Volume 185 — California Reports

<p>[1] Findings — Construction on Appeal — Inference prom Facts Found.—The findings of the trial court are to receive 'such a construction as will uphold rather than defeat its judgment thereon, and whenever, from the facts found by it, other facts may be inferred which will, support the judgment, such inference will be deemed to have been made by the trial court, and upon an appeal from that judgment the appellate court will not draw from those facts any inference contrary to that which may have been drawn by the trial court for the purpose of rendering such judgment.</p> <p>[2] Adverse Possession—Appeal—Finding—Presumption.—On an appeal from a judgment in favor of the defendant in an action to quiet title wherein plaintiff’s claim was solely one of title by adverse possession, it must be assumed, in the absence of a contrary finding, that the court found that plaintiff had failed to prove such possession for the period of five years before the commencement of the action.</p> <p>2. Unbroken continuity as essential element in adverse possession, note, 15 L. R. A (N. S.) 1202.</p> <p>What temporary break will amount to abandonment of land held by adverse possession, note, Ann. Cas. 1916A, 606.</p> <p>Frank C. Prescott and Prescott & Prescott 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>APPLICATION for a Writ of Mandamus to compel the settlement of a bill of exceptions. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Alameda County admitting a will to probate as a lost or destroyed will. William S. Wells, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Statutory Construction — Different Interpretations. — Every presumption is to be indulged in favor of the validity of a statute, and a court, between two permissible constructions, will always give the construction which upholds its validity.</p> <p>[2] Ordinance—License Tax on Collection Agencies—Lack of Discrimination.—-A municipal ordinance imposing a license tax upon persons conducting, “ managing, or carrying on the business of collecting debts, claims, or demands, and known as a collection agency, is not void for the reason that it singles out for the imposition of the tax those known as a collection agency without stating by whom they shall be so known, or that it attempts to distinguish between persons known as a collection agency and those in the same line of business who are not known as a collection agency, since the reasonable construction is that the ordinance was enacted to impose a license tax upon persons engaged in the business of conducting a collection agency, as contradistinguished from those who might, as an incident of their business, casually make collections.</p> <p>[3] Id.—Payment of Tax—Equal Quarterly Payments.—A municipal ordinance fixing a license at one hundred dollars per annum, payable quarterly, contemplates that' the payments shall be equal quarterly payments.</p>

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

APPEALS from portions of a decree of distribution of the Superior Court of the City and County of San Francisco. John T. Nourse, Judge. Affirmed and reversed. The facts are stated in the opinion of the court. Edwin H. Williams and R. M. F. Soto for Appellants in Nos. 9295, 9296. J. W. Dorsey, W. E. Cashman and Heller, Powers & Ehrman for Appellant in No. 9297. J. W. Dorsey and W. E. Cashman for Respondent in Nos. 9295 and 9296.

<p>[1] Certiorari— Justice’s Court Appeal— Judgment op Inferior Court not Beviewable.—The judgment of a police court or justice’s court will not be reviewed on certiorari in the supreme court after appeal taken therefrom and determination of such appeal in the superior court.</p> <p>[2] Id.—Errors op Justices’ Courts not Beviewable — Scope of Writ.—Irregularities or errors committed in the police or justice’s court cannot be examined on certiorari in reviewing the proceeding of the superior court on an appeal from such courts, as the writ, in so far as it runs against the superior court, is directed to a review of the action of that court, and its functions are limited to such acts as were in excess of its jurisdiction.</p> <p>[3] Id.—Error in Determination op Appeal—Act Within Jurisdiction.—The action of the superior court in affirming or reversing a judgment on an appeal from a judgment of a police or justice’s court is an act in the exercise of its lawful jurisdiction, since the statute gives the superior court jurisdiction to entertain such an appeal, and its action, even though erroneous, is not subject to review on certiorari.</p> <p>[4] Id.—Judgment of Polios Court—Insufficiency of Evidence not Beviewable.—Where a police court is invested with jurisdiction to determine the question of the guilt or innocence of one charged with a public offense, its determination of the question, whether . based on sufficient evidence or not, is a determination arrived at in the exercise of its jurisdiction, and however erroneous it may be, it is not reviewable on certiorari.</p> <p>[5] Id.—Review of Sufficiency of Evidence—Exception to Bulb— Inapplicability to Tribunal Invested With Jurisdiction.—The exception t'o the rule that the sufficiency of the evidence will not be reviewed on certiorari which is made when the question is whether facts upon which the jurisdiction of an inferior tribunal depends were or were not proved, has no application to a tribunal invested with jurisdiction to try and determinate a fact in issue, with reference to proof of that fact.</p>

<p>[1] Sales—Written Contract for Purchase of Automobile—Rescission for Fraud—- Parol Evidence.—In an action to rescind a written agreement for the sale of an automobile on the ground of false representations made by the seller’s agent, the plaintiff is not prevented from introducing parol evidence of the fraud by the recitals in the agreement that the machine is in present good condition as demonstrated, and that no representations have been made or exist other than those contained in the agreement.</p> <p>[2] Written Contract—Merger of Oral Negotiations—Rescission for Fraud—Rule Inapplicable.—In actions for rescission on the ground of fraud, the statutory provisions that when the terms of an agreement have been reduced to writing, it is to be considered as containing all of the terms (Code Civ. Proe., see. 1856), and that the execution of a contract supersedes all prior negotiations or stipulations (Civ. Code, see. 1625), do not control, and parol evidence is admissible to prove the fraud.</p> <p>[3] Sale of Automobile—Reliance upon Fraudulent Representations-—Recital in Written Contract—Good Condition of Car “as Demonstrated”—Absence of Estoppel.—A purchaser under a written agreement for the sale of an automobile is not precluded from claiming reliance upon fraudulent representations made by the seller’s agent as a ground of rescission because of the recital in the agreement that the car was in present good condition “as demonstrated,” where she was inexperienced in automobiles, and after the car was first shown to her she sent it back immediately to have new seat covers put on, and on three occasions in the following week the purchaser’s daughters were instructed in the operation of the machine.</p> <p>[4] Id.—Independent Investigation of Purchaser—Insufficiency of Evidence.—A purchaser of an automobile is not estopped from relying upon false representations made by the seller’s agent, on the theory that she made an independent investigation, where she merely sent an automobile driver who had formerly dealt in automobiles to look the machine over and see if she had made a good purchase.</p> <p>1. Showing of fraud essential to sustain action for rescission of executed contract, note, 1 Ann. Cas. 516.</p> <p>Limitation on right to rescind fraudulent contract, note, 1 Ann. Cas. 9-10.</p> <p>[5] Id.—Mileage op Automobile—Value op Extba Equipment—Statements op Fact.—Representations made by a person experienced in automobiles to a purchaser uninformed and unskilled in the use, condition, and price of automobiles, as to the number of miles an automobile had been run and as to the value of extra equipment, are not mere expressions of opinion but statements of fact.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. C. Beach, Hunsaker, Britt & Edwards, Hunsaker, Britt & Cosgrove, Roy V. Reppy, Henry J. Stevens, O’Melveny, Millikin & Tuller and O’Melveny, Stevens & Millikin for Appellants.</p>

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

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

<p>[1] Adoption—Statutory Proceeding.—The proceeding of adoption exists in this state only by virtue of the statute which expressly prescribes the conditions under which adoption may be legally effected.</p> <p>[2] Id.—Construction op Adoption Laws.—Wherever possible, such a construction should he given adoption laws as will sustain, rather than defeat, the object they have in view.</p> <p>[3] Id.—Child Under Guardianship—Eight op Adoption.—A minor child may be adopted even though he is, at the time of the adoption, in the custody of a guardian.</p> <p>[4] Id.—Consent op Guardian Unnecessary.—The consent of a guardian of a minor is not necessary to the validity of an order of adoption.</p> <p>[5] Id.—Consent to Adoption—Bule.—Where the parents of a minor are not living or for some recognized reason their consent is unnecessary, and where the minor has not been in the custody of any of the institutions mentioned in the statutes, no consent to the adoption is required on behalf of the child, if under twelve years of age, other than that of the court granting the adoption.</p> <p>[6] Id—Adoption op Minor—Revocation op. Letters op Guardianship.—In view of subdivision 8 of section 253 of the Civil Code, which provides that a guardian may be removed by the superior court when it is no longer proper that the ward should be under guardianship, the adoption of a minor under guardianship constitutes a valid cause for the revocation of the letters as to his person.</p> <p>[7] Id.—Continuance op Guardianship op Estate—Power op court. A court has the power in the exercise of a sound discretion to place the custody of a child under guardianship in the adopting parents and to permit the guardian to continue to act as guardian of the child’s estate.</p> <p>5. Consent of parents as prerequisite to adoption, note, Ann. Cas. 1914A, 221.</p>

<p>[1] Mortgage—Decree of Foreclosure—Failure to Protect Leasehold—Eight of Purchaser—Writ of Assistance.—In an action for the foreclosure of a mortgage, where the owners of a leasehold interest in the premises were made parties, and the decree declared that such interest was subsequent and subordinate to the mortgage b'ut prior and superior to all other liens, and ordered a sale of the premises free and clear from all liens without making any provision as to the leasehold interest, and such decree was allowed to become final without appeal, motion for a new trial, or other attempt to avoid or modify it, the right of the purchaser at the sale to possession of the entire premises, freed from the leasehold interest and other subsequent interests, upon receipt of the commissioner’s deed, was absolute, and the court had no power to modify a writ of assistance so as to make the purchaser’s possession subject to the leasehold.</p> <p>[2] Id.—Foreclosure Sale-^-Subordination of Mortgage to Leasehold—Lack of Power of Court.—Where in an action for the foreclosure of a mortgage the decree declared that a leasehold was subordinate to the mortgage but superior to all other liens, the court could no more have subordinated the rights of the plaintiff to that of the lessees in making the sale than it could to the rights of the subordinate lienholders.</p> <p>[3] Id.—Priority of Leasehold to Other Subsequent Interests— Surplus Proceeds of Sale—Eights of Lessees.—Where a decree of foreclosure of a mortgage provided that a leasehold was prior and superior to all claims and liens except the mortgage, the lessees should have been given precedence in the distribution of the surplus proceeds of the sale after the satisfaction of the mortgage.</p> <p>[4] Id.—Bid of Lessees at Sale—Status Unaffected by.—The fact that lessees whose leasehold was subject to a mortgage bid at the commissioner’s sale on foreclosure of the mortgage an amount sufficient to meet the demand of the mortgagee’s prior lien gave them no right to retain possession as against a higher bidder to whom the sale was made, since it was the duty of the commissioner to sell to the highest bidder.</p> <p>[5] Id.—Writ of Assistance—Recital in Decree Conclusive.— Where a decree of foreclosure of a mortgage provided that in case the purchaser should be refused possession a writ of assistance should issue without further notice, such provision was conclusive as against the parties in possession who were parties to the action.</p> <p>2. Effect of foreclosure of mortgage upon leasehold rights, note, Ann. Cas. 1915A, 397.</p> <p>[6] Id.—Notice of Application for Writ—Waiver.—While it is true that a writ of assistance will not ordinarily issue without notice to the person in possession, the reason for such rule is not applicable where the waiver of such notice has been determined as between the parties by the decree.</p> <p>[7] Id.—Setting Aside of Ex Parte Order.—An ex parte order granting a writ of assistance should not be set aside unless it ia shown that it was improvidently or improperly made.</p> <p>[8] Id.—Writ of Assistance—When Matter of Right.—Where parties against whom a writ of assistance was sought by the purchaser at a foreclosure sale were parties to the action and their rights were adjudicated by the decree, and there had been no change or modification of the right to possession arising under the terms of the decree, a writ of assistance was a matter of right.</p> <p>[9] Id.—Province of Writ of Assistance.—The province of a writ of assistance is to give effect to the decree of foreclosure, and should only be withheld where it appears that the rights of the parties have been changed by some subsequent agreement or event.</p> <p>[10] Id.—Issuance of Writ of Assistance—Mandamus.—Where a decree of foreclosure has become final and no equity has arisen since the decree, the purchaser is entitled to resort to a writ of mandamus to compel the issuance of a writ of assistance, notwithstanding the remedies of appeal, ejectment, and unlawful detainer.</p> <p>[11] Id.—Harvesting of Crops—Retention of Possession—Lessees Without Right. — Lessees of mortgaged premises are not entitled to retain possession as against the purchaser at the foreclosure sale for the purpose of cultivating and harvesting crops planted during the running of the period of redemption, where the lease was subject to the mortgage and they were parties to the foreclosure action.</p> <p>[12] Id.—Emblements—Right of Tenant—Common-law Rule Inapplicable.—The common-law rule of the right of the tenant to emblements after the termination of the lease does not apply to an estate in lands terminated by foreclosure.</p> <p>[13] Id.— Hardship in Removal of Livestock — Insufficient Ground for Postponement of Possession of Purchaser.—The right of the purchaser at a foreclosure sale to possession on receipt of the commissioner's deed may not be postponed by the hardship to the lessees incident to the removal of livestock from the premises at the particular time.</p> <p>6. Issuance of writs of assistance, notes, 51 Am. Dec. 152; 93 Am. St. Rep. 154; Ann. Gas. 1913D, 1120.</p>

<p>PROCEEDING in Certiorari to annul an order of the Superior Court of Alameda County affirming a judgment on a justice’s court appeal. James G. Quinn, Judge. Order affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from judgments of the Superior Court of San Bernardino County denying applications for change of place of trial. J. W. Curtis, Judge. Affirmed. The facts are stated in the opinion of the court.

<p>[1] Criminal Law—Commission op Lewd and Lascivious Acts upon Body of Female Child—Prejudicial Misconduct of District Attorney—Asking of Improper Questions.—In a prosecution for the commission of lewd and lascivious acts upon the body of a female child under the age of fourteen years, where the evidence and conflicting considerations are so evenly balanced that if the jury attached the slightest weight to the innuendoes of the district attorney, such weight might be sufiieient to turn the scales, it is prejudicial misconduct for the district attorney to repeatedly ask improper questions of a number of witnesses, including the defendant, relating to the commission by the defendant of lewd and lascivious acts upon other girls, notwithstanding the asking of such questions is assigned as error and the jury instructed to disregard them.</p> <p>[2] Id.—Nature op Charge—Difficulty op Disproof—Instruction. In such a prosecution it is not error to refuse an instruction embodying the statements that it is particularly difficult for a defendant to clear himself of such a charge, that no charge is more easily made or more difficult to disprove, and that the two parties are usually the only witnesses to the act, as the same are statements of fact, not of law.</p>

<p>[1] Divorce—Interlocutory Decree—Lawful Separation.—Where there is an interlocutory judgment decreeing that the parties are entitled to a divorce, even though the married status continues, the law, under the circumstances, permits the separation and recognizes it as rightful in substance.</p> <p>[2] Adoption—Married Woman—Interlocutory Decree of Divorce —Consent of Husband Unnecessary.—A married woman who has been granted an interlocutory decree of divorce is lawfully separated from her husband within the meaning of section 223 of the Civil Code and may adopt a minor without her husband's consent.</p> <p>[3] Id.—Status of Petitioner—Absence of Concealment.—The fact that in an adoption proceeding the petitioner referred to herself as a widow and in the order granting the petition sueh reference was omitted is insufficient to warrant the inference that the status of the petitioner was concealed from the court.</p>

The facts are stated in the opinion of the court. Daniel M. Hunsaker, Hunsaker, Britt & Edwards, Hunsaker, Britt & Cosgrove, Robert B. Murphey, Samuel Poor-man, Jr., and Leon R. Yankwich for Appellants. Edwin A. Meserve, Shirley.E. Meserve, Joseph Scott and Anderson & Anderson for Respondents.

<p>[1] Workmen’s Compensation Act—Allowance to Dependents op Deceased Employee—Power op Legislature—Constitutional Law.—Under section 21 of article XX of the constitution, authorizing the legislature to enact laws for the compensation of employees for injuries received in the course of their employment, the power of the legislature in allowing compensation for death is not limited to those dependents having a legal or moral claim to support from the employee in his lifetime, but extends to those whose maintenance has been voluntarily and gratuitously assumed.</p> <p>[2] Id.—Determination op Dependents—Measurement op Legislative Discretion.—The discretion of the legislature to determine what classes of dependents shall come within the workmen’s compensation law is not to be measured by the common-law rules of kinship, inheritance, and liability for maintenance and support, or by the limitations of compensation acts in force at the time of the adoption of the constitutional provision authorizing such law, since the benefits of the law are not provided as an indemnity for negligent acts committed or as compensation for legal damages sustained, but as an economic insurance measure to prevent a sudden break in the contribution of the worker to society, by his accidental death in the course of Ms employment.</p> <p>[3] Id.—Dependency op Unrelated Minor Child—Meretricious Relationship Between Employee and Mother—Member op Household.—A minor neither naturally nor legally related to a deceased employee is a dependent member of his family or household in good faith within the meaning of section 14 (e) of the Workmen’s Compensation Act, where the minor, her mother and the employee lived together until the death of the latter, and he in good faith supported the minor, notwithstanding the relations between the employee and the mother were meretricious and they were cognizant thereof.</p> <p>1. Who are “dependents” within the meaning of the compensation statutes, notes, Ann. Cas. 1913E, 480; Ann. Cas. 1918B, 479; L. R. A. 1916A, 121, 248; L. R. A. 1917D, 157; L. R. A. 1918F, 483.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gavin McNab, R. P. Henshall, Nat Schmulowitz and F. W. Henshaw for Appellant in S. F. No. 9005 and Respondent in S. F. No. 9155.</p>

PROCEEDING in Certiorari to annul an order of the Railroad Commission directing the apportionment of water. Order affirmed. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p> <p>Theodore A. Bell, A. E. Cooley, A. Walter Allen and Percy V. Long for Appellants.</p> <p>Thomas P. Boyd, Morrison, Dunne & Brobeck, Garret W. McEnerney and McWilliams & Hatfield for Respondents.</p>

<p>[1] Contract — Performance—Finding—Conflict of Evidence—Appeal.—In an action for damages for breach of a contract to manufacture and deliver goods, a finding on conflicting evidence that the defendant had not failed, neglected, or refused to proceed with the work of manufacture, but that defendant had at all times diligently proceeded with the work, must be upheld on appeal.</p> <p>[2] Id.—Second Contract — Evidence—Arrangements Under First Contract—Parol Evidence.—Where a contract to manufacture and deliver automobile self-starters was followed by a second contract making changes in the construction which made their manufacture more expensive, and the latter contract did not purport to set forth that part of the agreement which adjusted the rights of the parties in regard to the steps which had been previously taken under the first contract, evidence of such arrangements was admissible in an action for damages for breach of the contract, provided they were not inconsistent with the terms of the second contract.</p> <p>[3] Id.—Expenditures—Evidence—Correctness of Summary from Original Bills—Competency of Defendant.—In an action for breach of a contract to manufacture and deliver goods, the admission in evidence under the issue of damages of an itemized summary of the expenditures of the defendant without testimony of the defendant’s bookkeeper as to their correctness was not error, where the defendant testified that he personally made up the statement from the original bills, of the payment of which he had personal knowledge.</p> <p>[4] Id.—Furnishing Goods to Third Persons—Contracts of Buyer —Knowledge of Seller—Immaterial Fact.—In an action for damages for breach of a contract to manufacture and deliver goods, where it was adjudged that defendant was not in default in the performance of his part of the contract, it became immaterial whether the evidence supported the finding that defendant was without knowledge of plaintiff’s contractual relations to furnish the goods to third persons.</p>

<p>[1] Highways — Manner op Creation. — Under section 2621 of the, Political Code, since its amendment in 1883, the mere user of a route of travel by the public will not constitute the land a public highway, but it must be declared to be such by the proper authorities or become such by dedication by the owner.</p> <p>1. Presumption of dedication from user of highway, note, Ann. Cas. 1914D, 335.</p> <p>[2] Id.—Dedication—Evidence—User.—User of a strip of land by the public as a route of travel may constitute some evidence of dedication, which, taken with other evidence showing an intent to dedicate, may amount to sufficient proof of dedication to satisfy the requirements of section 2621 of the Political Code.</p> <p>[3] Id.—Implied Dedication — Sufficiency of Evidence. — Where it appeared upon the face of a recorded map of a subdivision of a tract of land that certain land designated thereon as a street was not between adjoining lots but on one lot leaving a strip of such lot between the street and the other lot, but notwithstanding the recordation of such map, the strip remained uninclosed and unimproved and was continuously used as a portion of the street by ■the public for many years without objection and finally sold for taxes, there was an implied dedication of such strip as a portion of the street.</p> <p>[4] Id.—Death of Owner—Noninterference With Implied Dedication.—The death of the owner of a strip of land after its adverse use on the part of the public has begun and the failure for many years to appoint an administrator of his estate will not interfere with the implication of dedication as a result of a long period of permissive use.</p> <p>[5] Quieting Title — Easement for Street Purposes — Implied Dedication—Previous Condemnation Suit—Absence of Estoppel.—In an action to quiet title to land over which a city claims an easement for street purposes, the city is not estopped from claiming an implied dedication of the easement by the mere commencement by it of a previous action to condemn the land for such purposes, where the easement had ripened prior to the commencement of the condemnation suit.</p> <p>[6] Id.—Levy and Collection of Taxes—Absence of Estoppel.— A city is not estopped from claiming an implied dedication of land for street purposes by reason of the levy and collection of taxes thereon during the period of user.</p> <p>[7] Appeal—Judgment not in Conformity With Findings—Entry of Proper Judgment—Power of Appellate Court.—Where a judgment of a trial court is not in conformity with the findings nor with the conclusions of law, the appellate court has the power to direct the entry of the proper judgment.</p> <p>[8] Quieting Title — Easement for Street Purposes — Findings— Proper Judgment.—Where in an action against a municipal corporation to quiet title to a strip of land over which the city claimed an easement for street purposes the findings of fact and conclusions of law were to the effect that the plaintiff was the owner of the land and the city the owner of an easement, the judgment should not have been that plaintiff take nothing and that defendant recover costs, but that plaintiff was the owner subject to the easement.</p>

<p>[1] Municipal Corporations—San Francisco Civil Service Commission—Duration op Eligible List—Seasonable Order.—An order of the Civil Service Commission of the city and county of San Francisco contained in a notice of examination stating that the determination as to eligible persons resulting from the proposed examination and the entry thereof in the register of eligible persons should cease to be in force after three years from the date ■of the determination and adoption of the eligible list, was not unreasonable, since it is to be assumed that the commission was of the opinion that after the lapse of three years the examination would not be a reasonable test of the continued fitness of the persons on the register.</p> <p>[2] Id.-—Notice op Examination—Statement as to Duration op Eligible List—Bule—Charter.—An order of the Civil Service Commission of the city and county of San Francisco contained in a notice of examination stating that the determination as to eligible persons resulting from the proposed examination and the entry thereof in the register of eligible persons should cease to be in force after three years from the date of the determination and adoption of the eligible list, was, in substance and effect, a rule under article XIII of the charter of such city and county giving the commission the power to make rules.</p> <p>[3] Id.—Bules op Civil Service Commission — Time op Taking Eppect.—The requirement of article XIII of the charter of the city and county of San Francisco that the rules of the Civil Service Commission shall be printed does not prevent them from taking effect before printing.</p> <p>[4] Public Oppicers—Solution op Problems—Discretion—Courts.—■ Administrative boards and officers should be permitted to work out their problems with as little judicial interference as possible, since they are vested with a high discretion and its abuse must clearly appear before the courts will interfere.</p> <p>[5] Municipal Corporations — Striking of Names from List of Eligibles—Power of Commission—Charter.—Under section 10 of article XIII of the charter of the city and county of San Francisco, authorizing the Civil Service Commission to strike off the names of candidates from the register of eligibles after they have remained thereon more than two years, the commission, at the end of two years after each list has been prepared, may, upon no other consideration than that it has been in force for two years, pass a resolution expunging it.</p> <p>[6] Id.—Limitation of Maximum Period of Eligible List—Expunction of Names Automatically—Valid Order.—An order of the Civil Service Commission of the city and county of San Francisco contained in a notice of examination published as provided by article XIII of the charter declaring that the eligible list secured as a result of the examination should expire at the close of three years from the date of the adoption of the list and that the names thereon should then be automatically removed therefrom, is within the power of the commission under the charter, and no formal resolution of expunction of names on the part of the commission after the expiration of the two-year period provided by the charter is essential.</p>

<p>MOTION to dismiss an appeal from a judgment of the Superior Court of Santa Clara County. Granted.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Fraud—False Representations—Sufficiency of Finding.—In an action for fraudulent representations, if the finding is sustained by the evidence as to one material fraudulent representation, it is sufficient.</p> <p>[2] Id.—Purchase of Stock—Prosperous Concern With Substantial Surplus — Material Fraudulent Representation of Fact.—A representation to a purchaser of corporation stock that the corporation was prosperous and had a surplus cf forty thousand dollars, when in fact it was hard pushed for money and had a book surplus of but six thousand dollars, was more than a mere statement of opinion upon which the purchaser had no right to rely, but was a false, fraudulent, and material representation of fact.</p> <p>[3] Id.—Conspiracy to Defraud—Sufficiency of Evidence.—In an action by a purchaser of corporation stock for damages for fraudulent representations, evidence showing directly that the sale to the plaintiff was made pursuant to an agreement among the defendants making the sale a joint undertaking, and showing a situation such as to justify the inference that the defendants, other than the one making the representations, either knew of the representations, or that some kind of imposition was being practiced without informing themselves, is sufficient to justify a finding of a conspiracy of the defendants to defraud, without any direct evidence as to knowledge of the making of such representations.</p> <p>[4] Id.—Damage—Evidence.—In such an action, evidence that plaintiff was induced by fraudulent representations to buy stock in a company in the belief that it was a prosperous concern with a substantial surplus, when in fact it was on the verge of bankruptcy and actually went into bankruptcy two months later, was sufficient to prove damage.</p>

<p>[1] Building Contracts — Substantial Performance.— Where the owner has taken possession of and is using a building, if there has been a substantial performance thereof by the contractor in good faith, and the failure to make full performance can be compensated in damages, and the omissions or deviations were not willful or fraudulent, and do not substantially affect the usefulness of the building for the purposes for which it was intended, the contractor may recover the amount unpaid of his contract price, less the amount allowed as damages.</p> <p>[2] Id.—Construction of Plumbing, Heating, and Ventilation Plant—Trivial Omissions — Substantial Performance.—Where the contract price for the construction of the plumbing, steam-heating, and a ventilation plant in a building was $27,332.66 and the cost of the building about $186,000, omissions which could be remedied at a cost of $99.21 were trivial, and the contractor could recover the balance due on the contract price less such amount.</p> <p>[3] Id.—Changes and Substitutions in Contract — Reduction in Value of Building—Substantial Performance.—Where the contract price for the construction of the plumbing, steam-heating, and a ventilation plant in a building was $27,332.66 and the actual cost of the building about $186,000, departures from the contract which reduced the value of the building by the amount of $2,180.88 do not prevent the contractor from recovering the balance of the contract price, where the changes made in the work do not affect the usefulness thereof.</p> <p>1. General rule as to recovery upon substantial performance of a building contract, note, 24 L. R.. A. (N. S.) 332.</p> <p>[4] Id.—Wrongful Acts of Employees of Contractor—Damage to Work of Subcontractors — Substantial Performance Unaffected—Trespass.—If employees of a contractor whose contract embraced only a part of the work upon a building, without his orders, damage the work done by other contractors in the construction of other parts of the building, it is a mere trespass, and has no bearing on the question of the substantial performance of his contract by the contractor first above mentioned.</p> <p>[5] Id.—Effect of Cutting of Cantilevers — Question of Pact— Evidence.—The question whether or not cantilevers composing part of the foundation supports of a building, which had been partially cut by employees of the plumbing contractor in the course of their work, would when repaired support and sustain additional stories which the owner intended at some future time to erect, was a question of fact, and not of law, and to be determined from the evidence, and not solely from the opinion of the owner, his engineers and architect.</p> <p>[6] Id.—Discharge of Architects—Employment of New Architect —Absence of Agreement for Substitution—Certificate Unnecessary to Recovery.—Where a contract for construction required performance to the satisfaction of two named architects, who had been discharged and another architect employed, without any agreement with the contractor for his substitution, the architect’s certificate of acceptance wate not required, and performance to the satisfaction of such architect was not a condition of the contractor’s right of recovery.</p> <p>[7] Id.—Performance to Satisfaction of Owner—Satisfaction of Reasonable Person.-—-Performance of a contract for the construction of a plumbing, heating, and ventilation contract to the satisfaction of the owner is complied with by performance which is satisfactory to a reasonable person.</p> <p>[8] Id.—Action for Recovery of Balance of Contract Price—Evidence—Performance of Work—-Testimony of Plaintiff’s Employees—General Question.—In an action to recover the balance due upon a contract for the construction of a building, the admission of testimony of plaintiff’s employees that the work had been performed in accordance with the specifications, in answer to a general question, was harmless where ample opportunity for cross-examination was given and the whole matter was gone into at great length during the trial.</p> <p>[9] Id.—Keeping of Records of Installation—Purnishing of Drawings — Waiver of Strict Compliance.—Where a contract for building construction required the contractor to keep complete records of his installation and show by drawings every important detail of the system, but the owner never expressed dissatisfaction with the inaccurate drawings furnished, or demanded any additional or different report or statement, strict performance of the provision was waived.</p>

<p>APPLICATION for a Certificate of Probable Cause. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Certificate of Probable Cause. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Mandamus—Money Received by Sheriff in Official Capacity— Accounting to County.—Mandamus is the proper remedy to compel a sheriff to account and pay into the county treasury money received by him in his official capacity for services and supplies to be furnished by the county to the party making payment of the money.</p> <p>[2] Prisons—Commitment of Federal Prisoners to State Jails— Conditions and Jurisdiction.—In view of sections 1601 and 1611 of the Penal Code and sections 5539 and 5547 of the Federal Statutes, federal prisoners are to be received in the jails of the counties of the state under the same conditions and subject to the same jurisdiction and control as state prisoners, and are to be fed and provided for in the same manner by the sheriff, subject to contract between the attorney-general and the county authorities for compensation to the county for their maintenance.</p> <p>[3] Id.—Commitment Matter of Comity.—The right of the United States to commit prisoners to the jails or prisons of a state is purely a matter of comity extended by the states, and is subject to such demands for compensation as may be determined by contract with the proper authorities.</p> <p>[4] Public Officers — Money Received by Sheriff from United States—Support of Federal Prisoners—County Money—Duty of Sheriff.—In view of sections 1601 and 1611 of the Penal Code, sections 4290, 4292, and 4294 of the Political Code, and sections 5539 and 5547 of the Federal Statutes, all money received by the sheriff from the United States for the support of federal prisoners confined in the county jail is for the use of the county, and it is his duty to account for and pay over the same to the county treasurer.</p> <p>[5] Id.—Expenses Incurred in Support of Federal Prisoners— Claim Against County.—It is the duty of the sheriff to put in his claim to the county for expenses incurred for support of federal prisoners in the same manner and at the same rates as for prisoners committed by the state.</p> <p>[6] Id.—Contract for Compensation of Caring for Federal Prisoners—Function of Board of Supervisors:—It is the function of the board of supervisors as the constituted business agents of the county to contract with the federal authorities as to the compensation to be demanded for caring for federal prisoners while confined in the county jail, which compensation may not only include the expense of feeding them, but a just charge for all other supplies and services incident to maintaining and guarding them.</p> <p>1. Mandamus against public officers, note, 98 Am. St. Rep. 863.</p> <p>[7] Is.—Expenses Incurred in Oaring fob Prisoners—Keeping of Account—Duty of Sheriff.—It is the duty of the sheriff to keep an accurate account of all expenses so incurred by him in caring for prisoners in his charge.</p> <p>[8] Id.—Accounting by Sheriff—Burden of Proof.—In a mandamus proceeding by a county against its sheriff to compel him to account for and pay into the county treasury money received by him from the United States for the support of federal prisoners confined in the county jail, the burden is upon the defendant to show that he expended the money legitimately, and to satisfactorily show, in accordance with the rules governing the accounting of trustees, what amounts, up to the legal rate, were expended in the feeding of such prisoners.</p> <p>[9] Is.—Laches of County—Acquiescence in System of Sheriff— Estoppel.-—Where county authorities for many years knowingly permitted the sheriff to deal with money received by him from the United States for the care of federal prisoners in the county jail, as a personal matter without requiring him to keep any account or make any returns to the county, the county is estopped as to past transactions by its own laches from requiring the sheriff to pay the full amount received by him into the county treasury and then resort to his claim against the county for reimbursement.</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>George E. Whitaker, Davis, Kemp & Post and Kemp & Clewett for Appellants.</p> <p>Heney & Carr, George E. Mills, Frank F. Oster, George J. Stoneman and Alfred H. McAdoo for Respondent.</p>

<p>[1] Appeal — Action on Contractor’s Bond — Amount op Materials Furnished and Used — Conplict op Evidence — Finding Conclusive.—Where, in an action to recover on a street contractor’s bond for materials and supplies furnished to a subcontractor and alleged to have been furnished and used by Mm in connection with the work, the evidence was substantially conflicting as to the amount of the supplies which was used upon the work and the amount which was used upon other work, the finding of the trial court cannot be disturbed.</p>

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

<p>[1] Appeal—Judgment—Construction of Findings.—The findings of a trial court must be liberally construed in support of the judgment.</p> <p>[2] Sale—Repudiation by Vendee—Tender op Property by Vendor Unnecessary.—Where a vendee under a contract for the purchase of specific personal property the day after the making of the contract informed the vendor that it did not want the property and demanded the return of the money paid on account thereof, the vendor was not called upon to make any tender of the property, in the absence of a retraction of the refusal, in order to avoid a default on its part in the matter.</p> <p>[3] Id.—Recovery of Money Paid—Mutual Rescission Essential.— In the absence of a mutual rescission of a contract for the sale of specific personal property, there can be no recovery of money paid on account of the purchase price by the vendee, where the vendee without lawful right refuses to go on with the contract and the vendor is not in default.</p> <p>[4] Id.—Repudiation by Vendee—Sale by Vendor to Third Person —Want of Mutual Rescission.—Where a vendee under a contract for the purchase of specific personal property without lawful cause refuses to go on with the contract by accepting the property and paying the balance of the purchase price, the sale of the property by the vendor to another vendee within a month after the final and definite repudiation of the contract by the first vendee cannot be taken as a consent to rescission on the part of the vendor entitling the vendee to the return of the money paid on account of the purchase.</p>

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

<p>[1] Dismissal of Action—Failure to Bring to Trial Within Five Years After Answer—Code Provision Mandatory.—The provision of section 583 of the Code of Civil Procedure for the dismissal of actions not Brought to trial within five years after answer filed, except where the parties have stipulated in writing that the time may be extended, is mandatory.</p> <p>[2] Id.—Setting of Trial Date Within Five-tear Period—Date of Trial Subsequent to Expiration of Period—Proper Dismissal. An action is properly dismissed under section 583 of the Code of Civil Procedure for failure to bring to trial within five years after answer filed, although the cause is set for trial on plaintiff’s motion before the expiration of the five-year period for a date subsequent to the expiration of such period, since the expression “brought to trial” in the section means the commencement of the trial and not the setting of the time of trial.</p> <p>[3] Id.—Failure to Object to Setting Cause — Absence of Waiver of Eight of Dismissal.—The right of a defendant to require a dismissal of an action for failure to bring to trial within five years after answer filed is not waived by the mere failure of the defendant to object to setting the cause for trial for a date subsequent to the expiration of the five-year period.</p>

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

<p>APPLICATION for a Writ of Habeas Corpus to secure release from imprisonment in the state prison based upon an alleged illegal forfeiture of credits. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Mechanic’s Lien — Completion op Building — Question op Fact. Under the mechanic’s lien law, the question as to whether or not a building has been completed is a question of fact and not a question of law.</p> <p>[2] Id.—Trivial Imperfections in Work—Question of Fact—Conclusiveness of Finding.—The question as to what constitutes a trivial imperfection in the work within the meaning of section 1187 of the Code of Civil Procedure, which provides that any such imperfection shall not he deemed such a lack of completion as to prevent the filing of any lien, is one of fact to be determined by the trial court under the conditions and circumstances of each case, and its finding can only be overturned when it can be said that there is no substantial evidence to support it.</p> <p>[3] Id. — Defects not Permitting Recovery for Substantial Performance—Trivial Imperfections.—Any imperfections in the performance of the work which are of so trivial a character as to permit the contractor to recover for substantial performance, notwithstanding the defects, are trivial imperfections within the meaning of section 1187 of the Code of Civil Procedure.</p> <p>[4] Id.—Acceptance and Occupancy — Subsequent Replacement of Defective Wood-stone Work—Time of Completion.—The time of completion of a building by acceptance and occupancy is not affected by the subsequent removal and replacement of defective wood-stone work at a cost of $35.50, instead of the payment of damages in that amount by way of deduction from the contract price, and liens filed within ninety days after the replacement work, but not filed within ninety days after acceptance and occupancy, are not filed in time.</p> <p>[5] Id.—Time of Completion of Building—Representations of Contractor to Materialman—Nonestoppel of Owner.-—A contractor is not the agent of the owner in the fixing of the date of the completion of the building, notwithstanding the portion of section 1183 of the Code of Civil Procedure which provides the contractor shall be held to be the agent of the owner for the purposes of the chapter, and representations made by the contractor to a materialman as to the date of the completion are not binding upon the owner.</p> <p>3. General rule as to recovery upon substantial performance of a building contract, note, 24 L. R, A. (N. S.) 332.</p>

<p>[1] Partnership—Transaction op Business Under Fictitious Name —Foreign Partnership Engaged in Interstate Commerce—Inapplicability op Code.—The provision of section 2466 of the Civil Code requiring every partnership doing business in this state under a name or designation not showing the names of the partners to file with the county clerk a certificate stating the names and residences of the members of the partnership has no application to persons in another state who send orders by mail from that state to persons in this state for the shipment of goods to them. The section applies only to partnerships having a local habitation or a principal place of business in this state.</p> <p>[2] Id.—Violation op Interstate Commerce.—Such provision, if applied to persons whose place of business is not in this state, would be void as to the business done as above stated and constituting interstate commerce.</p> <p>[3] Courts—Construction of Federal Constitution—Decisions of United States Supreme Court Controlling.—The state courts are bound by the decision of the supreme court of the United States on questions depending upon the construction of the constitution of the United States.</p>

<p>[1] Corporations—Purchase op Labels por Canning Corporation— Authority op President and General Manager.—The president of a fruit canning corporation who is also the general manager of the corporation and in general charge of its business has authority to contract for the purchase of labels without specific authority from the board of directors, since the matter of purchasing labels is but a detail of the business.</p> <p>[2] Id.—Payment op Increased Price—Unauthorized Agreement op President—Eatipioation.—Where the president and general manager of a canning corporation without special authority agreed to pay a price for labels in excess of the contract price, and the corporation accepted the labels and paid for them at the increased price for one season and part of another, there was an ample ratification.</p> <p>1. Presumption as to authorization by corporation for contract executed by president, note, Ann. Cas. 1917A, 360.</p> <p>[3] Id.—Increased Cost of Manufacture—Insufficient Consideration.—An agreement of a canning corporation to pay a price for labels in excess of the contract price based solely on the increased cost to the vendor of materials and labor in making the labels is not supported by a consideration and is unenforceable.</p>

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

<p>[1] Testamentary Trust — Dividends from Proceeds of Corporate Sales of Land.—Bights of Life Beneficiary.-—Under the provision of a testamentary trust directing payment to the widow of the testator monthly for the remainder of her life of three-fourths “of the entire net income, revenue and profit of every kind arising from said estate in said month in any way whatever,” she is entitled to dividends on corporation stock in the hands of the trustee declared wholly from moneys derived from sales of a part of a tract of land belonging to the corporation made after-the decree of distribution, where the corporation, although it was authorized to do a general investment and trading business, was maintained and conducted for the sole purpose of selling one tract of land in parcels at a profit and dividing the proceeds among its stockholders.</p> <p>[2] Id.—Bights of Remainderman—Value of Stock as of Date of Acquisition by Trustee.—Under such a trust, the value of the corporate stock as of the date it came into the trust estate must be conserved for the remainderman.</p> <p>[3] Id.—Corporate Stock as Part of Trust Estate — Income for Life Beneficiary With Remainder — Bights of Remainderman— Subsequent Accumulations.—Where corporate stock forms a part of a trust estate the income of which is to he paid to one for life with remainder to another, the remainderman is entitled to the value of the stock as of the date of the creation of the trust, that is, the testator’s death, and any accumulations beyond that date are distributable as profits.</p> <p>3. Bights as between life tenant and remainderman in dividends or distributions by corporations, notes, 12 Ann. Cas. 650; Ann. Cas. 1912B, 1218; Ann. Cas. 1915A, 311; Ann. Cas. 1918E, 629; 12 L. R. A. (N. S.) 768; 35 L. R. A. (N. S.) 563; 50 L. R. A. (N. S.) 510; I». R. A, 1916D, 211.</p>

<p>APPEALS from judgments of the Superior Court of Los Angeles County. John W. Shenk, Judge. Reversed.</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 to compel the Superior Court of Tuolumne County to enter an order of dismissal of a civil action. G. W. Nicol, Judge. Granted.</p> <p>The facts are stated in the opinion of the court.</p> <p>Jess E. Stephens, Charles S. Burnell, W. B. Mathews, W. A. Lamar, Rowan Hardin, Williams & Williams, Goudge, Robinson & Hughes and S. B. Robinson for Petitioner.</p> <p>William M. Abbott, William M. Cannon and Kingsley Cannon for Respondents.</p>

<p>[1] Agency — Revocation op Authority — Power op Principal.— A principal has the power to revoke an agent’s authority at any time before the agent has completed performance, save in the case of an agency coupled with an interest.</p> <p>[2] Id.—Limitation upon Right op Revocation—Contract op Principal.—A principal may curtail his right of revocation of an agent’s authority by contracting not to revoke the authority for a definite time.</p> <p>[3] Id.—Revocation Within Limited PIeriod—Right op Principal— Liability to Agent.—A principal who contracts not to revoke the authority of an agent for a definite time still retains the power to terminate the agency within the designated period, but if he does so, he renders himself liable for damages for the violation of a legal right of the agent.</p> <p>[4] Brokers — Negotiation op Exchange — Irrevocable Opper por Ten Days — Revocation op Agency — Right op Principal.— Under a contract between an owner of real property and a firm of real estate agents containing an offer to exchange such property for that of a third person and providing that the offer' should be null and void unless accepted within ten days, but that during such period the offer should be irrevocable, and further providing that such agents should act as the agent in negotiating the exchange, the owner had the right to revoke the agent’s authority at will, since the contract contained no provision that the agency should continue for any specific period, and the ten days allowed for acceptance was a part of the offer.</p> <p>4. Revocation of authority of real estate broker, notes, 2 Ann. Cas. 886; 12 Ann. Cas. 1085; Ann. Cas. 1918D, 339.</p> <p>[5] Contract —• Irrevocable Offer — Lack of Consideration—Right of Revocation.—An offer to exchange real property providing that the offer shall he irrevocable for ten days is revocable at any time before acceptance, where the offer and the agreement not to revoke are made without consideration.</p> <p>[6] Brokers—Action for Services—Evidence—Questions by Court —Disclosure of Material Facts of Defense—Lagk of Prejudice.—In an action for broker’s services in procuring an alleged acceptance of an offer of exchange, questions put by the court to plaintiff, while appearing as a witness in his own behalf, resulting in the disclosure, upon his case in chief, of facts material to the defense, were not prejudicial, where no harm appears to have resulted and plaintiff’s counsel was given ample opportunity to examine the witness after he had answered the questions.</p> <p>[7] Evidence—Examination of Witnesses—Power of Court.—It is within the power of the court to call or examine witnesses in furtherance of justice against the will of either- party.</p> <p>[8] Brokers-—Defense of Specific Performance Action—Nonliability for Expenses of Principal.—A broker authorized to negotiate an exchange of real property is not liable to his principal for the expenses incurred by the latter in defending the other exchanging party’s action for specific performance, on the theory that the broker violated instructions in procuring acceptance of the offer after revocation, where the ‘other exchanging party had knowledge of such revocation and notwithstanding claimed the right to accept under the provision of the contract providing that the offer should be irrevocable for ten days.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Overton, Lyman & Plumb, and Wm. B. Himrod for Plaintiff, Respondent and Appellant.</p> <p>Edgar G. Pratt and Henry M. Willis for Intervener, Respondent and Appellant.</p> <p>Charles S. Burnell, City Attorney, W. B. Mathews, Lewis E. Whitehead, Ray C. Eberhard and Trent G. Anderson for Defendants and Respondents.</p>

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

Denied. The certified copy of the decree ordering registration involved in this proceeding was refused filing because it appeared from the certificate that the decree had not been entered upon the records of the court.

<p>[1] Joint Tenancy — Conveyance of Moiety — Severance of Tenancy.—A joint tenancy may be severed and ended by a conveyance by one of the tenants of his share, and the conveyance will have such effect even though it be but a conveyance of a remainder after the death of the cotenant making the conveyance.</p> <p>[2] Id.—Time of Severance—Lifetime of Grantor.—The severance or attempted severance of a joint tenancy by a conveyance by one of the tenants of his share must take place before, the death of such cotenant and before the other, as a consequence, has become the owner of the whole by virtue of his right of survivorship.</p> <p>[3] Deed—Acceptance—Retroactive Operation—Absence of Intervening Rights of Third Persons.—Where a deed is handed to a third person with instructions to deliver to the grantee upon the death of the grantor, the assent of the grantee thereto may be given after the grantor’s death, and when so given will, as between grantor and grantee, relate back to the time when the deed was first handed to the custodian, provided that no rights of third parties have intervened.</p> <p>[4] Id.—Conveyance by Joint Tenant—Assent of Grantee Subsequent to Death of Grantor—Rights of Surviving Tenant—Ineffective Deed.—Where a grandfather, while holding real property in joint tenancy, signed and acknowledged a deed purporting to convey to his grandson a one-half interest in the property and handed the deed to his own son with instructions to keep it until the grandfather’s death and then deliver it to the grandson, and the grandson was wholly unaware of the deed until after the grandfather’s death, his then assent to the deed did not make it effective as against the right of the surviving tenant to the whole property which accrued upon the death of the grandfather.</p> <p>[5] Joint Tenancy—Survivorship—Manner of Taking Moiety.—The joint tenant who survives does not take the moiety of the other from him or as his successor, but under the devise or conveyance by which the joint tenancy was created in the first instance.</p> <p>3. Efficacy of deed deposited with third person, to be delivered after death of grantor, notes, Ann. Cas. 19150, 378, 385, 388; 4 L. R. A. (N. S.) 816; 9 X,. R. A. (N. S.) 317.</p>

<p>[1] Municipal Corporations — Authority to Purchase Electricity for Resale — Validity of Contract — Los Angeles Charter.— The city of Los Angeles has authority under subdivision 7, section 2, of article I of its charter to enter into a contract with a private corporation by which the city agrees to purchase from the corporation for a period of years all electric energy necessary for distribution to its consumers on the municipal system in excess of that produced by the power-generating plants owned and operated by the city.</p> <p>[2] Id.—Authority to Sell. Electricity — Validity of Contract— Los Angeles Charter.—The city of Los Angeles has authority under subdivision 7, section 2, article I of its charter to enter into a contract with a private corporation giving the latter the right for a period of years to purchase from the city all surplus electric power produced at the city’s generating plants and not necessary for distribution to the consumers through the city’s distributing system or for sale to the city of Pasadena for distribution and use within that city.</p> <p>[3] Id.—Authority to Purchase Distributing System—Validity of Contract—Los Angeles Charter.—The city of Los Angeles has authority under paragraphs (d) of subdivision 7 of section 2 of its charter to enter into a contract for the purchase of the electric distributing system of a private corporation within the corporate limits of the city on a cash basis for a fixed price without submitting it for approval by a majority of the qualified electors of the city.</p> <p>2. Right of municipality to make profit from its water or lighting plant, note, 24 L. R. A. (37. S.) 290.</p> <p>3. Power of municipal corporation to own electric light plant, notes, Ann. Cas. 1916B, 523; Ann. Cas. 1918A, 259; 15 L. R. A. (17. S.) 711.</p>

<p>[1] Attachment—Bond to Release Property—Construction of Section 540, Code of Civil Procedure.—Section 540 of the Code of Civil Procedure contemplates only a bond given to a sheriff holding a writ of attachment to prevent a levy by him on property within his county, or to procure a release of such property by him after levy, when tendered prior to his making a return on the writ. There is no such thing under said section as a single bond or undertaking for the release of property situate in different counties, held under levy by different sheriffs, each acting under a writ directed to him alone.</p> <p>[2] Id.—Construction of Bond.—A bond admittedly given in, a transaction solely between the parties to an action, altogether without reference to the respective sheriffs who had levied attachments on property of the defendant, and looking to the release by the plaintiff of his then existing attachment liens in consideration of the furnishing of security acceptable to him for the payment of whatever judgment might be recovered by him, is not one given in pursuance of any statutory provision relative to attachments, but is purely a contract between the parties independent of any statute, by which the surety, for a sufficient consideration, viz., the release of the attachment by the plaintiff, agrees to pay to the plaintiff the amount of any judgment that might be recovered by him in the action and is enforceable as a common-law bond.</p> <p>[3] Id.—Appeal—Failure to Give Bond to Continue Attachment.— Such a bond is not one “received in the action,” referred to in section 553 of the Code of Civil Procedure, and the failure to give the bond provided for by section 946 of the Code of Civil Procedure on appeal, providing for the continuing in force of an attachment, does not destroy the right to recover on the bond.</p> <p>[4] Ed.—Consideration.—En such a ease there is no failure of consideration, the consideration for the giving of the bond being the immediate release of property from valid attachments theretofore levied, which consideration was fully executed and of which the defendant in the attachment suit had the full benefit.</p>

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

<p>[1] Unlawful Detainer—Lease—Breach of Covenant to Pay Taxes —Pleading—Sufficiency of Complaint.—In an action in unlawful detainer, where the complaint alleged an unlawful holding after default upon a covenant by the lessee to pay the taxes assessed against the leased premises followed by a notice to pay the same or quit within three days, which demand was not complied with, the complaint was not open to the objection that it did not state facts sufficient to constitute a cause of action in that there was no allegation that no tax was ever levied upon the leased premises, where it was alleged that the second installment of the taxes levied against the property of the plaintiff, which included the leased property, was a certain amount, and that a certain lesser amount was the proportional amount of said taxes chargeable against the leased premises.</p> <p>[2] Id.—Evidence—Tax Apportioned to Leased Premises—Admissibility of Testimony of Assessor. — In an action to recover leased premises on the ground of breach of covenant of a lease to pay taxes on the demised premises which were a part of a larger tract, the assessment being made of the larger tract as a whole, testimony of the county and city assessors, who made the respective assessments, was admissible to show the proportion of the taxes properly chargeable to the leased premises.</p> <p>[3] Appeal—Findings—Conflicting Evidence.—Where the evidence is conflicting upon an issue a finding based upon it is conclusive in the appellate court.</p> <p>[4] Unlawful Detainer — Breach of Covenant to Pay Taxes — Amount of Tax—Account Stated.—In an action of unlawful detainer to recover premises on account of breach of a covenant to pay taxes in a lease of the premises, the leased premises being a part of a larger tract which was assessed as a whole, where it was the custom of the lessor to make up a statement of the amount of taxes properly chargeable to the lessee and render such statement showing the amount due for each installment of taxes, which the lessee would pay as the tax fell due, the statement was in the nature of a stated account, and where this course was followed as to the taxes in question, no objection having been made to the statement and the lessee having paid the first installment without objection as to the amount and no objection having been made to the amount demanded for the second installment until after suit brought, the circumstances must be taken as an admission by the lessee that the amount charged was fair and just and it is sufficient to support a finding to thait effect.</p> <p>[5] Tide-landS'—Boundaries.—The rights of adjoining owners of land bordering upon tide water, or upon a navigable lake or stream, in the land under the water upon which both tracts abut, and to the use of the water covering the same, are not fixed by extending their boundary line in the direction of the last course ending at the shore line, but are fixed by a line drawn into the water perpendicular to the shore line; that is, to the general course of the shore line at that point. If the shore line is circular, it will be perpendicular to a tangent drawn on the circle at the point of such intersection. The same "rule applies, in the absence of any statute to the contrary, to the bounds of municipal jurisdiction over waters of the ocean.</p> <p>[6] Leases — Covenant to Pay Taxes and Bent Independent — Waiver.—Where a lease provides that the lessee shall pay the taxes on the demised property and that in ease he fails to do so for any year or any installment thereof and the lessor thereupon pays them, the amount thereof chargeable to the lessee must be paid to the lessor at the next rent day thereafter, the covenant to pay the taxes and that to pay the rent are wholly separate and independent and the acceptance of the rent does not operate as a waiver of the obligation to pay the taxes.</p> <p>5. Running side lines of water lots, note, 23 Am. Dec. 536.</p>

<p>[1] Municipal Corporations—Contracts for Street Improvement— Interest—Remedies.—In order to recover interest against a municipality there must be some statutory provision authorizing it, and installments of the contract price under contracts with a municipality for the improvement of one of its streets do not bear interest from the date on which they were audited and ordered paid by the common council, and the remedy of the claimant to avoid delay in payment is by mandamus to compel the auditor to issue his warrants and thus secure payment.</p> <p>[2] Id.—Approval of Claim by Common Council—Right to Sue on Claim.—The approval by the common council of the city of a claim for money due on contracts for street improvements does not preclude the claimant from maintaining an action against the city upon the claim for the amount due, where the claimant has failed to secure payment solely by reason of the unauthorized refusal of the auditor to issue proper warrants.</p>

<p>[1] Taxation — Common Carriers — Valuation of Property-—Gross Receipts—Interstate Business.—The gross receipts of a common carrier engaged in interstate commerce can be considered as a basis in a tona, fide effort to determine the value of the carrier’s property within the state, and if the value so derived from the consideration of these gross receipts from interstate commerce and from intrastate commerce is the fair valuation of the property within the state subject to taxation, the tax is valid.</p> <p>[2] Id.—California Constitution—Property Tax.—The taxes levied by section 14, article XIII, of the state constitution are taxes upon property rather than upon receipts or income.</p> <p>[3] Id.—Tax Laws—Determination of Validity.—The question as to whether or not a particular taxing law violates the federal constitution depends upon the practical operation and the effect of the tax imposed and not upon the definitions or declarations of the state authorities.</p> <p>[4] Id.—Earnings as Basis of Property Value.—It is proper, as a basis on which to establish the value for the purpose of taxation of property of a common carrier doing interstate business as well as intrastate business in this state, to consider the earnings derived from its property, tangible and intangible, within the state; and it is proper to consider the proportion of its receipts derived from its interstate business earned within the state as an element of that basis.</p> <p>[5] Id.—Apportionment of Interstate Earnings — State System.—• The system adopted by the state constitution for apportionment of interstate earnings of a common carrier doing both interstate and intrastate business is the fairest possible method of such apportionment, and by said method the state does not assert jurisdiction over any earnings from the interstate business, not actually derived from that portion of said business actually conducted within the state, and does not draw to itself earnings derived from capital or property elsewhere situated, and the method adopted for the ascertainment of local values is wholly unobjectionable.</p> <p>1. Valuation of railroad property for purposes of taxation, notes, Aral. Cas. 1916E, 1180, 1196, 1198, 1201; Ann. Cas. 1917E, 110.</p> <p>[6] Id. — Foreign Corporations — Forfeiture for Nonpayment of Taxes—Statute of 1911.—The validity of that portion of the act of 1911 (Stats. 1911, 530, 548, sec. 24), declaring a forfeiture of the right of a foreign corporation, to do- business in the state if taxes are not paid, is not involved in an action to recover taxes already paid.</p>

<p>[1] Execution—Bight to Recall.—The right of a court, under whose order an execution has issued, to recall it cannot be doubted if the issuance was improperly or inadvertently made or authority therefor revoked.</p> <p>[2] Id.—Discretion to Issue Execution.—The court in which a judgment has been rendered has the discretion, under section 685 of the Code of Civil Procedure, upon a showing of proper grounds, to determine whether the judgment may be enforced at all after the lapse of five years, although on an application for a writ of execution or in proceedings to vacate it, the court cannot properly consider defenses to the original action or circumstances leading up to the judgment.</p> <p>[3] Id.—Issuance op Execution—Review.—Under the terms of the statute no showing is required of meritorious grounds for enforcement of the judgment, and the court has authority to grant the writ on an ex parte motion, but such order is subject to review on a motion to vacate the order and recall the execution.</p> <p>[4] Id.—Order Recalling Execution—Res Judicata.—The doctrine of res judicata is applicable to an order granting a motion to vacate an order for execution and to quash the execution, and the order granting the motion is a judgment on the merits as to the right to enforce the judgment, under the provision of section 685 of the Code of Civil Procedure, as to all grounds presented or defenses thereto open to the plaintiff on such hearing, and where the order is not appealed from or otherwise directly attacked, it is conclusive upon all matters presented or which should have been presented on the hearing.</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 striking out the cost bill in an action for damages for slander. Grant Jackson, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Corporations—Failure to Pay License Tax—Dissolution—Maturing op Obligations.—The dissolution of a corporation by-operation of law for failure to pay its license tax does not have the effect of maturing its obligations.</p> <p>[2] Id.—Watered Stock-—Stockholders’ Liability — Accrual op Bight op Action—Statute op Limitations.—The general rule is that the right of action by a creditor against a stockholder of a corporation on his liability as a holder of watered stock does not accrue until judgment first has been obtained against the corporation and execution thereon is returned nulla bona, and the statute of limitations on a creditor’s bill in equity against the stockholders does not begin to run until the return of the execution nulla bona.</p> <p>[3] Id.—Exception to Bule.—An exception to the rule requiring that judgment be first had against the corporation before the accrual of a right of action by a creditor against a stockholder on his liability as holdey of watered stock is where the corporation is insolvent; in such a ease the creditor may bring an action against the corporation and stockholder without first securing a judgment against the corporation and return of execution nulla bona.</p> <p>[4] Id.—Promissory Notes op Corporation—Dissolution by Failure to Pay Tax—Insolvency and Notice op—Liability op Holder op Watered Stock—Accrual op Cause op Action.—The cause of action against a holder of watered stock of a corporation to a creditor of the corporation on promissory notes executed by it accrues when the notes become due, where the corporation was dissolved on a certain date for failure to pay its license tax and was at -that time insolvent and the creditor had notice thereof, but the corporation was never declared an insolvent or bankrupt and no assignment for the benefit of creditors was made.</p> <p>2. Limitation of action to enforce stockholder’s statutory liability, note, 3 Ann, Cas. 505,</p> <p>[5] Id.—Creditor’s Bill—Statute op Limitations—Section 343, Code op Civil Procedure—An action by a creditor of a corporation against a stockholder on his liability by reason of being a holder of watered stock is an equitable action in the nature of a creditor’s bill, and the time for filing such action is regulated by section 343 of the Code of Civil Procedure, which prescribes a four years’ limitation after the cause of action shall have accrued.</p> <p>[6] Id.—Exchange op Property por Watered Stock—Subsequent Transferees With Notice—Stockholder’s Liability.—Stockholders of a corporation who originally received watered stock from it in exchange for property and those subsequently taking the stock with notice of the original transaction are bound to make good the difference between the value of the property transferred and the par value of the stock to creditors extending credit without notice of such overvaluation.</p> <p>[7] Id.—Defendants Joined by Amended Complaint—Running of Statute op Limitations.—In an action against stockholders of a corporation on their liability to a creditor by reason of being holders of watered stock, as to defendants who were not made parties to the original complaint, but were joined by an amended complaint, filed beyond the statutory time for bringing the suit, the cause of action is barred, as the statute of limitations on the right of action against the stockholders was running at the same time and, hence, was operating at the time of filing of the amended complaint, which, so far as they are concerned is taken as the date of the beginning of the action.</p> <p>[8] Id.—Failure to Transfer Stocks on Books—Bights of Creditors.'—Failure to make the transfer of stock on the books of a corporation requires that such transfer be disregarded in considering the rights of a creditor of the corporation, for the stockholder remains liable to the creditor of a corporation in the absence of the proper transfer.</p>

<p>[1] Pleading — Motion fob Judgment on — Admissions.—The effect of a motion made by the defendant, after filing his answer, for judgment on the pleadings is to admit the truth of all the allegations of the complaint, and the answer must be disregarded, the sole question being whether or not the facts stated in the complaint constitute a cause of action against defendant.</p> <p>[2] Negligence—Person Invited upon Premises op Another—Degree op Care Required op Owner.—A person invited upon the premises of another may recover from such owner for any injuries received owing to the dangerous condition of the premises known to the owner and not known to the person so invited, but such owner is not bound to keep his premises absolutely safe. The responsibility of such owner for the safety of such person in such case is not absolute; he is only required to use ordinary care for the safety of the person he invites to come upon the premises. If there is a danger attending upon such entry, or upon the work which the person invited is to do thereon, and such danger arises from causes or conditions not readily apparent to the eye, it is the duty of the owner to give such person reasonable notice or warning of such danger, but such owner is entitled to assume that such invitee will perceive that which would be obvious to him upon the ordinary use of his own senses, and he is not required to give to the invitee notice or warning of an obvious danger.</p> <p>[3] Id.—Pleading—Allegations op Complaint.—Where a plaintiff’s cause of action rests upon the negligence of the defendant, the complaint must show such negligence, and when the facts alleged show that plaintiff and defendant stand in such relation to each other that the defendant is not chargeable with negligence toward the plaintiff, unless unusual conditions coexist with the conditions alleged, such unusual conditions will not be presumed to exist in favor of the plaintiff, but must be alleged by him.</p> <p>[4] Id.—Unusual Conditions—Insufficiency of Complaint.—In an action for damages for bodily injuries to a switchman of a railway company in being caught between a building and a ear while attempting to climb a ladder on the side of the ear which was being switched on a spur-track, the complaint does not state a cause of action against the defendant for negligence toward the plaintiff, as one invited upon premises and standing in no other relation to defendant, unless the building and the danger to the plaintiff were not apparent to ordinary observation, and since they would be so apparent, except under extraordinary and unusual conditions, it was necessary for plaintiff to allege the facts, if any existed, which required of defendant the exercise of the unusual precaution of giving plaintiff warning of the existence of the building and its proximity to the spur-track.</p> <p>2. Duty of owner to licensees or invitees upon premises, note, 1 Ann. Cas. 209.</p> <p>Duty of owner of dangerous premises to invitee temporarily following own devices, note, 17 Ann. Cas. 591.</p> <p>Liability of owner of private residence for injury to person invited therein, note, 13 L. R. A. (N. S.) 442.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying admission of a will to probate. John T. Nourse, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Contract—Insurance on Improvements on Leased Premises— Policy Taken in Name of Lessor for Lessee—When Lessor not Liable for Failure to Collect,—Where a lessee of a building made certain improvements on it and to protect his interest in them it was agreed between him and the lessor that insurance should be taken on the building for the benefit of the lessee in the amount of the improvements, the policy being taken in the name of the lessor at the suggestion of the insurance agent that it was necessary to take it in the name of the owner of the building, but being at the expense of the lessee, and the policy being retained in the possession of the lessee and no request being made by the lessee for the lessor to take the necessary steps to collect on the policy after a destruction of the premises by fire, there was no implied obligation on the part of the lessor to collect on the policy and he was not liable to the lessee for failure to do so.</p>

<p>The facts are stated in the- opinion of the court.</p> <p>Crouch & Crouch, George W. Crouch, Donald Barker, James M. O’Brien and Wm. H. Neblett for Appellant Empire Securities Company.</p> <p>Albert Lee Stephens, City Attorney, and Henry N. James, Deputy City Attorney, for Appellant City of Los Angeles.</p> <p>Oscar Lawler and James E. Degnan for Respondent American Surety Company of New York.</p>

<p>APPLICATION for a Writ of Habeas Corpus. Writ discharged.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Judgments—Waiver op Bindings—Intendments in Bavor op Judgment.-—Where findings are waived every intendment is in favor of the judgment, and, therefore, upon all the issues raised by the pleadings, it must be presumed that the trial court, in effect, found all the facts necessary to support the judgment.</p> <p>[2] Action por Maintenance—Desertion and Extreme Cruelty—• Suppiciency op Evidence.—In this action for maintenance it is held that conceding it to be the law that if the defendant honestly, though mistakenly, believed the plaintiff to have been unfaithful to him, he would have been justified in - abandoning her and charging her with adultery and repeating said charge to certain of her friends and relatives and repeatedly stating to her and to her friends and relatives that he was not the father of the child bom to her during wedlock with him, and, therefore, would be absolved in the eyes of the law from the charge of desertion and extreme cruelty, still the evidence in the case as a whole warrants the inference which the court doubtless drew therefrom that the defendant’s abandonment of the plaintiff and his charging her with adultery were not justified or made in good faith.</p>

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

<p>[1] Criminal Law—Embezzlement—Probable Cause fob Commitment.—Probable cause for the commitment for trial for embezzlement of one is shown where the evidence disclosed that after the full payment of the debt for which bonds were held by the defendant as security he, without lawful right, retained them and converted them to his own use by pledging them for his own obligation.</p>

<p>APPLICATION for a Writ of Mandamus directed to the Superior Court of Stanislaus County to compel respondent to proceed with the probate of a will. Writ denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Vendor and Vendee—Exchange of Property—Agreement to Assume Mortgage—Evidence.—In a sale of real property an agreement to assume and pay a mortgage is not inconsistent .with a deed reciting that the property is granted subject to a mortgage. Consequently, such an agreement may be shown by parol evidence.</p> <p>[2] Id.—Consideration—Assumption of Mortgage-—Bes Adjudicata. In an action to recover the amount of a deficiency judgment after sale on foreclosure of mortgage, in which plaintiff claimed that defendants had agreed to pay the mortgage on an exchange of properties, where it was determined that the assumption of the mortgage was part of the consideration for the exchange in a suit for specific performance of the contract, the judgment is res adjudicata, as where payment of - a mortgage forms part of the consideration of a conveyance the grantee is bound to pay the same.</p> <p>[3] Id.—Foreclosure of Mortgage—Deficiency Judgment—Contract to Assume Mortgage—Action to Becover Deficiency.— Accrual of Liability.—Where mortgaged property had been applied to the debt by a foreclosure sale and there was an unpaid- balance, the contention that a suit to recover the amount of the deficiency by one who claims that the defendant assumed the mortgage on exchange of properties was prematurely filed because the plaintiff had not at the time of bringing the suit paid the deficiency cannot be maintained, as plaintiff’s right to reimbursement had accrued when suit was brought.</p> <p>[4] Foreclosure of Mortgage—Service by Publication—Failure to Take Deficiency Judgment—Bights of Mortgagee not Waived.—In a suit to foreclose a mortgage where service was obtained by publication and jurisdiction was not acquired over the mortgagor, the effect of a decree in the suit is to apply the property to satisfaction of the mortgage, but the mortgagee does not waive her rights against the mortgagor by failing to secure a deficiency judgment, and the payment thereof by the mortgagor is not voluntary.</p> <p>[5] Id.- Agreement to Assume Mortgage—Foreclosure of Mortgage—Attorney’s Fees.—An agreement to assume payment of a mortgage on real property includes the payment of attorney’s fees on the foreclosure of the mortgage.</p> <p>1. Admissibility of parol evidence to show that grantee of deed assumed existing liens on property, note, 25 L. R. A. (N. S.) 1202.</p>

<p>[1] Deed — Delivery—Intent to Transfer Title — Evidence.—To constitute a valid transfer of property by deed, the delivery of the instrument of conveyance must be attended by an intent to transfer title, and the question of the existence of such an intent is determined by a consideration of all the evidence in a given ease bearing upon that issue.</p> <p>[2] Action to Set Aside Deed—Intent to Transfer Title—Insufficiency of Evidence to Support Bindings.—In an action to set aside a deed to an interest in mining property on the theory that the grantor did not intend to divest himself of title, where the inferences attempted to be drawn from the evidence in support of the findings of the trial court in favor of the plaintiff upon which the judgment rests are unreasonable, illogical, and strained, they cannot avail to overcome the effect of the delivery of the deed, which the circumstances showed to have been made with full knowledge of the legal consequences thereof.</p> <p>Delivery of deed as question of law or fact, note, Ann. Cas. 1914D, 108.</p> <p>Effect of delivery of deed to grantee, subject to future extrinsic conditions, note, 16 L. R. A. (N. S.) 941.</p>

PROCEEDINGS for disbarment of defendant as attorney and counselor at law for conduct involving moral turpitude. Dismissed. The facts are stated in the opinion of the court.

<p>[1] Habeas Corpus—Violation oe Motor Vehicle Act.—On this application for discharge of petitioner on habeas corpus after conviction of the violation of the Motor Vehicle Act, it is held that all points available to petitioner were correctly decided In re Kaster on Babeas Corpus, No. 556, filed May 2, 1921 (Cal. App.), 198 Pac. 1029.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco settling an annual account of a testamentary trustee. John T. Nourse, Judge. Modified and affirmed.</p> <p>'The facts are stated in the opinion of the court.</p>

<p>[1] Mining Law—Location or Claim—Discovery or Mineral— Pleading.—Allegations in a complaint that lands located as oil claims and described as “surveyed lands of the United States, known as mineral lands, and having the usual and very favorable geological and surface indications and evidence of containing valuable and extensive deposits of petroleum and mineral oils in commercial quantities,” and that experienced oil experts were employed by plaintiffs to examine, test, and report upon the lands, that from such examinations and testings a report was made in which it was stated “that the geological indications and evidence were unusually favorable for large and profitable deposits of mineral oil, and that apparently it would be developed into one of the best producing oil fields in the United States,” fall short of alleging a discovery of oil within the meaning of the United States statutes authorizing the location of government mineral lands.</p> <p>[2] Id.—Location of Mining Claims—Absence of Discovert of Mineral—Possessory Eights.—In the absence of discovery, the location of lands under the mining law merely authorizes the locator to maintain possession while diligently and in good faith prosecuting the work of endeavoring to discover minerals thereon.</p> <p>[3] Corporations—Watered Stock—Liability of Holder of Stock to Corporation.—If the purchaser of stock of a corporation is aware of the initial transaction by which the stock is issued for a consideration greatly less than par, he is liable to the corporation for the difference between the value of the property conveyed to the corporation for the stock and the amount of stock issued therefor pro rata; if he is not, those to whom the stock was originally issued for the inadequate consideration are liable.</p> <p>[4] Id.—Fraudulent Issue of Stock—Inadequate Consideration.— Where it is proposed to issue stock of a corporation to purchasers for a consideration of only ten cents per share, the par value being one dollar per share, it is manifest that the transaction is fraudulent against creditors and stockholders.</p> <p>[5] Id.—Violation of Corporate Securities Law—Injunction—■ Equity.—Where the original issue of stock of a corporation is fraudulent by reason of a gross inadequacy of consideration transferred to the corporation for it, equity will not aid the parties by injunction to prevent prosecution for violation of the Corporate Securities Act, even if it be conceded that the law is unconstitutional and that the threatened action of the district attorney is erroneous.</p> <p>2. Sufficiency of discovery of minerals to support location of mining claim, note, 15 Ann. Cas. 628.</p>

<p>[1] Estates or Deceased Persons—Judgments—Recitals—Jurisdiction.-—Orders and decrees made by a court in probate proceedings need not recite the existence of facts, or the performance of acts, upon which the jurisdiction of the court or judge may depend, but it is only necessary that they contain the matters ordered or adjudged, except as otherwise provided in the statute, and every intendment is in favor of the decree.</p> <p>[2] Id.—Trading With the Enemy Act—Cessation of Hostilities— .Enforcement of Act—Constitutional Law.—No constitutional right of distributees of the estate of a deceased person is infringed by the enforcement of the Trading With the Enemy Act according to its terms, at any time prior to the ratification of a treaty of peace, notwithstanding the actual cessation of hostilities.</p> <p>[3] Id.—Decree of Distribution—Appeal—Compliance With Trading With the Enemy Act—Presumption.—On appeal from a decree of final distribution in the estate of a deceased person, where the decree, after adjudging that an individual and a corporation, both residents of Germany, were entitled to the whole estate subject to the rights of the alien property custodian under the Trading With the Enemy Act to whom the property is ordered delivered, in view of the fact that every intendment is in favor of the decree, it must be presumed that the alien property custodian, who, the decree shows, was represented by counsel when distribution was ordered, had regularly appeared in the proceeding and made any or all demands and given all the notice essential under the Trading With the Enemy Act in the manner provided by the act.</p> <p>[4] Id.—Decree of Distribution—Distribution to Alien Property Custodian.—A decree of distribution in the estate of a deceased person which “distributes” property, which it determines alien enemies are entitled to, to the alien property custodian, to be held, administered, and accounted for by him, as provided by law and by the decree defining the rights of the parties in interest, is not erroneous, and is in substantial accord with the requirements of the act.</p> <p>2. Rights and liabilities of aliens as affected by war, notes, Ann. Cas. 1917C, 189, 227; Ann. Cas. 1917E, 484; Ann. Cas. 19180, 709, 741; Ann. Cas. 1918D, 583, 601.</p> <p>Right of alien enemy to take by inheritance or by will, note, 11 A. L. R. 156.</p> <p>[5] Id.—Judgment—Jurisdiction of Probate Court.—The contention that the superior court is without power to incorporate a provision in a decree of final distribution in the estate of a deceased person, distributing property to which it is determined alien enemies are entitled, to the alien property custodian to be held, administered, and accounted for by him, as provided by law and the decree, on the theory that the functions of the superior courts in probate matters are limited to an ascertainment of the heirs, legatees, and devisees, and a distribution to them, or to other persons to whom such heirs, legatees or devisees may have conveyed their interests, cannot be maintained.</p>

<p>The facts are stated in the opinion of the court.</p> <p>William M. Morse, Jr., and Hoefler, Cook & Snyder for Appellant.</p>

<p>[1] Vendos and Vendeos—Default of Vendee—Waives.—Under a contract for the sale and purchase of real property on installment payments, where time is made of the essence, the acceptance by the vendor of past due payments waives all past defaults in performance, but does not alter the terms of the contract with regard to the future or eliminate as to future occurrences provisions that time is of its essence, that if the vendee fails to comply with its terms the vendor shall be released from all ob- , ligation to convey, and that payments already made shall be forfeited by such failure; its only effect as to the future is to give the vendee a reasonable time after the payment within which to perform his part of the contract.</p> <p>[2] lb.—Reasonable Time—Question of Fact.—The question as to what is a reasonable time for performance after waiver of default on the part of the vendee under a contract for the sale and purchase of real property on installment payments depends in each case upon its own particular circumstances and it is primarily a question of fact for the determination of the trial court.</p> <p>[3] Id.—Presumption on Appeal.—In an action by the assignee of the vendee under a contract of purchase and sale of real property on installments, it must be presumed on appeal in support of the findings and judgment in favor of the defendant that the trial court decided that a reasonable time for performance by the vendee, after waiver of default by the vendor, had expired before the refusal of the vendor to accept an overdue partial payment tendered by the vendee, the vendee stating at the time that he was unable to pay the full amount then due.</p> <p>[4] Id.—Performance—Lapse of Reasonable Time for—Rights of Vendor.—The vendor under a contract for the purchase and sale of real property on installments has the right, after he has waived default of the vendee in making payments and a reasonable time thereafter has elapsed for performance, to refuse further time, demand full performance, and decline to accept any partial payments and to assert his rights under the terms of the contract to declare it ended and the payments made forfeited to his use. His rights are the same as if the contract" had originally</p> <p>1. Vendor’s acceptance of payment tendered after time specified as waiver of provision making time of essence of contract, note, 9 A L. R. 996. fixed the period of expiration of such reasonable time as the time for full payment.</p> <p>[5] Id.—Tender op Performance—Waiver.—In such a case a tender of a deed by the vendor, who is only contending that the contract cannot be enforced against him after such default by the vendee, is not necessary where the conduct or .declarations of the vendee are such as to show that it would be unavailing.</p> <p>[6] lb.-—Repeated Acceptance op Overdue Payments—Waiver.—In such a ease the contention that the repeated acceptance of overdue payments, however small, upon the contract price, not only operates as a waiver of all previous defaults, but also constitutes a waiver of the provisions of the contract declaring time of its essence and that the purchase money shall be forfeited upon a failure to pay at maturity, cannot be maintained.</p> <p>[7] Id.—Waiver op Default—Restoration op Rights Under Contract.—If, after such waiver as the law infers from acceptance of partial payments after maturity, the conduct of the vendor and vendee in subsequent dealings is such as to justify the inference that both parties understood that the conditions regarding forfeiture were to be treated as restored and were in force and that the vendee understood that he was then in default, the vendor may have the advantage of the forfeiture as completely as he may obtain it by a definite notice to the vendee, and when, in this situation, the vendor demands full payment and the vendee admits his utter inability to comply, the rule that a tender of the deed by the vendor need not be made when it would obviously be unavailing becomes applicable, and he may treat the failure and inability of the vendee as an abandonment of the contract, declare the money paid forfeited, and resell the property to another without liability to refund to the vendee the money paid. Especially is this true when the vendee has not been given possession and his conduct has shown a previous disposition to postpone performance indefinitely and has evidenced a design to keep up the relations solely for speculative purposes.</p> <p>[8] Id.—Evidence.—In such a ease it is immaterial error, if error at all, to reject proof that on the day before a conversation between the vendor and vendee, in which the former refused to accept an overdue partial payment, he had given an option to another person to buy the property covered by the contract, where the option was without consideration and not binding on the vendor.</p>

<p>PETITION to review an. order of the Railroad Commission purporting to fix water rates. Submission set aside and time allowed to amend petition.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Undue Influence—Arguments or Entreaties—Insufficiency of to Constitute Undue Influence.—The mere fact that one person has been influenced by the arguments or entreaties of another is not enough to make the influence an undue one. It is not undue unless the pressure has reached a point where the mind of the person subjected to it gives way before it, so that the action of such person taken in response to the pressure does not in fact represent his conviction or desire, brought about perhaps by argument and entreaty, but represents in truth only the conviction or desire of another.</p> <p>[2] Estates of Deceased Persons—Wills—Charge of Undue Influence—Insufficiency of Evidence.—In a contest of a will upon the ground of undue influence, the charge is not sustained where it appears that the testatrix was a mature and intelligent woman of sound mind; that she was married to a man of wealth very much older than herself; that she was devotedly attached to her aunt, whom she regarded as her mother; that she had a little property of her own given her by her husband, consisting almost entirely of stock in a corporation managed by her aunt’s husband; that she was expecting a child and was fearful of the result of her confinement; that she wished to make provision as to the disposition of her estate and the care of her possible child in case she should die; that under the circumstances she made a will after consultation with a lawyer and when she and the aunt were away from their home together; and that the will provided for the division of her estate between the aunt and her , child, if there should be one, and otherwise for it all going to the aunt, requested that the aunt be appointed guardian of the child, and stated that no provision was made for her husband as he had ample means of his own.</p> <p>[3] Id.—Undue Influence—What Constitutes.—In a will contest on the ground of undue influence evidence must be produced that pressure was brought to bear directly upon the testamentary act. But this evidence itself need not be direct; circumstantial evidence is sufficient, but it must do more than raise a suspicion; it must amount to proof, and such evidence has the force of proof only when circumstances are proven which are inconsistent with the claim that the will was the spontaneous act of the testator.</p> <p>2. Effect of unnatural testamentary disposition on the question of undue influence, notes, 7 Ann. Cas. 894; 6 L. R. A. (N. S.) 202; 22 L. R. A. (IT. S.) 1024.</p> <p>3. Undue influence which will invalidate will, notes, 16 Am. Dec. 257; 31 Am. St. Rep. 670.</p> <p>[4] Id.—Activity in Procuring Will.—Activity of the beneficiary under a will in obtaining a letter of introduction to the lawyer who prepared the draft of the will and going with the testatrix to his office and there remaining in the outer room during the interview between the testatrix and the lawyer is not the activity in the procurement of the will which is necessary in order to give rise to a presumption of undue influence, as the activity must be in the use of the relation for the overcoming of the will of the testatrix.</p> <p>[5] Id.—Declarations of Testatrix—When Admissible.—In a will contest upon the ground of undue influence declarations of the testatrix, in order to be admissible under the exception to the rule against hearsay evidence, must, first, be indicative of the mental state of the declarant at the very time of utterance, and, second, his or her mental state at that time must be material to the issue in the ease, i. e., have a reasonable evidentiary bearing upon such issue.</p> <p>[6] Id.—Inadmissible Declarations.—Declarations of a testatrix are inadmissible where they are indicative simply of the fact that at the time they were made, some three months after the execution of the will, the testatrix had changed her mind in regard to the disposition she wished to make of her property, and regretted the will she had made, as the fact that she had changed her mind and regretted what she had done was not material.</p> <p>[7] Id.—Slight but Prejudicial Evidence—Exclusion of.—In such a case where the true evidentiary bearing of the evidence is at best slight and remote, and yet the evidence is of a nature such as to make it very prejudicial to the party against whom it is offered, the evidence should be excluded.</p> <p>[8] Id.—Declaration That Will Made at Benefioiary,s Bequest— Inadmissibility of.—A declaration of a testatrix contained in a letter to one of her beneficiaries to the effeet that her will had been made at the latter’s request is inadmissible, on the ground that it was merely a declaration as to a past event and not indicative of the condition of mind of the testatrix at the time she made the will.</p> <p>4. Sufficiency of evidence to repel presumption of undue influence from circumstances that one benefited by will was draftsman thereof, or was active in procuring its execution, note, 28 L. B. A. (N. S.) 288.</p> <p>5. Admissibility of declarations of testator to impeach or invalidate his will, notes, 52 Am. Dec. 167; 5 Ann. Cas. 608; 10 Ann. Gas. 600; Ann. Cas. 1917D, 717.</p> <p>[9] Id.—Declaration oe Fear—Admissibility oe.—A declaration in the form of a request by a testatrix to her husband that if they return to their home he protect her against her aunt and uncle, the aunt being a beneficiary under her will, as they would be cruel to her, is admissible in a contest of her will, as it indicated her then state of mind toward her aunt, and her then state of mind toward her aunt was material, since it had a bearing on what her mental attitude toward her aunt may have been at a previous and not far distant time when she executed the will.</p>

<p>[1] Highways—Federal Aid to State in Construction op.—The United States statute on the subject (39 Stats, at Large, 355) makes it clear that the fund derived from the United States government under said act to' aid the state in the construction of “rural post roads” represents the amounts paid by the federal government as its share of the cost of construction, which amounts may be paid either upon completion of the work or, if so arranged, during the progress of the work.</p> <p>[2] Id.—Control op Funds.—So far as the United States government is concerned, the payment of the funds for state highway construetion to the proper state officer terminates its interest in the fund. In no instance is the fund payable by the United States government until the work for which it is apportioned has been actually performed, and as the money thus paid by the United States government belongs to the state, it is subject to the control of the latter acting through its appropriate officials, the duty of the state and its officers and the United States government being fully performed when the highway approved by the Secretary of Agriculture has been constructed by the state in accordance with the contract, and it is no concern of the federal government what is done by the state with the funds turned over to it, the control of such funds so paid being one entirely for the determination of the state legislature, or, if thereto authorized by constitution or statute, by such other officers of the state as are given control of the funds.</p> <p>[3] Id.—What Fund Money Payable to.—It is apparent from the state legislation on the subject that when the legislature authorized the advisory board to designate the fund or funds into which payments from the federal government should be made, it was intended that such payments should be made into funds under the control of the advisory board.</p> <p>[4] Id.—Expenditure of Funds.—It is clear from the scope and purpose of the act creating the advisory board and the state engineering department and from the duties and powers of such department that the purpose and intent of the legislature was to authorize the expenditure of federal aid by the state engineering department for such purposes in connection with public highways as it was authorized to expend the funds of the state, and to that- end to designate to the state treasurer and controller some appropriate fund under its control in the state treasury to which to credit payments received from the federal government.</p> <p>[5] Id.—Deficiency in Sale of State Highway Bonds—Use of Federal Aid Fund to Pay Unauthorized.—An examination of the constitution and statutes on the subject makes it clear that the use of the federal funds contributed for state aid in construction of state highways to pay a deficiency caused by the inability to sell state highway bonds at par as required by the constitution is expressly prohibited.</p> <p>[6] Id.—“Surplus Money.”—“Surplus money” under the State Highway Act of 1915 (Stats. 1915, pp. 650, 652, see. 4) is money agreed upon by the state treasurer and the members of the state board of control as not necessary for immediate use, and such amount so designated can be used for the purchase of bonds as therein authorized.</p> <p>[7] Id.—Purchase and Sale of Bonds.—It is clear that the people in adopting the constitutional amendment and the legislature in authorizing the purchase and sale of bonds by the state board of control did not intend that these bonds should be sold at a discount either by the treasurer or by the state board of control.</p> <p>[8] Id.—Federal Aid Money Transfer to General State Fund Unauthorized.—The department of engineering of the state has no authority to direct the payment of money appropriated by the federal government for state aid in the construction of state highway into the surplus general fund for the purpose of paying the difference between the par and selling value of bonds, whether in the form of commission or otherwise, and the legislation authorizing the board to designate the fund into which this money should be paid contemplated that it should be paid into funds which under the statute organizing said board are under the control of that board for the creation, maintenance, and repair of state highways.</p>

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

<p>[1] Estates of Deceased Persons—Lost ob Destroyed Will— Testimony of one , Witness—Declarations of Deceased—Insufficient Proof.—In view of section 1339 of the Code of Civil Procedure, which provides that no will shall be proved as a lost or destroyed will unless its provisions are proven by at least two credible witnesses, a lost or destroyed will cannot be proven by the testimony of one witness who saw the original will and by evidence of the declarations of the testatrix as to its contents.</p> <p>[2] Id.—Revocation of Will—Effect upon Existing Prior Will—. Evidence—Proof of Contents by One Witness.—Where a will containing a revoking clause has been revoked by cancellation or otherwise, evidence of the contents of the will may be considered to determine the effect of the revocation upon an earlier will still in existence, and such contents may be established by the testimony of one witness.</p> <p>1. Declarations of testator alone as proof of contents of lost will, notes, 3 Am. Dec. 395; 107 Am. St. Rep. 459; Ann. Cas. 1915B, 253.</p> <p>Evidence to establish lost or destroyed wills, notes, 38 I». R. A. 433; 50 L. R. A. (N. S.) 864.</p> <p>Declarations of testator as admissible upon issue of revocation of will which cannot be found, notes, 3 Ann. Cas. 960; 14 Ann. Cas. 284; Ann. Cas. 1914C, 909; Ann. Cas. 1918E, 370.</p> <p>2, Effect of revocation of later will to revive an earlier one, notes, 76 Am. Dec. 652; 45 Am. Rep. 327; 4 Ann. Cas. 313; 13 Ann. Cas. 245; Ann. Cas. 1913E, 120; Ann. Cas. 1916E, 718; 37 L. R. A. 575; 14 L. R. A. (N. SA 937; 37 L. R. A. (N. S.) 291.</p> <p>[3] Id.—Will Contest—Unrevoked Will—Sufficiency of Evidence.—In this proceeding for the probate of a will which was contested on the ground that the will had been revoked by a later will which was alleged to have been destroyed without the intention of reviving the former will, the declarations of the testatrix and the circumstances of the ease are held sufficient to sustain the finding that the later will was still in existence at the time of her death.</p> <p>[4] Id.—Unrevoked Lost or Destroyed Will—Revocation of Former Will—Evidence—Proof of Revoking Clause—Two Credible Witnesses.—In view of section 1339 of the Code of Civil Procedure, which provides that no will shall be proved as a lost or destroyed will unless its provisions are clearly and distinctly proved by at least two credible witnesses, two witnesses are required to prove that a lost or destroyed will, which was unrevoked at the time of the death of the testatrix, contained a clause revoking former wills, where it is sought by such proof to show the revocation of an earlier will.</p> <p>[5] Id.—Will—Intention of Testator—Construction of Whole Instrument.—A will should be construed as a whole and the intention of the testator derived from the whole instrument and not from a single clause thereof.</p> <p>[6] Id.—Proof of Revoking Clause of Will.—In order that the revoking clause in a lost and unrevoked will shall be effective as such, it is necessary to establish that such clause was in the will and thus an effective part of it.</p> <p>[7] Id.—Revoking Clause—Part of Will.—The revoking clause of a will is a part of the will and is to be treated as such, and not as a separate instrument having the equivalent effect of an instrument executed with all the formalities required in the case of a will.</p> <p>[8] Id.—Revocation of Revoking Will—Construction of Code-^ Inapplicability to Unrevoked Will.—Section 1297 of the Civil Code, which declares the revocation of a revoking will does not revive the first will unless it appears by the terms of such revocation that it was the intention to revive or give effect to the first will, does not determine the effect of an unrevoked revoking clause of a lost or destroyed will, and whatever inferences are to be drawn therefrom with reference to the nonambulatory character of the revoking clause cannot overcome the more direct declarations of section 1339 of the Code of Civil Procedure as to the quantum of proof for a lost or destroyed will.</p> <p>6. Necessity of proof of contents of subsequent will in order that it may revoke prior will, note, Ann. Cas. 1914D, 130.</p>

Denied, The workmen’s compensation policy involved herein contained a warranty provision, designated “Item 14,” that “No person is or will he employed by the assured in violation of law as to age,” and also a provision entitled “Condition M,” that “The assured, by the acceptance of this policy, declares the statements in items numbered 1 to 17, inclusive, in said declaration to be true, except such as are declared to be matters of estimate only; and this policy is issued in…