Volume 180 — California Reports

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

<p>[1] Eminent Domain—Acquisition op Site por High School Gymnasium—Pleading—Previous Authorization by Trustees—Unnecessary Allegation.—In a proceeding by a high school district to condemn a tract of land for the site of a gymnasium or athletic building, it is not essential to the sufficiency of the cause of action pleaded that the complaint should contain an allegation that the plaintiff was empowered by a valid or any resolution of its board of trustees to proceed in condemnation, since section 1244 of the Code of Civil Procedure, which prescribes the essentials of a complaint in eminent domain proceedings, does not require a statement of the adoption of such a resolution.</p> <p>[2] Id.—Code ¡Requirement—Statement op ¡Right op Plaintiff— Meaning op.—The requirement of subdivision 3 of section 1244 of the Code of Civil Procedure that the complaint must contain a statement of the right of the plaintiff has reference only to a statement of the legal right or authority of the plaintiff to exercise the power of eminent domain, and, as against a general demurrer, the complaint complies with the mandate of the statute by alleging, in effect, that the taking was sought pursuant to the provisions of Title VII, Part III, of the Code of Civil Procedure.</p> <p>[3] Id.—Resolution Authorizing Proceeding—Misrecital op Source op Legal Authority-—Preamble—Validity op Resolution.—The right of a high school district to condemn land for the purpose of acquiring a site for an athletic building is neither restricted nor restrained by the fact that in the preamble of the resolution authorizing the proceedings the right to institute the proceedings was based upon an act of the legislature which had not then gone into effect, since it was unnecessary to the efficacy of such a resolution that it should have a preamble, or that the resolution or preamble should state the statutory authority permitting the proceeding.</p> <p>[4] Id.—Code Authority to Institute Proceeding.—Section 1238 of the Code of Civil Procedure, which- authorizes a school' district to exercise the right of eminent domain for the purpose of acquiring public buildings and grounds for the use of any school district, when read'in conjunction with various other sections and provisions of the code and of the statute law relative to and regulating the public school system, empowers a high school district, if not expressly, by necessary implication, to proceed to condemn land for a site for an athletic building.</p> <p>[5] Id.—Pleading—Amendment or Complaint—Increase in Quantity op Land—Discretion not Abused.—In an action by a high school district to condemn a strip of land for a site for an athletic building, where the original complaint prayed for the condemnation of a strip eighty feet in width by three hundred and forty-four feet in length, there was no abuse of discretion in permitting the filing of an amended complaint on the day of trial praying for the condemnation of a strip one hundred feet in width and three hundred and forty-four feet in length, notwithstanding the resolution authorizing the proceeding provided for a strip of eighty feet in width, it appearing from the answer that the strip described in the amended complaint was all that defendants owned.</p>

<p>[1] Appeal—Conflict of Testimony—Noninterference With Verdict.—Appellate courts will not interfere with a verdict where the testimony is conflicting and may impose a penalty for a frivolous appeal, where the only contention of appellant is that the evidence preponderates in his favor.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Chas. Monroe, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

Prank G. Pinlayson, Judge. Affirmed in part, reversed in part. The facts are stated in the opinion of the court. Albert Lee Stephens, City Attorney, Jess E. Stephens, Assistant City Attorney, and Wm. P. Healey, Deputy City-Attorney, for Appellant.

<p>[1] Taxation—Leasehold Interests—State Tide-lands.—A leasehold interest in. tide and submerged lands owned by the state is subject to assessment and taxation under the revenue laws thereof.</p>

<p>[1] Negligence—Injury to Infant—Action in Own Bight—Imputed Negligence of Parents—Question of Fact.—In an action by an infant in Ms own right for damages for personal injuries from being struck by a motorcycle, the question of imputed contributory negligence on the part of plaintiff’s parents sufficient to defeat plaintiff’s action, assuming it' to be properly a part of the case, was one of fact, and not of law.</p> <p>[2] Id.—Actions by Children—Imputed Negligence—Doctrine Inapplicable.—The rule of imputed negligenee'as applied to actions by children in their own right no longer prevails, if it ever did prevail, in this state.</p> <p>[3] Id.—Use of Streets—Duty of Drivers of Motor Vehicles.— Aside from section. 2-2b of the Motor Vehicle Act (Stats. 1915, p. 397), the driver of a motor veMcle is bound to use reasonable care to anticipate the presence on the streets of other persons having equal right's with himself to be there.</p> <p>[4] Id.—Collision With Motorcycle—Negligence of Driver—Sufficiency of Evidence.—In an action by an infant in Ms own right for damages for personal injuries from being struck by a motorcycle, evidence that the driver was going at a speed of fifteen miles per hour on a wet and slippery street crowded with traffic, which speed was sufficient upon a sudden stoppage to throw Mm over the handle-bars, is sufficient to justify a finding of negligence.</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>Wheaton A. Gray, Waldo M. York, Harry M. Irwin, Geo. L. Hoodenpyl and D. L. Bathurst for Petitioner.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Theodore A. Bell, Arthur L. Shannon and Shinn & Hart for Appellant.</p>

<p>[1] Judgment—Lien—Creature of Statute.—The lien of a judgment is purely the creature of the statute, no such lien having existed at common law.</p> <p>[2] Id.—Docketed Judgment—Lien on After-acquired Property— Date of Acquisition.—Under section 671 of the Code of Civil Procedure, a docketed judgment cannot “become a lien” on after-acquired property of the judgment debtor until the property is actually acquired by him.</p> <p>[3] Id.—Liens on After-acquired Property — Equality of Bank.— Under section 671 of the Code of Civil Procedure, there is no priority as between liens created .by the docketing of judgments on real property of the judgment debtor acquired after such docketings, in so far as the order in point of time of such docketings is concerned, since the liens simultaneously attach upon the acquisition of the property.</p> <p>[4] Id.—Different Judgments — Equal Liens — Blow Superiority Acquired—First Issuance and Levy of Execution.—Where there are different judgments which are equally liens upon the lands of the judgment debtor, the judgment creditor who first has issued and levied an execution thereby obtains a lien which is superior to that of the other judgments upon which executions have been subsequently issued, and the first execution so far subordinates the lien of the other judgments that the owners of them may redeem from the sale upon the first execution.</p>

<p>[1] Accident Insurance—Death of Insured from Disease—Policy —Essential to Recovery.—Under .a policy of accident insurance providing for payment for loss of life from bodily injuries, which independently of all other causes are effected solely and exclusively by accidental means, and' providing that the company shall not be liable for any loss caused or contributed to by illness or disease, if disease plays a part in the death of the insured; after an accident, it is essential to recovery that such disease was due to the accident.</p> <p>[2] Id.—Death from Heart Disease — Recovery. — Under such a policy, if the death of the insured was in part caused by heart disease, and such disease was not in fact caused by the accident, there could be no recovery.</p> <p>[3] Id.—Proximate Cause of Death—Sufficiency of Evidence.—In an action to recover on such a policy, where it appeared that the insured was struck by an automobile and suffered a severe concussion of the brain, and that heart disease and appendicitis developed, ■ from the former of which he died, a finding that the proximate cause of death was concussion of the brain is sufficiently sustained.</p> <p>[4] Id.—Existence of Unknown Conditions—Policy not Nullified. The existence of unknown conditions tending to shorten the life of the insured does not' nullify a policy.</p> <p>[5] Id.—Cause of Death—Question for Jury.—The cause of death is a question for the jury, and where there is sufficient testimony in the record to support the conclusion reached by the jury, the verdict and judgment based thereon will not be disturbed.</p> <p>[6] Id.—Judgment—Evidence—Appeal.—Where real and substantial evidence in a case supports a verdict, the judgment will not be set aside on the ground that it was not justified by the proofs. ' '</p> <p>[7] Id.—Construction of Doubtful Provisions of Contract — Instruction.—In an action on such a policy, an instruction that the jury might, in case of doubt in respect to the application, exceptions to, or limitations to liability, adopt the construction most favorable to the plaintiff, was not erroneous, as, thereby giving the jury to understand that if they were in doubt regarding what decision to render in the case, they should find a verdict for the plaintiff, the court elsewhere charging that plaintiff must establish her case by a preponderance of the evidence. x</p> <p>[8] Id.—Proximate Cause of Death-—Belief from Facts—Instruction.—In such action, an instruction that if the jury found “or believed” certain fact's, as to the proximate cause of death, a verdict for the plaintiff would- be justified-, was not erroneous.</p> <p>[9] Id.—Defeat of Claim — Death from Independent Cause — Tn- „ struction.—In such action, an instruction that in order to defeat the claim, the diseased condition of the heart or appendix must have existed in the body of t'he insured at the time of the accident, was not misleading, where the instruction occurred in the course of a long instruction to the effect that if the diseased condition existing at the time of the operation- or autopsy was not concurrent with the injury, or existing prior thereto, and was a natural result of the injury, and that the resulting death was solely due to the bodily injuries, and not to" any independent cause, the verdict must be for the plaintiff.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Chapman & Trefethen, Goodfellow, Bells, Moore & Orrick, S. A. Bailey, William B. Bosley and Garret W. McEnerney for Appellants.</p> <p>Paul C. Morf, H. L. Hagan, City Attorneys, and John J. Earle, Assistant City Attorney, for Respondent.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Pillsbury, Madison & Sutro and A. E. Roth 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>Albert Lee .Stephens, City Attorney, Charles S. Burnell, Assistant City Attorney, and Wm. P. Mealey, Deputy City Attorney, for Appellants.</p> <p>W. W. Hyams, F. E. Davis and Davis & Hyams for Respondents.</p>

PROCEEDING in Certiorari originally commenced in the Supreme Court to annul an award of the Industrial Accident Commission. Affirmed. \ The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Oscar C. Mueller, Alfred Wright, and Wm. W. Lovett, Jr., for Appellants.</p>

<p>[1] Contract — Delivery op Lumber in Payment of Debt — Agreement Between Partnership and Creditor—Subsequent Incorporation of Partnership — Lack op Knowledge of Creditor — Liability for Lumber—Agency.—Where a creditor of a partnership operating a lumber-yard agreed to accept lumber in payment of a firm debt to him, and without his knowledge the firm incorporated after he had received several deliveries extending over a period of months, and the corporation was managed by the manager of the partnership, such partners,were the agents of the undisclosed principal, the corporation, and where settlement was made with them, the creditor is not liable to the corporation for the lumber.</p> <p>[2] Id.—Transfer op Business—Want op Change of Possession—■ Void as to Creditor.—Under such circumstances, the transfer of the lumber-yard business from the partnership to the corporation was void' as to the creditor for want of change of possession as provided by section 3440 of the Civil Code, and the lumber, so far as the creditor was concerned, still belonged to the partnership.</p>

<p>[1] Appeal—Unauthenticated Statement.—A proposed statement on appeal printed in the transcript, but not authenticated in any way, except that there is a minute order printed in the transcript, declining to settle the statement, cannot be considered.</p> <p>[2] Specific Performance — 'Contract for Delivery of Secret Formulas—Uncertainty.—Under the plain language of section 3390, subdivision 6, of the Civil 'Code, which provides that an agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable cannot be specifically enforced, a contract' to deliver the possession of secret formulas in writing for the manufacture of perfumes and toilet articles cannot be specifically enforced.</p> <p>[3] Id.—Employment of Seller of Formulas — Contract not Enforceable.—Under section 3390, subdivision 2, of the 'Civil Code which provides that an -obligation to employ another in personal service cannot be specifically enforced, a contract to deliver secret formulas in writing conditioned on employment of seller of formulas cannot .be specifically enforced, for there is no mutuality of remedy.</p>

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

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

APPEAL fro-m a judgment of the Superior Court of Sonoma County, and from an order denying ■ a new trial. Emmet Seawell, Judge. Affirmed. The facts are stated in the opinion of the court.

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

The facts are stated in the opinion of the court. 'Benjamin E. Page, Arthur C. Hurt and Arthur F. Coe for Defendant and Appellant. Edwin. A. Meserve, Shirley E. Meserve and F. C. Austin for Defendant-Respondent Charles W. Lloyd.

<p>[1] Appeal — Judgment ■—Substantial Conflict in Testimony.—A judgment will not be disturbed on appeal where there is a substantial conflict in the testimony.</p> <p>[2] Basement — Public Highway Across City Block — User—Insufficiency of Evidence.'—In an action by a city to quiet its title across a block of land on the theory that a public highway' had been acquired by user, a judgment in favor of the defendants is supported where there was a failure to show .that there was a user of any definitely delimited portion of the Mock continuously and adversely for five years with the knowledge of the owners or by their consent, direct or implied.</p> <p>[3] Id.—Implied Dedication—Evidence.—Something more than a mere casual user must be shown before any valid dedication will' be implied.</p> <p>[4] Id.—Uninclosed and Uncultivated Land — User by Public— License.—In order to constitute a valid dedication, there must be an intention on the part' of the owner to devote his property to the public use, and while it is true that this intent may be inferred from long acquiescence in a use by the public, yet where land is uninclosed and uncultivated, the fact that the public has been in the habit of going upon the land will ordinarily be attributed to a license on part of the owner, rather than to his intent to dedicate.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Duke Stone for Appellant.</p>

<p>[1] Partnership — Dissolution and Accounting — Temporary Injunction—Preservation of Status Quo—Proper Bemedy.—In a suit for an accounting and for a dissolution of a partnership, a temporary injunction granted in order to preserve the status quo pending the outcome of the case on the merits, is a proper remedy.</p> <p>[2] Injunction—Granting or Befusing—Discretion.—The granting, denying, dissolving, or refusing to dissolve a preliminary or temporary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual ease.</p> <p>[3] Id.—Granting of Temporary Injunction — Denials of Verified Answer—Peculiar Circumstances.—While it may he conceded to -be the general rule that a temporary injunction will not be granted upon the complaint alone, when the defendant filos a verified answer specifically denying all the material allegations of the complaint, yet there may be peculiar circumstances in a case justifying a temporary injunction even in the face of the absolute denials of the answer, and where upon the hearing of the application additional and peculiar circumstances are shown by testimony or by affidavit's, the court, in the exercise of its discretion, may take these circumstances into consideration.</p> <p>[4] Id.—Temporary Injunction—Discretion not Abused.—In a suit for an accounting and for dissolution of a partnership, the court did not abuse its discretion in granting a temporary injunction to preserve the status quo, where defendant’s affidavits admitted the creation of the firm, and then merely set up matter constituting an avoidance of the averment's of the complaint, rather than an absolute denial, and plaintiff filed a counter-affidavit controverting defendant’s affidavits.</p> <p>[5] Id.—Effect of Injunction.—The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy, but merely determines that the court, balancing the equities of the parties, concludes that, pending a trial on the merits, the defendant should or should not be restrained from exercising the rights claimed by him.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of Sam Francisco distributing the estate of a deceased person. Thos. F. Graham, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the Supreme Court. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the Supreme Court. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>The facts are stated in the opinion of the court.</p> <p>Robinson & Robinson, Harry L. Price and J. C. Nichols for Appellant.</p>

<p>[1] Mortgage — Foreclosure — Deficienct Judgment—Insufficient Complaint—Jurisdiction.—In an action for the foreclosure of a mortgage, the failure of the coriiplaint to state facts sufficient to show any liability on t'he part of the defendant for any deficiency that might remain after the sale of the mortgaged premises, does not render the deficiency judgment void for want of jurisdiction.</p> <p>[2] Judgment—Insufficiency of Complaint.—The failure of a complaint to state facts sufficient t'o constitute a cause of action, does not render a judgment void.</p>

<p>The facts aré stated in the opinion of the court.</p> <p>Purington & Adair, McFarland & Irving and Henry Goodcell for Appellant and Cross-defendant The Gage Canal Company.</p>

<p>[1] New Trial—'Hearing of Motion—Judge.—There is no statute or decision which gives to a litigant the right to have his motion for a new trial heard by the judge who tried the ease, the motion not being heard by the judge merely as an individual, but by the court.</p> <p>[2] Action for Cancellation of Deed—Fraud—Pleading—Statement of Facts.—In setting forth a cause of action for the cancellation of a deed because of menace, fraud, and the like exercised upon the grantor, the facts relied upon should be stated.</p> <p>[3] Id.—Undue Influence—Sufficiency of Complaint—Absence of Special Demurrer.—In. an action to cancel certain deeds on the ground of undue influence, an objection to the sufficiency of the complaint for failure to allege that the deeds were procured solely by reason of the stated acts or conduct of the grantee is without' basis, in the absence of a special demurrer, and in view of the averment that the deeds were only made because of such undue influence.</p> <p>[4] Pleading—General Demurrer—Part of Cause of Action.—A general demurrer will not go to a part of a cause of action.</p> <p>[6] Action por Cancellation op Deeds—Fraud—General Allegation—Trial Without Objection-—Eppect op.—Where the pleadings allege fraud in general terms and the parties go to trial without special objection to the allegation of facts and circumstances constituting the fraud, such infirmity of the complaint may not be successfully urged on appeal.</p> <p>[6] Id.—Statute op Limitations.—An action to cancel certain deeds on the ground of undue influence and fraud and for general relief is governed by the five-year period of limitation prescribed by section 318 of the Code of Civil Procedure, and not by subdivision 4 of section 338 of such code.</p> <p>[7] Id.—Pleading—Amendment op Complaint Apter Decision but Prior to Entry op Judgment—Discretion not Abused.—In such an action,, it is not an abuse of discretion to permit an amendment to the complaint after the announcement of t'he decision but before the entry of judgment by striking out the words “and executed” wherever they appeared in the second count.</p> <p>[8] Appeal — Errors op Law — Admission op Evidence ■—Record —Failure to -Show Rulings.—Alleged errors committed during' the trial in admitting evidence cannot be reviewed on appeal, where the record fails to show that there was any ruling made upon the objection to such evidence, or any motion is made to strike it out.</p> <p>[9] Cancellation op Deeds — Insanity—- Undue Influence — Findings.—In an action to cancel deeds on the grounds of insanity and undue influence set up in separate counts of the complaint, a finding against insanity does not necessitate the entry of a formal judgment against plaintiff based thereon, where there was a finding in plaintiff’s favor of the exercise of undue influence.</p> <p>[10] Judgment — Findings — Complaint—- Several Counts.—A judgment entered in a case in which more than one count has been considered need 'have but one set of findings, and -this is the rule even where separate causes of action having some common elements are joined.</p> <p>[11] Deed—Gift from Mother to Daughter — Presumption op Confidential Relationship — Undue Influence — Burden op Proop.— In a case involving a purported gift inter vivos, based upon an alleged consideration of love and affection, where the' donee is a daughter having the control and direction of the aged donor, a strong presumption of confidential relation arises which would place upon the beneficiary in the transaction the burden of showing fairness in dealing and full understanding on the part of the person parting with the property, and in the absence of such showing, the conveyance is presumed to have been obtained by undue influence and to be void.</p>

<p>[1] Sale of Standing Timber — Removal Within Specified Time — -Construction of Instrument.—A written instrument providing that the first party thereto for a money consideration grants and sells to the second party all timber suitable for sawmill purposes standing upon certain land, together with the free use and occupation of the premises for the purpose of such removal, and further providing that the second party shall have six years within which to make such removal and an extension of four years thereafter, if the first party does not sell the land, and in the event the land is sold, that no part of the timber shall he cut or used in the manufacture of timber during said four years, does not convey absolute title to the timber, but only so much thereof as is removed within the ten years.</p> <p>[2] Id.—Recordation of Instrument — Right to Remove Timber — Constructive Notice to Purchaser of Land.—Where such an instrument is recorded, a subsequent purchaser of the land is put upon constructive notice of the provision giving the holder of the instrument the right to remove the timber within the specified period.</p> <p>[3] Id.—Construction of -Contracts.—Contracts for the sale of standing trees to he removed within a specified time have generally been construed by the courts as sales of only so many trees as the vendee might cut and remove within the time -designated, the balance remaining the property of the vendor.</p> <p>[4] Id.—Prevention of Removal by Owner—Extension of Time.— Where the land owner prevents the holder of such an instrument from exercising his right of removal, the period of interruption is to he taken into account and the term extended by operation of law for the time of the interruption.</p>

<p>[1] Appeal&emdash;Order Denying New Trial&emdash;■ Dismissal.&emdash;An appeal from an order denying a new trial is no longer allowed by statute, and an attempted appeal from such an order must be dismissed.</p> <p>[2] Id.&emdash;Alternative Method&emdash;Printing of Record in Briefs.&emdash;An appeal under the alternative method deserves no consideration, where the appellant does not print in his briefs, in accordance with the statutory provisions, such portions of the record as he wishes to rely upon.</p> <p>1.3] Id.&emdash;Alleged Error in Overruling of Demurrer^-Waiver.&emdash;Alleged error in the overruling of a demurrer to a complaint on the ground of uncertainty cannot be availed of on appeal, where an amended complaint is filed, and no demurrer thereto interposed, since only the pleadings upon which the issues were joined may be attacked on appeal.</p> <p>[4] Execution •&emdash; Sale of Personal Property &emdash; View of Purchasers&emdash;Waiver.&emdash;The provision of section 694 of the Code of Civil Procedure which requires that in the ease of an execution sale of personal property capable of manual delivery the property must, be within view of those who attend the sale, is intended for the protection of the judgment debtor, and he may waive his right thereunder if he sees fit to do so, and the removal of the property by the debtor after notice of the sale amounts to such a waiver.</p>

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

Russ Avery, Judge. Reversed. . The opening brief for appellant made the point that the complaint did not allege that the plaintiff had been a resident of the state one year or of the county three months next preceding the commencement of the aetion as required by section 128 of the Civil Code.

<p>The facts are stated in the opinion of the court.</p> <p>Ernest F. Baker, William Weinstein and Jacob Weinberger for Appellants.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Leslie R. Hewitt, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Pledge—Corporation Stock—Future Loans—Notice of Equities of Third Person in Stock — Future Loans not Protected.—A bank to whom corporation stock was pledged for money loaned and for such future loans as might be made, is not protected, as against the rights of a third person who had equities in the stock and of which the bank had knowledge, where the future loans were not the result of the compelling initial loan agreement or necessarily the result of the incidental contractual relations of the parties, it being optional with the bank to make any loans in excess of the original amount.</p> <p>[2] Id.—Pledge of Stock and Execution of Mortgages — Security for Payment of Loan — Interest of Third Party in Stock — Satisfaction—First Resort to Mortgages.—Where a bank loaned money on a pledge of corporation stock and also took mortgages on real property as additional security, and a third person had equities in the stock, the bank was properly required, in view of sections 2899 and 3433 of the Civil ‘Code, to foreclose its mortgages before resorting to a sale of the stock to satisfy the loan.</p> <p>[3] Id.—'Marshaling of Assets—Lien on Two Funds—Satisfaction of Debt.—Where a creditor has a lien upon two funds and another lien upon only one of them, he will be compelled to exhaust the fund upon which he has an exclusive lien and will be permitted to resort to the other for deficiency only.</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>Mott & Dillon, Bradner W. Lee, Bradner W. Lee, Jr., and Kenyon F. Lee for Appellants.</p>

<p>[l] Negotiable Instruments—■ Indorsement — Nature of.—An indorsement of a negotiable instrument is a written contract of which the law declares the effect, and when counted upon, it is the foundation of the action.</p> <p>[2] Id.—Indorsement of Promissory Note — Waiver of Presentment, Demand, and Notice of Protest—Part of Contract With Enlarged Liability.—-the signing by the three indorsers of a promissory note of an agreement on the back of the note waiving presentment, demand, and notice of protest of the note constitutes a part of the written contract of indorsement with an enlarged liability.</p> <p>[3] Id.—Liability of Indorser.—The contract of an indorser, except so far as he qualifies it in writing, is that if the instrument is dishonored, he will, upon compliance by the holder with certain conditions, pay the amount of the note, and therefore constitutes a conditional promise to pay.</p> <p>[4] Id.—Accommodation Indorsers of Note — Waiver of Presentment, Demand, and Notice—Joint Indorsement—Contribution.— The words, “for value received I hereby waive presentment, demand, and notice of protest on the within note,” written above the names of three accommodation indorsers of the promissory note of a corporation, the indorsements having all been made before the delivery of the note, makes the indorsements joint and not successive indorsements, and an indorser who pays more than his one-third share has the right to sue the others for contribution.</p> <p>[5] Id.—Successive Indorsers—Presumption—Parol Proof—Joint Indorsers.—The presumption that where names appear as accommodation indorsers in successive order on the back of a note they are successive indorsers and not joint indorsers may be overcome by parol evidence of an intention to act jointly in the matter.</p> <p>[6] Id.—Accrual of Action for Contribution.—The cause of action for contribution does not accrue at the time of execution of the contract by which persons become joint sureties, but' only when one surety pays more than his share, of the debt.</p> <p>[7] Id .—Nature of Action for Contribution-—The action for contribution is not an action on the contract of indorsement, but is an action to enforce the equitable right of contribution upon the implied -contract of each to the other, that they will share the burden equally.</p> <p>[8] Id.—Consideration for Indorsement of Note—Original Debt.— Where the indorsement is made before the delivery of the note, the original debt is a sufficient consideration for the contract' of indorsement.</p> <p>[9] Id.—Indebtedness Evidenced by Note—Giving of New Note— When not Payment.—A debt evidenced; by a promissory note is not paid by the giving of a new note covering the indebtedness and other indebtedness subsequently accrued, where the new note was neither offered nor accepted as a satisfaction of the original debt, but merely as additional evidence thereof.</p> <p>[10] Id.—Action for Contribution—¡Pleading—Joint Indorsement—• Sufficiency of Complaint.—In an action by an accommodation indorser of a note against another indorser for contribution, the complaint sufficiently alleges a joint indorsement where it sets forth the note and the contract of indorsement in frill, and alleges that the note and the indorsements were executed and delivered at the same time and as one transaction.</p> <p>[11] Pleading—'Statement of Pacts.—A pleading is sufficient if it states the facts upon which the law takes effect; the conclusion of law need not he stated.</p>

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

<p>[1] Lis Pendens—Names of Parties to Action.—Under section 409 of the Code of Civil Procedure, the names of the parties to an action are essential to a proper lis pendens.</p> <p>[2] Id.—Foreclosure of Mechanics’ Liens—Constructive Notice.— A lis pendens is not required in a suit for the foreclosure of mechanics’ liens filed within ninety days, and a purchaser of the land during the pendency of such a suit must be held to have had constructive notice of the pendency of the action.</p> <p>[3] Mechanics’ Liens — Lien of Materialmen — Superiority to Subsequent Deed of Trust.—In view of section 1186 of the Code of 'Civil Procedure, where the construction of a building for which lien claimants furnished materials was begun September 15, 1912, and the claimant's entered into their contract for furnishing such materials on October 1, 1912, and furnished materials between that date and January 15, 1913, the liens of the claimants attached about September 15, 1912, and were superior to a trust deed dated October 21, 1912.</p> <p>m Summons—Appearance—Waiver of Defects.—A defendant in am action cannot claim that he was never properly served with summons and that the court never acquired jurisdiction of Mm where he appeared and demurred to the complaint.</p> <p>[5] Id .—Names of Parties—Statement in Title of Summons.—A summons is not subject to attack for failure to include the names of all the defendants in the action in the title of the summons, where all of such names are given in the body of the summons.</p>

<p>[1] Inheritance Tax—Transfers “In -Contemplation of Death”— Finding Unsupported by Facts.—On this appeal from a decree fixing an inheritance t'ax upon personal property, disposed of by a deceased person during his lifetime, the facts do not support the finding that the transfers in controversy were made in “contemplation of death” within the meaning of the inheritance tax law of 1905 (Stats. 1905, p. 341), whether the statute be considered' and construed separately and solely in the light of its own language, or with the aid of the amendments thereto wherein the phrase, “in contemplation of death,” is defined to mean that expectancy of death which actuates the mind of a person on the execution of Ms will, and not merely that expectancy of death which actuates the mind of a person in making a gift ccmsa mortis.</p> <p>[2] Id.—Property Subject to Tax—'Burden op Proof.—The burden of showing that a transfer is subject to a collateral -inheritance t'ax is upon the state.</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>[1] Guardianship op Minors — Unfitness of Father— Conduct at Termination of Proceeding — Confirmation of Finding.—Upon an appeal by the father of certain minors from an order appointing a brother of their deceased mother their guardian, and denying the father’s petition, the finding that ¡the father was 'not a fit and proper person to have their custody- was amply confirmed by his conduct in" assaulting the brother and attempting to assault the brother’s wife immediately after the judge announced his decision, and had adjourned court.</p> <p>[2] Id.—Frivolous Appeal.—The case having been reopened and evidence of the assault received, the appeal is frivolous and a penalty should be imposed.</p>

<p>[1] Sale of Pump—Failure to Perform Work—'Excessive Quantities of Sand in Water — Finding Supported bt Evidence.—In this action to recover the money paid on account of the purchase price of a pump installed by the defendant in a well dug by the plaintiff, on the ground of breach of warranties, it is held the finding that the failure of the pump was due to the presence of large and extensive quantities of sand, gravel, clay and substances other than clear water given up by the well, which it was expressly agreed in the written contract for the purchase and installation of the pump the seller should not be held liable for, is supported by the evidence.</p> <p>[2] Appeal—Review of Errors of Law—Specification in Brief.— Alleged errors of law in rulings upon the introduction of testimony will not be reviewed] on appeal, where not specifically argued in the brief, since the burden is upon the appellant to show prejudicial error.</p>

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

<p>[1] Principal and Agent—Authority to Collect Bents—Payment in Negotiable Paper—Authority to Indorse not Implied.—Authority to collect rents does not imply authority to indorse negotiable paper received in payment'.</p> <p>[2] Id.—Indorsement op Negotiable Paper — Implied Authority.—• The authority of an agent to indorse negotiable paper is a very responsible power, not lightly to be presumed or implied.</p> <p>[3] Id.—Test op Authority.—The power of an agent to indorse commercial paper for his principal must be a necessary implication from an express authority conferred upon such agent.</p> <p>[4] Id.—Collection and Transmission op Bentals — Authority to Indorse Checks.—Where an agent had authority to deposit all rents collected by him in his personal- account, for the purpose of remitting the same to his principal by his personal check, such authority carried with it the power essential to that' course of business, namely, the indorsement for deposit of cheeks made payable to the principal where such were collected.</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>[1] Promissory Note — Action for Cancellation — Description of Note—(Pleadings—Judgment—Presumption on Appeal.—In an action in equity to cancel a promissory note alleged to have been paid and of which the defendant had possession, the plaintiffs cannot contend on appeal from the judgment that the note described therein was not the one referred to in any of the pleadings or in the findings because the payees are described in the judgment as defendant and another person, where the complaint does not mention by name the payee or payees, and where none of the testimony appears in the transcript, since it must be assumed in favor of the regularity of the judgment that the note therein described is the one in regard tt> which the.parties litigated.</p> <p>[2] Id.-t-Cross-complaint for Conversion — Joinder of Issue and Trial Without Objection—Appeal.—In such action, the plaintiffs cannot contend on appeal that a cross-complaint for conversion of certain merchandise was improperly set up in such action, where issue was joined thereon and trial had without demurrer or objection.</p>

<p>APPEAL from a' judgment of the Superior Court of the City and County of -San Francisco. Daniel C. Deasy, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p> <p>Redding, Boalt & Pier, John T. Ryan, Joseph D. Redding and Fletcher G-. Flaherty for Appellants.</p>

<p>[1] Attachment—Action Ex Delicto.—An attachment will not lie in an action ex delicto for fraud.</p> <p>[2] Id.—Legal or Equitable Nature of Action Immaterial.—Under subdivision 1 of section 537 of the Code of Civil Procedure, which provides for the issuance of an attachment in an action upon contract, express or implied, for the direct payment of money, it is immaterial whether the action "be regarded as strictly legal or strictly equitable or partly legal and partly equitable, if the purpose of the action is the recovery on such a contract.</p> <p>[3] Id.—Action for Bent—Fraudulent Transfer of Assets by Corporation Lessee—Nature of Action—Bight to Attachment.— An action to recover rent under a lease from a corporation to whom the original corporation lessee had assigned all of its assets except the lease, is not converted from an action on an express contract for the direct payment of money into an action ex delicto for fraud -and the plaintiff deprived of the right t'o a writ of attachment under subdivision 1 of section 537 of the Code of Civil Procedure, by reason of the allegation of facts showing not only that the transferee took the assets as part' of a. scheme to defraud creditors, but that it was in fact the original debtor masquerading under a different name.</p> <p>[4] Id.—Prayer of Complaint—Omission to Ask for Money Judgment—Cause of Action not -Changed.—In such action, the omission. to ask in the prayer of the complaint for a money judgment, did not have the effect of making the action one ex delicto for fraud, where it was asked in the prayer that it be decreed that defendants hold the transferred property charged with the payment of plaintiff’s claim, with interest and- costs, and that the property be sold in payment thereof.</p> <p>[5] Corporations—Beorganization—Liability for Debts of Former Corporation.—Where a corporation reorganizes under a new name but with practically the same stockholders and directors, and continues to carry on the same business, a court of equity will regard the new corporation as a continuation of the former corporation, and will hold it liable for the debts of the former corporation.</p> <p>[6] Action for Bent—Pleading—Parties—Former Corporation Unnecessary Defendant.—In such action it is unnecessary to make the former corporation a party defendant.</p> <p>[7] Attachment—Nonresident Defendant—Affidavit—Averment of Nonresidence—Construction of Code.—It is not necessary within the meaning of sections 537 and 538 of the Code of Civil Procedure that in every case of a nonresident defendant, the fact of non-residence must be averred in the affidavit on attachment, since under subdivision 1 of the former section, it is the nature of the cause of action against' such a defendant rather than the fact of his residence that controls, and it is only in those cases wherein the cause of action is one contemplated by either subdivision 2 or 3 that it is necessary to aver that the defendant is a nonresident.</p>

<p>[1] Street Law — Signing of Contract on Behalf of Owner — Authority—Sufficiency of Evidence.—In this action to foreclose a mechanic’s lien upon certain lots for street work done under private contract, it is held that the finding that the owner of the lots was bound by the signature of the person signing the contract on Ms behalf, is sustained by the evidence, which showed a ratification by the owner.</p> <p>[2] Principal and Agent—Ratification of Act of Agent—Lack of Full Knowledge — Liability of Principal.—The lack of full’ knowledge does not protect a principal who is willfully ignorant, and deliberately chooses to act without such knowledge, as where, knowing that he is ignorant' of some of the facts, he has such confidence in his agent that he is willing to- assume the risk and ratify the act without making inquiry for further information than he at the time possesses, or where he intentionally and deliberately ratifies without full knowledge, under circumstances which are sufficient to put a reasonable man upon inquiry.</p> <p>[3] Street Law—Lien—Creation by Law.-—The lien for the contract price for work done upon a, public street is created by law, and a contract providing for liens “as provided by section 1191 of the Code of Civil Procedure of the state of -California,” by reference makes the law concerning Mens for work done on public streets a part -of the contract.</p> <p>[4] Id.—Private Contract for Street Work—Writing not Essential.—Contracts for the performance of work upon public streets by private contract need- not be in writing.</p> <p>[5] Id.—Parol Ratification of Contract.—Ratification of the act of signing a contract for street work on behalf of the owner of lots may be made by the owner by parol, notwithstanding the contract provided for a lien for the value of the work.</p>

<p>[1] Corporations—Donation op Stock to 'Corporation—Collateral Attack bt purchaser—Eight op Creditor.—Where a corporation issues all of its capital stock and thereafter a donation back to the corporation is made of certain shares by those stockholders whose shares were issued to them for property, purchasers of a part of such returned st'oek cannot contend as against a creditor of the corporation that the stock issued to them was an overissue of treasury stock.</p> <p>[2] Id.—'Sale of Stock for Money—Purchase Price Less Than Par Value — Measure of Stockholder’s Liability to Creditors.— Where stock is sold for money and the purchase price is less than the par value of the stock, the difference between the par value and the amount' actually paid is the measure of the stockholder’s liability to creditors, as to unpaid subscriptions.</p> <p>[3] Id.—Issuance of Stock fob Property of Uncertain Value — Fictitious Valuation — Constructive Fraud on Creditors. — Where the stock is not sold for cash but is issued for real or personal property having no generally defined value, the rule is that where the corporation and stockholder have agreed upon a given valuation for the property transferred, such valuation is binding and conclusive unless it is fraudulent in purpose or effect. But if the parties have put upon the property a valuation in excess of what they knew or believed to be its true value, this is a constructive fraud upon the creditors and the stock will be deemed paid only to the extent of the actual value of the property received in exchange for it..</p> <p>[4] Id.—Applicability of Pule to Mining Corporations — South Mountain Mining Company Case Overruled.—The rule enunciated in Serrón v. Shaw, 165 Cal. 668, and Sarrison v. Armour, 169 Cal. 78*7, that stockholders of a corporation are liable to creditors for the difference between the value of property exchanged for stock and the par value of the stock, is a general rule applicable to all classes of corporations, and the rule stated In re South Mountain Consolidated Min. Co., 7 Sawy. 30, excepting its application in the cases of certain classes of mining corporations, no longer properly expresses the law in force in this state.</p> <p>[5] Id.—Action on Stockholder’s Liability—Mining Corporation— Belief of Corporators as to Value of Property Beceived for Stock—Evidence.-—-In an action -by a judgment creditor of a mining corporation to recover of certain stockholders who had purchased shares of stock from the corporation which had been donated back to it by certain stockholders, evidence should have been received at the trial bearing on the belief of the corporators as to •the value of the property, to the end that it might have been determined what that belief was, and whether it was in fact' honest and intelligent.</p> <p>[6] Id.—Actual Value of Property—Proper Standard.—In such action, a finding of value of the property at the time of the transfer to the corporation based upon -prospective earning power as determined at a time subsequent to the transfer, is not the proper standard, since it was the duty of the court to determine the value by ascertaining as nearly as possible what a reasonably prudent investor who contemplated spending his own money would- have been willing to pay for the property under the circumstances under which the corporators acted on the date of the transfer.</p>

<p>[1] Foreign Judgment—Recital op Jurisdictional Facts—Impeachment.—A recital in a foreign judgment of facts sufficient to give the court jurisdiction can he impeached by a bare preponderance of evidence of a nature of necessity inconsistent with the recital.</p> <p>[2] Id.—Estates op Deceased Persons—Will -Contest—Collateral Attack upon Foreign Judgment in Divorce Action — Affidavit for Constructive Service op Summons — Impeachment op Recital—Finding Supported by Evidence.—In this contest to the probate of a will involving a collateral attack on a foreign judgment of divorce for want of jurisdiction because of the absence of a sufficient affidavit for the publication of the summons, it is held, notwithstanding the recital in such judgment that service of summons by publication had been ordered “upon due and proper affidavits,” the evidence supports the finding that but one affidavit was filed, which was insufficient.</p> <p>[3] Id.—Matters Occurring After Alleged Divorce—Testimony of Former Spouse.—In a contest to the probate of a will between t'wo persons, both of whom claim to be t'he surviving husband of the testatrix, the contestant who seeks to establish the -validity of a de- „ cree of divorce between the proponent and- the deceased, cannot object to the introduction of testimony of the testatrix as to matters occurring after -the alleged divorce on the ground that such testimony -was privileged under section 1881 of the Code of Civil Procedure.</p> <p>[4] Id.—Communications Between Husband and Wife — Act of -Communicating — Testimony Permissible —■ Statute.—The provision of section 1881 of the Code of Civil Procedure that neither husband nor wife can, even after the termination of the marriage, be examined, without the consent of the other, as to any communication made by one to the other during the marriage, does not prohibit testimony, the purpose of which is to show the act of communicating and not the disclosures involved in the communications.</p> <p>[5] Id.—Void Judgment — Want of Jurisdiction — Laches—Statute op Limitations.—The 3,-oetrine of laches and- the bar of the statute of limitations have no application to a collateral attack upon a foreign judgment based on want of jurisdiction.</p> <p>[6] Id.—Attack upon Void Judgment—- Rule.—A judgment absolutely void may be attacked anywhere, directly or collaterally, whenever its presents itself, either by parties or by strangers.</p> <p>[7] Id.—Will Contest—Collateral Attack upon Foreign Judgment —Eight op Proponent.—Where the probate of the will of a testatrix was contested by one claiming to be her surviving husband on the ground that the instrument was executed prior to their marriage and was thereby revoked, and the contest was opposed by one also claiming to be the surviving husband of the testatrix on the ground that' she had never been legally divorced from him, the proponent was entitled to attack the foreign judgment in the action for divorce on the ground that it was void for want of jurisdiction because of the absence of a sufficient affidavit for publication of the summons.</p>

<p>[1] Action for. Foreclosure—Pleading—Denial of Allegation of Adverse Claim—Issue not Raised.—In an action for the foreclosure of a mechanic’s lien, the averment that the defendants claimed some interest or estate in the property but that said claims were subject and subservient to plaintiff’s claim, was not material to plaintiff’s cause of action and the denial of such an averment raised no issue.</p> <p>[2] Id.—Claim of Adverse and Superior Right—Practice.—Where in an. action for the foreclosure of a mechanic's lien the complaint alleged that the defendants claimed some interest or estate in the property but that said claims were subject and subservient to plaintiff’s claim, and the answer admitted that the defendants had and claimed to have some interest in the property and alleged that such interest was prior and-superior to that of plaintiff, the proper course of the trial court was to dismiss the defendants from the suit, or specify in the decree that the decree was made without prejudice to the' adverse rights of the defendants.</p> <p>[3] Id.-—Evidence—Burden of Proof—Erroneous Judgment.—In an action for the foreclosure of a mechanic’s lien, where the complaint alleged that the defendants claimed some interest or estate in the property but that said claims were subject to and subservient' to plaintiff’s claim and the answer of certain defendants alleged their claim was prior and superior to that of plaintiff, the burden of proof was upon defendants to establish their prior claim, and where they introduced no evidence upon the subject of their interest or title, the portion of the judgment adjudicating plaintiff’s lien to be subsequent to the interest of such defendants was erroneous.</p>

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

<p>APPLICATION for a Writ o-f Habeas Corpus originally made to the Supreme Court. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County refusing partial distribution in the matter of the estate of a deceased person. James C. Rives, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco' refusing to revoke an order admitting .probate of will. John Hunt, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of San Diego County of partial distribution of the estate of a deceased person. W. A. Sloane, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

PROCEEDINGS on Certiorari to review and annul certain proceedings culminating in a judgment entered by the Superior Court of Napa County convicting the petitioner of contempt of court. Judgment affirmed. The facts are stated in the opinion of the court.

<p>[1] Guardian and Ward—Account—Charge With Entire Interest in . Note—Order Settling Account—Guardian 'Concluded by.— Where a wife, as the guardian of the person and estate of her husband, an incompetent person, charged herself in her final account ■with the whole of a promissory note as belonging to the estate, in which she owned a one-half interest, the order of the court settling the account and directing the guardian to turn over the balance of the estate to the legally appointed administratrix of the estate of the deceased incompetent, was an adjudication against her of the fact that the estate of her deceased husband, and not herself, was the owner of the -note and of the whole thereof, and in the absence of an appeal' such order was conclusive and cannot be collaterally attacked.</p> <p>[2] Id.—' Death or Insane Person—Settlement or Account or Guardian—Jurisdiction.—Under section 1774 of the Code of Civil Procedure a court has jurisdiction in a guardianship proceeding of an insane .person to settle the account of the guardian after the death of the ward. ></p>

<p>[1] Workmen’s Compensation Act — Injury to Minor Employee — Violation op Warning Sign — Lack op Knowledge op Possible ¡Consequences prom Disobedience — Right to Compensation.— Where a young man-nearly eighteen years of age while wiping the vertical shaft of a drilling-machine when it was slowly revolving, in violation of a printed' warning against the wiping of the machine in motion, made a dive with Ms cloth at a stream of grease running down the framework of the machine and had Ms hand drawn into the machine resulting in the loss of two fingers, the finding of the commission that “neither of the acts of cleaning said drill nor wiping said shaft was intentionally and deliberately disobedient; that neither of said acts was an act of serious and willful misconduct,- and the said injury was not caused by the serious and willful misconduct of the employee,” is justified, in view of the evidence that the applicant, while he knew of the existence of the warning sign, did not know of the consequences likely to result from disobeying it.</p> <p>[2] Id.—Average Annual Earnings of Injured Minor — Basis of Compensation.—Computation of the average annual earnings of an injured minor based not upon the probable wage of the minor at the time he should reach the age of twenty-one years, but upon that which he would be likely to earn within a reasonable time after attaining the age of twenty-one years, is not justified by the statute.</p>

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

<p>[1] Workmen’s Compensation Act—Eights of Applicant for Compensation—Law in Force at Time of Injury.—The rights of an applicant for compensation under the Workmen’s Compensation Act must be measured by the act in force at the time of the injury.</p> <p>[2] Id.—Willful Misconduct—Determination of -Question—Jurisdiction of Commission.—The determination as to whether or not the described actions of an employee amount to willful misconduct goes to the jurisdiction of the Industrial Accident Commission.</p> <p>[3] Id.—Willful Misconduct Defined.—-Willful misconduct means something more than negligence, and does not include every violation or disregard of a rule, but it cannot be doubted that a workman who violates a reason-able rule made for his own protection from serious bodily injury or death is guilty of misconduct and that where the workman deliberately violates the rule, with knowledge of its existence and of the dangers accompanying its violation, he is guilty of willful misconduct.</p> <p>[4] Id.—-Injury to Minor Employee—Beaching of Hand into Moving Press—Violation of Bule—Sudden Impulse—Bight to Compensation.—Hnder the Workmen’s Compensation Act,, an employee of the age of twenty years who was injured while operating a printing-press ¡by having his hand caught between, the bed of the press and the platen in reaching into the machine when in motion to remove some fallen cards, was not guilty of willful misconduct, notwithstanding warning had been given him to- never reach into the machine in motion, where it appeared that at the rate of the running of the press, the operator upon seeing a card fall was given but the smallest degree of time for determination as to whether or not he should reach for the same.</p> <p>[5] Id.—Average Weekly Earnings of Injured Employee—Basis of Computation.—Under section 17c of the Workmen’s Compensation Act, the Industrial Accident Commission has no power in the ease of an injury to an employee in his twenty-first year to compute the compensation on- the basis of probable wages which the employee might obtain long after reaching the age of twenty-one years, since the word “after” as used in such section providing “if the injured employee is under twenty-one years his average weekly earnings shall be deemed to be the weekly sum that under ordinary circumstances he would probably be able t'o earn ‘after” attaining the age of twenty-one years,” means “at” the age of twenty-one years.</p>

<p>[1] Estates op Deceased Persons—Will—Contingency op Death Prior to Testatrix—Intestacy.—A will entirely written, dated, and signed by the hand of the testatrix and almost entirely written in the Danish language requesting that in the event of her death the will he sent to her brother, and that should he be dead, then her brother’s daughter and her deceased sister’s daughter should together sell all the property of the testatrix and divide it equally between the children of her deceased sister, and then providing for two specific money bequests to a niece and to a friend, makes the division of the property among the children of the deceased sister conditional upon the death of the brother before the death of the testatrix, and where the brother survived the testatrix the two specific bequests constituted the only effective disposition made by the will and as to the remainder of the estate the testatrix died intestate.</p> <p>[2] Id.—Construction op Wills — Intestacy not Favored. — Constructions of wills leading to intestacy, total or partial, are not favored and will he rejected when the language used reasonably admits of a construction that renders the will effective as to all the property of the decedent.</p> <p>[3] Id.—Intent op Testator — Language op Will.—While the language used in a will must be liberally construed with a view to carrying into effect what the will as a whole shows w-as the real intent of the testator, this intent must be found in the language, taking into view in cases of uncertainty arising upon its face the circumstances under which it was made.</p> <p>[4] Id.—Construction Based on Conjecture Prohibited.—Courts are not permitted, in order to avoid a conclusion of intestacy, to adopt a construction based on conjecture as to what the testator may have intended," although not expressed.</p>

<p>[1] Negligence—Malpractice op Physician—Besetting Broken Leg —Evidence — Treatment op Original Eracture.—In an action against a physician and surgeon to recover damages for alleged negligence in the performance of a surgical operation upon the plaintiff in- resetting a broken leg, evidence relative to the original fracture, its treatment by defendant, and the progress and process of healing was -admissible to the end that it might be determined whether or not the methods resorted to by the defendant in resetting the leg were of a nature which an ordinarily skillful surgeon would have given to a leg in such a condition.</p> <p>[2] Id.—Statute of Limitations.—Such an .action is not barred by subdivision 3 of section 340 of the Oode of Civil Procedure where commenced within one year of the date of the resetting, although more than one year after the date of the setting of the original fracture.</p> <p>[3] Id.—Physicians and Surgeons — Proper Treatment—'Expert Testimony.—Negligence on the part of a physician consists in Ms doing something which he should not have done, or in omitting to do something which he should have done, and what is or is not proper practice in examination and treatment, or the usual practice and treatment, is a question for experts and can be established only by their testimony. •</p> <p>[4] Id,—Lack op Care and Skill—Insufficiency of Evidence.—In •this action it is held the evidence wholly fails to show any lack of care and skill on the part of defendant in setting and treating the fractured hone of plaintiff’s leg.</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>[1] Appeal — Judgment — Partial Assignment to "Counsel — Compromise Without Knowledge—Bight to Prosecute Appeal.—An appeal from a judgment and order denying a new trial in an action for damages for personal injuries will not be dismissed on the ground that the controversy had been compromised, where the compromise was made by the parties themselves and without the consent of respondent’s counsel, who held' an assignment of an undivided one-half interest in the judgment, and the appellant had notice of the assignment prior .to the compromise.</p> <p>[2] Negligence—Injury to Train Conductor—Time op Collision— Evidence—Stopping op Watch op Passenger.—In an action to recover damages for personal injuries alleged to have been sustained by a conductor in a railroad wreck -when two trains of the defendant company collided, the admission of testimony concerning the stopping of the watch of one of the passengers on the wrecked train, for the purpose of showing the time of the collision, was not error.</p> <p>[3] Id.—Evidence—Effect of Syphilis—Limitation of Bedireot Examination.—In such action, where a witness called by the defendant had already gone into the general subject of syphilis and its effects exhaustively on direct examination, it cannot be held that a refusal by the court on redirect examination to allow further testimony concerning the effect of syphilis constituted error, even though the inquiry was relevant and -the question properly framed.</p> <p>[4] Id.—Future Damages—Erroneous Instruction—Use of Phrase “Seasonably Probable.”—In such action, an instruction that if the jury should find that the plaintiff’s injuries are permanent and will to some extent disable him in the future and cause him pain and suffering hereafter he should he allowed such further sum, as paid now in advance, will reasonably compensate him for such further disability, pain, and suffering, as the evidence shows is “reasonably probable” will result to him in the future, not to exceed in all the amount alleged in the complaint, is erroneous, since the use of the expression “reasonably probable” might well have led the jury to believe it would be .proper to allow damages for suffering or other injury which .the jury believed the plaintiff would probably suffer in the future, instead of for such suffering and injury as they believed were certain to result.</p> <p>[5] Id.—Misconduct of Court—Comment upon Wife’s Testimony— Physical Condition of Plaintiff — Admonition to Jury — Lack of Prejudice.—In such action, a remark of the court addressed to counsel in the presence of the jury that he would rather take the wife’s .testimony concerning the physical condition of the plaintiff than all the physicians in the world, was improper, but without prejudice, where the jury was admonished not to consider for any purpose any comments of the court made to counsel during the trial upon testimony or .the relative weight of the testimony of any witness.</p> <p>[6] Id.—Interpretation of Bulbs of Defendant — Belative Duties of Plaintiff and Train-dispatcher — Evidence—Opinions and ■Conclusions of Witnesses.—In such action, the admission of opinions andi conclusions of certain witnesses in the interpretation of the printed operating rules of the defendant, the application of the rules, the duty of the train-dispatcher under the rules, the priority of one rule over another, as to. which of two trains was superior, and the relative duties of the plaintiff and train-dispatcher, was prejudicially erroneous, since if the rules required elucidation, it was the duty of the court to interpret them.</p>

<p>[1] Public Nuisance—Obstruction of Public Highway—Abatement by Private Person—Pleading—Insufficient Complaint.—In an action to secure a judgment decreeing the existence of a public highway over the lands of the defendant and to enjoin the defendant from obstructing the same, the complaint fails to state a cause of action where it is alleged that the way in question is a public highway, and there is a failure to allege that the highway eonsti-. tutes the only mode of ingress and egress to and from plaintiff’s lands.</p> <p>[2] Id.—Abatement of Public Nuisance—'Private Action.—If an obstruction which is wrongfully erected and maintained in a public highway constitutes a nuisance which injuriously affects a private person equally in common with the public at large, a private .action may not be maintained to abate the nuisance. It is only where the free use of the property of a private person is interfered with by such an obstruction that he may have his private action, to abate the nuisance resulting therefrom.</p> <p>[3] Id.—Special Injury—Evidence—Highway as Only Convenient Route.—In, such action, evidence to the effect that the highway constituted plaintiff’s only convenient mode of ingress and egress, but that there was another route available over other public highways which he sometimes used), is not sufficient to support a finding of special injury.</p>

<p>[1] Banks and Banking — Action to Recover Amount op Draft — Authority op Bank to Pay—Erroneous Exclusion op Evidence. In this action by a corporation bank depositor to recover the amount of a draft drawn on a partnership, but paid by the bank out of plaintiff's deposit, the trial court’ erred in not permitting the bank to show that plaintiff authorized the transaction in order to pay the partnership for certain material.</p> <p>[2] Id.—Authority por P’ayment—Evidence.—In such action, the minutes of the board of directors of the plaintiff did not constitute ■the only evidence admissible for the purpose of showing authority for the payment of the sum by the bank out of the plaintiff’s funds.</p> <p>[3] Id.—Ostensible Authority op Corporation Officers—Rights op Third Persons.—If a corporation allows its officers to conduct its business and third persons act upon the apparent authority thus shown, it cannot defeat the rights of such persons arising from transactions done and completed under such ostensible authority by failing to enter upon its minutes any order giving its officers authority to act.</p>

<p>[1] Parent and Child — Presumption of Legitimacy — Rebuttal.— The -presumption under section 194 of the Civil Code that a ehildi bom within ten months after the dissolution of the marriage of the mother is legitimate can be overcome only by proper and sufficient evidence showing that the husband was impotent, or that he was entirely absent from his wife during the period when the child must have been begotten, or that he was present with his wife only under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse.</p> <p>[2] Estates of Deceased PIersons — Contest of Heirship — Legitimacy of -Children—-Impotenoy of Husband—Instruction.—In a contest on final distribution of an estate involving the legitimacy of twin children boro t'o the surviving wife of the deceased after his death, the refusal to give concise and specific instruction that if the jury found the deceased impotent their verdict should he against such children, was not prejudicial error, where the issue was covered in given instructions, although not so clearly and definitely stated, and the jury could not fail to understand both the issue and its effect.</p> <p>[3] Opportunity for Intercourse.—The fact that the husband and wife, although separated, met and had opportunity for intercourse, is not conclusive as to the legitimacy of children boro to the wife, and evidence of the relations and feelings between the parties is admissible to rebut any inference that they had- intercourse when they met.</p> <p>[4] Parent and Child—Rebuttal of Legitimacy of Children—True Rule.—If it is possible by the laws of nature for the husband ' to be the father (that is, if there was coition and no ' impotenoy), no inquiry will be permitted into the probabilites o£ the ease one way or the other, but the presumption of legitimacy is conclusive; and, on the other hand, it is always permissible to show that it was not possible by the laws of nature for the husband to be the father, as by showing impotency on his part, want of intercourse during the possible period of conception, or that the child is of a race or -color such that it could not have been conceived by the husband.</p> <p>[5] Id.—Impossibility of Paternity—Evidence.—The fact that it was not possible by the laws of nature for the husband to- be the father, where that fact is in issue, is to be inquired into in the same manner as amy other fact which is the subject of judicial inquiry, and any competent evidence relevant to the question is admissible as in other cases, it being the rule, however, in California, that neither the husband nor the wife is competent to testify to lack of intercourse.</p> <p>[6] Id.—Degree op Proof.—The rule that the presumption of legitimacy is conclusive if it were possible by the laws of nature for the husband to be the father docs not require that the proof of the fact of such impossibility must itself be beyond possibility of doubt.</p> <p>[7] Estates op Deceased Persons — Contest op Heirship — Legitimacy op Children—Evidence—Want op Opportunity por Intercourse.—In a contest upon the final distribution of an estate involving the legitimacy of twin children born to a married woman, the court properly refused to confine the evidence of illegitimacy to a showing that the mother and her husband met only under circumstances which did not afford- an opportunity for intercourse.</p> <p>[8] Id.—Evidence op Birth op Prior Illegitimate Child—Effect op Former Contrary Decision—Law op Case.—Evidence merely that the wife had given birth to a prior illegitimate child is inadmissible, but evidence of such fact, when coupled with evidence that the husband knew of the fact, is admissible where husband and wife have separated but have met from time to time, for the purpose of showing, the relationship and feeling between them, and rebutting any inference that intercourse took place between them on the occasions when they met. In the present ease, however, the rejection of such evidence was not error, in view of the ruling on the previous appeal that it should be rejected, which ruling became the law of the case.</p> <p>[9] Id.—Parentage op Children—Construction—evidence.—In such a contest, a refusal to permit evidence of intercourse by the wife with another than her husband was correct, since the evidence was properly confined to proving nonintereourse with the husband, and on that issue evidence of relations by the wife with others was wholly immaterial. A refusal at the same time to instruct the jury that it was not necessary to find who was the father of the children, if the mother’s husband was not, was not prejudicial, since the jury were explicitly instructed that the only question they were to determine was whether or not the children were the children of •their mother’s husband, and the jury could not have been misled into conceiving it to be their duty to find the husband to be the father unless they could determine the identity of the man who was.</p> <p>[10] Id.—Rebuttal op Presumption op Legitimacy—Degree op Proof —Instruction.—An instruction that the presumption of legitimacy can be overcome only by clear and satisfactory proof is a correct statement of the law.</p> <p>[11] Id.—Interlocutory Decree of Divorce—Effect of—Erroneous Instruction.—In. such a contest, an instruction that the interlocutory decree of divorce ¡which was admitted, was entitled to little weight was error, as being an instruction as to the weight of the evidence, but the error was without prejudice in view of the other instructions given-.</p>

PROCEEDINGS on Certiorari to review an award of the Industrial Accident Commission. Affirmed in part, annulled in part. The facts are stated in the opinion of the court. William B. Bosley and John P. Coghlan for Petitioner in S. F. No. 8910.

<p>The facts are stated in the opinion of the court.</p> <p>Harry A. Hollzer, W. W. Butler and Frank P. Peering for Appellant.</p>

<p>[1] Water Eights—Verbal Agreement for Ditch—Agency for Owners—Evidence.—In this action to prevent defendant from interfering with a ditch running through his land and which furnishes water for irrigation of plaintiffs’ lands, it is held from an inspection of the typewritten transcripts, the findings, and the opinion of the trial court that the third parties who entered into a verbal agreement with defendant’s predecessor and plaintiffs for rights of way for the ditch .were the agents of all the parties, securing from said predecessor the right to construct the ditch and supply water to the lands below, and communicated that consent to the owners of such lands, who, for the purpose of securing the benefits promised, joined) in the construction and gave the right of way through their respective premises.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank C. Hoyt, Henry Wetherhorn and Charles J. Kelly for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gibson, Dunn & Crutcher and Norman S. Sterry 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>[1] Negligence — -Crossing of City Street — Duty of Pedestrian.— There is no positive duty to stop, look, -and listen when a pedestrian is about to cross a city street.</p> <p>[2] Id.—Ordinary Care of Pedestrian — Examination in Light op Attending Ciroumstances.—The question of negligence, under the usual rule of ordinary care that devolves upon foot-travelers, must be examined in the light of all the attendant circumstances, one of which may be the knowledge of the existence of a statute or an ordinance prescribing certain fixed regulations for observance by automobile drivers.</p> <p>[3] Id.-—Personal Injuries—Collision of Automobile Witií Pedestrian—Conduct of Plaintiff—Question for Jury.—In an action for damages for personal injuries sustained by a pedestrian on a city street from being struck by an automobile while attempting to board a street-car, it was a question for the determination of the jury as to whether plaintiff in observing the approach of the automobile was warranted in relying upon a compliance by defendant with the requirements of an ordinance of the city requiring automobiles traveling behind street-cars to stop ten feet in the rear of the ears when they stopped to take on or let off passengers.</p> <p>[4] Id.—Passing of Street-oar by Automobile — Municipal Ordinance—State Motor Vehicle Act—Instruction.—In such action, there was no error in giving an instruction embodying the regulatory provisions of a city ordinance that an automobile traveling behind a street-ear should stop ten feet in the rear of the ear when the car stopped t'o let off or take on passengers, on the theory that the State Motor Vehicle Act of 1913 was controlling upon the subject, which only requires that the driver of an automobile in passing a street-car shall operate the vehicle with due care and caution and shall bring it to- a full stop if reasonably necessary to the safety of passengers alighting from or boarding such street-ear, since such ordinance is not inconsistent with the state law.</p> <p>[5] Municipal -Corporations—Power to E'nact Additional Regulations to State Daw9¿—Where the legislature has assumed to regulate a -given course of eoriduet by prohibitory enactments, a municipality with subordinate power to act in the matter, may make such new and additional regulations in aid and furtherance of the purpose of the general law as may seem fit and appropriate to .the necessities of the particular locality and which are not in themselves unreasonable.</p> <p>[6] Motor Vehicle Act — Extension of Operation to Gitt Street Traffic—Purpose of Legislature.—The legislature by extending the operation of the Motor Vehicle Act in terms to the traffic upon city streets did no more than to prescribe obviously necessary safeguards for travel upon such streets viewed as part of the public highways of the state in which all of the people of the state are essentially interested, and it did not thereby intend to prohibit the enactment of such new and additional police regulations in furtherance of the purpose of the act as might appear reasonable, and proper in a given locality.</p> <p>[7] Id.—Eight of Plaintiff to Eecover—Injuries from Violation of Ordinance—Instruction.—In such action, an instruction to the effect that if the jury believed defendants violated the ordinance and that “by reason thereof” plaintiff sustained injuries, then they should find for the plaintiff, if they should further find that at the time the plaintiff was in the exercise of reasonable care with regard to her own safety, was not prejudicially erroneous, where from the instructions as a whole it was shown that the jurors were fully advised as to the necessity for finding that plaintiff’s injuries resulted from defendants’ conduct as the proximate cause thereof.</p>

<p>[1] Negligence — Gas Explosion — Destruction of Dwelling—Evidence—Presumption of Negligence not Rebutted.—In an action for damages for the destruction of a dwelling-house by a fire alleged 'to have been caused by the negligence of a gas company, the presumption of negligence .arising from the happening of the accident which was due to an explosion of gas while an employee of the company was engaged in cleaning a drip-pipe in the basement was not overcome where it was fairly inferable from the testimony of the employee that he assumed the risk without cutting off the gas supply by closing a stop-cock in the service pipe, and opened' the drip while there was a flame burning in the basement in a Ruud heater.</p> <p>[2] Id.—Absence of Plaintiff from State — Testimony in Former Action Admissible.—In such action, the testimony of the plaintiff given at a former trial was admissible where it was shown that plaintiff was absent from the state and temporarily residing in another state.</p> <p>[3] Id.—Memorandum of Lost Articles—Reporter’s Transcript Admissible.—The reporter’s transcript which contained the memorandum of the lost personal property made by plaintiff and which was used by her when giving her testimony at the first trial was properly received in evidence in such action, where such memorandum was not used merely for the purpose of refreshing memory, but was stipulated to be the testimony of the plaintiff on the subject.</p> <p>[4] Id.—Value of Lost Property—Opinion of Husband of Plaintiff.—In such action, the opinion of the husband of the plaintiff, as to the value of the lost personal property was admissible, although he was not the owner thereof, where he had an intimate and adequate knowledge of the character of such property, acquired by association with and observation thereof.</p>

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

<p>[1] Estates of Deceased Persons—Probated Will—Offer of Another Will not a Contest.—While section 1333 of the Code of ¡Civil Procedure relates to the conelusiveness of the unopposed probate of a will against a contest, the offer of another will is not a contest of the one admitted to probate.</p> <p>[2] Id.—Powers and Limitations of Probate Courts—Special Statutes.—The probate of wills is purely a creature of statute, and the statutes pertaining to estates of deceased persons must be looked to rather than those of general application for the powers and limitations of the probate courts.</p> <p>[3] Id.—Probate of Will—Expiration of Tear Without Contest— Eight to Probate Subsequent Will.—Section 1327 of the Code of Civil Procedure, providing that the probate of a will may be contested within one year after its probate, and section 1333, making the probate conclusive unless there has been a contest filed within one year, do not prevent the offering more than one year after such probate of another document as a genuine and subsequent will, such offer not being a contest of the will admitted to probate.</p> <p>[4] Id.—"Will Contest—Mental Incapacity—Evidence—Testimony of Attorney.—In a will contest on the ground of mental incapacity, it was error to refuse to permit an attorney, who for many years had represented the testator and who was called as a witness and testified that in his opinion the testator was of sound and disposing mind during the entire period of their acquaintance, to state what the testator testified to while on the witness-stand in a certain action, from a document in the form of a bill of exceptions prepared by such attorney while its contents were fresh in his memory, using the court reporter’s notes to cheek it, and containing the testator’s testimony.</p> <p>[5] Id.—Testimony from Writing—¡Section 2047, Code of Civil Procedure.-—The part of section 2047 of the Code of Civil Procedure which provides that a witness may testify fro-m a writing, though he retain no recollection of the particular facts, is mandatory.</p> <p>[6] Id.—Suppression of Evidence — Presumption — Erroneous Instruction.—In a contest of a will, the giving of the instruction with respect to the presumption of law that evidence willfully suppressed would be adverse if produced, was error where the record fails to disclose any instance of suppression of evidence or anything that could be properly construed as such withholding of facts in defendant’s possession, and sueh error was prejudicial where one of the counsel for plaintiffs in his argument sought to apply the rule embodied in the instruction to the circumstance that no person named in the will had been called as a witness.</p> <p>[7] Id.—Failure to Call Legatees—Evidence not Suppressed.—$n a will contest the failure to call as witnesses those named as legatees in the will is not suppression of evidence.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County. Z. B. West, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Fire Insurance Law—Stock and Fixtures—"Computing Scale Under Conditional Sale 'Contract—Valid Policy.—In an action on a policy of fire insurance covering a stock of merchandise and fixtures, it cannot be contended that the policy was vitiated because there was contained among the fixtures a certain computing scale of which the plaintiff was not the sole and unconditional owner, title being vested in the vendor, where it was found that ■the scale was not specifically named in the policy, that the plaintiff waived in open court all claim for loss of or damage to said scale, and that he had not concealed or misrepresented any material fact relating thereto, although he had included it in his schedule of losses, believing that his equitable interest entitled him to recover the cash value of the property.</p> <p>[2] Id.—Fire and Explosion—Cause op Explosion—Sufficiency op Finding.—In such action, the finding that during the fire, but subsequent to the commencement thereof, an explosion occurred in the ■building, and that the explosion was occasioned by the fire, sufficiently indicates that the explosion occurred by reason of a fire within the building.</p> <p>[3] Id.—Comparison op Testimony op Witnesses—Province op Trial Court.—In such action it is for the trial court .to make comparison of the testimony of witnesses.</p> <p>[4] Id.—Purchaser Under Conditional Sale Contract—Insurable Interest in Property.—A purchaser of property under conditional sale by the terms of which title is to remain in the vendor until full payment is made has at. least an insurable interest to the extent ■of. his payments on account.</p>

<p>HI Banks and Banking — Payment of Checks — Forged Indorsement.—The undertaking of a bank is to pay out the depositor’s money only on. the order of the depositor and in accordance with that order, and if it pays out money on a cheek drawn to order upon a forged indorsement of the payee’s name, it has not paid in accordance with the depositor’s order, and, in the absence of anything further, has no right to charge such payment against the depositor’s account.</p> <p>[2] Id.—Payment of Check on Forged Indorsement—Liability of Bank—Want of Negligence Immaterial.—Where a hank pays a cheek on a forged indorsement, it is wholly immaterial whether the hank is negligent or not in making payment, since the obligation of the bank is not merely to use reasonable care to pay on the depositor’s order and in accordance therewith, but its undertaking and obligation are absolute that it will pay only in that manner.</p> <p>[3] Id.—Fictitious Payee—When not Payable to Bearer.—While it is true that paper drawn to the order of a fictitious payee is payable to bearer, it is also true that paper is not considered as drawn to a fictitious payee where the maker did not know it to be so drawn but believed the payee designated to he an existing person.</p> <p>[4] Id.—Drawing of Checks by Corporation—Forged Indorsement by Employee-—Liability of Bank.—Checks of a company cannot be considered fictitious as to the company, so as to justify the bank on which they are drawn in paying them as checks payable ' to bearer, notwithstanding the payees were ail fictitious, where such payees were not known to the officers of the company who executed the checks to be fictitious, but such officers believed the payees named to be existing persons who were to receive the cheeks, notwithstanding the fictitious character of the payees was known to the officer of the company at whose instance the cheeks were executed.</p> <p>[5] Banks and Banking—Payment op Checks on Forged Indorsements—Negligence in Drawing op Checks Immaterial to Liability op Bank.—Negligence of the depositor in the signing of cheeks upon fraudulent demands will not relieve the bank of liability for paying them on forged indorsements, since the negligence of the depositor in such particular is not a proximate cause of the bank’s failure to ascertain the nongenuine character of the indorsements.</p> <p>[6] Id.—Indorsements on Canceled Checks—Maker not Charged With Duty.—A depositor is not bound to examine the indorsements on returned cheeks, since he has the right to assume that •the bank has ascertained the fact that the indorsements are genuine.</p> <p>[7] Id.—Rendition op Semi-monthly Statements — Account Stated —Right to Open por Fraud or Mistake.-—-While the rendition of semi-monthly statements by a bank to a depositor and his failure to object thereto constitute an account stated, the account may he opened upon a showing of fraud or mistake.</p> <p>[8] Id .—Agreement in Pass-book—Genuineness op Indorsements on Canceled Checks—When not Binding upon Depositor.—A statement printed in the front of the commercial pass-book of a bank depositor to the effect that the latter shall be concluded as to the genuineness of indorsements on returned and canceled' cheeks unless he makes an objection thereto in writing within ten days after their receipt, is not binding on the depositor, where not signed by him, or shown to have been called to bis attention, or otherwise to have been agreed to by him.</p> <p>[9] Id.-—Recovery op Money Paid on Forged Checks—Tender op Checks — When Unnecessary.—In an action by a depositor against a bank to recover the amount paid out by the bank on checks of the plaintiff on forged indorsements, it is not necessary to tender hack the checks before the commencement of the action where the bank from the time it was notified of the forgeries absolutely repudiated liability.</p>

<p>[1] Execution—Fraudulent Sale—Purchaser not a Party to Action—Relief—Motion.—Where sufficient grounds exist for vacating an execution sale, it may be vacated by motion to the court which has decreed the sale, as well as by a separate action brought for that purpose, notwithstanding the purchaser at the sale was not a party to the action.</p>

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

<p>[1] 'Corporations—Liability for Torts of Servants.—A corporation is liable for the torts of its servant if such servant has authority from it to do the tortious act, but not otherwise, which authority may be either express or implied.</p> <p>[2] Id.—False Arrest by Theater Usher — Lack of Implied Authority—Nonliability of Employer.—A person employed by a corporation as an usher in a theater whose duty it is to attend to the seating of patrons and keep order has no implied authority to arrest or imprison persons who might commit criminal offenses in the theater, and the corporation is not liable for an alleged false arrest and imprisonment of a disorderly patron, made by such employee.</p>

<p>APPEAL from an order of the Superior Court of San Diego County distributing a portion of a legacy. W. A. Sloane, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Workmen’s Compensation Act—Compensation eor Death op Employee—-Dependency op Woman Living With Deceased as Wipe—Member op Household in Good Faith.—In view of subsections b and e of subdivision 2 -of section 14 of the Workmen’s Compensation Act of 1917 (Stats. 1917, p. 844), the Industrial Accident Commission properly awarded compensation for the death of an employee to a woman living with him at the time of his death as his wife, although not legally married to him, on the theory that she was wholly dependent upon him for her support, where' it was shown that they were ignorant persons, unacquainted with the legal requirements of marriage, and both believed that a marriage license which they had procured was sufficient in itself to constitute a valid marriage, and that thereafter they assumed the relation óf husband and wife and she continued'to be in good faith a member of his household until the time of his death.</p> <p>[2] Id.—Determination of Dependency — Inapplicability of Marriage Law—Power of Legislature.—It was competent for the legislature to make the requirement of a solemnization as essential to a valid marriage inapplicable to the determination by the Industrial Accident ’Commission of the question of dependency necessary to authorize compensation to a person injured by the death of an employee, and this it has done by' the provisions of section 14 of the Workmen’s ‘Compensation Act of 1917, with respect to one who at the time of the injury'was in good faith a member of the household of .the employee.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying a petition for the final distribution of an estate of a deceased person. James C. Rives, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. H. Merriam, G. Harold Janeway and Hunsaker, Britt & Edwards for Appellant.</p>

<p>APPEAL from orders of the Superior Court of Los Angeles County overruling opposition to petition for final distribution of estate of deceased person and denying petition for order directing payment of claim. John M. York, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>The facts are stated in the opinion of the court.</p> <p>J. Crider, Jr., A. L. Abrahams and Chas. W. Fricke for Appellant.</p>

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

<p>[1] Corporations—Action for Conversion of Stock—Pleading—Answers—Nonperformance of Services—Special Demurrer—Erroneous Overruling Without Prejudice.—In an action against a corporation and the majority of its directors to recover for the alleged conversion of shares of the corporation’s stock .belonging to the plaintiff, where the answers, among other things, pleaded that .the stock certificate had been made out under an agreement with the .plaintiff that it was to be retained in the possession of the treasurer of the corporation until plaintiff should have performed certain services that he had theretofore agreed to perform for the corporation, and that such services had not been performed, error in overruling a special demurrer to such answers on the ground that they failed to show what the certain services were was without prejudice, in, view of the fact that it appeared at the trial that the plaintiff knew just what services the defendants claimed he had agreed to perform and was not taken by surprise by their proof with relation thereto.</p> <p>[2] Appeal — Alternative Method — Reporter’s Transcript—Presentation for Certification — Notice.—Where the record on appeal from a judgment is prepared under section 953a of the Code of Civil Procedure, the reporter’s transcript is not to be refused consideration because notice of its presentation to the trial judge for certification was given by mail and specified a time for presentation but two days removed.</p> <p>[3] Corporations—Action for Conversion of .Stock—Ownership of Plaintiff—Pledge as Security for Performance of Services— Findings—Pleading—Evidence.—In an action for the conversion of stock, where the plaintiff’s pleadings and proof were that the plaintiff .was the unconditional owner of the stock, and t'he defendants’ pleadings and proof were that he was to become such owner only upon the occurrence of a certain condition, the time for which had passed without its happening, the finding that' the plaintiff was the owner of the stock, but that it had been pledged with the defendants as security is not responsive to the issues.</p> <p>[4] Id.—Evidence—Minutes of Meeting—Parol Testimony.—Minutes of a corporation meeting are not a written instrument, and in the absence of the element of estoppel, as where a party has acted in justifiable reliance upon them, it is permitted to the corporation or to anyone else to show what actually did take place at the meeting.</p> <p>[5] Id.—Contents oe Minutes — Parol Evidence Inadmissible.— Testimony showing that the minutes of a corporation meeting are not a full or true record of what took place at the meeting is not the same as testimony as to the contents of the minutes, and testimony of the latter sort is not competent because it is an endeavor to prove the contents of a writing by evidence other than ■the writing itself.</p> <p>[6] Id.-^Contract—Written Proposal—Acceptance—Parol Testimony op Conditions.—When a proposal, even one in writing, is made and accepted, it is permissible to show that it was accepted with conditions or qualifications, or that accompanying the acceptance and in reality forming part of it, terms in addition to those set forth in the proposal were exacted by the acceptor.</p> <p>m Receipts — Parol Evidence.—Writings which are receipts, but which also contain contractual terms and either purport to be, or the evidence shows them to be, the written memorial of the full understanding between the parties are written contracts not to be altered or added to; but unless a receipt appears to be of this character, the “parol evidence” rule has no application to it.</p>

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

<p>[1] Criminal Law — Crime Divided into Degrees — Judgment—Previous Determination of Degree.—It is essential to proper pronouncement of judgment in the event of a plea -of guilty of a crime distinguished or divided into degrees, such as murder or burglary, . that the court first determine the degree.</p> <p>[2] Id.—Murder—'Plea of Guilty — Proceeding to Determine Degree—Judicial Determination Based on Evidence.—While the proceeding to determine the degree of the crime of murder, after a plea of guilty, is not a trial, there being no issue joined, the statute does require, at least impliedly, a judicial determination based on evidence.</p> <p>[3] Id.—Procedure.—The appropriate and proper method for a court to pursue in such a case is to receive such competent evidence from ■the respective parties as is material to the question of degree, and, the evidence having been concluded, to pronounce its determination thereon.</p> <p>[4] Id.—Murder—Irregularity in Procedure—Insufficient Ground for Reversal.—Upon this appeal from a judgment of death pronounced upon a plea of guilty to an information charging the appellant with murder and the trial court’s determination that the murder was of the first degree and without extenuating circumstances, it is held there was no such material departure in procedure from the proper method as, under the circumstances appearing, would justify a reversal.</p> <p>[5] Id.—Unsworn Statement of Defendant — Right of Court to Consider.—In a proceeding to determine the degree of the crime of murder after a plea of guilty, the defendant cannot on appeal be allowed to urge that his statement may not be regarded as evidence because he was not sworn as a witness or required to make his affirmation or declaration as provided by section 2097 of the Code of Civil Procedure, where he voluntarily gave his statement and made no suggestion of objection to the procedure.</p> <p>[6] Id.—Murder in First Degree—Sufficiency of Evidence.—It is also held herein the evidence was sufficient to sustain the conclusion that there existed the willful, deliberate, and premeditated! intent to kill which is essential to first degree murder.</p>

PROCEEDINGS in Certiorari to annul an order adjudging petitioner guilty of contempt of court. J. Q. White, Judge. Order affirmed. The facts are stated in the opinion of the court. Samuel M. Shortridge, W. H. Metson and R. G. Hudson for Petitioner.

<p>[1] Taxation—Void Sale—Recovery op Money Paid—Want op Authority Prior to 1913.—Previous to the amendment of 1913 to subdivision 5 of section 3898 of the Political Code, the purchaser at a tax sale had no remedy against the county or state to recover money .paid to the county or state at a tax sale.</p> <p>[2] Id.—Quieting Title Against Void Tax Deed—Payment of Taxes Condition Precedent.—In an equitable action or in a statutory action under section 738 of the Code of Civil Procedure brought against the purchaser at a tax sale, if the sale was found to be illegal and void, the court required the owner of the property to pay the taxes legally assessed' against the property as a condition precedent to declaring the sale void and clearing the owner’s title. This right, however, did not exist where the purchaser was seeking affirmative relief in the action.</p> <p>[3] Id.—Void Assessment—Payment op Taxes Unnecessary Condition Precedent.—Where the assessment itself was void as well as the sale, no payment was required from the owner as a condition precedent to the quieting of his title.</p> <p>[4] Id.—Reimbursement op Purchaser at Void Tax Sale—Construc-. tion op Code Amendment op 1913.—While the language of sub- " division 5 of section 3898 of the Political Code, as amended in 1913, providing for a refund from the county treasury of that part "of the purchase price paid on a void tax sale in excess of the amount for which the purchaser may have been reimbursed for taxes, penalties, and costs by the owner, does not use legal terms with technical accuracy, the statute was intended to cover every decision of a court in a civil action wherein it is adjudged that the purchaser’s title is void, whether at law'or in equity, and regardless of whether ■the purchaser is a .plaintiff in pursuit of the state’s title to the property sold, .or a defendant in an action brought by the owner.</p> <p>[5] Id.—Reimbursement op Purchaser by Property Owner—Excess Paid to County Over Taxes — Amount op Reimbursement by ■County.—In every instance the purchaser, in whatever form of proceeding the relative rights of the purchaser and the property owner may be litigated, is entitled to be reimbursed by the property owner the full amount of taxes, penalties, and costs paid out and expended by Mm, to be determined by the court, in -pursuit of the state’s title to the property so sold. If he thus receives the full amount so expended by Mm, the amount to be -paid by the county would be the difference between the taxes, penalties, and costs paid by and to the purchaser and the amount bid by the purchaser at .the time of sale.</p> <p>[6] Id.—Void and Valid Tax Levies—Right op Reimbursement for Payment op Valid Levies.—An adjudication in the action between the owner and the purchaser that the initial assessment and levy were void does not deprive the purchaser of the right to be reimbursed by the property owner for all subsequent tax levies paid which were valid.</p> <p>[7] Id.—Amount op Reimbursement—Fixed by Statute.—The amount to be paid by the county is fixed by the law, and not by the decree in the litigation between the owner and the purchaser at the tax sale.</p> <p>[8] Id.—Claim fob Reimbursement—Time for Filing.—The right of the purchaser at a void tax sale to be reimbursed by the. county is predicated upon a formal and final adjudication that the title acquired by Mm at the tax sale was invalid and void, and it follows that the purchaser must either waive Ms right to appeal, or the time for appeal must expire, or an appeal, if taken, must be determined before the purchaser can claim any refund from the county.</p>

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

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

<p>[l] Attorney and Client — Written Contract of Employment— Prosecution of Action for Partition and Accounting—Compensation for Services.—A written contract employing attorneys at law to prosecute actions for the partition of land, and for an accounting between the, partitioners respecting their transactions as tenants in common of the land, and providing that such attorneys “shall receive as their compensation ten (10) per cent of whatever is recovered, either by litigation or settlement, excepting that if the court makes an allowance for an attorney’s fee in said partition suit or other suits then such fee shall belong t'o the said law firm, exclusive of the said ten (10) per cent so to be paid by the party of the first part,” does not justify the allowance to such attorneys of ten per cent of the value of the land set off to their (client, plus the attorney’s fee allowed in the partition suit, since the two provisions are not cumulative but alternative, and the intention was to substitute the allowed fee, if any, in the partition suit as compensation for the services therein, instead of the ten per cent specified in the first part of the compensation clause of •the contract.</p> <p>[2] Partition—Suit to Sever Unity op Title—Partitioned Portions not “Recovered.”—Land set off to one .party in a partition suit to sever the unity of title and segregate the possession is not “recovered” by him, since such a suit does not change the title, nor transfer it from one to the other, nor return or restore to either party anything lost by him, or of which he had been deprived, but it merely transforms the right of common possession of the whole tract into a right to the exclusive possession of the same interest or share, as represented by the parcel set off to him in severalty.</p> <p>[3] Action por Recovery op Legal Services—Written Contract— Account Stated—Finding Unsupported by Evidence.—In an action on such contract, the finding of an account stated is not sufficiently supported, where it is based exclusively on the testimony of one of the attorneys relating a conversation he had with the client shortly after the judgments were given in the two actions wherein the value of the segregated land was agreed upon for the purpose of fixing the percentage.</p> <p>[4] Account Stated—Oral Agreement.—An account stated may be shown by proof of an oral agreement as to the amount due, although no writing is exhibited at the time.</p> <p>[5] Id.—Executory Contract.—An account stated is a mere unperformed promise by one .party to pay a stated sum to another, and it is therefore an executory contract.</p> <p>[6] Written Contract — Alteration by Oral Account Stated.—A written contract of employment cannot be altered by an oral statement of account, or by any statement not agreed to in writing by the debtor, in view of section 1698 of the Civil Code, which provides that a contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise. ,</p> <p>[7] Account Stated—Theory op Action.—The theory upon which the action on an account stated is allowed is that transactions have occurred between the parties from which the relation of debtor and creditor has arisen, that thereafter one or both have rendered or made statements or declarations specifying definitely the amount due on account thereof and thereupon there has been an agreement, express or implied, by the one who is the debtor, to the other, that a certain sum is due from him on such account, together with an express or implied, promise to pay the same. The action is based on the promise to pay thus established, and if it is not expressly made, facts from which such promise will be implied must be proven.</p> <p>[8] Id.—Previous Transactions Essential.—There can be no account stated where there have been no previous transactions between the parties from which the relation of debtor and creditor could arise.</p> <p>[9] Id.—Promise to Pat Existing Debt—Consideration.—There is a ■ fundamental difference between a mere promise to pay an existing debt made upon no new consideration and a promise to pay it which is founded on a new consideration, such as further forbearance to ■which the creditor binds himself by accepting this new .promise or by some other valid agreement or a new promise which has the effect of merging the original obligation and in effect extinguishing it as a living contract.</p>

<p>[1] Wills—Time op Taking B'fpect.—Wills generally speak as of the date of the death of their makers.</p> <p>[2] Id.—Provision in Bestraint op Marriage — Marriage Before Death op Testatrix—Void Provision.—A provision in a will that in case the son of the testatrix marries a certain woman, the trustee named in the will shall pay to Mm thereafter annually a less sum than the amount thereinbefore named, operated only upon the trustee, and where the son married such woman before the death of the testatrix, the contingency upon which such inhibition was to become effective was removed.</p> <p>[3] Corporations — Source op Dividends — Determination op Directors, When not Conclusive upon Courts.—The determination of the directors of a corporation as to the source of its dividends has no binding or even persuasive effect upon the court when it is required to decide whether a stock dividend constitutes income which goes to the tenant for life or for years or is principal to be held for -the benefit of the remaindermen.</p> <p>[4] Id.—Giving of Dividend—Deduction of Corpus of Estate—Question for Determination.—In such a case the court will ascertain whether the giving of the stock dividend or the money dividend to the life tenant reduces the value of the corpus of the estate as it existed at the time of the death of the testatrix.</p> <p>[5] Id.-—Trust in Stock—Payment of Dividends Out of Earnings After Death of Trustor—Sufficiency of Evidence.—That stock dividends declared payable out of surplus accumulated prior to death of testatrix were actually paid out of earnings of a corporation after the death of a testatrix, who created a trust in the stock owned by her, is demonstrated by the fact that after the payment of dividends declared after death of testatrix, the corporation had on hand surplus ° and undivided profits in excess of the amount held at her death.</p> <p>[6] Id.—Life Tenancy in Corporation Stock — Apportionment of Dividends.—If the fund out of which the dividend is paid accrued before the life estate arose, it is principal belonging to the corpus of the estate, but if the fund was earned after the life estate "arose, it is income belonging to the life tenant.</p> <p>[7] Estates of "Deceased Persons — Trust Under Will — Accumulation of Income Beyond Minority—Void Provision—Gift of Income Valid.—Direction in a trust created under a -will for accumulations of income from the trust estate beyond the age of minority of the beneficiary is void under section 723 of the Civil -Code, but the -gift of the income is valid under section 733 of such code.</p>

<p>[1] Negligence—Personal Injuries—Collision of Automobile With PEDESTRIAN ON ClTY STREET-EVIDENCE—TRAFFIC ORDINANCE—CONFLICT With Motor Vehicle Act—Findings—Lack of Prejudice.— In an aetion to recover damages for personal injuries sustained by a pedestrian on a city street from being struck by an automobile alleged to have been negligently operated by defendant, the admission in evidence over defendant’s objection of a section of an ordinance of the city providing that the driver of any vehicle in turning to the right from one street into another shall turn the corner as near the right-hand curb as possible, even if erroneous, on the ground that the section had been superseded by the Motor Vehicle Act (Stats. 1913, p. 639), providing that the driver of any vehicle in turning to the right from one street into another shall keep to the right of the center thereof, was without prejudice, where the court not only found that at the time of the accident the defendant was violating the city ordinance, but also, that he was violating .the Motor Vehicle Act itself, in that he did not keep-to the right of the center of the street intersection.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Curtis D. Wilbur, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p> <p>Henry T. Gage, W. I. Gilbert and C. F. Cable for Appellant.</p>

<p>APPLICATION for Writ of Habeas Corpus originally) made to the Supreme Court. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Appeal —■ Findings — Sufficiency of Evidence.—Where there is evidence sufficient to support the findings of the trial court, they will not be disturbed on appeal.</p> <p>[2] Mortgage—Belease—Nondelivery—Effect.—A release of mortgage executed by the mortgagee but not delivered in his lifetime does not take effect.</p> <p>[3] Id.—Assignment of Mortgage — Executed Contract •— Trust — Validity of.—An assignment of mortgage, accompanied by a declaration of trust, executed in consideration of previous care of the trustor by the beneficiary and an agreement by such beneficiary to continue to care for, nurse, and support him during the remainder of his life, is not a gift, nor an executory agreement, but is a present transfer based on a valuable consideration, and such a trust is lawful.</p>