of Vendee.—In an action by the vendee for a rescission, the defense of laches, if not raised in the trial court, cannot be urged for the first time on appeal, and is deemed waived if not pleaded.</p>

<p>Building ■Contract — Employment op Superintendent — Percentage on Cost—Maximum Contract Price.—A contract employing a superintendent for the construction of a building, and agreeing to pay him a percentage upon the cost provided the structure was completed for an amount not exceeding a stated sum, and further providing that should the superintendent fail to keep within the maximum cost, “then no charge shall be made for such superintendence for such excess,” should not be construed as releasing the owner from the obligation to pay the percentage charge on the maximum cost fixed by the contract, in the event the cost exceeded that amount, but that as to such excess only no charge should be exacted by the superintendent.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Charles Wellborn, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Earl Rogers, W. H. Dehm, and M. M. Cohen, for Appellant.</p> <p>Kemp, Mitchell & Silberberg, and Enyeart & Holton, for Respondents.</p>

APPEALS from a decree of the Superior Court of Sonoma County distributing the estate of a deceased person. Thomas C. Denny, Judge. The facts are stated in the opinion of the court.

<p>Estate of Deceased Person—Appeal—Agreement for Distribution —Accepting Benefits of Decree.—The plaintiff in an action to set aside an agreement between the beneficiaries under a will, providing for a distribution which differed from, that made by the will, cannot maintain an appeal from an adverse judgment if he accepts and takes possession of property distributed to him in accordance with the agreement, which under the terms of the will would have gone to others of the beneficiaries.</p>

<p>Judgment Quieting Title — McEnerney Act—Fraud — Assertion or Title in Fee by Owner or Leasehold—Evidence.—In this action to set asicle a judgment obtained by the defendant in a proceeding under the so-called McEnerney Act, quieting his title to a lot in the city of San Francisco, on the ground that the judgment had been procured by the fraud of the defendant in falsely stating in his affidavit and complaint that he was the owner in fee of the " property, whereas he was only the owner of the leasehold interest conveyed to the city by the act of 1851 (Stats. 1851, p. 307), the state title to the reversion being owned by the plaintiff, it is held that the evidence fails to show that the defendant knew that the state title was outstanding, or intentionally concealed the fact in order to mislead the court into making a decree declaring him to be the owner of the land.</p> <p>Id.-—Constructive Notice—Knowledge or Agent Derived in Prior Transaction.—Clear and satisfactory proof that knowledge derived by an agent in a former transaction was present in his mind and memory at the time of a second transaction is necessary in order to bind the principal in such second transaction by constructive notice of the prior information of the agent.</p>

<p>APPEAL from an order of the Superior Court of San Diego County granting letters of administration upon the estate of an intestate. W. R. Guy, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estate of Deceased Person—Remainderman—Right to Letters of Administration.—A devisee of a remainder interest in property of a testator has a vested interest in his estate, and is entitled to letters of administration with the will annexed, unless some other person having a better right applies for letters.</p> <p>Id.—Special Administration—Distribution Cannot be had During —Jurisdiction.—The superior court in the exercise of its probate jurisdiction has no power to make distribution of an estate at a time when the general administration is suspended and the estate is in charge of a special administrator.</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 Prohibition directed against the Mayor and the Clerk of the City of Oakland.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Municipal Corporations—Limitations on Incurring Indebtedness— Payment from Revenue of Subsequent Year—Judgment Agaínst City.—Section 18 of article XI of the state Constitution, providing that “no . . . city . . . shall incur any indebtedness or liability in any manner or for any purpose exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose. . . . Any indebtedness or liability incurred contrary to this provision, . . . shall be void,” precludes a municipality from paying a general money judgment against the city, based upon a valid claim for work done for it in a previous fiscal year, out of moneys collected from taxes levied for a subsequent year for the express purpose of paying such judgment. This follows, although at the time the work was done there was sufficient money in the city treasury of the revenue of that fiscal year to pay the claim, but at the time the demand therefor was presented the revenues provided for that fiscal year had been exhausted.</p> <p>Id.—Indebtedness cannot be Paid Out of Revenue of Future Year. That constitutional provision means, not only that an indebtedness incurred contrary to its express provisions is absolutely void, but that each year’s income and revenue must pay each year’s indebtedness and liability, and that no indebtedness or liability incurred in any one year shall be paid out of the income and revenue of any future year.</p> <p>Id.—Reduction of Claim to Judgment Does not Authorize Payment.—The fact that the claimant has obtained a judgment against the city for the amount of his claim in an action brought for that purpose does not avoid the application of such constitutional provision.</p> <p>Id.—Act op March 23, 1901, Does not Authorize Payment prom Future Eevenue.—The act of March 23, 1901 (Stats. 1901, p. 794), providing for the payment by the treasurer of any county, city, etc., of any final judgment “now existing or that may be obtained hereafter against any county, city,” etc., and requiring the governing body of the city “to include in the tax levy for the next fiscal year a rate sufficient to pay all final judgments existing against” such city, cannot be held available for the enforcement of a demand against the revenue and income of a fiscal year subsequent to that in which the liability on which the demand is based was incurred.</p> <p>Id.—Claim por Publishing Freeholders’ Charter a Municipal Indebtedness.—A claim against a municipality, based upon the publication in a newspaper of a proposed freeholders’ charter, proceedings for the adoption of which by the city were then pending in accord with provisions of section 8 of article XI of the Constitution, and which publication was made by the claimant under an existing contract held by him for doing the city printing, is an indebtedness incurred by the municipality, and the immediate result of a contract by it.</p>

<p>Conditional Sale—Default of Vendee—Beturn of Property—Bemedies of Vendor.—Under a contract for the conditional sale of an automobile, which provided for its return by the vendee in ease of his default in paying deferred installments of the purchase price, the vendor, upon such default, may either sue to recover it, or for the purchase price, but he is not entitled to the property and the price also.</p> <p>Id.—Threat of Vendor to Beplevin—Election of Bemedy—Beturn by Vendee. — A notice by the vendor’s assignee to the vendee threatening. to replevin the automobile unless defaulted payments were made by a certain time is the manifestation of an election to take the property rather than to sue for the price; and the return of the property by the vendee within the time limited by the notice took away the right to sue for the purchase price.</p>

<p>Municipal Corporations—Payment of Judgment from Revenue of Subsequent Fiscal Year.—Arthur v. City of Petaluma, ante, p. 216, approved to the eflieet that a municipal corporation, in the absence of authorization by the electors, cannot pay, from revenues resulting from tax levies made for a subsequent fiscal year, a claim against the city which has been reduced to judgment, for material and labor furnished the city during previous fiscal years.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order refusing a new trial. Franklin A. Griffin, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Joseph E. O’Donnell, Costello & Costello, and E. R. Hoerchner, for Appellants.</p>

<p>Workmen's Compensation Act — Cause op Death op Employee — Rupture op Ventricle op Heart.—In this proceeding before the Industrial Accident Commission to recover compensation for the death of an injured employee, the evidence is held sufficient to show that while the immediate cause of the death was a small rupture of the right ventricle of the heart, such rupture was caused by an embolus emanating from the wound which the employee suffered from an accident in the course of his employment.</p> <p>Id.—Conclusiveness op Findings op Commission.—The commission is the final judge of the facts, and its findings cannot be overturned where they have the support of evidence upon which a reasonable man could come to the conclusion which was reached.</p>

<p>Will — Execution — Subscription or Acknowledgment — Witnesses must be Present at Same Time.—Section 1276 of the Civil Code, providing the manner in which wills must be executed and attested, and that "the subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority,” requires the subscription or the acknowledgment by the testator tó be before the two witnesses present at the same time.</p>

<p>Divorce — Final Decree — Mandamus. — Mandate is an appropriate remedy to compel the entry of a final decree of divorce where the court’s duty is plain and unmixed with the exercise of discretionary powers.</p> <p>Id.—Duty of Court to Enter Final Decree.—Under section 132 of the Civil Code, when one year has expired after the entry of an interlocutory decree of divorce, the court must, on motion of either party, enter the final judgment granting the divorce, whenever the facts are shown entitling the movant to such final decree.</p> <p>Id.—Effect of Interlocutory Decree.—The interlocutory decree fixes the right of the blameless spouse to a decree of divorce as and of the time when such decree is given, but it does not sever the marital bonds. It is merely a declaration that one of the spouses has at that time established a right to a final decree which will be entered at and after the expiration of one year.</p> <p>Id.—Reconciliation Before Entry of Final Decree.—One of the ends the law has in view in enforcing the delay of one year before an absolute severance of the marriage ties is to give the spouses a chance to effect a reconciliation.</p> <p>Id.—Court may Refuse to ENter Final Decree After Reconciliation; If before the time when the final decree could have been entered the innocent spouse condoned the offense for which the interlocutory decree was given, and thereupon the spouses became reconciled and thereafter continuously lived together as husband and wife for five years, the court has the inherent power to refuse to enter the final decree on the motion of the condonee.</p>

<p>Lease—Covenant Against Assignment—Sublease—Assignment oe Sublease.—The execution by an original tenant of a sublease is not a violation of a provision of the original lease against assignment. Such sublease, itself containing no restriction upon the right of assignment, may be assigned without the consent of the original lessor, notwithstanding the original lease contained a covenant against • assigning.</p> <p>False Representations—Present Condition and Past Earnings op Property.—Representations by the lessee of an apartment house regarding its present condition and past earnings, made to an assignee of the lease, related to matters of fact and not of opinion.</p> <p>Id.—Pleading—Cause op Action for Deceit.—A complaint by the assignee of such lease, who had taken the lease in exchange for a lot of land, charging that such representations were false and knowingly made, with intent to induce the plaintiff to enter into the contract of exchange, and that plaintiff was deceived thereby, and did in reliance thereon enter into the contract and transfer the land, states a cause of action for deceit.</p> <p>Id.—Measure op Damages—Exchange.—The true measure of the damage suffered by one who is fraudulently induced to make a contract of exchange of property is the difference between the actual value of that which he parts with and the actual value of that which he receives under the contract.</p> <p>Id.—Finding—Value op Property Taken in Exchange.—A finding that such lease was valueless cannot be disregarded on appeal as being outside of the issues, notwithstanding the absence of such an allegation in the complaint, where evidence bearing upon its value or want of value was introduced on both sides without objection.</p> <p>Id.—Single Material Misrepresentation.—In such action the plaintiffs were not required to establish the making and the falsity of every representation alleged by them. A single material misrepresentation will suffice to support the action for damages for the deceit.</p>

<p>Employer and Employee—Injuries to Employee Prior to Employers’ Liability Act—Negligence.—Prior to the enactment of the Employers’ Liability Act of 1913 (Stats. 1913', p. 279), it was essential to a recovery by the employee for injuries received by him in the course of and growing out of his employment, that there should be alleged and proved some fault or negligence on the part of the employer proximately causing the injury.</p> <p>Id.—Hotel-keeper—Employee Injured in Removing Drunken Person—Absence op Negligence op Employer.—An instruction given by a proprietor of a hotel to an employee not to permit accommodations therein to a certain drunken and boisterous man seeking the same cannot be construed as an order to remove the man from the premises, or as an instruction involving the use of force by the employee ; and if, in the endeavor to persuade the man to leave the building, the employee is assaulted and injured by him, the employer could not, prior to the enactment of such act, be held liable on the theory that he was negligent in setting the employee to a dangerous task, or in ordering him to assume new and perilous duties.</p> <p>Id.—Erroneous Instruction.—In an action against the employer to recover for such injuries, an instruction is erroneous which in effect tells the jury that if the injuries were received by plaintiff in the course of Ms employment and arose out of it, the defendant is liable without regard to whether or not there was any negligence or fault on the part of the defendant.</p>

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

APPEALS from an order of the Superior Court of Orange County denying a motion to set aside the conclusions of law and the judgment and to enter a different judgment, from the judgment, and from an order refusing a new trial. Z. B. West, Judge. The facts are stated in the opinion of the court. E. W. Forgy, Jones & Weller, and John T. Jones, for Appellant.

<p>Practice—Nonsuit—Review of Evidence.—Upon a motion for nonsuit, the evidence, and every inference that may fairly be drawn from it, must be viewed in the light most favorable to the plaintiffs’ claim.</p> <p>Execution Sale—Setting Aside—Inadequacy of Price.-—Mere inadequacy of price, however gross, is not itself a sufficient ground for setting aside an execution sale legally made. There must, in addition, be proof of some element of fraud, unfairness or oppression, before a court will be justified in depriving the purchaser of his legal advantage. Where, however, the price obtained is greatly disproportionate to the actual value, very slight evidence of unfairness or irregularity will suffice to authorize the granting of the relief.</p> <p>Id.—Knowledge of EIsttry of Judgment—Filing Notice of Appeal by Attorney.—The filing by the attorney of a judgment debtor of a notice of appeal from the judgment, and, after its entry, an undertaking to support such appeal, furnish conclusive evidence of the attorneys’ actual knowledge of the entry of the judgment against his client, and such knowledge is, in law, the knowledge of the client himself.</p> <p>Id.—Sufficiency of Notice of Sale—Personal Notice to Judgment Debtor.—An execution sale of land, notice of which w-as published and posted in strict conformity with the requirements of section 692 of the Code of Civil Procedure, will not be set aside on account of unfairness, merely because neither the judgment creditor, the sheriff, nor the purchasers notified the judgment debtor of the proposed sale.</p> <p>Id.—Suggestion to Purchaser to Bid at Sale.—No inference of impropriety in an execution sale is to be drawn from the fact that the attorneys for the creditor informed one of the purchasers that a sale was to be had, and suggested that he bid.</p> <p>Id.—Sale of Land in One Parcel.—An execution sale in one parcel of land described as “Lot No. 7 of the Linda Vista Tract” cannot be held irregular because the land was not offered in subdivisions, where there was nothing in the evidence to indicate that it consisted of other known lots or parcels.</p> <p>Id.—Separate Judgments When Authorized.—The rule that there can be but one final judgment in a case is inapplicable to actions in which separate and independent relief is sought against several defendants.</p> <p>Id.—Quieting Title — Separate Judgments Against Defendants — Collateral Attack.—Where, in an action to quiet title against two defendants, a default judgment is taken against one and thereafter a separate judgment is taken against the other, it will he presumed, on a collateral attack on the latter judgment, that the defendants had no such unity of interest or claim making it improper to render several judgments against them.</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>Insurance—Warranty of Status of Assured—Waiver.—An insurance corporation may usually stand upon the letter of its contract, and where the policy is based upon a warrant of status by the person, firm, or corporation seeking insurance, the insurer may in qortain cases be relieved of liability by misrepresentations of the applicant, even when there is an absence of fraud. But an insurance company may waive provisions placed in the policy solely for its own benefit, and may by its conduct be estopped from asserting defenses which might otherwise be available.</p> <p>Id.—Corporation Designated as Individual in Policy—Casualty Insurance—Defense of Action Against Assured.—Whatever right of avoiding the policy a casualty insurance company may have had by reason of a false statement in the policy that the insured was an individual, when in fact it was a corporation, is waived by the company’s undertaking the defense of its assured, under a duty imposed by the contract, when the assured was sued as a corporation by the person injured.</p> <p>Id.—Waiver of Previous Default—Recognizing Continued Validity of Policy.—When an insurance company, with full knowledge of all the facts, enters into negotiations and relations with the assured, recognizing the continued validity of the policy, the right to a forfeiture for any previous default which may be asserted is waived.</p> <p>Id.—Payment of Loss by Assured—Liability of Insurer to Reimburse.—It is immaterial to the liability of a casualty insurance company to reimburse the assured for money actually paid in settlement of a loss how or when the assured obtained the money or the credit which enabled it to make the payment.</p> <p>Id.—Waiver of Notice of Accident—Assumption of Control of Litigation.—The requirements of a policy of accident insurance that the assured shall give the insurance company written notice of the accident and forward to it the summons in any suit against the assured growing out of the accident are waived if the insurer actually assumes control of such litigation.</p> <p>Id.—Stipulations to be Performed After Loss—Waiver.—The prohibition in an insurance policy against waiver, except in writing, does not apply to those stipulations which are t'o be performed after loss, such as giving notice and furnishing preliminary proof.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Griffin & Carlson, J. M. Walthall, and John L. McVey, for Appellant.</p>

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

<p>Promissory Hote—Unexecuted Agreement Extending Time oe Payment.—In this action on a promissory note, it is held that an alleged agreement for an extension of the time of payment, which was pleaded as a defense, had never been executed; but, if regarded as an executed agreement, the defendant, by refusing to perform his part of the contract, was in no position to enforce any supposed rights under it.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, from an order dissolving a restraining order, and from an order denying an injunction pendente lite. Lewis R. Works, 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>Thomas Lee Woolwine, District Attorney, and George E. Cryer, Chief Deputy, for Appellant.</p>

<p>Ejectment—Ownership of Lands Described in Complaint—Pleading and Evidence—Erroneous Findings and Judgment.—In an action in ejectment to recover the possession of certain tide-lands, where the description as set forth in the complaint showed that parts of the lands were included in two tide-land surveys, the title whereof was shown by the evidence to be vested in the plaintiffs, it was error to find and adjudge that the plaintiffs were not the owners nor entitled to the possession of any of the lands described in the complaint.</p> <p>Id.—Tide-lands—Construction of State Patent.—A state patent purporting to convey state tide-lands only should be' construed to embrace only tide-lands to which the state held title, and not uplands as to which it had no title.</p> <p>Id.—Finding Against Ouster—Evidence.—In this action of ejectment to recover the possession of certain tide-lands, the description of which in the complaint fixes the southerly corner of the portion of the Bolinas Ranch, lying on the east side of Bolinas Bay, as the beginning point and ending point of the boundaries of the tract of which recovery is asked, it is held that the finding that the defendants had not ousted the plaintiffs from any portion of the land is not sustained by the evidence.</p> <p>Id.—Judgment—Res Judicata.—A former judgment, notwithstanding it may have been erroneous, is conclusive between the parties or their successors in interest in all subsequent actions involving the same questions and properly within the scope of the issues which might have been raised and determined.</p> <p>Id.—Boundaries — Natural Objects — Preference Over Lines and Angles.—In determining the position of a tract of land from a description or survey, natural objects referred to as bounds prevail over the measurement of lines and angles.</p> <p>Id.—Determination of Position of Lost Natural Monument.—In a controversy involving the actual location of land embraced in a tide-land patent, the description of which commenced and ended at a corner marked by a natural monument which had long since disappeared, it is the duty of the court to ascertain, if possible, the true position of the corner, accurately, if it could be done, or approximately within reasonable limits if the exact position could mot be ascertained with absolute certainty.</p> <p>Id.—Meander Land Along Shore Line.—Where a meander line of land included in a patent is run to approximately locate a shore line and to afford the means for calculating the area of the land granted, the shore line constitutes the real boundary.</p> <p>Id.—Answer—Quieting op Title—Writ op Possession.—In an action in ejectment, where the answer of a defendant, though denominated an answer, contains all the allegations necessary to a cause of action to quiet title or determine conflicting claims to real property and prays for affirmative relief of that character, and judgment is rendered in defendant’s favor, such judgment is in effect a judgment declaring and quieting his title, and a writ of possession may issue to place him in possession, if he be out of possession, or to restore him thereto if the losing party re-enters.</p>

<p>Negligence—Injury to Passenger on Street-car—Waiver of Motion to Dismiss as to Abandoned Cause of Action.—Where a cause of action for personal injuries resulting to a passenger on an electric street-car by being thrown therefrom is set up in two counts, the first of which- ascribed the injury to the sudden starting o-f the car while the plaintiff was endeavoring to -alight, and the second of which attributed it to -the defective condition of' the roadbed, which caused the car to jerk an.d swing, and the plaintiff at the trial elects t'o rely upon the second count, a motion by the defendant to dismiss as to the first count, on which the court reserved its ruling, is waived unless renewed before the close of the trial.</p> <p>Id.—Imperfect Condition of Track and Boadbed—Instructions as to Operation of Car.—Where such ease was tried upon the theory, not that defendant’s servants caused plaintiff’s fall from the ear by the negligent starting of the ear but that she was precipitated to the ground by its movement from side to side in consequence of the imperfect condition of the track and roadbed, instructions relative to the duty of a corporation in operating its cars did not tend to- mislead the jury.</p> <p>Id. — Impeachment of Witness as to Immaterial Statement — Striking Out Testimony. — Error in permitting the plaintiff to impeach her own witness with respect to immaterial statements made by him tending to show that the conductor of the car was neglecting his duty shortly before the happening of the accident is cured by the subsequent action of the court' in striking out such impeaching testimony and in instructing the jury to disregard it.</p> <p>Id. — Where Party may Impeach Own Witness. — Where a witness called by a party has simply failed to testify as expected, it is not permissible for the party calling him to prove that he had previously made statements which if sworn to at the trial would tend to support the case -of the proponent of the witness. In order to justify such impeachment the witness must give testimony against the party calling him.</p> <p>Id.—Instructions—Duty of Common Carriers of Passengers.—In such case, an instruction to the jury that “common carriers of passengers bind themselves to carry safely those whom they take into their cars, so far as human care and foresight will do so; that is, with the utmost care and vigilance -of a very cautious person; and such carriers are responsible for any, even the slightest, negligence,” construed with an instruction immediately preceding in which the jury were informed that such carriers are required to do all that human care, vigilance, and foresight “reasonably can do under all the circumstances” to prevent accidents to passengers, correctly states the law.</p> <p>Id.—Duty of -Carrier in Operation of Car.—In such action, where the gist of the averred negligence was the defendant’s operation of it's car over a track so rough and unsuitable that plaintiff, a passenger, was thrown and injured, it was proper to instruct the jury touching the duty -of a common carrier in the operation of its cars.</p> <p>Id.—Contributory Negligence—Passenger Preparing to Alight Before Beaching Destination. — Where the undisputed evidence showed that the plaintiff arose from her seat and prepared to alight from the car before reaching her destination, it was proper to instruct the jury that it was no defense to the action “that the plaintiff by her own act contributed to the injury; it must appear that by her -own fault she has so- contributed,” followed by a statement of the rule requiring of a passenger only ordinary prudence.</p> <p>Id.—Bes Ipsa Loquitur—Injury Coincident With Unusual Happening to Car.—Mere injury to the passenger does not place upon the carrier the duty of explanation, but the establishment of such injury, coupled with proof of coincident and causal collision, derailment, or other unusual happening t'o the car, does cast upon the carrier the burden of exculpation.</p> <p>Id.—Instructions as to Measure oe Damages.—In such action it was proper to instruct the jury with respect to the measure of damages, in the form approved in Byan v. Oakland Gas Light Heat Co., 21 Cal. App. 14, and' to give the further instruction that “the law does not prescribe any fixed or definite rule of damages, but leaves this assessment to the common sense and unbiased judgment of the jurors.”</p>

<p>The facts are stated in the opinion of the court.</p> <p>Isidore B. Dockweiler, Thomas A. J. Dockweiler, and W. D. Finch, for Appellant.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying a petition of the widow of a decedent to obtain a decree declaring that the homestead of herself and the decedent had vested in her as surviving spouse. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying an application for relief from the consequences of the failure to prepare a bill of exceptions, within the time allowed by law. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Duty Imposed by Law.—The failure of any person to perform a duty imposed by law is sufficient evidence of negligence. But no action for damages may be founded upon such negligence unless it directly contributed to the injury.</p> <p>Id.—Collision at Intersecting Railroad Tracks—Violation of Ordinance Requiring Safety Gates—Evidence.—In an action by a transportation company against a similar company, to recover damages resulting from a collision at the place of intersection of their respective tracks, it is proper to admit in evidence, in support of the general allegation that the collision was due to the defendant’s negligence, a municipal ordinance requiring the defendant to maintain and operate safety gates at the crossing where the accident oceurred, notwithstanding the evidence showed that the defendant had ceased to operate the gates for several months preceding the collision, and that this fact was known to the plaintiff and to its motorman in charge of the car which was demolished. Id.—Continued Disobedience of Ordinance.—The rule of law that proof of disobedience of an ordinance constitutes proof of negligence per se is not altered by the fact that the corporation bound under that ordinance to maintain a device intended for the safety of the public proves its continued disobedience of the law.</p> <p>Id.—Discontinuance of Use of Gates by Mutual Consent—Proximate Cause of Collision.—If by mutual consent of the owners of the intersecting tracks use of the safety gates had been discontinued and a system of signals by watchmen had been substituted, these facts, if proven, constitute a complete showing that the negligence involved in the violation of the ordinance was not the proximate cause of the collision.</p>

<p>Will—precatory Trust — Expression oe Testator’s Desire.—The mere expression of a desire by a testator that Ms residuary legatee pay a sum of money out of the residuum to a third person does not create a precatory trust in favor of such person.</p> <p>Id.—Precatory Trust When Created.—Precatory words are not to be regarded as creating a trust unless it appear that the testator intended to impose an imperative obligation and to exclude the exercise of discretion on the part of the person to whom the recommendatory words are addressed.</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>Ejectment—Intervention—Mortgagee in Possession—Title bt Adverse Possession—Joinder of Inconsistent Causes of Action.— In an action of ejectment', an intervener, without the necessity of making an election, may join a cause of action based upon the acquisition of title by adverse possession, on which he asked for judgment decreeing that he was the owner in fee, and a cause of action based upon his rights as a mortgagee in possession, on which he prayed for an alternative judgment that if plaintiff’s right to recover the land should be found to exist, the court should impose, •as a condition to intervener’s surrender of the property, the payment by the plaintiff of the mortgage indebtedness, and the repayment of the taxes which the intervener had paid.</p> <p>Id. — Causes of Action Arising Out of Same Transaction. ■— A complaint may, in different counts, set forth inconsistent causes of action arising out of the same transaction.</p> <p>Id.—Action bt Executor — Pleading Representative Status — Omission of Allegation in Complaint bt Intervener. — A plaintiff suing in. ejectment as an executor, who fully averred Ms representative status in his own pleading, cannot complain of the absence of a similar allegation from a complaint in intervention.</p> <p>Id. — Judgment in Ejectment Against Mortgagee in Possession — Presentation of Mortgage Claim to Executor.—A mortgagee in possession, who has intervened in an action of ejectment instituted by the executor of the owner in fee, -is entitled to have the judgment in favor of the executor made conditional upon the payment of the mortgage indebtedness, notwithstanding the failure of the complaint in intervention to aver the presentation to the executor of a claim based upon such indebtedness.</p> <p>Id.—Pleading—Appeal—Order Refusing New Trial.—An alleged insufficiency of a complaint may not be considered on an appeal from an order denying a motion for a new trial.</p> <p>Id. — Evidence — Instrument Executed by Attorney in Fact — Absence of Proof of Authority.—The admission in evidence of an assignment of a mortgage purporting to have been executed by the attorney in fact of the assignor, without first proving the authority of such attorney, will be deemed without injury, where no specific objection was made predicated upon the absence of such proof, and it appeared that the assignment had been executed and acknowledged in due form before a notary public.</p> <p>Id.-—Proof of Absence of Witness—Introduction of Deposition or Former Testimony.—The sufficiency of the showing of the absence of a witness justifying the introduction of a deposition or of testimony given at a former trial, under subdivision 8 of section 1870 of the Code of Civil Procedure, is within the discretion of the trial court. Under the circumstances of the present case, no abuse of such discretion is shown.</p> <p>Id.—Consent of Mortgagor to Possession of Mortgagee.—Consent by the mortgagor to the possession of the mortgaged property by the mortgagee may be shown by circumstances as well as by direct evidence of formal and declared acquiescence.</p> <p>Id.-—Peaceful Possession of Mortgagee—Ejectment—Necessity for Payment of Mortgage Debt.—If a mortgagee obtain possession in any peaceful mode, he may retain it against the mortgagor or the latter’s assignee until the mortgage debt is paid; and the mortgagor may not maintain ejectment against the mortgagee unless the debt is paid.</p> <p>Id.—Amendment—Setting up Statute of Limitations—Lack of Accounting.—In such action, it was not an abuse of discretion for the court to refuse to permit the answer to the complaint in intervention to be amended by pleading the statute of limitations and setting up the fact that there had been no accounting for the rents and profits of the mortgaged property, where permission to amend was not -asked until after the cause had been in litigation for many years and had once been considered on appeal.</p> <p>Finding—Judgment—Sufficiency, of Evidence.—Where certain findings sufficient to uphold the judgment as rendered are sustained by the evidence, it is immaterial that other findings are net so sustained.</p> <p>Id.—Appeal — Order Refusing New Trial — Attack on Findings — Specification of Particulars.-—On an appeal from an order denying a motion for a new trial, presented on a bill of exceptions, the sufficiency of the evidence to sustain a finding of the nonpayment of the mortgaged indebtedness in question cannot be considered if the specifications of error fail utterly to recite in what particulars the finding of nonpayment is insufficient.</p> <p>Id.—Attack on Finding Because Mere Conclusion of Law.—On an appeal from an order denying a motion for a new trial, a finding cannot be attacked o-n the ground that it is not one of fact, but a conclusion of law.</p> <p>Id.—Conclusions of Law not Supported by Findings.—The contention that certain conclusions of law are not supported by the findings is not available on an appeal from an order denying a motion for a new trial, there having been no proceedings under the provisions of sections 663 and 663a of the Code of Civil Procedure.</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>Rescission — Dorm op Decree — Return op Consideration to Defendant.—In decreeing the rescission of a contract of sale, the judgment by its terms should place the parties m statu quo and require the plaintiff, as a condition to the relief awarded him, to restore to the defendant everything of value which he has received under the contract. The fact that the plaintiff, in his complaint and at the trial, asserted his willingness to make such return is insufficient.</p> <p>Id.—Return of Consideration Paid to Different Parties.—Upon a rescission of a contract of sale, at the instance of the purchaser, as against two defendants each of whom had received a part of the purchase price for his interest in the thing sold, neither defendant should be required to return anything more than that which was obtained by him.</p>

<p>Estates op Deceased Persons—Administrator Carrying on Business Belonging to Estate—Loss to be Borne by Administrator.—An administrator of a decedent’s estate who assumes the perils of a business belonging to the estate does not, by so doing, subject the estate to the liabilities growing out of his conduct of the enterprise. They are his liabilities and he may pay them out of the increase of the business, but if by so doing a loss to the estate is sustained, he must make that loss good.</p> <p>Id.—Personal Creditor op Administrator—Not Aggrieved by Errors in Accounting With Estate.—One who deals with an administrator who is conducting a manufacturing enterprise with the property of the estate does so with full knowledge of his situation as a creditor. As a personal creditor of the administrator he is not a “party aggrieved” by errors, if any, in the administrator’s accounting with the estate.</p>

<p>Partnership—Firm Name not Showing Names of Partners—Filing Certificate.—The firm name “P. H. Murphy & Son” is not a designation showing the names of t'he persons interested as partners ■in the business of the firm, and the persons doing business in this state under sueh names cannot maintain an action upon a contract made or transaction had under that name, without first filing and publishing the certificate required by sections 2466 and 2468 of the Civil Code.</p> <p>Id.—Refusal of Continuance of Trial to Allow Filing of Certificate—Discretion.—In an action by such partnership to foreclose a mechanic’s lien, in which the defendants, hy answer filed long before the trial, pleaded in abatement the plaintiffs’ failure to comply with the requirements of sections 2466 and 2468 of the Civil Oodfe, it was not an abuse of discretion for the court, during the course of the trial, to demy the plaintiffs’ request for a continuance in order to permit them to file and publish the required certificate.</p> <p>Id.—Person Doing Business Under Fictitious Name — Certificate Falsely Stating Names of Partners.—A person who was the only one interested in a business transacted under a fictitious name, and who failed to file the certificate required by such sections, cannot maintain an action on a contract entered into under such fictitious name, notwithstanding he procured a certificate to he filed by other persons who falsely represented therein that they were the persons1 conducting as partners the business under such fictitious name.</p> <p>Mechanic’s Lien—Completion of Contract—Time for Filing Lien.— Section 1187 of the Code of Civil Procedure specifies several events,—among others the filing by the owner of a notice of cessation from work,—any one of which may be equivalent to “a completion” of a building contract, and thus a starting point for the filing of a mechanic’s or materialman’s claim of lien.</p> <p>Id.—Foreclosure of Lien Timely Filed—Filing of Previous Lien.— If the claimant file a claim of lien within the statutory period after the happening of any event so made equivalent to a completion, he is entitled! to foreclose the same in an action commenced within, the time limited hy section 1190 of the Code of Civil Procedure, notwithstanding he had previously filed a similar claim of lien, the right to foreclose which had been lost by reason of the limitations of that section.</p>

<p>Olographic Will—Cannot be in Typewriting or Printing.—Section 1277 of the Civil Code, providing that an olographic will shall be “entirely written, dated, and signed by the hand of the testator himself,” requires that the writing be with the hand of the testator by means of pen and ink or pencil of some description. Ho part of its contents may be in typewriting or printing, notwithstanding the same was done by the testator himself by the manipulation of a typewriting or printing machine.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Emmons & Hudson, Emmons & Johnstone, and T. F. Allen, for Appellant.</p>

<p>APPEAL from, a judgment of the Superior Court of the City and County of San Francisco, and from an order refusing a new trial. W. M. Conley, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Lease—Wall Leased fob Advertising Purposes—Offer of Rescission and Surrender.-—The owner of a building leased the dead wall thereof for advertising purposes for a period of five years, in consideration of the painting by the lessee of the lessor’s sign thereon free of charge. The lease contained a privilege of renewal for a like consideration from year to year, not to exceed five years. After the expiration of a year, the lessor wrote requesting the lessee to repaint the lessor’s sign, to which the lessee replied that it had discontinued outdoor sign painting and did not care to take advantage of its privilege of renewing the space leased. Held, that the lessor was justified in treating the reply as an offer of rescission and surrender of the lease.</p>

<p>Statute of Limitations—Injury to Employee—Action for is Ex Delicto.—A cause of action of an employee against Ms employer to recover damages for personal injuries suffered in the course of Ms employment is one arising ex delicto, and is not based upon a breach of the contract of employment. The statute of limitations applicable to such an action is subdivision 3 of section 340 of the Code of Civil Procedure.</p>

<p>Municipal Corporations—Determination or Unsazety or Electrical Installation—Delegation or Power to City OrnoiAL.—A municipal ordinance delegating to the city electrician the power of determining whether an electrical installation in a building is dangerous to life or property, without defining what conditions he must find to exist before he determines that the installation is unsafe or dangerous, is not void as unwarrantedly conferring upon, that oficial judicial or legislative powers, or because its terms are either indefinite, arbitrary, or oppressive.</p> <p>Id.—Enjoining Enforcement of Ordinance — Beview . by Court of Finding That Installation is Unsafe.—A court of equity, at the instance of a property owner, may review the determination of the city electrician that the installation is unsafe, and upon finding that it is safe, may enjoin the city authorities from enforcing the ordinance upon the owner’s refusal to comply with the directions of the city electrician touching changes and repairs.</p> <p>Id.—Appeal to City Council—Failure of Property Owner to Take.— The failure of the property owner to avail himself of a right to appeal to the city council from the determination of the city electrician, which right had been accorded by an amendment to the ordinance, does not deprive him of his right to resort to the courts for relief, where he was not advised of the amendment at such a time and under such circumstances as called upon him to avail himself of the permissive appeal to the council.</p>

<p>APPLICATION for a Writ of Mandate directed to the Railroad Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p> <p>Marshall Stimson, T. E. Gibbon, and Corbet & Selby, for Petitioners.</p>

APPEALS by minor children of the decedent and by the guardians of their persons from an order of the Superior Court of Los Angeles County denying the petition of the minors to set aside, as exempt property, certain proceeds from life insurance; also from an order denying exceptions of said minors to first and final account of administrator, and also from a decree of final distribution. Frederick W. Houser, Judge. The facts are stated in the opinion of the court.

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

<p>Negligence—Death prom Contact With Electric Wire—Evidence— Directed Verdict por Employer.—In an action, for damages for the death of a person employed in assisting in installing an extension of a runway on an electric power-house of the defendant, a directed verdict in favor of the defendant at the close of the evidence is proper, where it is established by the evidence that the deceased met his death in going upon a platform, upon which highly charged electric wires were installed, in disregard of instructions, for his own convenience and without invitation, and that there was no occasion to go thereupon in the performance of the work.</p> <p>Id.—Action for Negligence—Essentials.—To warrant the maintenance of an action by one for an injury due to negligence, there must exist some obligation toward the plaintiff which defendant has left undischarged.</p> <p>Id.—Directed Verdict—When Proper.—While ordinarily the question of negligence is one of fact to be determined by the jury, nevertheless where the undisputed evidence is such that only one inference can be drawn therefrom, or it is of a character so conclusive the court should, in the exercise of its discretion, set aside a verdict not in accord therewith, the question- is one of law which warrants the court in directing a proper verdict.</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>Common Gabbier—Relationship of Passenger.—A person may become a passenger and entitled to the highest degree of care, without having entered the carrier’s vehicle, if the surrounding circumstances show an intent on Ms part to become a passenger and an acceptance of Mm by the carrier as such.</p> <p>Id.—Evidence — Establishment of Relationship.—In an action- for damages for personal injuries received in attempting to board a moving electric street-car, the relationship of carrier and passenger is sufficiently established by evidence tending to show that plaintiff intended to board the ear to be carried as a passenger, that defendant’s servants in charge thereof knew of Ms intention, and, as indicating their consent to receive him, reduced the speed of the car, and saw or ought to have seen what he was doing, and understood or ought to have understood his purpose in doing it.</p> <p>Id.—Negligence — Attempt to Board Moving Street-car — Question fob Jury.—Whether or not plaintiff was a passenger and as such suffered injury through defendant’s negligence were questions for the determination of the jury, as likewise the question of contributory negligence, since it is not negligence per se for one to get on a moving street-car.</p> <p>Id.—'Care Exacted of Defendant—Instruction.—The defendant was not prejudiced by an instYuction to the effect that if the plaintiff was not a passenger, but attempting to become such, the law imposed upon defendant the exercise of ordinary care only, where the complaint was based and the evidence clearly tended to establish the relationship of passenger, and the jury was instructed that if plaintiff was found to be a passenger, he was entitled to the exercise of the highest degree of care by defendant.</p>

<p>Vendor and Vendee—-Waiver of Forfeiture—Acceptance of Interest After Default.—A vendor under a contract for the purchase of land the price of which was payable in installments at fixed dates, by accepting several payments on account of interest on the unpaid balance long after the final installment became due, waived his- right to declare a forfeiture for the failure to pay in- time, without first tendering a deed, and putting the vendee in default.</p> <p>Id.—Quieting Title of Vendor—Answer Seeking Specific Performance—Statute of Limitations.-—In an action by a vendor under a contract for the sale of land to quiet his title against the vendee, where the answer sets up an affirmative cause of action for specific -performance, the plaintiff! may, without formal plea, show that the attempted defense is barred by the statute of limitations.</p> <p>Id.—Possession of Vendee Preventing Running of Statute of Limitations.—The possession which will prevent the running of the statute of limitations against a vendee is an actual possession or occupation, not merely that constructive or presumed possession which may follow a right of entry.</p> <p>Id.—Vendee not in Possession — Right to Specific Performance Barred by Statute.—The right of a vendee not in possession to a specific enforcement of the contract is barred by the statute of limitations if after tendering payment and demanding a conveyance, which was refused, he- then waits for seven years before seeking to enforce his right to a conveyance.</p> <p>Id.—Equitable Conditions Imposed on Vendor — Specific Performance not Justified.—The fact that the vendor, having once waived his right to declare a forfeiture without first tendering a deed and demanding payment, could not have his title quieted, without complying with such conditions as might he deemed, by the court, to be equitable, would not justify the granting of the affirmative relief of specific performance to the vendee on a cause of action which is barred.</p>

<p>Negligence—Automobile—Cutting Across Street Corner—-Violation of Ordinance.—In the absence of any necessity, it is legal negligence for the driver of an automobile, when turning from one street into another, to “cut across the corner,” in violation of a city ordinance requiring Mm to pass around to the right of and beyond the center of the street intersection.</p> <p>Id.—Motorcycle—Passing Vehicle on Wrong Side.—It is -also negligence for the driver of a motorcycle, in, overtaking and passing a vehicle on the street, to pass to the right of such vehicle, in violation of the ordinance requiring him to pass to- the left.</p> <p>Id.—Collision Resulting from Concurrent Negligence of Drivers of Vehicles—Proximate Cause.—Where a collision occurred between a motorcycle and an automobile while the respective drivers thereof were so violating the ordinance, and would not have occurred had either of them observed the ordinance, the accident was the result of their concurrent negligence, and the negligence of each was a proximate cause of and contributed to an injury resulting from the collision.</p> <p>Id.—Crossing Blind Corner at Excessive Speed.—The driver of a motorcycle on a city street is guilty of negligence in crossing an intersecting street, where his vision of persons traveling thereon was obstructed, at a rate of fifteen miles an hour, or twenty-two feet per second.</p> <p>Id.—Ordinance Fixing Maximum Speed.—An ordinance fixing the maximum speed at which vehicles may travel on the city streets is not a license to go at that speed at all times and places. The care required at any place on a public street is always that of a reasonably prudent person under the circumstances, and occasions may arise when a speed far below the maximum would constitute negligence.</p>

<p>Damages—Personal Injuries — Verdict not Excessive.—Under the circumstances of this case, a verdict of nineteen thousand five hundred dollars, on account of personal injuries inflicted on the plaintiff ■while riding as a passenger in one of the ■ defendant’s cars, is not excessive.</p> <p>Id.—New Trial—Misconduct of Jurors—Observing Plaintiff in Unconscious Condition.—On the trial resulting in, such verdict, the fact that the plaintiff, after fainting on the witness-stand, was observed by some of the jurors in a room adjoining the courtroom while she was in an unconscious condition.and undergoing medical treatment, is not misconduct warranting a new trial.</p>

<p>Attachment — Fraudulent Procurement of Sale of Corporation Stock—Recovery for Stockholders—Action Ex Delicto.—In view of section 537 of the Code of Civil Procedure, which limits writs of attachment to actions arising on contracts, express or implied, for the recovery of money only, an attachment cannot be issued in an action brought by the plaintiff as trustee for the stockholders of a corporation which had forfeited its charter to recover a sum of money received by the defendant from dividends and as proceeds from the sale of stock which the defunct corporation had been induced to sell to defendant by false representations, since the action is an action ex delicto for fraud, and not one upon an implied contract for the direct payment of money.</p>

<p>Protection District—Nature of.—A protection district organized under the law of 1895 (Stats. 1895, p. 248 et seq.), as amended in 1909 and 1911 (Stats. 1909, p. 807; Stats. 1911, p. 446), authorizing the board of county supervisors to create an assessment district to the end that the property in the district in proportion to benefits shall pay for the improvement and rectification of the channels of innavigable streams and watercourses, and for the prevention of the overflow thereof by improving the same, is not a public corporation.</p> <p>Id.—Intention to Form District—Sufficiency of Notice.—A notice of intention to form a protection district which declared not only the nature of the work proposed to be done, but also that it was proposed to be done in conformity with the act whose title is set forth in full, is sufficient, although it is not declared in formal and precise terms that it was the intention to form such a district.</p> <p>Id.—Municipal Corporations—Inclusion of Lands Within District. Lands situated within a municipality may be included in a protection district without doing violence to the rights of .the city in municipal affairs provided by t'he Constitution, since the restraining of floods of innavigable streams may be more than a municipal affair.</p> <p>Id.—Notice to Property Owners—Mandatory Provisions.—The pro: visions of sections 15 and 16 of the act as to the giving of notice of hearing to property owners are mandatory and not directory, and the failure to comply therewith before the work is done invalidates the proceedings.</p> <p>Id.—Estoppel in Pais.-—In an action to enjoin a protection district from casting an alleged unlawful assessment lien on the property of the plaintiff, the defendants cannot urge an estoppel m pais against the plaintiff based upon their standing by and permitting the work to be done, where the only notice which the complaint declares them charged with is that certain work was to be done, and that the de- ■ fendant made no special plea or answer setting up the estoppel.</p> <p>Id.—Injunction—Proper Remedy.—An action to restrain the delivery and filing of an assessment for work in the formation of a protection district will lie, as it is an effort to prevent the cloud of a colorable lien being cast upon plaintiff’s property.</p>

<p>Workmen’s Compensation Act—Accidental Killing op Gamekeeper— Injury in Course op Employment.—The accidental killing of a person employed to patrol a ranch as gamekeeper, while assisting the lessees of the property in hunting a deer under express orders of the lessor, is an accident occurring in the course of the employment within the provisions of the Workmen’s Compensation Act.</p> <p>Id.—Keeper op Hunting Preserves — Occupation not Within Excluded Classes.—A gamekeeper employed to patrol a ranch and to aid in hunting deer is not included within section 14 of the Workmen’s Compensation Act, which excludes any employee engaged in farm, dairy, agricultural, vitieultural, and horticultural labor, in stock or poultry raising, from the provisions of the act.</p> <p>Id.—Absence op Willpul Misconduct.-—The .accidental killing of a gamekeeper while assisting the lessees of his employer in hunting a deer cannot be said to be due to the willful misconduct of the deceased in negligently proceeding to a point some' distance in advance of that agreed upon between himself and his associate, except for which the accident would have not happened.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Wm. M. Abbott, Wm. M. Cannon, and Kingsley Cannon, for Appellant.</p> <p>Sullivan & Sullivan, and Theo. J. Roche, for Respondents.</p>

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

<p>Landlord and Tenant—Lease for Fixed Term — Termination for Failure to Pat Bent—Bight to Growing Crops.—A lease for a fixed term of years, with rent payable at stated times, which is terminated by the act of the lessee alone, in failing to pay the rent when due, does not create an estate that would entitle the lessee or his subtenant to claim the growing crops or emblements after such termination of the estate.</p> <p>Id.—Unlawful Detainer—Subtenant not in Actual Occupancy— Judgment Against Tenant Binding on Subtenant.—In an action of unlawful detainer, after default in the payment of rent, a judgment against the tenant for the rent due and restitution of the premises is binding on a subtenant, who was not in the actual occupation of the premises either at the time of the service of the three days demand for the payment of the rent, or at the time of the commencement of the action, and who was not made a party defendant therein.</p> <p>Id.—Subtenant not Entitled to Growing Crops.—The subtenant is not entitled to claim the growing crops or emblements after such termination of the leasehold estate, if neither he nor the original tenant satisfies the judgment within five days, as provided, by section 1174 of the Code of Civil Procedure, nor obtains relief from the forfeiture under section 1179.</p>

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

<p>Public Corporations Defined.—Under section 284 of the Civil Code, public corporations are only those corporations formed! for political and governmental purposes, and vested with political and governmental powers.</p> <p>Reclamation District not a Public Corporation.—A reclamation district is not a public corporation. It is merely a governmental mandatory or agent vested with limited powers to accomplish limited and specified work.</p> <p>Id.—Workmen's Compensation Aot—Reclamation District not Subject to Act.—A reclamation district is not a “public corporation,” as that term is used in the Workmen’s Compensation Act, and, as an employer of labor, it is not subject to the provisions of such act; and the Industrial Accident Commission has no jurisdiction to award compensation against it for an injury to. its employee.</p>

APPEALS from a judgment of the Superior Court of the City and County of San Francisco, and from an order refusing to enter a default. George E. Crothers, Judge. The facts are stated in the opinion of the court.

<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>Earl Curtis Peck, Earl Rogers, Otto G. Kuklinski, and Charles Scholz, for Appellant.</p>

<p>Municipal Corporations—Powers.—A municipal corporation possesses and can exercise only such powers as are granted in express words, those necessarily or fairly implied in or incidental to the powers - expressly granted, and those essential to the declared objects and purposes of the corporation—not simply convenient but indispensable.</p> <p>Id.—City of Long Beach—Power to Improve Harbor—Construction of Charter.—The city of Long Beaoh, under subdivision 11, section 1, article II, of its charter, giving it the power to build, own, alter, and improve the waterfront of the city, and to build and improve wharves, has not the authority to improve the harbor by dredging, deepening, and improving the channels and slips, since the word “waterfront” does not include the water comprising the harbor and the underlying land, but means the land or land and buildings fronting on the body of water.</p> <p>Id.--—Power to Improve Harbor Under Statutes.—The city of Long Beaeh has power, however, under other provisions of its charter and the acts of the legislature of 1911, granting to the city all state rights in tide and submerged lands within the boundaries of the city, with the right to use such lands for harbor construction, to improve its harbor and to incur a bonded indebtedness therefor.</p> <p>Id.—Public Trust in Tide-lands—Validity of.—A public trust in tide and submerged lands situated in a city for purposes of establishing a harbor, improving the same and managing such harbor to accommodate commerce and navigation, is not forbidden by any general law.</p> <p>Id.—Tide-lands—Ownership and Control by State.—The title and control to tide-lands and adjacent submerged lands of navigable waters is vested in the state impressed with a public use for navigation and commerce purposes, and the state as trustee may manage and control such use and improve such lands and waters in furtherance of such use.</p> <p>Id.—Management and Control of Tide-lands—Grant to Municipality.—The state may, for navigation and commerce purposes, grant control and management of tide and submerged lands to a local administrative agency, such as a city possessing the necessary powers. ,</p> <p>Id.—Acceptance of Grant—Power of City of Long Beach.—The city of Long Beach has power, under its charter providing that it shall have power to receive donations of property in the manner and for the purposes and. upon, such trusts and conditions as are in accordance with law, to accept tide-land property granted to it hy the state.</p>

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

<p>Fraud—Sale oe Corporation Bonds—Expressions op Opinion.—In an action for damages for alleged fraudulent representations' in the sale of corporation bonds, statements of. the sellers to the effect that the money invested in the bonds would be safe, that they were “gilt-edge security,” that, they would command a ready sale, and that the interest and principal would be duly paid, are mere statements of opinion, and not sufficient to form the basis of a recovery for damages, the parties not standing in confidential relationship, and it not being shown that the opinions were not honestly held, or that they were given in bad faith.</p>

<p>Agency—Sale from Principal to Agent—Fairness of Transaction— Duty of Agent.—In an action to set aside a sale of real property made by a principal to an agent, where the latter obtains any benefit through the transaction, -the burden is upon him to show that an adequate consideration was paid, and that no unfair means of any kind were used by him- to induce the sale.</p> <p>Id.—Disaffirmance of Sale—Adequacy of Price.—While a principal-has the right .to disaffirm a sale to his agent if there is any element of unfairness or bad faith, even though the purchase price is adequate, nevertheless price is a highly important factor in such cases.</p> <p>Id.—Validity of Sale—Sufficiency of Evidence.—In an action to set aside a sale, of real property made by a principal to her agent on the ground of fraud, where a full and fair price is paid for the property, and it is shown that the agent had acted as such agent for a period of ten years with the strictest good faith, and that the action- was not brought until long after the transaction and death of the grantee, clear and- satisfactory proof is required to show that the sale was procured by fraud.</p>

<p>New Trial—Bill of Review.—A bill of review for a new trial for newly discovered evidence may be maintained in this state, notwithstanding the remedy by motion for new trial, but is seldom resorted to because of the high standard of diligence required to authorize the relief.</p> <p>Id.—Time for Instituting Bill—Diligence.—While the time to institute a bill of review for a new trial for newly discovered evidence does not begin to run until the discovery, yet the complaint must show great diligence in using the means for discovery, and unless it does so show, the fact that the discovery was not made until shortly before the action was begun will not avail.</p> <p>Id.—Laches in Examination of Records.-—A bill of review for a new trial for newly discovered evidence in an action involving riparian rights fails to present a ease for equitable relief, because of the laches of the plaintiff, where such evidence consists of a recorded deed conveying such rights of. the defendant, and- there is nothing on the face of the bill to disclose that such deed could not have been discovered upon an examination of the records at any time during a period of over ten years before the commencement of the action.</p>

<p>Workmen’s Compensation Act—Might Watchman op Engine—Voluntary Assumption op Duties op Another Employee.—An employee of a railroad contractor, whose duties were limited to acting as night watchman of a particular locomotive engine, departs from the course of his employment if he, of his own accord and without the direction or consent of the employer, and solely in pursuance of am understanding had with the watchman of another piece of machinery situated at a different place, assumes to perform the duties of the latter, and the employer is not liable under the Workmen’s Compensation Act for injuries received by him while im the performance of such assumed duties.</p>

<p>Negligence—Injuries to Employee—Contributory Negligence not Shown.—In an action for damages for injuries sustained by the foreman of a street-paving gang, it was not contributory negligence, as matter of law, on the part of the plaintiff, who was crushed by the fall of a heavy “skip” or “conveyer” used to carry crushed rock and cement to a mixing machine, that, in the performance of a duty of his employment, he passed under the “skip” while it was suspended in air, although there were three safe ways open to him, the evidence showing that' the way he selected was the most practical and convenient, was frequently used by himself and other employees, and was not considered hazardous or dangerous.</p> <p>Id.—Unprejudicial Instruction—Indemnity of Employee.—An instruction that “an employer must in all oases indemnify his employee for losses caused by the employer’s want of care,” while not strictly accurate in view of the rule of contributory negligence, was unprejudieial when read in connection with other instructions.</p> <p>Id.—Hazardous Work—Duty of Employer.—By an instruction that “if the work is hazardous, it is the duty of the employer to adopt and enforce reasonable rules for the protection of his employees in the performance of their duties,” the question whether the machinery was in fact dangerous is left solely for the determination of the jury; the instruction does not have the effect of charging the jury that the law imposes upon the employer the absolute duty of adopting and enforcing rules, and is not prejudicial.</p> <p>Id.—Burden of Proof—Contributory Negligence.—It was not error to instruct the jury that the burden of proving contributory negligence rested on the defendant; the exception to this rule applies only where the plaintiff’s own testimony raises a clear presumption of contributory negligence.</p> <p>Id.—Defense -Conducted by Indemnity Company—Unprejudicial Conduct on Part of Plaintiff’s ’Counsel.—It was not prejudicial to the defendant that t'he jurors were apprised by plaintiff’s counsel that the defense was being conducted by an indemnity company with which the defendant carried liability insurance, that fact having been -brought out by questions asked in good faith of a juror known to be a friend of the agent of the indemnity company, for the purpose of disclosing his bias or prejudice, and by questions asked in like good faith of the defendant’s secretary and another of defendant’s witnesses.</p>

<p>CROSS-APPEALS from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Charles Wellborn, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Gibson, Dunn & Crutcher, and Edward E. Bacon, for Appellants and Respondents Mary E. Bird and R. J. Bird.</p> <p>Bicksler & Smith, and Bicksler, Smith & Parke, for Appellant American Surety Company of New York.</p> <p>Frank L. Borden, and M. O. Graves, for Respondent J. E. White & Co.</p> <p>Frank L. Borden, for Respondents Franklin S. Bell and J. H. Southern.</p> <p>Behymer & Craig, for Respondent Frank Graves Sash Door and Mill Company.</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, f</p>

<p>Corporations—Joinder on Actions—Stockholder's Liability—Action Against Corporation.—Action against stockholders on their statutory liability is properly joined with action against the corporation upon its indebtedness.</p> <p>'Pleadings—Admissions in Complaint.—Admissions in t'he complaint of payments which might have reduced the indebtedness cannot be used against the findings and judgment to show that the amount of the judgment is too large, when the whole matter of the indebtedness is in issue by the defendant’s denial of any indebtedness.</p>

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

<p>Eminent Domain—Leasehold Interest—Eight to Damages Awarded on Street Widening.—An assignment of a lease does not carry with it the right to the damages awarded by an interlocutory judgment on the widening of a street, where at the time of the assignment the lease had expired and the premises were being held over from month to month.</p>

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

<p>Promissory Note — Attorney’s Pees — Amount in Discretion of Court.—Where a promissory note provides for payment of reasonable attorney’s fees, the amount is t’o be fixed .by the court in its discretion, without necessity for evidence, and it is only for an abuse of discretion that the court’s action will- be reversed.</p> <p>Id.—Action on Note—Cross-complaint 'Claiming Damages for an Eviction as a Tenant—Judgment Pending on Appeal not Admissible as Evidence.—Where in an action on a promissory note the defendant by cross-complaint demanded damages for an eviction from a portion of certain leased premises, and to prove the fact of eviction offered in evidence the judgment-roll in another action by the same plaintiff against defendant for rent, in which the eviction had been set up as a defense and had been found by the court in favor of the defendant, but from which judgment an appeal taken by the plaintiff was undetermined, that judgment was not final, and was properly excluded as evidence of the eviction.</p> <p>Id.-—Effect of Failure to Set Up Counterclaim in Former Action.— The defendant in the previous action for rent could have pleaded;, and should have pleaded, its claim for damages for eviction as a counterclaim, and having failed to do so, although it had set it up as a defense, defendant was estopped by section 439 of the Code of Civil Procedure from establishing it as a cross-complaint in the present action. .</p> <p>"Ib.—Abatement—PLea on Other Action Pending.—A plea in abatement that another action is pending is open only when the identity of the matters involved in the second action is such that a judgment in the first could be pleaded as a former adjudication if that judgment was final.</p> <p>Id.—Estoppel by Silence op Counsel at Trial.—The judgment-roll in such ease having been offered by defendant, and plaintiff’s counsel, in answer to a question by the court as to whether judgment had become final, having replied that an appeal was pending, and the court having thereupon ruled that the pendency of the appeal .rendered the judgment useless in any respect in this ease, and the appellants’ attorney, having on the trial made no response other than t'o save his exception, his subsequent contention on, appeal that the judgment-roll was admissible because there was no proof of the pendency of an appeal from it was frivolous.</p> <p>Id.—Appeal and Error—Premature Signing op Findings.—Unless the appellant makes plain to the court the nature of the “substantial right” of which he claims to have been deprived by the signing of findings prior to the expiration of the five days provided for by section 634 of the Code of Civil Procedure, it is the duty of the court, under Constitution, article VI, section 4^, to disregard the error.</p>

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

<p>APPLICATION for a Writ of Review against the State Railroad Commission.</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>Broker’s Commissions — Negotiation of Loan — When Earned.—A broker employed to procure a loan on real property must show that he was the efficient cause of obtaining the loan in order to recover his commission, and where the loan was obtained by a third party, the broker’s testimony that' such party was his agent is entitled to no weight, being but the conclusion of the witness.</p> <p>Id.—Parol Evidence.—Under a written contract providing that if a broker would negotiate a loan for the owner of a lot, t'he latter would erect a building thereon and employ the broker as superintendent of construction and pay him ten per cent of the cost of construction for his services, the broker cannot modify the terms of the contract by parol testimony that he told the owner that she would also have to pay a commission for the procuring of the loan and that she assented thereto.</p> <p>Id.—Negotiation of Loan—When Unconsummated.—An unconsummated loan is not “negotiated” simply when the broker as negotiating agent shows that he has found a lender ready and willing to advance the money, as he must also show that the lender has t'he ability to make the advancement'.</p> <p>Id.—Nonacceptance of Loan—Eight of Owner.—An owner is not in default under a contract authorizing the negotiation of a loan on her .property where the loan obtained was upon the condition that the owner should raise an additional sum.</p>

<p>APPLICATION to reverse judgment by stipulation.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Reformation of Contract—Mistake—Burden of PRoof.—One who seeks the reformation of a contract on the ground of mutual mistake must show the mistake by clear and convincing evidence.</p> <p>Id.-—Sufficiency of Evidence.—In this action it was held that the evidence of the circumstances attending the execution of a contract for the sale of an olive crop was sufficient to justify the finding that there was no mistake warranting a reformation of the contract.</p>

<p>Vendor and Purchaser—Recover? of Deposit—Mistake.—A deposit paid on account of the purchase price of real property is recoverable on the ground of mistake where the same was paid to a purported agent under a contract whose terms the owner refused to approve, the deposit being accepted and retained by the owner under a different contract which he did approve, but as to which the purchaser had no knowledge until the trial of the action to recover the deposit on different grounds.</p> <p>Id.—Delay in Bringing Action—Lack of Laches.—The right to recover the deposit on the ground of mistake is not barred by laches where the purchaser honestly believed that the contract signed by him had been approved and was proceeding to enforce his right under that belief, when on evidence produced by the owner it was discovered ,by the plaintiff for the first time that the contract on which he was suing had never been executed by defendant.</p> <p>Id.—Errors During Trial—Record—When not Renewable.—Rulings of the trial court on the admission and exclusion of testimony will not be reviewed where the appellants only complain generally of them and merely point out where the exceptions relating to them may be found in the record.</p> <p>Id.—Partnership Liability—^Evidence—Unwarranted Judgment.— In an action brought against a partnership and an individual member of the firm to recover a sum of money paid on account of the purchase price of real property on the ground of mistake, a judgment against the partnership is unwarranted where the property stood of record in the name of the individual member and the deposit was taken and retained by him.</p> <p>Id.—Costs—Partnership not Entitled.—The partnership in such an action is not entitled to its costs where it had knowledge that plaintiff believed that it was the owner of the property, and failed to advise plaintiff differently until the trial of the action.</p>

<p>Mechanic’s Lien—Person to Whom Materials Were Furnished— Sufficiency of Claim; of Lien.—A -claim of lien is sufficient under section 1187 of the Code of Civil Procedure, where it gives the name of the contractor who entered into the contract with the claimant for the furnishing of the materials, and states that the materials were furnished; and used, although it' does not expressly state to whom the materials were furnished.</p> <p>Id.—Price of Materials — Immaterial Variance.—A claim of lien which states the contract .price for materials furnished is not invalid because a small part of the materials were furnished under an implied contract to pay their reasonable value, the total amount due being correctly stated and there being an absence of fraud or intentional misrepresentation.</p> <p>Id.—Nonservice of 'Copy of Findings—Point not Available.—Upon an appeal from a judgment the respondent cannot urge in support thereof that a copy of the proposed findings was not served on it within the five days required 'by section, 634 of the Code of Civil Procedure, where it recovered the judgment desired.</p>

<p>APPLICATION for Writ of Review against Industrial Accident Commission.</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>Estates of Deceased Persons—-Appealable Order—Sale of Beal Property Outside State.—An order of the superior court directing executors of a will, probated in California, to sell all the lands of the testator situated in Iowa, and to transmit the proceeds to California for distribution or to show cause, in case of neglect to do so, why they should not be removed as executors, is an order “in favor of directing the partition, sale or conveyance of real property,” within the meaning of subdivision 3 of section 963 of the Code of' Civil Procedure, and an objection that such an order is not appealable is frivolous.</p> <p>Id.—Wills—Descent and Distribution—Phetermitted Child.—Where-ever a testator has by will disposed of all his property, a pretermitted childi does not and cannot take under the will, but takes in opposition and hostility to that will.</p> <p>•Id.—Construction of Code.—This rule is unchanged by the amendments of 1905 to sections 1306 and 1307 of the Civil Code.</p> <p>In. — Equitable Conversion. — The doctrine of equitable conversion is fully recognized in this state by the Civil Code, section 1387, which is merely declaratory of the equitable doctrine.</p> <p>Id.—Title to Land—Laws Governing.—It is a well-established doetrine that the laws of the state where land is situated govern the transmission of title within such state, and this principle is subject to no modification save when and as the laws of the state (locus rei sitae) in terms permit such modification.</p> <p>Id.—Constructive Conversion.—Where a testator residing in California and whose will was probated there made certain provision for his wife, and directed that all his property in Iowa should be sold by his executors “for such price as they deem proper . . . subject to approval of the court having jurisdiction of such matters in the county wherein such property is situated,” the proceeds to be distributed equally among his twelve children, the provision of the will worked, not an actual conversion, but a constructive conversion merely, and the parties in interest under the will had, under the laws of Iowa, a right to- effectuate a reconversion at any time before actual conversion.</p> <p>Id.-—Reconversion—Election by Beneficiaries Under Will.—A valid election by all the devisees in a will to take'lands as lands, as heirs, and not to take under the terms of a will, supersedes and destroys the power given to the executors to convert' the lands into money for the purpose of distribution under the will.</p> <p>Id.—Parties—Nonjoinder—-Pretermitted Heir.—The nonjoinder of a pretermitted heir does not defeat the reconversion, because he does not take under the will, but in hostility to it.</p> <p>Id.—Appeal from Order—Stay of Proceedings.—An appeal by executors from an order directing them to sell property suspends the operation of the order, and a subsequent order removing the executors for disobedience of the former order is illegal.</p>

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

<p>Injunction — Contempt — “Picketing” — Liability of Person not Party—Insufficiency of Affidavit.—Persons not parties to an action may be bound by an injunction if they have knowledge of it, provided they are servants or agents of the parties enjoined or act in collusion or combination with them; but' a charge of contempt by “picketing” in violation of an injunction is insufficient against' one not a party to an action, where the injunction is simply one prohibiting certain persons and classes of persons from picketing, and the affidavit on which the charge is based does not show that the person charged is one of the persons or classes enjoined, or acting as the agent or servant of or in concert or combination with them, but only that he had actual notice of the terms of the injunction by reason of the service of a copy thereof upon him.</p>

APPEAL by administratrix from decree of Superior Court of Los Angeles County settling account of special administrator; James C. Rives, Judge. The facts are stated in the opinion of the court. James W. Miller, John E. Carson, and Hanson, H'acbler & Heath, for Appellants.

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

<p>New Trial—Newly Discovered Evidence—Cumulative Evidence.—In an action for damages a motion for a new trial on the ground of newly discovered evidence in support of a plea of the statute of limitations is properly denied, the record showing that the evidence was cumulative and also that it might have been procured at the trial by the exercise of due diligence.</p>

<p>Payment—Conditional Deposit in Bank—Debt not Extinguished.— Under section 1500 of the Civil Code, providing that an obligation for the payment of money is extinguished by a due offer of payment if the amount is immediately deposited in the name of the creditor with some bank of deposit within this state of good repute, and notice thereof is given to the creditor, a debt is not extinguished by the mere leaving of the money with a bank with instructions to deliver to the creditor upon his complying with certain conditions.</p>

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

<p>Mortgage—Beview op Judgment op Foreclosure—Junior Mortgagee. Certiorari will not lie to review a judgment of foreclosure of mortgage at the instance of a junior mortgagee whose mortgage was recorded prior to the recording of the notice of lis pendens, where the action was dismissed as to the petitioner, since his interest is not affected by the judgment.</p>

<p>APPLICATION for a Writ of Certiorari to review an award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trusts — Following and Recovery of Funds.— The beneficiary of a trust may follow and recover the trust fund if any property in the hands of the trustee or of those taking with notice can be identified either as the original property of the cestwi que trust or as the product of it.</p> <p>Id.—Loss of Identity of Fund—Position of Beneficiary.—Where the identity of the trust fund has been lost, the beneficiary is relegated to the -position of a general creditor, and must share' pro rata with other general creditors.</p> <p>Id.—Commingling of Funds—Presumption.—If a trustee mingles his own funds with the trust fund, and thereafter draws from time to time from the commingled mass, it will be presumed that the moneys so drawn were from his own portion of the fund, rather than, from the moneys held by him in trust, the rule resting upon the underlying presumption that a person is innocent of crime or wrong.</p> <p>Id.— Involuntary Trust Arising from Fraud — Doctrine of Commingling of Funds Inapplicable.—The doctrine that a trustee who mingles his own funds with trust funds and thereafter draws from the commingled mass will be presumed to have drawn from his own funds has no application to a case where a party has fraudulently induced another, to enter into a contract, and holds what he has received thereafter in trust, not by virtue of any contractual or acknowledged fiduciary relation, but merely because the law declares that he is an involuntary trustee of property obtained by fraud.</p> <p>Id.—Purchase of Bank Stock—Fraud—Following of Money into Hands of Receiver.—Where a bank fraudulently induces a person to purchase its stock and shortly thereafter becomes insolvent, the purchaser cannot claim that the identical money paid for the stock ' passed into the hands of the receiver, and that he is entitled to recover his money, on the theory that the bank at all times had on deposit a sum of money in excess, and it will be presumed that it was retained to meet the purchaser’s claim.</p>

<p>APPEAL from a judgment of the Superior Court of</p> <p>Tulare County, and from an order denying a motion to vacate</p> <p>the same. J. A. Allen, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPLICATION for a Writ of Mandate to compel a city council to call an election to determine whether certain territory should have a borough government.</p> <p>The facts are stated in the opinion of the court.</p>

The facts are stated in the opinion of the court. 0 ’Melveny, Stephens & Millikin, Walter K. Tuller, and J. P. Chandler, for Intervener and Appellant. Fredericks & Hanna, for Respondent-Defendant and Appellant. Albert Lee Stephens, City Attorney, W. B. Mathews, A. J. Hill, County Counsel, Roy V. Reppy, Assistant City Counsel, and Robert B. Murphy, Deputy County Counsel, for Petitioners-Plaintiffs and Respondents.

<p>Criminal Law—Immunity from Prosecution—Failure to Bead Section 1324, Penal Code, to Witness.—-Under section 1324 of the Penal Code, providing for immunity to a witness whose testimony may incriminate him, a defendant is immune from a prosecution for murder where he was called as a witness on the preliminary examination of another person for the same crime, and gave incriminating testimony against himself without first being instructed as to his constitutional rights or having read to him the provisions of said code section.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Metson, Drew & Mackenzie, R. G.. Hudson, and Marion De Vries, for Appellant.</p>

<p>APPLICATION for a Writ of Review against the Railroad Commission of the State of California.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Bailroad Commission—Priority in Use of Water—Recognition of Bights of Consumers.—The Bailroad Commission has recognized the existence of the rights of consumers in proper cases to priority in the use of water, and a writ of review will not lie to compel the commission to determine such priority in a ease where it does not consider it necessary so to do.</p>

<p>APPLICATION for a Writ of Mandate directed to the Railroad Commission of the State of California.</p> <p>The facts are similar to those stated in the opinion of the court in Civic Center Assn, of Los Angeles v. Railroad Commission, ante, p. 441, [166 Pac. 351].</p>

<p>Taxation—Bank Stock—Constitutional Law.—Judgment affirmed on the authority of Bank of California v. Bokerts, 173 Cal. 398.</p>