Volume 186 — California Reports

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

The facts are stated in the opinion of the court. Byron Waters, C. C. Haskell, Ralph E. Swing and W. J. Guthrie, City Attorney, for Plaintiff, Appellant and Respondent. Henry Goodcell, W. G. Irving, Miguel Estudillo and Samuel C. Wiel for Defendants, Appellants and Respondents.

<p>[1] Sales—Recovery op Price op Tractor—Pleading—Written Contract and Warranty—Deficiency Supplied by Answer.— In an action to recover money paid on a contract of purchase of a farm tractor, the failure of the complaint to refer to the fact that a written agreement of sale was entered into accompanied by a written guaranty was immaterial, where the answer set out in full the contract and warranty.</p> <p>[2] Id.—Contract—Exclusion op Implied Warranties—Oral Representations—Immaterial Averments.—Where a written agreement and warranty for the sale of a farm tractor excluded all implied warranties, such agreement was the measure of the seller’s liability as to the quality and utility of the tractor, and averments of the complaint, in an action to recover payments on the purchase price, as to oral statements and general advertising representations on the part of the seller’s agents upon which plaintiff relied were irrelevant and immaterial matter.</p> <p>[3] Id.—Failure op Tractor—Lack op Suitable Material and Durability—Implication prom Other Averments.—In this action to recover money paid on account of the purchase price of a farm tractor for breach of certain warranties and conditions, although there was no direct allegation that the tractor failed for lack of suitable material and durability, the averments as to its numerous defects and weaknesses sufficiently implied such failure.</p> <p>[4] Appeal—Insufficiency of Evidence—Specifications.—An appellant is not in a position to object to the sufficiency of the evidence to support the findings, where the bill of exceptions contains no specifications of insufficiency nor any assignment of errors or exceptions reserved.</p> <p>[5] Id.—Assignment of Errors Occurring During Trial—Insufficiency to Justify Review of Evidence.—An appellant is not entitled to a review of the evidence under an assignment of errors of law occurring at the trial, where several motions were made and overruled at the close of the trial to strike out portions of the testimony and insufficiency of such portions was alleged, hut no objection of general insufficiency was contained in the motions.</p> <p>[6] II.—Notice op Unsatisfactory Operation op Tractor—Waiver of Contract' Provision.—Literal compliance with the requirements of a contract for the sale of a farm tractor that the buyer should give the seller immediate notice if the tractor failed to work upon three days’ trial, and thereafter immediately return the machine, if the seller’s agent could not within a reasonable time remedy the defects, was waived, where delivery of the tractor was at no time actually made or accepted, but such agents undertook personally to deliver and put the tractor in operation but were unsuccessful in their efforts.</p> <p>[7] Id.—Recovery of Price—Evidence—Result of Inspection Several Months After Attempted Operation.—In an action to recover money paid on account of the purchase price of a farm tractor, testimony of witnesses who inspected the tractor long after the attempt to operate it and after the rescission by the plaintiff, to the effect that on such inspection they discovered nothing wrong with it, was inadmissible in the absence of a showing that the tractor remained in the same condition as when it was previously tried out, since it was the duty of the seller under the contract to make the machine work satisfactorily upon demand within a reasonable time, and such evidence was immaterial to the buyer’s right to recovery.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Black & Black, D. S. Hammack, Alfred L. Black, E. W. Owen, C. L. Claflin, Anderson & Borton and Hammack & Black for Appellants.</p>

<p>[1] Sales—“F. O. B.” Contract—Duty of Securing Transportation —Question of Intention of Parties.—Under a f. o. b. contract for the sale of goods, the question as to whether the seller or the buyer is to secure transportation is one as to the intention of the parties, as to what they contemplated, regardless of whether the shipment is to be by rail or by sea, and the expression “f. o. b.” in and of itself throws no light upon the question, but merely makes it the duty of the seller to load at his own expense.</p> <p>[2] Id.—Shipment by Particular Bouts—Material Provision of Contract—Discontinuance—Excuse of Performance.—A provision in a f. o. b. contract for the sale of goods calling for shipment by a certain route was one material to the contract, so that the contract could not be performed according to its terms except by shipment by such route, and the continued existence of the route, in the absence of any warranty that it would continue in existence, was a condition of the contract within the rule that wherever a contract requires for its performance the existence of a specific thing, the fortuitous destruction of the thing excuses the promisor unless he has clearly assumed the risk of its continued existence.</p> <p>[3] Id.—Shipment by Another Boute—Option of Buyer—Construction.—A provision in a f. o. b. contract for the sale of goods calling for shipment by a particular route, that at the buyer's option the goods might go by another route in case the designated route was discontinued, means that the contract was conditional upon the designated route remaining open, but that in case it were discontinued, the buyer might, at his" option, waive the condition if the goods could go forward by another route.</p> <p>[4] Id.—Securing of Transportation—Discontinuance of Boute— Duty of Buyer Excused.—Under a f. o. b. contract for the sale of goods calling for shipment by a particular route, the buyer was justified in refusing to accept the goods, where the route was discontinued, regardless of whether it was his duty under the contract to secure the transportation.</p> <p>1. Duty of furnishing vessels or cars under contract for delivery “free on board,” notes, 2 Ann. Cas. 818; 9 Ann. Cas. 553; 6 L. R. A. (N. S.) 928; L. R. A. 1917A, 1163.</p> <p>2. Destruction of subject matter of contract as excuse for nonperformance, note, 1 Ann. Gas. 466.</p> <p>[5] Id.—Past Acceptance of Shipment by Different Bottte—Subsequent Shipments—Contract Requirement not Waived.—Under a f. o. b. contract for the sale of goods, 'calling for a shipment by a particular route, the acceptance of part of the goods by a different route was not, under the circumstances of the case, a waiver of the requirement of the contract as to subsequent shipments.</p>

<p>[1] Charitable Corporation—Collection and Preservation of Data and Articles of Early State History.—A corporation organized for the purpose of the collection and preservation of data touching the early history of the state and the collection and preservation of articles, specimens, and material things illustrative of the customs, modes, and habits of the early times in California and the perpetuation of the memory of those who contributed to make the history of the state, is a charitable and benevolent corporation.</p> <p>[2] 3b.—Definition of Charitable Corporation.—A charitable corporation is one organized for the purpose, among other things, of promoting the welfare of mankind at large, or of a community, or of some class forming a part of it indefinite as to number or individuals.</p> <p>[3] Estates of Deceased Persons—Void Bequest to Charitable Corporation.—A bequest made to a charitable and benevolent corporation within thirty days prior to the death of the testator is void under section 1313 of the Civil Code.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and Frank L. Guerena, Deputy Attorney-General, for Appellant.</p>

PROCEEDING for the disbarment of an attorney and counselor for conduct involving moral turpitude. Dismissed. The facts are stated in the opinion of the court.

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

<p>The facts are stated in the opinion of the court.</p> <p>Charles S. Burnell, City Attorney, Jess E. Stephens, City Attorney, and J. IT. O’Connor, Deputy City Attorney, for Appellant.</p> <p>DelpMn' M. Delm-as, Herbert Cutler Brown, Harry W. McNutt, Swanwick & Donnelly, W. W. Hindman, Byron D. Seaver, W. C. Petchner, John B. Yakey, John J. Craig, Thomas C. Ridgway and Milton K. Young for Respondents.</p>

<p>[1] Public Utilities—Organization of Water Company for Supplying Land Owners—Private Water Company—Lack of Jurisdiction of Railroad Commission.—Where a land company owning a large tract of land, riparian to a river and also owning certain shares of stock in a mutual water company entitling it to receive from such company certain water for its land, before proceeding to sell and subdivide the land, organized a water company and transferred to it what irrigation works had been constructed and its water stock in the mutual company and agreed to finance the new company in the completion and extension of such works, and without transferring its riparian rights to water from the river, which were reserved as part of and appurtenant to the land, authorized and empowered the new company as its agent to divert the water to which the land company was entitled and supply the same to its land at a specified charge per acre, such water was not water devoted to a public use, and the fixing of rates to be charged for such water was not within the jurisdiction, of the Railroad Commission.</p> <p>[2] Water Corporations—Mutual Water Company—Private Enterprise.—Water taken by a mutual water company and distributed to its stockholders is not taken for a public use, the corporation being simply the joint instrumentality of its stockholders by means of which each diverts and has brought to him the water to which he in his own private right is entitled.</p> <p>[3] Id.—Character oe Service—Views oe Parties.—In determining whether a water company which is performing a service for a number of people of a certain class and obligates itself to serve those who come within that class is rendering a service to a limited public, or purely private services to each of a number of persons, the view of the parties themselves or the intention with which the company undertook the service may be of weight.</p> <p>[4] Railroad Commission—Orders not Res Judicata.—The Railroad Commission is essentially am administrative and legislative tribunal and not a judicial tribunal in the strict sense, although many of its functions are quasi judicial so that its orders are not judgments, and its findings of fact are not adjudications, and facts found by it are not res judicata, and as such finally and conclusively established between the parties for all purposes.</p> <p>[5] Id.—Conclusiveness oe Orders in Collateral Proceedings— Character Unaeeected by Statutory Provision.—The character ■ of the decrees of the Railroad Commission is not affected by section 65 of the Public Utilities Act, which provides that in all collateral proceedings the orders and decisions of the commission which have become final shall be conclusive, since such provision goes no further than to provide that the orders and decision of the commission are conclusive for the purposes for which they are made.</p>

<p>APPEALS from a judgment of the Superior Court of Tulare County. J. A. Allen, Jndge. Affirmed.</p> <p>The facts are stated in the opinion of the conrt.</p> <p>William H. Puller and N. P. Bradley for Plaintiff, Cross-Defendant, and Appellant.</p> <p>P. J. Sehuhl, Middlecoff & Peemster, Middlecoff, Scott & Ham, Max B. Jamison and J. T. Puller for Defendant, Cross-Complainant, and Appellant.</p>

<p>[l] Landlord and Tenant—Prior Unrecorded Lease—Bights of Subsequent Lessee—Notice.—A subsequent lessee of premises in good faith and for a valuable consideration and without notice, either actual or constructive, of the rights or claims of persons holding a prior unrecorded lease of the same premises takes the same free of such prior rights or claims, except that if the prior lessee has gone into actual possession, such possession may operate to put the subsequent lessee upon notice or inquiry.</p> <p>[2] Id.—Possession Under Prior Unrecorded Lease—Cultivation of Larger Portion op Premises—Notice to Subsequent Lessee and Assignee.—In this action by lessees to recover damages for the destruction by the assignee of a subsequent lessee of certain nursery stock being grown by the plaintiffs upon all the land, except a small portion reserved from the lease upon which the lessor resided, the evidence is held sufficient to support the implied finding of the jury that plaintiffs’ possession was of such a character as to serve to put the subsequent lessee and his assignee upon notice that it was a different possession from that of the lessor and to charge them with notice of the plaintiffs’ claim under their prior unrecorded lease.</p> <p>[3] Id.—Payment por Damage—Provision op Lease—Responsibility op Subsequent Lessee Regardless op Notice.—A subsequent lessee and his assignee is responsible to prior lessees for damage done by such assignee to the crops of the prior lessees being grown by them upon the demised premises, regardless of whether the subsequent lessee took his lease with or without notice of the prior lease, where in his lease he agreed to pay for any injury done to the trees, fruits, or other crops of the lessor.</p> <p>[4] Id.—Lease op Property op Wards-—Execution by Guardian in Personal Capacity—Valid Lease.—A lease by a guardian of property belonging to her wards is valid although signed by her only in her personal capacity and not as guardian.</p> <p>[5] Id.—Lease by One Tenant in Common—Ratification.—A lease of an entire tract made by one tenant in common is binding on the other tenants when ratified by them, and one method of ratification is the acceptance of benefits under the lease by the cotenants.</p> <p>[6] Id.—Accounting by Guardian—Assent to Lease by One op Wards—Ratification.-—A lease by a guardian of property which she and her wards owned as tenants in common made by her in her personal capacity must be held to have been ratified by the wards where 'she accounted to the court for the proceeds from the property and one of the wards, an adult, expressly assented to the lease.</p> <p>[7] Id.—Liability op Lessor—Measure op Damages.—Where a lessor is jointly liable to lessees for destruction of crops of plaintiffs by the assignee of a subsequent lessee, the measure of damages, in the absence of a claim of liability based upon a breach of the covenant of quiet enjoyment, is not the amount of the proportion of the rent paid to her by the plaintiffs from the time of damage to the termination of the lease.</p> <p>4. Power of guardian to lease ward’s realty, note, Ann. Cas. 1917A, 1256.</p> <p>5. Effect of lease by part only of tenants in common, note, Ann. Cas. 1913D, 1164.</p> <p>[8] Id.—Pleading—Complaint—Statement op Single Cause op Action.—A complaint in an action by a lessee against the lessor and a subsequent lessee alleging that the latter, with the previous knowledge, authorization, consent, and co-operation of the lessor, wrongfully proceeded to construct on the demised premises an oil-well derrick and destroyed plaintiff’s nursery stock, states but a cause of action for injury to property.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. Malcolm C. Glenn, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Basements — Eight of Maintenance of Water Ditch Across Boad—Ownership of Fee of Boad—Prescriptive Eight Immaterial—Effect of Finding.—In an action to enjoin defendant from obstructing and interfering with plaintiff’s maintenance and use of an irrigating ditch across a strip of land, the finding that the title to the strip was in the plaintiff, subject only to an easement in favor of defendant for road purposes, was sufficient to support a judgment in plaintiff’s favor, irrespective of whether plaintiff had a prescriptive right to run water through the ditch across the right of way, in the absence of any showing that the maintenance of the ditch interfered with the easement for a road.</p> <p>[2] Id.—Deeds—Bight of Wat for Boad Purposes—Construction of Deed.—A declaration in a deed immediately following the granting words and the description that the purpose of the grant is to give the grantee a right of way from his premises to the county road shows an expressed intention - to limit the interest conveyed to an easement for a right of way.</p> <p>[3] Id.—Grant of Bight <y Wat — Interest Conveted.—A direct grant of a right of way for a road carries with it only an easement in the land and nothing passes but that which is necessary for its reasonable and proper enjoyment.</p> <p>[4] Deed—Construction—Habendum Clause.—In determining the effect of a deed, the whole instrument must be read together, and the habendum, clause may be resorted to as a limitation upon the estate granted.</p> <p>[5] Waters and Water Bights—Tenanct in Common—Division of Land—Passing of Easement.—Where an irrigating ditch was constructed over two tracts of land for the use of all the land while it was owned by tenants in common, the easement to maintain the ditch through the tract acquired by a eotenant upon a division of the land passed to him under section 1104 of the Civil Code.</p> <p>4. Construction of habendum clause in connection with premises, notes, 8 Ann. Cas. 444; Ann. Cas. 1915A, 1248; Ann. Cas. 1917D, 661; Ann. Cas. 1918E, 880.</p> <p>[6] Id.—Prescriptive Eight to Ditch—Sufficiency of Evidence.— A prescriptive right to run water through a ditch across a right of way is established by the maintenance and operation of the ditch for upward of six years continuously, openly, and adversely with full knowledge of the adverse party.</p>

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

The facts are stated in the opinion of the court. U. S. Webb, Attorney-General, and Prank L. Guerena, Deputy Attorney-General, for Appellant in Sac. No. 3061 and for Respondent in Sac. No. 3062. Amend & Amend for Respondent in Sac. No. 3061 and for Appellant in Sac. No. 3062.

<p>[1] Workmen’s Compensation Act—Band-pumping by Well-boring Firm—Independent Contractor.-—A contracting firm, engaged in the business of pumping sand from wells as an incident to the business of well-boring, which furnished its own equipment and paid its own expenses and which was not subject to authoritative control in the performance of its work, receiving a specified price per foot for boring and a certain amount per day for sand-pumping, was an independent contractor and not an employee within the meaning of the Workmen’s Compensation Act, while engaged in pumping sand from a well which it had completed under a prior contract, although the firm was subject to discharge at any time and was willing to follow suggestions of the owner’s representative.</p> <p>[2] Id.—Character op Employment—Statement op Applicant—Legal Conclusion.—In a proceeding under the Workmen’s Compensation Act for an injury sustained by a member of a well-boring firm while pumping sand from a well, statements of himself and another member of the firm that they considered themselves employees were mere legal conclusions and of no weight where the uneontradieted facts demonstrated that they were working under an independent contract.</p> <p>1. Who are independent contractors and not employees within the meaning of workmen’s compensation acts, notes, L. R. A. 1916A, 118, 247; L. R. A. 1917D, 148; L. R. A. 1918F, 206.</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] Inheritance Tax—Law Controlling.—In determining the liability of a transfer to the payment of an inheritance tax, the law in force at the time of the transfer is controlling.</p> <p>[2] Id.—Transfer Under Act of 1913—Death of Transferor Subsequent to Repeal by Act of 1917—Right to Collect Tax Under Repealed Act.-—A transfer of community property from a husband to a wife made in contemplation of death prior to the repeal of the inheritance tax law of 1913 (Stats. 1913, p. 1066) by the Inheritance Tax Act of 1917 (Stats. 1917, p. 880), is subject to the payment of the tax under the law of 1913, notwithstanding the transferor died subsequent to such repeal, in view of the saving clause contained in the repealing clause of the act of 1917 that such repeal should not affect any existing right of the state to claim a tax upon any property under the provisions of the repealed act.</p> <p>2. Succession tax on gift in contemplation of death, notes, 18 L. R. A. (N. S.) 458; 46 X,. R. A. (N. S.) 790.</p> <p>[3] Id.—Transfer of Community Property—One-half Exempt, from Tax—Provision of Act of 1917 not Retrospective.—Section 1, subdivision 2, of the Inheritance Tax Act of 1917, providing that in the case of a transfer of community property from husband to wife within the meaning of subdivisions 3 or 5 of section 2 of the act, one-half of the community property so transferred shall not be subject to the provisions of the act, is prospective in character, and by its terms has no relation to a transfer made before the enactment which was taxable under the terms of the prior statute.</p> <p>[4] Statutory Construction—Prospective Effect.—A statute should not be given a retrospective effect unless the language demands such a construction.</p> <p>3. Prospective or retroactive operation of succession tax acts, notes, 2 Ann. Gas. 608; 8 Ann. Cas. 218.</p>

<p>[1] Negligence—Pleading and Evidence—Scope of Proof of Contributory Negligence.—In an action for personal injuries, where the answer averred that such injuries were contributed to and proximately caused by plaintiff’s intoxicated condition and his recklessness, negligence, and lack of ordinary care, the alleged contribution of plaintiff to his injuries was not limited to proof of a state of intoxication, but covered negligence and want of care in any other particular.</p> <p>[2] Id.—Violation of Ordinance—When Conclusive Act of Negligence.—An act which is performed in violation of an ordinance or statute is presumptively an act of negligence, and while the defendant is permitted to rebut such presumption by showing that the act was justifiable or excusable under the circumstances, until so rebutted it is conclusive.</p> <p>1. When drunkenness amounts to contributory negligence in ease of injury in street or highway, notes, 25 Am. St. Rep, 39; 19 Ann. Cas. 1176; Ann. Cas. 1914D, 114; 40 L. R. A. 138; 47 I». R. A. (N. S.) 737; I>. R. A. 1916F, 102.</p> <p>2. Violation of statute or ordinance as actionable negligence, notes, 9 Ann. Cas. 427; Ann. Cas. 1912D, 1106; Ann. Cas. 1916B, 301.</p> <p>[3] Id.—Contributory Negligence—Proximate Cause of Injury— —Instruction.—In an action for personal injuries, an instruction that the jury must find for the defendant if the plaintiff’s contributory negligence was the proximate cause of the injuries, was without prejudice, where the jury was also instructed that a want of ordinary care by plaintiff concurring or co-operating with the negligent act of the defendant as the cause of the injuries constituted contributory negligence.</p> <p>[4] Id.—Personal Injuries—-Fall upon Wet Sidewalk—Contributory Negligence—Proof of Intoxication as Condition—Erroneous Instruction.—In an action for personal injuries suffered in falling upon a wet and slippery sidewalk in front of defendant’s premises, an instruction that it was a question of fact for the jury to determine whether plaintiff was at the time of the accident intoxicated, and that if he was not, and it was found that the injury was sustained without any contributory negligence on his part, a verdict should be found in his favor, was erroneous, as suggesting that proof of a state of intoxication was an essential condition to finding him guilty of contributory negligence.</p> <p>[5] Id.—Lack of Contributory Negligence—Verdict for Plaintiff —Erroneous Instruction.—An instruction in such an action that if the jury should find that plaintiff was not intoxicated at the time of the accident and that the injury was sustained without any contributory negligence on his part, a verdict should be found in his favor, was erroneous, as directing a verdict without reference to proof of defendant’s negligence.</p> <p>[6] Id. — Exercise of Care — Duty of Plaintiff — Instructions Within Issues.—In an action for personal injuries suffered in falling upon a wet and slippery sidewalk in front of defendant’s premises, which defendant had wet down with a hose just prior to the accident, in violation of a city ordinance prohibiting the wetting down or washing of sidewalks between certain hours, instructions that the plaintiff could not recover if it was found that plaintiff knew the sidewalk was wet and did not use ordinary care, and knew, or had reason to know, that it was dangerous to pass over it, and that defendant warned and requested plaintiff not to pass over it but to pass in the street, were within the issues of fact before the jury on the evidence.</p> <p>[7] lb.—Evidence—Character of Street—Judicial Notice.—Where in such action it sufficiently appeared that the locality of the accident was a downtown street of a city, it may be presumed as a matter of common knowledge that there were two sides of the street with sidewalks on each side, and a roadway between,</p> <p>[8] Id.—Violation of Ordinance—Rebuttal of Presumption of Negligence—Instruction.—Where in such action there was evidence that the sidewalk was in a dirty and greasy condition, an instruction should have been given that the presumption of negligence arising from disobedience of the ordinance was not conclusive, but subject to rebuttal by evidence of an overruling necessity for such violation to avoid more serious danger to pedestrians.</p>

<p>[1] Counties—Lands Sold fob Delinquent Taxes—Examination of Records and Report to Supervisors—Duty not Enjoined on County Officers.—A contract between a board of supervisors and private parties calling for the examination of certain records in the offices of the tax collector, county auditor, and county recorder, the state surveyor-general’s office and the United States land office with relation to lands sold to the state for delinquent taxes for a period covering many years, and calling for a report thereon to the supervisors with recommendations as to further disposition, accompanied by lists for authorization from the state controller for sale by the tax collector, does not provide for the performance by such parties of duties which the law enjoins upon officers of the county.</p> <p>[2] Id.—Making of Reports by County Officers—Power of Supervisors—'Construction of Code.'—The provision of subdivision 1 of section 4041 of the Political Code, giving boards of supervisors the power to require the making of reports by all county officers, is limited to such reports as they are required by law to make and to such other reports as are incidental to the general supervision given to the supervisors of the official conduct of such officers.</p> <p>[3] Id.—Sales of Property Sold for Delinquent Taxes—Obtaining of Necessary Information by Supervisors—Contract With Private Parties — Power of Supervisors — Effect of Code Amendments.—In view of the amendments of 1905 and 1913 to section 3897 of the Political Code, giving boards of supervisors certain functions with relation to sales of unredeemed property sold to the state for delinquent taxes, the board has the power to enter into a contract with private individuals for the purpose of obtaining the information reasonably essential to the proper discharge of such functions and to pay such parties for their services a percentage of the moneys received by the county from such sales.</p> <p>[4] Id.—Recommendations and Submission of Lists—Validity of Contract Unaffected—The requirement in a contract between a board of supervisors and private parties with reference to the examination of certain records of county officers relating to lands sold to the state for delinquent taxes, that such parties should include with their report recommendations as to further disposition of the property and submit lists for authorization from the state controller to advertise and sell under section 3897 of the Political Code, does not invalidate the contract on the ground that it calls for the performance of duties enjoined upon county officers, since it is subject to the construction that the parties should submit as a part of their report a list of unredeemed properties as to which the board might properly take action.</p> <p>[5] Id.—Report of Debts Due County■—’Duty of Officials — Code Provisions Inapplicable to Contract.—A contract between a board of supervisors and private parties for the furnishing of information necessary for the board to determine its future action in relation to the sales of property sold to the state for delinquent taxes that the county might receive its proportion of the proceeds of such sales, is not rendered invalid because some of the requirements are required of county officers under sections 3716 and 3728 of the Political Code, since such provisions refer to reports of “debts” due the county, and after the sale and deed to the state for taxes there is no longer any “debt” or “indebtedness” due the county.</p> <p>[6] Id.—Wisdom of Contract—Matter Foreign to Courts.—In the absence of a claim of fraud or mistake, the courts have nothing to do with the wisdom of a contract between a board of supervisors and private persons calling for services to be performed for the board with a view to such action as it might properly and advisedly take looking to proceedings for the sale by the state of unredeemed property sold to the state for taxes, in order that the amount of money due the county on account thereof might be obtained and paid into the county treasury.</p> <p>PROCEEDING in Mandamus to compel the payment of a warrant for services in collection of delinquent taxes. Writ granted.</p>

<p>[1] Negligence—Collision op Automobile With Pedestrian—Evidence—Erroneous Nonsuit.—In an action for personal injuries received as a result of being struck by an automobile, it was error to grant a motion for a nonsuit at the close of plaintiff’s case, where the evidence showed that in broad daylight, about 12 o’clock noon, plaintiff was walking along a public highway, on his own side of the road and off the paved portion ordinarily used by machines, when he was suddenly struck from behind by defendants’ automobile that had come upon him without any warning of its approach, and with which there was apparently nothing wrong, notwithstanding there was no evidence showing exactly how the collision happened.</p> <p>[2] Nonsuit—Suppioiency op Evidence.—While the proof must be sufficient to raise more than a mere conjecture or surmise that the fact is as alleged, yet, where the evidence is such that a rational, well-constructed mind can reasonably draw from it the conclusion that the fact exists, it is a sufficient answer to a motion for nonsuit.</p> <p>1. Bes ipsa loquitur as applied to automobile accident, notes, 5 A. I». R. 1240; 12 A. L. R. 668.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>Charles S. Wheeler, Charles S. Wheeler, Jr., and J. C. McKinstry for Appellants.</p>

APPEALS from an order of the Superior Court of Butte County settling the final account of an administrator. H. D. Gregory, Judge. Modified and affirmed. The facts are stated in the opinion of the court.

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

<p>HI Workmen’s Compensation Act—Partial Dependency—Computation op Compensation.—Under section 14 (t>) of the Workmen’s Compensation Act, which fixes the amount to be allowed as a- ' death benefit in a case of partial dependency as three times the annual amount devoted by the deceased to the support "of the person or persons partially dependent, such annual amount is not the amount actually contributed in the last or any other year of ■the decedent’s life, but is the annual amount of the rate at which the decedent was contributing at the time of his injury, regardless of whether such rate had existed for a year or more or for less than a year.</p> <p>[2] Id. — Compensation in Death Cases ■— Theory op Act. — The whole theory of the Workmen’s Compensation Act as to death cases is that the dependents of the employee killed through some hazard of his employment shall be compensated for the loss of the support they were receiving from him at the time of his injury, which necessarily means that the death benefit must be computed on the rate of contribution at that timo.</p> <p>[3] Id.—Annulment op Award—Scope op Power op Court.—The power of the supreme court to annul an award of the Industrial Accident Commission is not confined to those eases wherein the commission has made a finding as to some jurisdictional fact which is not supported by the evidence, but extends to a ease where upon the facts found the commission has authority to make an award but has made one contrary to what the law calls for upon those facts.</p> <p>1. Compensation recoverable generally, under workmen’s compensation acts, notes, L. R. A. 1916A, 134; I». R. A. 1917D, 164.</p> <p>D. W. Burbank, F. J. Hambly and H. E. Smith, for Respondents John H. Gamblin et al.</p>

<p>[1] Inheritance Tax—Transfer of Community Property—Contemplation of Death—Liability to Taxation Under Act of 1905.-— Under the inheritance tax law of 1905 (Stats. 1905, p. 341), the fact that property conveyed by a husband to a wife in contemplation of death was community property did not exempt it or any portion thereof from taxation.</p> <p>[2] Id.—Transfers Inter Vivos in Contemplation of Death Taxable.—In view of section 1 of the inheritance tax law of 1905, which provides for a tax on transfers made in contemplation of the death of the grantor, or intended to take effect in possession or enjoyment after such death, a transfer is taxable when accompanied by an intention that it shall take effect immediately and irrevocably if, at the time of the transfer, the transferor is in that particular state of mind technically known as in contemplation of death.</p> <p>[3] Id.—Transfer Subject to Taxation—What Constitutes.—In view of the fact that it is the vesting in interest of the rights passing between the parties which constitutes the transfer taxed by the inheritance tax law, the death of the transferor adds nothing to the transfer if full rights have passed to the grantee prior to that time.</p> <p>1. Succession tax upon gift or transfer in contemplation of death, notes, 14 Ann. Cas. 109; Ann.. Cas. 1915B, 1089; 18 L. R. A. (N. S.) 458; 46 L. R. A. (N. S.) 790.</p> <p>[4] Id.—Transfer in Contemplation of Death—Immediate Title and Control to Grantee — Basis of Taxation — Valuation at Time of Delivery of Deed.—Under the inheritance tax law of 1805, where a husband made' a conveyance of community property to his wife in contemplation of death and gave her complete dominion and control over the property at the time of the delivery of the deed, the property should be valued for the purposes of the tax, as of the date of the delivery of the deed and not as of the date of the death of the grantor, and the increase in value between the date of such delivery and the date of the death of the grantor is not to be rated as ’part of the taxable value.</p> <p>[5] Id.—Tax upon Succession—Meaning of Term.—In view of the fact that the tax imposed by the Inheritance Tax Act of 1905 is not limited to transfers taking effect upon the death of the transferor but includes gifts inter vivos in contemplation of death, the statement in the decided eases that the tax is upon the “succession” is not to be taken as using such word in the limited sense of the acquisition of rights upon the death of another, but as synonymous with “transfer” as defined by the inheritance tax acts.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hugo D. Newhouse, Bussell P. Tyler and Charles W. Cobb for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Hugo D. Newhouse, Russell P. Tyler and Charles W. Cobb Eor Appellants.</p>

<p>HI Estates op Deceased Persons — Commissions op Executor — Limitation op Amount—Construction op Code.—In view of section 1618 of the Code of Civil Procedure, the commission of an executor fixed by the section, aside from any extra allowance that may be proper for extraordinary services, is intended to be full compensation for all services rendered during the entire administration from the beginning thereof down to the time of the final settlement and distribution of the estate.</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] Estates oe Deceased Persons — Will — Letter not on Testamentary Character.—A letter written to the brother of the writer, which was entirely written, signed, and dated in the handwriting of the writer, was properly refused probate as his will, where it was evident from the whole letter that he was contemplating matrimony rather than death, and the only possible justification for the claim that it was testamentary in character was the provision that if he should get killed there was plenty of money to put him away in fine shape and that he wanted his brother to have everything.</p> <p>1. Sufficiency of letter as a will, notes, 15 L. B. A. 635; 17 L. E. A, (N. S.) 1126.</p>

<p>[1] Estates op Deceased Peesons—Will Contest—Tbial op Issue op Residence—New Tbial.—In a contest to the probate of a will, the trial of the issue as to the residence of the deceased at the time of death is a trial of an issue of fact within the meaning of . section 656 of the Code of Civil Procedure, and a new trial of such issue is authorized under section 657 of such code.</p>

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

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

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

<p>[1] Appeal — Hearing After Decision by District Court of Appeal—Modification of Judgment by District Court of Appeal— Time for Determining Application.—A judgment of the district court of appeal when modified by such court does not become final therein until thirty days after such modification, and where a petition for the hearing of the appeal in the supreme court is filed before the expiration of such period, the jurisdiction to pass upon the petition continues for thirty days after the expiration of the date of such modification.</p>

<p>[1] Negligence—Elevatob Accident—Contributory Negligence—Instruction.—In an action by a husband and wife for personal injuries suffered by the latter as she was entering an elevator operated by the defendant in a building owned by it, an instruction that if she exercised the care that an ordinarily prudent person would have exercised under the same or similar circumstances, she was not guilty of contributory negligence, unless she was also guilty of some fault or negligence which contributed to the happening of the accident, was not erroneous, as being upon the weight of the evidence, nor as directing that the only fault or negligence on her part which would be contributory negligence would be some act outside of stepping into the elevator.</p> <p>[2] Id.—Amount of Verdict—Possibility of Appeal—Instruction.— In such an action, an instruction that if the jury should find for the plaintiffs it should not consider, in fixing the amount of the verdict, whether defendant would appeal, did not amount to telling them that they should not hesitate to render a large verdict if they thought the defendant might appeal, nor did it indicate a belief of the court that the plaintiff was entitled to such a verdict.</p> <p>[3] Id.—Loss of Wages of Wife—Compensation of Husband—Instruction.—Where in an action by husband and wife for injuries to the latter there was evidence that the wife was actually working and earning wages at the time she was hurt, and there was no evidence justifying an inference that she would not have kept on working, an instruction that the husband was entitled to compensation for the loss of her past and future wages was not open to criticism, because it did not charge that before the compensation could be allowed it should be found there was a reasonable certainty she would have kept -on working but for the injury.</p> <p>[4] Id.—Responsibility of Passenger Elevator Operators—Instruction.-—In an action for personal injuries received in an elevator accident, the portion of an instruction that the responsibility of passenger elevator operators is of the highest character was not inconsistent with another portion that they are not insurers of the absolute safety of passengers, in view of the remainder of the instruction that they are bound to the utmost care and diligence of very cautious persons and are responsible for injury occasioned by the slightest neglect against which human care and foresight might have guarded.</p> <p>[5] Id.—Burden of Proving Negligence—Instruction.—In such an action, an instruction that if plaintiff proved that while she was being carried in defendant’s elevator there was an accident by reason of some defect in the elevator or its machinery, or appliances, or in the operation thereof, it was not necessary for her to prove exactly the cause of the accident, was not erroneous, as removing from plaintiff the burden of proving negligence.</p> <p>[6] Id.—Excuse of Negligence—Instruction.—In such an action, an instruction that if plaintiff proved that she was hurt by reason of some defect in the elevator or in its operation, the burden shifted to defendant to show that it was not guilty of negligence by proof that the accident could not have been prevented by the exercise of the highest degree of care on its part, correctly stated the law.</p> <p>[7] Id.—Evidence of Damages—Instruction.—An instruction that the law does not require that the plaintiffs present any direct evidence to show the amount of damages which they have sustained, but that it is only necessary to show the extent of the injuries and that they were proximately caused by the accident, it being for the jury to determine the amount, was not erroneous as charging that no evidence of the amount of special damages was required, where by other instructions the jury was instructed to allow such special damages as the evidence showed had been necessarily and reasonably expended or incurred.</p> <p>[8] Id.—Damages in Hastening Development of Pre-existing Disease—Instruction.—An instruction that if it should be found plaintiff’s injuries hastened the development or increased the activity of a disease from which she was suffering at the time of the accident, and that thereby her present condition has resulted from such injury, she is entitled to recover damages sustained from the injury, was not erroneous as charging that she could recover damages for the disease.</p> <p>[9] Id.—Evidence—Misconduct op Counsel—Lack op Prejudice.— In an action for personal injuries received by a wife, alleged misconduct of plaintiff’s counsel in asking the husband upon redirect examination if a doctor had not called on behalf of a company, to which he answered in the affirmative, was not prejudicial, where the question and answer were immediately objected to and the jury instructed to disregard the statement of the witness.</p> <p>[10] Id. — Stepping into Elevator — Reasonable Cabe — Question por Jury.-—It is not negligence as a matter of law for a person invited to enter an elevator by the opening of the door, although the platform is below the level of the floor, or to step into the elevator without observing whether the platform is exactly even with the floor.</p>

<p>[1] Judgment — Contract — Maintenance or Separate Action. — A judgment is a contract upon which the parties may maintain a separate action between themselves.</p> <p>[2] Id.—Proper Subject op Counterclaim.—Tinder subdivision 2 of section 438 of the Code of Civil Procedure, an outstanding indebtedness evidenced by a judgment of a court of record in favor of the defendant and against the plaintiff is an appropriate ground of counterclaim.</p> <p>[3] Id.—Counterclaim op Joint Judgment.-—A joint judgment cannot be pleaded as a setoff against one judgment debtor alone.</p> <p>[4] Id.—Joint and Several Judgment—Bight op Counterclaim.— A joint and several judgment may be pleaded as a counterclaim against one judgment debtor alone, if the defendant cam bring a separate action to enforce the obligation against the plaintiff.</p> <p>[5] Conversion—Pleading—Action for Value.—When one’s goods are wrongfully taken and used by another, he may waive the tort and sue in assumpsit for their value, as for goods sold and delivered.</p> <p>[6] Findings — Omission of Service — Absence of Error. — Where findings of fact and conclusions of law are directed to be prepared and served as required by the statute, the opposing party is entitled to service upon him of a copy before they are signed by the judge, but the omission is not error, in the absence of a claim or showing of prejudice.</p>

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

<p>„ APPEAL from an order of the Superior Court of the City and County of San Francisco fixing an inheritance tax. 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>Lester Wm. Roth and Janeway, Beach & Pratt for Appellant.</p>

<p>PROCEEDING in Certiorari to review an award of the "Industrial Accident Commission. Award affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Ejection of Person from Bail-way Train—Subsequent Injury prom Another Train—Proximate Cause of Injury.—A railway company is not liable for personal injuries received by a person from being struck by one of its trains after he had been expelled from another of its trains for failure to p’roduce a ticket or pay his fare, although he was in a helpless condition caused either by malady or liquor, where the injuries were sustained three-quarters of a mile from the place where he was ejected and more than six hours had elapsed between the time of ejection and the time of injury, where the only negligence alleged was in such expulsion, since such ejection was not the proximate cause of the injury.</p> <p>1. Ejection by carrier of sick or intoxicated passenger as proximate cause of subsequent injury or death, note, L. E. A. 1915C, 142.</p>

<p>[1] Boundaries—Agreed Line—Uncertainty as to True Line.—A necessary element in any valid agreement between adjoining owners fixing the boundary line between them as other than the true line is the existence of a dispute or uncertainty as to the location of the true line.</p> <p>[2] Id.—Location ot True Line—Mistaken Understanding—Owners not Concluded.—Adjoining owners are not bound by their mistaken understanding as to the location of the true line between them.</p> <p>[3] Id.—Acquiescence in Mistaken Boundary—Insumtoienoy to Establish Line.—Mere acquiescence in what adjoining owners mistakenly believed to be the true line without any notion on their part of fixing a disputed or uncertain boundary does not amount to an agreement fixing a disputed or uncertain boundary line.</p> <p>1. Settlement of disputed boundary by an express or implied agreement, notes, 69 Am. Dec. 711; 27 Am. Dec. 121.</p> <p>2. Effect of possession taken and held beyond boundary through mistake or ignorance, notes, 24 Am. St. Rep. 388; 15 Ann. Cas. 827; Ann. Oas. 1912A, 450.</p> <p>3. Location of boundaries by acquiescence, notes, 69 Am, Dec. 711; 27 Am. Rep. 239,</p>

APPEALS from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge. Modified and affirmed. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>W. B. Mathews, Charles S. Burnell, City Attorney, Trent G-. Anderson, Ray C. Eberhard and Lewis E. Whitehead 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] Escheat—Unclaimed Bank Deposits—Process and Notice in Actions—Bank Act and Section 1273 or the Code or Civil Procedure—Construction.—Section 15 of the Bank Act, amended in 1915, (Stats. 1915, p. 107), relating to the deposit of unclaimed bank deposits with the state treasurer, and section 1273 of the Code of Civil Procedure, added to the code in 1915, (Stats. 1915, p. 1106), although separately enacted, relate to the same subject, and are to be considered and construed as if both were contained in a single act, at least with reference to the provisions for process and notice in the action under the code section.</p> <p>[2] Id.—Applicability or Statutes to General Deposits—Construction or Enactments.—Section 15 of the Bank Act and section 1273 of the Code of Civil Procedure, notwithstanding the language of the statutes, were not intended to apply exclusively to moneys in the custody of a bank as bailee of its depositors, although possibly it might include such special deposits.</p> <p>[3] Banking Law—General Deposit—Relationship or Debtor and Creditor.—When a general deposit is made with a bank, the title to the money delivered to it passes, at once to the bank and the relation thereby established is that of debtor and creditor and not that of bailee and bailor.</p> <p>[4] Escheat—Action by State—"Validity or Law—Right or Challenge by Bank.—In an action by the state to declare an escheat of bank deposits under the provisions of section 1273 of the Code of Civil Procedure, the bank has an interest sufficient to authorize it to challenge the validity of the law on its own account.</p> <p>[5] Id.—Pleading—Parties—Depositor Necessary Party—Right or Bank.—In an action by the state to declare an escheat of a bank deposit, the depositor is a necessary party and the bank has the right to insist that the depositor be brought in the case as a party by some notice or process that the law recognizes as valid, and therefore has the right to contend that the process and notice prescribed by section 15 of the Bank Act and section 1273 of the Code of Civil Procedure do not constitute due process of law.</p> <p>1. Escheat of bank deposits, note, Ann. Cas. 1914B, 157.</p> <p>2. Special deposits as distinguished from general, notes, Ann. Cas. I913E, 45.; Ann. Cas. 1918B, 390.</p> <p>[6] Id.—Nature of Proceeding—Effect of Service upon Bank.— The proceeding authorized by section 1273 of the Code of Civil Procedure for the escheat of unclaimed bank deposits is not an action in personam, but is a proceeding quasi in rem, and the service of the summons on the bank is the equivalent o'f a seizure of the property of the depositor in Ms account with the bank and gives the court jurisdiction over it to the same extent as in cases in garmshment and other proceedings quasi in rem.</p> <p>[7] Constitutional Law—Adjudication of Ownership of Property —Character of Process—Power of State.—The state has, the power to dispose of the ownership of property and adjudicate the title thereto without personal notice to the owner thereof, provided the substituted notice is reasonable and adequate.</p> <p>[8] Escheat—Action by State—Process—Publication in Newspaper in Sacramento County—Validity of Provision.—The provision of section 1273 of the Code of Civil Procedure that service of process in actions by the state to declare an escheat of unclaimed bank deposits shall be made by publication of a copy of the summons in a newspaper of general circulation published in the county of Sacramento is a reasonable and adequate notice .to depositors even though the deposits are in banks doing business in other counties, in view of the nature of the proceeding and the character of the property affected thereby.</p> <p>[9] Id.—Publication of Summons—Preliminary P’roof—Omission of Bequirement—Constitutionality of Statute.—The provision of section 1273 of the Code of Civil Procedure for service of process by publication of a copy of the summons in a newspaper of general circulation published in Sacramento County is not violative of the due process of law provision of the constitution because of the omission to require preliminary proof as foundation for the publication that the depositor resides out of the state or has departed from the state, or cannot after due diligence be found witMn the state, or conceals himself to avoid service.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Chas. H. Brock, J. N. Hastings and O’Melveny, Millikin & Tuller for Appellant.</p>

<p>[1] Vendor and Vendee—Payment of Installments—Exercise of Election — Production of Deed — Delay not Unreasonable. —■ Under a contract of sale reserving to the vendees the right of making partial payments in any sums above the stipulated amounts on any interest bearing date, and providing that the vendor would execute and deliver a good and sufficient deed and furnish an unlimited certificate of title upon receipt of the payments as called for by the contract, a delay of five days in the production of the deed and certificate after tender of the balance of the price was not unreasonable, where the tender and demand for the deed were made two years before the maturity of the final installment, and without any previous notice to the vendor of the election of the vendees to pay such balance.</p> <p>[2] Id.—Defective Title—Existence of Easement—Continuance in Possession After Knowledge—Rescission—Lack of Waiver.— While a vendee under a contract of sale does not waive his right to rescind the contract for defective title due to an existing easement by merely continuing in possession after knowledge of its existence, he may waive his right by the performance of acts plainly indicating that he does not contemplate its extinguishment.</p> <p>[3] Id.—Joinder in Grant of Supplemental Easement—-Waiver of Right of Rescission.-—A vendee under a contract of sale waives his right to rescind the contract for defective title due to an existing easement by joining in the grant of a supplemental easement to the same grantee without raising any objection to the existence of the rights acquired under the first grant.</p> <p>[4] Id.—Damage from Floods—Acts of Vendee—Loss of Right of Rescission.—A vendee in possession cannot rescind the contract of sale on account of the washing away of a large part of the surface soil as a result of floods, where he, after going into possession, removed, despite the vendor’s objection, an orchard and also scraped off and removed to adjoining property considerable surface soil.</p> <p>[5] Id.—Affirmance of Contract After Damage by Floods—Tender and Demand for Deed—Loss of Right of Rescission.—The right of a vendee in possession to rescind the contract of sale on account of the washing away of a large part of the surface soil as a result of floods was lost where, instead of giving prompt notice of rescission, he waited almost a year after such damage, and then elected to pay the balance of the price and demanded a deed.</p> <p>[6] Id.—Assignment of Contract—Enforcement by Vendor Against Assignee—Lack of Privity.—A vendor cannot enforce specific performance of an executory contract for the sale of land against the assignee of the vendee, although the vendee is in possession, or by reason of the indorsement of the acceptance of the contract on the assignment by the assignee, where such indorsement was made without consideration after the assignment was complete and the vendor and assignor had no knowledge thereof.</p> <p>[7] Id.—Depreciation of Property by Assignee of Vendee—Liability for Damages—Contractual Relationship Between Vendor and Assignee not Created.—Where a contract for the sale of land is executory, the performance of acts by the assignee of the vendee causing depreciation in the value of the property can have no further effect than to render him liable in an action for damages, and does not create a contractual relation between him and the vendor.</p> <p>[8] Id.—Voluntary Acceptance of Benefits of Transaction— Consent to Obligations—Inapplicability of Code Provision.— Section 1589 of the Civil Code, providing that a voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, is applicable to an assignee only when all the benefits of a full performance by the vendor have inured to the assignee.</p>

<p>[1] Action fob Goods Sold and Delivered—Transaction by Traveling Salesman—Pleading—Real Party in Interest.—Where a traveling salesman, who was permitted by Ms employers to also do business on his own account, made a sale of the firm’s goods, and the account was carried in Ms own name and no account with the buyer appeared on the firm’s books, and no disadvantage was suffered by the buyer from the manner in which the account was kept, the assignee of the salesman had the right to maintain an action for the price in his own name, either on the theory that he was the real party in interest, or, if an agent, was acting with authority to carry and collect the account in his own name, thereby becoming the trustee of an express trust within the meaning of section 369 of the Code of Civil Procedure, notwithstanding the salesman introduced himself to the customer as the representative of the firm and the correspondence between them was on the firm stationery and the invoices and statements rendered on the firm billheads.</p> <p>[2] Statute of Limitations—Application of Payments—Direction of Buyer to Seller—Tolling of Statute.—A letter of a buyer to a seller directing the latter to apply monthly remittances on an old account with the express purpose of preserving rights on an open current account for goods subsequently purchased, tolls the statute of limitations.</p>

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

<p>APPEALS from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a motion for entry of judgment against a certain defendant and for a lien upon the property. George A. Sturtevant, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p> <p>Lovett K. Fraser, Ornbaun & Fraser, Casper A. Ornbaun and Cleveland R. Wright for Appellant.</p>

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

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

<p>[1] Corporations—Ownership op Property—Stockholders.—A corporation is the creature of its stockholders and they, as between themselves and the corporation, are the beneficial owners of the property held by the corporation.</p> <p>[2] Sale—Meaning op Term.—The word “sale” when used in a contract does not necessarily mean a transfer for money only, since it is not a word of fixed and invariable meaning and may be given a narrow or broad, meaning as may he indicated by the context or the surrounding circumstances and the conduct of the parties.</p> <p>[3] Employer and Employee—Breach of Contract op Employment —Measure op Damages op Employee.—In an action by an employee for breach of a written contract of employment instituted before the expiration of the contract period, the measure of damages is the amount of the salary agreed upon for the entire period of service, less the amount which the employee has earned or with reasonable effort might have earned from other employment.</p> <p>[4] Id.—Action After Expiration op Period op Employment—Interest.—In an action by an employee for breach of a written contract of employment at a monthly or fixed salary, instituted by the employee after the termination of the contract period of service, interest is allowable upon the amount found due the plaintiff, in view of the. provisions of section 3287 of the Civil Code.</p> <p>[5] Id.—Compensation op Employee — Salary and Percentage op Profits—Determination op Profits—Evidence—Value op Services op Employer to Transferee.—In an action by the manager of a gas company for breach of his contract of employment by the terms of which he was to receive a percentage of profits in addition to salary, it was error prejudicial to defendant to exclude evidence of the value of the services rendered by the company to a new corporation to which it made a transfer of all its property for bonds, where it was a part of the arrangement that the company should take charge of and superintend the operations of the new corporation and such services were performed.</p> <p>[6] Id.—Conduct in Management op Property—Bight op Employer. In such an action, the defendant should be allowed to prove the plaintiff’s conduct in managing the property, during the time that he served in such capacity, in so far as it indicates his want of capacity or neglect of duty.</p> <p>[7] Id.—Profitable Gas-main—Necessary Number op Consumers.— In such an action, the exclusion of the opinion of a witness who had had long experience in operating and financing gas plants, as to the number of consumers necessary to make a given length of gas-main profitable, was prejudicial error, where such fact had a direct bearing on the question of good cause for discharge.</p> <p>[8] Id.—Violation of Instructions—Justification—Erroneous Instruction.—In such an action, an instruction that if the plaintiff . violated material and proper and reasonable instructions from the defendant in regard to the performance of his duties, the plaintiff could not justify such a violation on the ground that he believed he was acting for the best interests of the defendant, was erroneous in leaving the question to the jury whether the instructions violated were material, proper, and reasonable.</p> <p>[9] lb.—Procuring of Employment — Duty of Wrongfully Discharged Employee — Ambiguous Instruction. — An instruction that while a wrongfully discharged employee is bound to use reasonable diligence to procure employment, he is not bound to accept any sort that may be offered to him, is ambiguous and likely to be misleading.</p> <p>[10] Id.—Construction of Gas Plants ■—■ Compliance With Town Ordinances—Failure to Use Care as Ground for Discharge—• Inaccurate Instruction.—An instruction that the manager of a gas company was required to use reasonable care to comply with the ordinances of the towns in which the gas plants were being constructed, and that any failure on his part to use reasonable care would be a sufficient ground of discharge, is not entirely accurate, since it is only when such a failure is negligent or willful that a sufficient ground exists.</p>

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

<p>[1] Contract—Formation of Business Association—Damages upon Breach.—Where one of the parties to an agreement for the formation of a business association failed and refused to carry out the terms of the agreement and thereby deprived the other party of all opportunity to make good in the proposed business, the former became liable to the latter in damages for any loss suffered by the latter as the natural result of the default, and which was within the reasonable contemplation of the parties in entering into the agreement.</p> <p>[2] Id.—Performance of Contract—Loss from Abandonment of Established Business—Proper Element of Damages.—Where in an action to recover damages for the failure and refusal of the defendant to carry out the terms of a contract for a business association with the plaintiff, it is shown that the plaintiff abandoned an established and profitable business conducted by him in order to perform his part of the contract, and that the defendant had knowledge of the nature and general extent of such business, the loss sustained by the plaintiff in sacrificing such business and which was not recompensed from the new business was a proper element of damages.</p> <p>[3] Id .—Bad Faith of Defaulting Party—Measure of Damages.— One who in bad faith violates his contract is liable for all damages traceable to the breach, including even those which could not be foreseen at the time of making the contract.</p> <p>[4] Id. — Breach of Contract to Form Business Association — Proper Measure of Damages:—In an action for damages for breach of a contract to form a business association, the proper measure of damages in the absence of any means of determining the value of the prospective profits of the contemplated business was the loss sustained by the plaintiff in preparing to carry out his part of the contract, less the advances of money shown to have been made to him by the defendant.</p> <p>[5] Id.—Evidence—Earnings After Re-establishment in Business— Matter of Defense.—In such an action there was no error in sustaining an objection to a question asked the plaintiff on cross-examination as to the amount of the plaintiff’s net earnings after he had re-entered business, where the witness had not been questioned as to the matter on direct examination, the same being matter of defense.</p>

<p>[1] Municipal Corporations—San Francisco—Suspension op Dollar Limit op Taxation—When Authorized—Charter.—The provision of section 13, chapter 1, of article III of the charter of the city and county of San Francisco empowering the board of supervisors in case of any great necessity or emergency to temporarily suspend the limitation of the annual tax rate to one dollar on each one hundred dollars of the assessed valuation of property, does not authorize a tax exceeding the dollar limit whenever the board of supervisors shall by ordinance declare that a great necessity or emergency exists, but authorizes such increased tax only when a great necessity or emergency does, in fact, exist.</p> <p>“Emergency” which will authorize an extra tax, note, 52 L. It. A. (N. S.) 676.</p> <p>[2] Id. —■ Ordinance Suspending Tax Limitation — Facts Showing Existence of Great Necessity or Emergency—Recital not Conclusive.—The recital, in an ordinance of the hoard of supervisors of the city and county of San Francisco suspending the dollar limit of taxation, of facts showing the existence of a great necessity or emergency is not conclusive of the truth of the recital, or of the existence of such facts.</p> <p>[3] Id.—Declaration of Existence of Great Necessity or Emergency—Recital not Conclusive—Right of Taxpayer—Review by Courts.—The conclusion or declaration of the hoard of supervisors of the city and county of San Francisco, in an ordinance suspending the dollar limit of taxation, that a great necessity or emergency exists because of the facts recited, is not conclusive, and both the existence of the recited facts and the conclusion drawn therefrom may be disputed by a taxpayer, and, on review by the courts, held to be nonexistent, or unwarrantable, respectively.</p> <p>[4] Id.—Increased Expenses for Maintenance of City Government —Insufficient Showing of Great Necessity or Emergency.— An ordinance of the board of supervisors of the city and county of San Francisco declaring that a great necessity and emergency existed which required that the limitation of taxation contained in section 11 of chapter 1 of article IH of the charter be temporarily suspended by reason of recited facts which taken together showed that the performance of the ordinary functions of the city government for the fiscal year required the expenditure of a larger amount of money than could have been raised by a tax rate of one dollar on the hundred, was insufficient to show the existence of a great necessity or emergency within the meaning of section 13 of chapter 1 of article III of the charter.</p>

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Award annulled.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>HI Municipal Corporations—Garnishment.—A garnishment cannot be levied upon a municipal corporation acting in its governmental capacity.</p> <p>[2] Id.—Proprietary Enterprise—Status op Corporation.—A municipal corporation is just as truly such when engaged in its proprietary capacity as when engaged in its governmental capacity.</p> <p>[3] Id.—Indebtedness in Connection With Municipal Waterworks —Nonliability to Garnishment.—A municipal corporation is not subject to garnishment for a debt due a private individual for the construction of a dam for a reservoir to be used in connection with its municipal waterworks.</p> <p>1. Garnishment of municipalities, note, 51 Am. St. Rep. 114. Right of municipal corporation to waive immunity from garnishment, note, 2 A. L. R. 1586.</p>

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

<p>[1] 'Corporations—Acts of Trustees of Dissolved Corporation-Action to Set Aside—Statute of Limitations—Construction of Code Amendment.—Subdivision 3 of section 340 of the Code of Civil Procedure, added in 1917, which bars an action to set aside or invalidate any action taken or performed by a majority of the trustees of any corporation dissolved by operation of law before or subsequent to the amendment, including the revivor of any such corporation, unless brought within six months, cannot be accepted as absolutely destroying any right of action existing at the time of the adoption of the amendment.</p> <p>[2] Id.—Forfeiture of Charter—Failure to Pat License Tax— Status of Corporation Prior to Enactment of 1913.—Prior to the enactment of the legislation of the year 1913 authorizing a revivor of such corporations as had theretofore failed to comply with the requirements of the license tax law, and whose charters had been forfeited for such reason, a corporation upon failure to pay such tax within the prescribed time ceased to exist and the corporation no longer had any interest in the property, and those who were its stockholders at the time of its death were immediately vested with the right to have its affairs settled by the trustees designated by the statute for that purpose and the property remaining after such settlement distributed' among them according to their respective interests.</p> <p>[3] Id.—Revival of Corporation—Assent Required—Construction of Relief Legislation.—The assent of the former stockholders of a corporation which has forfeited its charter for nonpayment of its license tax is not required to a revival of the corporation under the relief legislation, but the assent of the statutory trustees and payment of the tax and penalties is sufficient to effect a rehabilitation.</p> <p>[4] Id.—Forfeiture Prior to Relief Legislation—Revival of Corporation— Rights of Nonconsenting Stockholder.—The provision of the act of 1913 allowing the rehabilitation of corporations which have forfeited their charters for nonpayment of license taxes cannot be enforced against a nonconsenting stockholder of a corporation which had forfeited its charter for such reason prior to the enactment of any legislation permitting relief from such forfeitures, where such stockholder diligently asserted his objection to the revival.</p> <p>[5] Id .—Vested Property Eights of Stockholders.—The rights of stockholders of a corporation, which had forfeited its charter for nonpayment of its license tax prior to the enactments authorizing relief from such forfeiture, to have the property of the corporation distributed among them after the payment of the former corporation’s debts and the expenses of liquidation, was a vested property right secure against impairment by subsequent legislation.</p>

<p>APPEAL from a decree of partial distribution of the Superior Court of Los Angeles County. James C. Rives, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Estates of Deceased Persons—Vesting of Testamentary Dispositions — Time — Presumption.—Testamentary dispositions are presumed to vest at the testator’s death unless an intention to the contrary clearly appears in the will.</p> <p>[2] Id.—Will—Time of Vesting of Remainder — Construction.—■ Under a will giving to the surviving wife of the testator all of the income and so much of the principal of his property as might be necessary for her comfortable living and support as long as she lived, and giving, upon her death, the remainder of his property in six equal parts to his specifically named children, and providing that the indebtedness of any child to him should continue as long as his wife lived and be taken out of such child’s share on her death, the gift to each child was not contingent upon the child surviving the wife, but the ownership of such remainder vested in all of them immediately upon the death of the testator.</p>

<p>[1] Public Service Corporations—Supply op City With Electricity por Lighting Purposes—Subsequent Municipal Franchise por Supply por All Purposes—Constitutional Franchise not Surrendered.—A public service corporation supplying electricity to a municipal corporation and its inhabitants for lighting purposes under the franchise provided by section 19 of article XI of the constitution did not lose or surrender such franchise by subsequently bidding for and accepting a franchise from the municipality under a charter provision, for the supplying of electricity for light, heat, power, and all other purposes, and a provision of the franchise for the payment to the city of a percentage of the gross receipts was invalid as to revenue received from the furnishing of electricity for lighting purposes.</p> <p>[2] Municipal Corporations—Condition of Bidding for Franchise— Agreement of Sale to City—Unwarranted Requirement.—A municipal corporation has not the right to exact of a public service corporation owning a perpetual franchise for the furnishing of the city and its inhabitants with electricity for lighting purposes and owning another franchise for furnishing the city and its inhabitants with electricity for power and heat, an agreement that the corporation make a sale of its system to the city at the end of thirty-five years, as a condition to its right to bid for a municipal franchise for the furnishing of the city and its inhabitants with electricity for all purposes, notwithstanding a charter requirement that, such a provision be inserted in every ordinance granting a franchise.</p> <p>[3] Public Service Corporations—Acceptance of Municipal Franchise—Prior Franchise Under Broughton Act not Superseded. The acceptance by a public service corporation of a municipal franchise for furnishing the city and its inhabitants with electricity for light, heat, power, and all other purposes, which franchise was sold to the highest bidder under charter requirement, did not operate to supersede a prior franchise for heat and power granted to the same corporation by sale at public auction under the Broughton Act (Stats. 1995, p. 777), so as to require payment to the city of a percentage of the gross receipts under the prior franchise.</p> <p>[4] Id.—Percentage on Sales of Electrical Energy — Delivery Outside of City Limits.—-A municipal corporation is not entitled, under a franchise requiring a public service corporation to pay to it a percentage of its gross receipts on all electrical energy sold within the city limits, to a percentage on energy delivered to a customer at the junction of the lines of the seller and consumer outside of the city limits, although the meters were within such limits.</p> <p>[5] Id.—Resale Within Limits—Right to Percentage.—A municipal corporation is not entitled, under a franchise requiring a public service corporation to pay to it a percentage of its gross receipts on all electrical energy sold within the city limits, to a percentage on energy delivered within such limits by a customer upon a resale.</p>

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Award affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Easement — Grant Without Words of Inheritance or Succession—Bight of Transfer.—In view of the provisions of sections 1072, 1092, and 1105 of the Civil Code, the grantee of an easement by a conveyance containing words of grant without words of succession or inheritance is entitled to transfer to another the estate conveyed to Mm.</p> <p>[2] Id.—Construction of Deed—Basement for Grantee and Successors.—A deed to a railroad company of a strip of land for railroad purposes “so long as the said company shall actually maintain, use, and operate its road upon the premises aforesaid but not longer,” which contained the word “grant” but did not contain any words of succession or inheritance, is to be construed as though the conveyance was to the railroad company, its successors and assigns, and the words “said company” should be read as applying not only to the grantee, but to its successors.</p>

<p>[1] Employer and Employee—Bight to Quit.—In the absence of contract, the right of a workman to quit his employment is as absolute as the right of a fellow-employee to remain in the employment, or of another workman to take the place vacated by the one who has quit, or the right of the employer to dispense with an employee’s services.</p> <p>[2] Id.—Bight to Induce Others to Quit.—It is lawful for an employee who has quit to peaceably persuade a fellow-employee to leave his position, and if there are a number of employees who have left a common employer, they are within their legal rights if and when they attempt as a group to persuade other employees, who continue to work, to quit, provided there be no force, violence, or intimidation, physical or moral, used, since the mere fact of numbers does not necessarily make such persuasion illegal.</p> <p>[3] Id.—Unlawful Acts—Injunction.—Where violence, threats, or intimidation are used in an effort to induce another to quit his employment, the acts of- an individual or a number of individuals are unlawful and may be enjoined, and it is not necessary to the ¡( enjoining of such acts that it be shown there was actual force or * expressed threats of physical violence used.</p> <p>[4] Appeal—Evidence—Scope of Beview.—It is not the province of the appellate court to weigh the evidence nor to determine the credibility of the witnesses, hut only to decide whether the evidence, as matter of law, supports the findings.</p> <p>[5] Injunction — Conspiracy of Striking Employees — Injury to Employer’s Business—.Sufficiency of Evidence.—In this action to enjoin a union and certain of its individual members, who were striking employees of the plaintiff, from picketing plaintiff’s place of business, molesting its employees and otherwise interfering with its business, the evidence is held sufficient to support a finding that the defendants had entered into a conspiracy with the design and for the purposes alleged and found.</p> <p>2. What is unlawful interference or intimidation in strikes, note, 61 Am. St. Rep. 706.</p> <p>Bight, in aid of strike, to employ peaceable persuasion to induce persons not under contract to quit, or not accept employment, note, 41 L. R. A. (N. S.) 445.</p> <p>[6] Id.—Acts not Unlawful—Judgment.—In such an action, the placing of pickets near plaintiff’s place of business for a purpose not at all connected with such business, and not for the purpose of intimidating employees of plaintiff, so as to coerce them to quit their employment, nor for the purpose of intimidating persons intending to become employees, so as to prevent them from doing so, cannot appropriately be enjoined, since such an act would not be wrongful as against the plaintiff and would not be calculated to injure the plaintiff’s business.</p> <p>[7] Costs—Appeal—'Modification of Judgment.—Where the obvious purpose of an appeal in an action for an injunction was to obtain a positive reversal, and the judgment was modified but without substantially changing its important features, the appellants cannot recover costs.</p> <p>fi. Legality of picketing in connection with industrial disputes, notes, 13 Ann. Cas. 60,- Ann. Cas. 191SE, 54; fi A. L. R. 928; 4 Is. R. A. (N. S.) 302; 50 L. R. A. (N. S.) 412.</p>

<p>[1] Supersedeas — Stay of Execution Sale — Lack of Power of Supreme Court.—The supreme court is without power to grant a swpersedeas to stay an execution sale in a case in which the trial court refused an injunction to stay such sale.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. 3. R. Welch, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Chattel Mortgages — Forfeiture upon Default — Void Provision.—A provision in a chattel mortgage that upon default the mortgagee may take possession of the mortgaged property and that he shall thereupon become vested with absolute title and the mortgage indebtedness thereby be fully paid, is void under section 2889 of the Civil Code.</p> <p>[2] Id.—Payments—Application.—Moneys paid by the mortgagee to the mortgagor were to be treated as payments upon amounts due to the mortgagor and not as advancements under the mortgage.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County denying an application for distribution. 'James C. Rives, 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>S. J. Higgins, City Attorney, and A. F. H. Wright, Deputy City Attorney, for Appellants.</p>

<p>PROCEEDINGS on Certiorari to review an award of the Industrial Accident Commission. Award affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari to review the determination of the sufficiency of a recall petition. Denied.</p> <p>The facts are stated in the opinion of the court.</p> <p>Carr & Kennedy and Chenoweth & Leininger for Petitioner.</p>

<p>[1] Pleading—Motion fob Judgment—Truth of Answer—Scope of Admission.—A motion for a judgment on the pleadings admits the truth of the answer for the purposes of the motion only.</p> <p>[2] Id.—Affirmative Allegations of Answer—Implied Denial.-— Under the code system of pleading, the affirmative allegations of the answer are deemed denied, and all affirmative matters by way of replication are deemed to have been pleaded by the plaintiff.</p> <p>[3] Id.—-Liberality in" Amendment of Pleadings.—The utmost liberality is allowed in amending pleadings to conform to the truth, and to allow a party to escape from the effects of ill-advised allegations of law or fact.</p> <p>[4] Id.—Duty of Court on Motion for Judgment.-—-If it appears on plaintiff’s motion for a judgment on the pleadings that the defendants have failed to fully or correctly state their defense, they should be allowed to amend their answer, and if the motion is not well taken, it should be denied and the case set down for trial on the issues raised.</p> <p>[5] Id.—Denial of Motion—Leave to Amend Answer—Erroneous Judgment for Defendants.—Where the court in denying a motion by -plaintiff for judgment on the pleadings granted the defendants leave to amend their answer and set the case down for trial on the issues raised, it was error to render judgment for the defendants at the time fixed for trial, on the theory that the plaintiff had admitted the truth of the answer by his motion, since the granting of leave to amend and the acceptance of the privilege was in effect a finding that the answer was insufficient and that the motion was well taken and an admission by the defendants of the insufficiency of their answer.</p> <p>[6] Id.—Action on Promissory Note—Judgment on Pleadings.— Where in an action on a promissory note the answer admitted the allegations of the complaint and also affirmatively showed that the plaintiff advanced the money on the note, the plaintiff was entitled to judgment on the pleadings, and the fact that it was further shown that the consideration was used to promote a proposed corporation instead of by the defendants was of no significance, since the consideration for defendants’ promise was the advancement of the money.</p>

<p>APPEAL from an order of the Superior Court of Orange County disallowing an application for compensation for extraordinary services in a probate proceeding." Z. B. West, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Estates op Deceased Persons—Attorney’s Pees por Extraordinary Services—Discretion—Appeal.—The allowance of attorney’s fees for extraordinary services rendered in the probate of an estate rests largely in the discretion of the probate court, and its order will not be reversed or modified on appeal unless it clearly appears that there has been an abuse of discretion.</p>

<p>[1] Specific! Performance—Contract fob Sale of Land—Payment of Price—Lack of Certainty and Definiteness.—A written contract for the sale of land providing for the payment of the stated price to the vendor “at the times and in the manner hereinafter mentioned,” to wit: “in the form of a mortgage payable to S. M. Skillman (not the vendor), and: due April 3, 1919, or two years and six months from date of the contract, with seven per cent interest per annum, payable semi-annually,” is too indefinite and uncertain as to the payment of the price to be enforceable by way of specific performance.</p> <p>[2] Id.—Pleading—Payment or Tender of Price—Essential Allegations.—In an action by a vendor to cancel a contract for the sale of land, a cross-complaint for specific performance which does not show that the vendee ever paid or offered to pay the purchase price, or that she is willing to pay the same if specific performance should be decreed in her favor, is insufficient.</p> <p>[3] Id.—Repudiation by Vendor—Willingness of Vendee to Pay— Essential Allegation.—While the positive repudiation of a contract of sale by the vendor excuses the vendee from a formal tender of the price as a condition precedent to an action for specific performance, it does not obviate the necessity of the state-meat in the complaint that the vendee is ready, able, and willing to pay the amount due from him, and such requisite is not complied with by an offer to pay the amount due after deducting the damages to the vendee, from the refusal of the vendor to perform, from the amount of the purchase price unpaid.</p> <p>3. Payment or tender of purchase price as condition precedent to right of purchaser to specific performance, notes, 4 Ann. Cas. 852; Ann. Cas. 1913C, 647.</p> <p>[4] Vendor and Vendee—Default of Vendor—Remedies.—Where the vendor refuses to perform, the vendee may sue for specific performance, or for damages for the refusal, but the remedies are inconsistent, and if one is chosen the other is deemed to be abandoned wherever the change of remedy would occasion an injury to parties adversely interested in the matter, such as vendees subsequently purchasing from the vendor.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Frank R. Willis, Judge. Modified and affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Fraudulent Conveyances—Applicability op Section 3440, Civil Code—Possession or Control op Property.—Section 3440 of the Civil Code, which describes a certain variety of constructive fraud whereby a transfer of personal property is declared to be fraudulent as a matter of law, regardless of the actual motives or intentions of the parties, cannot be extended beyond its plain meaning, and by its own terms it applies only to transfers made by a person having at the time the possession or control of the property.</p> <p>[2] Id.—Property in Possession op Sheriff—Immediate Delivery Unnecessary.-—A sale of personal property in the possession of the sheriff under a writ of attachment is valid as against creditors without immediate delivery or continued change of possession.</p> <p>[3] Id.—Transaction Between Attached Party and Third Person— Valid Transper.—Where the owner of an automobile, while it was in the possession of the sheriff under an attachment, transferred his interest in the ear to a third party in consideration of the payment by the latter of the attachment and another lien against the car, and thereupon the attachment was released and the third party took control of the ear, but left it in the same garage subject to his orders, and thereafter the owner executed a bill of sale to such third party, the owner was not in possession or control of the car under section 3440 of the Civil Code, and the seizure thereof by the sheriff in a subsequent action against the original owner was wrongful.</p>

<p>[1] Mining Law — Location on Claim — Failure to Perform Development Work—Right of Relocation—Construction of Revised Statutes.—Under section 2324 of the United States Revised Statutes, the locator of a mining claim who has not done any of the development work required by the section during the calendar year following the date of his location may immediately, at the beginning of the next year, relocate the same claim and obtain title thereto under such relocation.</p> <p>[2] Id.—Act of Relocation—Absence of Fraud.—Such a relocation does not amount to fraud either upon the United States or persons desiring to claim under it.</p>

<p>The facts are stated in the opinion of the court.</p> <p>H. C. Beach, Janeway & Beach and Edgar G. Pratt for Appellants.</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] Conversion—Creditor’s Suit—Execution.—Under section 720 of the Code of Civil Procedure, which permits a judgment creditor whose judgment remains unsatisfied to maintain an action against . a person alleged to have property of the judgment debtor, an action may be maintained in such capacity against one for the conversion of property belonging to the debtor, since the purpose of statutory proceedings supplementary to execution is the same as that of the original creditor’s bill in equity to enable the creditor to reach property which could not otherwise be made to contribute to the payment of the judgment.</p> <p>[2] Id.—Manner op Obtaininq Possession — Evidence — Appeal.— . Where, in an action by a judgment creditor for the conversion of property alleged to have belonged to the judgment debtor, the defendant and a witness testified, without contradiction, that the property was delivered by the debtor to the ' defendant for the purpose of selling and applying the proceeds on an indebtedness of the debtor to the defendant, but the accuracy of the testimony was impaired by the testimony of the defendant in another proceeding that the property was taken by him under a chattel mortgage, the finding that the property was wrongfully sold by defendant cannot be disturbed.</p> <p>[3] Id.—Indebtedness to -Conversiones—Insufficient Defense.—In an action by a judgment creditor for the conversion of property alleged to have belonged to the judgment debtor, the claim of an indebtedness by the debtor to the defendant in excess of the price obtained for the property is not a valid defense, since it would have not constituted a defense to an action for conversion by the judgment debtor.</p> <p>[4] Id.—Former Action—Different -Capacity—Judgment not Bes Ad judicata.—A judgment creditor is not barred from maintaining an action for the conversion of property alleged to belong to the judgment debtor, by reason of the fact that prior to the recovery of his judgment he brought an action against the same defendant for the same conversion and judgment was rendered against him, since the actions were brought in different capacities.</p> <p>[5] Id.—Maintenance of Action—Evidence.—A judgment creditor is only required to show that he obtained judgment against the debtor, that no part thereof has been paid, and that execution has been issued and returned unsatisfied, to enable him to maintain an action for the conversion of the debtor’s property.</p>

<p>HI Estates of Deceased Persons—Decree of Distribution—Status of Distributee—Presumption.—The fact that a note and mortgage belonging to the estate of a deceased person are distributed to a certain person upon the decree of distribution raises the presumption that such person is the sole heir of the deceased, on the legatee of that portion of the estate.</p> <p>[2] Id.—Vesting of Title—Time.—The legal title to a note and mortgage belonging to the estate of a deceased person vests upon the death of such person in one who is either the sole heir of the deceased or the legatee of such property, except so far as resort thereto is necessary for the payment of the debts and expenses of administration and for the carrying out of the provisions of the will.</p> <p>[3] Id.—Release of Mortgage—Want of Authority—Distribution of New Mortgage—Estoppel.—Where the executrix of a will, without having any authority either under the will or from the court, released and canceled a note and mortgage belonging to the estate in consideration of the execution of a new note and mortgage on the same property by third parties, and such new note and mortgage were distributed to the executrix as legatee under the will, she was estopped from ever thereafter attempting in any way to enforce the old mortgage, and the mortgagors in an action for the foreclosure of the new mortgage could not set up her want of authority as a defense to the action.</p>

<p>[1] Taxation—Excessive Assessment—Bad Eaith.—An assessment for taxation purposes of a tract of oil land containing 20.16 acres in an amount exceeding by fifty-five thousand dollars, the assessment of the entire 1,123.43 acres of adjoining oil properties comprising 617 acres of proven or tested oil lands and producing monthly 215,608 barrels of oil of like character, as against 44,686 barrels from the 20.16 acre tract, is so grossly inequitable and palpably excessive as to raise an inference of bad faith.</p> <p>[2] Id.—Equality of Valuation—Bight of Taxpayer.—A taxpayer is entitled to the exercise of good faith and fair consideration on the part of the taxing power in assessing his property at the same rate and on the same basis of valuation as that applied to other property of like character and similarly situated, and inequality of taxation is produced as surely by inequality of valuation as by inequality of the rate of tax.</p> <p>[3] Id. — Becovery of Taxes — Presentation of Claim to Supervisors—Unnecessary Condition Precedent.—A taxpayer may recover taxes paid under protest under section 3819 of the Political ’Code without first presenting a verified claim therefor to the board of supervisors under section 4075 of such code.</p> <p>2. Bemedy of owner of particular class of property assessed at greater per cent of value than other property, note, Ann. Cas. 1914D, 916.</p> <p>Action of board of equalization as affecting right to attack assessment on ground of assessor’s fraud, note, 9' A. L. B. 1284.</p> <p>3. Becovery of illegal tax paid “under protest,” notes, 45 Am. Pec. 164; 94 Am. St. Eep. 425; 8 Ann. Cas. 669; 10 Ann. Cas. 1050; Ann. Cas. 1915A, 495.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Leib & Leib, Morrison, Dunne & Brobeek and R. B. Canfield for Appellants.</p>

<p>[1] Appeal—Second Judgment—Order Granting Hew Trial—Review—Construction op Code Amendments,—While the second sentence of section 956 of the Code of Civil Procedure, as amended in 1915, providing that the court may, on an appeal from the judgment, review any order on motion for a new trial, is broad enough, considered alone, to justify the court in reviewing the order granting the new trial in every case, it is apparent from the entire context and purpose of the section, taken in connection with the scheme for appeal adopted by the legislature in 1915, that it was not intended that any order granting a new trial should be reviewed unless it affects the second judgment, and where the entire case is tried de novo, the order could not affeet the judgment, however much it might affeet the parties to the action.</p> <p>[2] Id. — Orders Reviewable. •—■ Where the order granting a new trial confines the order to certain issues, or, in some other way, enters into and affects the final determination of the ease, it can be reviewed upon an appeal from the judgment, and it is only such orders granting a new trial that can be considered on an appeal from the second judgment.</p> <p>[3] Statute op Limitations—Open Book Account.—Under section 337 of the Code of Civil Procedure, both prior and subsequent to amendment of 1917, the period of limitation for an action on an open book account is four years.</p> <p>[4] Id.—Mutual Open and Current Account—Running op Statute.—With reference to a mutual, open and current account mentioned in subdivision 2 of section 337 of the Code of Civil Procedure, the statute of limitations runs from the date of the last item shown in the account.</p> <p>[5] Id.—Open Book Account—Running of Statute.—Under subdivision 2 of section 337 of the Code of Civil Procedure, as amended in 1917, the statute of limitations, in the case of an open book account, begins to run from the date of the last item shown in the account.</p> <p>[6] Open Book Account — Mutual, Open and Current Account — Distinction.—An open book account is differentiated from an open, mutual and current account solely by the fact that to constitute an open, mutual and current account it is necessary that items other than cash appear as credits upon the account, whereas in an open book account cash payments alone are sufficient to characterize the account as an open book account.</p> <p>[7] Id.—Payment on Open Book Account—Tolling op Statute op Limitations.—In view of the fact that the legislature fixed a different period of limitation upon an open book account from an ordinary account, a payment made and entered upon the open book account tolls the statute of limitations, notwithstanding the provision of section 360 of the Code of Civil Procedure requiring a written acknowledgment.</p> <p>[8] Partnership—Open Book Account—Name op Individual Member—Statute of Limitations.'—Where a member of a partnership with the consent of his copartners carried on the partnership business, an open book account against him in his own name for partnership goods was such an account as to his copartners within the meaning of the statute of limitations.</p> <p>6. Mutual accounts, what are, note, Ann. Cas. 1913D, 816.</p> <p>8. What constitutes an open, current account within the statute of limitations, note, 1 A. L. B. 1060.</p> <p>[9] Id.—Acknowledgment op Partnership Indebtedness—Letter op Partner—Tolling op Statute as to Copartners.—A letter written by such a partner on a letter-head showing the names of all the partners referring to an indebtedness charged against him in his individual name as a partnership indebtedness was an acknowledgment signed by the party to be charged thereby within the meaning of section 360 of the Code of Civil Procedure sufficient to start another four-year period under the statute of limitations as against the copartners.</p>

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

[1] Appeal—Review of Findings of Fact.—The rule declared in section 1847 of the Code of Civil Procedure that the jury are the exclusive judges of the credibility of witnesses, which is equally applicable to the judge where the ease is tried without a jury, is the absolute rule in the matter of review of findings of fact of a trial court by an appellate court, except where the record demonstrates that in the very nature of things certain testimony of a witness cannot be true.

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

<p>[1] Negligence—Finding—Conflict or Evidence—Appeal.—A finding in an automobile accident collision case that the accident was caused by the negligence of defendant and that the plaintiffs were not guilty of contributory negligence cannot be disturbed where the evidence is conflicting.</p> <p>[2] Id.—Crossing or Street—Exercise of Care by Others—Reliance upon Presumption.—A person crossing a street in front of an approaching vehicle cannot close his eyes to threatening 'danger relying upon the presumption that the other party will use reasonable care and prudence and obey the traffic laws, but if there is nothing in the situation to warn him of impending danger, he is not guilty of negligence in relying upon such assumption.</p> <p>2. Liability for collision between automobiles, or an automobile and another vehicle, at or near corner of streets or highways, note, Ii. R. A. 1916A, 745.</p>

<p>[1] Life Insurance Law—Action on Policy—Timely Mailing of Premium—Evidence—Appeal.—On appeal from a judgment in an action to recover on a life insurance policy involving the timely mailing of a premium, the verdict upon which the judgment was rendered cannot be disturbed, where it appears from an analysis of the evidence, although largely consisting of written instruments, that the verdict necessitated a weighing of conflicting testimony of different witnesses and a determination of the degree of credence to be accorded them.</p> <p>[2] Id.—Grace for Payment of Premium—Interest—Construction of Policy.—Under a provision of a life insurance policy providing if any premium is not paid on or before the day it falls due the policy-holder is in default, but allowing a grace of one month, subject to an interest charge of five per cent per annum for payment of the premium, during which time the insurance continues in force, the policy is not forfeited by failure to pay the interest, as well as the premium, during the month, since the interest, in the absence of an express agreement to such effect, is not a part of the premium.</p>