Volume 183 — California Reports

<p>APPLICATION for a Writ of Mandamus to compel the delivery of property pertaining to the office of secretary of a corporation.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Paul Overton, Wm. A. Cheney, J. H. Powell, S. W. Guthrie, Samuel Poorman, Jr., and Herbert J. Goudge 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>Ornbaun & Fraser, John W. Preston, Robert Duncan, Lovett K. Fraser and Abe P. Leach for Appellants.</p>

<p>APPLICATION for a Writ of Prohibition to prevent the Superior Court from proceeding with the trial of issues on a eross-eomplaint.</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>Shelton & Levy and Steinhart, McAtee & Levy for Appellant.</p>

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

The facts are stated in the opinion of the court. Edward F. Treadwell, McCutchen, Olney & Willard, and McCutchen, Willard, Mannon & Greene, for Appellants, in L. A. No. 4993, and for Respondents in L. A. No. 4994. Hunsaker, Britt & Edwards and Hunsaker, Britt & Cosgrove for Respondent in L. A. No. 4993 and for Appellant in L. A. No. 4994.

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

<p>[i] Fraud — Ineffectual Disaffirmance — Subsequent Action for Damages.—While it is true that a party induced to enter into a transaction by fraud, affirms the transaction when he brings an action for damages and because of the affirmance loses any right to disaffirm subsequently, it is not true that if he seeks to dis-affirm, but ineffectually, he loses the right thereafter to maintain an action for damages.</p> <p>[2J Id.—Action for Rents—Fraud in Execution of Lease—Damages or Rescission.—In an action to recover ’ rents under a lease, the defendant may, in addition to his answer alleging that he was induced to execute the lease by fraud, claim by counterclaim and by cross-complaint filed at the same time that he is entitled either to damages or rescission, and that if he cannot have the latter that he have the former.</p> <p>[3] Id. — Assignment of Accruing Rentals — Rescission — Loss of Right.—Where a lessee who was induced to execute a lease by fraud makes an assignment of accruing rentals to his wife before the commencement of an action by the lessor for the rents, he alone cannot seek rescission of the lease in such action.</p> <p>[4] Id.—Misrepresentation as to Existing Lease on Part of Demised Premises—Insufficient Ground for Rescission.—A lessee has not the right to rescind a lease on the ground that its execution was induced by a false representation as to the length of term of a previously existing lease on a part of the premises which prevented the lessee from constructing a building, where the negotiations for the building involved the lessor’s consent to a new and different lease.</p> <p>[5] Id.—Delay in Rescission—Loss of Right.—The right of a lessee to rescind a lease on the ground that its execution was induced by fraud is lost where no endeavor to rescind was made until two and one-half years after the discovery of the fraud, although the lessee was not aware of his right to rescind until just prior to the time of his attempted rescission.</p> <p>[6] Id.—Discovery of Fraud—Diligence.—Where a party has knowledge of facts of a character which would reasonably put him upon inquiry and such inquiry, if pursued, would have led to a discovery of the fraud or other ground for rescission, he will be charged with having discovered the fraud or other ground as of the time he should have discovered it, that is, as of the time when he would have discovered it if he had with reasonable diligence pursued the inquiry when he should have done so.</p> <p>[7] Rescission—Knowledge • of Right to Rescind—Time.—The rule as to the time as of which a person seeking rescission will be charged with knowledge of his right is the same as it is in regard to' the time as of which he will be. charged with a discovery of the facts which give him the right.</p> <p>[8] Id.—Unreasonable Lapse of Time.—In the absence of any explanation, the permitting of two and one-hálf years after the discovery of the fraud entitling one to rescind to elapse before becoming aware of the legal right to rescind is wholly unreasonable.</p> <p>[9] Id.—Conduct ■ of Lessee Subsequent to Discovery of Fraud— Loss of Right, of Rescission.—The right of a lessee to rescind a lease for fraudulent representations in procuring its execution is lost where after discovery of the facts the lessee dealt with the property as if the lease was still in effect, making subleases arid collecting rents, since such conduct was an unequivocal affirmance of the lease.</p>

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

<p>[1] Estates of Deceased Persons—Distribution of Exempt Property—Construction of Section 1465, Code of Civil Procedure.— The special provision contained in section 1465 of the Code of Civil Procedure relating to the distribution of property which during the lifetime of the decedent had been exempt from execution, having as its only beneficiaries the surviving spouse and minor children of the decedent, has no application in the absence of persons comprised within these classes, with the necessary result that such property is to be treated as nonexempt property, and is, therefore, like it, subject to the payment of the decedent’s debts.</p> <p>1. Statutory exemption of proceeds or avails of life insurance as inuring to benefit of estate where policy is payable to executors or administrators, or estate, note, L. R. A. 1917F, 1143.</p>

<p>[1] Corporations—Execution of Note by President and Secretary—Payment on Account by Corporation—Ratification.—In an action to recover on a promissory note executed on behalf of a corporation by its president and secretary, the refusal to permit evidence of the lack of authority of sueh officers to execute the note is not erroneous, where it is admitted that several months after the execution the corporation made a payment on the note, since sueh payment constituted a ratification.</p> <p>[2] Id.—Failure to Pay Corporate Taxes—Judgment Against Corporation—Action Against Directors—Previous Judgment not a Bar.—A judgment obtained against a corporation iK an action on a promissory note after the corporation has failed to pay its taxes is not a bar to a subsequent action against the directors as trustees, since sueh nonpayment ipso facto terminates the corporate existence.</p> <p>[3] lb.—Forfeiture of Charter—Subsequent Judgment Void.—A judgment rendered against a defunct corporation in an action brought after the forfeiture of its charter is void.</p>

<p>[1] Criminal Law — Appeal — Bevebsal of Judgment — Evidence.— The appellate court will not reverse a judgment given upon a verdict unless there is no evidence to support it, or when the evidence relied upon to uphold it is so inconsistent or improbable as to be incredible, or when it so clearly and unquestionably preponderates against the verdict as to convince the court that it was the result of passion or prejudice on the part of the jury.</p> <p>[2] Id.—Murder—Mental Soundness of Defendant—Conflict of Evidence—Verdict Conclusive on Appeal.—In a prosecution for murder, where the evidence on the issue of the soundness of mind of the defendant is conflicting, the conclusion of the jury will not be disturbed on appeal. ■ •</p> <p>[3] Id.—Evidence—Mental Sanity—Intimate Acquaintances—Discretion—Appeal.—LThe determination of the question as to whether or not one is an intimate acquaintance of another, and therefore competent, under subdivision 10 of section 1870 of the Code of Civil Procedure, to give his opinion as to the mental sanity of the latter, is of necessity, to a great extent, within the discretion of tjhe trial court, and the ruling of that court will not be disturbed except where the evidence is such as to leave no just room for question that the discretion has been improperly exercised.</p> <p>2. Weakness of mind as affecting responsibility for criminal act in homicide cases, note, 10 L. R. A. ($T. S.) 999.</p> <p>Responsibility for crime committed in a fit of anger, note, 10 L. R. A. (N. S.) 1032.</p> <p>[4] Id.—Murder—Bequest for Japanese Interpreter—Bemark of Court—Lack of Prejudice.—The remark of the court during the trial of a Japanese for murder in response to a request for an interpreter for a witness for the defendant, that "they can all speak English, but they won’t,” was not prejudicial to the substantial right's of the defendant.</p>

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

<p>[1] Water District — Land not Described in Petition — Inclusion Within District Without Consent op Owner Unauthorized—Construction op Act.—The aet of the legislature providing for the incorporation, organization, and power of county water districts (Stats. 1913, p. 1049) reasonably construed, precludes the inclusion by the supervisors in such a district of land not included within the boundaries of the district as set forth in the petition initiating the proceeding, and of the proposed presentation of which published notice is required, except when such inclusion is had upon the application of the owner thereof.</p> <p>[2] Id.—Lands to be Included in District—Construction op Act.—• The provisions of section 3 of the act of 1913 providing for the organization of county water districts, taken altogether, mean simply that, solely with regard to the ’territory described in the petition the board of supervisors shall make such changes in the proposed boundaries as may be deemed advisable, provided that they may not exclude from the district as proposed by the petition any territory which, in their judgment, will be benefited by the ' formation of the district, or to allow to remain therein any lands which, in their judgment, will not be so benefited, except that on the application or with the consent of the owner of land outside the proposed district, which will be benefited by the district, they may, in their discretion, add such land to the proposed district.</p>

<p>PROCEEDING in Certiorari to review an order of the Railroad Commission requiring re-establishment of water service.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[11 Principal and Agent—Torts of Agent—Liability of Principal. A principal is liable for the tort of an agent if committed by him within the scope of his employment.</p> <p>[2] Id.—Assault by Saloon Bartender—Maintenance of Order— Liability of Owner.—An owner of a saloon is liable for an ■ assault committed by his bartender in the course of his keeping order in the saloon, although the owner had no present knowledge of the assault and did not authorize it, where one of the duties of the bartender was to maintain order.</p> <p>[3] Id.—Malicious or Willful Character of Tort—When Immaterial to Liability of Principal.—While under some circumstances the malicious or willful character of the agent’s act is material in determining whether or not the act was committed in the course of his employment, if it appear that the tort was in fact committed by the agent in the course of his employment, the employer is not relieved of his necessary responsibility by its malicious or willful character.</p> <p>[4] Id.—Responsibility for Wrongful Acts of Agent—Construction of Section 2338, Civil Code.—The responsibility of a principal to third persons for the wrongful acts of his agent is not limited by reason of the somewhat ambiguous wording of section 2338 of the Civil Code, to wrongful acts of negligence, since the word “including” is used in a conjunctive sense, as the equivalent of such expressions as “and also,” or “as well as,” and therefore the section extends the responsibility to all wrongful acts within the scope of the agency.</p> <p>2. Liability of innkeeper or restaurant-keeper for assault by his servant upon a patron, notes, 8 Ann. Cas. 688; Ann. Cas. 1918E, 255; 12 L. R. A, (N. S.) 1155; L. R. A. 1918E, 708.</p> <p>3. Whether assault growing out of quarrel commenced while, employee is acting within scope of his employment, be regarded as a personal act of the employee for which the employer is not liable, note, 9 L. R. A. (N. S.) 475.</p>

<p>[1] Newspapers—Proceeding to Establish Status—Special Proceeding.—A proceeding under section 4462 of the Political Code to ascertain and establish the standing of a newspaper as a newspaper of general circulation is a special proceeding.</p> <p>[2] Id.—Appeal—Jurisdiction oe Supreme Court.—An appeal lies to the supreme court from the judgment in a proceeding to ascertain and establish the standing of a newspaper as a newspaper of general circulation,1 although the statute authorizing the proceeding does not provide for an appeal.</p> <p>[3] Id.—Bight op Appeal—Persons Entitled.—The right" of appeal from the judgment in a proceeding to establish the standing of a newspaper as a newspaper of general circulation is not limited to a party who has a pecuniary interest in the proceeding, in view of section 4462 of the Political Code, which provides that any person may appear and contest the application, and that the judgment may be vacated on the motion of any person whether or not a party to the original proceeding, and in view of the fact that the public has a direct interest in the controversy.</p> <p>[4] Id.—Nature op Judgment—Question Foreign to Appeal.—The question whether a valid judgment rendered in a proceeding to ascertain and establish the standing of a newspaper as a newspaper of general circulation is conclusive or prima facie evidence of the status of the paper within the meaning of section 4460 of the Political Code when, in a future proceeding, the sufficiency of the publication of notice or process in the newspaper is controverted, is not presented on appeal from such judgment.</p> <p>[5] Id.—Status of Newspaper—Question for Trial Court.—Under section 4462 of the Political Code it is for the superior court to determine from the evidence whether a publication is a newspaper of general circulation as that term is defined in section 4460, and such determination is conclusive on appeal unless it shall appear, as matter of law, that it is insufficient to support the findings.</p> <p>16] Id.—Publication of Local and Telegraphic News not Essential.—Section 4460 of the Political Code which defines a newspaper of general circulation does not require that both local and telegraphic news must be published, but there must be one or the other and intelligence of a general character.</p> <p>[7] Id..—Newspaper of General Circulation—Insufficiency of Evidence.—A newspaper containing a few telegraphic items copied from other papers, a single editorial, no account of local events, and chiefly matter of a stereotyped nature such as tables of temperature and rainfall, etc., is not a newspaper of general circulation published for the dissemination of news and intelligence of a general character within the meaning of section 4460 of the Political Code.</p> <p>[8] Id. — Term “Newspaper of General Circulation” — Intent of Legislature.—By the term “a newspaper of general circulation,” the legislature had in view publications to which the general public would resort in order to be informed of the news and intelligence of the day, editorial opinion, and advertisements, and thereby to render it probable that the notices or official advertising would be brought to the attention of the general public.</p> <p>[9] Id.—Bona Fide Subscription List—Meaning of Term.—The term, “a bona fide subscription list of paying subscribers,” as used in section 4460 of the Political Code means a real, actual, genuine subscription list which shall contain only the names of those who are in good faith paying regularly for their subscriptions.</p> <p>[10] Id.—Sufficiency of Bona Fide Subscription List.—In view of the fact that the legislature has not specified the number of subscribers required to constitute a bona fide subscription list, ft must be assumed that it meant that the words “bona fide” were to be taken according to their common acceptation, and it cannot be said that twenty-five paying subscribers in various lines of business residing in ten different cities and towns located in three counties, is not a bona fide subscription list of paying subscribers.</p>

<p>Ll] Judgment—Enforcement After Five Tears—Methods—Scope of Section 685, Code of Civil Procedure.—The relief granted by section 685 of the Code of Civil Procedure which provides that in all cases a judgment may be enforced or carried into execution after the lapse of five years is not limited to enforcement by execution, but includes such means as are provided by law for the enforcement of various classes of judgments.</p> <p>[2] Id.—Death of Judgment Debtor—Enforcement of Judgment.— Where a judgment debtor has died and the statute of limitations has run against the judgment, the court may, under section 685 of the Code of Civil Procedure, grant the judgment creditor leave to enforce the judgment by the presentation of a claim against the estate and by the bringing an action thereon if the claim is rejected.</p> <p>[3] Estates of Deceased Persons—Action on Claim—Legal Effect. A suit to obtain judgment for payment of a claim in due course of administration is not an action to establish a new judgment liability, based upon the old, hut as set forth in section 1504 of the Code of Civil Procedure only establishes the validity of the claim in the same manner as if it had been allowed by the administrator and approved by the court.</p> <p>[4] Id.—Construction of Section 685, of Code of Civil Procedure— Limitation upon Statute of Limitations.—Section 685 of the Code of Civil Procedure is a limitation upon the operation of the statute of limitations under section 336 of such code to the extent that it places within the discretion of the courts the power to authorize the enforcement by the ordinary processes provided by law of a judgment otherwise barred by the statute.</p> <p>1. Effect of bar of limitations against action to enforce judgment on right to. issue execution thereon, note, 23 L. B. A. (N. S.) 1096.</p> <p>[5] Parent and Child—Divorce—Custody to Mother—Support by Father—Void Release by Minor—Right of Mother.—Where by a decree of divorce the custody of the minor child of the parties was awarded to the mother and the father required to pay to the mother a monthly sum for the support of the minor, the minor after becoming of age had no power to release the estate of the father from liability under the order, and the mother was entitled to reimbursement for support furnished from her own resources.</p>

<p>The facts are stated in the opinion of the court,</p> <p>Frank J. Gordon, Welles Whitmore and R. McMurchie for Appellant.</p> <p>Rothchild, Golden & Rothchild and J.A. Pritchard for Respondents.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco vacating on order of adoption. J". W. Mahon, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>LlJ mortgage—Foreclosure—Pleading—Ownership—Cure op Detective Complaint by Answer.—In an action for the foreclosure of a mortgage, where the complaint omitted to allege the ownership .of the property at the time of the commencement of the action and the answer admitted that the defendant was the owner at such time, the defect was cured.</p> <p>[2] Id. — Ownership — Evidence — Finding — When Unnecessary.— In an action for the foreclosure of a mortgage, where the ownership of the property is by the pleadings an admitted fact, neither proof nor finding thereof is necessary.</p> <p>LSI Id.—Pleading—Parties—Grantee op Mortgagor.—In an action for the foreclosure of a mortgage, where the plaintiff abandoned bis right to a deficiency judgment and it appeared from the answer that the mortgagor had divested itself of the title to the property and that the defendant was the owner at the timo of the commencement of the action, the mortgagor was no longer a necessary party, and the dismissal of the action as to it did not affect the right of the plaintiff to a judgment of foreclosure.</p> <p>3. Mortgagor who has conveyed interest in property as necessary or proper party to foreclosure, note, Ann. Cas. 1913A, 83.</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. W. Wiley and Wiley & Lambert for Appellant and Respondent The Bank of Bakersfield.</p> <p>Peter A. Breen and C. C. Cowgill for Respondent and Appellant Sarah L. Conner, Executrix, etc.</p>

<p>[1] -Corporations—Association in -Common Enterprise—Duty of Associates to Each Other.—Associates in a common, enterprise, under whatever guise, have a duty to- each other to make lull disclosure of any preference or profit not common to all the associates.</p> <p>1. Mutual rights and liabilities of joint adventurers, notes, 17 Ann. Cas. 1022; Ann. Cas. 19120, 202; Ann. Cas. 1914C, 691; Ann, Cas. 1916A, 1210.</p> <p>[2] Id.-—Option Holder—Retention of Profits.—An option holder or promoter will not be allowed to retain profits realized from the exercise of the option unless the fact of his interest in the option is disclosed in advance.</p> <p>[3] Id.—Option Owners and Joint Promoters—Interest in Enterprise—Duty to Subscribers.—Option owners who are also joint promoters are equally bound to make known to prospective subscribers the nature and extent of their interest in the enterprise.</p> <p>[4] Id.—Insufficient Disclosure of Profits—Right of Subscriber. The right of a subscriber of stock to rescind or recover damages for false representations of option holders and joint promoters that they had no interest in the options, but were subscribers on the same basis as himself, is not affected by the fact that such holders and promoters disclosed the amount of the profits without disclosing their ownership.</p> <p>[5] Id.—Right of Rescission—Placing of Parties in Statu Quo.—• Where stock was issued to a subscriber directly from the corporation, but at the instance of the persons who procured the subscription and in compliance with their agreement to sell to the subscriber one share of stock for every dollar subscribed and paid upon the subscription agreement, which was procured by fraud, the contention that it was impossible to put such persons m statu quo, and therefore the subscriber could not have rescission, is without merit where the subscriber offered to return to such persons the stock received by him.</p> <p>[6] Id.—Right of Rescission—Delay After Discovery of Hraud— Absence of Laches.—Where a subscriber for corporation stock did not learn that he had a right to rescind on account of fraud until four months previous to the bringing of an action for rescission, and then promptly offered to rescind, his delay in consulting an attorney cannot be said to be so unreasonable as to amount to laches.</p> <p>[7] Id.—Payment of Assessments After Discovery of Fraud—Subscription not Affirmed.—Payment of assessments by a stock subscriber after the discovery of the fraud inducing the subscription does not constitute an affirmance of the transaction which bars his cause of action for rescission, since he has the right to preserve the stock so that he may be in a position to make an offer to return it.</p> <p>[8] Id.—Damages for Rescission—Pleading—Sufficiency of Complaint.—In an action for rescission of a stock subscription contract, an allegation that at the time the plaintiff paid the money the interest which he thereby acquired had a fictitious market value, which value was created by reason of the belief that the persons who had induced the purchase had subscribed on the same basis as the other subscribers, and that it subsequently became known that they had not so subscribed, and were joint owners with others of options to be purchased b-y the corporation, and that by reason of such knowledge plaintiff’s stock had never been of a greater value than three-fifths of said fictitious value, is a sufficient allegation of damages.</p> <p>[9] Rescission-—Damages—Pleading.—In an action for rescission, the exact amount of damage need not be shown, provided it be in an appreciable sum;</p> <p>[30] Fraud—Damages—Pleading.-—Where the action is for damages for fraud, the plaintiff must allege and prove that he has suffered damage in a definite kmount.</p> <p>[11] Corporations—Fraud—Purchase op Stock—Measure op Damages.—In -an action of rescission for false representations inducing a purchase of corporate stock, the measure of damages is the amount paid, including assessments, with interest thereon at the rate of seven per cent from the dates of payments less the value of the stock at the time of the discovery of the fraud.</p> <p>[12] Id,—Reliance upon Representations-—Change op Position— Damage—Rescission.—In an action for rescission of a stock subscription contract induced by fraud, while the value of the defendants’ connection with the corporation may not be capable of ascertainment, nevertheless if the plaintiff was induced by the defendants’ false representations to change his position in reliance thereon, the lessened value of the stock would constitute damage for the purpose of "rescission.</p> <p>[13] Id.—Right op Rescission Against Promoters.—The fact that option holders and promoters of a corporation who by false representations induced a person to purchase stock were not vested with any discretion in purchasing property for the corporation, and never owned the stock which they induced the subscriber to purchase, does not prevent rescission against them as distinguished from resfcission against the corporation,. where the stock was taken upon their false representations that they had purchased stock on the same ' basis, and they failed to disclose their interest with others in certain options which the corporation was to purchase.</p>

PROCEEDING in Mandamus to compel the Secretary oí State to comply with act relating - to Land Settlement Act. The facts are stated in the opinion of the court.

PROCEEDINGS on Certiorari to review an order of the Railroad Commission fixing water rates. The facts are stated in the opinion of the court. H. L. Hagan, Leon E. Gray, Frank V. Cornish, G. Clark, Wm. J. Locke, D. J. Hall and Harris P. Jones for Petitioners.

<p>[1] Newspaper Boutes—Nature of Bights—Question op Law.—The question whether the rights relating to newspaper routes constitute property which is a subject of sale is a question of law that is to be determined by the principles of law, and not by the opinions or customs of persons who deal with such matters.</p> <p>[2] Id.—Nature op Contract—Agency.—A contract between the owner of a newspaper and a carrier reciting that the former has transferred and delivered to the latter a certain route for the delivery of such newspaper and providing that the former will daily deliver to the latter a sufficient number of issues to supply the route, for which the latter will pay a certain rate per week, creates an agency, and. does not declare a sale of property.</p> <p>[3] Principal and Agent—Agency Terminable at Will—Bight of Sale.—In a qualified sense an agent may sell or transfer his right to an agency terminable at will, but he cannot transfer to the purchaser anything more than the opportunity to offer himself to the principal as a substitute for the transferrer.</p> <p>[4] Id.—Interest of Agent in Collection of Debt of Principal— Nature of.—The interest which an agent authorized to collect a debt may have in the money collected, a part of which he is to take as compensation for his services, is an interest in that which is to be produced by the exercise of his power, and not an interest in "the subject of the agency,” within the meaning of section 2356 of the Civil Code.</p> <p>[5] Id—Sale of Subject of Agency—Revocation.—A sale of the subject of the agency made in good faith by the principal operates as a termination of the agency, and is equivalent to a revocation thereof.</p> <p>[6] Id.—Revocation—Right to Damages.—An agent cannot recover damages frgrn the principal on account of a termination of an agency for an indefinite period for any of the causes mentioned in section 2355 of the Oiyil Code, except where the agency was procured for a valuable consideration passing from the agent to the principal and the revocation is prior to the expiration of a reasonable time after its creation.</p> <p>[7] Id.—Agency Coupled With an Interest-ARevocation—Damages. —Except where the agent’s power is coupled with an interest, the power to revoke always exists, but the right to revoke without liability for damages depends upon circumstances.</p> <p>[8] Id.—Revocation of Newspaper Route Agency—Nonliability for Damages.—In an action by a newspaper carrier to recover damages for breach of his route contract for which he paid $3,250, and which provided no specified time for its continuance, it cannot be said that ten years was not a reasonable time for its continuance and that its revocation at the end of that period would give the carrier the right to recover the original sum paid for the agency, in the absence of any showing of special hardship or of further facts indicating that a longer period was contemplated or expected.</p> <p>[9] Id.—Benefits to Business of Principal—Rights of Agent.— ' The benefits to the business of the principal, arising from the performance by the agent of his duties under the contract of agency, inure entirely to the principal, and the agent is entitled to nothing except the agreed compensation, unless the contract expressly provides for something more.</p>

<p>[1] Appeal—Decision by District Court op Appeal—Law of Case. The decision of the district court of appeal constitutes the law of the case on a subsequent appeal to the supreme court if the facts are the same as those upon which the decision was predicated.</p> <p>[2] Id.—Determination op Applicability op Doctrine—Examination op Record upon Former Appeal.—The supreme "court in determining whether the decision of the district court of appeal on a former appeal constitutes the law of the case may examine the record used on the former appeal in order to ascertain if the facts are the same as those upon which the decision" was predicated.</p> <p>[3] Id.—Different Facts—Doctrine Inapplicable.—Where the facts or a second appeal are substantially different from those on a former appeal, the doctrine of the law of the case does not apply.</p> <p>[4] Principal and Agent — Newspaper Route Contract — Right op Revocation—Agreement op Faithful Performance—Effect of.— A stipulation in a contract creating an agency for the sale and delivery of a newspaper that the agent will faithfully perform the duties required of him by his contract of employment, is not such a valuable consideration as to take the contract out of the rule of section 2356 of the Civil Code that an agency may be terminated by the principal, or to bring it within the rule that if an agency is given for a valuable consideration the principal will be liable in damages if he revokes it before the agent has had a reasonable time to enjoy his agency so as to some extent to reimburse himself, since the law would make the agent subject to such obligation without any stipulation.</p> <p>[5] Id.—Agency Revocable at Will—Rights of Agent.—The benefit of an agent’s services go to his principal and not to the agent, and while a contract of agency which gives the agent a profitable employment is valuable to him, and if he is allowed by his principal to procure another to perform the service in his stead, his agency may have a commercial value, and as between him and the substitute may have all the attributes of property, he has no interest or right which he can assert against his principal as a basis of damages for revocation, since the agency is revocable at will.</p>

<p>[1] Statutory Construction — Validity of Contract — Intent of Legislature—Consideration of Entire Statute.—For the purpose of ascertaining the legislative intent courts should consider the entire statute, and if from súeh consideration it is manifest that the legislature had no intention of declaring a contract void, it should be sustained and enforced, otherwise it should be adjudged void.</p> <p>[2] Vendor and Vendee—Sale of Land by Beferenoe to Unrecorded Map—-Void Contract.—The act of the legislature of March 15, 1907 (Stats. 1907, p. 290), which not only expressly prohibits the selling or offering for sale of land by reference to an unrecorded map, but which imposes a penalty for doing so, is not a revenue measure, but an act passed for the protection of the public, and a contract made in violation of its terms is void,</p> <p>2. Validity of contracts in business which it is a misdemeanor to transact, note, 12 L. B. A. (N, S.) 575.</p> <p>[3] Statutory Construction—Prohibited Acts—Penalty.—Where a statute prohibits or attaches a penalty to the doing of an act, the • act is void, notwithstanding the statute does not expressly pronounce it so, and it is immaterial whether the thing forbidden is malmn in se or merely malum, prohibitum.</p> <p>[4] Vendor and Vendee—Contract in Violation of Act of 1907— Recovery of Payments-—Right of Vendee.—A vendee under a ■ contract of sale made in violation of the act of March 15, 1907, prohibiting the selling of lots by reference to an unrecorded map, may recover the money paid on the contract.</p>

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

<p>[1] Appeal—Judgment—Insufficiency of Evidence—Record.—The question of sufficiency of the evidence to sustain the findings cannot be considered on an appeal from a judgment which is supported by a bill of exceptions which contains no specifications of the particulars wherein the evidence is insufficient.</p> <p>[2] Mortgage — Offer of Amount of Debt — Demand for Assignment—Lien not Extinguished.'—An offer of the amount of a mortgage debt, coupled with a demand for an assignment of the note and mortgage, is not an offer to pay or discharge the debt and does not operate either to extinguish the obligation or to terminate the lien.</p> <p>[3] Id.—Expenses Incurred in Effort to Obtain Assignment—Non-liability of Mortgagors — Construction of Mortgage. — A provision in a mortgage that the mortgagors should pay all moneys expended by the mortgagee for the prosecution or defense of any action in regard to the property, does not require them to pay sums expended by a would-be purchaser of the mortgage in the effort to obtain an assignment thereof.</p>

<p>[1] Constitutional Law—Provision Having Two Meanings—Adoption of One Meaning by Legislature—Effect of.—Where a constitutional provision may well have either of two meanings, thp action of the legislature in adopting one of such meanings by statute is well-nigh, • if not completely, controlling.</p> <p>[2] Id. — Annulment of Statute — Power of Courts. — The courts should not and must not annul, as contrary to the constitution, a statute passed by the legislature unless it can be said of the statute that it positively and certainly is opposed to the constitution.</p> <p>[3] Workmen’s Compensation Act—Definition op Term “Injury”— Provision Constitutional.—Subdivision 4 of section 3 of the Workmen’s Compensation Act defining the term “injury” as including any injury or disease arising out of the employment is constitutional.</p> <p>[4] Id.—Injury by Disease—Right to Compensation.—Compensation is not due merely for injury by disease contracted by an employee while employed, since the injury must be one arising out of the employment, and where the injury is by disease there must exist the relation of cause and effect between the employment and the disease.</p> <p>[5] Id.—Death of Hospital Steward from Influenza—Disease Con-TRACKED IN COURSE OF HlS EMPLOYMENT—PROPER AWARD OF COMPENSATION.—In view of the construction placed by the legislature in the Workmen’s Compensation Act upon the word “injury,” contained in section 21 of article XX of the constitution, an award of compensation for the death of a hospital steward from influenza contracted in the course of his employment is within the jurisdiction of the commission.</p> <p>3. Disease as accident within meaning of Workmen’s Compensation Act, notes, 2 Ann. Gas. 140; 15 Ann. Gas. 886; Ann. Cas. 1913A, 1121; Ann. Cas. 1918B, 309, 345, 354.</p>

<p>[1] Estates of Deceased Persons—Signing oí Holographic Will— Test.—In determining whether a will has been signed by the hand of the testator himself, as required by section 1277 of the Civil Code, the fact that the signature, wherever placed, was intended as an executing signature must satisfactorily appear on the face of the document itself, and if placed elsewhere, than at the end, it is for the court to say, from an inspection of the whole document, its language as well as its form, and the relative position of' its parts, whether or not there is a positive and satisfactory inference from the document itself that the signature was so placed with the intent that it should there serve as a token of execution.</p> <p>[2] Id.—Holographic Will—Signature at Beginning of Document— Sufficiently Authenticated Instrument. — A document testamentary in character and entirely in the handwriting of the testator consisting of a single sheet of paper with the date written in the upper right-hand corner, and with the name of the testator appearing in the upper left-hand corner on a line with the date and above all other writing, and which contained creases indicating that it had been crumpled and which was torn at the bottom in such a way as to disclose by pencil-marks and dots appearing along the torn edge that there were written words on the part torn off, is a sufficiently authenticated holographic will.</p> <p>2. Necessity that signature of holographic will be at end, note, Ann. Cas. 1918B, 230.</p> <p>[3] Id.—Due Execution op Will—Question of Pact.—The due execution of- a will is a question of fact, and its determination by the trial court is not to be overthrown unless that determination is without support in the evidence.</p> <p>[4] Id. — Pleading — Insufficient Allegation op Revocation op Will.—An allegation in a petition to revoke the probate of a will that said written instrument is not the last will and testament of the deceased is a mere conclusion of law and not a sufficient allegation of revocation. .</p> <p>[5] Id.—Grounds of Contest to Will—Manner op Pleading.—In stating the grounds of contest to a will, if unsoundness of mind is relied on, it is sufficient to state that the deceased, at the time of the alleged execution of the proposed paper was not of sound and disposing mind, and the same is true as to undue execution, but when the grounds embrace fraud, duress, or undue influence, a subsequent will, revocation, or the like, such matters, not being ultimate - facts, but conclusions of law to be drawn from facts, must be pleaded, not in the language of the statute, but the facts relied on must be stated.</p> <p>[6] Id. — Revocation op Will — Evidence. — There must be an act coupled with an intent in order to revoke a will. If the act is a slight one, the evidence of intent must be clear; if, on the other hand, the act is sufficiently definite in character, the intent may be presumed from the very nature of the act and surrounding circumstances.</p> <p>[7] Id.—Partial Mutilation—Insufficient Evidence op Intent to Revoke.—In the absence of evidence aliunde, an intent to rpvoke a whole will cannot be inferred from a partial mutilation which does not affect the instrument as an entirety, or destroy that part which gives effect to the whole.</p> <p>[8] Id.—Destruction op Signature—Effect op.—While the fact that a will is found with the signature destroyed may be sufficient to support a presumption of an intention to revoke the whole will, the presumption may be repelled by a showing that the signature had later been restored or rewritten.</p> <p>[9] id,—Intention ’ to Revoke Will—Insufficiency op Evidence.— An intention to revoke a holographic will, wherein the signature of the testator appeared at the top of the document disconnected with any other written matter, is not to be presumed from its crumpled and torn condition, in the absence of evidence that it had been continually under the control of the testator until the time of his death.</p> <p>3. Partial revocation of will, note, Ann. Cas. 1913D, 313.</p>

<p>APPLICATION for a Writ of Mandamus to compel designation on primary election ballot of associate justice-ships as single office.</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] Public Utilities Act—Findings op Commission—Jurisdictional Facts—Beview by Court.—Notwithstanding the declaration of section 67 of the Public Utilities Act (Stats. 1915, p. 161), that the Bailroad Commission’s determination of matters of fact are not subject to review, its determination upon the question whether or not the facts existing are sufficient to bring the case within •the scope of its powers must be subject to review, su far as they present a question of law bearing upon that subject, and the provision that the “conclusions” of the commission on the facts are final does not apply to "facts necessary to the existence of the jurisdiction of the commission to act; but if the evidence in proof of such facts- is substantial in character and justifies the inference or conclusion that the facts necessary to the jurisdictioh of the commission did exist, then its decision is binding and conclusive.</p> <p>[2] Waters and Water Bights—Corporation Organized Under Act op 1853 and Supplementary Acts—Bight to Supply Water por Public Use—Begulation op Bates by Bailroad Commission.—A canal and irrigation company incorporated in 1871 which declared in its articles that it was incorporated under the act of April 14, 1853 , (Stats. 1853, p. 273), and the several acts amendatory thereof and supplemental thereto, but which made no mention of the supplying of water as one of. the purposes of the incorporation, is a public utility, and its contracts to furnish water made in 1875 are subject to regulation by the Bailroad Commission, in view of the act of May 14, 1862 (Stats. 1862, p. 540), which in effect gives corporations organized under it the power to act as a public service corporation for the supply of water for irrigation, although the act of 1853 gives no such authority.</p> <p>[3] Corporations—Act op April 2, 1870—Act op May 14, 1862, not Bepealed by Implication.—The act of April 2, 1870- (Stats. 1870, p. 660), supplemental to- the act of April 14, 1853, did not operate as a repeal by implication of the act of May 14, 1862.</p> <p>[4] Statutory Construction—Two Laws upon Same Subject__The repeal of statutes by implication is not favored, and where there are two laws upon the same subject, they must be so construed as to maintain both, if it can be done without destroying the evident intent and meaning of the later act.</p> <p>[5] Corporations—Eminent Domain—Exercise op Power—Public Use.—Of necessity property taken under the power of eminent domain is dedicated to public use, and to that extent a corporation exercising such power is, a public utility administering a public service.</p> <p>[6] Waters and Water Rights — Diversion and Sale by Corporation—Rule Prior to 1879.—Prior to the adoption of article XIV, section 1, of the constitution of 1879, no presumption of a public use arose from the mere fact that a corporation diverted water and agreed to sell it to certain persons.</p> <p>[7] Id. — Contracts por Water Supply — Appurtenance to Land — Public Use.—The fact that contracts were made by a canal arid irrigation company declaring that the agreement to supply water should he appurtenant to the respective tracts of land is not inconsistent with the theory of a dedication to public use.</p> <p>[8] Id.—Regulation and Control op Contracts by Public Authorities.—Such contracts relating to the service of water devoted to public use are subject to regulation and control by the public authorities, whether acting under laws then existing or under laws subsequently enacted.</p> <p>[9] Id.—Use op Canal-by Previous Ditoh Owners — Contract for Free Water Service—Order Fixing Rates for Consumers—Lack of Unlawful Discrimination.—Where a canal and irrigation company in the construction of its canal found it advisable to enter into an agreement with the owners of a previously constructed ditch, which ditch would interfere with the construction, to carry their water to their lands through the canal free of charge, other users of water under contracts with the canal company cannot claim that an order of the Railroad Commission fixing rates for water to he used by them authorized an unlawful discrimination between persons, similarly situated.</p> <p>[19] Id.—Effect of Contract.—Such an agreement was entirely lawful and did not make the canal company the owner of' the water it diverted to be carried and delivered to such persons for their lands, hut was a mere arrangement whereby the ditch of the company was for that purpose to be used by such persons to carry their water to their lands, the effect being that they had a common use of the ditch although it was under the control of the company.</p> <p>8. Effect of contract with patrons to preclude regulation of rates of public service corporations, note, L. B. A. 19150, 282.</p>

<p>APPEAL from an order of the Superior Court of Alameda County fixing compensation for legal services rendered an executor. W. M. Conley, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Prohibition — Actions for Injunction — Effect of Order of Railroad Commission—Rulings of Court—Question not Presented.—An application for a writ of prohibition to prevent the superior court from proceeding in certain actions to enjoin a public service water company from extending its service to new territory must be denied where the application is made on the ground that the court is without jurisdiction by reason of a previous order made by the Railroad Commission directing the extension of such service, and it is shown that the only action taken by the court was to overrule the demurrers to the complaints, which complaints made no reference to the order of the commission, and to dismiss the commission’s complaint in intervention, since the ruling of the demurrers was no more than a ruling that the complaints stated a cause of action within the general equity jurisdiction of the court, and the dismissal of the complaint in intervention may have been ordered on the ground that the commission was not a party beneficially interested.</p>

<p>[1] Negligence—Death oe Railroad Switchman—Failure to Observe and Warn oe Danger—Evidence—Question tor Jury.—In an action to recover damages for the death of a railroad yard switchman who was struck by the backing down upon him of a train while he was engaged in signaling the engineer of another train, where there was evidence that deceased was directly on a line between the engineer and switchman of the other train so to be clearly in the field of their vision, it was a question for the jury to determine whether or not their failure to observe and warn the deceased of the danger was negligence.</p> <p>[2] Appeal—Points not Argued.—Points not argued either in the brief or oral argument will not be considered.</p>

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

<p>[1] Marriage—Property Rights.—A void marriage confers no rights upon either of the parties to it in respect to the property of the other such as would be conferred by a valid marriage.</p> <p>[2] Id. — Division of Jointly Acquired Property. — While, strictly speaking, there can be no community property in the absence of a valid marriage, courts will, in dividing gains made by the joint efforts of a man and married woman living together under a void marriage entered into in good faith by the woman under the belief that her prior marriage had been dissolved, apply by analogy the rule which would obtain when a valid marriage is dissolved. x</p> <p>[3] Divorce — Void Marriage — Property Rights — Validity of Adjudication.—Where in an action for divorce, upon discovery that the plaintiff was not entitled to a decree by reason of her marriage to another, the parties agreed upon a day to which the trial should be postponed for the purpose of hearing evidence on the . issue of their property rights, and such issue was tried on the agreed date,, the court was warranted in adjudicating such rights, and its adjudication is not subject to reversal for failure to annul the marriage.</p> <p>2. Division of property accumulated during void marriage, note, 68 Am. St. Rep. 375.</p> <p>Division of community property upon the annulment of marriage, note, 36 L. R. A. (N. S.) 845.</p>

<p>The facts are stated in the opinion of the court.</p> <p>A. S. Halsted, Dana T. Smith, E. E. Bennett and Fred E. Pettit, Jr., for Appellant.</p>

<p>APPLICATION for a Writ of Prohibition to restrain the Superior Court from settling account of testamentary trustee. Frank H. Dunne, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Landlord and Tenant—■ Breach of Covenant to Pat Bent — Measure of Damage.—Where a lease has not expired and a for-forfeiture and restitution is not sought, the measure of damage for a breach of the covenant to pay the rent fixed by the lease is the amount of the rent unpaid and no more.</p> <p>[2] Id. — Lease — Breach of Covenant to Pat Bent — Liquidated Damages—Void Provision.—A provision in a lease fixing liquidated damages for breach of covenant to pay rent is void under sections 1670 and 3302 of the Civil Code.</p> <p>[3] Id.—Securitt for Performance of Lease—Contingent Interest of Assignee of Lessee.—An assignee of the interest of a lessee in a fund deposited by the lessee as security for the performance of the covenants of the lease has a contingent interest in the fund until the lessee fails to perform.</p> <p>[4] Id.—Alteration of Lease—Bights to Securitt.—Where a lessor was without knowledge that a third person stood in the relation of surety as to a fund deposited by the lessee as security for the performance of the covenants of the lease, the fund was not released by the alteration of the terms of the lease by consent of the lessor and lessee.</p> <p>[5] Appeal—Judgment—Subsequent Satisfaction bt Execution— Bights of Appellant.-—An appellant does not lose his right to prosecute his appeal by reason of the fact that after the appeal was taken the judgment was satisfied by execution.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George E. Crothers, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Morrison, Dunne & Brobeck, R. L. McWilliams and H. W. Clark for Appellant.</p>

<p>[1] Estates of Deceased Persons—Sale of Property—Effect of 'Code Amendment—Preliminary Order of Sale Unnecessary.— The effect of the amendment of 1919 to section 1536 of the Code of Civil Procedure, in omitting the requirement that a sale of property of an estate of a deceased .person must be upon the order of the court, is that a preliminary order is no longer required in order to authorize the administrator or executor to negotiate a sale of the property for the purposes and reasons for which a sale is authorized by the section.</p> <p>[2] Id.—Necessity for Sale—Time of Determination—Effect of Code Amendment.—The effect of the amendment of 1919 to section 1552 of the Code of Civil Procedure providing that upon the hearing of the return of sale of property of an estate of a deceased person the court must examine into the necessity for the sale, or the advantage, benefit, and interest of the estate in having the sale made, is that the questions whether a sale is necessary for the payment of debts, expenses of administration, or legacies, and whether a sale would be for the best interests of the estate are now to be decided upon the hearing of the return and application for confirmation, instead of upon the hearing of the petition for an order of sale as formerly provided by sections 1540, 1542, 1543 and 1544 of such code.</p> <p>[3] Id.—Succession of Property of Intestate.—The property of an intestate decedent vests in his heirs upon his death, subject to the burdens imposed upon it by the law in force at that time for the purpose of paying the debts of the decedent and the expenses of administration of the estate, and also subject to sale by the executor or administrator for such reasons and purposes as may be then authorized by law.</p> <p>[4] Id.—Change of Procedure in Sales of Property—Power of Legislature.—The legislature cannot by amending the law after the death of an intestate impose upon his property any new or additional burdens, or authorize a sale thereof for new reasons or other purposes; but it may enact new laws prescribing a different mode of procedure for making and confirming sales to satisfy such purposes or carry out such objects as were provided for by the law in force at his death.</p> <p>[5] Id.—Additional Bond—Applicability of Code Provision to New Method of Sale.—The provision of section 1389 of the Code of Civil Procedure that the court must direct the giving of an additional bond whenever the sale of any real estate belonging to an estate “is ordered,” unless the bond already given is sufficient, remains applicable to the mode of sale provided by the amendment of 1919, since the sale “is ordered” when it is confirmed and the deed is directed to be made.</p> <p>[6] In.—Personal Notice op Proceedings—Rights op Heirs Under New Method.—The change made by the amendment of 1919 in the method of making sales of real property belonging to estates does not deprive the heirs of the right to have personal notice of the proceedings for the sale as provided by section 1380 of the Code of Civil Procedure, since the phrase, “filing of petitions for sales,” in such section may be held to apply to the return of sale required by section 1552.</p> <p>[7] Id.—Time op Credit—Discretion op Administrator—Power op Legislature^—The repeal in 1919 of section 1544 of the Code of Civil Procedure which prohibited an administrator from selling real property upon a credit exceeding one year, and giving the administrator under the scheme of sale provided by the amended . sections discretion as to the time of credit, was within the power of the legislature, being a mere incident of the power to sell property 'for the payment of debts.</p> <p>[8] Id.—Applicability op Code Amendments to Pending Administrations.-—The amendments of the code sections relating to sales of property of estates of deceased persons are prospective in that they do not apply to proceedings already completed at the time they were enacted, but they do apply to all proceedings begun thereafter, including pending administrations.</p>

<p>[1] Motor Vehicle Act—Headlights—Purposes of Requirement.— The two main purposes of seetion 13 of the Motor Vehicle Act (Stats. 1919, p. 206), are to compel the driver of an automobile to use thereon headlights which (a) shall cast 'in front of the automobile a light of sufficient power to enable him, when driving in the dark, to see objects in the road at a distance of two hundred feet ahead, and which (b) shall not unduly dazzle the eyes of persons in front who may be looking toward Mm, and both purposes are met by the requirements of subdivision (g) of such seetion.</p> <p>[2] Id.—Diffusing Type of Lens—Judicial Notice.—The phrase “diffusing type of lens” used in subdivision (k) of seetion 13 of the Motor Vehicle Act is apparently a trade name of recent origin and its use has not as yet become sufficiently general to enable a court to take judicial notice of its trade meaning.</p> <p>[3] Id.—Violation of Act—Diffusing Type of Lens—Pleading.— In a prosecution for driving an automobile on a public street equipped with a headlight more brilliant and set at different angle than that permitted by seetion 13 of the Motor Vehicle Act, the charge that the defendant’s headlight was of the diffusing type of lens was sufficient as a pleading, and the meaning of the term could be proven at the trial whether or not the statute is in that particular sufficiently certain to be valid, is not decided.</p> <p>[4] Id.—Approval of Lenses by Testing Agency.—Under the provisions of subdivision (k) of section 13 of the Motor Vehicle Act all lenses of the diffusing type must be submitted to the testing agency for approval and subjected to the same tests as to the maximum candle-power that are required for other types of lenses.</p> <p>[5] Id.—Use of Unlawful Headlight—Sufficiency of Complaint. A complaint charging the driver of an automobile with using a headl’ght sold commercially that had not been tested and sanctioned by the testing agency as provided in subdivision (j) of section 13 of the Motor Vehicle Act states a violation of the act, regardless of the fact that the headlight did not produce a dangerous glare.</p> <p>[6] In.—Qualities of Headlights — Establishment of Testing Agency—Power of Legislature.'—The legislature has the power to establish a testing agency as to the quality of headlights which shall be used-by persons driving automobiles.</p> <p>6. Statutory regulation of automobiles in matters other than speed, notos, 5 Ann. Cas. 793; 12 Anri. Cas. 291; Ann. Cas. 1915C, 712.</p>

<p>[1] Appeal—Order Denting New Trial—Dismissal.—An appeal from an order refusing a new trial must be dismissed where the notice of appeal was filed after the amendment of 1915 to section 963 of the Code of Civil Procedure.</p> <p>[2] Judgment—Justice’s Court—Order Denting Motion to Vacate Satisfaction—Want of Jurisdiction—Effect of.—The power of a justice’s court to rule on a motion to vacate the satisfaction of a judgment becomes functus officio where the motion is denied for lack of jurisdiction, and a subsequent order denying a second motion on the merits is void. ■</p> <p>[3] Id.—Order Denting Motion to Vacate not Bes Judicata.— An order of a justice’s court denying a motion to vacate the satisfaction of a judgment is not res judicata as against the right to prosecute an action in the superior court to set aside such satisfaction, where the order was made for lack of jurisdiction.</p> <p>[4] Id.'—Order Denting Motion to Offset Judgments not Bes Judicata.—An order of a justice’s court denying a motion to offset a judgment which had been marked “satisfied,” and had not been revived against another judgment between the same parties in the same court is not res judicata, where the order was denied for want of jurisdiction.</p> <p>[5] lb.—Belief from Satisfaction of Judgment—Equitable Jurisdiction of Superior Court.—The superior court, as a court of equity, has jurisdiction to hear and determine an action to vacate the satisfaction of a judgment of a justice’s court, where the remedy at law has been exhausted.</p> <p>[6] Id.—Execution .Sale of Homestead—Vacation of Satisfaction of Judgment.—In view of section 708 of the Code of Civil Procedure, satisfaction of a judgment of a justice’s court should be set aside by -a court of equity where execution has been levied upon property of the debtor which has been homesteaded, regardless of constructive notice furnished by the recorded declaration.</p> <p>[7] Id.—Failure to Plead Judgment as Defense to Subsequent Action—Absence of Laches.—Laches is not to be imputed to the holder of a judgment of a justice’s court for the failure to plead such judgment by way of defense or counterclaim to a subsequent action brought against him by the debtor, where the judgment at the time of the commencement of the action was a “satisfied” judgment and the amount in excess of the jurisdiction of the justice’s court.</p>

<p>[1] Taxation — Car-loaning Companies Operating upon Bailed ads in This State—Construction op Constitution.—The portion of the first paragraph of section 14 of article XIII of the constitution which provides for the levy, assessment, and collection of taxes upon railroads, including refrigerator, oil, stock, fruit, and other car-loaning and other car companies operating upon railroads in this state, authorizes the taxation in the manner prescribed in the constitution of all car-loaning companies which are carrying on their business upon railroads in this state.</p> <p>[2] Id.—Leasing op Oil Tank-cars by Foreign Corporation—Use upon Bailroads in This State — Liability to Taxation.—A foreign corporation having its principal place of business in another state and engaged in the acquiring by purchase or otherwise of oil tank-cars and the leasing thereof to shippers throughout the United States is a ear-loaning company operating upon railroads in this state within the meaning of the first paragraph of section 14 of article XIII of the constitution, and therefore within the scope of its taxing provisions, where it caused certain of its oil cars to come into this state and to be hauled over and upon the railroads of this state, notwithstanding the cars were operated by the lessees under a contract made outside of the state and by its terms all control over the cars was relinquished to the lessee.</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] New Trial—Discretion—Appeal.—The trial court in acting • upon a motion for a new trial, particularly on the ground of insufficiency of the evidence to support the verdict or findings, has a wide discretion, and its action thereon, either for or against the motion, will not he disturbed on appeal unless it clearly appears to the appellate court that the discretion was abused.</p> <p>[2] Id.—Contest to Probate of Codicil of Will—Evidence—Onra^t Granting New Trial—Discretion.—In a contest of the probate of the codicil of a will on the ground that the same was not executed by the deceased either in the manner prescribed by section 1276 of the Civil Code or at all, it was within the discretion of the court to grant the proponents a new trial, where there was clear and positive evidence establishing the execution of the will, notwithstanding contradictory evidence as to the gen- - uineness of the signature of the deceased.</p> <p>[3] Appeal—Purpose op Delay—Penalty.—Where no reason can be perceived for the taking of an appeal, except a desire for vexation and delay, a proper ease exists for the imposition of a penalty.</p> <p>[4] Id.—Penalty not Excessive.—A penalty of two hundred" dollars for a useless appeal in a will contest which has caused a delay of almost a year is proper.</p>

<p>APPLICATION for a Writ of Review to annul an order of a board of supervisors forming an irrigation district.</p> <p>Tbe facts are stated in the opinion of the court.</p> <p>Harris & Hayhurst, Haven, Athearn, Hall & Chandler, Edward F. Treadwell and James F. Farraher for Petitioners.</p>

<p>[l] Reclamation Districts — Annulment of Assessment — Insufficiency of Plans — Amendment and Reassessment — Action to Annul—Judgment not Res Judicata.—A judgment annulling a reclamation district assessment upon the ground of the insufficiency of the plans is not conclusive on the question of the sufficiency of the plans in a subsequent action to annul a reassessment, where subsequent to the annulment and prior to the reassessment amended plans were filed which, without making any change in the plan of improvement, amplified the description of ,the work and made the same more definite and certain.</p> <p>[2] Id.—Lack of Benefits—Judgment Res Judicata.—In an action to annul a reclamation district assessment on the ground of insufficiency of plans, a finding that certain lands assessed received no benefits from the improvement is res judicata on the question in a subsequent action to annul a reassessment after the filing of amended plans making the description of the work more definite and specific.</p> <p>[3] Id.—Land not Benefited — Form of Finding — Judgment not Res Judicata.—In an action to annul a reclamation district assessment, a finding that five tracts of land described as containing 116 acres were not benefited by the improvement is not res judicata in a subsequent action to annul a reassessment, where such tracts in fact contained 181.59 acres, since the acreage not included in the finding may have received benefits.</p> <p>1. What judgments are res judicata, note, 14 Am. St. Rep. 250.</p> <p>3. Application of doctrine of res judicata to issues in action as to which judgment is silent, note, 6 Ann. Cas. 104.</p>

<p>The facts are stated in the opinion of the court.</p> <p>John G. Jury, Louis Oneal and Oneal & Sex for Appellants.</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>A. J. Hill, County Counsel, Roy V. Reppy, Assistant County Counsel, and Vincent Morgan, Deputy County Counsel, for Appellant.</p>

<p>[1] Suretyship—Pleading—Principal Obligation and Nonpayment —Inapplicability op Bulb — Unconditional Instrument.—The rule that in a suit against a surety the principal obligation and its nonpayment must be clearly set forth because the surety’s liability is only conditional has no application where the instrument sued on is unconditional by its terms and the condition to which it is subject is created by extrinsic facts entirely,' for in such a case, although the instrument may he set out in full in the complaint, there is nothing to show that the obligation is not absolute and the complaint states a good cause of action.</p> <p>[2] Id.—Conditional Obligation—Pleading and Evidence—Bight op Dependant.—Where' an instrument sued on is unconditional by its terms, the defendant may allege and show that the obligation was in fact conditional, and in doing so he does not make out a variance between the instrument sued on and the one shown by the proof.</p> <p>[3] Pleading—Answer—New Matter—Bight op Plaintiff.—Under our system of pleading, there is no replication, but when new matter is pleaded in an answer by way of confession and avoid- ■ anee, the plaintiff may by his proof either take issue as to its truth, or may avoid it by the showing of still further facts which destroy its validity as a defense.</p> <p>[4] Foreclosure op Mortgage—Collateral ¡Security—Pleading and Evidence.—In an action to foreclose a mortgage given to secure a note, where the complaint failed to allege the fact' that the note and mortgage were given as collateral security for the payment of certain notes of third persons given the plaintiff for the purchase price of certain tractors, it was proper for the defendant to allege that the note and mortgage were given as such security and to permit the plaintiff, after proof of such defense, to show that a default on the principal obligation had in fact taken place, and to an extent in excess of that sought to be recovered on the security. °</p> <p>[5] Estates op Deoeased Persons-—¡Sufficiency qf Claims.—It is not required that a claim against an estate should state the facts with all the preciseness and detail required in a complaint, and the sufficiency of such a claim is not to be tested by the rule applicable to pleadings.</p> <p>[6] Id.—Note and Mortgage as Collateral Security—Claim—Presentation op Copy op Secured Obligation Unnecessary.—In the presentation of a claim against' an estate of a deceased person on a note and' mortgage given as collateral security, but in terms unconditional, it is not necessary to state that the claim is upon a note given as security, or to set out a copy of the secured obligation.</p> <p>[7] Appeal — Points Advanced in Reply Brief.—Points advanced for the first time in the appellants’ reply brief need not be discussed.</p>

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

<p>[1] Corporations — Purchase op Stock at Execution Sale—Yack op Notice op Assignment or Pledge—Bights op Purchaser.— One who purchases at execution sale shares of stock of a corporation, standing on the books of the corporation in the name of the judgment debtor, is entitled to have the certificate of such shares reissued to him as such purchaser, if at the time of the purchase he acts in good faith and without1 notice that the outstanding certificate has been assigned or pledged to some person other than the judgment debtor.</p> <p>[2] Id.—Protection Against Purchaser at Execution Sale—Duty op Assignee or Pledgee.—In order that an assignee or pledgee of a certificate of stock may protect Ms rights, as against1 a purchaser at execution sale, he must cause a reissue to him of a certificate, or he must serve notice on the corporation that he holds the certificate as such assignee or pledgee.</p> <p>[3] Id.—Becordation op Transper op Land and Water Stock as Appurtenance—Lack op Constructive Notice to Purchaser at Execution Sale.—The record of a deed conveying land and water stock appurtenant thereto is not constructive notice to a purchaser of the stock at execution sale of a transfer of the stock, in the absence of any notice or knowledge that' the company whose stock was sold was a water company organized to supply water within the meaning of section 324 of' the Civil Code, or that the' stock represented water rights appurtenant to the land;</p> <p>[4] Id.—Water Corporation—Compliance With Section 324, Civil Code—Rights op Purchaser op Stock.—Where a water company provides in i'ts by-laws that the water it is distributing shall be • sold only to owners of its capital stock and that such stock shall be appurtenant to the lands described in the certificate of stock, and a certified copy of such by-laws has been recorded in the office of the county recorder in which the lands are situated, a purchaser of the stock without the land obtains by such purchase no title to the stock and no right to receive the water which the stock represents.</p> <p>[5] Corporate Stock—Execution Sale—Title op Purchaser Without Notice op Unregistered Transper.—The title of an assignee of corporate stock who does not have the transfer entered on the corporate books holds title thereto superior to the lien of an attachment upon the title of the assignor; but if there is an execution sale thereof pursuant to such attachment', the purchaser thereat, who buys without notice of the transfer, takes title superior to that of the assignee.</p> <p>1. Validity of pledge or other transfer of stock of corporation when not made in the books of company, as against attachments, executions, or subsequent transfers, notes, 21 Ann. Cas. 1394; 67 I». B. A. 656; 80 L. B. A. (N. S.) 996.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Adams, Adams & Binford, G. Harold Janeway, Hunsaker, Britt & Edwards and Samuel Poorman, Jr., for Appellant.</p>

<p>[1] Corporations—Service op Process upon Agent op Foreign Corporation—Transaction op Business in State.—In order to justify a finding that a foreign corporation is so far engaged ■in business in this state that a valid service of summons upon it in an action in this state, under section 411 of the Code of Civil Procedure, may be made upon its agent within this state, the corporation must transact within the state some substantial part of its ordinary business by its officers or agents appointed and selected for that purpose, for legal service of process upon a corporation, which will give a court jurisdiction over it, can be made only in the State where it resides by the law of its creation, or in a state in which it is actually doing business at the time of service, in the manner prescribed by the statutes of that state or of the United States.</p> <p>[2] Id.—Securing op Order Extending Time to Plead—Act not a General Appearance.—The securing of an order extending the time to plead to plaintiff’s complaint in an action against foreign corporations' not transacting business in this state, after an attempted service of summons on one of their officers, is not a general appearance under section 1014 of the Code of Civil Procedure, and does not authorize the entry of j;he defaults of defendants.</p> <p>[3] Pleading—Appearance—What Constitutes.—An act of a defendant by which he intentionally submits himself to the jurisdiction of the court in that action for the purpose of obtaining any ruling or order of the court going t'o the merits of the ease which may reasonably be construed to imply that the court has, in the action, acquired jurisdiction of the person of the defendant, will be equivalent to an appearance, although not strictly in accordance with the terms of section 1014 of the Code of Civil Procedure.</p> <p>1. Mode of serving process upon foreign corporations, notes, 85 Am. St. Rep. 926; 23 L. R. A. 490; 70 L. R. A. 532.</p> <p>What constitutes doing business in state by foreign corporation, notes, 2 Ann. Cas. 307; 8 Ann. Cas. 942; 11 Ann. Cas. 320; Ann. Cas," 1912A, 553; Ann. Cas. 1913E, 1154.</p>

APPEALS from orders of the Superior Court of the City and County of San Francisco admitting to probate a certain document as an olographic will and denying the application of the nominee of the surviving 'wife for letters of administration. John T. Nourse, Judge. The facts are stated in the opinion of the court. Morrison, Dunne & Brobeck and J. F. Shuman for Appellants.

<p>[1] ¡Street Law—Proceeding Under Act of 1889—Payment of Commissioners from Assessment—Valid Assessment.—Proceedings for the widening of a street under the Street Opening Aet of March 6, 1889 (Stats. 1889, p. 70), and amendatory acts, are not void because the commissioners appointed t'o assess the damages and benefits are to be compensated from the assessments levied by them.</p> <p>[2] Id.—District Assessment—Omission of Land — Valid Assessment.—In a district assessment the mere failure to assess a lot of land within the assessment district does not make the assessment void, and the remedy for such an erroneous assessment is by objection to the city council</p> <p>[3] Id.—Exclusion of Public Lands from Assessment—Power of Council.—Under section '9 of the Street Opening Act the city council has the power to expressly exclude public property from the assessment where in their judgment the property would not be benefited by the improvement.</p> <p>[4] Id.—Extent of District Benefited—Decision of Council Conclusive.—The decision of the city council determining the extent of the district benefited by the improvement is conclusive except on appeal to that 'body.</p> <p>[5] Id.—Description of Land to be Taken—Exception of Open Ways—Sufficient Description.—The sufficiency of the description of the land to be taken in a street widening proceeding contained in the resolution of intention is not impaired by the statement in the resolution of an exception from the description of all lands held by the city or people as open ways.</p>

<p>[1] Estates of Deceased Persons—Execution of Will—Acknowledgment of Signature to Subscribing Witnesses.—A will not signed by the testatrix in the presence of either of the subscribing ■witnesses is sufficiently executed where she declared to them that the instrument was her will and requested that they sign as subscribing witnesses, since such request was in effect an acknowledgment of her signature to them, for only by signing the will in their presence, or by acknowledging the same in their presence, could they become subscribing witnesses.</p> <p>1. Attestation and subscription of wills generally, note, 114 Am. St. Rep. 209.</p> <p>Necessity that witness to will see testator sign, or that they see his signature, notes, 38 L. R. A. (N. S.) 161; L. R, A. 1915B, 87.</p>

PROCEEDING on Certiorari to review an order of the Railroad Commission requiring a municipal corporation to file a schedule of rates for electric service. The facts are stated in the opinion of the court.

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

<p>[1] Taxation — Inequality of Valuation — Recovery of Taxes — Pleading — Sufficiency of Complaint.—In an action brought under section 3819 of the Political Code t'o recover taxes paid under protest, the complaint states a cause of action, as against a general demurrer, where it substantially charges that the property of plaintiff was assessed at nearly twice its value, while the other property in the county was assessed, in pursuance of a systematic, willful, and intentional scheme to do so, at not to exceed twenty-five per cent of its real value, and that' all this was shown to the board of equalization by evidence without substantial contradiction or conflict, and that the board, with full knowledge of such fact's and without regard to the same and in disregard of the evidence, arbitrarily denied plaintiff’s application for relief.'</p> <p>[2] Id.—Knowledge of Inequality—Willful Refusal of Relief— Fraud.—Where certain land was assessed at nearly twice its real value while other property in the county was assessed in pursuance of a systematic and willful undervaluation at not to exceed twenty-five cents of its true value, and such fact was shown to the board of equalization by evidence without substantial contradiction, the board should have reduced the assessed valuation of such land, and its willful refusal to do so constituted fraud, or something equivalent to fraud, entitling the land owner to recover the invalid tax under section 3819 of the Political Code.</p> <p>1. Validity of tax as affected by valuation of other property at lower proportion of actual value, note, Ann. Cas. 1912B, 872.</p> <p>Remedy of owner of particular class of property assessed at greater per cent of value than other property, note, Ann. Cas. 1914D, 916.</p>

<p>[1] 'Electricity—Jumping op Current—Scientific Impossibility.— It is a scientific impossibility for an electric current of twenty-two thousand volts to jump a distance of twenty-one inches through * the air.</p> <p>[2] Id.—Evidence—Judicial Notice—Arcing Distance of Current. It is a scientific fact of which the court will take judicial notice that if a twenty-two thousand volt' wire had been surcharged with a sufficient voltage to jump for a distance of one inch, such additional voltage would have discharged into a lightning-arrester within one inch of the wire, or into iron beams of the substation within twelve inches of the wire which were connected with the corrugated iron surface of the station So as to form a perfect ground, rather than to the ground through the hand of an electric substation operator at twenty-one inches.</p> <p>2. Weight of testimony to strange phenomena of electricity, note, Ann. Cas. 1917B, 477.</p> <p>[3] Negligence — Injury to Electric Substation Operator — Safe Place to Work.—An electric power company is not liable for injuries sustained by a substation operator from the short-circuiting of a twenty-two thousand volt current through his body while engaged in cleaning a dead wire, on the theory that it had failed to furnish a safe place to work, where the distance between the wires was twenty-eight and one-fourth inches and the place one which was required to be used at most but once a month.</p> <p>[4] Id.—Negligence—When Question op Law.—Where all the facts are either shown without dispute or by scientific principles of which the court takes judicial notice, the question of whether or not the evidence is sufficient to support a finding of negligence is a matter of law for the court.</p> <p>3. Master's duty to lineman and other employees to prevent contact of wires carrying electric current, note, 52 L. R. A. (N. S.) 600.</p> <p>Liability for discharge of electricity from wire injuring person not actually coming in contact therewith, note, Ann. Cas. 1912A, 251.</p>

<p>APPEAL from an order of the Superior Court of Merced County denying a petition for revocation of letters of administration. E. N. Rector, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from an order of the Superior Court of Sonoma County appointing a guardian of the person of a minor and from a decree directing the issuance of letters of guardianship. Thomas C. Denny, Judge. The facts are stated in the opinion of the court. Pillsbury, Madison & Sutro and C. C. Sullivan for Appellant.

<p>[1] Fraud—Sale of Stallion—Pleading—Knowledge of Falsity of Representations—Sufficiency of Gross-complaint.—In an action to recover on promissory notes given for the purchase price of a stallion, a cross-complaint for fraud alleging that each and every one of the representations made by the plaintiffs was wholly and entirely false and untrue and were personally known by plaintiffs to be untrue is not open to the 'objection that there is no direct allegation that the representations were actually known by the plaintiffs to be untrue.</p> <p>[2] Id.—Falsity of Representations — Sufficiency of Cross-complaint.—In such action, the cross-complaint is not open to the objection that there is no allegation showing in what respect the representations were false and fraudulent, where it is alleged, after asserting the falsity of the representations and t'he scienter of the plaintiffs, that the stallion had been in the United States for more than two years, which was known t'o plaintiffs, and that he had been stood and tried and had been proven to be worthless as a foal-getter.</p> <p>[3] Id.—-Action for Price—-Fraud—Nondelivery of Stallion Purchased—Sufficiency of Evidence.—In an action to recover on promissory notes given as the purchase price of a stallion, a finding of fraud set up by cross-complaint is supported by evidence that the st'allion delivered was not the one purchased.</p> <p>[4] Id.—Guaranty — Exchange of 'Stallion — Compliance not Essential to Rescission.—Compliance with the terms of a guaranty providing for the exchange of the stallion for another in the event that he did not live up to its terms is not necessary to entitle the purchaser to rescission of the contract of purchase on the ground of fraud, since the guaranty was a part of the contract.</p> <p>[5] Id.—Rescission of Contract of Purchase — Offer to Return Stallion—Insufficiency, of Evidence.-—In an action to recover on promissory notes given for the purchase price of a stallion, the defendants are not entitled to a rescission of the contract' of purchase under their cross-complaint alleging fraud, where the evidence does not sufficiently show an offer to return the stallion.</p> <p>4. Rescission of sale of animal for breeding purposes on account of fraud, note, Ann. Cas. 1916A, 575.</p> <p>5. Duty to place other party in statu quo on rescinding "contract, note, 30 L. R. A. 44.</p>

<p>APPLICATION for a Writ of Mandate to compel the settlement of a bill of exceptions.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Sonoma County admitting a will "to probate. Thomas C. Denny, Judge.</p> <p>The facts are, stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying an application for a change of the place of trial. Grant Jackson, Judge.</p> <p>The facts are. stated in- the opinion of the court.</p> <p>A. J. Hughes, Wm. Evans, and Ernest Pagnuelo for v Appellant.</p>

<p>APPLICATION for a Writ of Habeas Corpus to secure release after conviction of a crime. Denied.</p> <p>The facts are stated in the opinion of the court.</p> <p>Jackson Mahon, W. W. Laidley, C. F. Tramutolo and Iverson L. Harris for Petitioner.</p>

<p>[1] B'anks and Banking—Drafts for Collection—Proceeds—General Deposit.-—When, in the regular course of business, one person sends to another drafts or bills of exchange for collection or sale and does not specifically direct that the funds realized therefrom are to constitute a special deposit, they become a general deposit, even though the correspondent has knowledge that the proceeds are intended for a particular purpose.</p> <p>[2] Id.—Drawing of Bills of Exchange—Remittance of Drafts by Drawers to Drawee for Collection—Instructions—Special Fund not Created.—Where the drawers of foreign bills of exchange at the time of the drawing of the bills remitted to the drawee certain drafts of third persons with instructions to negotiate a certain amount of them every week and credit, the proceeds of such drafts did not constitute a special deposit for the payment of the bills, notwithstanding it was also stated in the instructions that the drafts were to reimburse the drawee.</p> <p>[3] Negotiable Instruments—Action on Bills of Exchange—Evidence—Letter of Payee to Drawee.-—Where the drawee of bills of exchange advised the payee that acceptance was refused because the drawers were responsible for another account which was overdrawn and asked the payee to use his good offices in adjusting and settling such account, a letter of the payee stating that he could not intervene in the matter, as it seemed entirely foreign to him, was not admissible, in an action by the payee against the drawee, as an admission that the payee had no further rights in the bills.</p> <p>[4] Id.—Course of Dealings Between Drawer and Drawee.—In an action by the payee against the drawee of bills of exchange, evidence showing the course of dealings between the drawer and drawee both prior and subsequent to the drawing of the bills is admissible to show that the bills were not to be paid, as contended by the payee, from a special fund, but out of a general fund.</p> <p>[5] Id.—Status of Account Between Drawer and Drawee.—In an action by the payee against the drawee of bills of exchange, evidence that at the time the bills were drawn the drawer’s account with the drawee was overdrawn was admissible as tending to show that certain drafts of third persons sent to the drawee at the time of the drawing of the bills were for the purpose of replenishing the general fund, .rather than to create a special fund for the payment of the bills.</p> <p>1. What is special, as distinguished from general, deposit in bank, notes, Ann. Cas. 1913E, 45; 16 L. B. A. 516; 39 L. R. A. (N. S.) 847; L. R. A. 1918A, 65.</p> <p>[6] Id.—Crediting of Account—Proceeds of Draft Collections.— In such action, a letter written by the drawers to the drawee requesting the booking of the balance of the account, to which the proceeds of the drafts were credited, in the general account was admissible as tending to show that the drawers regarded such account as a general account.</p>

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

<p>[1] Mortgage—Foreclosure—Deficiency Judgment.—In an action for the foreclosure of a mortgage, the failure to direct a deficiency judgment against the mortgagors for the full amount of the note, interest, attorney’s fees and cost's is error; where they made no defense and the complaint stated a good cause of action against them for_ the recovery of the full amount of the note, notwithstanding judgment was given for less than the amount of the note upon the issues raised by the answer of a subsequent lienholder.</p> <p>[2] Id.—Disbursement of Mortgage Money—Construction of Dwelling—Agreement Between Mortgagee and Junior Lien-holder—Liability for Breach Independent of Negligence.—A mortgagee is responsible to the holder of a trust deed subject to the mortgage for the failure to perform his agreement with the latter to apply the borrowed money to the payment of labor and materia] used in the construction of a proposed dwelling upon the mortgaged premises, regardless of whether or not he was negligent in the disbursement of the money.</p> <p>[3] In.—Foreclosure •—Evidence — Representations of Agent of Junior Lienholder—Incompetency to Prove Agreement.—In an action to foreclose a mortgage, testimony of the holder of a subordinate deed of trust that she was the owner of the lot prior to the execution of the mortgage and deed of trust and that in the sale of the lot she did not know the purchaser in the transaction, but dealt through an agent, who represented to her that the purchaser was a prosperous builder and after obtaining title to the lot would borrow money on the mortgage to build a house on the lot, which representations she relied upon, is inadmissible to prove an agreement between the mortgagee and herself that the money borrowed on the mortgage should be applied in payment of labor and material for the construction of the building, where the representations were not made in the presence of the mortgagee and it is not shown that the latter had any knowledge of them until some time after the transaction was closed.</p> <p>[4] Id.—Agreement Between Mortgagor and Mortgagee—Nonresponsibility to Junior Lienholder eor Breach — Want op Privity op Contract.—A mortgagee is not responsible to the holder of a'trust deed subject to the mortgage for the application of the mortgage money solely to the payment for materials and labor actually used in the erection of a building on the mortgaged premises under an agreement between the mortgagor and the mortgagee that the money should be paid to a contractor for labor and material used in the construction of such a building, in the absence of any privity of contract between the mortgagee and junior lienholder.</p>

<p>[1] Municipal Corporations—Ownership of Streets.—The streets of a city belong to the people of the state and every citizen of the state has a right to the use thereof, subject to legislative control.</p> <p>[2] Id.—Regulation of Traffic—Doubt as to Municipal Affair— Rule Governing Determination.—While it is true that the regulation of .traffic upon a public street is of special interest to the people of a municipality, it does not follow that such regulation is a municipal affair, and if there is a doubt as to whether or not such regulation is a municipal affair, that doubt must be resolved in favor of the legislative authority of the state.</p> <p>[3] Id.—Regulation of Street Traffic—-Supremacy of General Laws.—The regulation of traffic upon the streets of a city is not' one of those municipal affairs in which by section 6, article XI, of the constitution, chartered cities are given a power superior to that of the state legislature, but such power is subject to the general laws of the state, and if inconsistent therewith is invalid.</p> <p>[4] Motor Vehicle Act—Speed Limitations—Construction of Statute.—In the construction of the provisions of the motor vehicle law (Stats. 1917, p. 382; St'ats. 1919, p. 223), which fix the maximum rates of speed- upon the streets and highways and which prohibit municipalities from fixing as a maximum lesser rates, the court is bound to give a construction which will be both constitutional and effective if it can be done without violence to the language used in such provisions.</p> <p>[5] Id.—Unreasonableness of Speed—Question for Jury.—Section 22(d) of the Motor Vehicle Act of 1919 (Stats. 1919, p. 223), evidences an intent on the part of the legislature that the restriction that the speed of vehicles cannot be unreasonable and unsafe shall be the test of the legality of the speed at any place within the state, and involves the right to have that question determined by a jury rather than by a local legislative body.</p> <p>[6] Id.—Penalty for Violation of Act—Constitutional Legislation.—The provision of the motor vehicle law making it unlawful to travel at an unreasonable or unsafe speed and punishing the violation of such law as a crime is valid and constitutional legislation.</p> <p>[7] Id.—Void Municipal Ordinance—Conflict With Motor Vehicle Law.—A municipal ordinance fixing a speed limit of fifteen miles an hour is void where the motor vehicle law fixes a greater speed limit within such municipality.</p>

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

<p>[1] County Water District—Illegal Expenditure op Bunds—Injunction'—Bight op Besident and Taxpayer.—A taxpayer of and resident within a county water district formed under the act of 1913 (Stats. 1913, p. 785), has the legal right to invoke t'ho remedy of injunction to restrain the expenditure of the funds of the district if such expenditure finds no sanction in the law.</p> <p>[2] Id.—Legality of Claim for Services—Appeal from Judgment— Determination from Complaint.—Where am appeal is taken from a judgment' rendered upon an order sustaining demurrers to plaintiff’s complaint in an action to enjoin the payment of a claim for services in the promotion and organization of a county water district, the legality of the claim, as well as the legality of it's allowance by the supervisors, must be determined by consideration of the scope and effect of the allegations of the complaint.</p> <p>[3] Corporations—Acts of Promoters Prior to Existence—Liability—Applicability of Bule to Public Corporations.—The rule to the effect that acts of promoters performed prior to the existence of a corporation are not binding upon the corporation, unless made so by the act under which the incorporation took place, or adopted by the corporation after it comes into existence, applies to public as well as private corporations.</p> <p>[4] County Water District — Services Prior to Eormation — Authority of Supervisors to Contract.—In the matter of the organization of a county water district under the act of 1913, there is nothing in the provisions of the act which empowers the board of supervisors to contract and pay for legal or other services rendered to the freeholders of the proposed district in the preparation and procurement of the petition for the ultimate creation of the district, or which authorizes the board to pay for legal or other services rendered to such freeholders in the preliminary promotion of the district.</p> <p>[5] Id.—Estimate of Costs and Incidental Expenses—Statement in Petition—Construction of Act.—The provision of the act of 1913 requiring the petition for the creation of a county water district to contain an estimate of the cost of the proposed improvements and of the incidental expenses in connection therewith, has reference, as to the required provisions of the ordinance calling the election, wholly to such expenses as are generally and incidentally necessary to the construction and the maintenance and operation of the plant and business of the proposed district after it has actually come into being as a legal entity.</p> <p>[6] Id.—Preparation and Presentation of Petition—Nonliability of District.—The act of 1913 does not bind a district organized thereunder to pay the expenses incurred by promoters in connection with the preparation and filing of the petition for the formation of the district, and such expenses cannot be assumed after it comes into existence, for the act specifies and limits the purposes for which the funds of the district may be expended.</p> <p>[7] Corporations—Illegal Act—beatification.—An act or contract which a corporation is not legally permitted to perform cannot be ratified or adopted by such corporation, whether the corporation be private or municipal.</p> <p>3. Liability of corporation to third parties on contracts of its promoters, notes, 8 Ann. Cas. 262; Ann. Cas. 1916C, 105.</p> <p>[8] County Water District — Allowance of Claims — Governing Bules.—Under the act of 1913, the management of a county water district is, to some extent, a county affair, and in the absence of more specific provision in the act, the same general rules and regulations which govern the board of supérvisors in acting upon claims against the county proper must cover and control the allowance of claims against the district.</p> <p>[9] Counties—Allowance of Claims—Beview by Courts.—A court is not precluded from reviewing an allowance by a board of supervisors for the purpose of ascertaining whether the allowance was within the jurisdiction of the board.</p>

a judgment on an appeal from a justice’s court. Leslie B. Hewitt, Judge. The facts are stated in the opinion of the court.

<p>[1] Criminal Law—Misconduct of Jury—Beading Newspaper Articles— Affidavit of Attorney — Insufficient Ground for New Trial.—In a criminal action, the affidavit of one of the attorneys for the defendant averring that one of the jurors had told him that he had read certain newspaper articles relating to the trial during the course thereof, and further averring on information and belief that other jurors had read the same article, is not admissible to impeach the verdict, and wholly insufficient to support an order for a new trial.</p> <p>1. Beading newspapers by jury during trial as ground for setting aside verdict, notes, 6 Ann. Cas. 352; 12 Ann. Cas. 180; Ann. Cas. 19150, 962.</p> <p>[2] Id.—Credibility of Testimony-—Belief of Jurors as Men—Instruction.—Where the jury in a criminal case has been properly instructed as to the presumption of innocence and the doctrine of reasonable doubt, an instruction that they are to believe' as jurors what' they would believe as men, and that there is no rule of law that requires them to believe as jurors what they would not believe as men, cannot be said to be calculated to confuse the jury, or to be erroneous.</p> <p>[3] Appeal—Assignment of Errors—Disregard of Points.—An assignment of error to all rulings on the evidence and in the giving of instructions does not call for consideration on appeal, in the absence of reference to the record, citation of authorities, - and specification of particulars.</p>

<p>[l] Corporations — Conflicting Claims to Stock — Finding—Evidence.—Where in an action by a corporation to determine the ownership of certain shares of it's stock as between another corporation and certain of its officers in whose names the stock was issued, the evidence was substantially conflicting, the finding that the consideration for the stock was paid by the other corporation, and not by such officers, and that such corporation was the owner thereof, cannot be said to be without evidence to support it.</p> <p>[2] Ed.—Payment op Consideration—Evidence.—In such action, the rule prohibiting the admission of oral testimony, to vary the terms of a written contract was not violated by the admission of parol evidence that the consideration for the stock was paid by the other corporation, notwithstanding such evidence contradicted the recitals in the minutes of the issuing corporation that the consideration was paid by the officers in whose names the stock was issued, since the rule applies only to controversies concerning the subject matter of the contract arising between the parties to the contract.</p> <p>[3] Id.—Written Statement op Assets.—In such action, a written statement of the assets' of the other corporation showing the listing of' the stock as a corporate asset was admissible, where it was shown that it had been prepared at' the request of one of the officers in whose name the stock was issued and the data assembled by all of the officers in the office of the corporation.</p> <p>[4] Id.—Manner op Holding Stock.—In such action, testimony as to a conversation between the officers in whose names the stock was issued as to whether or not they would take the stock and keep it as their individual property or on behalf of and for the corporation, ■ is inadmissible, in the absence of evidence that the conversation was had in the hearing and presence of the other officer of the corporation.</p> <p>2. Application of parol evidence rule to strangers to contract, note, 8 Ann, Cas. 347.</p>

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

<p>[l] Estates of Deceased Persons—Erroneous Dismissal of Will Contest—Valid Judgment.—On an application for a writ of prohibition to restrain the superior court from further proceeding in a will contest after having vacated a previous judgment of dismissal, the supreme court is not concerned with any question as to the correctness of the conclusion of the trial court on the motion to dismiss, to the effect that the contest abated with the death of ' the contestant, for even if such conclusion was erroneous, the granting of the motion to dismiss on such ground was simply error in the exercise of jurisdiction, reviewable only on an appeal, and the judgment could not be held to be void for any such reason.</p> <p>[2] Id.—Dismissal of Will Contest—Death of Contestant—Want of Substitution of Personal Representative—Valid Judgment. A judgment dismissing a will contest on the death of the contestant is not void for want of formal substitution of the personal representative of the deceased contestant.</p> <p>[3] Id.—Vacation of Judgment of Dismissal—Void Order—Prohibition.—Where no appeal was taken from a judgment dismissing a will contest on the death of the contestant, and the judgment had become final, an order vacating the judgment was beyond the power of the court, and threatened action to further proceed with the contest may be restrained by a writ of prohibition.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank C. Collier, John Schlegel, Louis F. Labarere, and. Walter H. Sprague for Appellant.</p>

<p>[1] Workmen’s Compensation Act—Injury by Disease—Bight to Compensation.—Injury by disease is an injury for which compensation could be awarded under section 21" of article XX of the constitution as it read before its recent amendment.</p> <p>[2] Id.—Voluntary Act Outside of Employment—Benefit to Employer—Employee not Entitled to Compensation.—An injury suffered by an employee in voluntarily doing something entirely outside of his employment, even though of benefit to his employer, is not an injury suffered by "him in t'he course of his employment.</p> <p>[S] Id.—Safety Engineer of Mining Company —- Assistance in Caring for Sick Employees—Direction of Superintendent— Services Within Scope of Employment.—Where the safety engineer of a mining company was directed by its superintendent to assist in taking care of the. company’s employees afflicted with influenza during an epidemic, the engineer’s services in so doing were not voluntary, and although they were exceptional and without the usual scope of his employment, they were, by reason of such direction, within the actual scope, and the engineer was entitled to compensation for an incapacitating illness contracted in the performance thereof.</p> <p>[4] Id.—Application for Compensation—Cause of Illness—Burden of Proof.—In claiming compensation for an incapacitating injury resulting from illness in caring for an employer’s influenza . patients, the burden rests upon the claimant to show that his illness resulted from the exceptional exposure to which he was subjected in the performance of such services.</p> <p>[5] Id.—Disturbance of Award—Power of Court.—The supreme court cannot disturb an award of the Industrial Accident' Commis- ' sion unless it can say that a reasonable man could not reach the conclusion which the commission did.</p> <p>[6] Id.—Illness from Caring for Influenza Patients—Sufficiency of Evidence.—In this proceeding to annul an award of compensation for an incapacitating injury of the heart resulting from influenza, t'he' evidence sufficiently supports the finding that the disease was contracted from the exceptional exposure to which the employee was exposed in caring for his employer’s influenza patients, and was not contracted because of the exposure to which he was subjected in common with the rest of the community.</p> <p>1. Becovery of compensation under Workmen’s Compensation Act, for incapacity resulting from disease, notes, 2 Ann. Gas. 140; 15 Ann. Cas. 886; Ann. Cas. 1913A, 1121; Ann. Cas. 1918B, 309; 11 A. L. B. 790; L. B. A. 1916A, 289.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Wm. M. Abbott, Wm. M. Cannon and Kingsley Cannon for Appellant.</p>

<p>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 a judgment of the Superior Court of Los Angeles County. Paul J. McCormick, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

Eight persons were to be elected to the office of judge of the superior court of the city and county of San Francisco. At the primary election the names of seventeen candidates for nomination were printed on the ballot.

<p>APPLICATION for a Writ of Mandate to require the printing of the name of a candidate for judge of the superior court on general election ballot.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandate to require the printing of the name of a candidate for judge of the superior court on general election ballot.</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] Pleading—Defense Founded on Release—Admission of Genuineness and Due Execution—Evidence as to Other Defenses— Bight of Plaintiff.—In an action for personal injuries, the genuineness and due execution of a release of all claims is admitted, where a copy thereof is annexed to the answer and the plaintiff fails to serve and file an affidavit denying the same as provided in section 448 of the Code of Civil Procedure, but it is open to the plaintiff on the trial, without further pleading, to introduce evidence to sustain any other legitimate defense thereto.</p> <p>[2] Rescission—Restoration of Consideration—Voidable Contract of Release—Applicability of Code Provision.—The provision of section 1691 of the Civil Code that restoration or offer of restoration of everything of value received under a contract is essential to its rescission is applicable to a contract of release of a claim for damages for personal injuries where the release was obtained by fraudulent representations, since it is not void ab initio but voidable.</p> <p>[3] Id.—Rescission of Release — Fraud — Retention of Consideration—Rule Inapplicable.—The rule that a party is not required to restore that which in any event he would be entitled to retain is not applicable to a sum of money received as consideration for the release of a claim for personal injuries, where, in an action to recover for such injuries, rescission of the release is sought by the plaintiff on the ground of fraud, notwithstanding a judgment is recovered in a greater amount, since the money • is not the plaintiff’s in any event but is his only in the event that there has been a valid release.</p> <p>[4] Id.—Action for Personal Injuries—Release of Claim—Fraud —Finding Unsupported by Evidence.—In this action for personal injuries wherein an absolute release of all claims was set up as a defense, the evidence is insufficient to support the finding that the ■ release was obtained by fraudulent representation.</p> <p>1. Necessity of returning or tendering consideration upon repudiation of release of damages for personal injuries, procured by fraud, notes, 4 Ann. Cas. 655; 10 Ann. Cas. 739; Ann, Cas. 1912D, 1084.</p>

<p>[1] Election Law—Contest Under Direct Primary Law—Limitation op Judicial Inquiry.—In a contest of a nomination of a candidate for a public office under the provisions of section 28 of the Direct Primary Law, matters of fraud and misconduct on the part of election officers and the reception of illegal votes cannot be inquired into, since the law provides only for “a recount of the ballots cast” in the precincts as to which a recount may be sought.</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] Elections — Direct Primary Law—Political Party Qualified to Participate—Filing of Nomination Papers Unnecessary-Construction of Amendment of 1917.—The addition of 1917 to subdivision 7 of section 5 of the Direct Primary Law, which provides that every political party qualified to participate in the primary election by the provisions of subdivision 9 of -section 1 of the act, for nomination by which party there shall have been filed nomination papers for one or more candidates containing a sufficient number of signatures, shall be entitled to a separate party ticket at the primary election, but all such party tickets must' be alike in the designation of candidates for judicial, school, county, and township offices, is not to be construed as a declaration by the legislature that no party “qualified to participate” in the primary may do so unless nomination papers with sufficient signatures have been filed in the office of the Secretary of State, but is rather an affirmative declaration as to the right of all parties participating to “a separate party ticket” at the' primary election, with the proviso that all such tickets must be alike in the designation of candidates for judicial, school, county, and township offices.</p> <p>[2] Id.—Fundamental Purpose of Primary Law.—The fundamental purpose of the Direct Primary Law is to give every elector affiliated with any political party the power and opportunity to directly participate in the nomination of the candidates of such party by voting for whomsoever he desires for any nomination by the party, and this, as shown by the provisions of the act for a blank for the writing in by. the voter of a name not printed on the ballot, entirely regardless of whether the name of his choice is printed on the ballot as the result of nomination petitions having been filed for him at the candidate’s own instance or at the instance of a group of his advocates,</p> <p>[3] Id.—Right op "Voters to Separate Party Ballot—Writing in of Names op Candidates—Intention op Legislature.—In view of the mandatory provision of subdivision 1 of section 12 of the Primary Law, which declares a separate official ballot for each political party shall be printed and provided for use at each voting precinct, and of the provision of section 17, that the voter shall receive the official primary election ballot of the political party designated in his affidavit of registration and no other, it was the intention that' a party ticket should he provided for the affiliated members of every political party qualified t'o participate in the primary with blank spaces thereon for the writing in of any name not printed on the ticket, notwithstanding nomination papers were not filed in the office of the Secretary of State.</p> <p>[4] Id.—Filling op Vacancies—Construction op Term “Candidate.” The term “candidate” as used in the amendment of 1919 to section 25 of the Primary Law, relating to the filling of vacancies on a party ticket caused by disqualification of a candidate, is not confined to one for whom nomination papers were file .1, but includes any person lawfully selected at the primary by the voters of a party as its nominee.</p> <p>[5] Id.—Unsuccessful Candidacy por Party Nomination—Successpul Candidacy por Dipperent Party Nomination — Filling op Vacancy.—Where a candidate for the Republican party nomination for the office of United States senator was legally nominated as the Prohibition party candidate for such office by the “write-in method,” and was unsuccessful in obtaining his own party nomination, there was created a vacancy on the Prohibition party ticket under section 23 of the Primary Law, which, in view of the amendment of 1919 to section 25, the state central committee-of the Prohibition party had the right to fill by the selection of such defeated candidate.</p>

The facts are similar to those stated in the opinion of the court In the Matter of the Application of Lee H. Hinkelman, for a Writ of Habeas Corpus, ante, p. 392, [191 Pac. 682],

<p>APPEAL from a judgment Of the Superior Court of Los Angeles County. John M. York, Judge.</p> <p>The facts are identical with those stated in the opinion of the court in Louis Zechiel (a Minor), by Chas. E. Zechiel, His Guardian Ad Litem, v. Los Angeles Gas & Electric, Corporation, ante, p. 777.</p>

<p>Negligence — Conflicting Bindings.—Judgment reversed on the authority of Louis Zechiel (a Minor) by Chas. B. Zechiel, Bis Ghiardian Ad Litem, v. Los Angeles Gas 4" Electric Corporation, ante, p. 777.</p>