Volume 184 — California Reports

<p>[1] Workmen’s Compensation Act—Death of Bailroad Employee— Finding as to Character of Service — Conclusion of Law — Jurisdiction.—In a proceeding for compensation for the death of an employee killed while making repairs upon a switch engine which when in service was used in both interstate and intrastate traffic, a finding that during the time the engine was withdrawn from service for repairs it was not engaged in any service and that the deceased was therefore not engaged in interstate commerce at such time, must be regarded as a conclusion of law and as presenting the question of the jurisdiction of the commission to make the award, which question may he considered on certiorari.</p> <p>[2] Id.—Injury to Employee Engaged in Interstate Commerce— Jurisdiction.—Where an employee is injured while engaged in work directly relating to interstate commerce, the commission has no jurisdiction to award compensation for such injury, since the Federal Employers’ Liability Act is the exclusive remedy.</p> <p>[3] Id.—Character of Employment — General Test.—The general test as to the character of the employment is whether the employee was engaged in an aet so directly and immediately connected with interstate business as substantially to form a part or necessary incident thereof.</p> <p>1. Application of state compensation statutes to non-negligent injuries of employees while engaged in interstate commerce, note, I>. B. A. 19180, 450.</p> <p>Right and extent of review of findings of commission, notes, L. B. A. 1916A, 163, 266; L. B. A. 1917D, 186.</p> <p>2. Employees entitled to protection under federal act, notes, Ann. Cas. 1914C, 164; Ann. Cas. 1915D, 319; Ann. Cas. 1916D, 232; Ann. Cas. 1916E, 472; Ann. Cas. 1918B, 55, 70.</p> <p>[4] Id.—Death of Railroad Machinist’s Helper—Repair of Switch Engine Temporarily Withdrawn from Service—Employee not Engaged in Interstate Commerce.—A machinist’s helper employed by a railroad company, who was killed while making repairs on a switch engine temporarily withdrawn from service in both interstate and intrastate commerce, was not engaged in interstate commerce, and the Industrial Accident Commission had jurisdiction to award compensation for his death, since the engine had not been operated exclusively in interstate commerce, and the work which he was performing did not have the Immediate effect of furthering interstate traffic, and the instrumentality upon which he was laboring was not a car loaded with commodities consigned to or from other states.</p> <p>[5] Id.—Construction of Federal Liability Act—Declarations of Supreme Court of United States.—Declarations of the Supreme Court of the United States in the construction of the Federal Employers’ Liability Act must be accepted as the settled law on the point involved.</p>

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

PROCEEDINGS on Certiorari to review an award of the Industrial Accident Commission. The facts are stated in the opinion of the court. Gorrill & Trowbridge and Delger Trowbridge for Petitioner.

<p>[1] Landlord and Tenant—Action fob Breach of Lessor—Bight to Unused Portions of Premises—Instruction.—In an action by a lessee to recover damages for breach of certain covenants contained in a lease of a butcher-shop and adjoining slaughter-house on defendant’s farm and to enjoin interference with the use of the premises, an instruction that in the absence of a designation by the plaintiff of any part of the premises which the defendant might use or occupy, defendant would have no right to use or occupy any of the same, was without application either to the issues or the evidence, but without prejudice, where there was no showing that defendant sought to use the premises not needed by the plaintiff, or that any occasion existed for a designation.</p> <p>[2] Id.—Lease of Butcher-shop and Adjoining Slaughter-house— Barn Connected With Business Included—Construction of Lease.—Where a lease of a butcher-shop and adjoining slaughterhouse on the lessor’s farm provided that it is understood and agreed that the lessee shall have the right to occupy and enjoy all said property connected with said slaughter-house that he may deem essential or necessary to properly and efficiently carry on his business, the lessor’s barn which he had used in conducting the business was included.</p> <p>[3] Id.—Action for Breach—Damages—Evidence—Profit on Hogs. In an action by a lessee to recover damages for breach of certain covenants contained in a lease of a butcher-shop and adjoining slaughter-house and to enjoin defendant’s interference with the use of the premises, testimony of a butcher, who had formerly been in defendant’s employ, that defendant made a profit of four or five dollars on each of the hogs which he sold at wholesale was competent, relevant, and material upon the issue of damages.</p> <p>[4] Id.—Loss of Prospective Profits—Inability to Purchase and Fatten Hogs.—In such an action, testimony of the plaintiff as to the amount of loss which he had sustained by reason of not being able to purchase and fatten hogs and dispose of them because of defendant’s interference was competent, relevant, and material as to prospective profits, since such profits would have been one of the direct results of the conduct of the business but for defendant’s interference.</p> <p>[5] Id.—Breach of-Covenant not to Engage in Butcher Business —Matters Embraced in Business.—Where, in an action to recover damages for breach of certain covenants contained in a lease of a butcher-shop and slaughter-house, the plaintiff claimed that the defendant had breached a covenant that he would not carry on the butcher business during the term of the lease, it was material to show what the business embraced.</p> <p>[6] Id.—Buying and Fattening of Hogs as Part of Business—Exclusion of Evidence Harmless Error.—In such au action, error in refusing to allow testimony as to whether the buying and fattening of hogs was any part of the butcher business was not prejudicial, where it was shown by the evidence that the parties clearly intended that the business should include the fattening of hogs for market.</p> <p>[7] Id.—Capacity of Plant — Exclusion of Evidence harmless Error.—In such an action, the exclusion of the opinion of a witness as to the capacity of the slaughter-house plant was error, but without injury, where there was positive evidence on the point.</p> <p>[8] Evidence—Conclusion of Witness—Refusal to Strike—When Harmless.—The refusal to strike out the answer of a witness as a conclusion and not testimony as to a fact is not prejudicial where another witness gave testimony of similar import without objection.</p>

<p>APPEAL from a decree of final distribution and from an order settling final accounts of the Superior Court of Sacramento County. Charles 0. Busick, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

The petitioner was a candidate for election to the office of member of the assembly for an assembly district in the City and County of San Francisco.

<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>Sheldon Borden, Richard J. O. Culver, G. C. De Garmo and Albert A. Kidder, Jr., for Appellant.</p>

PROCEEDINGS on Habeas Corpus to secure release from custody on a charge of violating the Imitation Milk Act. The facts are stated in the opinion of the court. Thomas, Beedy & Lanagan, Theodore A. Bell, Raymond Benjamin, Thomas E. Lannen and William Thomas for Petitioner. U. S. Webb, Attorney-General, Robert W. Harrison, Chief Deputy Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.

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

<p>[l] Municipal Corporations — Illegal Contract — Expenditure of Public Monet—Injunction — Bight op Taxpayers.—Taxpayers of a municipality have the right to enjoin the payment of money under an illegal contract between the municipality and a private corporation, although the injunction may result in the abandonment of the project' contemplated by the contract and consequent business losses.</p> <p>1. Bight of taxpayer in absence of statute to enjoin unlawful expenditures by municipality, note, 36 L. R. A. (H. S.) 1.</p> <p>[2] Id.—Interpretation op Charter—History op Adoption.—In determining the intent of the people in adopting provisions of a city charter, the history of the adoption may be considered.</p> <p>[3] Id.—Entire Language to be Given Eppect.—It is a fundamental rule of construction that effect should be given to all the language of a charter, constitution, or statute.</p> <p>[4] Id.—City and County op San Francisco — Construction op Public Utilities — Regulation op Method op Entering into Contracts—Power op Supervisors—Charter.—Under article VI, chapter 1, section 9 of the charter of the city and county of San Francisco, the supervisors are authorized by ordinance to regulate the method of entering into contracts for the work described in subdivision 8 of section 9, namely, the construction of public utilities, notwithstanding the general scheme for entering into contracts for public work contained in section 14 of the same article.</p> <p>[5] Id.—Contract por Construction op Aqueduct—Cost-plus-a-pee Plan With Guarantee — Construction op Ordinance.—The board of supervisors of the city and county of San Francisco had the authority to enact an ordinance authorizing the board of public works to enter into a contract for the construction of an aqueduct in furtherance of the Heteh Hetchy project (the bringing of water from the Tuolumne River to the city) on a cost-plus-a-fee plan with a guarantee by the contractor that the total cost to the city should not exceed a specified maximum price per unit, and the phrase “eost-plus-a-fee” disassociated from the other parts of the ordinance and construed solely with reference to its language, and not with reference to any technical significance attached to the term, would seem clearly to indicate that the city was to pay the cost of doing the work, that is, for labor and material, and other expenses of the contractor, and to pay the contractor a fee for his services.</p> <p>[6] Id.—Guarantee op Maximum Unit Cost by Contractor—Construction op Ordinance.—Where the board of supervisors of the city and county of San Francisco in an ordinance authorizing the board of public works to enter into a contract for the construction of an aqueduct on the cost-plus-a-fee plan with a guarantee by the contractor that the total cost to the city should not exceed a specified maximum price per unit, waived a bond to protect laborers and materialmen, provided for advance payments of actual cost, fixed no amount of bond for the faithful performance of the contract, and made no provision for the payment of labor and material after the maximum guaranteed cost had been exceeded, except for payment direct by the city, such facts led to the conclusion that it was the intention of the board that in any event the city should pay the actual cost and that the contract price should be such “cost-plus-a-fee.”</p> <p>[7] Id.- Contractor’s Bond—Compliance With Charter Requirements.—Where a contract between the city and county of San Francisco and a construction company for the construction of an aqueduct merely required that the guarantee of the contractor’s bond should be the amount of the unpaid fee in the hands of the owner, a bond expressly providing that it was not intended as a guarantee of the estimated maximum cost substantially complies with the requirements of a bond for the faithful performance of the contract under section 21, chapter 1, article VI of the charter.</p> <p>[8] Id.—Requirement of Single Surety on Bond—Power of Supervisors.—Assuming that the provision with reference to the method of procedure in letting a contract for the construction of a public utility contained in an ordinance enacted by the board of supervisors of the city and county of San Francisco required that the bond for the performance of the contract be signed by two sureties instead of one, the supervisors had the power to provide in the ordinance for only one surety, as is provided by section 955 of the Political Code in case of corporate sureties, and also had power after execution of the contract to waive the requirement of more than one surety.</p> <p>[9] Id.—Ratification of Execution of Bond by Single Surety— Power of Supervisors.—The board of supervisors of the city and county of San Francisco has the power to authorize by way of ratification the execution of a contractor’s bond for the construction of a public utility by a single surety.</p> <p>[10] Id.—Form of Legislative Act—Resolution or Ordinance.—In the absence of statutory or charter provision to the contrary, a legislative act may be either in the form of a resolution or of an ordinance.</p> <p>[11] Id.—Ratification of Letting of Contract—Resolutions of Supervisors Appropriating Money.—Proceedings of the board of public works of the city and county of San Francisco in the letting of a contract and the taking of a bond relating to the construction of an aqueduct were ratified by the subsequent resolutions of the board of supervisors appropriating money for the purpose of carrying out the contract, and were equivalent, to ordinances, if they did not in fact become ordinances by reason of approval by the mayor.</p> <p>[12] Id.—Informality of Bond — Prevention of Contract Payments—Taxpayer Without Authority.—A taxpayer of a municipality cannot maintain an action to enjoin payments under a contract for the construction of a public utility based solely upon the mere informality of the contractor’s bond in being executed by one surety instead of two, as required by the charter, where no showing is made or suggested of injury either to the public or the taxpayer.</p> <p>[13] Id.—Sale of Bonds—Indorsement by Auditor on Contract— Compliance With Charter Requirements.—In this action by-taxpayers to enjoin the auditor of the city and county of San Francisco from paying money due under a contract for the construction of an aqueduct, the supervisors held to have regularly followed the authority vested in them with reference to the sale of bonds and the auditor to have complied with the requirements of the charter essential to the validity of the contract.</p> <p>[14] Id.—Purchase of Bonds — Eight of Contractor.—It is not illegal for a contractor under a cost-plus-a-fee contract' with a municipality to use part of his fee in the purchase of bonds sold to pay for the work, in the absence of fraud or collusion.</p>

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

<p>[1] Pleading—Want of Verification—Trial Without Objection— Waiver.—Where parties proceed to trial upon an unverified petition or answer without objection thereto, they are held, by so doing, to waive their right to object to the want of verification.</p> <p>[2] Id.—Unverified Petition for Appointment of Guardian—Waiver of Defect—Order not Subject to Collateral Attack.—Where after the filing of a petition for the appointment of a guardian notice was duly given and a hearing was regularly held, the omission to verify the petition as required by section 1763 of the Code of Civil Procedure was waived, and no want of jurisdiction being disclosed on the face of the record, the order of appointment cannot be collaterally attacked.</p> <p>[3] Guardian and Ward — Unauthorized Release of Guardian’s Mortgage — Money Borrowed from New Mortgagee — Ward’s Property.—Where a guardian caused a mortgage to be executed on real property owned by her in favor of her ward for the purpose of securing the restoration to the latter of moneys misappropriated by the guardian, and subsequently released of record such mortgage without an order of court, in order that she might obtain from a third person a loan on the property in an amount greater than that of the ward’s mortgage, the money obtained on the new mortgage to the extent of the amount of the ward’s mortgage is regarded in equity as paid for the use and benefit of the ward, and if misapplied by the guardian, such misappropriation amounts to embezzlement and the ward must look to the guardianship bond . for reimbursement.</p> <p>[4] Id.—Validity of Release—Priority of New Mortgage.—Under such circumstances, the release of the ward’s mortgage is valid, and the surety on the guardianship bond, as assignee of such mortgage, cannot claim any interest in the property as against the purchaser at the foreclosure sale of the new mortgage.</p> <p>[5] Mortgage—Assignment to Surety of Mortgagor — Amount Enforceable.—Where a recorded mortgage and the note secured thereby were for a specific sum, the assignee of the mortgagee could not, in any event, enforce the mortgage for a greater sum than the amount thereof with interest, regardless of the amount paid by the assignee under its obligation as surety for the mortgagor on the guardianship bond.</p> <p>3. Leave of court as prerequisite to action on guardian’s bond, note, 2 A, L. R. 569.</p>

PROCEEDINGS on Certiorari to review an award of the Industrial Accident Commission. The facts are stated in the opinion of the court. ■Edward C. Harrison, Maurice E. Harrison and Arthur W. Bolton for Petitioner.

APPEALS from a judgment of the Superior Court of Los Angeles County. Louis W. Myers, Judge. Judgment for cross-defendant on cross-complaint affirmed. The facts are stated in the opinion of the court. Allison & Dickson, Meserve & Meserve, Edwin A. Meserve, Shirley E. Meserve, J. D. Taggart and Harold G. Ferguson for Appellant, Cross-defendant and Respondent. A. W. Ashburn, for Respondent, Cross-complainant and Appellant.

<p>The facts are similar to those stated in the opinion in San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392.</p>

<p>[1] Common Cabriers — Adoption of Reasonable Regulations — Ejection of Passengers.—A carrier of passengers has a right to adopt reasonable rules and regulations for the conduct, comfort, and protection of- its passengers, and may enforce such rules or regulations by ejecting from its cars or premises one who wrongfully fails or refuses' to comply therewith.</p> <p>[2] Street Railroads—Designation of Place of Transfer—Reasonable Regulation.—A regulation of a street railway company that transfers are presentable only at the place or places designated thereon is a reasonable one.</p> <p>[3] Id.—Noncompliance With Regulation — Misdirection of Employee of Car Company—Refusal to Pay Cash Fare—Right to Resist Ejection.—A street-car passenger who does not comply with the reasonable regulation of the company as to the proper transfer point, even though such noncompliance be the result of a misdirection by one of the company’s employees, is not justified in resisting an attempt to eject him from the car in the event of his refusal to pay a cash fare.</p> <p>[4] Id.—Ejection of Passenger—Use of Unnecessary Force—Insufficient Finding.—In an action to recover damages for personal injuries alleged to have been sustained as the result of an attempt by defendant’s employees forcibly to eject plaintiff from one of defendant’s street-cars after refusal to pay his cash fare, claiming the right to ride on a transfer, a finding that the conductor and motorman seized the plaintiff and with “great force” attempted to eject him, is not a finding of the use of “excessive” or “unnecessary” force, or of the use of more force than was reasonably necessary.</p> <p>[5] Id.—Evidence—Amount of Force Used—Testimony of Conductor.—In such action, it was error to refuse to allow the conductor to testify as to whether he or the motorman used any more force than was necessary in the attempt to eject the plaintiff from the car.</p> <p>[6] Id.—Amount of Force Used — Form of Question — Appeal — Record—Objection not Available.—In such action, where testimony of the conductor as to the amount of force used in attempting to eject the plaintiff from the car was rejected on the sole ground that the motorman and conductor did use “enough” force, and not on the ground that the question called for the conclusion of the witness, the defendant will not be heard to urge on appeal for the first time that the question was not properly framed.</p> <p>2. Validity of rule of street railway with respect to transfers, notes, Ann. Cas. 1916D, 586; 8 L. R. A. (IT. S.) 287; 52 L. R. A. (IT. S.) 908.</p> <p>Gibson, Dunn & Crutcher and Norman S. Sterry for Appellant.</p>

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

<p>[1] Vendor and Vendee—Breach by Vendor—Rescission by Vendee —Recovery or Moneys Paid.—Where a contract of sale is rightfully rescinded by the vendee for a breach by the vendor, the latter is liable for the return of the moneys which he has received.</p> <p>[2] Id.—Assignment of Contract — Breach of Vendor — Recovery of Moneys Paid—Right of Assignee.—One who holds a contract of sale by assignment and who because of a breach of the contract by the vendor rightfully rescinds it has the right by virtue of his ownership of the contract to recover all moneys paid under the contract, whether paid by him or by those who held the contract prior to him.</p> <p>[3] Id.—Delivery of Possession—Unreasonable Delay by Vendor —Rescission by Vendee.—Under a contract for the sale of oil land making time of the essence of the contract and providing that the vendee should have the right to immediate possession, a delay of three years and nine months in giving possession is more than a reasonable time, and the vendee has the right to rescind the contract.</p> <p>1. Right of vendee in contract for sale of real property to recover payments made, on rescission of contract, note, L. R. A. 1918B, 540.</p> <p>2. Right of assignee of contract for purchase of land to sue for rescission thereof, note, Ann. Cas. 1917E, 845.</p> <p>m Id.—Delivery of Possession—Duty op Vendor—Construction op Contract.—A clause in a contract of sale that “said buyer shall be entitled t'o immediate possession of said premises” is to be construed as an obligation on the part of the vendor to put the vendee in peaceable possession, and not as .a mere provision that the vendee was privileged to take possession if he could get it without responsibility on the part of the vendor, where the parties, upon discovering that the land was claimed by a third party by adverse possession, made new arrangements providing that the vendor was not to receive further installments on the price until the vendee was put in possession.</p> <p>[5] Id.—Inability to Give Possession—New Arrangements as to Payments—Absence op Novation.—An arrangement between a vendor and vendee, upon discovery that immediate possession could not be given to the vendee as provided by the contract, placing the payments on the price in escrow until such time as the vendor might give possession, did not amount to a novation, but only a change in the agreement of the parties as to the manner of payment of the price.</p> <p>[6] Pleading—Writing—Legal Defect.—Where a writing is set forth in a pleading it is not necessary to plead its legal effect' in ' addition.</p> <p>[7] Vendor and Vendee—Rescission por Failure to Deliver Possession — Tender op Balance op Price — When Unnecessary.—A vendee under a contract of sale is not required to tender the balance of the purchase price before he can rescind the contract for failure of the vendor to deliver immediate possession as required by the contract, where the vendor admittedly could not give possession.</p> <p>[8] Id.—Conveyance by Quitclaim Deed—Rule as to Title—Inapplicability to Contract Calling por Possession.—The rule that an agreement to convey by quitclaim deed does not require the vendor to convey a good title has no application to a ease where from other considerations it is plain that the contract was conditional upon the vendee being let into actual possession.</p> <p>[9] Id.—Failure to Deliver Possession Within Reasonable Time— New Arrangements—Right op Rescission—Absence op Waiver. While a vendee under a contract of sale waives his right to rescind for failure of the vendor to comply with the provision of the contract requiring delivery of immediate possession, by entering into new arrangements with the vendor as to placing of the payments on the price in escrow until such time as the vendor might give possession, the right to rescind for failure of the vendor to thereafter deliver possession within a reasonable time is not thereby waived.</p> <p>[10] Id.—Rescission — Demand fob Possession—When Unnecessary.—A vendee under a contract of sale is not required to demand possession before rescinding the contract for failure of the vendor t'o deliver possession as required by the contract, where it was definitely understood by both parties that the vendor could not give possession.</p>

<p>[1] Corporations — Purchase of Property from Promoters—Disclosures of Secret Profits—When Unnecessary.—The owners of any kind of property may form a corporation with others and sell the property to the corporation at any price that may be agreed upon between them, regardless of the original cost, provided there is no fraudulent misrepresentation made by the vendors, and they are not bound to disclose the profit which they made by the transaction.</p> <p>[2] Id. —Sale of Lands to Corporation—Liability of Promoters fob Secret Profits.—Where the holder of an option to purchase lands and his associates, through the medium of a corporation which they organized, induced a number of persons to associate with them for the purchase of the lands at a price greater than that called for by the option without disclosing to such persons that they were making a profit by the transaction, they were liable to the corporation for such profit's.</p> <p>[3] Id.—Existence of Fiduciary Relationship — Disclosure of Transaction—Duty of Promoter.—Where a promoter makes a sale of lands to a corporation and realizes a profit therefrom, he occupies a fiduciary relation toward the corporation and his associates in it, and the burden is upon him to show a full disclosure of the facts concerning the transaction.</p> <p>2. Liability of promoter of corporation for secret profits, note, 18 L. R. A. (H. S.) 1110.</p> <p>3. Relation of promoter to corporation and stockholders, notes, 4 Ann. Gas. 669; 17 Ann, Cas. 269; Ann. Gas, 1915B, 176.</p> <p>[4] Id.—Recovery of Secret Profits—Nonconcealment of Transaction from Directors—Insufficient Defense.—In an action by a corporation against its promoters to recover secret profits made by them on a sale of lands to the corporation, the.fact that the nature of the transaction was not concealed from the board of directors was no defense, where the promoters directed and controlled the corporation.</p> <p>[5] Id.—Pleading—Inducement of Others to Become Subscribers —Sufficiency of Complaint.—In an action by a corporation against its promoters to recover secret profits realized by them on a sale of lands to the corporation, the failure of the complaint to allege directly that others were induced to become subscribers to the stock of the plaintiff is not a sufficient ground for reversal of the judgment, where the fact is alleged indirectly, is not in dispute, and affirmatively appears from the answers of the defendants themselves.</p> <p>[6] Id.—Value of Property Immaterial.—In an action for the recovery of secret profits made by promoters on a sale of property to the corporation, it is wholly immaterial whether the property was or was not worth what the plaintiff paid for it, since the wrong lies in the profit that was wrongfully made, and the relief in the return of the profit to the corporation.</p> <p>[7] Id.—Joint and Several Judgment Against Promoters—Evidence.—In an action by a corporation against the holder of an option to purchase lands and his associates to recover secret profits made by them on, a sale of the lands to the corporation without disclosing their personal interest in the transaction, a joint and several judgment against' all of the defendants for the full amount of the profits was proper where it appeared from the evidence that all defendants were participants in the fraud.</p> <p>[8] Id.—Part Payment in Stock—Recovery of Stock or Value— Right of Corporation.—Where a part of the purchase price of lands sold to a corporation by its promoters at' a secret profit was paid for in shares of stock, the corporation had the right to reclaim the shares or to recover their value as of the time of the wrong.</p> <p>[9] Id.—Judgment—When not Estoppel.—In an action by a corporation to recover secret profits made by promoters on a sale of lands to the corporation, the defendants cannot set up by way of estoppel a judgment obtained against the plaintiff and one of the defendants in an action against them by a third party, since' under section 1910 of the Code of Civil Procedure a judgment may operate as an estoppel between parties to it only when, timbare adverse parties.</p> <p>[10] Id — Statute of Limitations—Division of Shares Among Promoters—Insufficient Notice of Fraud.—Knowledge by a corporation that certain of its shares given by it to a promoter on a sale of lands by him to the corporation wherein the promoter made a secret profit had been transferred to other promoters was not sufficient to put the corporation on inquiry as to whether there had been a division of the shares pursuant to a scheme to defraud so as to bar an action for the recovery of the profits commenced more than three years thereafter.</p> <p>[11] Fraud — Discovery — Bule of Courts. — The courts will not lightly seize upon some small circumstance to deny relief to a party plainly shown to have been actually defrauded against those who defraud him on the ground that he did not discover the fact that he had been cheated as soon as he might have done, and it is only where the party should have plainly discovered the fraud except for his own inexcusable inattention that he will be charged with a discovery in advance of actual knowledge on his part.</p> <p>[12] Corporations—Recovery of Secret Profits—Discovery of Fraud—Pleading.—In an action by a corporation to recover secret profits realized by promoters on a sale of lands to the corporation, brought after the expiration of the statutory period of three years, where the complaint alleged the facts constituting the fraud showing it to be a concealed one and that defendants concealed the facts from the plaintiff, there was a sufficient allegation as to why there was no earlier discovery.</p> <p>[13] Id.—Circumstances of Discovery.—In such an action, where the evidence makes it plain that the circumstances under which the fraud was discovered did not involve a knowledge of facts upon which the plaintiff could be charged with a discovery prior to the three-year statutory period, plaintiff’s failure to plead the circumstances under which the fraud was discovered was nonprejudieial.</p> <p>[14] Id.—Delay in Commencement of Action—Lack of Laches.—■ In such action, the plaintiff cannot be charged with laches in delaying the commencement of the action after the discovery of the fraud, where brought within the period of limitation and no prejudice was shown to have resulted from the delay.</p> <p>[15] Laches—'Pleading.—Laches is a defense and is not a condition of relief, and, if it does not appear on the face of the complaint, must be affirmatively pleaded and proven by the defendants.</p>

<p>[1] Dismissal of Action—Notice of Application—Presumption.— An order dismissing an- action when entered is in the nature of a judgment against the plaintiff, and notice of the application for the order will be presumed where the want of it does not affirmatively appear.</p> <p>[2] Id.—Mistake of Court—Application for Belief—Inapplicability of Section 473, Code of Civil Procedure.—Where a trial court on the motion of an interested party without notice to the plaintiff made an order dismissing an action on the ground that no summons was issued within the time required by law, but in fact summons had been issued and no record thereof made by the clerk, the mistake in making said order was not that of the plaintiff, but of the court, -or of the court and the opposite party, and to such a ease section 473 of the Code of Civil Procedure has no application.</p> <p>[3] Id.—Time for Application.—An application to set aside an order dismissing an action made by mistake of the court and the opposite party must be made within a reasonable time after the order becomes final, and by analogy to the requirements of section 473- of the Code of Civil Procedure six months will be taken as the limit of what may be a reasonable time.</p> <p>[4] Id.—Setting Aside of Dismissal—Power of Court Prior to Entry.—-A trial court has the power to revoke at any time before its entry either in the minutes of the court or in the judgment-book an order of dismissal of an action, if it be found to have "been made inadvertently or through mistake, since the order of dismissal does not become effective as a judgment until it is entered.</p>

<p>[1] Alienation of Affections — Evidence — Improper Relations With Wife—Statements of Defendant.—In an action for alienation of a wife’s affections, statements of the defendant as to his improper relations with the wife are admissible against him.</p> <p>[2] Id.—Conflict of Evidence—Truth—Question for Jury.—In an action for alienation of affections of a wife, where the evidence is conflicting, the determination of the truth is a question for the jury.</p> <p>[3] Evidence — Competency of Declarations.—The competency of evidence of declarations or statements by a person other than the party to the action against whom they are introduced is not affected merely by the latter’s presence or absence.</p> <p>[4] Id.—Mental and Bodily .Feelings—Declarations—Exceptions to Hearsay Rule.—When the intention, feelings, or other mental state of a certain person at a particular time, including his bodily feelings, is material to the issues under trial, evidence of such person’s declarations at the time indicative of his then mental state, even though hearsay, is competent as within an exception to the hearsay rule.</p> <p>[5] Alienation .of Affections—Evidence—Statements of Wife in Absence of Defendant—Admissibility.'—In an action for alienation of a wife’s affections, evidence of conversations between the plaintiff and his wife indicative of her then feelings toward him is admissible, although made in the absence of the defendant, for the purpose of proving the wife’s then state of feelings.</p> <p>[6] Id.—Incompetency of Statements to Prove Other Material Matters—Admissibility Unaffected by.—In an action for alienation of a wife’s affections, evidence of statements made by the wife indicative of her then feelings toward her husband and the defendant and competent to prove her feelings is. not rendered incompetent because of the fact that the statements also contain material matters not provable by such evidence.</p> <p>[7] Id.—Scope of Evidence—Instruction—Right of Defendant.— In an action for alienation of a wife’s affections, where evidence is admitted of statements made by the wife for the purpose of proving her feelings toward her husband and the defendant, and such</p> <p>1. Admissibility of statements or declarations of plaintiff’s spouse concerning act or conduct of defendant in action for alienation of affections, note, 4 A. L. B. 497.</p> <p>statements also narrate or mention matters which the statements are not competent to prove and which if true are exceedingly prejudicial to the defendant, the defendant is entitled to a direct, positive, and unqualified instruction that the jury must not consider such evidence as proof of the matters narrated, but only for the purpose of showing the feelings of the wife.</p> <p>[8] lb.—Statements by Wipe—Consideration by Jury—Erroneous Instruction.—In an action for alienation of a wife’s affections, an instruction that the court would not instruct the jury as to what had been proven or not been proven, and that they were the sole judges of the value and effect of the evidence, but it was well for them to bear in mind that evidence of statements made by the wife to the plaintiff in the absence of defendant as t'o her relations with the defendant was admitted for the purpose of showing the relations between plaintiff and his wife, is not responsive to the request of defendant for an instruction properly limiting the consideration of such evidence.</p>

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

<p>[1] Default—Befusal to Vacate—Abuse of Discretion.—The refusal to set aside a default is an abuse of discretion where the application was made within less than twenty days after the default was entered, and it appeared that the defendant was an ignorant man, unable to understand the English language well, that he did not read the summons nor understand its purpose or effect, and that within a few days after the service thereof, and before the time to answer had expired, he and the plaintiff met and agreed upon a settlement of the matters set forth in the complaint.</p>

<p>[1] Mortgage—Foreclosure—Parties—Judgment.—In an action for the foreclosure of a mortgage a judgment against the real party in interest, who is before the court, is binding upon one not a party to the action who holds merely the naked title as trustee for such real party in interest.</p>

<p>[1] Municipal Corporations—Annexation op Inhabited Territory to City op Sixth Class—Part op School District op Which City not a Part—Validity op Annexation.—Annexation of inhabited territory to a city, of the sixth class under the statute of June 11, 1913 (Stats. 1913, p. 587), which territory is a part of both a common school district and a high school district of which the city is not a part, is not invalid as violative of section 1576 of the Political Code, which provides that territory within an incorporated city of the sixth class shall in no instance be in more than one school district, since such section is concerned only with school districts and does not purport to touch upon and be concerned with the matter of incorporating cities or annexing territory to them.</p> <p>[2] School Law—Cities oe Sixth Class — Single District — Construction op Code.—Section 1576 of the Political Code, providing that territory within an incorporated city of the sixth class shall in no instance be in more than one school district, is subject to the construction that it is applicable solely to the formation of school districts, or to the construction that annexed territory upon annexation is ipso faoto taken out from the school district of which it was before a part and made part of the district of which the city is either the whole or a part.</p>

<p>[1] Guardianship of Minor — Temporary Custody — Nature and Effect of Order Provided by Section 1747, Code of Civil Procedure.—The order provided for by section 1747 of the Code of Civil Procedure is one designed simply to enable the superior court, upon an ea¡ parte showing of necessity therefor, to provide for the temporary custody of a minor and its production in court until a hearing can be had of a petition for letters of guardianship, and the court informed of the immediate necessities with regard to the welfare of the child.</p> <p>[2] Id.—Vacation of Order for Temporary Custody — Power of Court.—It is within the power of the superior court to finally vacate an ex parte order made under section 1747 of the Code of Civil Procedure, providing for the temporary custody of a minor pending application for letters of guardianship, at any time during the course of the proceedings and thus restore the statiis quo, if upon investigation of the facts such action seems proper.</p> <p>[3] Id .—Judgment in Guardianship Proceeding—Incorporation op Order Vacating Order for Temporary Custody—Effect of.— The fact that an order vacating an ex parte order providing for the temporary custody of a minor pending. an application by the father for letters of guardianship was physically incorporated in the signed judgment denying the father’s application and awarding the permanent custody of the child to its mother does not make the order a part of the judgment in the proceeding, since it is in effect simply an express disposition of a provisional order restoring the status quo and entitling the mother to the custody, notwithstanding the taking of an appeal from the judgment.</p>

<p>[1] Contract—Sale of Pile of Machine-shop Repuse—Letters— Subject Matter of Contract.—In this action for the price of a pile of machine-shop refuse, the contract, as expressed in an exchange of letters confirming the agreement, is held to have been one for the sale of a certain pile of borings and turnings and not one for an unidentified quantity.</p> <p>[2] Id.—Loading of Material not from Pile—Immateriality.—In such action, in view of the absence of any doubt as to what the contract as expressed in the letters really was, the fact that two or three cars were loaded with material not from the pile was immaterial on the question as to what the contract was.</p> <p>[3] Id.—Mistake as to Nature of Material—When Insufficient Ground of Bejection.—Where a purchaser of a pile of machine-shop refuse examined it before its purchase and was fully informed as to the nature of material in it, there was no mistake on his part as to the nature of the material, and he cannot lawfully reject deliveries from the pile on the ground that the contract designates it as a pile of “turnings and borings” when in fact it was not.</p> <p>[4] Partnership — Fictitious Name — Compliance With Code Bequirements—Pleading—Tender of Issue.—In an action by a partnership doing business under a fictitious name, where the complaint counts on a partnership contract and alleges compliance with the requirements of sections 2466 and 2468 of the Civil Code, an issue is tendered on the fact of publication of the certificate of partnership, and a plea in abatement is not necessary.</p> <p>[5] Id.—Finding Without Evidence'—'When Justified.—In such an action, a finding on the issue of the publication of the certificate of partnership in plaintiff’s favor without evidence can be upheld only in case the burden does not rest upon the plaintiffs to prove the affirmative of the issue.</p> <p>[6] Id.— Compliance With Code—Burden of Proof.—In an action by a partnership doing business under a fictitious name to recover on a partnership contract, the plaintiffs have the burden of proving compliance with sections 2466 and 2468 of the Civil Code.</p> <p>[7] Id.—New Trial—Issue of Publication of Certificate.—In an action by a partnership doing business under a fictitious name to recover on a partnership contract, where all the issues except that as to the publication of the certificate of partnership have been properly determined, it is not necessary that there be a new trial except as to such issue.</p> <p>[8] Id.—Failure to Publish Certificate—Matter of Abatement.— The fact that publication of the certificate of a partnership doing business under a fictitious name has not been made is but a matter of abatement.</p> <p>[9] Id.—Compliance Prior to Trial Sufficient.—In an action by a partnership doing business under a fictitious name to recover on a partnership contract, it is sufficient if there be a compliance with the requirements of sections 2466 and 2468 of the Civil Code before trial upon the issue.</p>

<p>[1] Attorney and Client—Execution op Deed—Evidence—Testimony op Attorney.—In an action to have a deed declared to be a mortgage, the fact that the attorney who drew the deed had drawn a will for the grantor two years previous and retained it in his possession did not, of itself, establish the relation of attorney and client at the time of the making of the deed so as to make the testimony of the attorney concerning the transaction privileged under subdivision 2 of section 1881 of the Code of Civil Procedure.</p> <p>1. Communication with attorney before employment as privileged, note, 21 Ann. Cas. 217.</p> <p>Communications between attorney and client in regard to testamentary matters as privileged, notes, 14 Ann. Cas. 601; Ann. Cas. 1912A, 839; Ann. Cas. 1916C, 1073.</p> <p>Privileged communications between attorney and client, notes, Ann. Cas. 1913A, 3; Ann. Cas. 1916E, 335.</p> <p>[2] Id.—Drawing of Deed by Attorney—When Communications not Privileged.—Where an attorney at law acted as a mere scrivener in drawing a deed and the grantor asked no advice concerning it and solicited no service from the attorney other than the delivery of the deed, the communications in that' connection were not privileged.</p> <p>[3] Id.—Communication Directed to Grantee not Privileged.— Where the relationship of attorney and client exists between the attorney and the grantor of a deed and the latter direct's a communication to be imparted to the grantee, the communication is not privileged.</p> <p>[4] Id.—Instructions Given by Client not Privileged.—Where the communication between t'he client and attorney is one authorizing the attorney to perform some act on behalf of the client, the communication giving such authority is not a confidential communication by the client, and the attorney may testify to the instructions given to him.</p> <p>[5] Id.—Existence of Relationship—Burden of Proof.—The question as to whether or not an attorney is acting in the capacity of an attorney and the communications to him privileged is to be determined with relation to the particular transaction involved in the inquiry, and the burden of showing such relationship is on the party objecting to the evidence.</p> <p>[6] Id.—Testimony of Attorney as to Relationship.—Where an objection is made to the testimony of an attorney on the ground of privileged communication, it is proper to ask him whether or not with relation to t'he transaction under inquiry he was acting as attorney for the party making the statements sought to be elicited.</p> <p>[7] Id.—Admissibility of Privileged Communication — Waiver by Client Essential.—The mere fact that both parties claim under a deceased grantor does not make communications between the grantor and the attorney who drew the deed admissible, since the privilege must be directly or inferentially waived by the client.</p> <p>[8] Deed—Action to Declare Mortgage—Pleading—Parties—Right of Heir of Deceased Grantor.—In view of section 1452 of the Code of Civil Procedure, the heirs of a deceased grantor may maintain an action to have a deed executed by him declared to be a mortgage, and the court has the right to determine in such action whether the plaintiff is an heir.</p>

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

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

<p>[1] Estates of Deceased Persons—Will—Distribution of Residue —Construction.—A will giving all of the testator’s separate personal property and the rents of his ranch for three successive years to his wife in case she survived him, and directing that in case she did not survive him that all of his property be distributed as provided in the next section, which section gave the residue of his property to his children, is to be construed entirely without regard to the latter section, where the wife survived the testator, and she cannot claim that he died intestate as to the residue.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Charles A. Christin and Hutchinson, Van Fleet & Christin for Appellant.</p>

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

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

<p>[1] Pleading — Place of Trial — Piling of Moving Papers — Payment of Calendar Pee.—Where a demurrer t'o a complaint, a demand for change of place of trial, and an affidavit of merits, together with a notice of motion for change of place of trial, were mailed to a county clerk accompanied by a check sufficient in amount to entitle them to be filed, but did not include the calendar fee, the papers in the matter of the change of place of trial, with the possible exception of the notice of motion, should be regarded as having been filed when received by the clerk, although such officer withheld filing of all the papers but the demurrer.</p> <p>[2] Appeal—Order Refusing Change of Place op Trial—General Terms—Presumption—Lack of Diligence.—Where an order refusing to change the place of trial of an action t'o the residence of the defendant is general and fails to indicate any particular ground on which the court based it's conclusion, the appellate court must assume in support of the order that the trial court concluded that defendant did not act with due diligence in making the motion.</p> <p>[3] Id.—Diligence in Making Motion.—Motions for change of place of trial, being dilatory, must be prosecuted with diligence, and a defendant may not safely rest upon his affidavit of merits and . demand filed at the time he answers or demurs, but is bound at the peril of being held to have waived his right to proceed diligently in the matter of bringing the application to the attention of the court.</p> <p>[4] Id.—Order Refusing Change of Place of Trial—Undue Delay in Presenting Motion—Discretion not Abused.—An order refusing to change the place of trial of an action t'o the residence of the defendant cannot be said to be an abuse of discretion, where nothing was done by defendant in the matter of bringing his application by motion to the attention of the court between the time when he was fully advised that the moving papers were being withheld for nonpayment of the calendar fee and the time of payment of such fee, a period of over two months, and no explanation given of the delay.</p> <p>[6] Id.—Sufficiency of Affidavit of Merits.—An affidavit of merits on motion -for change of place of trial of an action to the residence of the defendant, stating that the defendant had stated all of the facts in the action to one of his attorneys, is sufficient.</p>

<p>[1] Prohibition—When Proper.-—-Prohibition lies only when and because the court or tribunal to which the writ is addressed is acting, or is about to act, in excess of its jurisdiction, and there is no plain, speedy, and adequate remedy in the ordinary course of law.</p> <p>[2] Public Officers — Accusation of- Misconduct — Who mat Prer "T.—Under section 772 of the Penal Code, any citizen may make and present an accusation against a public officer for misconduct in- office, and the fact that he is an officer is immaterial so far as the jurisdiction of the court is concerned.</p> <p>[3] Id.—Accusation Charging Crimes.—The fact that an accusation against a public officer made under section 772 of the Penal Code contains charges of willful and corrupt official misconduct which' are cognizable upon an accusation presented by the grand jury under section 758 does not divest the court of jurisdiction, since the remedies are cumulative.</p> <p>[4] Id.—Eight of Trial by Jury.—Section 772 of the Penal Code does not by its terms provide for or contemplate a trial by jury of the proceeding authorized by the section.</p> <p>[5] Id .—Belations Between State and Officers—Nature of Eight to Public Office.—While in any ordinary controversy between a civil officer and a private citizen, or between such officer and the state or any other, officer thereof, the right or title of such officer to his office is treated as a property right and is not subject to attack except in a direct proceeding instituted by the authority of the state, yet the office is held subject to proceedings for removal provided by law, and the officer cannot successfully object to a proceeding for his removal or to the jurisdiction of the tribunal to which an accusation is presented, if authorized' by statute.</p> <p>[6] Id.—Prosecution of Accusation ÍTnder Section 772, Penal Code — Nature of.—The proceeding under section 772 of the Penal Code for the removal of an officer for misconduct is not in effect a prosecution for a crime, but is an exercise by the legislature of the power given by sections 17 and 18 of article IV of the constitution to provide for trials for misdemeanors in office.</p> <p>[7] Id.—Constitutional Law—Eight to Jury Trial.—The right of trial by jury referred to in section 7 of article I of the constitution, providing that such right shall be secured to all and remain inviolate, is the right as it existed at common law, and does not guarantee such right to an officer prosecuted under section 772 of the Penal Code.</p> <p>[8] Id.—Jurisdiction—Construction of Code.—Under section 772 of the Penal Code, providing that the accused must be an officer within the jurisdiction of the court, the word “jurisdiction” means the local jurisdiction, that is, the county, and does not refer to the power of the court to issue process to all parts of the state given by section 5 of article VI of the constitution, and it follows that an accusation to the superior court of one county against an officer of another county could not be maintained, unless brought there by a change of venue.</p> <p>[9] Id .—Money Judgment in Favor of Accuser—Section not Discriminatory.—The provision of section 772 of the Penal Code that when the accusation is made by a citizen judgment must be entered for five hundred dollars in favor of the accuser does not render the section invalid as discriminatory, although under section 758, upon an accusation by the grand jury, no money judgment can be given, since the grand jury is charged with the duty of inquiring into willful or corrupt misconduct of public officers.</p> <p>[10] Id.—Defect in Title of Proceedings — Jurisdiction not Divested.—Jurisdiction of a proceeding under section 772 of the Penal Code is not affected by the fact that the proceedings were entitled in the name of the accuser instead of in the name of the people as required by section 20 of article "VI of the constitution, since such defect is amendable.</p>

<p>dl Corporations — Sale of Stock for Delinquent Assessment — Publication of Notice Essential.—A forfeiture of stock for nonpayment of an assessment is void in t'he absence of a publication of notice of the delinquent sale as required by section 337 of the Civil Code.</p> <p>[2] Id.—Sale of Stock Without Publication — Acquiescence of Stockholders—"Validity of Forfeiture as to Creditors.—A ~bona fide sale of stock for nonpayment of an assessment made without publication of notice of the delinquent sale is binding upon the creditors of the corporation where no proceedings are taken to recover the stock as provided by section 347 of the Civil Code.</p> <p>[3] Id.—Purchase of Stock by Corporation at Delinquent Sale— Termination of Liability of Stockholder for Unpaid Balances on Stock.—In view of sections 343 and 344 of the Civil Code, authorizing corporations to purchase its own stock at a delinquent assessment sale, the effect of such a sale, as between the stockholder and the corporation, is wholly to divest the stockholder of all right or interest in his shares, to pass title to the corporation, and to terminate all liability on the part of the stockholder for unpaid balances on his stock.</p> <p>[4] Id.—Insolvency of Corporation — Stockholders not Chargeable With Knowledge.—Stockholders of a corporation are not chargeable with knowledge of the corporation’s insolvency.</p> <p>[5] Id.—Forfeiture of Stock After Insolvency of Corporation— Liability of Stockholders for Unpaid Balances to Creditors. In the absence of fraud, collusion, or intention to prejudice the rights of creditors, stockholders of a corporation whose stock has been forfeited and purchased by the corporation for delinquent assessments are not liable to the creditors of the corporation for the unpaid balances on their stock, notwithstanding the forfeiture was made after the corporation had become insolvent.</p>

<p>[1] Negligence—Injury to Railroad Employee—Interstate Commerce — Carrier op United States Mail — Federal Employers’ Liability Act.—In an action to recover under the federal Employers’ Liability Act for personal injuries sustained by a locomotive fireman while discharging his duties, a finding that the train upon which he was working at the time of the accident was engaged in interstate commerce is amply supported by the testimony of a railway postal clerk that the train was carrying registered letters coming from and destined to points outside of the state.</p> <p>1. Employees entitled to protection under federal act, notes, Ann Cas. 1914C, 164; Ann. Cas. 1915D, 319; Ann. Cas. 1916D, 232; Ann. Cas. 1916E, 472; Ann. Cas. 1918B, 55, 70; 11 A. L. R. 1184.</p> <p>[2] Id.—Impending Collision — Leap op Locomotive Fireman — Operation op Air-brakes—Evidence.—In this action for injuries sustained by a locomotive fireman in jumping from his engine t-o avoid the effect of a collision with the trailer of a stalled motor truck, there was no substantial evidence to support a finding of negligence on the part of the engineer in releasing the air-brakes about nine hundred feet from the crossing after rounding a curve, whereby the brakes could not be applied in time to avoid the collision.</p> <p>[3] Id.—Special Damages—Evidence—Line op Promotion.—In an action for damages for personal injuries sustained by a locomotive fireman while engaged in the performance of his duties, testimony that he was in line of promotion to the position of lpeomotive engineer at an increased salary with only one man ahead of him was admissible in reference to his reasonable future expectations.</p>

<p>[1] Corporations — Capitalization With Other Than Money —• Basis.—When the capital of a corporation is paid in something other than, money, the thing accepted in lieu of money must be reasonably near its equivalent, and while the hopes or prospects for a property afEeet its immediate cash value, it is that cash value, and not the future value of the property if the hopes or prospects are realized, which must be taken as the basis of capitalization.</p> <p>[2] Id.—Issuance of Stock—Transfer of Minino Claims—Stockholders not Subscribers.—Persons to whom shares of stock in a mining company are issued as fully paid up in consideration of the transfer to the company of certain unpatented claims, in which they had an interest and which are not worth the par value of the shares, are not subscribers, and they are not liable as subscribers to the creditors of the corporation for the unpaid balances on the par value of the shares.</p> <p>[3] Id.—Acceptance of Partially Paid Stock—Liability for Unpaid Balance.—When one accepts partially paid stock, which does not purport to be anything else, he does so, or must be taken to do so, iipon the understanding that it is answerable upon call for t¿e unpaid balance upon it, and that he as its owner must respond to such a call.</p> <p>[4] Id.—Acceptance of Purported Fully Paid Stock—Liability for Further Calls.—Where a person accepts the ownership of stock which purports t'o be fully paid he does not enter upon the relationship of stockholder to the corporation upon any understanding that his stock is liable for further calls on capital account, or that he, as an incident of his ownership and consequent relationship, assumes any such obligation.</p> <p>[5] Id.—Holder of Watered Stock—Principle of Liability.—The principle upon which the holder of watered stock is held to make good what it is pretended the corporation received, but did not, is, that one giving credit to a corporation is entitled to rely upon its ostensible capitalization as the basis for the credit given, and that when the corporation issues watered stock and thereby assumes an ostensible capitalization in excess of its real assets, the transaction necessarily involves the misleading of subsequent creditors, and, whether done with that purpose actually in mind or not, is at least a constructive fraud upon such creditors.</p> <p>[6] Id.—Innocent Transferee of Watered Stock—Liability for Unpaid Calls.—One who is only a transferee of watered stock and did not participate in the transaction whereby it' was originally issued and who took his stock unaware of the character of that transaction, cannot be compelled to make good the false representation as to the capital of the company which he had no part in making and the responsibility for which he has dona nothing to assume.</p> <p>[7] Id.—Acceptance of Watered Stock of Mining Company — Ignorance of Fact — Nonliability to Creditors.—Holders of shares of stock in a mining corporation issued as fully paid up but in fact issued in consideration of the transfer to the corporation of mining claims worth less than t'he par value of the shares are not liable to creditors of the corporation for the deficiency, where they did not directly or indirectly participate in the transaction, had no knowledge when they accepted their stock that it was issued for less than its par value, and acquired it merely as transferees of one of the parties to the original transaction by which it was issued.</p> <p>[8] Id.—Recovery of Unpaid Balances on Watered Stock — Evidence—Burden op Proof.—In an action by a creditor of a corporation against holders of watered stock for unpaid balances on the par value of their shares, the burden is upon the plaintiff to allege and prove the connection of defendants with the fraudulent transaction.</p> <p>[9] Id.—Liability op Stockholders—Character op Proof.—In such action, it is sufficient to charge the defendants to show that they acquired their stock with notice or knowledge that it was issued for a consideration less than the par value of the shares.</p> <p>[10] Id.—Pleading—Parties Defendant.—In such an action, it is not necessary to join as parties defendant all holders of watered stock.</p> <p>[11] Id.—Valuation of Claims — Report of Mining Engineer.—In an action by a creditor of a mining corporation against the holders of watered stock issued in consideration of the transfer of mining claims to the corporation t'o recover the unpaid balances on their stock, a written report of a mining engineer on the claims is hearsay and inadmissible as direct evidence of the value of the claims, but is competent evidence as to the belief of the directors as to such valuation, if it appear that it was before the directors.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>W. A. Alderson, K. A. Miller and Noyes & Heath for Appellant.</p>

<p>[1] Contract—Interest in Bice Crop—Bights op Mortgagee and Lessees—Construction.—The right of the mortgagee of a growing crop of rice subject to outstanding • crop leases by which the lessees were entitled to two-thirds interest in the crops on harvest of the same is, as to the remaining one-third interest, paramount to any rights of the lessees under a provision of the lease contract providing for the refunding of money advanced by the lessees to the lessor in either gold coin or in rice at the prevailing market price when the division of the crop was made, since such provision was a promise and not a pledge, and in view of the fact that under the contract title to the crop was to be in the lessor until division of the crop was made.</p>

<p>[1] Estates of Deceased Persons—Will—Document Addressed to Life Insurance Company—Designation of Beneficiary—Lack of Testamentary Character.—A document addressed to a life insurance company signed by the writer and several persons as witnesses stating that the writer wished t'o name a designated person as beneficiary of her policy if she should die in Calexico or vicinity, as such person was to care for her remains, is not testamentary in character, but nothing more than a statement' to the company of her wish as to the beneficiary under the policy.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Chiekering & Gregory, Evan Williams and Donald T. Lament for Appellant.</p>

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

<p>CERTIORARI to review an order of the Industrial Accident Commission awarding compensation.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Shasta County. James G. Estoy, 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>APPEAL from an order of the Superior Court of Los Angeles County allowing compensation for services of guardian of an incompetent person. James C. Rives, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Waters and Water Eights—Surface Waters—Obstruction of flow—Eight of Land Owner.—One has no right to obstruct the flow on to his land o£ what are technically known as surface waters, but by surface waters are not meant any waters which may be on or moving across the surface of the land without being collected into a natural watercourse, but only waters falling on the land by precipitation or arising thereon in springs.</p> <p>[2] Id.—Flood Waters—Eight of Obstruction.—One has the right to protect himself against flood waters, that is, waters escaping from a natural watercourse, and for that purpose to obstruct their flow on to his land, even though such obstruction causes the water to flow on to the land of another.</p> <p>[3] Id.—Natural Watercourse — Obstruction.—One may not obstruct or divert the flow of a natural watercourse, that is, a stream in the real sense, with a definite channel with bed and banks, within which it flows at those times when the streams of the region habitually flow, but not meaning the gathering of errant water while passing through a low depression, swale, or gully.</p> <p>[4] Id.—Escaping Waters of Stream — Nature of — Protection Against by Property Owners.—Where, at a time of extreme high wafer, some of the water of a canyon on emerging from it broke out of its channel and flowed down the opposite side of the cone of detritus from that which it had previously flowed, such water was flood water running wild, and property owners threatened thereby had the right to protect themselves against it as best they could, it being immaterial that the water had made for itself a channel or followed some natural channel, gully, or depression and had come to the properties as a stream instead of spreading out over the ground.</p> <p>[5] Id. — Action for Damages — Estoppel by Former Judgment — Insufficiency of Pleading.—In an action to enjoin the diversion of flood waters, the court properly refused leave to file a supplemental answer pleading a judgment against the plaintiff in another action brought by him against the defendant, where there was no allegation that the issue in question was in fact determined by the judgment adversely to the plaintiff, or any equivalent allegation showing an estoppel.</p> <p>[6] Judgment—Estoppel.—If the issue as to which estoppel by former judgment is claimed is one which had to be determined by the jury in order to arrive at their verdict, the verdict and consequent judgment are a final determination of the issue binding upon the parties in all subsequent litigation, but if the issue were not the one which the jury had to decide to arrive at their verdict, there is no estoppel with regard to it.</p>

<p>PROCEEDING on Certiorari to review an award of the Industrial Accident Commission.</p> <p>The facts are stated in the opinion of the court.</p> <p>R. P. Wisecarver and Redman & Alexander for Petitioners.</p>

<p>[1] Deed—Quitclaim to United States of Mineral Land—Aid of Navigation—Construction of Convetance—Grant of Fee.—A quitclaim deed of land in the bed and on the banks of a tributary to a navigable river, made to the United States government to preserve the navigability of the river, conveyed the fee, and not an easement, notwithstanding the reservation of mining rights, and of the use and occupation of the land not inconsistent with the use of the grantee, where the conveyance was sufficient in form, both in the granting and habendum clauses, to convey the fee, and contained no limitation as to the character of the use by the government, but, on the contrary, expressly provided that the land might be used for any and all purposes.</p> <p>[2] Id.—Execution of Deed — Surrounding Circumstances — Evidence—When Inadmissible.—Where the proper construction of a deed is plain on its face, declarations during the negotiations concerning the purpose of the deed and the rights of the parties with reference to the use of the property cannot be considered for the purpose of modifying or changing the terms of the document itself.</p> <p>[3] Id.—Purpose of Deed — Surrounding Circumstances—When Immaterial.—Even though it he apparent from the negotiations and surrounding circumstances leading up to the execution of a deed of land to the government that the purpose was to construct reclamation works and to use a portion of the land as a settling basin, such fact would have no greater effect than a declaration to the same effect in the deed, and such an express declaration would not convert a deed whose terms otherwise conveyed a fee into one conveying a mere easement for such use.</p> <p>[4] Id.—Bight to Extract Minerals.—Where a quitclaim deed to the United States of certain land for the construction of reclamation works and a settling basin reserved and excepted all precious metals, but contained no express reservation of the right to extract them, the grantee of such reserved right nevertheless had the right to extract such metals, even though the effect would be to wholly destroy the surface of the land, in view of the principle that' the right to precious metals implies the right to mine them and of the statutory rule that reservations and exceptions are to be construed in favor of the grantor, and of the express reservation in the deed of the right to use the premises in any manner not inconsistent with the use of the government.</p> <p>Oral proof as supplementing deed, note, 2 Ann. Cas. 148.</p> <p>[5] Id.—Deposit op Detritus from Mining Operations.—Where land conveyed to the government in fee for reclamation purposes in aid of navigation was in turn conveyed by the government t'o a gold dredging corporation, the right of such corporation to deposit detritus on another tract of land to which another company had succeeded to the mineral rights of the original grantor was limited to what was reasonably necessary to enable it to conduct its dredge mining operations on its own tract.</p> <p>[6] Id.—Reserved Right of Possession — Recovery por Use and Occupation — Demand.—Where a deed of land to the United States for reclamation purposes in aid of navigation reserved the use and possession in so far as the same might not interfere with the use and possession of the United States, the grantee of the United States can recover for the value of the use and occupation of the land from the original grantor or his successor only in case that demand for possession was made upon him or such successor, and then only for the period subsequent to such demand.</p>

PROCEEDING on Certiorari to review an award of the Industrial Accident Commission. The facts are stated in the opinion of the court. R. P. Wisecarver and Redman & Alexander for Petitioners.

<p>APPLICATION for a Writ of Mandamus to compel the issuance of list of high school text-books as required by section 1750 of the Political Code.</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] Fraternal Societies — Death Benefit — Conflicting Claims — Pleadings — Improper Judgment.—In an action to recover a death benefit upon a certificate of membership issued by a fraternal organization, where by the pleadings the defendant admitted its liability but presented the question of whether or not such liability was to the plaintiff, the beneficiary named in the cortifieate, or to another person, it was improper to render judgment for the plaintiff on the pleadings, as the defendant should have been permitted to' pay the money into court to await the final judgment wherein the respective rights of the claimants should be determined.</p> <p>[2] lb.—Failure to Deposit Monet in Court—Insufficient Ground for Support of Judgment.—In such an action, the failure to deposit the money in court as provided by section 386 of the Code of Civil Procedure cannot be relied upon to sustain the judgment on the pleadings in favor of the plaintiff, where the defendant requested the making of an order for the deposit, and the court, instead of doing so, entered judgment on plaintiff’s motion.</p>

<p>[1] Guardianship of Minor—Competency of Parent—Presumption. A parent is presumed to be competent to discharge the duties of guardianship in the absence of an affirmative showing to the contrary.</p> <p>[2] Id.—Fitness of Mother—Evidence—General Refutation.—The general moral character of the mother of a child is. involved in the issue of her fitness to have its care, and evidence of her reputation for truth, honesty, and integrity is admissible under such issue.</p> <p>[3] Id.—Lack of Integrity—Insufficient Proof of Unfitness.—A mere lack of integrity is not sufficient in itself to justify depriving a parent of the natural right to the custody of a child.</p> <p>1. Bight of parent to appointment as guardian of minor child, note, 33 X>. R. A. (N. S.) 868.</p> <p>[4] Id.—Prior Reputation — Evidence—Discretion.—The admission of evidence of the reputation of the mother of a child in another community and at a remote time rests largely in the discretion of the trial court, the proper exercise of which is dependent upon the question of whether or not, under all of the circumstances, such reputation, despite its remoteness as to time and place, has a tendency to establish reputation at the precise time and place when and where it is in issue.</p> <p>[5] Id.—Declaration op Husband—Admission op Illicit Relationship of Mother—Prejudicial Testimony.—In a contested proceeding for the guardianship of the person and estate of a minor, involving the fitness of the mother, the admission of a declaration made by her husband to a city chief of police some five or six years previous that the declarant was bent on killing a certain person because his wife had confessed to him that she had had illicit relations with such person was reversible error.</p> <p>[6] Id.—Abandonment op Child—Insufficiency op Evidence.—An abandonment of a child by its mother is not established by proof that, being dissatisfied, if not discouraged, with the prospect of being compelled indefinitely to bear the burden of supporting herself and her husband, she separated from him, and, after an unsuccessful endeavor to have the child placed with and cared for by its grandmother, left for fields anew to work out her own salvation single-handed and alone.</p> <p>[7] Id.—Insufficient Acts op Abandonment.—The right of a parent to the custody of its child cannot be held to be forever forfeited by an act of relinquishment committed under circumstances of coercion, caprice, and discouragement, nor should the forfeiture of parental rights be decreed against a parent who has merely acquiesced in the support of the child by other relatives.</p> <p>[8] Id.—Intention to Abandon—Essential Element.—An intention to abandon a child must be shown before a finding of abandonment can be rightfully made.</p> <p>[9] Id.—Paramount Right op Parents.—The care, custody, and control of a minor under the age of fourteen years must be committed to its parents, rather than to strangers, unless it be shown and found that the parent is unfit to perform the duties imposed by the relation or has, by abandonment, forfeited the natural right to it's custody.</p> <p>[10] Id.—Contest Between Parent and Stranger—Paramount Question.—In a contest for guardianship of a minor between a parent and a stranger, the paramount question is the competency of the parent, despite the fact that the material welfare of the child may perchance be enhanced by committing its care and custody to another person.</p> <p>[11] Id.—Want of Permanent Home by Mother — Insufficient Ground for Refusal of Guardianship.—Even though it be shown that the mother of a child has not at the time of the hearing of the guardianship proceeding a permanent home of her own, and therefore may be unable for the time being to keep the child with her personally, nevertheless she is not for that reason alone to be deprived of its legal custody and the related right of selecting a fit and proper place where it shall be kept and cared for.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Watt, Miller, Thornton & Watt and Miller, Thornton, Miller & Watt, for Appellants.</p>

<p>[1] Evidence—Value op Thing—Cost.—The cost of a thing is evidence of its value, especially where it appears that it is comparatively new and where it has no established market value, as in the case of second-hand goods, lands not on the market, water in the ground, buildings, pipe-lines laid in the ground, and the like.</p> <p>[2] Water Bates—Determination op Question op Confiscation— Valuation of Plant—Consideration op Testimony.—In an action by a water company to enjoin the enforcement of a municipal ordinance fixing rates on the ground that the rates were so low as to constitute a confiscation of plaintiffs property, the court in hearing testimony as to the value of the respective parts of the plant was not compelled to take the estimate of any witness as a whole, but could accept such opinion on the item as to which it was lowest and reject it on others, and compute the value on the combined lowest estimates of all or any number of the witnesses.</p> <p>[3] Id.—Depreciation of Plant—Consideration in Fixing Bates.— A water company in the fixing of rates is entitled to have an amount allowed on account of depreciation and for the rebuilding of the plant as it becomes outworn.</p> <p>[4] Id .—Determination of Amount for Depreciation — Methods.— In determining the amount to be allowed for depreciation, the court may either take the value of each component item of property at ‘the time the rate is fixed and divide the same by the number of years then remaining of its life and turn over the amount of the quotient to the owner each year of such life by an addition to the rates sufficient to make up that sum, or it may provide for a sinking fund, the amount of which, if invested each year at current rates of interest on money loaned on safe security, will produce the present value at the end of the life, and add such sum to the amount to be raised by rates each year.</p> <p>[5] Id .—Receipts from Pipe Bonuses—Part of Capital Investment.—Pipe bonuses received from owners of tracts of land in proposed subdivisions in consideration of the water company laying mains in such subdivisions is not a part of the legitimate receipts from the operation of the company in its character as a public ser. vice company, but the mains laid is a part of the plant and the money expended in so doing is a part of its capital investment.</p> <p>[6] Id .—Source of Expenditures Immaterial.—The fact that money expended by a public water company was given to it by other persons is immaterial in determining the value of the plant for rate-fixing purposes. The source of the money invested does not affect the question of value.</p> <p>[7] Id.—Rates of 1.27 Per Cent Confiscatory — Constitutional Law.—A municipal ordinance fixing water rates which only permits 1.27 per cent interest on the capital investment is confiscatory and in violation of the constitutional provisions prohibiting the taking of private property for public use without due compensation and without due process of law.</p>

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

PROCEEDING in Certiorari to review an order of the Railroad Commission for the resumption of water service. The facts are stated in the opinion of the court.

<p>APPLICATION for a Writ of Mandamus to compel the payment of a judgment against a municipality.</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>Charles S. Wheeler, John P. Bowie, Nathan Moran, A. A. Heer and Moran & Heer for Appellant.</p>

<p>[l] Municipal Corporations—San Francisco Fire Department— Reorganization upon Adoption of Charter—Former Employees —Officers and Members.—Employees of the fire department of the city and county of San Francisco, who were such at the time when the charter went into effect on January 8, 1909, are “officers and members” of the department within the meaning of section 1 of chapter 2 of article IX, providing for the reorganization of the department from the persons then in the service and their exemption from civil service examination, regardless of whether such employees are enumerated and their salaries fixed by chapter 8 of article IX.</p>

<p>APPLICATION for a Writ of Certiorari to review an order modifying an order concerning counsel fees in an action for divorce.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Divorce—Orders for Payment of Money to Wife—Power of Modification.—The superior court has power in divorce actions to modify its orders for the payment to the wife of money necessary to enable her to support herself during the pendency of the action, or to enable her to prosecute or defend the action, as the circumstances with regard to necessity change.</p>

<p>[1] Attorneys at Law—Conviction or Crime Involving Moral Turpitude — Disbarment — Record Conclusive Evidence.—The conviction of an attorney and counselor of a felony or misdemeanor involving moral turpitude in a court of this or another state or in a court of the United States is ground for his disbarment, and in such a case the record of conviction is conclusive evidence of such conviction.</p> <p>[2] Id.—Production or Record or Conviction—Duty or Court.— Upon production of the record of conviction of an attorney and counselor of a felony or misdemeanor involving moral turpitude, it is the duty of the supreme court to proceed thereon and to give judgment striking the name of the attorney from the roll of attorneys and counselors of the court and precluding him from practicing as an attorney and counselor in all of the courts of the state.</p> <p>[3] Id.—Conviction op Conspiracy to Violate Espionage Act— Moral Turpitude.—An attorney and counselor at law convicted of the crime of having willfully engaged in a conspiracy having for its definite purpose the obstruction, while the United States was at war, of the recruiting or enlistment service of the United States involves moral turpitude.</p> <p>3. Disloyal acts or political opinions as ground for disbarment or suspension of attorney, notes, 8 A. L. E. 1262; 12 A. L. E. 1189.</p>

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

<p>[1] Criminal Law—Order Denying Motion in Arrest of Judgment— Appeal.—An order denying a motion in arrest of judgment is not an appealable order, but any error in denying such a motion is reviewable on appeal from the judgment.</p> <p>[2] Id.—Presumption of Sanity.—A person charged with crime is presumed to be sane until the contrary is established by a preponderance of evidence.</p> <p>[3] Id.—Insanity as a Defense.—Insanity as a defense in a criminal action means such a diseased and deranged condition of the mental faculties as to render the person incapable of knowing the nature and quality of the act he is charged with doing, or if he did know, incapable of distinguishing between right and wrong in relation to such act.</p> <p>[4] Id.—Murder—Insanity-—Preponderance of Evidence-—-Appeal.— On appeal from a judgment of conviction of murder, the defendant cannot claim that the preponderance of the evidence was in favor of his theory of insanity because the prosecution rested on the presumption of sanity and evidence of his acts and conduct and introduced no. evidence to contradict that of certain alleged intimate .acquaintances who were allowed to give their opinions as to his mental condition based on observations made during a few weeks preceding the homicide.</p> <p>[5] Id.—Preponderance of Evidence—Meaning of Term—Instruction.—In the absence of request for an instruction defining the term “preponderance of the evidence,” or of an intimation that such an instruction was desired, the defendant in a criminal action cannot complain of the failure to give such an instruction.</p>

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

<p>[l] Water Corporations—Organization tor Supply ot Land Owners —Character ot Corporation—Delivery ot Water—Jurisdiction ot Proceeding.—Where a water supply and water system owned and operated by a water company was acquired and constructed with money paid by certain land owners with the understanding that the system was to be so operated as to produce a certain quantity of water and that such water was to be distributed to their lands to the extent of their needs, and to no other lands until such lands were supplied, the water company did not thereby become a public utility, but an agent or trustee of the stockholders to the extent of the water to which they were entitled, and the superior court, and not the Railroad Commission, had jurisdiction of a proceeding brought by the company on behalf of its stockholders to compel the corporate successor of the company, who had agreed to furnish such stockholders' a certain quantity of water at a certain rate, to perform its agreement.</p> <p>[2] Id.—Evidence—Public Service Corporations—Judicial Notice. Courts will not take judicial notice of the public service character of private corporations.</p> <p>[3] Id. — Status of Water Company — Statutory Definitions of Public Utilities—When Immaterial.—The definitions of public utilities in the Public Utilities Act of 1911 and in the act of 1913 defining the conditions under which a water corporation shall * be deemed to be a public utility subject to the jurisdiction of the Railroad Commission has no effect upon private property or water devoted to private use prior to the enactment of such statutes.</p> <p>[4] Pleading—Defective Allegations—Special Demurrer.—Where a complaint states a cause of action as against a general demurrer, defects in the form of certain allegations should be raised by special demurrer.</p>

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

<p>[1] Banks and Banking—Relationship Between General Depositor and Bank—Debtor and Creditor.—The relation between a general depositor and the bank in which his deposit is made is simply that of debtor and creditor.</p> <p>[2] Id.—Check Against General Deposit—Absence op Lien or Equitable Assignment.—A check drawn against a general deposit creates no Ren upon the money on deposit and does not operate as an equitable assignment of the deposit or any interest therein or part thereof.</p> <p>[3] Id.—Indebtedness op Depositor to Bank—Application op Deposit in Payment—Right op Bank.—Under section 3054 of the Civil Code, which provides that a banker has a general Ren, dependent on possession, upon all the property in his hands belonging to a customer for the balance due to him from such customer in the course of the business, a bank has the right to apply a deposit in payment of a matured note of the depositor due the bank and to refuse payment of checks drawn on the deposit on the ground of insufficiency of funds after making such application.</p> <p>[4] Id.—Deposit op Trust Funds—Lack op Knowledge op Bank —Application in Payment op Depositor’s Indebtedness — Applicability op General Rule.—The rule that a bank has the right to apply a deposit t'o a debt due it from the depositor is applicable to a deposit belonging to a third person which is held in trust by the depositor for such third person, where t'he bank is without knowledge of the trust relation or of the character of the money deposited.</p> <p>2. Ordinary bank check as assignment of funds of drawer, notes, 5 Ann. Cas. 189, 939; Ann. Cas. 1913D, 418.</p>

<p>[l] Partnership — Agreement Between Owner and Manager of Apartment House—Acquisition of Interest by Manager— Transfer of Business by Owner to Corporation—Bights of Manager.—Where an agreement between the owner of an apartment house and the manager thereof declared that they were partners and provided that when the indebtedness incurred by the owner in furnishing the apartments had been paid and the money advanced by him in otherwise financing the business had been repaid out of the profits, the owner would convey to the manager a one-third interest in the business, and further provided that the owner could at any time assign all his rights in the business to a corporation which should be bound by all the terms and conditions of the agreement, the assignment by the owner of his interest to a corporation which accepted the transfer subject to all the terms and conditions of the agreement terminated the partnership relationship between the owner and the manager, but did not terminate the rights of the manager under the agreement to pay off the liabilities of the business from the profits and acquire a one-third interest therein freed from such liabilities.</p> <p>[2] Id.—Assignment op Interest in Partnership—Consent op Bemaining Partner—Status op Assignee.—An assignee of a partner who accepts an assignment of the partner’s interest subject to the terms and conditions of the partnership agreement and with the consent of the other partner, steps into the partnership shoes of his assignor.</p> <p>[3] Id.-—Corporation as Partner.—A corporation can enter into a partnership if so authorized by it's articles of incorporaton and charter.</p> <p>[4] Id.—Belationship op Partner—Ultra Vires—Burden op Proop. A corporation which was organized for the purpose of taking over a partner’s interest in a partnership business and which for a time through its board of directors operated the business conjointly with the remaining partner, has the burden of showing that its charter did not permit it to become a partner and that its attempt to create such a relationship was ultra vires.</p> <p>[5] Id.—Lack op Authority—Liability as Partner.—Where a corporation is without authority under its charter to form a partnership with another, it may be held liable as a partner to prevent injustice.</p> <p>[6] Id.—Partnership for Fixed Term—Withdrawal by Partner— Bights op Bemaining Partners.—While under section 2451 of the Civil Code a partner may withdraw from a partnership for an agreed and fixed term, such withdrawal does not terminate the partnership interests of remaining partners or deprive them of the right to carry out the articles of copartnership.</p> <p>[7] Id.—Sale op Interest to Stranger—Control and Disposition op Assets — Appointment op Beoeiver.—If one partner sells his interest in the firm to a stranger, the right to the possession and control of the firm assets vests in the other partners, and a receiver may not be appointed in the absence of a showing of prejudice to retiring partners in permitting the remaining partners to liquidate the business.</p> <p>[8] Id.—Accounting—Government by Partnership Agreement.— The accounting between partners is to be governed by the partnership agreement.</p>

<p>[1] Agency—Execution Sale op Pledged Stock—Relative Rights op Purchaser and Pledgee.—A judgment creditor who is a purchaser at execution sale of corporate stock which had been transferred as security for the repayment of a loan of money cannot claim that he was a hona fide purchaser, as against the transferee, because the transfer had never been entered on the books of the corporation and he was without personal knowledge or notice of the transfer, where the secretary of the corporation had acted for him in procuring the loan upon which the judgment was secured and had informed him of the ownership of the stock but not of its transfer, of which the secretary had personal knowledge.</p>

<p>[1] Mortgage—Joinder in Execution—Accommodation op Mortgagor—Interest in Property not Created.—Mere joinder in the execution of a mortgage as an accommodation to the record owner of the property and in response to the suggestion of the mortgagee gives the individuals thus joining no interest in the property, in the absence of an agreement to that effect.</p> <p>[2] Fraudulent Conveyances — Debt op Tenant — Property op Landlord—Inapplicability op Section 3440, Civil Code.—Section 3440 of the Civil Code, providing that certain transfers of personal property are conclusively presumed to be fraudulent unless accompanied by an immediate delivery and followed by an actual and continued change of possession, has no application to a creditor’s bill brought to subject property of a landlord to a judgment against his tenants.</p>

<p>[1] Fire Insurance — Agency to Procure — Consent to Cancellation—Soope of Authority.—A broker or agent employed to keep property insured has no authority to consent to a cancellation of insurance which would leave t'he property wholly without insurance.</p> <p>[2] Dx—Insurance of Mortgaged Premises—Cancellation of Policy—Notice to Mortgagor Insufficient.—Where a fire insurance policy providing that the loss should be payable to a mortgagee also provided that the insurance company might cancel the policy at any time on ten days’ written notice given to the mortgagee, the fact that the mortgagee left the matter of securing insurance to the mortgagor did not make the latter the agent of the mortgagee, and a notice of cancellation given to the mortgagor and not communicated to the mortgagee was not binding upon the latter.</p>

<p>[1] Appeal—Foreclosure of Third Mortgage—Satisfaction of Prior Mortgages—Insufficiency of Evidence—Entry of New Decree —Lack of Authority.—Where it is necessary to reverse a judgment of foreclosure of a third mortgage because of the insufficiency of the evidence to support the findings that the first' and second mortgages had been satisfied, the appellate court cannot direct the trial court t'o enter a new judgment foreclosing the first and second mortgages, where it is not clear from the evidence as to what payments had been made on the first and second mortgages, and the right's of the various parties were not passed upon on the basis that such mortgages were still unsatisfied.</p>

<p>[1] Prohibition — Action by Receiver — Capacity to Sue — Determination in Pending Action—Jurisdiction.—A writ of prohibition will not lie to restrain the superior court from proceeding with the trial of an action instituted by a receiver on the ground that his appointment was not within the power of the court, since the right of the plaintiff to maintain the action in such capacity is to be determined in the action itself, and if error be committed, it is error in the exercise of jurisdiction, reviewable on appeal.</p> <p>[2] Appeal—Hearing After Decision by District Court of Appeal — Submission Without Argument — Prohibition Proceeding — Applicability of Rule.—A proceeding to prohibit a superior court from proceeding with the trial of a cause pending therein in which it is obvious that the court has jurisdiction both of the subject matter and of the parties and that the matter complained of as constituting an excess of jurisdiction is simply one of the issues to be determined in the cause, is a proper case for the application of subdivision 5 of rule XXX of the supreme court, providing that when a cause is transferred for determination to the supreme court after decision by a district court of appeal, the supreme court, if it deems such course proper, may order the cause forthwith submitted for decision upon the briefs on file, without further argument.</p> <p>[3] Prohibition — Capacity of Receiver to Sue — Appointment by Same Court Immaterial.—In a proceeding to prohibit a superior court from proceeding with the trial of an action instituted by a receiver on the ground that his appointment was not lawful, it is immaterial whether such action was instituted in the superior court of the county wherein he claims to have been appointed, or in the superior court of some other county.</p> <p>1. Jurisdictional question as reviewable by prohibition, note, Ann. Cas. 1913D, 595.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, Matthew Brady, District Attorney, Robert A. Waring, Inheritance Tax Attorney, H. C. Lucas, Assistant Inheritance Tax Attorney, and Hartley F. Peart for Appellants.</p>

<p>[1] Divorce — Adultery — Compromise of Husband — Act of Wipe —Finding — Appeal.—In an action for divorce on the ground of the husband’s adultery, where the court found against the defendant’s contention that the plaintiff brought the defendant and alleged co-respondent together for the purpose of having the latter induce the defendant to commit adultery with her, and the evidence at most showed only facts from which a possible inference might be drawn in support of such contention, the finding is conclusive on appeal.</p> <p>[2] Id .—Assignment of Community Property—Payment of Sum of Money—Mortgage upon Property—Power of Court.—Under section 146 of the Civil Code, authorizing the court in granting a divorce for adultery to assign the community property to the respective parties in such proportions as it may deem just, the court has power to award to the wife, where a divorce is granted for the husband’s adultery, a sum of money and make its payment a charge on the community property by requiring the husband to give a mortgage for the amount.</p> <p>[S] Id.—Award of Community Property to Wife—Lack of Abuse of Discretion.—An award of eighteen thousand dollars to the wife as her share of the community property valued at twenty-five thousand dollars upon the granting of a decree of divorce for t'he husband's adultery is not an abuse of discretion where she was also given the custody of the seven minor children of the marriage.</p> <p>[4] Id.—Counsel Pees—Allowance to Wife—Continuance of Application to Trial—Past Services.—Where in an action for divorce- the wife before trial made an application for an allowance for counsel fees and the matter was continued by consent until the trial, the application must be taken as continued on the basis of the court making an allowance as of the time of the making of the application.</p>

<p>APPLICATION for a Writ of Prohibition to prevent the Superior Court of Alameda County from further proceeding in a personal action. A. F. St. Sure, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PROCEEDING on Habeas Corpus to secure release of attorney at law for violation of occupation tax ordinance.</p> <p>The facts are stated in the opinion of the court.</p> <p>Eugene D. Williams, Benjamin E. Page, Arthur C. Hurt, Hugh M. Bole, J. R. Scott and Eugene Overton for Petitioner.</p> <p>Irwin W. Widney, City Prosecutor, Charles S. Burnell, City Attorney, and Wm. P. Mealey, Assistant City Attorney, for Respondent.</p>

<p>[l] Municipal Corporations—Los Angeles—Amendment of Charter — Municipal Affairs — Limitation of Powers.—The charter of the city of Los Angeles, in view of the amendment of 1917, subdivision 51 of section 2 of article I, adopted pursuant to section 6 of article XI of the constitution, as amended in 1914, authorizing the city to exercise all powers in municipal affairs, subject only t'o the limitations of the charter, is, as to municipal affairs, in effect a limitation of powers instead a grant of power.</p> <p>[2] Id.—Imposition of Occupational License Tax—Power of City of Los Angeles—Charter.—The city of Los Angeles, under section 2 of article I of its charter empowering it to license and regulate under general and uniform laws any lawful business or calling, has the power to impose an occupational license tax for revenue purposes only, in view of the decisions of the supreme court prior to the incorporation of the words “license and regulate” in the charter holding that a grant by the legislature of authority to a municipality to license and regulate, includes authority to impose a license for revenue purposes only.</p> <p>[3] Id.—Judicial Interpretation of Words “License and Regulate” —Subsequent Amendment of Charter—Presumption.—Where the people of the city of Los Angeles and the legislature in amending the city’s charter used the words “license and regulate” in defining the power of the city over lawful businesses and occupations, after the supreme court had given such words a precise and technical meaning, the presumption is almost irresistible that t'he words were used in such precise and technical sense.</p> <p>[4] Id.—License and Regulation Under General and Uniform Laws—Charter not Subordinated to State-wide Laws.—Section 2 of article I of the charter of the city of Los Angeles, empowering the city to license and regulate “under general and uniform laws” any lawful business or calling, does not by the use of the words “general and uniform laws” render the charter subordinate to the general laws of the state which prohibit the imposition of license taxes for revenue purposes, since such words refer not to state-wide laws, hut to the enactment of laws or ordinances by the legislative body of the city.</p> <p>[5] Occupational License Tax —■ Imprisonment — Constitutional Law.—An occupational license tax ordinance in providing that the act of doing business without the payment of the tax shall be a crime and punishable as such does not violate the constitutional right of immunity from imprisonment for debt in a civil action.</p> <p>[6] Id.—Classification by Amount—Lack of Discrimination.—An ordinance imposing an occupational license tax is not subject to tCe objection that it operates unequally by reason of the fact that it adopts a method of gradation based upon gross receipts, such that the business whose gross receipts are just within the maximum amount for a given class enjoys an exemption practically equal to the difference between the maximum and minimum amounts, while no such exemption is enjoyed by the business whose gross receipts are just above the minimum amount for the given class.</p> <p>6. Right to grade license tax according to volume of business or amount of capital employed, notes, 2 Ann. Cas. 325; 15 Ann. Cas. 986; 17 Xr. R. A. (IT. S.) 898; 49 L. R. A. (XT. S.) 954.</p> <p>[7] Id .—Discriminatory Ordinance—Eight of Complaint.—A person not within the class whose constitutional rights are invaded by an alleged discrimination cannot complain.</p>

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

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

<p>APPLICATION for a Writ of Mandamus requiring the State Treasurer to cancel unsold highway bonds.</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 Work—Bond for Performance of School Contract— Applicability to Board of Education of San Diego.—The act of the legislature requiring boards of education to exact a fifty per cent bond from contractors for the erection of school buildings for the benefit of materialmen and laborers (Stats. 1897, p. 201; Stats. 1911, p. 1422) is applicable to school contracts executed by the board of education of the city of San Diego, notwithstanding the amendment of 1905 of the charter providing that the duties and powers of the board of education shall be such as are now or may hereafter be enjoined and conferred on boards of education in city and school districts by the laws of the state, and the provisions of section 1617 et seq. of the Political Code defining the powers and duties of boards of education and which do not require a bond.</p> <p>[2] Id.—Time for Filing Claims—Inapplicability of Code Provisions.—Section 1187 of the Code of Civil Procedure, requiring mechanics’ liens to be filed within ninety days after the expiration of the thirty-day period following cessation from labor upon any contract or any building, is not applicable to the filing of claims of materialmen and laborers under the act of 1897, as amended in 1911, requiring that such claims be filed within ninety days after the completion of the contract, since such act is not contained in the code chapter relating to mechanics’ liens, and therefore the words “completion of the contract” should receive their ordinary acceptation.</p> <p>[3] Id.—Finding—When Unnecessary.—A finding that a claim of lien was filed within the time provided by law is not necessary where the filing of the claim is expressly admitted in the answer.</p> <p>[4] Id.—Abandonment of Contract—Completion by Board of Education—Payment of Claimants Employed by Contractors.—Where, upon the abandonment of a school building contract, the board of education completed the building and in doing so exhausted the entire balance of the contract price not paid to the contractors, and, with the assent of the surety on the contractors’ bond, paid the Subcontractors and materialmen directly, there was nothing due the contractors not paid, and the board was not required to apply the difference between the contract value of the building at' the time of its abandonment and the amount theretofore paid the contractors to the claims of materialmen and laborers employed by the contractors.</p> <p>[5] Id.—Action on Bond—Consolidation of Actions—Evidence— Default Judgment Against Surety—Lack of Prejudice.—Where several actions by laborers and materialmen to recover on a contractor’s bond were ordered consolidated and all claimants named therein required to litigate their, claims, the introduction in evidence by a materialman thus required to litigate its claim of a default judgment obtained against the surety in another jurisdiction was without prejudice, where the surety was liable and the amount of the claim undisputed.</p>

PROCEEDING in Certiorari to review an order of the Railroad Commission fixing rates for steam-heating service. The facts are stated in the opinion of the court.

<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>

APPEALS from a judgment of the Superior Court of Alameda County and from an order taxing costs. William M. Conley, Judge Presiding. The facts are stated in the opinion of the court. Chapman & Trefethen, M. C. Chapman, Frank J. Solinsky, Peck, Bunker & Cole and James F. Peck for Appellants.

<p>EH Evidence—Direct Testimony—Contradiction by Circumstantial Evidence.—Direct testimony may be contradicted by circumstantial evidence and the contradiction may be so strong that it will justify a disbelief of the testimony.</p> <p>[2] Negligence — Operation of Elevator With Open Doors.—The operation of an elevator with the doors opening into it open while passing a floor is negligence.</p> <p>[3] Id.—Death in Elevator Accident—Theory of Accident—Sufficiency of Evidence.—In an action by parents for the death of their son from injuries received while a passenger in an elevator, the verdict cannot be overturned on the ground of the insufficiency of the evidence to show that the injury was caused by the defendant’s negligence, where the circumstances contradictory of the testimony as to the manner of the accident were sufficient to justify the jury in rejecting the testimony and adopting the theory indicated by the circumstances.</p> <p>[4] Appeal — Incompetent Evidence — When Beviewable.—Evidence technically incompetent admitted without objection must be given as much weight in the supreme court, in reviewing the question of the sufficiency of the evidence, as if it were competent.</p> <p>[5] Negligence—Action by Parent for Death of Child—Damages. In an action by a parent for the death of a child, the damages allowed are only those which have been or may be suffered by the parent without regard to any suffering of the child.</p> <p>[6] Id.—Assessment of Damages — Expectancy of Life.—In an action by parents for the death of a child, the shorter expectancy of life is to be taken into consideration, and if their expectancy is shorter than that of the child, the benefits to be considered are those only which might accrue during their lives.</p> <p>[7] Id.—Deprivation of Society—Damages When Recoverable,— Damages arising from a deprivation of the society, comfort, and protection of a child by reason of its death through the negligence of another may be allowed to the parent, under section 377 of the Code of Civil Procedure, only where the circumstances show a reasonable probability that the society, comfort, and protection afforded to the surviving parent was of such a character that it would he of pecuniary advantage to the parent, and that a deprivation thereof would entail a pecuniary loss to the latter.</p> <p>[8] Id.—Action by Parents for Death of Son—Excessive Verdict. In an action by parents for the death of their son a verdict of six thousand dollars was excessive where the father’s age was sixty-nine and a half years, the mother’s age a little under sixty years, the son’s age at the time of his death twenty-seven years, and the son mentally deficient and earning but $360 per year.</p> <p>5. Measure of recovery of damages by parent for death of minor child, notes, Ann. Cas. 1912C, 58; Ann. Cas. 1916B, 532.</p> <p>8. Excessive or inadequate damages for personal injuries resulting in death, notes, 18 Ann, Cas. 1209; Ann. Cas. 19150, 449; Ann. Cas. 1916B, 460; L. R. A. 19160, 820.</p>

<p>[1] Promissory Note—Signature as Witness—Knowledge op Payee —Nonliability as Maker.—Where a person signed his name to a promissory note directly under the name of the admitted maker with knowledge on the part of the payee that he had been asked to sign the note as a witness, and before signing wrote the word "witness” immediately in front of his signature, he is not bound as a maker.</p> <p>[2] Id.—Signing op Note as Apparent Maker—Beal Capacity— Proop by Parol Evidence.—One who has joined apparently as a maker of a note may show by parol evidence, as against the payee, that he has signed with the knowledge of the payee in a different capacity and with a different liability, where such facts are pleaded.</p> <p>[3] Evidence—Adverse Party as Witness—Construction op Code.— Section 2055 of the Code of Civil Procedure, which provides that a party calling and examining as a witness an adverse party shall not be bound by his testimony, does not mean that such testimony may not be given its proper weight, but that the party calling such witness shaE not be concluded from rebutting his testimony, or from impeaching the witness.</p>

<p>[i] Agency—Sale oe Land—Contract for Purchase—Enforcement by Agent in Own Behalf.—An agent employed to make a sale of land is not entitled to enforce performance of a contract for its purchase on his own behalf, where the owner was led to believe that the uncle of the agent was the purchaser and the correspondence between the agent and the owner disclosed that the agent claimed full commission for making the sale.</p> <p>iXJ lb.—Execution of Deeds to Agent—Knowledge of Purchase— Insufficient Evidence.—The mere circumstance that an agent employed to sell land directed the deeds to be executed to himself and wife and that the owner acquiesced therein was not such notice of the circumstance that the agent was purchasing the land for himself, as would validate such a purchase.</p> <p>[3] Specific Performance—Contract for Sale of Land’—Pleading and Evidence—Variance.—Where an agent in an action for the specific performance of a contract for the sale of land alleged that the contract was between himself and two of the defendants, and the contract proved was one between one of such defendant's and plaintiff’s uncle, or, accepting plaintiff’s view, between such defendant and the plaintiff, he failed to prove the contract alleged.</p> <p>[4] Id.—Pleading—Justness and Beasonableness of Contract—■ Insufficient Complaint.—A complaint in an action for the specific performance of a contract for the sale of land is insufficient where it merely contains the allegation that the contract is just and reasonable, but contains no allegation as to the value of the land or other circumstances showing that the contract is just and reasonable or that the consideration is adequate.</p> <p>[5] Appeal—Motion to Dismiss—Lack of Valid Notice—Admission of Bespondent’s Attorney.—On a motion to dismiss an appeal on the ground that no valid notice of appeal had been filed, an admission by respondent’s attorney in a letter to the appellant’s attorney before the time for appeal had expired that a notice of appeal had been served upon him is evidence that the appeal was properly taken, and sufficient to sustain the appeal.</p> <p>[6] Id.—Dismissal by District Court of Appeal — Lack of Valid Notice — Point not Baised by Parties — Hearing in Supreme Court—Beview of Evidence.—Where the district 'court of appeal of its own motion, without suggestion of either of the parties, dismissed an appeal on the ground that no valid notice of appeal had been filed, the supreme court, upon a hearing of the appeal after transfer for further consideration, will not be disposed to . be critical of the evidence produced in support of the appeal.</p> <p>1. Bight of broker to commissions where he becomes purchaser, notes, Ann. Cas. 1912A, 202; 31 L. B. A. (N. S.) 536.</p>

<p>[1] Nonsuit—Interpretation of Evidence.—Upon a motion for a nonsuit the evidence must be interpreted most strongly against the defendant, and unless the evidence for plaintiff is so weak as not to be capable of sustaining a decision in his favor, the judgment must be reversed.</p> <p>[2] Negligence—Automobile Accident—Status of Driver—Reasonable Inference from Evidence—Erroneous Nonsuit.—Where a father sent an invitation to his son by the latter’s law clerk t'o join the father and certain other persons as a guest and take them to the place of entertainment in the son’s automobile, and the son declined the invitation but permitted the law clerk to use the machine to drive the parties to the place of destination, and the father was advised of the son’s declination and permission, the inference is reasonable that the father was in charge of the expedition and responsible for the negligence of the driver, and the granting of a nonsuit on the theory that the driver was a fellow-guest was erroneous.</p> <p>2. Making of prima facie case for responsibility for negligence of driver of automobile by proof of defendant’s ownership of car or employment of driver, notes, 46 L. R. A. (N. S.) 1091; L. R. A. 1918D, 924.</p>

<p>[1] Landlord and Tenant—Constructive Eviction.—Any disturbance of the tenant's possession by the landlord whereby the premises are rendered unfit or unsuitable for oeeupaney in whole or in substantial part for the purposes for which they are leased amounts to a constructive eviction if the tenant so elects and surrenders his possession, but there can be no constructive eviction if the tenant continues in the possession of the whole, however much he may be disturbed in the beneficial enjoyment.</p> <p>[2] Id.—Lease of Farm Land—Partial Failure of Water Supply— Continued Possession—Liability for Bent.—Conceding that a failure of the water supply on ten out of four hundred and sixty shares of water stock on a total acreage of six hundred and forty acres of leased farm land is sufficient to constitute a constructive eviction, the tenant cannot avoid his covenant to pay rent while he remains in possession of the entire premises and continues to cultivate the whole thereof and enjoy the benefits of the remaining water supply, since he has ample remedy under such circumstances in recouping the damages he may sustain against the accruing rentals.</p> <p>1. What may amount to eviction, note, 17 Am. Rep. 62.</p> <p>Vacating premises as condition of constructive eviction, note, L. R. A. 1918D, 1177.</p> <p>Effect of partial eviction upon liability for rent, notes, 17 L. R. A. 275; 41 L. R. A. (N. S.) 430.</p> <p>2. Failure of landlord to perform duty to tenant as constructive eviction, note, Ann. Cas. 1916B, 123.</p> <p>Eviction of tenant by failure to furnish heat, notes, Ann. Cas. 1914B, 1074; Ann. Cas. 1918D, 394; 37 L. R. A. (IT. S.) 1217; L. R. A. 1918B, 742.</p>

APPEALS from judgments of the Superior Court of Ventura County. Merle J. Rogers, Judge. The facts are identical with those stated in the opinion in Bunkle v. Southern Pacific Milling Co., ante, p. 714.

<p>APPEALS from judgments of the Superior Court of Ventura County. Merle J. Rogers, Judge.</p> <p>The facts are identical with those stated in the opinion in Bunkle v. Southern Pacific Milling Co., ante, p. 714.</p>