Volume 19 — California Appellate Reports

<p>Trial—Demand for Jury—Deposit—Rule of Court—Fair Construction—Noncompliance at One Setting—Full Compliance at Next Setting—Error.—Under a fair construction of a rule of court providing that: “Trial by jury is deemed waived by a party who does not demand the same, either before or at the time when the cause is set down upon the trial calendar, and also does not,' within five days after such demand, deposit with the clerk, the fees for twelve jurors for one day,” where it appears that a proper .demand for a jury was made and entered in the minutes of the court when the case was originally set for. trial, and where,' when it was reset, no demand or deposit was made, but it was continued, and when reset a second time, both a demand and the. requisite deposit were made, it was error for the court to refuse to consider such demand f and deposit, and to deny a jury trial, because it was absolutely waived by noneomplianee with the rule at the previous setting.</p> <p>Id.—Ground of Justification for Rule—Reasonable Regulation as to Demand and Deposit.—Granting, for the sake of the argument, that such rule is ■ within the power of the court to adopt, it could be justified as a reasonable regulation, as to the demand for a jury, ' only on the ground that the orderly business of the court 'may pro- ' ceed, and causes tried at the time they are set, and as to the deposit for the reason that it affords, as stated by the supreme court, “a . reasonable precaution to prevent the jury from being defrauded by ■ unscrupulous parties, and to prevent the demand for the jury from " being used as a pretext to obtain continuances, and thus trifle with justice.”</p> <p>Id.—Sufficient Compliance With Rule—Duty of Court.—It is held that no purpose of the rule could have been thwarted or imperiled if plaintiff’s demand and deposit of the jury fee had been allowed under the circumstances appearing; that the demand and deposit, when the case was set for retrial the second time, presented a situation exactly the same as when the original order was made; and it is sufficient that on the very day that the cause Was set for trial plaintiff made a demand and deposit as required by the rule. The court should have reconsidered its ruling as to waiver, and have granted the request, upon the demand and deposit before the court, which were still operative, and need not be renewed.</p> <p>Id.—Demand and Deposit—Repetition not Required.—The demand must be considered as a continuous refusal to waive the right to a jury; and it was not necessary to repeat the demand and deposit, in order to secure the constitutional right of the plaintiff to a jury trial.</p> <p>Id.—Technical Application of Rule Unreasonable and Invalid— Liberal Construction in Favor of Person Demanding Jury.—It is held that if the rule of the court is to be given the exceedingly technical application contended for, it should be declared without hesitation unreasonable and invalid; and that it should be construed liberally in favor of the person demanding a jury in such a ease as this.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. George A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Thomas H. Breeze, Gordon Hall, and Albert Fink, for Appellants.</p>

<p>Note—Guaranty—Oral Extension op Time to Maker—Consideration—Discharge op Guarantor—Conflicting Decisions—Law op This State.—While there is an irreconcilable conflict in the decisions in different states as to whether a mere oral agreement to extend the time of payment to the maker of a note, although its terms and tenor are not changed, and no additional burden is put upon the maker, other than the interest fixed -by its terms, is supported by a consideration and operates to discharge a guarantor of the note, yet under the tenor of decisions in this state, as well as under its code provisions, the rule in this state is that such oral agreement is supported by no consideration, and does not discharge the guarantor.</p> <p>Id.—Code Provisions as to Exoneration op Guarantor.—Under section 2819 of the Civil Code, “a guarantor is exonerated, except so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal in any way impaired or suspended.” Section 2820 provides: “A promise by a creditor which for any cause is void, or voidable by him at his option, does not alter or suspend or impair the remedy within the meaning of the last section,” while section 2823 thereof provides: “Mere delay on the part of the creditor to proceed against the principal does not exonerate the guarantor.”</p> <p>Id.—Void Promise Without Consideration not Exonerating Guarantor—Terms of Guaranty Including Forbearance—Waiver op Demand and Notice.—A void promise could not exonerate the guarantor. Since a promise without consideration is void, a promise of forbearance to the creditor based thereon left the obligation of the creditor unchanged, and it remains the same as when guaranteed. By the terms of the guaranty, the guarantor guaranteed “the payment of the within note at maturity, or at any time thereafter,” thus contemplating the contingency that it might not be paid at maturity. Since he also expressly waived “demand, notice of nonpayment and protest,” he could not therefore be released by any mere forbearance of the payee to sue the creditor after maturity, without notice to him or his consent thereto.</p> <p>Id.—Contract in Writing—Mode of Alteration Under Code—“Oral Executed Agreement”—Execution by Both Parties Essential. Since the note was a contract in writing, it is within the terms of section 1698 of the Civil Code, which provides that “a contract in writing may be altered by a contract in writing, or by an oral executed agreement and not otherwise.” Section 1661 defines, “An executed contract is one the object of which is fully performed. All others are executory.” An oral executed agreement is one which must be executed by both parties to constitute it as a modification of a contract in writing. It cannot consist of mere forbearance to sue by one of the parties without consideration.</p> <p>Id.—Support of Findings—Absence of Conflict.—It is held the findings are supported by the evidence, and were properly made, and that there is no conflict therein.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. George A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>A. A. Moore, Stanley Moore, Wm. M. Cannon, Wilder Wright, and Wm. M. Abbott, for Appellant.</p>

<p>Municipal Ordinance ¡Regulating Stables—Unreasonable Discrimination Between Existing and Future Stables — Invalidity— Habeas Corpus.—A municipal ordinance regulating stables, which prohibits the construction and maintenance of stables thereafter for horses, mules, cows or other animals, without first obtaining a permit from the board of supervisors and board of health, with certain specifications, while as to structures used as stables at the time of the passage of the ordinance no such permit is required, is discriminating in its operation between persons similarly situated, and is unreasonable and invalid. One 'convicted thereunder is entitled to be discharged upon writ of habeas corpus.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County entered on a demurrer to an indictment. Walter Bordwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney General, George Beebe, Deputy Attorney General, J. D. Fredericks, District Attorney, and G. Ray Horton and Arthur Keetch, Deputy District Attorneys, for Appellant.</p>

<p>Criminal Law-—Offense of Pandering—Procuring Female Inmate of House of Prostitution — Agreement Insufficient — Actual Occupancy Essential.-—In order to constitute the criminal offense of pandering as defined in section 1 of the act of February 8, 1911 (Stats. 1911, p. 9), it is not sufficient that there is a mere intention, or unconsummated agreement to commit the offense of procuring a female inmate of a house of prostitution, or that a room therein is promised, but the actual occupancy of such room is essential to constitute the offense, and only when so occupied, and not before, is the statute violated, and if she never occupied the same, no offense is committed.</p> <p>Id.—Improper Refusal of Instructions.—It is held that under the evidence appearing in the record that the female in question never became an inmate of the house of prostitution contemplated, upon the trial of a charge of pandering, that the court erred in refusing to instruct the jury at defendant’s request that if they believed from the evidence that the defendant procured a place for such female in a house of prostitution, and the prosecution has failed to prove that she became an inmate of any such house, it was their duty to acquit the defendant, and also in refusing to instruct them that the prosecution must prove beyond a reasonable doubt that said female became an inmate of a house of prostitution.</p> <p>Id.—Evidence Justifying an Instruction to Acquit.—It is held that the evidence appearing in the record is such that the defendant was entitled to an instruction directing the jury to acquit, on the ground that the offense charged was not shown to have been committed.</p> <p>Id.—Offense Charged Distinct from Abduction.—The offense of pandering charged under section 1 of the act of February 8, 1911, has no relevance to or connection with the offense of abduction as defined in section 267 of the Penal Code. There is a marked distinction between the two offenses, and the authorities relating to abduction have no application to the offense here involved.</p>

<p>Justice’s Court—Want of Jurisdiction—Action to Recover Deposit of $200 on Contract to Sell Land for Invalidity of Title—Invalid Judgment for Plaintiff.—Where the complaint, in an action in the justice’s court to recover a deposit of $200 paid under a contract to sell land, alleged that the defendant’s title to the land was invalid because burdened with building restrictions set forth, and based its right of action on that ground, upon its face the title to land is involved therein, and the original jurisdiction thereof is not in the justice’s court, but in the superior court; and where, after overruling a demurrer to the complaint for want of jurisdiction of the justice’s court, that court tried the case and-rendered judgment for the plaintiff, it is void for want of jurisdiction.</p> <p>Id.—Appeal prom Justice’s Judgment—Objection to Jurisdiction— Invalid Trial and Judgment—Reversal With Directions to Dismiss Action.—Where the defendant appealed from the justice’s judgment, on questions both of law and of fact, to the superior court, and appeared specially therein to object to the want of jurisdiction either in the justice’s court or in the superior court to try ■the same, and moved that court to remand the case to the justice’s court, with directions to sustain the demurrer, and dismiss the action for want of jurisdiction to try the same, and where that court overruled the motion and directed the trial to proceed, whereupon defendant refused to submit to the jurisdiction and absented himself, and the case was tried and judgment rendered in his absence for the plaintiff, it is held that such judgment will be reversed, with directions to the superior court to dismiss the action for want of jurisdiction.</p> <p>Id.—Rules Applicable to Appeals prom Justices’ Courts on Questions op Law and Fact.—When appeals are taken from justices’ courts to the superior court on questions both of law and fact, although the justice’s court may in fact be without jurisdiction, yet if no such objection is urged on that ground in the superior court, it cannot be urged upon appeal from its judgment; but if, on the other hand, when such appeals are taken, the want of jurisdiction in the justice’s court is also disclosed in the record of the court as having been seasonably urged on that ground, such objection is good, especially when, as in this case, the objecting party refuses to submit to the jurisdiction of the superior court in the trial of any mere questions of fact.</p>

<p>APPEAL from an order of the Superior Court refusing to set aside a judgment in an action of claim and delivery, and to dismiss the action for want of jurisdiction. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, granting a writ of mandate in favor of the petitioner against the defendants. Geo. H. Cabaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Percy V. Long, City Attorney, and John F. English, Assistant City Attorney, for Appellants.</p>

<p>Appeal from Justice’s Court—Questions of Law and Fact—Want of Jurisdiction Appearing on Face of Record—Seasonable Objection—Dismissal.—Where an appeal from the justice’s court is taken both upon questions of law and of fact, but its want of jurisdiction to try the case appears upon the face of the record, and a seasonable objection to the want of jurisdiction is urged in the superior court, the appellant is entitled to an order dismissing the action for want of jurisdiction to try it upon its merits.</p> <p>Id.—Uncertainty of Complaint as to Jurisdiction—Acquiescence in Jurisdiction—Estoppel.—Where the complaint is uncertain or ambiguous or susceptible of two interpretations as to its meaning, and all parties to the action appear to have adopted or acquiesced in an interpretation that sustains the jurisdiction of the court over the subject matter of the action, the losing party in such action should not be allowed, upon appeal, for the first time, to insist upon a different interpretation of the pleading that will oust the court of its jurisdiction.</p> <p>Id.—Jurisdiction of Justice’s Court and of Superior Court—Dismissal of Appeal to District Court of Appeal.—Where the record on appeal to the district court of appeal from the judgment of the superior court rendered upon appeal from the justice’s court shows that the sum claimed in the justice’s court, exclusive of interest, was less than $300, and that the justice’s court had original jurisdiction of the action, and that the superior court had appellate jurisdiction to try the same upon its merits, it follows that the district court of appeal has no jurisdiction upon appeal from the judgment of the superior court, other than to order a dismissal thereof.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. T. L. Lewis, Judge.</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, and from an order denying a new trial. Leon F. Moss, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Lewis W. Andrews, Thomas O. Toland, Cedric E. Johnson, and T. F. Welch, for Appellant.</p>

<p>Schools—Election to Issue Bonds in City op Fifth Class—Act op 1909—Revision and Repeal op Earlier Statutes.—The authority of a board of education and a school district in a city of the fifth class is given by the act approved March 20, 1909. That act is a complete revision of the subject to which earlier statutes related, and is manifestly intended as a substitute for the former legislation, and prior acts relating to the subject must be considered as repealed.</p> <p>Id.-—Purposes of Bonds Confined to Specifications in Statute— Invalidity.—The purposes for which the bonds are to be issued and sold must be confined to those specified in the act of March 20, 1909. If bonds are to be issued and sold for purposes not contemplated by the statute, the invalidity of such bonds is conceded.</p> <p>Id.—Additional Words, “and Afford Better Facilities for Educating School Children”—Expression of Conclusion as to Effect. The additional words, after expressing the statutory purposes, “and afford better facilities for educating the school children within said school district,” is not to be construed as expressing an additional purpose for the issuance of the bonds, but rather as expressing a conclusion as to the effect of the issuance and sale of the bonds for the improvements and purposes specified in the statute, and as affording “better facilities” for that end.</p>

<p>Schools—Election to Issue Bonds fob School Purposes—Affording Better Facilities for School Children—Case Affirmed.—In an election for the issue of bonds for school purposes, it is held, on the authority of Santa Ana School District v. Talbert, ante, p. 104, [124 Pac. 872], that the expression, “to afford better facilities for the school children of said school district,” is not expressive of an additional purpose for the issuance of the bonds, but of a conclusion that the improvements and purposes specified in the statute would afford better facilities for that end.</p>

<p>APPEAL from a judgment of the Superior Court of Riverside County, and from an order denying a new trial. Paul J. McCormick, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>San Francisco Charter—• Construction—Petition of Electors to Supervisors to Acquire Utilities—Duty of Clerk to Verify Signatures—Means not Provided—Mandamus.—Though the charter of the city and county of San Francisco makes it the duty of the clerk of the board of supervisors to examine, verify and certify to the board the signatures of the requisite number of electors to a petition to said board for the acquisition of public utilities, yet where the signatures thereto are not verified by any signer, and no means are provided in the charter by which the clerk could ascertain or verify the signatures, or certify that the petition' contains the requisite number of genuine signatures of electors, he cannot be required to do so by a writ of mandate.</p> <p>Id.—Sufficient Defenses to Petition fob Writ—Denials—Separate Defenses.—Where the answer of the clerk of the board of supervisors to the petition for the writ of mandate, besides practically denying all the material allegations of the petition, also set forth as a separate defense the facts showing the impossibility of complying with the charter in ascertaining, verifying, and certifying the genuineness of the signatures to the petition of the electors for the acquisition of public utilities, and also further averred in justification of his refusal to certify to the genuineness of the signatures that the petition of the electors did not conform to the requirements of section 3 of article XII of the charter, such defenses, if sustained, are sufficient to defeat the writ.</p> <p>Id.—Judgment fob Respondent—Appeal — Presumptions—Evidence not Reviewable.—Where, after trial of the issues joined upon the petition for the writ, the judgment was against the petitioner and in favor of the clerk respondent, from which the petitioner appealed upon the judgment-roll and a bill of exceptions which does not purport to set out the evidence, and the findings state that the ease was tried and finally heard upon the pleadings “and testimony given at the trial,” it must be presumed that the findings speak the truth, and a statement in appellant’s brief that the evidence was stipulated must be disregarded; and "it must also be presumed that the evidence was sufficient to support the findings, and its insufficiency cannot be reviewed.</p> <p>Ed.—Limitation of Review upon Appeal—Sufficiency of Findings to Support Conclusions and Judgment.—It is held that, under the record before this court, its review is limited to the single question whether -the findings support the conclusions of law and the judgment based thereon; that though the court found for appellant as to preliminary matters in issue, such as the preparation and filing of the petition for acquiring utilities, with the requisite number of signers, yet its findings for respondent upon all of the vital issues in the ease constitute a sufficient basis for its conclusions of law and judgment for the respondent.</p> <p>Id.—Signatures of “Electors” to Petition for Utilities—Pleading —Petition for Mandate — Cause of Action — Finding—Fatal Failure of Proof.-—Since section 3 of article XII of the San Francisco charter requires that a petition for acquiring public utilities must be signed by the requisite number of “electors” of the city and county of San Francisco, if the petition for the writ of mandate had failed to allege that the petition to the board "of supervisors for such acquisition was signed by such “electors,” no cause of action would have been stated for the relief demanded. Although the petition for the writ did so state, yet the finding of the trial court that it was not in fact so signed established a failure of proof that was necessarily fatal to the action of plaintiffs for the writ; and the finding upon this issue alone was sufficient in itself to justify and support the judgment against the plaintiffs.</p> <p>Id.—Construction of Charter—Verifying Signatures to Distinct Petitions — Public Utilities—Submission of Ordinance—Distinct Modes.—The charter mode for verifying the signature to a petition by “electors” for the acquisition of public utilities under section 3 of article XII of the charter, which is imposed upon the clerk of the board of supervisors, without providing adequate means, is to be clearly distinguished from the mode of verifying the signatures to a petition for the submission of an ordinance under another provision of the charter, which are to be signed in different papers by “voters,”, each being bound to state “his street and number,” and each paper being required “to be verified by one of the signers thereof.” There is no such provision of any kind under section 3 of article XII of the charter, nor any requirement that the “electors” shall append to their signatures their “place of residence.”</p> <p>Id.—Distinction Between “Elector” and “Voter”—Effect of Statement in Petition to Acquire Utilities—Possibility of Verifying Signatures by Comparison—Matter of Opinion.—A citizen may be an “elector” without being a “voter.” If he is twenty-one years of age, and has resided in the state one year, in the county and precinct thirty days, he is an “elector.” In order to be a “voter” he must be a “registered elector.” If the petitioners seeking to acquire utilities had merely stated that they were “electors of the city and county,” omitting their places of residence, it would have been impossible for the clerk of the board of supervisors to verify their signatures. Where the only suggested means of verifying them is an unrequired statement in their petition that the signers are “registered electors,” if it ■ be assumed that they had the right to insert such statement, and that the clerk, by comparison of handwriting, might be able to form an opinion of the genuineness of the signatures, he could only be required to certify such “opinion.”</p> <p>Id.—Duty of Clerk as to Certification of Signatures Absolute.— The clerk, by section 3 of article XII of the charter, is required to certify that the signatures are in fact genuine, and the board of supervisors can act only “upon receiving a certificate from the clerk that the petition or petitions contain the required number of genuine signatures.” The clerk is not required to certify that the signers of the petition are electors of the city and county, but merely that their signatures are genuine.</p> <p>Id.—Duty of Clerk to Refuse Certification of Improper Petitions. Even if the clerk had the means at hand necessary for the performance of the task of verification and certification of the genuineness of the signatures, it was clearly Ms duty to refuse to do so, if the petitions themselves were not such as are prescribed by section 3 of article XU of the charter, and included improper subject matter thereunder, for the purchase only of existing utilities owned by corporations, together with their franchises.</p> <p>Id.—“Plans and Estimates of Cost”—Original Construction or Completion of Proposed Public Utility.—The plans and estimates of cost which the board of supervisors is directed to procure are those of original construction or completion by the city and county of a proposed public utility, and not those of the past construction or completion of existing utilities owned by any other corporation or person. The term “estimates” is not an appropriate expression to indicate the cost of past construction or completion. Under section 1 of article XII of the charter, the plans and estimates of cost to be procured from the board of public works are those of original construction by the county.</p> <p>Id.—Provisional Purchase of Existing Utility Based on Plans and Estimates.—Although there is provision by which the board may in the end submit a proposition for the purchase of an existing utility, yet the proceeding must be inaugurated by a petition for original construction and completion by the city and county, under plans and estimates properly procured, and the board may thereafter solicit oilers for the purchase of an existing utility such as is mentioned in the petition. If the price demanded is too high, the board must proceed to formulate propositions according to its plans.</p> <p>Id.—Purchase of Franchises not Allowed.—There is no provision of the charter which authorizes the acquisition of franchises of a corporation by the city and county. If it should acquire the physical properties of the proposed corporations, it would not need to purchase their franchises in order to operate them. The plans and estimates furnished by the city engineer could not possibly include an estimate of the cost of the franchises.</p> <p>Id.—Sufficient Seasons for Denying Writ of Mandate.—It is held that the reasons are amply sufficient to justify the action of the trial court in denying and dismissing the petition for the writ of mandate.</p> <p>Id.—Matter Properly Stricken from Petition — Opinion of City Attorney.—The court did not err in striking from the petition as irrelevant matter an opinion given by the city and county attorney, at the request of the board of supervisors, which could serve no useful purpose in the petition, and was neither binding upon such attorney or upon the clerk respondent, whom he represents in this proceeding, or upon the court, which struck it out.</p>

<p>Justice’s Court—Consolidated Trial of Actions—Separate Verdicts' —Aggregate Excess Immaterial.—Where, for convenience, two actions were by stipulation consolidated for the purpose of trial, and separate verdicts were rendered, each for less than $300, the fact that the verdict also specifies the aggregate amount found due in the two actions in excess of the jurisdictional sum does not render the verdicts uncertain or in excess of jurisdiction.</p> <p>Id.—Writ of Review—Want of Jurisdiction —Absence of Remedy by Appeal.—Want of jurisdiction alone is not a ground for a writ of review, if there be an adequate remedy by appeal to the superior court, as appears in the present case as respects the aggregate verdict.</p>

<p>Corporations—Absence op Capital Stock—Code Liability op Members jtor Debts—Voluntary Payment op Excess—Nonliability op Corporation.—Where a corporation has no capital stock, the liability of its members for its debts is fixed by section 322 of the • Civil Code by equal distribution between them. Where one member pays any part of the debts of such corporation in excess of his share, such excessive payment is purely voluntary, and imposes no obligation upon the corporation to reimburse such member for any part of the amount so contributed, in the absence of any contractual obligation to that effect.</p>

<p>Valid Homestead—Declaration bt Wipe—Water Eights Appurtenant—Void Deed by Husband.—Where it is found that the wife declared a valid homestead upon certain lots occupied by the husband and wife, including certain shares of water used in connection therewith and appurtenant thereto, it follows that the deed of the husband for one-half of such homestead property and one-half of such water rights to a third person is not only inoperative and ineffectual as a conveyance of any part of the lots described in the declaration of homestead, but is likewise inoperative and ineffectual as a conveyance of any part of the shares of water represented thereby and appurtenant thereto.</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, and from an order denying a new trial. George H. Hutton, Judge.</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, and from an order denying a new trial. W. M. Conley,. Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Mateo County dismissing a petition for a writ of mandate. M. T. Dooling, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Cruz County, and from an order denying a new trial. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Contract to Sell Land—Rescission by Vendor for Default in Payments—Consent of Vendee—Recovery Back of Payments— Damage for Breach not Recouped.—Where the vendor in a contract for the sale of land elects to rescind the contract, and with the consent of the vendee does actually rescind because of the vendee’s default in the prescribed payments, if the vendor does not seek to recoup any actual damage for the breach of the contract, the vendee may recover back all of the purchase money paid under the contract. Upon the vendee’s breach, followed by a mutual agreement of abandonment and rescission of the contract, the vendee is entitled to a repayment of his money.</p> <p>Id.—Admission of Pleadings—Mutual Rescission—Date Immaterial —Stipulated Facts—Possession of Vendor—Right of Plaintiffs to Judgment.—Where the complaint alleged a mutual rescission on a certain date, and defendant merely denied a mutual rescission on that date, and alleged a rescission by himself for default in payment on a different date, the date of the mutual rescission is of little or no importance, and the plaintiff was entitled to judgment upon the pleadings for the purchase money paid. And where, also, the stipulated facts based upon the pleadings conclusively show that the rescission was by mutual consent, and that thereafter the vendor assumed possession and control of the property which was the subject matter of the contract, the right of plaintiffs to- judgment for the return of the purchase money paid is fully, established. ...</p> <p>Id.—Alternative Remedies of Vendor for Breach of Covenant of Vendee to Pat.—The remedies to which a vendor, in a contract for the sale of land, may resort, in the event of the vendee’s breach of the covenant to pay, are that he “may (1) Stand upon the terms of his contract, and sue for its breach; (2) Still resting upon the contract, he may remain inactive, yet retain to his own use the moneys paid by the vendee; (3) Going into equity, still upon his contract, he may seek specific performance; (4) Or, finally, if his generosity prompts him so to do, he may agree with his vendee for a mutual abandonment and rescission, in which last case alone the vendee in default would be entitled to a repayment of his money.”</p>

<p>Appeal from Judgment—Bill of Exceptions—Belief from Default— Erroneous Assumption as to Order—Want of Prudence—Second Default—Belief Denied—Discretion not Abused.—Where upon an appeal from the judgment appellant failed to serve his bill of exceptions within time, and upon application under section 473 of the Code of Civil Procedure the court expressly allowed a new bill of exceptions to be proposed and served, and fixed the time for amendments thereto, but the appellant, imprudently relying upon a stipulation with respondent, which was superseded by such order, suffered another default, it is held that it cannot be said that it was an abuse of discretion to deny relief from such second default, there being no excusable neglect or mistake, in noncompliance with the first order granting relief, which it was his duty to observe.</p> <p>Id.—Bule as to Beview of Discretionary Power.—The rule is well settled that where the trial court has discretionary power in proceedings before it of the present character, its exercise will not be disturbed, unless a clear abuse of discretion is made to appear; and even when the correctness of the ruling may be doubted, the appellate court will not substitute its own opinion, and thereby divest the trial court of the discretionary power reposed in it.</p> <p>Id.—Absence of Bill of Exceptions Showing Ground for Belief —Affirmance of Judgment and Order Appealed from.—There being no proper bill of exceptions that can be considered upon the appeal from the judgment, and the bill of exceptions settled upon appeal from the order refusing to vacate a second default in the settlement of a bill of exceptions for use on appeal from the judgment showing no ground of appeal from sueh order, both the judgment and the order appealed from must he affirmed.</p>

<p>Proceeding to Determine Interest op Husband in Community Property in Name op Deceased Wipe—Contest by Wipe’s Sister— Question op Pact—Review upon Appeal.—In a proceeding taken by a- surviving husband, under section 1723 of the Code of Civil Procedure, to determine his interest in community real estate held in the name of the deceased wife, and bought with community funds, in which Ms claim was contested by a sister of the deceased wife, as being her separate estate, in the interest of the heirs, and the court found and adjudged that the property was community property and was bought in the wife’s name with community funds, and was not given by the husband to the wife, and adjudged that the entire property vested in the surviving husband, it is held upon appeal that whether or not the conveyance was a-gift to the wife was a question of fact to be determined by the trial court, upon the evidence, and its conclusion, if not manifestly without sufficient support, should not be disturbed upon appeal.</p> <p>Id.—Presumption op Separate Property in Wife—Rule of Evidence —Burden op Proof Sustained.—When property is conveyed to a married woman by an instrument in writing, the presumption is that the title is thereby vested in her as her separate property under section 164 of the Civil Code; but this is a mere rule of evidence fixing the onus proiandi in cases where the question of ownership is in litigation. Neither the wife nor her representative is bound to prove that the conveyance was a gift; but it devolves upon the husband to overcome the presumption by showing that it was not a gift. It is held that such burden was sufficiently sustained by the evidence of the husband that it was the intention to provide a home for both and not to give her the property, which, in the absence .of any inconsistent testimony, is sufficient to support the conclusion of the trial court.</p> <p>Id..—Policy of Daw—Province of Legislature.—The policy of permitting the presumption arising from a conveyance of real estate purchased with community funds to a married woman to be overthrown after the wife’s death by evidence of an undisclosed intent on the part of the husband that it was not the subject of a gift, may well be questioned. It is the province of the legislature, however, and not of the courts, to determine questions of policy.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. George E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>' Sale op Capital Stock op Corporation—Reservation op Control op Pending Suit by Vendor—Mandamus by Corporation to Compel Substitution op Attorneys not Allowable.—Where the owner of all the stock of a corporation, who has been prosecuting a suit in its name, contracted to sell all of its capital stock to a third party, expressly reserving the right to prosecute and control the pending action for the vendor’s benefit, at his sole cost, and agreeing to relieve the vendee of all cost in relation thereto, the right to continue the control of such action passed by such reservation to the vendor, and the vendee is not entitled in the name of the corporation to a mandamus to compel the substitution of attorneys to control the action as against the vendor.</p> <p>Id.—Vested Right Under Code to Control Action—Absence op Further Interest or Right op Adverse Control.—One who by contract acquires a vested right to control a pending action is entitled, under section 385 of the Code of Civil Procedure, either to continue the action in the name of the original party, or the court may allow the person in whom the right is vested to be substituted in the action or proceeding. It appearing that under the contract in question the right was vested to continue the control of the action as against the corporation, or the owners of its stock, the corporation, as such, had no further interest in the litigation and no right to interfere with its control.</p>

<p>Action Against Sheriff for Conversion of Wife’s Fund for Debt of Husband—Support of Finding for Plaintiff.—In action by a wife for the wrongful conversion of a fund! claimed as her separate property, for the debt of the husband, contracted before marriage, the finding of the court in favor of the plaintiff is sufficiently supported by evidence tending to show that the fund converted was the product of a grocery business, purchased with her separate means, inherited from an aunt, and that her husband had no estate of his own, but merely held her general power of attorney to transact business for her, and that all dealings by him were upon her account and credit.</p> <p>Id.—Conflicting Evidence—Province of Trial Court.—While there may have been evidence and proof of circumstances inconsistent with the testimony of plaintiff and her husband, nevertheless it was for the trial court to weigh and determine the same, and its finding based thereon will not be disturbed. Though, in a ease of this nature, a finding that property is the separate estate of the wife should be based upon clear and .convincing evidence, the question as to whether or not the evidence offered is clear and convincing is for the trial court.</p> <p>Id.—Plaintiff not Estopped from Claiming Fund as Against Old Debt of Husband—Separate Property not Transmuted.—It is held that the record shows no facts which could estop the plaintiff from claiming the fund as her own as against a debt contracted by the husband before the marriage, or tending to show any act on her part whereby she transmuted her separate estate into community property, but that the execution of a general power of attorney to the husband is inconsistent with an intent to transmute her separate estate in such fund into community property.</p> <p>Id.—Presumption from Married Woman Engaging in Business Overcome.—Any presumption as to the character of the property arising from the fact of a married woman engaging in business is held to be overcome by the fact that the business was purchased with the funds and the rents, issues and profits derived from moneys owned by the wife before marriage or acquired afterward by gift or bequest.</p> <p>Id.—Joining of Husband in Conduct of Business—Absence of Agreement for Interest in Wife’s Property.—Neither the fact that the husband contributed all his time and skill in the conduct of the business owned by the wife nor that he joined his wife in the execution of notes given for money wherewith to make the purchase (assuming that he did), in the absence of any agreement to that effect, gave him any interest in the wife’s property.</p> <p>Id.—Evidence—Exclusion of Depositions—Error not Shown in Record not Reviewable.—Where depositions were offered in evidence and excluded upon objection, but the, depositions are not incorporated in the bill of exceptions, and the record shows no error in the ruling, any alleged error in the ruling cannot be reviewed.</p> <p>Id.—Testimony of Officials of Bank—Credit Given to Plaintiff.— Officials of the bank which made loans to the plaintiff were properly permitted to testify that in making said loans they recognized the plaintiff as the party borrowing the money and extended the credit to her alone. There was no prejudicial error in this ruling, particularly as it was shown that she was the only member of the marital community who possessed any estate.</p>

Prank G. Pinlayson, Judge. The facts are stated in the petition for the writ, and are stated generally in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Geo., H. Cabaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>' APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action to Becover Deposit—Sale of Cattle—Unverified Complaint —General Denial—Burden of Proof—Defense of First Breach —Befusal to Accept Cattle—Proof Without Pleading.—In an action to recover a deposit made by plaintiff’s assignor on the sale of cattle to be made by defendant, where the complaint is unverified, and the answer is a general denial of every allegation of the complaint, the burden is upon the plaintiff to prove such allegations, and the defendant may show under the general issue that plaintiff’s assignor first broke the contract by refusing to accept the cattle tendered by defendant in compliance therewith, and he is not required to plead such defense nor to seek damages by way of cross-complaint for such first breach.</p> <p>Id.—Findings Supporting Judgment—Nature of Obligation Immaterial.—Where the trial court found upon sufficient evidence that plaintiff’s assignor first broke the contract without fault or failure of the defendant, it follows that no cause of action existed for the return of the deposit made thereunder, and the findings in favor of the defendant were sufficient to support the judgment in his favor; and no further inquiry is needed as to the nature of the defendant’s obligation to supply the cattle or as to the proper evidence to prove the same.</p>

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

<p>APPLICATION for writ of habeas corpus to the sheriff of Merced- County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Summons—Publication—Obvious Mistake of Notary as to Date of Jurat to Affidavit—Becitals—Affidavit and Order not Vitiated.—An order for the publication of summons, based upon affidavit, the jurat to which is dated one month prior to the order, is not void where the recitals of the affidavit show the return of the original summons, at a date one month later than the date of the jurat; that an order for an alias summons was issued; that the same could not be served upon the defendant against whom the publication is asked, and sets forth facts sufficient to justify the order for publication of summons, which recited that the affidavit was presented when the order was made. 'It is clear that the date appearing in the jurat was obviously a mistake, which did not ' vitiate either the affidavit or the order.</p> <p>Id.—Code Requirement as to Jurat—Object and Purpose of Signature of Officer.—Section 412 of the Code of Civil Procedure does not provide in terms that the date of the affidavit should be disclosed therein, but indicates clearly that it must be presented and verified at the time of the application for, the order. The primary object and purpose of the signature of the officer to the jurat is to witness the signature of the aifiant to the affidavit.</p> <p>Id.—Attachment Sought Against Wife’s Separate Estate—Publication of Summons Against Husband.-—Although an attachment is sought against the wife’s separate estate, jurisdiction of the husband as a eodefendant may be obtained by publication of summons against him where he cannot be personally served therewith.</p> <p>Id.—Construction of Code as to Alias Summons—Mode of Service not Referred to.—-Section 408 of the Code of Civil Procedure, as to the time when an alias summons may be issued, has no reference to the mode Of service thereof, where parties are brought in by order of the court, or by stipulation of the parties, under section 389 of the Code of Civil Procedure, and does not preclude service by publication.</p>

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

- APPEAL from a judgment of the Superior Court of the City and County of San Francisco denying an application for a writ of mandate. Geo. A. Sturtevant, Judge. The facts are stated in the opinion of the court.

<p>Appeal—Order Denying Motion to Vacate Judgment as not Supported by Findings,—An order made after final judgment denying a motion made under sections 663 and 663a of the Code of Civil Procedure to vacate and set aside the judgment, as not supported by the findings, is appealable under the provisions of section 963 of the Code of Civil Procedure.</p> <p>Id.—Appellant Sued Alone as Married Woman fob Conversion— Proper Plea in Abatement—Finding—Erroneous Judgment.— Where the appellant was sued alone as a married woman for the alleged conversion of a fund, and properly pleaded in abatement that she was a married woman not living separate and apart from her husband, and that her husband had not been made a party to the action, and the court found this averment to be true, it erred in rendering judgment for the plaintiff as prayed for. Such finding necessarily defeats plaintiff’s right to recover against the defendant in the action. .</p> <p>Id,—Error in Denying Appellant’s Motion to Vacate Erroneous Judgment.—The court erred in denying appellant’s motion to vacate the erroneous judgment for plaintiff rendered" contrary to the facts found; and the order denying such motion must he reversed, with directions to grant such motion.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Conveyance op Whole Property Consisting op Beal Estate—Consideration op Future Support—Legal Eppect—Use op Grantor— Execution por Prior Debt.—The legal effect of a conveyance of the whole property of the grantor, consisting of real estate of the value of $5,000, to the plaintiff, in consideration of an agreement on the part of the plaintiff to keep, maintain and care for the grantor dur-, ing her lifetime, was transfer the property to the use of the grantor, who, having no other property out of which a judgment subsequently rendered against her for a debt subsisting against her when the deed was made, had an interest in the property, in so far as it exceeds the support already given, which is subject to an execution for such prior debt.</p> <p>Id.—Transper Presumptively Fraudulent Against Existing Creditors.—As against existing creditors, no one can transfer all of his property in consideration of future support, so as to defeat any such creditor in enforcing his claim; but under such circumstances the law presumes the act to be done with fraudulent intent to hinder and delay the creditor in the collection of his debt.</p> <p>Id.—Eppect and Nature op Estoppel—Essential Elements.—The effect of an estoppel, since it denies an owner’s right to assert his claim, is to transfer his property to another, Hence, in order to justify a court of equity in decreeing an estoppel, there must not only be some degree of turpitude in his conduct, but it must appear, "first, that the party making the admission by his declarations or conduct, was apprised of the true state of his own title; second, that he made the admission with the express intention to deceive, or with such carelessness and culpable negligence as to amount to constructive fraud; third, that the other party was not only destitute of all knowledge of the true state of the title, but of the means of acquiring such knowledge; and fourth, that he relied strictly upon such admission, and will be injured by allowing it to be disproved.”</p> <p>Id.—Findings not Sustaining Claim op Estoppel op Creditor.— Measured by the equitable rule of estoppel, the findings disclose no facts upon which to predicate the claim that defendant is estopped from enforcing the collection of his prior debt against the property transferred for the support of plaintiff. The facts found show no degree of turpitude in the defendant’s conduct. As matter of law, plaintiff is presumed to have known that the .conveyance was fraudulent as to existing creditors, and it was Ms duty to inquire and ascertain whether there were existing creditors; nor is it made to appear that defendant knew that his debtor was divesting herself of all her estate. The findings show that plaintiff did not rely upon defendant’s silence, but upon the validity of the deed, and he cannot be held to have relied upon the doctrine of estoppel.</p>

<p>Corporations—Sales op Stock by Agents—Agreed Shares op Stock— . Fulfillment op Contract—Findings—Estoppel to Claim Rescission.—Where the intervenor appellant entered into a contract with the plaintiff and defendant respondents to employ them as agents to promote sales of stock in a corporation organized to promote an invention of the intervenor, which they successfully did, for which he agreed to give them one hundred thousand shares of stock held in escrow, and the question whether they had fulfilled their agreement was determined affirmatively by the trial court in its findings,based upon sufficient evidence, and it appearing that the appellant was estopped by his conduct from claiming that the contract was not fulfilled, he is not entitled to claim a rescission thereof on that alleged ground, in an action to enforce delivery by plaintiff of the one-half of the shares owned by him.</p> <p>Id.—Delivery op Shares to Co-owner—New Escrow for Furthep. Consideration for Limited Period—Plaintiff not Bound.—Where the intervenor delivered the one hundred thousand shares to the plaintiff’s co-owner, who, in consideration of additional shares to be paid, consented to a further escrow of the one hundred thousand shares for a limited period, which was then to be delivered at all events, the plaintiff is not bound by such further escrow, though the intervenor is estopped thereby to claim any rescission of the one hundred thousand shares so delivered, and the plaintiff is entitled, when not claiming any share of the further consideration, to enforce immediate delivery of his share of said stock.</p> <p>Id.—Claim of Partnership of Agents—Pull Settlement—Each Entitled to One-half of Stock.—Where the intervenor claimed that the plaintiff was bound by .the second escrow agreement as a copartner, it is held that all claims of such partnership had been fully settled, and it was agreed between them that each should own one-half of the shares of stock earned, and the plaintiff was entitled in his own right, therefore, to have one-half of the stock delivered to him.</p> <p>Id.—Intervenor not E’ntitled to Object That the Judgment is Ineffectual as to Other Parties.-—-It is held that the intervenor is not entitled to complain that the judgment for the plaintiff is ineffectual or imperfect in its relation to other parties. It is sufficient that the judgment as to him is in plain terms and sufficiently explicit to enable plaintiff to exact performance from him thereunder.</p>

<p>Action on Note—Cross-complaint—Demurrer Pending—Want of Answer—Trial and Verdict for Plaintiff—Objection upon Appeal not Permitted,—In an action upon a note, the execution of which was admitted, where a cross-complaint reiterated a defense set forth in the answer, that the note was given in renewal of a note for which security was pledged, so that upon default the security should be treated as payment, and that the note sued upon was without consideration, and which sought further to reform a certificate given by defendant to plaintiff that the first note was secured, so as to correspond with such defense, to which cross-complaint plaintiff demurred, which demurrer was pending when both parties went to trial by jury, treating the cross-complaint as in issue, and the verdict was for plaintiff, who was not in default upon the cross-complaint, under the circumstances, defendant will not be permitted to object upon appeal for the first time that the cross-complaint was not answered.</p> <p>Id.—Settled Rule as to Waiver op Formal Answer.—The rule is well established that, where both parties treat an affirmative defense as denied, the want of a formal answer thereto will be deemed waived.</p> <p>Id.—Proper Exclusion op Letter prom Respondent Bank.—The court properly excluded from evidence a letter of the respondent bank, wherein it was stated that it held certain personal property as collateral security for the payment of the note, where the record discloses no theory upon which the statement could be deemed material or competent evidence.</p>

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

<p>Pleading—Complaint Showing Misjoinder of Causes of Action and of Parties—Demurrers Properly Sustained—Proper Judgment. Where a complaint improperly joined several distinct and independent causes of action, and misjoined numerous parties defendant, against many of whom no cause of action was stated, and demurrers, both general and special, were properly sustained, and plaintiff preferred to stand upon his complaint, without amendment, the trial court properly entered judgment for the defendants, and the judgment must be affirmed upon plaintiff’s appeal therefrom.</p>

<p>Wills—Sale of Land Under Power Without Notice—Confirmation —Long Delay by Heir—Plea of Want of Knowledge—Statute of Limitations.—A private sale of real estate under a power given by the will to the executors made without notice, which was reported to and confirmed by the probate court, is not subject to collateral attack, as against the purchaser by an heir, made thirty-three years after the confirmation and nearly twenty years after such heir had ceased to be a minor. A plea of want of actual knowledge of the sale until three years before the commencement of the action cannot justify the long delay of the heir in bringing the action. The statute of limitations embodied in sections 343 and 1573 of the Code of Civil Procedure had long run in favor of the purchaser at such sale before such attack.</p> <p>Id.—Burden upon Heir to Excuse Ignorance of Proceedings in Father’s Estate—Public Becords—Legal Duty to Inquire—Protection from Bar of Statute Disallowed.—The burden is upon the heir to excuse ignorance of the proceedings in the father’s estate which were matters of public record; and it was the heir’s legal duty, at least after attaining majority, to inquire concerning them, which inquiry would have resulted in the discovery that the property was sold for its full value by the executors and was confirmed by the court; and where, with full means of knowledge of all the facts, the heir delayed nearly twenty years after reaching majority before commencing suit, no court, with proper regard for vested interests, should allow the want of actual knowledge by the heir of the adverse claims to operate, under such circumstances, to protect the heir from the bar of the statute.</p> <p>Id.—Bar of Statute Applicable to Void or Voidable Sales.—The bar of the statute is held to be equally applicable to void sales as well as voidable sales made and confirmed by order of the probate court.</p> <p>Id.—Question as to Validity of Executor’s Sale Without Notice Concluded by Decree of Confirmation—Construction of Will.— The question whether the executors, by reason of the private sale made by them under the will, without notice, did or did not exercise the power conferred upon them by the will, was determined by the court in its solemn decree of confirmation as having been made according to the provisions of the will; and it cannot be litigated again in this collateral proceeding by the heir. The court had jurisdiction to determine that such sale was valid under the terms of the will; and its construction of the will is no longer open to question. Id.—Time of Testing Validity of Sale Immaterial—Sale not- Collaterally Impeachable for Mere Irregularities.—If the sale is to be tested as of the time of making it, the statute then expressly provided that when authority is given by the will to sell property, it may be sold by the executor at public or private sale and without notice, as the executor may determine, subject to confirmation by the court. If it be tested as of the time of the death of the testator, it only required notice, unless the will otherwise provides, and it is held that under a reasonable construction of its language it did otherwise provide. It is also sustained-by respectable authorities that want of notice of the sale is a mere irregularity which may render the sale directly voidable, but not collaterally impeachable.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.</p> <p>The facts are similar to those stated in the opinion of the court in Bagley v. Bloom, ante, p. 255.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco: J. M. Seawell, Judge. •</p> <p>The facts are similar to those stated in the opinion of the court in jBagley v. Bloom, ante, p. 255.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J ames M. Seawell, Judge.</p> <p>The facts are similar to those stated in the opinion of the court in Bagley v. Bloom, ante, p. 255.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.</p> <p>The facts are similar to those stated in the opinion of the court in Bagley v. Bloom, ante, p. 255.</p>

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

<p>Criminal Law—Grand Larceny—Distinction from Obtaining Money by False Pretenses—Proper Instructions—Possession and Title.—In a prosecution for grand larceny, where the defendant claimed that the offense was that of obtaining money by false pretenses, the court properly instructed the jury that: “The distinction which the law makes between larceny and obtaining money by false pretenses turns on the question of title. If, when the taking is consummated by the use of trick, artifice or device, the complaining witness, being deceived by the acts or representations of the defendant, parts not only with the possession but also with the title to his property, the offense is that of obtaining money by false pretenses; but if the complaining witness only parted with the possession of his property, and not with the title, the offense is larceny.”</p> <p>Id.—Burden of Proof as to Offense Charged—Acquittal.—The court also properly instructed the jury that, “The burden is upon the prosecution in this ease to prove the offense charged, and if the prosecution fails to prove the crime of larceny, even though the evidence may tend to prove some other offense, you must find the defendant not guilty.”</p> <p>Id.—Correctness of Instructions Given—Bequests Properly Be-fused.—It is held that the jury were fully and correctly instructed upon every phase of the case necessary for their enlightenment, and that no error was committed in refusing certain instructions proposed by the defendant.</p> <p>Id.—Verdict of Conviction of Grand Larceny Supported by Evidence. It is held that the verdict of conviction of the crime of grand larceny by the defendant finds sufficient support in the evidence, and that it was a reasonable inference from all the facts, as implied in the verdict, that the complaining witness did not intend, at the time of the transaction, to vest in the defendant the title to the money in question, and that it was the defendant’s purpose at all times to obtain the possession of the money by trick and device, and afterward to appropriate it to his own use.</p>

<p>Action of Claim and Delivery for Piano Against Common Carrier— Finding and Judgment for Plaintiff.—Where a common carrier, after storing plaintiff's goods, agreed to transport and deliver them "to and within plaintiff’s dwelling-house,” whereupon all charges would he paid by plaintiff, and all goods were delivered, with the exception of a piano, which was withheld until all charges should be paid, which defendant fully promised, and was ready and willing, to pay. upon delivery of the piano as agreed, and tendered full payment upon that condition, in an action of claim and delivery by the plaintiff for such piano, the trial court properly found that the defendant was not entitled to be paid until the piano was placed within the house pursuant to the contract, and properly rendered judgment in favor of the plaintiff in such action.</p> <p>Id.—Carrier’s Lien not Lost by Delivering Piano in Case of Nonpayment.—By fully performing its contract to place the piano in the defendant’s house, at which time all of its charges were to be paid, its lien would not be lost, in ease of breach of contract on the part of the plaintiff by nonpayment upon such delivery, and in such case the defendant could maintain an action of claim and delivery for the piano, for the preservation of its lien thereupon.</p> <p>Id.—Counsel Fees not Paid by Plaintiff not Recoverable in Action for Claim and Delivery.—Counsel fees not paid by the plaintiff are not recoverable as damages in an action of claim and delivery, even if they could be recovered as damages in any such action. No unpaid fees can support a finding of money expended in pursuit of the property.</p>

<p>Action by Heirs to Set Aside Deed of Aged Uncle—Mental Unsoundness—Undue Influence—Support of Findings—Conflicting Evidence—Province of Trial Court.—In an action by the heirs at law of an aged uncle to set aside a deed made by him to the defendant while he was of unsound mind and acting under the undue influence of the defendant, in which the findings and judgment were for the plaintiffs, it is held that there is competent evidence to sustain each and every finding against the validity of the deed, notwithstanding conflicting evidence to the contrary. It was the province of the trial court to weigh the conflicting testimony; and the appellate court cannot substitute its judgment upon the evidence for that of the trial court.</p> <p>Id.—Declarations of Deceased Admissible as Bearing on Mental Unsoundness—Undue Influence to be Otherwise Proved.—The court properly admitted declarations of the deceased, so far as bearing upon the issue of his mental unsoundness; but such declarations can- have no bearing upon the question of undue influence, which must be established by- other evidence than the declarations.</p> <p>Id.—Opinion Evidence of Intimate Acquaintance as to Mental Unsoundness.—The court properly permitted one shown to have long been a familiar and intimate acquaintance of the deceased to testify as to his opinion of the mental unsoundness of the deceased for months preceding the execution of the deed and on the days preceding and succeeding such execution, where such opinion was followed by a statement of facts upon which it was based.</p> <p>Id.—Motion for New Trial—Newly Discovered Evidence—Discretion of Trial Court.—Where a motion for a new trial was made upon newly discovered evidence, under the rule that it should be of such a character as to render a different result probable upon a new trial, such question is one to be determined by the trial court in the exercise of a discretionary power, which will not be interfered with except when manifest abuse is apparent, which does not appear when it cannot be said that “it is clear that the proposed evidence would render a different result probable.”</p>

<p>Criminal Law—Bare—Charge op Crime in Two Counts—Mingling of Age of Nonconsent and Force—Exclusive" Charge of Force— Effect of Verdict.—Where an information for rape charges the crime in two counts, in the first of which it is charged both that the female was under the age of consent, and also that it was committed by means of force and violence, and against her will and consent, and a second count, without mention of age, solely charges that, in the same transaction upon which the first count was founded, the de- ■ fendant committed the rape charged by means of force and violence, and against the will and consent of the prosecutrix, and the verdict of guilty was based upon the first count, it does not operate as an acquittal upon the second count, notwithstanding the claim of defendant that the age of nonconsent was not sufficiently proved.</p> <p>Id.—Claim of Insufficient Proof of Age of Nongonsent Addressed to Weight of Evidence and Credibility of Witness.—The claim of defendant’s counsel that there was insufficient proof that the prosecutrix was under the age of consent when the crime was committed is hut an argument directed against the weight of the evidence and the credibility of the witnesses, there being some evidence, however weak, which tended to show that the female was under the age of sixteen years at the time of the assault. The weight of ■evidence and credibility of the witnesses is ordinarily, after the verdict has been rendered, solely for determination by the trial judge in passing upon a motion for new trial</p> <p>Id.—Proper Union of Averments in First Count.—The allegation that the crime was committed with a female under the age of consent was not inconsistent with the allegation that it was committed by force and violence and against the will and consent of the prosecutrix. Both allegations were properly united in the first count of the information, and therefore the second count was a needless repetition, which might well have been omitted altogether.</p> <p>Id.—Sufficiency of Proof Under First Count—Nonlimitation to Proof of Age of Nongonsent.—Under the facts alleged in the first count of the information, the prosecution was not limited merely to proof of the age of the prosecutrix; hut the evidence under the whole case, which tended to show that the crime 'was committed by force and violenée, as alleged in the first count as well as the second, may be considered in support of the verdict, which is amply sufficient to support it, irrespective of the age of the prosecutrix.</p> <p>Id.—Identification of Letter to Defendant not Prejudicial.—The district attorney was within his rights in seeking to have a letter identified which defendant had received from the father of the complaining witness a few days before the trial, and to have it marked for identification for future use, if necessary. Where it was not introduced in evidence, its identification could not have prejudiced the defendant.</p> <p>Id.—Evidence-—Exhibition to Jury of Torn Undergarments Worn at Time of Assault—Absence of Prejudice.—Where the prosecuting witness was permitted, without objection, to identify the undergarments worn by her at the time of the assault, and to state the manner in which they were torn from her body by defendant, and they were produced in court in the same condition as they were immediately after the crime was committed, which would have been a sufficient foundation for allowing them in evidence, the fact that they were exhibited to the jury over defendant’s objection, without formally offering them in evidence, worked no injury to the defendant.</p> <p>Id.—Motion for New Trial—New Evidence as to Age of Prosecutrix—Insufficient Showing—Immaterial Evidence.-—A motion for a new trial based on the ground of newly discovered evidence that the prosecutrix was beyond the age of noneonsent, which is cumulative, and without any showing that with reasonable or any diligence it could not have been produced at the trial, cannot justify a new trial, especially as the age of the defendant is wholly immaterial, in view of the fact that the verdict is sufficiently based upon the allegation and proof of force and violence used against the prosecutrix.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. Wm. S. Wells, Judge.'</p> <p>The facts are stated in the opinion of the court.</p>

<p>Complaint to Recover Purchase Price op Stock—Sufficiency of Pleading—Written Contract or Contents not Pleaded—Cause op Action.—Though a complaint in an action to recover the purchase price of corporate stock neither specifically alleges that the contract was in writing, nor sets out its contents in haee verba, yet where it alleges that the defendants promised and agreed to purchase said stock from plaintiff for the sum of $1,000, “after one year from February 11th, 1905,” in the event that plaintiff desired to sell the same; that on February 11, 1906, plaintiff notified defendants that he desired to sell the stock at the price stated, and thereupon tendered the stock, duly indorsed for transfer, to the defendants, but that they refused to purchase or pay for the same as agreed, notwithstanding plaintiff had kept and performed all of the conditions required of him by the contract, it states a cause of action, and a demurrer thereto was improperly sustained.</p> <p>Id.—Contract Within Statute op Frauds—Consideration—Presump- . r tions op Law not Required to be Pleaded.—Though the contract alleged was within the statute of frauds, and was required to be in writing, yet presumptions of law are not required to be pleaded; and in the present case the presumption that the contract was in writing necessarily followed from the allegation that it was made, and it follows that the written contract carries with it the presumption of a consideration, as matter of law; and the burden is cast upon the defendant to show the contrary, to avoid the contract. It was not necessary to a good complaint that the consideration of the contract should be alleged.</p> <p>Id.—Complaint not Based upon Specific Performance—Theory of Complaint—Option to Sell Stock—Vesting of Title—Recovery of Purchase Price.—The complaint is not based upon specific performance of a contract to sell personal property, and contains none of the essentials of such an action; but it proceeds upon the theory that the contract for the sale of the stock was fully executed upon the exercise of the option to sell, and that when the stock, duly indorsed for transfer, was tendered to the defendants, title to the same at once became vested in them, and upon their refusal to pay, the plaintiff, electing to consider the stock as sold, was entitled to recover the purchase price thereof.</p> <p>Id.—Alternative Remedies of Vendor of Personal Property.—Ordinarily, the vendor of personal property, upon the refusal of the vendee to take the property, may resort to one of three remedies, viz.: (1) Standing on the sale the vendor may retain the property for the vendee, and sue for the purchase price; (2) Acting as the agent of the vendee, the vendor may resell the property, and then sue to recover the difference between the contract price and the price obtained on the resale; or (3) The vendor may treat and keep the property as his own, and recover the difference between the contract price and the market price at the time and place of delivery.</p> <p>Id.—Option to Purchase a Unilateral Contract—Transforming Effect of Mutual Exercise of Option.—Though the offer to purchase corporate stock was at its inception a mere offer to purchase, and therefore unilateral and lacking in mutuality, nevertheless, when, as alleged, the plaintiff promptly, upon the expiration of the time specified in the contract, exercised his option to sell, by an acceptance of the offer to purchase, and then made an immediate tender of the stock duly indorsed for transfer, the original contract was thereupon transformed from a mere offer to purchase into an absolute unconditional contract of purchase and sale.</p> <p>Id.—Title to Stock Transferred Under Code Provisions.-—The complaint is sufficient to show that the title to the stock was transferred to the defendants, and vested in them, as contemplated by the provisions of section 1411 of the Civil Code, under which an offer to perform an executory contract for the purchase and sale of personal property is tantamount to performance, and vests the title to the thing sold in the vendee. Under that section, the title to personal property is transferred, under an executory contract for the sale thereof, when the seller prepares the thing sold for delivery, and offers it to the buyer with the intent to transfer the title thereto to the buyer, which is clearly shown by the complaint in this case, which states a cause of action for the purchase price.</p>

<p>Contract op Mother With Son—Conveyance op Interest in Land— Return of Same at Death—Will—Revocation—Second Will to Daughters—Valid Contract—Relief in Equity.—Where a mother, in consideration of the conveyance to her at her request of her son’s one-tenth interest in his deceased father’s land, and also of the interest of her daughters in the same land, for her better maintenance during her life, agreed to return to each of them one-tenth interest in the property at death, and then made a will accordingly, which she afterward revoked, and willed all of the father’s land to her daughters, and died, having made no other disposition of the land during life, her contract with the son was neither uncertain nor invalid, and being wholly concerning land, the jurisdiction in equity to enforce the same as against the daughters, to the extent of his interest in the land, is well established.</p> <p>Id.—Nature of Interest of Daughters in Son’s Estate—Resulting Trust—Relief in Equity—Statute of Limitations—Four Years. Under the terms of the contract, and of the last will of the mother solely to the daughters, their interest in the land, which was to be returned to the son at his mother’s death, is impressed with the qualities of a resulting trust in their hands in favor of the son, which may be enforced in equity against them in favor of the son at any time within four years after the mother’s death.</p> <p>Id.—Oral Contract Prior to Code Amendments Valid.—Since the oral contract to return the interest in the land to the son at the mother’s death was made before the amendments to' sections 1624 of the Civil Code and 1973 of the Code of Civil Procedure were enacted, which now require such a contract to be in writing, those amendments cannot have a retroactive effect, and operate to make void a contract which was valid at the time when it was made.</p> <p>Id.—Agreement to Leave Property to Son—Will.—It is held untenable that there was no agreement of the mother to make a will of the land deeded to her by the plaintiff to him at her death. It is sufficient that she promised to leave the land so deeded to her to her son at her decease.</p> <p>Id.—Improper Granting of Nonsuit—Alleged Insufficiency of Complaint.-—The court erred in granting a motion for a nonsuit on the ground that the evidence showed no ground for the relief sought by the complaint. It is held that the complaint showed a ground for relief, either for that prayed for, or for damages against the estate of the deceased mother. But it is held further, whether the complaint states a cause of action or not, the insufficiency of the complaint is not a ground for a nonsuit.</p> <p>Id.—Variance Between Complaint and Proof not Urged as a Ground of Nonsuit—Waiver—Bight of Plaintiff to Bemedy Objections. Where the ground of variance between the complaint and the proof was not urged as a ground of nonsuit, it was waived, and cannot be urged upon appeal for the first time. The plaintiff had the right to have his attention called to such supposed variance, so that he might have an opportunity to remedy it if he desired.</p>

<p>Street Improvement—Action on Contractor’s Bond for Materials Furnished—Insufficient Complaint—Failure to Allege or Find Necessary Filing.—In an action against the sureties on the bond of a contractor for a street improvement for materials furnished to the contractor, the failure of the plaintiff to allege, or of the court to find, that the plaintiff filed a verified statement of its claim with the city street superintendent within thirty days after the work was completed, as required by section 6% of the Yrooman act, as amended in 1899, rendered the complaint and the findings insufficient to sustain a judgment for plaintiff.</p> <p>Id.—Presumption That Contract and Bond were Statutory.—Although the complaint does not allege nor is it found by the court that the bond was given by authority of the statute, yet, considering that the municipality was only authorized to act under permission of statutory authority in making the street improvements, and further that the bond in its terms was phrased according to the statutory requirement, it must be assumed that the contract was so made, and the bond given in connection therewith accordingly.</p> <p>Id.—Compliance With Statute Essential—Benefit to Sureties.— It being essential to a cause of action that the complaint should allege and that the court should find the necessary compliance with the statutory authority, it cannot be said that a compliance therewith would be of no benefit to the sureties, and that therefore it may be disregarded. Where street proceedings depend upon statu-, tory provisions as giving authority to make such contracts, persons claiming the benefit of such provisions must make substantial compliance therewith; and the filing of the verified claim with the street superintendent showing that the contractor has failed to pay for materials furnishes a means of notice to the sureties on the bond, so that they may protect themselves against the contractor.</p> <p>Id.—Statutory Bond not to be Considered as Common-law Obligation—Premature Action on Bond.—It is held that a statutory bond cannot be considered as a common-law obligation, and that until the street work has been completed under the terms of the statute, the notice of plaintiff’s claim could not have been properly filed, and any action brought upon the bond prior to such completion, or before the occurrence of such events as might make a showing of formal completion unnecessary, would be premature.</p>

<p>Taxes—Sale to State—Redemption—Void Second Sale—Action to Quiet Title—Support of Findings.—In an action by one claiming under a tax title from the state to quiet his title against the former owners in possession and their mortgagee, where the evidence and findings show that the property was first sold to the state for the second installment of taxes for the fiscal year 1897-98, and afterward in 1899, for taxes for the fiscal year 1898-99, and that the property was redeemed after the first sale, by the mortgagee, by payment of the amount required therefor, on December 31, 1898, as certified by the auditor, including the taxes for the fiscal year 1898-99, which were then a lien upon the property, the court properly found that at the time of the second sale there was no delinquency upon the property, and that the tax title based thereon is void.</p> <p>Id.—Fact of Delinquency at Time of Sale Essential—Effect of Recital in Tax Deed—Prima Facie Evidence—Counter-evidence —Redemption Certificate.—Unless there was in fact a delinquency, a sale by the tax collector is unauthorized and void, and the tax deed given in pursuance of such sale conveys no title. The only evidence to prove that the taxes for the year 1898 were not paid is the deed of the tax collector, which recited such fact, which is by the statute intended as prima facie evidence of the fact recited. This is subject to counter-evidence, which is found in the recitals in the redemption certificate of 1898, which at that time was required by the Political Code to contain a statement of all taxes that were a lien upon the real estate up to the time of redemption.</p> <p>Id.—Certificate of Auditor for Redemption Made Prima Facie Evi-. dence—Conflict of Statutory Evidence—Finding Supported.— There being a conflict in' the statutory prima facie evidence, the court'was authorized to find in favor of the certificate of redemption, as in case of any other conflicting evidence; and in accordance with' the settled rule that where there is a conflict in the evidence, this court will not interfere with the findings of the trial court, the findings in this ease must stand.</p> <p>Id.—Plaintiff Without Title—Possession by Former Owners, Defendants, Sufficient Proof of Title.—It appearing that the plaintiff is without title, it follows that in his action to quiet title against the former owners in possession, their possession is sufficient proof of title as against the plaintiff who is out of possession with no title.</p>

<p>Action to Set Aside Deed—Mental Incompetence op Grantor— Fraud and Undue Influence—Error in Granting Nonsuit— Burden of Proof.—In an action by the wife of a deceased husband, as administratrix of his estate, to set aside a deed made to his mother of nearly all of his real and personal property of the value of $15,000, for a nominal consideration of $10, alleged to have been procured from him by his mother while he was mentally incompetent, by means of fraud and undue influence, to the exclusion of his wife and infant child, whom he loved, it is held that the evidence was such as to throw upon the mother the burden of proof to show that the deed was not so obtained, and that it was error to nonsuit the plaintiff.</p> <p>Id.—Bules as to Motion for Nonsuit—Presumptions.—A motion for a nonsuit assumes as true every fact which the evidence and presumptions fairly dedueible therefrom tend to prove, and which was essential to entitle the plaintiff to recover. On such motion, the evidence must be taken most strongly against the defendant, and contradictory evidence must be disregarded, and the motion denied, if there is any substantial evidence tending to prove plaintiff’s case, without passing upon the sufficiency of such evidence. The rules as to nonsuit are the same whether the trial is by the court or by a jury.</p> <p>Id.—Advantage Taken by Mother of Drunken Condition of Son— Exclusive Control—Deed not Produced—Burden of Proof.— Where it appears that the mother, in the temporary absence of the wife, acquired exclusive control of her son, to the exclusion of his wife, and that the son was habitually a drunkard, and that she took advantage of his drunken condition to secure a transfer of his property to herself, the notary who drew a blank deed and bill of sale, believing that the transfer was to be to the wife, so expressed himself, which expression she failed to correct, and also failed to produce the deed for comparison of handwriting, claiming that it was mislaid in her home, it is held that the circumstances, taken together, are sufficient to east the burden upon her to prove that no imposition was practiced upon her deceased son, who died as the result of his habitual drunkenness.</p> <p>Id.—Inadequacy of Consideration of Drunkard’s Contract—Unfairness—Intoxicated Condition—Fraud—Annulment in Equity.— The inadequacy of consideration of a drunkard’s contract, or its manifest unfairness, is a weighty factor in securing the annulment of such contract in equity. Equity will not countenance fraudulent imposition in securing such a contract, and a gross inadequacy of consideration is evidence of imposition, justifying the interference of equity. Where the grantor is actually intoxicated, the inadequacy of price is direct evidence of fraud justifying the aid of equity to annul the grant.</p> <p>Id.—General Bule as to Weakness of Mind Conjoined With Inadequate Consideration—Presumptions—Burden of Proof.—Generally, when there is weakness of mind in a person conveying land, arising either from age, sickness, intoxication, or any other cause, although not amounting to absolute disqualification, and an inadequate consideration, imposition or undue influence will be presumed, and the burden is upon the grantee to show their absence.</p>

<p>Criminal Law—Embezzlement—Appeal—Failure op Argument— Affirmance.—Where a defendant convicted of embezzlement has appealed to this court from the judgment of conviction and from an order denying his motion for a new trial, but no brief has been filed within the extended time allowed therefor, and the appellant having failed to sustain the appeal either by written or oral argument, the judgment and order appealed from must be affirmed.</p>

<p>Ejectment for Small Strip of City Lot—Adverse Possession— Mutual Mistake—Taxes Paid by Each Record Owner—Finding Against Possession Supported.—Where plaintiff is the record owner of a city lot twenty feet wide, and defendant is the record owner of two lots of the same width, on each side of plaintiff’s lot, and plaintiff’s original building was totally destroyed by the fire of 1906, after which defendant surveyed one of his lots, and built foundation walls thereon, and began to build, whereupon the plaintiff, without sufficient proof, claimed that his original building encroached on said lot, by a strip six and three-quarters inches in width, and brought ejectment to recover the same claiming title by adverse possession, it is held that if it ever encroached thereon, it was by undiscovered mutual mistake, and in view of the fact that each record owner had paid taxes on his own lot for forty years, a finding that plaintiff never possessed such strip is sustained by the evidence, and has the effect to give to each lot owner his full record title.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting a new trial. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Interpleader—Conflicting Claims to Funds of Stockholder and Debts of Corporation to Stockholder—Garnishment of Funds —Assigned Notes—Suit on Debt.—Where a complaint in inter-pleader shows an indebtedness of the corporation plaintiff to a stockholder on an open account and two promissory notes, and certain garnishments against the plaintiff of all the interest of such stockholder in the corporation, and alleges that such stockholder has sued plaintiff on the open account, and had assigned such notes to one o'f the defendants prior to such garnishment, and alleges other necessary facts, it states a sufficient cause of action requiring the defendants to interplead concerning their conflicting claims against such stockholder and the corporation plaintiff.</p> <p>Id.—Cross-complaint by Defendant Holding Assigned Notes of Plaintiff—Attachment on Corporate Notes Before Deposit of Fund in Court.—The defendant, alleged to hold the notes of the corporation plaintiff, had the right to file a cross-complaint making the corporation plaintiff, as debtor on such assigned notes, a party defendant to such cross-complaint, and before payment of the controverted fund into court may, with such cross-complaint, file an affidavit and undertaking, and have a writ of attachment issued against the money and property in controversy to secure a lien thereon as against any other possible creditor of the stockholder not a party defendant to the interpleader.</p> <p>Id.—Proper Procedure in Interpleader—Eights op Plaintiff upon Payment into Court—Discharge.—As far as the plaintiff in interpleader is concerned, as soon as all the parties to the interpleader had either appeared or defaulted, it would be the proper procedure to determine whether it was a proper case for interpleader. If this question is determined in the affirmative, upon the plaintiff depositing the fund in court, an order would be made discharging the plaintiff from liability to all or any of the conflicting claimants, and the latter would be required to litigate their several claims among themselves. This would relieve plaintiff from any liability or burden incident to the writ of attachment.</p> <p>Id.—Proper Pleadings—Two Sets—Eight of Plaintiff—Answers in Nature of Cross-complaints to be Served upon All Claimants.—There may be two sets of pleadings in an action of inter-pleader, the first of which has reference only to the right of the plaintiff to bring the suit and for the defendants to interplead. The second set are those of the respective conflicting claimants, whose answers are in the nature of cross-complaints, and must be served upon every other defendant who may answer the same.</p> <p>Ib.—Order Eefusing to Dissolve Attachment not Erroneous—Affirmance.—It is held that the court properly refused to dissolve the attachment in favor of the cross-complainant, upon the assigned notes against the plaintiff, in the action for interpleader, and its order refusing to dissolve the same must be affirmed. There was no want of jurisdiction of the court over the subject matter; and there was no irregularity or excess of authority in the proceedings respecting the writ of attachment.</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>Dick Foye Harding, and Geo. L. Hoodenpyl, for Appellants.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying a new trial. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Action on Notes—Contract to Purchase Interest in Stallion— Presumption of Consideration-—Burden of Proof—Offer of Proof—Error of Court.—In an action on notes purporting; under a written contract, to be given for the purchase price of one-seventh interest in a stallion, the title and possession to which was to be retained by the vendor until the price was paid, there is a presumption that the notes were based upon a sufficient consideration; and where the makers pleaded a want of consideration for the notes, the burden of proof was upon them to' show the same. But where they offered to prove such want of consideration, it is held that, regardless of the manner in which they may prove the same, it was error for the court to exclude such offered evidence on the ground that it would contradict the written contract.</p> <p>Id,—Difference Between Want of Consideration and Distinct Consideration—Nature of Want of Consideration Immaterial.— There is a wide difference between showing an utter lack of consideration and some other consideration than that name.d in the agreement. In the latter ease, a consideration is admitted, and a different one is sought to he shown, while in the former case, the purpose is to show the nonexistence of any consideration. It is held that, on principle, no reason appears for allowing proof of no consideration where money is the consideration named, and denying it where some article of personal property is named as the consideration. If the promisor received nothing in either case, he may show the fact in defense.</p>

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

<p>Specific Performance—Contract to Sell Land—Time of Essence— Waiver of Default and Time Clause—Extensions of Time— Support of Finding.—Iu an action for specific performance of a contract to sell land, which originally made time of the essence of the contract, in which the court found that the defendant waived default and also the time clause, by various extensions of time and agreements, it is held the evidence justifies the finding, where the reasonable inference from the facts and circumstances proved is that each extension was granted to enable the plaintiff to get what money she could, and the payments made were a sufficient consideration for the extensions, and the acts and declarations of the defendant, coupled with such facts and circumstances, indicated the waiver so found.</p> <p>Id.—Tender of Full Payment—Ability to Pay—Support of Finding.—Where the court found that the whole balance due was tendered within the time provided by the contract as extended, and that plaintiff then demanded a deed, which was refused, it is held, from a consideration of the evidence, that the final tender made justifies the finding that the plaintiff was able to pay the whole balance due when such tender was made, and that he then had in his possession a sum more than sufficient to pay all of the principal and interest then due.</p> <p>Id.—Effect of Tender and Refusal—Default of Vendor Until Deed Made—Deposit not Required—Specific Performance—Final Concurrent Acts.—The effect of the full tender of payment of the amount due and of the refusal of the vendor to receive it from the purchaser, was to relieve the plaintiff as purchaser from further default and to put the vendor in default. The purchaser was not required to make a deposit in the name of the vendor, under section 1500 of the Civil Code, nor to put the money in his control, as a condition of maintaining an action of specific performance to compel a delivery of the deed. He is only required to be ready with his money when he receives the deed. The intention of the law is that the acts should be concurrent.</p> <p>Id.—Immaterial Findings Disregarded—Failure of Proof not Considered.—Findings which are immaterial in their nature or are rendered immaterial may be disregarded; and the mere fact that there is no proof to sustain an immaterial finding cannot be considered.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Mechanic’s Lien — Improvement of Stable Occupied by Tenant— Validity of Unrecorded Contracts—Distinct Small Contracts Aggregating Over $1,000.—In an action to foreclose a mechanic’s lien upon'a stable belonging to the owner, but occupied) by a tenant, who made an individual contract of $232 for its improvement, and made other separate and distinct contracts for work to improve the same, each of which was less than $1,000, the fact that the aggregate sum of the improvements was in excess of $1,000 is immaterial, and did not require the recordation of the original contract, nor of any other distinct contract, which was incident to the original contract, for a small additional sum in improving the stable.</p> <p>Id.—Liability of Owner of Stable in Foreclosure of Lien—Knowledge of Improvements—Failure to Post Notice.—In the action to foreclose the lien as against the owner of the stable, who was present on the premises and saw all of the work going on for its improvement, but who neither pleaded nor proved that any notice of nonresponsibility was posted as permitted in section 1185 of the Code of Civil Procedure, both the stable and the land on which it is situated are subject to foreclosure both as against the owner and the tenant.</p> <p>Id.—Improper Nonsuit on Motion of Owner—Invalidity of Contracts— Variance Between Proof and Pleading as to Conditions of Contract.—It is held that the claimant of the lien was improperly nonsuited on motion of the owner of the stable, either on the ground of the invalidity of the contracts as against the owner or on the ground of a fatal variance between the contracts shown by the evidence and the conditions of contract stated in the claim of lien as set out in the complaint.</p> <p>Id.—Construction of Code as to Claim of Lien—"Conditions of Contract.”—The requirement of section 1187, of the Code of Civil Procedure, as it existed when the claim of lien in this case was filed, that the claim of lien shall contain “a statement of the terms, time given and conditions of his contract,” does not mean that the fact that the work was performed, under several contracts is a circumstance which must be stated as a “condition” of the contract. The “conditions” of a contract which the statute contemplates and requires to be stated are those provisions which enter into and form part of the contract and make it a binding contract.</p> <p>Id.—Effect of Statute upon Validity of Claim—Statement of Separate Contracts Unnecessary.—Under the statute, it is not necessary to the validity of the claim of lien that it should set forth that the demand was based upon more than one contract, and then segregate and separately state the amount of each, even though the evidence adduced in support of the lien shows that the work for which the lien is claimed was performed upon separate and distinct structures under separate and distinct contracts.</p> <p>Id.—Substantial Truth of Claim of Market Price of All Work and Labor Performed.—The fact that the evidence shows that the shed was constructed for the agreed price of $232, while the claim of lien stated that all work and labor and materials supplied were to be on the basis of their reasonable value, did not, under all of the evidence, constitute a fatal or any variance, where there was evidence that the prices charged for such piece of work, including the construction of the shed, were the prevailing market prices at the time for labor and materials; from which it results that the claim of lien was substantially true, and not at variance with the evidence.</p> <p>Id.—Variance Between Pleading and Proof Distinct from Variance in Claim of Lien—Question of Prejudice.—A variance between the pleading of one contract in the complaint and the proof of several contracts in the evidence is not governed by the same rules as a variance between the claim of lien and the proof, which requires a substantially true statement. But a mere variance between the complaint and the proof is not material, unless the adverse party has been misled thereby to his prejudice. It is held that- no good reason appears to show that the defendant owner was misled to her prejudice by such variance.</p>

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

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. Wm. S. Wells, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporation—Dissolution and Distribution op Assets—Fraud by Sisters upon Brother—Sujphciency op Complaint.—In an action by a brother for damages for alleged fraud of his sisters upon the dissolution and distribution of the assets of a corporation in which they owned equal shares, and of which the sisters had been the directors, and as such had sold all of the fixtures of a dwelling, which was selected by the brother as his share of the assets, upon such dissolution, in the belief that it still retained the fixtures as he had last seen it, without disclosure by his sisters to the contrary, where the complaint alleges all of the facts, and that he relied, without examination, upon the integrity of his sisters and their affection for him, believing that they would not defraud him or take advantage of or deceive him, or conceal any fact from him, in their mutual dealings, it is held that, unless the complaint shows actual fraud, or a confidential relation between the parties, in the matter of their controversy, it states no cause of action.</p> <p>Id.—Nature of Confidential Eelation.—A “confidential relation” is ordinarily synonymous with a “fiduciary relation,” and it may in law be defined to be any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such relation ordinarily arises where confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts, or assumes to accept, the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent.</p> <p>Id.—Presumption of Existence of Confidential Eelations—Brother and Sister not Included—Question of Actual Existence.— Though there are certain relations in which confidence is presumed to exist, in each of which the party in whom the confidence is reposed must stand unimpeaehed of the slightest abuse of the confidence reposed, and has the burden to prove the contrary, yet no such confidential relation is presumed to exist between brother and sister because of their blood relation; still that relation may be considered as a circumstance in determining whether or not, in any given case, a confidential relation actually existed between them.</p> <p>Id.—Cause of Action Based on Confidential Eelation not Stated— Voluntary Assumption by Sisters Essential.—A cause of action proceeding upon constructive fraud arising out of the confidential relation of the sisters, as defendants, toward their brother, as plaintiff, is not stated, where there is nothing in the complaint to show that the sisters voluntarily assumed a relation of trust and confidence toward their brother, as defined by section 2219 of the Civil Code. While plaintiff alleges generally that he had confidence in his sisters, he shows by specific averments that there was no mutual affection or confidence between them.</p> <p>Id.—Beliance upon Partnership Eelations not Shown—Nonexistence of Partnership.—Though the complaint alleges that the plaintiff, in negotiating the settlement of the corporation’s affairs, relied upon his “confidence in the defendants as partners,” yet such allegation is without effect, where the complaint, as ■ a whole, clearly shows that the plaintiff and the defendants were not, and never had been, partners, in the ordinary sense of that term. The claim of the reliance of plaintiff upon their relations as partners is based upon the erroneous assumption that because the plaintiff ■was a stockholder and the defendants were stockholders and directors of the same corporation, they were partners and trustees of defendant upon the final settlement between them.</p> <p>Id.—Trust Relations not Extending to Private Dealings Between Stockholders upon Dissolution.—The trust relation between the directors and stockholders, which applies while the corporation is a going concern, does not extend to private dealings between them upon dissolution of the corporation and distribution between the respective stockholders in proportion to their respective shares, as a private transaction between them as individuals, which is purely personal to each of them. In that case their respective duties and obligations must be measured by the rules relating to the ordinary transactions of individuals. In such private dealings the fact that the directors, as individuals, knew facts gained' through their ofSeiai position, and were silent concerning them, is not material.</p> <p>Id.—Pacts Constituting Actual Praud not Alleged.—The nearest approach to a statement of actual fraud is the allegation the defendants “at all times fraudulently concealed from the plaintiff the fact” that the corporation had' previously sold the fixtures and furnishings of the house selected by the plaintiff as his share of the corporation assets. This, however, was, at best, a conclusion of the pleader, and the facts constituting the actual fraud must be. alleged, but are not averred. In the absence of averments showing the facts and circumstances of the concealment alleged to have been practiced upon the plaintiff, the complaint “must be held as destitute of allegations of fraud as if it were entirely silent upon the subject.”</p> <p>Id.—Absence op Special Averments Showing Praud.—There are no special averments either that plaintiff was acting under mental disability or that the defendants misrepresented anything to him, or misled him to his detriment in any particular, or in any manner prevented him from investigating and ascertaining for himself the true condition of the property allotted to him.</p> <p>Id.—Absence op Contidential Relation—Mere Silence not a Fraudulent Concealment.—In the absence of a confidential relation, the defendants were under no obligation to volunteer information to the plaintiff, which was as readily accessible to him as it was to the defendants; and as “the law will not undertake the care of persons who will not, with the means at hand, take care of themselves,” the mere silence of the defendants cannot be construed to be a fraudulent concealment sufficient to support an action for fraud.</p>

<p>Wills—Contract by Heirs Apparent to Pool and Equally Divide Bequests Distributed—Refusal of Executor as Residuary Legatee to Distribute—Construction of Contract.—A contract between six out of seven heirs apparent during the lifetime of their father, reciting a consideration of love and affection, was to the effect that if he should devise or bequeath to any of said parties more or less than one-seventh of the total amount of his property, whatever they received from his estate upon partial or final distribution should be pooled, and divided equally among such parties, share and share alike. Under the father’s will the plaintiff had received upon partial distribution of his estate only one-twentieth part thereof, whilst the executor, who was a residuary legatee of over one-fourth of the estate, has refused for considerably over one year to distribute the same, purposely to evade responsibility to plaintiff and other heirs similarly situated. Held, that though the contract is susceptible of the narrow construction that its enforcement depends upon a distribution, yet it will not be so construed, as against the plaintiff, under the facts of the case.</p> <p>Id.—Effect of Eailure to Procure Distribution—Implications— Performance Due Deemed Done.—While distribution of the estate is obviously intended as a necessary incident to the performance of such contract, if made in good faith, yet it impliedly contemplates that final distribution should be made within a reasonable time, and without any unnecessary delay, and it should be interpreted so as to require such executor, who is residuary legatee, to apply for and procure distribution to himself whenever the estate was in a condition to be closed; and his voluntary failure to do so cannot avail him in attempted avoidance of his contract, since under the rule embodied in section 3528 of the Civil Code, “that which ought to be done is to be regarded as done, in favor of him to whom and against him from whom, performance is due.”</p> <p>Id.—Deliberate Refusal to Perform Contract—Breach of Contract. Where the complaint alleges that, notwithstanding there was no obstacle in the way of closing up the estate, defendant purposely refrained from applying for distribution of the residue of the estate to himself, in order that he might evade the obligation of his contract with the plaintiff, thus deliberately refusing to do that which he had agreed and was required to do, it shows a breach of contract which gave to plaintiff a right of action to recover the sum stipulated and due thereunder.</p> <p>Id.—Remedy not in Probate Court—Action on Contract.—The plaintiff had no standing under which he could have exercised any remedy in the probate court, he having received the small legacy to which he was alone entitled in that court. He is not a legal assignee of the rights of the defendant, which could be enforced in that court; but the sole remedy is to enforce the contract, by an action thereon for his stipulated share of what is due to defendant in the probate court in excess of the sum awarded to plaintiff therein.</p> <p>Id.—Contract not Against Public Policy.—It is held that there is nothing in the contract between the heirs to share equally in- the estate that is against any known statute or contrary to public policy; and that such contract is to be essentially distinguished from an invalid contract by an heir apparent to give a stranger to the family an interest in the estate, but the agreement of the heirs between themselves is valid and enforceable in this state.</p> <p>Id.—Violation of Public Policy a Question of Law.—The question whether or not a contract in any given case is contrary to public policy is a question of law to be determined from the circumstances of each particular case.</p> <p>Id.—Complaint not Defective fob Nonjoinder of Other Heirs—Contract Share of Bach Heir Several.—The complaint is not defective for nonjoinder of other parties who would be entitled as against the defendant severally to recover the share due to each. Neither of the heirs has any joint interest in the share due to one of them, and each right of recovery is several. The rule is that where several distinct sums are by contract payable to several distinct persons any one of the parties may sue severally for his share, without joining the other parties either as plaintiffs or defendants.</p> <p>Id.—Demurrer to Complaint Improperly Sustained.—It is held that the complaint of the plaintiff is free from defects and states a cause of action in favor of the plaintiff, and that the defendant’s demurrer thereto was improperly sustained, and the judgment rendered against the plaintiff upon such demurrer must be reversed.</p>

<p>Contract for Interest in Gross Proceeds of Sale of Mining Claims— Services of Mining Engineer—Action for Monet Due—Sufficient Complaint.—A complaint alleging that plaintiff was an experienced mining engineer, and contracted with defendant that in consideration of his services, as such, in making a survey, map and technical report as to the quantity and value of the ore in mining claims of which defendant owned one-half, he would pay for the actual expense incurred, and that, upon the sale of his interest therein, or any part thereof, he would pay to plaintiff one-sixth of the gross proceeds of sale, and that defendant sold part of said claims, for an amount in excess of $10,000, the exact amount of which, and of the sum due and unpaid, he cannot state, and asks that the amount due be determined by the court, and for an interest in the unsold claims, states a cause of action to recover the amount found to he due for the claims sold.</p> <p>Id.—Apparent Cause of Action for Specific Performance of Contract as to Unsold Claims—Waiver and Abandonment at Trial —Objection upon Appeal.—The objection upon appeal that the complaint also purported to state a cause of action for specific performance of an interest in the unsold claims, and that it is insuffieient to justify such relief, if well founded, is answered by the fact appearing in the record, that plaintiff, at the trial, in open court, voluntarily waived and abandoned all right to the unsold portion of the property, and asked judgment only for one-sixth of the proceeds of the property sold. No demurrer having been interposed nor judgment rendered for specific performance, appellant will not be heard to object that the complaint did not entitle plaintiff to relief prayed for, but not granted.</p> <p>Id.—Action not for an Accounting but for Breach of Contract.— The action, as shown by the record, is not for an accounting, but for breach of contract to pay a proportionate sum, which plaintiff is unable to state precisely for reasons alleged, and therefore asks the court to détermine the same and give judgment therefor.</p> <p>Id.—Cause of Action not Barred by Statute.—The causé of action to pay one-sixth of the gross proceeds of the mining interests sold has no relation to the time of rendition of the services rendered as mining engineer, and could not accrue until the date when the sale was made and the purchase money realized thereupon which was to be shared; and where the record is silent as to the date when the sale in question was made, and the purchase money paid thereon, it shows no bar of the cause of action by statute.</p> <p>Id.—Letters Leading to Oral Contract.—Where the facts were that the plaintiff received a letter from the defendant before the services were rendered offering plaintiff one-sixth interest in the property if he would render the services required, which was accepted, and in a subsequent interview it was orally agreed that he would pay to plaintiff one-sixth of the gross receipts from sales of the property if he would render the services requested, which were rendered accordingly, the cause of action was not based upon the acceptance of the offer made by letter, but upon the parol contract which resulted when the parties were brought together.</p> <p>Id.—Bindings to be Liberally Construed to Support Judgment— Accepted Letters—Modified by Oral Contract.—The findings are to be liberally construed to support the judgment, and where the court found that a written offer by defendant of one-sixth inter- - est in the property for plaintiff’s services to be rendered was accepted by letters, but that such letters led to an oral interview between them, in which it is found that it was expressly agreed that in consideration of the services to be rendered by plaintiff, defendant would pay him one-sixth of the proceeds of all sales, which was also found by the court, such oral contract, and not the letters, was properly made the basis of the judgment for the plaintiff.</p> <p>Id.—Conflicting Evidence in Plaintiff’s Testimony—Province of Trial Court.-—Conceding a conflict on plaintiff’s own testimony as to what there was to do, what he did, and when he completed his work, it was -nevertheless’ for the trial court to- reconcile his statements, and unless manifestly without support, the findings made thereon should not be disturbed upon appeal.</p>

<p>Appeal prom Justice’s Court—Filing op Undertaking Before Notice —Proper Dismissal—Mandamus Disallowed.—Upon appeal from a justice’s court to the superior court, where the undertaking on appeal was prematurely filed before the filing of the notice of appeal, the superior court acquired no jurisdiction of the appeal, and properly dismissed the same; and a writ of mandate will not lie directing the superior court and the judge thereof to vacate and set aside the order dismissing the appeal.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County denying appellants’ motion for a new trial. Frank F. Oster, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Imperial County, and from an order denying a motion for a new trial. Franklin J. Cole, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Earl Rogers, W. H. Dehm, and H. L. Giesler, for Appellant.</p>

<p>Master and Servant—Negligence op Corporation Through Foreman —Sufficiency of Complaint.-—In an action for personal injuries to an employee alleged to have been occasioned through the negligence of a corporation employer in the course of his employment, the further fact alleged that the injuries were occasioned hy reason of the defendant’s negligence performed through a designated foreman, as an agent or servant, through whose acts the alleged negligence arose, does not detract from the J^orce of the charge that defendant’s negligence occasioned the injury.</p> <p>Id.—Employment of Plaintiff Through Agent of Corporation— Sufficiency of Evidence—Proper Instruction.—It is held that there is sufficient evidence tending to show that the individual de- . fendant through whom the plaintiff was employed was a member of a firm which acted as agents of the corporation and not as independent contractors, and posted notices and signed receipts as its agents, and that such defendant was recognized by the corporation as, and was in fact, an agent and servant of the corporation, authorized to employ the plaintiff, and did employ him on its behalf; and that the verdict for the plaintiff, under proper instructions, based on any possible hypothesis under the evidence, was sufficiently sustained in regard to such employment, and cannot he disturbed.</p> <p>Id.—Use of Insecure Elevator as Staging—Ropes Improperly Tied— Direction of Use—Foreman as Vice-principal—Liability of Corporation for Injury.—Where a defective elevator was used in lieu of staging, before used, and such elevator was not securely tied hy a proper knot in the ropes by which it was held, and though the foreman was directed to use the elevator by -defendant’s agent, yet as the proper mode of knotting the ropes was open to the inspection of the foreman when he directed its use and should have been corrected by him before use, it is held that such foreman was a vice-principal as to the duty of making the appliance secure, and that the corporation is liable for his neglect to make the same secure, for injury to plaintiff resulting from such neglect.</p> <p>Id.—Proper Expert Evidence to Show Insecurity op Knot and Obvious Mode op Security.—The court properly allowed expert evidence to show the insecurity of a knot such as that shown, and the mode of tying knots in such a way as to prevent slipping and accident, which is proper matter of skill, and to show the weakness which was apparent from an inspection of the insecure knot, if had.</p> <p>Id.—Absence op Error in Instructions or Rulings.—It is held that, taking all of the instructions together, there is no objectionable error therein; and there is no prejudicial error in the admission of evidence or in the rulings or statements in the presence of the jury.</p>

<p>Divorce in Nevada—Custody of Children Awarded to Wife—Alimony not Enforceable in This State.—Where a wife obtained a decree of divorce in the state of Nevada, upon service of summons upon the husband in this state, and the decree awarded her the custody of the children and alimony against the husband in the sum of $100 per month, the Nevada court acquired no jurisdiction of the person of the husband, and the portion of the decree allowing alimony is not enforceable against him in this state.</p> <p>Id.—Parental Duty of Father to Support Minor Children—Non-enforceability of Decree for Alimony not a “Lawful Excuse” Under Penal Code.—The father owes a parental duty to support his minor children, and the nonenforceability of the decree for alimony is not a “lawful excuse” for the neglect of that duty, within the meaning of section 270 of the Penal Code, providing that “A parent who willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter or medical attendance for his child is punishable by imprisonment in the state prison or in the county jail, not exceeding two years, or by fine not exceeding one thousand dollars, or by both.”</p> <p>Id.—Custody of Children Awarded to Wife Under Decree not Requiring Exclusive Support Under Civil Code—Implied Findings. Under the circumstances appearing, although the custody of the children was awarded to the wife, it is not made her duty exclusively to support the children, within the meaning of section 196 of the Civil Code. The decree as made presupposes findings that the husband was not a suitable person to have the custody of the children, and that their mother was financially unable to bear the burden of their proper support, and that it was necessary that the husband should continue such support; and, therefore, it cannot be held that the divorced wife must provide exclusive support therefor under section 196 of the Civil Code.</p> <p>Id.—Punishment of Husband Under Penal Code for Nonsupport of Minor Children—Habeas Corpus.—Where the husband was punished, under section 270 of the Penal Code, for willfully, and without lawful excuse, having omitted to provide for the support of his minor children, he is not entitled to bd released from the custody of the sheriff of the proper county, on habeas corpus, on the ground that he is restrained from his liberty without any authority of law; and he must be remanded to the custody of such sheriff.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. T. W. Harris, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION for writ of mandate to the Superior Court of Kern County. Paul W. Bennett, Judge. The facts are stated in the opinion of the court. George B. Whitaker, T. N. Harvey, and Hunsaker & Britt, for Petitioner.

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Nature op Power op Sale—Part op Security for Debt— Lien Without Title.—A power of sale contained in a mortgage, is authorized by section 2932 of the Civil Code, and by the terms of section 858 of that code it is to be deemed part of the security for the payment of the mortgage debt, and it is therefore, with the mortgage, in the nature of a lien upon the property affected by the power, and conveys no estate or title to the land.</p> <p>Id.—Extinguishment op Liens op Mortgage and op Power of Sale— Statute op Limitations.—Since, by the express terms of section 2911 of the Civil Code, “a lien is extinguished by the lapse of the time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation,” where the mortgage debt and the note secured thereby are forever barred and extinguished, the lien of the mortgage is extinguished, and the power of sale contained therein, which is deemed a “part of the security” for the same debt, and in the nature of a lien thereon, is likewise extinguished.</p> <p>Id.—Attempted Sale Under Extinguished Power op Sale—Restraint in Equity—Tender op Payment op Outlawed Debt not Required. Where the plaintiff seeks a decree in equity restraining a sale of plaintiff’s land under a power of sale executed by a deceased mortgagor, and attempted by the subsequent owner of the mortgaged land after the mortgage and the debt secured thereby had become extinguished by the statute of limitations, the plaintiff is not required, in order to maintain such action, to tender payment of the outlawed unpaid debt.</p> <p>Id.—Opinion on Order op Supreme Court Denying Rehearing—Nature op Power op 'Sale Immaterial—Naked Power—Interest Extinguished.—It is held by the supreme court, in its order denying a rehearing, that the opinion of the district court of appeal is correct, regardless of the question whether a power of sale contained in a mortgage is or is not technically a lien upon the land; that at the time defendant attempted to exercise the power the debt, note and mortgage were barred, and the mortgagor was deceased; that the lien of the mortgage was thereby extinguished, and the mortgagee, as holder of the power, was without any interest in the land as lienholder, or at all, and the interest, once coupled with it, had ceased to exist; that it became a naked power, which terminated with the extinction of the interest.</p>

<p>Unlawful Detainer—Breach of Covenant in Lease to Secure Bent —Chattel Mortgage on Furnishings—Condition—Cause of Action—Demurrer Properly Overruled.—In. an action of unlawful detainer, a complaint which sets forth tho breach of a covenant, which by the terms of a lease of a building is made a condition of the lease, requiring security for rent, upon completion of the building, and the complete furnishing of the same, to a cash value of $3,000, by a chattel mortgage on the furnishings in that sum, in default of the meeting of which condition the lessor may, at his option, forfeit the lease, and which alleges such forfeiture and proper demand and refusal, states a cause of action, and a demurrer thereto was properly overruled.</p> <p>Id.—Distinction Between Condition and Covenant.—There is a decided distinction between the creation and effect of a condition and a covenant. A condition is a qualification annexed to an estate, upon the happening of which the estate is enlarged or defeated, and it differs from a covenant, in that it is created by mutual agreement of the parties, and is binding upon both, whereas a covenant is an agreement of the covenantor only. A breach of a condition on which an estate is granted works a forfeiture of the estate, while the breach of a sole agreement of the covenantor is merely ground for the recovery of damages.</p> <p>Id.—Construction of Conditions Belative to Forfeiture—Beal Intention of Parties Controlling.—In the construction of a conveyance or léase, ordinarily, to avoid a forfeiture, conditions will be construed as covenants, when this can reasonably be done; but a covenant, instead of a condition, will never be implied contrary to the real intention of the parties. It is held, in this, cage, that, ■though the agreement to provide security for rent is designated in the lease as a “covenant,” it must, in accordance with the expressed intention of the parties, be construed and considered as a “condition,” and not a covenant.</p> <p>Id.—Equitable Defense to Forfeiture of Lease—Substantial Compliance With Security—Offer to Deposit Full Amount in Coin. Where the answer to the complaint in unlawful detainer set up, as an equitable defense to the forfeiture of the lease, that defendant had subleased the premises to the eodefendant, whose furnishings exceeded the requirement of the lease, and who had agreed to give to defendant a chattel mortgage as security for the rent, which defendant agreed to assign to plaintiff and plaintiff had agreed to accept, but said codefendant in possession broke her contract, rendering exact compliance with the security for rent impossible, and that defendant had sued her in unlawful detainer, but that defendant had offered to plaintiff to deposit gold coin to the full amount of the security, in any bank named by plaintiff, and, upon plaintiff’s refusal, tendered the same in court, as security, until such • time as the identical security could be given, equity will not, upon such showing of substantial compliance with security, permit the forfeiture of the lease.</p> <p>Id.—Prejudicial Error in Striking Out Equitable Defense to Forfeiture—Nature of Action Involving Examination of Equities. The court erred greatly to the prejudice of the defendant in striking out the answer to the complaint which seeks to have a forfeiture declared. The very nature of the action, involving a forfeiture, appeals to the "equity side of the court, and requires “a full examination of all the equities, to the end that exact justice be done.” The law abhors a forfeiture, and therefore will ordinarily be satisfied with a substantial compliance with a condition involving a forfeiture when a literal fulfillment is prevented by uncontrollable circumstances.</p> <p>Id.—Tender of Full Coin as Security Equal to Literal Compliance. The proffered substitution of gold coin equal in amount to the value of the furniture required to be installed under the lease would have been not only a substantial compliance with the condition, but would have afforded plaintiff security for his rent equal to, if not greater than, that which would have resulted from a literal compliance with the condition as it was written. United States gold coin is not likely to depreciate in value from ordinary wear and tear, as would the furniture of an apartment house, even though „ repaired and replenished from time to time.</p> <p>Id.—Cross-complaint in Unlawful Detainer not Permissible.—Although the defendant, by way of cross-complaint in the action for unlawful detainer, sought to recover damages against the plaintiff for an alleged constructive eviction by the plaintiff, a demurrer to such cross-complaint was properly sustained, as it is the -law in this state, as well as in other states having similar statutes, that no counterclaim or cross-complaint of any kind is proper or permissible in actions in unlawful detainer.</p>

<p>Real Estate Broker—Commissions—Contract of Employment— Identifiable Description of Land Essential—Parol or Extrinsic Evidence.—A written contract authorizing or employing an agent or broker to sell real estate for a commission must not only be in writing and signed by the party to be charged, but must also contain a description of the land to be sold, sufficient in itself, or by reference to identify the same without the aid of parol evidence. While it is true, generally, that a contract to employ a broker to sell real estate will not be declared void, merely because of a defect, uncertainty or ambiguity in the description of the property to be sold, when the same can be cured by the allegation and proof of extrinsic facts and circumstances,' yet parol proof cannot create a description not existing in the contract.</p> <p>Id.—Action for Broker’s Commissions—Contract not Describing Land—Letters Referring to Other Land—Proper Nonsuit.—In an action for broker’s commissions on the sale of land, for finding a purchaser therefor, under an alleged contract of employment, which contains no description of the land for which the purchaser was found, and it appears that certain letters received had reference to other lands than those for which the commission was claimed, and that the land in controversy was in no way identified, a motion for a nonsuit was properly granted.</p> <p>Id.—Void Contract—Recovery on Quantum Meruit not Allowable. Where the contract is void for want of a properly identifiable description of the land for which the purchaser was found, there can be no recovery upon a count based upon a quantum meruit for the reasonable value of services rendered to the defendants in finding such purchaser.</p>

<p>Corporations—Amended Articles—Certified Copt—Acknowledgment of Original Articles not Included—Mandamus.—A refusal by the Secretary of State to file a certified copy of amended articles of incorporation filed in the clerk’s .office of the county in which the original articles were filed, as provided by law, on the ground that the certificate did not include the acknowledgment of the original articles, a certified copy of which had been originally filed with the Secretary of State, is not justifiable, and mandarnm will lie te compel him to file the same.</p> <p>Id.—Effect of Specific Enumeration of Contents of Articles—Ex- ■ clusion of Other Matters.—The specific enumeration of the contents of articles of incorporation made in sections 290 and 291 of ■the Civil Code necessarily implies the exclusion, ex industria, of any other matters from the articles than those therein specifically named.</p> <p>Id.—Certificates of Acknowledgment No Part of Contents of Articles—Purpose—Proof of Genuineness.—Under the provisions of sections 290 or 291 of the Civil Code, the certificates of acknowledgment of the articles of incorporation are no part of the articles themselves; but the acknowledgments are separately provided for in section 292. of the Civil Code, the purpose of the requirement of which is to show that the signatures to the articles are genuine, and made by hona fide, and not fictitious, persons.</p> <p>Id.—Construction of Code as to Amended Articles.—Section 362 of the Civil Code, under the terms of which original articles of incorporation may be amended, merely provides that “such original and amended articles of incorporation shall together contain all of the matters and things required by the law under which the original articles were executed and filed.” It does not require that the certificates of acknowledgment of the original articles shall be attached to the articles as amended, but provides that “a copy of the said articles of incorporation, as thus amended, duly certified to. be correct by the president and secretary of the board of directors or trustees of such corporation, shall be filed in the office where the original articles of incorporation are filed; and a certified- copy thereof, duly certified by such county clerk, in the office of the Secretary of State.”</p> <p>Id.—Mere Annexing of Amended Articles to Original Articles Immaterial.—The mere annexing by the president and secretary of the corporation to the amended articles of such corporation of the original certificate of incorporation on file in. the clerk’s office, a certified copy of which had been filed with the Secretary of State, could add no force to the articles as amended, and could add nothing to the force or effect of the original articles of incorporation.</p> <p>Id.—Capital Stock—Designation of Shares as Common or Preferred—Change in Number of Shares not Affected.—Where the amended articles of incorporation do not change or affect the number of the original shares of the capital stock of the corporation named in its original articles, the mere change in the amended articles of the designation of a certain portion of such shares as preferred, and of the residue thereof as common, stock, cannot be held in any sense to be tantamount to increasing or diminishing the capital stock, in violation of sections 359 and 362 of the Civil Code.</p> <p>Id.—Unjustifiable Refusal of Secretary of State to Pile Amended Articles for Illegal Change in Capital Stock—Mandamus.— Where the Secretary of State refused to file a certified copy of the amended articles of incorporation, for the additional reason that the change in the designation of certain stock as preferred amounts to an increase of such stock and a diminution of the common stock in violation of law, such ground of refusal is unjustifiable, and mandamus will lie to compel the Secretary of State to file the amended articles, notwithstanding such objection.</p> <p>Id.—Distinction Between Increase and Diminution of Shares and Classification—Public Interests—Contract Between Shareholders.—While any change effected in the number of shares, if not legally performed according to the code provisions, might illegally affect the interests of the public and of the creditors of the corporation, by withdrawing its property therefrom, yet the act of classifying or dividing the capital stock into two or more kinds, without change in the number of shares, though required to be done in the amended articles, according to the statute, involves nothing more than a mere contract between the stockholders as to how they shall divide the profits and the corporate property after the payment of the corporate obligations.</p> <p>Id.—Construction of Code Provision—Assent of Two-thirds of Stockholders to Increase or Reduction of Kinds of Stock.—The provision in section 359 of the Civil Code, that “where the articles of incorporation provide for two or more kinds of capital stock, no increase or reduction shall be made without the assent of two-thirds of all of the capital stock, and in making such reduction, the assent shall identify the particular class or classes of stock to be increased or reduced, and the amount apportioned to each,” necessarily presupposes the existence of two or more classes of stock, at the time when the increase or reduction is made; and such provision has no application where the stock under the original articles of incorporation was all of one kind, and in amended articles, which must be approved by two-thirds of all the stockholders, it is merely divided into two classes or kinds of stock, without other change.</p>

<p>Juvenile Court Act—Definition op Misdemeanor—Mode op Trial— Jurisdiction.—The superior court, sitting as a juvenile court, has no jurisdiction to try a person charged with the misdemeanor arising under section 26 of the juvenile court act, merely upon a verified complaint filed in the superior court, but the prosecution thereof must be, as prescribed by section 888 of the Penal Code, either .by indictment or by information filed, after a preliminary examination and commitment to the superior court, as a prerequisite thereto, as provided in sections 858 and 883 of the Penal Code.</p> <p>Id.—Unconstitutionality op Exception as to Misdemeanors Under Juvenile Court Act—Special Legislation.—The exception made in subdivision 4 of section 682 of the Penal Code, of “all misdemeanors of which jurisdiction has been conferred upon superior courts sitting as juvenile courts,” cannot be construed as authorizing the prosecution and trial thereof in the superior court upon a verified complaint filed in the superior court, as such interpretation would render it repugnant to subdivision 3 of section 25 of article IV of the constitution, prohibiting the legislature from passing special laws, “regulating the practice in courts of justice,” or “where a general law can be made applicable,” which applicability appears in the general provisions of section 888 of the Penal Code, regulating the trials of all misdemeanors vested in the superior court.</p> <p>Ib.—Prohibition—Want of Jurisdiction Insufficient—Remedy by Appeal.—The writ of prohibition will not lie merely on the ground of want of jurisdiction in the superior court, where there is an adequate remedy by appeal from an adverse judgment of the superior court.</p>

<p>APPLICATION for discharge on writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Arson—Support of Verdict—Circumstantial Evidence.—Where the defendant was convicted of the crime of arson, which was evidently of incendiary origin, though the evidence connecting defendant with the crime is almost wholly circumstantial, yet where the circumstances show that he had acquired a business which was not profitable, and in connection with which he told conflicting stories; that he had taken out two policies of insurance upon his furniture; that the fire was started from paper saturated with coal-oil, and that he had borrowed coal-oil a day or two before the fire—it is held that the jury was justified in concluding that defendant committed the crime.</p> <p>Id.—Evidence—Fair Market Value of Furniture Burned—Limited Examination — Competency — Weight—'Question for Jury.— Where a dealer in new and second-hand furniture testified that he had seen defendant’s furniture, and as to its fair market value, it is held that, though it was shown on cross-examination that his examination thereof was limited, that fact went not to the competency, but to the weight of his evidence, and that, in the absence of any counter-evidence as to a different market value, the jury were entitled to consider such market value as a circumstance in reaching their verdict.</p> <p>Id.—Instruction as to Extent op Burning—Absence op Prejudice.—■ An instruction that, “To constitute a burning it is not necessary that the building set on fire should have been destroyed. It is sufficient that fire is applied, so as to take effect on any part of the substance of the building,” does not assume a fact for the jury to determine. But, however, since the fire is conclusively shown to be of incendiary origin, such instruction could not be prejudicial.</p> <p>Id.—Absence op Prejudicial Error.—It is held that no prejudicial error appears in any of the rulings of the court.</p>

<p>APPEALS from separate judgments of the Superior Court of Los Angeles County, and from separate orders denying a new trial. George E. Church, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Eminent Domain—Date op Assessment op Damages—Repeal and Reenactment op Code Provision—Construction of Saving Clause— “Pending Litigation.”—The rule of damages in actions in eminent domain, which were pending at the time of the repeal and re-enactment of section 1249 of Code of Civil Procedure as amended by the legislature on April 10, 1911, is unaffected as to such actions by the express provision therein contained that “Nothing in this section contained shall be construed or held to affect pending litigation,” the effect of which saving clause is to preserve in force the previous statute so far as “pending litigation” is concerned, and to prevent the new law from being retroactive as to pending cases, or changing the existing order of things in relation thereto.</p> <p>Id.—Action ip Covered by Changed Code Unaffected.—The provision in the former section that in actions in eminent domain, for the “purpose of ascertaining compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, and the actual value at that date shall be the measure of compensation,” is practically unchanged by the amended code, except where the issue is not determined “within one year,” and inasmuch as the plaintiff’s action was heard and determined within one year, it is practically immaterial what provision is applied thereto, and the judgment must be affirmed in either point of view.</p> <p>Id.—Constitutionality of Code Provisions—Stare Decisis.—The law-fixing the issuance of the summons as the time for determining the value of the property has been held constitutional by the supreme court of the state repeatedly and uniformly since the year 1882; and its decisions preclude further consideration of objections on that ground.</p>

<p>Criminal Law—Failure of Father to Support Minor Children—• Sentence Under Code—Suspension—Probation Violated—Sentence Executed—Habeas Corpus.—A father convicted, under section 270 of the Penal Code, of the crime of omitting, without lawful excuse, to furnish necessary food, clothing, shelter, etc., for his minor children, and whose sentence imposing imprisonment upon him was suspended twice, under section 1203 of that code, during good behavior, and again on condition that he should support his minor children, and thereafter was finally executed, is not entitled to be discharged on habeas corpus, either on the ground that his sentence was suspended nor on the ground that section 270d of the Penal Code, enacted in 1911, is unconstitutional in authorizing fines imposed on the father to he paid to the use and benefit of his minor children.</p> <p>Id.—Code Provision- Defining Crime Independent of Other Provisions.—Section 270 of the Penal Code, defining the crime finally punished, is wholly independent of the provisions either of section 1203 or section 270d of that code; and if it be conceded that there are tenable objections to the latter provisions, the former section is adequate to sustain the conviction and punishment inflicted. The mere fact that the legislature may have imposed unauthorized power upon the court under the latter sections can in no degree affect the validity of the former section.</p> <p>Id.—Rule of Statutory Construqtion—Partial Invalidity of Statute.—Where only part of a statute is invalid for any reason, in order to render the whole statute void for the same reason, all of the parts thereof must be so interdependent as that no one part may be eliminated without destroying the force of the whole statute; but where a statute is valid in one part, and invalid in another, the former part, if not dependent in any measure upon the latter, and can, without the latter, accomplish one or all the material purposes of the act, will be sustained, and that which is void must be eliminated and disregarded.</p> <p>Id.—Section 270 First Enacted and not Dependable on Other Sections.—Since section 270 of the Penal Code was first enacted, -and was in existence for many years as a complete act or statute before sections 1203 and 270d were introduced into that code, section 270 cannot be dependent upon those sections, and it lives not from anything contained in those sections, but from its own intrinsic vitality. If the other sections are eliminated, section 270 will still exist and possess the same force that was breathed into it at the time of its enactment.</p> <p>Id.—Invalidity of Other Sections not Decided.—While holding that the supposed invalidity of sections 1203, 270d and 273h of the Penal Code cannot affect the validity of section 270, the invalidity of those sections is not decided. It is held that they are framed on highly commendable and humane lines, and that it would be a result much to be deprecated if the courts shall ever conceive it to be necessary to declare them invalid for any reason, and therefore nonenforceable.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. J. P. Wood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

George IT. Hutton, Judge ordering writ; W. M. Conley, Judge presiding in Extra Session; No. 1, making order appealed from. The facts are stated in the opinion of the court.

<p>Mechanics’ Liens—Foreclosure—Void Contract—Reasonable Value OF Services.—A complaint in an action to foreclose mechanics’ liens, which proceeds upon the theory that the contract between the owner and the contractor is void, and seeks to recover the reasonable value of the services rendered, and alleges that there is sufficient money in the hands of the owner to pay all claims, is not subject to a general demurrer by reason of the latter allegation.</p> <p>Id.—Joinder of Causes of Action on Several Liens in One Complaint—Proper Sets of Findings.—Where causes of action on several mechanics’ liens are joined in one" complaint, it is proper for the court to make a single set of findings so far as based on allegations common to each cause of action, and to make separate findings upon each matter which is peculiar to any one cause of action.</p> <p>Id.—Conclusions of Law—Direction for Judgment—Review upon Appeal.—Where the findings of fact and conclusions of law end with a direction for judgment, it is held that such direction is a sufficient conclusion of law to support the judgment, especially where it is clear that more specific conclusions of law must have been in favor of the plaintiff. In such case, any omission in the conclusions is merely as to matter of form, and would not warrant a reversal of the judgment.</p>

<p>Building Contract—Assignment to Partnership—Action by Assignee of Partnership—Question of Fictitious Designation— Sufficiency of Complaint.—Where a building contract was assigned to a partnership designated as “F. X. Trudel & Son,” in an action ' on said contract .brought by F. X. Trudel, as assignee of the partnership, for the balance due on the contract, and for extra work done by the partnership, the complaint is not subject to a general demurrer on the ground that the firm name is a fictitious designation, and that the complaint does not show that the partnership had complied with the provisions oí section 2466 of the Civil Code.</p> <p>Id.—Question op Fictitious Character op Partnership—Name Immaterial in Action by Assignee op Partnership.—Though there is authority to sustain the position that the designation of the partnership name as “F. X. Trudel & Son” is not fictitious, yet, without passing upon that question, it is held to be the law of this state that, without regard to the fictitious character of the partnership designation, though the partnership itself cannot sue thereon for not having complied with section 2466 of the Civil Code, nevertheless the assignee of the partnership may sue thereon without regard to such compliance.</p>

<p>APPEAL from a judgment of the Superior Court of Solano County, and from an order denying a new trial. A. J. Buckles, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of mandate directed against the county auditor of Sacramento County, to draw a warrant for the salary of a probation officer appointed under the juvenile court act of 1911.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from judgments of the Superior Court of the City and County of San Francisco, in consolidated actions. James M. Troutt, Judge. The facts are stated in the opinion of the court.

<p>Ejectment—Title Under United States Patent—Defense of Adverse Possession—Objection to Patent for First Time on Appeal— Review.—Where the plaintiff in an action of ejectment claimed title under the grantee of a United States patent, and the only claim made by defendant in the trial court was title by adverse possession, the defendant cannot be heard to object for the first time upon appeal that it was not shown in the trial court that the railroad company, which was the original patentee, had complied with the terms prescribed by the act of Congress as the condition on which the lands should be granted by the government.</p> <p>Id.—Patent Conclusive Evidence of Ascertained Facts Within Jurisdiction of Land Department.—When a law of Congress provides for the disposal and patenting of certain public lands upon the ascertainment of certain facts, which the proper officers of the land department have jurisdiction to ascertain and determine, the patent issued thereon is a conclusive declaration that such facts have been found in favor of the patentee.</p> <p>Id.—Insufficient Title bt Adverse Possession of Part of Patented Tract—Failure to Pat All Taxes Assessed.—A title claimed by adverse possession of part of the patented premises for five consecutive years is not supported, where it appears that all taxes assessed on the property claimed were not paid by the claimant for five consecutive years. The fact that the adverse claimant requested the assessor to assess his adverse claim, and that he refused to do so, does not excuse the payment of all taxes assessed on the property to perfect his adverse title, and if he fails by the payment of one tax thereon by the owner, before his title has accrued, he fails entirely.</p>

<p>APPEAL from a judgment of the Superior Court of Stanislaus County, and from an order denying a new trial. L. W. Fulkerth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action for Personal Injuries—Negligence of Employer—Defective Bucket in Unloading Vessel—Knowledge of Defect—Support of Verdict.—In an action by an employee engaged in unloading a vessel for negligence of his employer in furnishing a defective bucket for delivering coal therefrom, which overturned in midair and discharged its contents upon plaintiff, to his serious personal injury, where it appears that the employer had knowledge of its defective condition, but negligently continued to use the same, and that the defect was of such a character as to render it unsafe for the purpose intended, it is held that there is evidence sufficient to support the verdict for the plaintiff.</p> <p>Id.—Support of Verdict Against Contributory Negligence.—It is held that the jury was justified in holding that the accident was not due to any contributory negligence of the plaintiff, and that there was no such assumption of risk by him as to relieve the defendant from liability. The servant does not assume the risk that comes from the use of improper appliances.</p> <p>Id.—Duty of Master to Furnish Reasonably Safe Appliances—Exception—Caution.—It is the duty of the master to furnish reasonably safe appliances to the servant for the prosecution of his work, and to exercise reasonable care in keeping such appliances in a safe condition for use, and if an injury results to the servant from the failure of the-master to perform this duty, the master is liable for the consequences. But if the master provides and keeps only proper tools or appliances for the use of the servant, and the servant selects one obviously unfit, the master is not liable, though this exception to the master’s primary duty must be applied with great caution.</p> <p>Id.—Duty of Master to Inspect and Correct Appliances Before Use.—It is the duty of the master to inspect appliances and discover their defects before putting them in use, and to use ordinary care, diligence and skill to keep them in good and safe condition. He can neither avoid this responsibility by delegating it to any servant, nor by simply giving general orders that servants shall examine for themselves, before using, what is furnished by him.</p> <p>Id.—Defective Bucket not Selected by Plaintiff but by Foreman Representing Master.—It appears that the defective bucket was not selected by the plaintiff, but by a foreman, who in the selection of the bucket represented the master, and gave no warning to plaintiff of its defective character; and the jury were properly instructed that the obligation of the master to furnish suitable appliances is a duty which cannot be delegated to another, so as to exonerate the employer from liability for its negligent performance. The act or omission of the foreman was the act or omission of the master, irrespective of his grade.</p> <p>Id.—Burden of Proof to Show. Plaintiff’s Knowledge of Defective Condition of Bucket.—The burden of proof rested upon the defendant to show knowledge by the plaintiff of the defective condition of the bucket. It is held that such burden of proof was not sustained, and that there is no direct evidence to show that the plaintiff, as an employee in the hold, had any knowledge of such defective condition; but that the inference is fair and reasonable, from the fact that he had been at work in the hold but a few hours before he was injured by the fall of the bucket, that he was without knowledge of its imperfect condition.</p> <p>Id.—Statutory Limitation of Effect of Knowledge.—Under section 1970 of the Civil Code as amended in 1907, it is enacted that: “Knowledge by an employee of the defective or unsafe character or condition of any machinery, ways, appliances, or structures of such employer shall not be a bar to recovery for any injury or death caused thereby, unless it shall also appear that such employee fully understood, comprehended and appreciated the dangers incident to the use of such defective machinery, ways, appliances or structures, and thereafter consented to use the same, or continued in the use of the same.” It is held that there is no evidence that he had such understanding, comprehension, or appreciation of the dangers incident to the use of the defective bucket.</p> <p>Id.—Assumption of Risk—Proper Instruction.—The court properly instructed the jury that: “While the servant assumes all of the ordinary risk of the business in which he is employed, he does not, by reason of his employment, assume the risk of defective premises, machinery, or structures furnished by the master, if the defect was either known to the master, or could have bggn discovered by the master by a reasonably careful inspection.”</p> <p>Id.—Proper Refusal op Requested Instruction as to Employment op Blacksmith to Make Repairs.—A requested instruction to the effect that the employment of a blacksmith to make repairs of defective buckets or tubs was a discharge of defendant’s duty was .properly refused, as ignoring the duty of the master, in the first place, to furnish suitable appliances, and as implying that he may relieve himself of responsibility by delegating the task to an employee, although another employee in a different line of work was injured in consequence of the act of one who represents the master in the selection of the appliance, and as lacking in simplicity, and as likely to be misunderstood by the jury, and as being, in so far as correct, fully covered by the other instructions of the court.</p> <p>Id.—Support op Special Rinding and General Verdict.—It is held that there is evidence to sustain the negative answer of the jury to a special finding submitted upon the question whether “it was the duty of the stevedores employed by the defendant to select a tub or tubs that they were to use in their work from a number of tubs in good repair kept on hand by the defendant”; but it is held that if it were unsupported, it cannot require a reversal, since the general verdict may be sustained upon the theory of defendant’s negligence in leaving the defective bucket upon the deck of the vessel, whence it was taken and put into use in the hold.</p>

<p>APPLICATION for writ of supersedeas upon appeal from a judgment of condemnation of land.</p> <p>The facts are stated in the opinion of the court.</p> <p>Arthur C. Huston, and White, Miller & McLaughlin, for Petitioner's.</p> <p>T. T. C. Gregory, Elmer W. Armfield, C. J. Goodell, and Mastick & Partridge, for Respondents.</p>

<p>Action fob Services—Appeal from Judgment—Objection to Transcript—Delay in Notice of Entry of Judgment—Question of Fact—Bill of Exceptions.—Upon an appeal from a judgment against the plaintiff in an action for services taken under the alternative method, where the respondent objected to the transcript because the notice of the entry of the judgment under section 953a of the Code of Civil Procedure was not presented in time, it is held that whether the notice was given was a question of fact, to be determined by the judge to whom the transcript was given for certification, and if the respondent wished to object to its authentication, he should have presented the matter upon a bill of exceptions.</p> <p>Id.—Support of Finding Against Plaintiff—Gratuitous Services.— It is held that in the action for services rendered by the plaintiff to- the defendant in showing the latter how to conduct a business in which both parties intended to engage, and which was thereafter abandoned, that the evidence and the circumstances surrounding the parties when the services were rendered clearly justified and sustained the finding of the court that the services were rendered gratuitously, without any intent on the plaintiff’s part to charge compensation therefor.</p>

<p>Action for Claim and Delivery for Possession of Note—Prior Settlement of Larger Note — Commissions Paid—Assignment of Smaller Note for Collection—Inability to Collect.—Where a note of $2,000 was intrusted to defendants as a collection agency, on an agreed commission of fifteen per cent of the moneys collected, and upon suit thereupon a settlement was effected by part payment thereof in cash and some shares of stock, and a new note for $600 and a settlement of fifteen per cent of the cash and fifteen per cent of the stock was effected, and the new note was assigned to defendants for collection on the same percentage basis, but they were unable to collect any part of it, and some time after its maturity plaintiff demanded possession of the same,.which was refused, the plaintiff had the right, under the circumstances, to maintain an action of claim and delivery for the possession of said new note.</p> <p>Id.—Agency for Collection of New Note not a Power Coupled With an Interest—Power of Revocation on Noncollection— Right of Possession After Revocation.—The agency of the defendants for the collection of the new note on a percentage basis, which they were unable to collect at maturity and obtained nothing thereon, was not a power coupled with an interest, and was revocable upon failure to collect, under section 2356 of the Civil Code, and the plaintiff having revoked the agency, he was entitled to the possession of the note.</p> <p>Id.—Appeal from Judgment and Order—Appeal from Judgment too Late—Review of Order—Support of Findings.—Where the defendants gave notice of an appeal from the judgment more than six months after the entry of the judgment, and also of an appeal from an order denying a new trial, taken within proper time, the appeal from the judgment cannot be considered, and the review must be confined to the appeal from the order denying a new trial. But it is held that the evidence supports the findings of, the court, and that the order denying the new trial must be affirmed.</p>

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

<p>APPEAL from a judgment of the Superior Court of Siskiyou County, and from an order denying a new trial. Jas. P. Lodge, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Embezzlement—Test of Crime—Fraudulent Appropriation of Money—Demand—Test Unchanged.—The test of the crime of embezzlement is whether the evidence shows clearly a fraudulent appropriation by the defendant of the money involved; and proof of a demand is not required when the evidence otherwise shows the fact of such fraudulent appropriation. It is only in the absence of other sufficient proof of a fraudulent appropriation that a demand may be necessary to fix the fact of the” fraudulent appropriation; but the test of the crime is not thereby altered, but always is, does the whole evidence establish the crime charged, that is, a fraudulent appropriation as charged in the indictment.</p> <p>Id.—Intrustment of Money to Purchase Farm—Wanton Violation of Trust—Embezzlement—Support of Verdict.—Where it appears that the money was intrusted by an aged widow to a servant who had been in her employ, with which to buy her a farm within certain states named, and the evidence shows a wanton violation of the trust, and an intention to conceal and embezzle the money, it is . held sufficient to support a verdict convicting him of that crime,.</p> <p>Id.—Disposition of Residue of Money After Arrest for Concealment—Evidence.—Evidence was admissible to show the disposition of the residue of the money in the hands of the defendant after the arrest in order to conceal it, not for the purpose of showing an independent embezzlement after the arrest, but as relating back and showing his intention to embezzle all of the money if he did embezzle it before the arrest.</p> <p>Id.—Requested Instruction—Error as to Necessity of Demand to Constitute Embezzlement—Modification Qualifying Without Curing Error.—A requested instruction which assumes that if the • money was intrusted to the defendant to purchase a farm, and neither the time nor place was fixed for the purchase, and that before his arrest no demand had been made for the return of the money or the purchase of the farm, he could not be found guilty of embezzlement, erroneously ignores the settled doctrine as to what is the “test” of embezzlement, and would have been properly refused. A modification of the same, which inserts the qualifying phrase, “and that an unreasonable time had not elapsed after defendant received the money, up to the time of the arrfest,” qualifies but does not cure the error.</p> <p>Id.—Proper Instruction as to Embezzlement by Agent.—The court properly instructed the jury that “one who acts as the agent of another and in such capacity is intrusted with and receives into his care any money for the use of another person, and fraudulently appropriates the same to his own use, or to any use or purpose not in the due and lawful execution of his trust, is guilty of embezzlement, and in this case if you find from the evidence to a moral certainty, and beyond a reasonable doubt, that the defendant did unlawfully, fraudulently and feloniously convert, embezzle and appropriate the money mentioned in the information, or any part thereof, to his own use, and contrary to his trust as such agent, then your verdict must be guilty.”</p> <p>Id.—Effect of Conflict Between Modified Instruction and Correct Instruction—Error to Defendant’s Advantage.—The effect of the modified instruction was to weaken the force of the correct instruction to defendant’s advantage, of which he cannot complain. It is held that, considering the entire record, it cannot be said that any error which crept into the modified instruction has resulted in a miscarriage of justice.</p>

<p>APPEAL from a judgment of the Superior Court of Siskiyou County, and from an order denying a new trial. James P. Lodge, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Election of Justice of Peace for City of Richmond—Proclamation for Single Justice—Understanding of Voters—Second Justice Legally Appointed by City Council.—Where the official proclamation for the election on November 8, 1910, called for the election of a single justice of the peace for the fifteenth township of Contra Costa county, comprising the city of Richmond, which, though entitled to two justices of the peace, has power under its charter to appoint one of them, and its appointee, having a jurisdiction commensurate with the justice of the peace to be elected, was in possession, under his appointment, at the time of said election, and the voters generally understood that not more than one justice of the peace was to be voted for at said election, and none voted for more than one candidate, in accordance with the proclamation, a defeated candidate having the second place in the vote cannot maintain that he was elected as a second justice of the peace.</p> <p>Id.—Inapplicable Rule as to Filling Vacancy Under Election Proclamation.—The rule that, under an election proclamation not calling for the filling of a vacancy, a vacancy may nevertheless be filled, has no application where there is no existing vacancy to be filled in an office which is already filled according to law, and the only office to be filled is the single one specified in the election proclamation.</p> <p>Id.—Absence of Showing of More Than One Office to be Filled— Presumption.—In the absence of a showing that an election was in fact held for the purpose of filling two offices, it will be presumed that the electors generally acted upon the information conveyed by the official proclamation, that there was but one justice of the peace to be voted for and elected, and that the voters cast their ballots accordingly, and that in fact there was no election for any office other than the one so designated.</p> <p>Id.—Construction op Political Code—Use op Word “Elected”—City Charter op Richmond—Legislative Intent.—Section 4014 of the Political Code, which provides that in townships containing cities in which city justices or recorders are “elected,” there shall be but one justice of the peace, does not necessarily import by the use of that word an election by popular vote. Statutes are to be construed together to ascertain the legislative intent, and construing that section with the legislative charter of the city of Richmond, the legislative intent is satisfied by the choice of one city justice by vote of the city council, and as importing that only one justice of the peace shall be elected by popular vote in the township comprising that city.</p> <p>Id.—Use op Terms “Elected” and “Appointed.”—A narrow construction should not be put upon the statute. Although the words “elected” and “appointed” ordinarily are not synonymous, and though in its limited sense the word “elected” is usually employed to denote the selection of a public officer by the qualified voters of a community, and the word “appointed” is generally understood to mean the selection of a public officer by one or more persons empowered by law to make the appointment, still in its broadest sense the word “elected” means merely “selected,” and when used in that sense it is synonymous with “appointed,” and if the “selection” is by votes of the several members of a city council, it may be said in the broadest sense of the term that he was “elected.”</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order granting a new trial. J. M. Seawell, Judge.</p> <p>' The facts are stated in the opinion of the court.</p> <p>Edgar C. Levey, George M. Lipman, and Daniel C. Deasy, for Appellant.</p>

<p>Action for Services and to Enforce Lien—Conflicting Evidence as to Amount Due—Province of Trial Court—Review upon Appeal. In an action for services rendered by the plaintiff, as “refrigerating and constructing engineer,” in the erection of a precooling and refrigerating plant for defendants as owners of the premises on which it was to be erected, and to enforce a lien for the amount found due, where there is no dispute as to plaintiff’s qualifications, but the evidence is conflicting as to the amount due, it was the duty of the trial court to weigh and consider the evidence for both of the parties, and to determine the just conclusion to be drawn from it; and unless the record clearly shows that his conclusion is unwarranted, it is the duty of the appellate court to accept it and be governed by it.</p> <p>Id.—Weight of Evidence not Determined by Number of Witnesses— Support of Findings as Between Two Conflicting Witnesses.— The weight of the evidence is not dependent upon the number of witnesses. Trial courts are frequently called upon to solve questions of fact where the witnesses as to the existence of the fact are equally divided numerically. But there are almost always some circumstances cropping out which enable the court to determine the truth of the matter. It is held in this case that the findings of fact, as between two conflicting witnesses, are sustained by the evidence.</p> <p>Id.—Enforcement of Mechanic’s Lien.—It is held that a mechanic’s lien for the amount found due, in the sum of $495, was correctly adjudged to be a lien on the premises on which the plant was erected, and on the plant itself erected thereon, and that such lien is properly enforceable.</p> <p>Id.—Excess in Claim of Lien not Invalidating — Finding Against Fraud.—An excess in the claim of lien would not invalidate it under the original section 1202 of the Code of Civil Procedure, unless it was found to he “willful and intentional,” and under section 1203a as enacted in 1907, or 1203 as enacted in 1911, it is provided that no mistakes or errors in the statement of demand or the amount of credits or offsets shall invalidate the lien, unless the court finds that such mistake or error was made with intent to defraud. Where the court expressed its conviction that the plaintiff did not willfully attempt to assert a lien that he did not believe he was entitled to, and no fraud is shown or is inferable from the facts, the lien cannot be defeated merely because it turns out on the trial that the claim filed was for too much.</p> <p>Id.—Fraud not to be Presumed.—Fraud is never to be presumed, and before a party can be deprived of his right under a claim of fraud, it must be clearly made out.</p>

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

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an orde” refusing a new trial. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Conviction of Felony—Inquisition Requested as to Sanity—Absence of Doubt of Judge—Submission to Jury not Required.—Where, after the conviction of the defendant for a felony, defendant’s counsel presented affidavits for an inquiry as to his sanity, when the judge has no doubt as to the sanity of the defendant, there is no occasion for submitting the question of his sanity to a jury under the terms of section 1368 of the Penal Code.</p> <p>Id.—Calling of Inquisition of Physicians With Defendant’s Approval—Report as to Sanity—Objection to Irregularity—Disregard of Proceedings.'—When, with the approval of the defendant, the court, though without doubt as to his sanity, submitted the inquiry to a commission of physicians, which reported him sane, upon the subsequent objection of the defendant that the proceedings did not conform to the requirements of section 1368 of the Penal Code, the proceedings had upon such inquiry may be wholly disregarded.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County, and from an order denying a new trial. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, enforcing a writ of mandate. John J. Van Nostrand, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Percy V. Long, City Attorney of the City and County of San Francisco, and J. F. English, Assistant City Attorney, for Appellants.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County denying a new trial. John E. Richards, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Officers—Change in Compensation of Office During Term—Presumption of Increase—Change Inoperative Until New Term.— Where new legislation makes a change in the amount of compensation to be paid to the incumbent of an office elected for a specified term, unless it clearly appears 'by its terms that such change will not operate to increase the compensation theretofore paid, it will .be presumed that the compensation is thereby increased, and that the legislature did not intend it to be operative upon the current term of office; but if it may actually or presumptively increase the compensation, it is to be postponed in its effect until the commencement of a new term of office, to which the successor to the incumbent may be elected.</p> <p>Id.—Change of Legislation During Incumbency of County Recorder of Imperial County—Decrease of Salary—Deputies Paid from Treasury—Presumption.—Where after an incumbent of the office of county recorder of Imperial county had assumed office on a fixed salary of $3,000, under the obligation to perform all of the duties of the office, and to pay any deputies therefrom, when that county belonged to the thirty-sixth class, the legislature assumed to change its classification, and reduced the salary of that office to $2,000, and provided for “as many copyists as may be required,” who should be paid out of the county treasury, which right did not previously exist, and the incumbent assumed to appoint copyists to be so paid, it is held that it must be presumed that an increase of compensation would thereby result, and that the legislature did not intend that such change should be put into operation prior to the commencement of a new term.</p> <p>Id.—Mandamus of Copyist of Recorder to Auditor—Improper Allowance of Writ—Reversal.—Where a copyist appointed by the incumbent recorder sought by mandamus to compel the auditor to pay his demand out of the county treasury, and a demurrer to the petition for the writ was overruled and a peremptory writ was erroneously ordered as prayed for, the judgment must be reversed with direction to sustain the demurrer to the petition for the writ.</p>

<p>Officers—Change in Compensation During Term—Presumption of Increase—Change Inoperative—Improper Writ of Mandate.— The facts and principles involved in this ease are the same as those involved in Williams v. Garey, ante, p. 769, and the judgment is reversed upon the authority of that case.</p>

<p>Officers—Change in Compensation During Term—Presumption of Increase—Change Inoperative—Improper Writ of Mandate.— The facts and principles in this ease are the same as those involved in Williams v. Garey, ante, p. 769, and the judgment is reversed upon the. authority of that case.</p>

<p>County Cleric—Increase of Compensation—Provision for Salaried Deputy.—Where at the time of the election of a county clerk of Imperial county, while it was a county of the thirty-sixth class, his compensation was fixed at $2,200 per annum, which, as provided by section 4290 of the Political Code, was made full compensation for services rendered by him, his deputies and assistants, and during his incumbency the county was changed to the thirty-sixth and one-half class, and the compensation of the county clerk was fixed at $2,400 per annum, and a deputy was provided for at a salary of $900 per annum, not before provided for, and the incumbent county appointed such a deputy at the salary stated, it is held that the provision therefor constituted an increase of the compensation of the incumbent, prohibited by section 9 of article XI of the constitution.</p> <p>Id.—Distinction Between Additional Deputy and New Deputy.— Although, where an officer at the beginning of his term is allowed salaried deputies payable out of the county treasury, the provision for an additional deputy so payable does not constitute an increase in the salary of the office, yet where, as in this case, all deputies or assistants are to be paid out of the incumbent’s salary, a provision for a new deputy to be paid out of the county treasury constitutes a forbidden increase in the salary of the incumbent. This distinction must be regarded as settled law.</p> <p>Id.—Improper Mandate for Salary of New Deputy.—Where the court below improperly overruled a demurrer to the petition of the deputy, improperly appointed by the incumbent, for a writ of mandate to enforce the payment of the salary of such deputy in the sum of $1,445 out of the county treasury, and ordered -the auditor appellant to draw his warrant therefor, and granted a peremptory writ, it is held that the judgment must be reversed, with direction to the trial court to sustain the demurrer to the petition.</p>

<p>Fire Insurance—Action on Policy—Occupation op Dwelling—Outbuilding—Personal- Property in Dwelling—Cause op Action not Stated.—Where a policy of fire insurance covered a one-story frame building and fixtures and general household effects and wearing apparel, and an outbuilding on the premises, and it was made effective as to frame building only while it was occupied solely as a dwelling, and as to the outbuilding only while it was used as such, and the personal property was insured only while contained in the dwelling, in an action on the policy, where the complaint only alleged a destruction of all the property by fire, but contained no allegations as to the uses of the property as provided in the policy, it failed to state a cause of action, and a general demurrer thereto was improperly overruled.</p> <p>Id.—Appeal on Judgment-roll—Affidavit as to Evidence not Considered.—Where the appeal is taken only upon the judgment-roll, without any statement of evidence or bill of exceptions, an affidavit to the effect that the evidence at the trial showed that at the time of the destruction of the property insured the buildings were in use as described in the policy, and that the personal property insured was in the dwelling-house, such affidavit cannot be used to cure the failure to allege such facts in the complaint.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Jas. M. Troutt, Judge.</p> <p>.The facts are stated in the opinion of the court.</p>

<p>Account Stated—Support of Finding for Less Sum Than Sued for— Unauthenticated Exhibit for Larger Sum not Considered.—In an action upon an account stated in the sum of $700, where the finding of the court for a less sum is supported, but an exhibit “A” is printed in the transcript purporting to be signed for the larger sum sued for, but such exhibit is not authenticated in any manner nor shown to have been used on the hearing of the motion for a new trial, it cannot be deemed any part of the record, nor considered upon the appeal for any purpose.</p>

<p>Action fob Damages fob Trespass on Beal Property—Defendants Jointly Charged—Plea of Owners as to Act of Independent Contractor—Order Granting New Trial—Appeal.—In action for damages for trespass to real property, where three defendants were jointly charged, and two of them were owners of adjoining property who pleaded in defense that the sole liability was that of an independent contractor who had been employed by the adjoining owners to construct a street, it is held that upon appeal from an order granting a new trial as to all of the defendants, the sufficiency of such defense cannot be considered.</p> <p>Id.—Order Granting New Trial—Beview upon Appeal—Sufficiency of Pleadings not Beviewable.—A new trial is a re-examination of an issue of fact, and the sufficiency of the pleadings, either to support the plaintiff’s cause of action or to maintain any particular defense relied upon, is not involved in such re-examination of an issue of fact, and therefore cannot be considered upon appeal from an order granting a new trial.</p> <p>Id.—General Order Granting New Trial as to Three Defendants— Improper Order as to Independent Contractor.—In the action of trespass brought against three defendants for injury to plaintiff’s lot, and cutting off a portion thereof in the construction of a street, where the judgment was against them jointly, and a new trial was granted as to all of the defendants, where the evidence clearly shows that two of them were the owners of lots who had committed no trespass upon the plaintiff’s land, and that the other defendant was an independent contractor employed to construct the street, who was alone liable for the trespass committed, it is held that the new trial was properly granted as to such two defendants .and improperly granted as to such independent contractor.</p> <p>Id.—Change of Common-law Bule as to Effect of Vacating Order as to All Joint Tort-feasors.—The settled cómmon-law rule that when a verdict or judgment against several persons jointly charged as tort-feasors is set aside for error as to one or more of them, a reversal of the same is necessitated as to all of them, has been materially modified, if not entirely suspended, by statute in this state, in which it is now the rule that, if a verdict and judgment be given against several persons sued jointly, the verdict, if found erroneous as to one of them,- may be vacated as to that one only, and continue in full force and effect as to the remaining defendants.</p> <p>Id.—Question of Actual Damages—Punitive Damages not Involved. Where the evidence clearly shows that the amount of actual damages to plaintiff’s land exceeded the amount allowed by the verdict of the jury, no question of punitive damages is involved in the case or arises upon the record.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from orders vacating the service of summons and granting a motion to dismiss an action. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Charles Lantz, W. J. Wood, and Davis, Lantz & Wood, for Appellants.</p>

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