Volume 189 — California Reports

<p>HI Appeal—Preparation op Transcript Under Section 953a, -Code of Civil Procedure—Default —Inapplicability op Section 473, Code op Civil Procedure.-—Section 473 of the Code of Civil Procedure, providing for relief from defaults, is not applicable to a delay or default in the preparation of a transcript on appeal requested under section 953a of the Code of Civil Procedure, since when proceeding under such section the appellant must rely on the official conduct of the officers of the court, and their delay or default is not that of the appellant.</p> <p>[2] Id.—Lack op Diligence — Question for Trial Court.—The proceeding to obtain a transcript on appeal requested under section 953a of the Code of Civil Procedure may be dismissed for lack of diligence on the part of the officers charged with its preparation, but the matter should be presented to the trial court and not to the supreme court on a motion to dismiss the appeal.</p> <p>[3] Id.—Motion to Dismiss Appeal—Record—Denial op Motion.— Where on a motion to dismiss an appeal for failure to file a transcript requested under section 953a of the Code of Civil Procedure the record shows no lack of diligence by appellant on his own part and no termination of the proceeding to obtain such transcript, the motion will be denied, since the time for filing the transcript ■will not begin to run until it is approved, and certified by the trial judge as provided by rule II of the supreme court.</p> <p>[4] Id. — Diligence in Prosecution of Appeal — Discretion. — The primary subject of investigation upon a motion to dismiss for failure to file a transcript within the time prescribed by rule II of the supreme court, whatever the technical aspect of the case may be, is always the question whether the appeal has been diligently prosecuted, and in the decision of that question the court has a very large discretion.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Wm. Story, Jr., Joseph L. Lewinsohn, William A. Barn-hill and Lissner, Lewinsohn & Barnhill for Petitioner.</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] Monopolies—Produce Sale Agreement—Organization of Poultry Raisers.—A contract between a corporation organized by poultry raisers for co-operative effort in marketing their products and a stockholder thereof obligating the latter to sell all eggs produced from his poultry through the corporation and requiring the corporation to resell the eggs at the best prices obtainable and pay over to the stockholder the proceeds after deducting therefrom the seller’s cost of transportation and an amount for selling costs to be determined by the corporation, did not create an unlawful trust or combination in restraint of trade in contravention of the Cartwright Act (Stats. 1907, p. 984), in view of the proviso that was added in 1909 excepting from the operation of the act corporations organized for the purpose of marketing the products of its members (Stats. 1909, p. 593).</p> <p>[2] Corporations—Subscription Agreement—Option to -Purchase Stock.—A clause in a subscription agreement purporting to give to the corporation to be organized thereunder the right, at its option, to purchase its shares from any of its stockholders, at any' time, at a price equal to the current book value of the shares, is illegal and void, and, consequently, unenforceable.</p> <p>[3] Contracts—Produce Sale Agreement—Invalid Provision as to Purchase of Stock—Effect of.—An agreement between a corporation organized by poultry raisers and a stockholder thereof is not invalid as to the provisions requiring the latter to market all of his products through the corporation and obligating the corporation to sell the same at the best prices obtainable and account for the proceeds less costs of sale, by reason of the invalid provision giving the corporation the optional right to purchase its own stock from the stockholder, since the exercise of the option is no part of the consideration of the promise of the stockholder.</p> <p>2. Bight of corporation to purchase its own shares of stock, notes, 17 Ann. Cas. 1261; Ann. Cas. 1914B, 1016; 61 L. R A. 621; 25 Ii. R. A. (N. S.) 50; 30 L. B. A. (N. S.) 694; 44 L. E. A. (N. S.) 156.</p> <p>[4] Injunction—Prevention of Breach of Contract.-—In view of subdivision 5 of section 3423 of the Civil Code, an injunction ^ cannot be granted to prevent the breach of a contract where its performance would not be specifically enforced.</p> <p>[5] Specific Performance—Mutuality of Remedy.—Mutuality of y remedy is an indispensable prerequisite to the specific performance of a contract.</p> <p>[6] Id.—Contract for Personal Service.—With the exception of ^ such special, unique, and extraordinary services as fall within the purview of the amendments of May 6, 1919, to section 3423 of the Civil Code and section 526 of the Code of Civil Procedure, the general rule is that a contract for service will not be specifically enforced, either directly by means of a decree directing the defendant to perform it, or indirectly by an injunction restraining him from violating it, and especially where the relation between the contracting parties is one of mutual confidence, and the contract stipulates for acts that require special knowledge, skill, or ability, or the exercise of judgment, discretion, integrity, and like personal qualities.</p> <p>[7] Id.—Contract Providing for Succession of Acts.—Courts of v* equity will not decree the specific performance of contracts which by their terms stipulate for a succession of acts whose performance cannot be consummated by one transaction, but will be continuous and require protracted supervision and direction.</p> <p>[8] Id,—Marketing of Products—Honenforoeability of Sale Agreement.—An agreement between a corporation organized by poultry raisers and a stockholder thereof requiring the latter to sell all of his products for certain stated years to the corporation and obligating the corporation to resell the products at the best prices' obtainable therefor under market conditions and pay over the proceeds to the stockholder less costs of sale is not enfoxqgable either by injunction or by decree of specific performance, since such a contract is one of agency calling for services of the corporation of a highly^ personal nature, requiring the exercise _of skill and discretion and covering repeated transactions to extend over a number of years.</p> <p>[9] Id.—Want of Mutuality—Removal by Performance.—A want of mutuality in the right to specific performance existing at the inception oí a contract may be removed when there has been a full and substantial performance of the contract.</p> <p>[10] Id.—Offer or Willingness to Perform—Effect of.—Where a contract is not specifically enforceable because of want of mutuality of remedy, the offer or willingness of one of the parties to do whatr otherwise he could not be specifically required to do does not confer the right to compel performance from the other party.</p>

<p>[1] Bonds-—Pledge as Collateral Security—Transaction of Husband—Participation of Wife—Sufficiency of Evidence.—In this action by a guardian against a bank to recover the possession of certain bonds, which were aleged to be the property of plaintiff’s minor children and which had been delivered to the defendant by her husband as collateral security for the payment of their promissory note to cover an overdraft of their joint account, and which he represented were owned by his wife, the finding that the plaintiff wife executed the note and collateral agreement for a valuable consideration is supported by the evidence.</p> <p>[2] Banks and Banking—Husband and Wife—Joint Account—Husband’s Overdraft—Liability of Wife.—Where a bank account was opened in the names of a husband and wife with money belonging to the latter by the deposit of checks payable to her, the husband’s overdraft was as much her indebtedness as his own, notwithstanding all of the cheeks against the account were drawn by him with two exceptions.</p> <p>[3] Promissory Note—Pre-existing Debt—Consideration.—An existing debt is a sufficient consideration for a note or other commercial instrument.</p> <p>[4] Banks and Banking—Pledge of Bonds—Belianoe upon Bepresentation as To Ownership.—Where corporation bonds were delivered by a husband to a bank to secure the payment of the promissory note of himself and his wife to cover an overdraft of their joint account, the bank had the right to rely upon the representation of the husband that the bonds were owned by his wife.</p> <p>[5] lb.—Notation on Bonds—Insufficient Notice of Ownership.— Where corporation bonds were pledged by a husband to a bank to secure the payment of the promissory note of himself and his wife to cover an overdraft of their joint account, the fact that the names of the minors were written on the margin of the bonds, did not constitute notice, actual or constructive, to the bank that the minors owned them, or notice sufficient to cast upon the bank the duty of making further investigation touching such ownership, where the husband represented that his wife owned them and they were of a character which passed by delivery without indorsement.</p> <p>[6] Promissory Notes—Suspicion—Duty to Make Inquiry.—Mere knowledge of facts sufficient to put a prudent man on inquiry, without actual knowledge, or mere suspicion of an infirmity or defect of title, does not preclude the transferee of negotiable paper from occupying the position of a holder in due course unless the circumstances are such as to justify the conclusion that the failure to make inquiry arose from a suspicion that. inquiry would disclose a vice or defect in the instrument.</p> <p>[7] Bonds — Security of Payment by Trust Deed — Non-negotiability Prior to 1915.—Bonds issued by a corporation in the year 1912 which show on their face that they are secured by a mortgage or trust deed on real property are non-negotiable instruments under the law of this state at that time, although payable to bearer.</p> <p>[8] Id.—Purchaser of Non-negotiable Bonds—Title Acquired.—A purchaser of non-negotiable bonds, although he buys in good faith and for value, acquires only the title of the seller.</p> <p>[9] Id.—Amendment of Negotiable Instrument Law—Prior Nonnegotiable Bonds "Unaffected by.—The act of the legislature of August 7, 1915, amending the code in relation to negotiable instruments so as to make bonds secured by mortgages or trust deeds negotiable did not have the effect of changing the character of such bonds issued before the amendment, although transferred thereafter, since the legislature cannot by an act subsequent to the execution of a contract change its legal effect in any material particular.</p> <p>6. What circumstances are sufficient to put a purchaser of negotiable paper on Inquiry, notes, 29 L. it. A. (N. S.) 351; 44 L. R. A. (N. S.) 395; L. B. A. 19181?, 1148.</p>

<p>[1] Municipal Corporations—City op Petaluma—Bona Fide Occupant op Grantee Under Deed op Town Trustees—Suppiciency op Evidence.—In this adtion to quiet title to certain property in the city of Petaluma, to which the plaintiffs claimed ownership in fee simple, but which title the defendant city denied, and set up an easement and right of way for passage through, over and across the property as a public street, the finding that the grantee of the deed which formed the foundation of the plaintiff’s title and which was executed by the board of town trustees on April 14, 1868, under authority of the act of the legislature (Stats. 1867-8, p. 2.98) enacted to carry out the act of Congress of March 1, 1867, granting to such town authorities the land therein in trust with power to convey so much thereof as was in the bona fide occupancy of parties, was a bona fide and undisputed occupant of the property at the time of the execution of such deed, is supported by the evidence.</p> <p>[2] Id.—Besurvey Under Act op Congress—Map Showing Street.— Bights op Prior Bona Fide Occupant.—A deed made by the trustees of the town of Petaluma to a bona fide occupant of land therein after the resurvey of the lands of the town under the act of Congress of 1864 was not void as to the portion of such occupied land as was shown on such map to be a public street, where the occupant was in the possession of the land at the time of the adoption of such act.</p> <p>[3] Id.—Description in Deed — Reference to Map Delineating Street.—Where a deed made by the trustees of the town of Petaluma recited that the grantee was in the exclusive and bona fide occupancy of the premises, the grantee was not bound by the description referring to the map of the town which delineated a street as traversing the property.</p>

<p>APPLICATION for a Writ of Prohibition to restrain interference with sale of trust certificates.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Judgments—Action on Assigned Note—Reassignment Pending Trial—Plea to Issue of Fraud.—In an action to recover on an assigned promissory note which' was reassigned to the assignor pending trial and the assignor substituted as party plaintiff therein such substituted party had the right to plead in bar to the defense of fraud in the procurement of the note, the judgment in another action in which he was a proper and necessary party and in which the same issue of fraud had been tried and determined adversely to the defendants, although such judgment could not have been pleaded as an estoppel to a retrial of such issue as against the original plaintiff for the reason that she was not a party to the earlier action.</p> <p>[2] Counterclaim — Stockholder’s Liability — Corporation Note.— A stockholder’s liability on a promissory note of the corporation is one arising on contract and may be pleaded by way of counterclaim.</p> <p>[3] Id.—Statute of Limitations—Counterclaim.—A counterclaim which is not barred at the commencement of the action in which it is pleaded does not become so barred afterward during the pendency of the action, and in pleading the statute of limitations to a counterclaim it must be shown that the bar of the statute had matured when the original action was commenced, and it is not sufficient to aver a bar when the counterclaim was filed.</p> <p>[4] Id.'—Joint and Several Liability—Claim of One Defendant-Counterclaim.—In an action on a joint and several liability of the makers of a promissory note, a valid claim of either defendant against the plaintiff may be interposed by way of counterclaim.</p>

<p>Davis, Rush & MacDonald, Alfred F. MacDonald, Wm. B. Beirne, A. C. Verge, O. V. Willson and J. B. Joujon-Roche for Appellant.</p>

<p>APPLICATION for a Writ of Mandate to compel the making of an order for retirement and pension of a fire department chief.</p> <p>The facts are stated in the opinion of the court.</p>