Volume 2 — California Appellate Reports

<p>The facts are stated in the opinion of the court.</p> <p>' W. C. Cavitt, C. A. Elliott, and D. E. Alexander, for Appellant.</p>

<p>APPEAL from a judgment of the City and County of San Francisco. M. C. Sloss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Mendocino County, and from an order refusing a new trial. J, Q. White, Judge.</p> <p>The facte are stated in the opinion of the court.</p>

<p>Landlord and Tenant—Modification of Written Lease—Executed Parol Agreement.—A provision in a written lease reserving to the landlord the right of pasturage upon the leased premises, is modified by a subsequent parol agreement between the landlord and the tenant which accords the tenant the right to pasture certain horses and cattle thereon free of charge, and which the tenant avails himself of until the end of the term, without any demand or claim made by the landlord for pasturage. In such a case the verbal agreement becomes executed.</p>

<p>Corporations—Notes to Agent—Unauthorized Indorsement of Corporate Name—Nonliability op Corporation.—Where notes for a piano sold by an agent of a piano company were taken in the name of the agent, who indorses them for value to a banking company, and without the authority or knowledge of the piano company indorsed its name upon the notes, and reported it as a cash sale, and received his commission on that basis, the piano company, which did not ratify the indorsement, and was not estopped to dispute the agent’s authority, is not liable upon the indorsement, regardless of the negotiability of the notes.</p> <p>Id.—Indorsement by Stranger to Notes—Indorsee Bound to Know Authority.—The banking company, as indorsee of the notes, in accepting the indorsement of the piano company as a stranger to the notes, was bound to know whether the indorsement was authorized.</p> <p>Id.—Collection op Drapt por Part op Money.—The fact that the agent who negotiated the notes executed to him took a draft for part of the money in the name of the company, and that the company collected the draft, did not necessarily imply that the company had knowledge of the transaction as to the execution and indorsement of the notes.</p> <p>Id.—Support op Findings—Evidence por Dependant—Conflict.— Where the findings were for the piano company, and the court accepted the evidence for that defendant, showing that the president of the piano company alone was authorized to sign its name, and that the company was not estopped to deny the authority of the agent, and did not ratify his action, and there was no evidence of his ostensible agency, the findings are sufficiently supported, notwithstanding any conflicting inference that the court might otherwise have drawn from other testimony and other circumstances in the case.</p> <p>Id.—Liability of Maker of Notes-—Erroneous Judgment—¡Reversal. Where the court found that the notes were executed by the maker thereof, and that the plaintiff is the owner and holder thereof, and that the same have not been paid, a judgment for the maker was erroneous, and must be reversed with direction to enter judgment against the maker as prayed for in the complaint.</p>

<p>Eminent Domain—Widening op Highway—Public Use.—An action will lie to condemn land for the alteration of a public road by widening the same. The widening of a public highway is a public use.</p> <p>Id.—Suppiciency op Complaint—Compliance with Law.—Where the nature of the alteration, the location, general route and termini, the description of land sought to be taken, and its relation to the larger parcel of which it was a part, are fully set forth in the complaint, and in the map attached to and made a part thereof by express reference, as well as by the law, and the complaint shows a strict compliance with section 2681 et seq. of the Political Code, including sections 2688 and 2689 thereof, it shows all that the law requires; and a demurrer thereto was properly overruled.</p> <p>Id.—Record upon Appeal—Bill op Exceptions-—Delay in Notice op Intention—Recital in Bill—Agreed Settlement—Waiver op Objection.—A notice of intention to move for a new trial which shows that it was served and filed too late, if not included in the bill of exceptions settled on the motion, is no part of the record, and a recital in the bill that such notice was seasonably served and filed must prevail over the notice of intention; and where the bill also recites that it was presented in time, and attached thereto is a stipulation that it be settled as correct, all objection to the notice of intention must be deemed waived.</p> <p>Id.—Record not Amendable—Review upon Appeal.—This court cannot change the authenticated record on the motion for a new trial; and will not order a diminution of the n.oi-d to amend the bill of exceptions on motion of the respondent, who cannot urge the objection thereto thus waived; and the bill of exceptions settled on the motion may be considered on an appeal, from the judgment.</p> <p>Id.—Authentication of New Trial Order.—The order refusing a new trial need not and could not be included in the bill of exeéptións; and it is sufficiently authenticated by the certificate attached to the transcript that a true and correct copy of the order is therein contained.</p> <p>3d.—Pleading—Insufficient Denials—Want of Information and Belief—Matters of Record—Admissions—Objections to Evidence. Denials of the averments of the complaint touching the report of the viewers, the notice of hearing, and the various orders and proceedings of the board of supervisors, which are matters of public record, based on want of information and belief, are wholly insufficient, and such averments stand admitted; and consequently assignments of error based on rulings pertaining to evidence in this behalf need not be considered.</p> <p>Id.—Effect of Orders Adopting Report and Directing Action—Assaults upon Petition and Report—Exúdenos.—The orders passed by the board of supervisors, adopting the report of the viewers, and directing the district attorney to bring the action for condemnation of land for the widening of tho highway, foreclose inquiry toneMng many assaults made upon the sufficiency of the petition and report, which were properly admitted in evidence.</p> <p>Id.—Reqdrt of Viewers—Inability to Ascertain Damages—Cure of Irregularity.—Where the report of the viewers states their inability to ascertain the damages claimed by the appellant, they were not required to report the damages, and their failure to do so, if an irregularity, was cured by the orders of the supervisors.</p> <p>Id.—Evidence—Auditor’s Warrant.—The auditor’s warrant was admissible in evidence upon the trial of a fact in dispute relative thereto.</p> <p>Id.—Harmless Error—Evidence of Dismissed Proceeding for Certiorari.—The admission in evidence of the record. in a proceeding for certiorari, instituted by the appellant, in which the writ was dismissed, conceding it to be erroneous, was harmless.</p> <p>Id.—Admission of Ownership of Land^-Right to Open and Close.— Where the ownersMp of the land was not in issue, being admitted by the answer, the defendant had no right to open and close the argument, which devolves upon the plaintiff, under section 607 of the Code of Civil Procedure.</p>

<p>Findings—Ageeed Statement of Facts.—Although findings of fact are not necessary to the validity of a judgment, where the case is submitted for decision upon an agreed statement of facts, yet the court is not thereby precluded from making such findings of fact. It may adopt the agreed statement as its own findings of fact, or it may make findings therefrom to correspond with the issues to be determined; and, as it is required to find only the ultimate facts in the case, it may find such ultimate facts from the probative facts set out in the agreed statement, as well as from evidence thereof.</p> <p>Id.—Statute of Limitation —Where a ease in which the defense of the statute of limita-.vns is set up in the answer is submitted for decision upon an agreed statement of facts, the court may make a finding upon such defense in accordance with the evidentiary facts agreed upon; and the insertion of its determination as a finding of fact instead of as a conclusion of law is immaterial.</p> <p>Id.—Bond of Contractor—Materials Furnished under Verbal Contract—Statute of Limitations.—A building contractor’s bond, executed to “any and all persons who should perform labor or furnish materials to them,” and conditioned that if the contractors “shall fully pay to the said person or persons performing labor or furnishing materials” the value of such labor or materials, said obligation should be void, otherwise to remain in full force and effect, is only collateral to any obligation that might arise in favor of materialmen for materials thereafter furnished by them. And when the primary obligation of the contractors to the materialmen for materials furnished, in pursuance of a verbal contract, is barred by the statute of limitations, the right of action of the material-men on the bond against the sureties is likewise barred.</p>

<p>APPEAL from an order of the Superior Court of Mendocino County authorizing the plaintiff to take possession of land pendente lite. J. Q. White, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mechanics’ Liens—Foreclosure by Contractor—Pleading—Performance of Contract—Uncertainty—Architect’s Certificate —Waiver of Objection.—In an action by a building contractor to recover the balance due on the contract, and to foreclose a lien therefor, where the complaint avers a full performance of the contract, and appends a copy of it as an exhibit, the complaint is sufficient in the absence of a special demurrer for uncertainty in failing to aver that the work was done to the satisfaction of the architect, and that he gave his certificate for the last payment, as provided in the contract. In the absence of such demurrer, the objection for the want of such averment is waived, and cannot be urged for the first time upon appeal.</p> <p>Id.—Issue as to Performance—Besponsive Finding—Completion-— Certificate—Possession of Building.-—Where issue was joined upon the averment of performance, and the court found that the contract was completed and finished, and was accepted by the architect, who issued his certificate for the completion payment, and that the owner took possession of the building and occupied it by his tenants, the findings are responsive to the issue as to the performance of the contract.</p> <p>Id.—Support of Findings—Satisfaction of Architect—Acceptance of Building—Oral Declarations.—The written certificate of the architect as to the completion payment placed in evidence, was some substantial evidence that the architect was satisfied with the building, and followed as it was by the owner going into possession of the building, it was evidence of acceptance of the building by the owner as well as by the architect. Oral declarations of the architect that he was not satisfied with the building could hardly be taken by the trial judge as impeaching his written certificate, and the judge may have considered the, objections as the fault of the plans and specifications of the architect, and not the fault of the builder.</p> <p>Id.—Counterclaim—Liens of Materialmen Paid by Owner.—Where the contract required the contractor, after acceptance of the work, to cancel and release all claims accrued in carrying on the work, liens paid by the owner for materials put into the building, with attorney’s fees and all expenses connected therewith, were properly allowed as a counterclaim and deducted from the amount otherwise due to the contractor; and that is all that the owner is entitled to demand.</p> <p>Id.—Wrongful Withholding of Final Certifícate.—It appearing that the builder completed his contract, and the owner took possession after the aeeeptanee certificate had been, executed, and the contractor was entitled to the certificate, the owner will not be allowed to defeat the contractor’s right of recovery by a wrongful withholding of the final certificate on the part of the architect.</p> <p>I'd.—Pleading and Proof—Performance—Excuse for Want of Certificate—Wrongful Withholding—Absence of Objection.—It was not necessary th-t plaintiff should plead an excuse for not obtaining the final certificate, but he could show his right thereto, and that it was wrongfully withheld, under the averment of performance of the contract, especially where no objection was made at tbe trial to evidence of the inexcusable and arbitrary withholding of the certificate by the architect, as not warranted by the pleadings.</p> <p>Id.—Proof of Assignment—Prior Unaccepted Order—Testimony of Holder.—Where the evidence clearly shows an assignment of the builder’s claim to the plaintiff, and that he is the owner thereof, proof of a prior unaccepted order given by the builder to a third person which did not amount to an assignment, could not affect the subsequent assignment to the plaintiff; and the testimony of the holder of the order that there was no assignment to him, should be accepted as controlling.</p> <p>Id.—Extra Work—Oral Agreement—Waiver of Stipulation for * Separate Written Estimate—Estoppel.—Where the evidence showed that the extra work on the building was done with the knowledge and consent of the owner and his agent, and that they waived the written stipulation for a separate written estimate of extra work by orally agreeing to and countenancing the work without written estimates, which would not have been done but for such consent of the owner, he will not be permitted to repudiate work done in the manner that he consented to, on the ground that it was not done in accordance with a previous written agreement.</p> <p>Id.—Evidence—Rebuttal of Testimony of Architect.—Where the architect had testified that the floor was defective, the court properly allowed the contractor to testify in rebuttal that he did not pay the subcontractor for the floor until the architect “passed on it, said it was all right and accepted it,’’ as tending to affect the weight of the architect’s testimony.</p>

<p>Street Improvement—Besolution of Intention—Exception of Work “Already Done”—Question of Fact.—Under subdivision 11 of section 7 of the street improvement act, the city council is authorized to except from its resolution of intention work “already done upon the street to the official grade, ’ ’ and whether any portion of the work authorized by a resolution of intention containing such exception has been “already done,” as well as the extent to which it has been done, is a question of fact to be determined by the superintendent of streets, subject to the right of appeal to the city council by anyone aggrieved by his determination.</p> <p>Id.—Assessment Against Portion of Frontage—Performance of Contract to Satisfaction of Street Superintendent—Omission of Lots.—The act of the superintendent of streets in making the assessment against only a portion of the frontage on each side of the street improved was a declaration by him that the contract had been fully performed to his satisfaction, and is not open to controversy in any other tribunal than the city council. The mere omission from the assessment of one or more lots fronting on the street does not of itself render the assessment void upon its face.</p> <p>Id.—Streets Terminating in Street Improved—Bule as to “Crossings” Inapplicable.—Where other streets terminate in the street improved, the assessment for the work done on one-half of the width of the street improved opposite those streets was properly made against the lands fronting on those streets respectively j and the directions of the street improvement act for assessments for work done upon the ‘ ‘ crossings ’' of streets are inapplicable.</p> <p>Id.—Single Assessment fob Wobk Under Contract—Distribution of Amount—Frontage of Lots.—The assessment does not cease to be a single assessment for the work done under the contract, because the amount of the assessment opposite the terminating streets is distributed over a larger area. This does not affect or enlarge the amount to be assessed upon lots fronting on the street improved.</p> <p>Id.—Certificate of Engineer—Sufficiency.—The statute does not specify the character of the certificate to be given by the engineer after the work is completed. He is not required to state matters to be determined by the superintendent of streets; and his certificate was sufficient where it gave the measurements of the several species of work for the cost of which an assessment is to be made upon the lands liable therefor, and states that he found that work to the official line and grade.</p> <p>Id.—Evidence—Private Unperformed Contracts—Additional Work —Bemedy to be Sought Elsewhere.—The court properly excluded from evidence private unperformed contracts with the plaintiff, which also included additional unperformed work. The breach of such contracts can be no defense to the enforcement of an assessment under the contract awarded by the council; and any remedy for the breach of such private contracts is to be sought elsewhere.</p>

<p>APPEAL from a judgment of the superior court of Santa Clara County and from an order refusing a new trial. W. G. Lorigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of prohibition to the Superior Court of Santa Cruz County. Lucas P. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Officers—Eligibility of Retired Army Officer—Construction of Constitution.—A retired army officer does not hold a lucrative "office” within the meaning of section 20 of article IV of the state constitution, and is eligible to a civil office of profit in this state.</p>

<p>Criminal Law—Lewd and Lascivious Act—Information.—An information charging the commission of a “lewd and lascivious” act upon and with the body of a child under the age of fourteen years, with the intent to arouse, appeal to and gratify the lust, passions and gexual desires of the one committing the act and of the child, ■need not allege that the act was attempted or committed between persons of the opposite sexes.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. M. T. Allen, 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>D. McFadzean, J. W. Davis, and C. L. Russell, for Appellant.</p>

<p>Judgment or Sister State—Custody op Child—Removal to California—Modification—Recital op Notice—Habeas Corpus— Attack Upon Jurisdiction.—Where a decree of divorce in Kansas awarded to the wife the custody of a minor child, without restriction as to residence, and she removed therewith to California, and subsequently the Kansas court, upon recital of notice to plaintiff’s attorney, modified the decree by awarding the custody of the child to its grandfather residing in that state, upon petition by him for a writ of habeas corpus to recover the custody of the child from its mother in this state, she may attack the modification of the decree for want of jurisdiction, by proof that no notice thereof was in fact given.</p> <p>Do.—Constitutional Law-—Faith and Credit to Judgments—Inquiry as to Authority—Recital not Conclusive.—The provision of the federal constitution requiring full faith and credit to be given to the judgment of a sister state, presupposes that the court rendering it has acted within the legitimate scope of its authority, and if it was rendered without authority in fact, neither the courts of that state nor of any other are bound by it; and the want of authority may be shown by extrinsic evidence, notwithstanding a recital in the judgmmt of jurisdictional facts. Such recital is not conclusive.</p> <p>Id.—Law Applicable.—Where the law of the sister state required notice to be given of the modification of a decree of divorce awarding the custody of the child, and under the law of both states, as well as the decisions of the federal courts, a judgment rendered in one state may be assailed in another for want of jurisdiction, such modification may be assailed in this state on that ground.</p> <p>Id._Finality op Judgment—Authority to Serve Notice not Extraterritorial.—"Where the judgment of divorce became final, and .the wife, after removal to this state with the child, never submitted voluntarily to the jurisdiction of the Kansas court, and the proceedings to modify the judgment were instituted after her removal, there was no extraterritorial authority in the Kansas court to serve notice upon her to appear or to require persons not within its territory to appear before it.</p> <p>Id.—Judgment as to Custody op Children—Authority op Courts op this State—Habeas Corpus an Inadequate Remedy.—Judgments relating to the custody of children have no extraterritorial force, and are not conclusive even as evidence in another state. The courts of this state, as parens patriae to the minor child, may award its custody to the mother, or other suitable -person, notwithstanding the judgment of a sister state as to its custody, rendered while it was lawfully in this state. The writ of habeas corpus is an inadequate and inappropriate remedy for the consideration and final. adjustment of the equitable and interstate questions involved. [Per McLaughlin, J., concurring.]</p>

<p>Foreclosure of Mortgage—Correction of Name in Decree—Misnomer by Commissioner—Identification of Cause.—Where, in a decree foreclosing a mortgage, a clerical misprision in the judgment by adding a first initial to the name of a defendant was amended to conform to the complaint and service of summons, and a commissioner was authorized to execute the corrected judgment, his acts in incorporating the excluded initial in the certificate of sale and deed will not invalidate the same when the title of the cause given by him under which he acted was sufficient to identify it.</p> <p>Ib..—Correction of Clerical Misprision—Judgment not New or Different.—The amendment of the judgment to correct the clerical misprision therein did not materially affect the judgment or make it a new or different judgment.</p> <p>Id.—Application for Writ of Assistance—Attack Upon Action of Commissioner.—Upon application by the purchaser for a writ of assistance, the commissioner cannot be permitted to impeach Ms return of sale and deed as a witness; nor can a defendant in possession be heard in tMs proceeding to question the regularity of the action by the commissioner, by way of collateral attack upon the validity of the deed.</p> <p>Id..—Identity of Defendant in Possession—Use of Different Names—Uncontradicted Proof.—Where the complaint averred • that the defendant whose name was changed in the judgment was in possession, and at the hearing of the application for the writ of assistance, the uneontradieted fact properly appeared by affidavit that the defendant was sometimes called by the name first used in the judgment, and also by the name used in a deed to a substituted defendant, made pending suit, and that they were one and the same person, the grantee or such defendant, who took pendente lite with knowledge of the action, cannot defeat the writ.</p> <p>Id. ,—Title not Involved upon Writ—Independent Action.—The inquiry as to the fact of such identity did not raise an issue involving title. .The proceeding for the writ of assistance does not determine title. If such grantee has a title not adjudicated in the action he may establish it in an independent action, in which he will not be estopped from showing that there was no identity of person.</p>

<p>Frivolous Appeal—Award op Damages.—Where an appeal from a judgment and from an order denying a new trial is confessedly without merit, and it is apparent that it was taken merely for delay, and has had the effect to keep the plaintiff out of the money due him upon a promissory note of the defendant for upward of two years, and to put him to cost for attorney’s fees and printing brief, the judgment and order will be affirmed with damages for a frivolous appeal.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order denying a new trial. Frank H. 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>Justices of the Peace—Invalid Election—Change of Previous Offices to Single Office—Quo Warranto.—Where by amendment of the County Government Act but one justice of the peace was to be elected in a certain township in. which formerly two were lawfully elected, an election of two justices of the peace after such amendment was adopted was invalid, and neither of them is entitled to hold the office; but both will be ousted therefrom upon quo warranto.</p> <p>Id.—Holding Over—Findings—Appeal by Ousted Defendants—Error not Beviewable.—Where the court found that one of two previously elected justices of the peace had died, that his office was not idled by election or appointment, and that the other incumbent who was also made defendant in quo warranto was entitled to hold over upon appeal by the ousted defendants, without any appeal by the relator, no error relating to the judgment in favor of the other defendant is reviewable.</p>

<p>APPEAL from a judgment of the Superior Court of City and County of San Francisco. J. C. B. Hehbard, 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. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations—Creditor’s Suit upon Stock Subscriptions—Defenses —Paid-up Stock — Indebtedness to Stockholder — Evidence — Finding.—In an equitable suit by judgment creditors of a corporation to recover alleged unpaid subscriptions to its stock, in which defendants pleaded that the stock was paid up, and in which one of them pleaded an agreement between the stockholders that the stock was to be issued for services to be rendered by him, and that services were rendered in excess of the face value of the stock, and such defendant testified without objection that the corporation was indebted to him for services worth twice the face value of the stock, which was confirmed by the books of the corporation introduced by plaintiff, it was the duty of the court to do equity to such defendant, and to find the value of the services as bearing upon the plea of quantum meruit, as well as upon the other issues, and to have given that fact due effect.</p> <p>Id.—Issuance of Stock—Resolution of Board of Directors—Notice of Meeting—Recital in Record.—Where resolutions of the board of directors in regard to the issuance of the stock of the corporation were passed at a meeting, the record of which recites that the directors were notified thereof, the recital is sufficient proof of notice to them, where the contrary does not appear.</p> <p>I'd.—Evidence—Agreement Between Incorporators—Construction of Resolutions—Paid-up Stock—Illegality of Certificates not Presumed.—An agreement between the incorporators in regard to the issuance of stock was admissible in evidence, as having an important bearing upon the question as to the construction and validity of the resolutions of the board of directors, and as indicating that the stock was issued as paid-up stock, and that otherwise the issue of the certificates would have been illegal, which is not to be presumed.</p> <p>Id.—Adoption of Incorporators’ Agreement—Validity of Action of Directors—Sole Beneficiaries.—By the adoption of the incorporators’ agreement by the corporation, that agreement became the agreement of the corporation; and no objection can be urged to the resolution adopting it on the score of the interest of the directors, who, though trustees, were the sole beneficiaries, and in this double capacity were fully empowered to act.</p> <p>Id.—Limit of Judgment Creditor to Rights of Corporation—Want of Privity with Stockholders—Absence of Praud or Estoppel. ' Where no direct liability of stockholders is involved, the rights of a judgment creditor seeking to enforce the subscription of stockholders to .the corporation as its debtors, between whom there is no privity, cannot in general be greater than those of the corporation against the stockholders if there is no fraud, actual or constructive, and there are no facts showing an estoppel of the stockholders as against the judgment creditor.</p> <p>Id.—Employment by Principal Stockholders of Others—Paid-up Stock for Services.—Where, from the circumstances of the case, it may be inferred that the principal stockholders were the employers of others, and caused paid-up stock to be issued to them as employees for their services, and there was no fraud in the terms of their employment, there is nothing to take the case out of the general rule that the creditors of the corporation have no greater rights than the corporation.</p> <p>Id.—Presumption of Fairness—Protection of Assignee.—Where the contrary does not appear, and until the contrary is shown, the presumption is that the transaction of the issuance of stock for» services was fair, and this general presumption is confirmed by the consideration that the issue of the certificate would otherwise have contravened constitutional and statutory provisions; and in the absence of circumstances tending to inform him better, the assignee of stock so issued may rely upon such presumption.</p> <p>Id.—Power of Corporation—Issuance of Stock for Property or Services.—A corporation has legitimate power to dispose of and issue stock for full value received in land or property or in services.</p> <p>Id.—Action upon Subscription—Executed Contract—Implied Contract—Material "Variance.—Where the action as pleaded and! found is upon a subscription to stock, and the proof shows an, executed contract of subscription, and any recovery, if it could be-otherwise had, can only rest upon an implied contract to pay the-full par value of the stock, the variance is material.</p> <p>Id.—Further Proceedings—Question as to Eemedy—Assessmentupon Stock—Parties—“Law of Case.”—Where the majority of the justices of the district court of appeal are of the opinion that as to further proceedings the remedy of the judgment creditors to reach subscriptions to stock can only be had by an assessment upon the stock by the corporation or by the court, and that all stockholders should be made parties, and one of the justices is of the contrary opinion, the majority opinion is not the “law of the ease” for further proceedings.</p>

<p>Trusts—Mortgage by Trustees on Part of Trust Property—Payment of Encumbrances—Construction of Power.—Where a trust deed empowered the trustee to execute one or more mortgages of property to pay off encumbrances, consisting of tax sales and administration expenses, and to redeem from tax sales, the trustee was thereby empowered to mortgage a part of the trust estate, to pay off the claims of a holder of tax sales, who released all claims thereto.</p> <p>Id.—Implied Powers—Use of Proper Means.—Where a trustee conforms with the provisions of the trust in their true spirit and meaning, he has authority to adopt measures and to do, acts which, though not specified in the instrument, are implied in its general directions, and are reasonable and proper means for mailing them effectual.</p>

<p>Order Granting New Trial—Chance Verdict—Division bt Twelve— Affidavits of Jurors—Discretion—Support of Order.—An order granting a new trial for misconduct of the jury in assenting to their verdict by a resort to chance, is sufficiently supported by the affidavits of two credible jurors showing that the amount of the verdict was ascertained by a division of the amount favored by each juror by twelve,- without further discussion, and it was not an abuse of discretion to grant the order notwithstanding the counter-affidavits of seven other jurors, especially where they did not expressly deny the statements of the two jurors, nor state anything inconsistent therewith.</p>

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

<p>Master and Servant—Injury to Young Boy Employed in Sawmill— Failure to Warn op Danger—Support op Verdict.—Where an inexperienced boy of nine years of age was employed in a sawmill dangerously near to a saw, in bringing blocks to be sawed, and in carrying away blocks sawed, and was injured by having his finger sawed off, a short time after he began work, without having been warned or instructed by anyone to keep away from contact with the machinery or saws, a verdict in his favor is sufficiently supported.</p> <p>Id.-—Duty op Master to Give Cautionary Instructions.—The law made it the duty of the master to give cautionary instructions when this nine year old boy was employed and placed amid unusual circumstances, in a noisy room full of danger even for adults.</p> <p>Id.—Contributory Negligence—Knowledge op Child—Thoughtlessness—Want op Judgment—Question op Fact por Jury.—The testimony of the child that he knew the saw would cut fingers as well as boards, and that he would get hurt if he went near the saw or got against it when it was going, does not establish contributory negligence as matter of law. A child may have knowledge and acquire facts, but lack the ability to apply his knowledge. The accidents of childhood come from thoughtlessness or carelessness which are but other words for absence of judgment. It must, from the nature of the case, be a question of fact for the jury, rather than of law for the court, to say whether or not, in the performance of a given task, a child duly exercised such judgment as he possessed, taking into consideration his years, experience and ability.</p> <p>Id._Obedience op Boy to Elder Brother—Fellow-servant—Absence op Negligence—Verdict not Appected.—Where it appears, that the child must have understood that he was to obey his elder brother, who was running the saw, and who had called him, and that the boy was leaning toward him in listening attitude when the accident occurred, and where, supposing the brother to have been a fellow-servant, it cannot be said, considering the noise and the circumstances of the case, that he was negligent, his action cannot affect the evidence supporting the verdict.</p> <p>Id.—Heartless and Unlawful Employment op Children not to be Favored.—If employers will aid and abet heartless and mercenary parents in taking little children from the playground and the schoolroom to place them where dangerous machinery is in operation, they cannot expect courts to favor them as to the degree of care required of them, or to place technical limitations on the right of a jury to-weigh the words, acts, ability and capacity of such children, in the light of natural impulses, attributes and characteristics, in actions for injuries received during the course of an employment denounced by the rules of humanity, and by a law of this state.</p>

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

PETITION for contempt proceedings against the judge of the Superior Court of Santa Cruz County. Lucas F. Smith, Judge. The facts are stated in the opinion of the court.

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

<p>Foreign Corporations—Organization—Pleading—Immaterial Issue as to Name op State—Failure to Find.—In an action against a foreign corporation, of what state it is a corporation is matter peculiarly within the knowledge of the defendant and need not be averred in the complaint; and an issue tendered and joined as to the name of the state under whose laws it is alleged to be organized is immaterial, and the failure to find thereon cannot prejudice the defendant.</p> <p>Id.—Action Against Owner of Steamship—Negligent Stowage— Evidence—Letter of Agents not Part of Ees Gestae—Narrative.—In an action against the foreign corporation as owner of a steamship, to recover damages for negligent stowage of sheep pelts shipped thereon by plaintiff, a letter written to plaintiff by defendants’ agents, which is not part of the res gestae, but which purports to be a mere narrative of past facts relative to the shipment and manner of stowage of the pelts, was not admissible in evidence against the defendant; and in view of other facts appearing, it is held that the error in admitting such letter was clearly prejudicial.</p> <p>Id.—Declarations of Agent—Explanation of Previous Act.—The declarations of an agent, not connected with the transaction to which they refer, cannot bind his principal, even though made in explanation of an act previously done by him while in the exercise of his agency.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. M. T. Allen, Judge.</p> <p>.The facts are stated in the opinion of the court.</p> <p>M. L. Graff, and Lawler, Allen & Van Dyke, for Appellants.</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, denying a writ of prohibition. Henry A. Melvin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Easements—Injury to Way—Damages Prior to Purchase op Dominant Estate—Objection to Evidence.—The owner of land subject to the easement of a way appurtenant to adjacent land is not liable to a purchaser of the adjacent land for damages for injury to the way which accrued prior to the purchase of the dominant estate; and where such purchaser sued for injury to the way, an objection to a question which included such prior damage, and was not limited to damage done since the purchase, should be sustained.</p> <p>Id.—Burden op Proof—Error not Caused by Right op Cross-examination.-—The burden is upon the purchaser to establish his right of recovery by competent and relevant evidence; and his error in asking for irrelevant evidence was not cured on the ground that it might have been obviated by cross-examination.</p> <p>Id.—Findings Against Evidence—Cost op Replacing Culverts Removed.—Where there was no evidence of any damage done to the way since the purchase of the adjacent land by the complainant, findings that he was damaged in the sum that it would cost to repair the way by replacing culverts wrongfully removed therefrom prior to the purchase, and that his road was damaged in said sum, are against the evidence.</p> <p>Id.—Construction op Finding—Damage to Road op Purchaser.—The finding that the road of the purchaser was damaged by the removal of the culverts, whether construed as declaring without evidence that the purchaser had a road when the culverts were removed, or construed as declaring the damage done to the road by the removal of the culverts, without showing that it was caused while he was the owner of the road, cannot be supported as sustaining any right of the purchaser to recover.</p> <p>Id.—Finding not Sustained by Presumption of Other Evidence-Bill op Exceptions.—A finding is not sustainable by presumption of other evidence not set forth in the bill of exceptions. It is to be presumed that the bill of exceptions contains all the evidence given at the trial which is material to the points specified as error.</p>

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

<p>Negligence—Injury from Spike in Plank—Temporary Driveway to Building—Presumption.—In an action for damages incurred by plaintiff in tripping on a large nail or spike projecting two inches in height from one of several planks placed upon a cement sidewalk as a temporary driveway to defendant’s building while in course of construction, it must he presumed that it was defendant’s driveway, plank and nail, maintained there by defendant with his knowledge.</p> <p>Id.—Duty of Court—Rebuttal of Presumption—Question of Pact. The duty was east, in the first instance at least, upon the trial court to determine whether the testimony of the manager and other agents and employees of the defendant that they did not place the hoards there and did not know who placed them there, was sufficient to rebut the presumption arising from the other facts. The jury might have inferred from the evidence of the manager that defendant was in possession of the premises and had authority there, and that he did not know who placed the board there, that he did not want to know. At all events, the question who placed them there was one of fact for the jury.</p> <p>Id.—Nuisance.—The maintenance of a spike two inches high in a sidewalk is a nuisance, dangerous to life and limb.</p> <p>Id.—Excuse—Difficulty of Seeing Spike—Question of Pact.—It is a question of fact whether “the spike was hard to see,” and the jury were fully warranted in declining to excuse the defendant from maintaining the nuisance on any such ground.</p> <p>Id.—City Ordinance Authorizing Planks—Spike not Authorized.— A city ordinance authorizing the use of planks as a driveway does not include the protruding spike, which caused the plaintiff’s downfall.</p> <p>Id.—Planks Placeo by Independent Contractors—Liability go Owner—Instructions.—If it be conceded that there is evidence that the planks were placed there by an independent contractor, yet the owner is liable if its manager or agents knew of their dangerous condition, or if, as careful or prudent men, they should have known it. Instructions recognizing this rule were properly given, and were within the issues presented to the jury.</p> <p>Id.—Ordinary Care—Question for Jury.—The question whether, with ordinary care, the defendants would have discovered the nail, and what was ordinary care under the circumstances of the case presentee, was one of fact for the jury.</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>Criminal Law—Bribery op Legislator—Testimony op Accomplices— Corroboration—Question op Pact.—-Upon trial of a legislator accused of accepting a bribe, the question whether or not any witnesses for the prosecution were accomplices, or whether any of them were corroborating witnesses, who were not accomplices, was one of fact for the jury to determine.</p> <p>Id.—Support op Verdict—Conflicting Evidence as to Partakers op Crime.-—-Before it can be concluded that the verdict must fail for want of corroboration of an admitted accomplice, it must appear without substantial conflict that all the witnesses for the prosecution were partiaeps criminis; and where there is conflicting evidence on that question, it must be assumed in support of the verdict that the jury found to the contrary, and had the right to view other testimony as corroborative of the testimony of the admitted accomplice.</p> <p>Id,—Witnesses not Partakers op Crime—-Detection op Crime.—Witnesses who did not suggest, advise or encourage the commission of the offense, and who had no criminal intent, but who engaged in a scheme merely to detect, expose and punish the crime, are not partakers of the crime and may be properly considered as corroborating witnesses.</p> <p>Id.—Degree op Corroboration Required.—-While corroborating evidence must create more than a mere suspicion of the commission of the offense, it is not required to be absolutely convincing, and need not extend to every fact and detail covered by the testimony of accomplices; but it is sufficient if, standing alone, it tends to connect the defendant with the crime.</p> <p>Id.—Investigation Before Legislative Committee—Bribery to Protect Associations.—Where the bribe was accepted by the legislator as chairman of a committee appointed to investigate the affairs of building and loan associations, with power to subpoena witnesses, in order to protect certain associations from investigation, it is not necessary to show that any investigation of such association was pending. It was sufficient that the committee was engaged in a general investigation of similar associations, and that the investigation of such other associations was matter upon which defendant might be required to act in his official capacity.</p> <p>Id.—Testimony op Accomplices to Conversations with Dependant— Order op Proof.—An accomplice may testify to declarations made by the defendant, and even if it be conceded that proof of the conspiracy between them should first be made, the order of proof was discretionary, and not mandatory; and where there is other evidence to show the relations between them, it cannot be said that the court erred in admitting the testimony.</p> <p>Id.—Conversations with Accomplice—Tracing of Money Used 'as Bribe.—Conversations with the accomplice, who was connected with the bribing of the defendant and other legislators, were properly admitted in evidence; and such evidence and that of other witnesses was admissible to trace from its source to its destination the money used as a bribe, and to show that the witnesses giving such evidence were not accomplices.</p> <p>Id.—Culpability of Witnesses—Guilt of Defendant.—The culpability of witnesses or the lack of it cannot minimize the guilt of the defendant.</p> <p>Id.—Plot to Entrap Defendant—Detection of Dangerous Crime— Corroborative Evidence.—The plan to entrap the defendant, having for its object the detection of a crime fraught with danger to the state, and which amounted to nothing more than procuring corroborative evidence essential to a conviction, cannot render inadmissible the testimony of those engaged in it.</p> <p>Id.—Crime not Encouraged.—Such methods, under the circumstances here appearing, are not within the rule against encouraging crime merely to procure its commission, to the end that those willing to become offenders may be punished, but they fall within that other rule which justifies dissembling to procure additional and necessary evidence of guilt.</p> <p>Id.—Charge of Asking and Receiving Bribe—Verdict—Instruction. Where the defendant was charged conjunctively with asking and receiving a bribe, and the jury found him guilty as charged in the indictment, an instruction that either asking or receiving the bribe would justify a verdict of guilty is not erroneous, nor could it have harmed the defendant.</p>

<p>Railroads—Wrongful Ejection of Passenger—Purchase of Ticket in Reliance upon Custom—Conflicting Evidence—Instructions. In an action for damages against a railroad company for wrongful ejection of plaintiff from its train, after having purchased a ticket for a particular station, in reliance upon its custom to stop thereat, on the day before a holiday, where the evidence was conflicting as to the existence of such custom, the court properly modified instructions requested by the defendant, and gave instructions at request of the plaintiff, so as to include the right of the plaintiff to depend upon such custom, in the absence of express notice of a change thereof.</p> <p>Id.—Remedy of Plaintiff—Action in Tort.—The plaintiff is not compelled to rely on the recovery of damages for breach of the contract of carriage, but may bring an action in tort to recover damages for a wrongful expulsion from the train.</p> <p>Id.—Damages not Excessive.—An award by the jury of five hundred dollars’ damages for a wrongful expulsion of the passenger, as the result of which he walked three miles to his home, getting wet in so doing, from which he contracted pneumonia, cannot be said to be excessive, and is conclusive on this count, in the state of the evidence, where the trial court fairly submitted to the jury the question whether the plaintiff had aggravated his injuries or sickness by his own negligence.</p>

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

<p>Mechanics' Liens—Claim of Lien for Materials—Untrue Statement of Contract—Lien not Enforceable.—In an action to foreclose a lien for lumber furnished to the contractor to be used in a building, where the court found upon sufficient evidence that the claim of lien did not state correctly the terms, time given, and conditions of the contract, and that it was untrue in essential particulars, the lien cannot be enforced; and judgment was properly rendered in favor of the owner of the building.</p>

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

<p>Criminal Law — Murder — Self-defense — Intention to Kill-—Erroneous Instruction.—Where a defendant charged with murder, and convicted of manslaughter, claimed that the shot which killed the deceased was fired in self-defense, and the court correctly inT strueted the jury upon the subject of proof of an intention to kill, and that if defendant shot and killed the deceased, the law presumes that he intended to kill him, it was prejudicially erroneous further to instruct them that “unless it is shown by the evidence that his intention was otherwise than his acts indicated, the law will not hold him guiltless.” One might intend to kill, and yet be entirely guiltless.</p>

<p>Injunction Against Servant — Cross-complaint — Services Rendered as Wipe—Divorce—Agreed Remarriage—Representation op Plaintiff.—In an action to enjoin the defendant from remaining in plaintiff's house, under a complaint alleging her employment as a servant at $20 per month, and her discharge in May, 1902, upon which issue was taken by the defendant, a cross-complaint, alleging that they had been husband and wife, but had been divorced in 1898, and a few months thereafter had agreed to remarry at Reno, Nevada, where she became unconscious, and after recovery therefrom was told by plaintiff that the marriage had taken place, and they were again husband and wife, that they then assumed marital relations, and that she afterward, in 1901, assumed management of plaintiff’s lodging-house as his wife, and so continued till May, 1902, during all of which time she believed that she had been legally married to him, and was his wife, and that in so doing she had rendered him services worth $50 per month, states a cause of action entitling her to relief against the plaintiff.</p> <p>Id.—“Transaction” Embracing Relations of Parties.—The “transaction” upon which the action was brought embraced the relations between the plaintiff and the defendant under which the latter rendered the services alleged by him, and the affirmative relief sought by her under the cross-complaint related to and depended upon those relations. The plaintiff could not, by alleging that the services were rendered under an employment, deprive her of the right of showing the facts under which they were rendered, or of obtaining what relief she was entitled to upon the ascertainment of the facts by the court.</p> <p>Id.—Immoral Relation Negatived.—The averments of the cross-complaint are inconsistent with the theory that the services rendered were of an immoral nature and upon an illegal consideration; and the finding that she remained in plaintiff’s house in the relation of mistress, and remained in that capacity, under the belief that she was Ms wife, negatives the idea that the services were rendered upon the consideration that she would be Ms illegal mistress.</p> <p>Id.—Fraud of Plaintiff.—If the plaintiff fraudulently induced the defendant to render the services found by the court, he cannot avail Mmself of Ms own fraud in so doing to escape liability for their value.</p> <p>Id.—Allowance of Interest—Improper Conclusion—Construction of Judgment.—Where the court does not specify dates of service, and the services were not rendered under a contract fixing dates, a conclusion of law that the defendant was entitled to interest on the sum of $30 per month from the several dates at wMch they accrued, but where the judgment was for $360 with interest thereon, is to be construed as properly importing legal interest from the date of the judgment.</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. J. S. Beard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to set aside and modify the award of arbitrators. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estate of Living Person—Void Administration—Determination of Death Assailable.—Proceedings for the administration of the estate of a living person, upon averment of her - death are void ab initio and throughout. Notwithstanding the determination of death, the fact that the supposed intestate is alive may be shown to establish the nullity of the entire proceedings.</p> <p>Id.—Recovery of Money—Statute of Limitations.—The proceedings being void, the living person had a right of action against the administrator as soon as he received money belonging to the plaintiff, to recover the same, and where more than foul years have elapsed since the receipt of the money, and more than three years have elapsed since plaintiff had knowledge of the facts, the action is barred by the statute of limitations.</p> <p>Id.—Demurrer to Complaint—Plea of Bar of Statute.—In presenting the question of the bar of the statute of limitations by demurrer to the complaint, it is not necessary to refer to the particular section relied on. It is sufficient to specify the statute as one of the grounds of demurrer; and where the ground is stated that the cause of action accrued more than four years before the action was commenced, the demurrer should be sustained, if the complaint shows that it was barred in that or any less period.</p> <p>Id,—Setting Aside Proceedings—Order for Return of Property and Execution—Annulment upon Writ of Review—Time not Extended.—Where the void proceedings were set aside by the superior court, which made an order for a return of the property by the administrator and for execution against him, and such order was annulled upon writ of review, the annulment thereof cannot be deemed the ‘ ‘reversal of a judgment upon appeal," within the provision of section 355 of the Code, allowing a new action to be commenced “within one year after the reversal," and does not operate to extend the time for commencing an action to recover the property.</p>

<p>Appeal—Dismissal—Judgment on Appeal prom Justice’s Court— Killing op Animals on Railroad Track—Negligence—Title to Land Immaterial.-—A judgment rendered on appeal from a justice’s court for the sum of $250 for the killing of a horse and mare of plaintiff on defendant’s railroad track, in an action the gist of which was that their death resulted from the negligence and recklessness of defendant’s employees while the animals were on the track, and in which an allegation and finding of title to the adjacent land are immaterial, is not within the appellate jurisdiction of this court, and an appeal therefrom must be dismissed.</p>

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

<p>Fire Insurance—Action for Loss of Dwelling—Breach of Condition Against Vacancy—Modification of Policy as to Personal Property—Evidence—Nonsuit.—In an action on a fire insurance policy to recover for loss of a dwelling, where there was an admitted breach of a condition of the policy by vacancy of the dwelling for more than ten days, during which the loss occurred, unless the policy upon the building was modified, where it appears that, upon a proper construction of a slip modifying the policy, it applied only to insured personal property removed to another dwelling, such modification was inadmissible in evidence, and the insurance company was entitled to a judgment of nonsuit.</p> <p>Id.—Explanation of Contract—Use of Broad Term—Printed Matter Controlled by Written Matter.'—Under the provisions of the Civil Code, a contract may be explained by reference to the circumstances under which it is made; and however broad its terms, it extends only to those things concerning which the parties intended to contract. Where the contract is partly written and partly printed, and printed matter is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts purely original control that copied from a form, and if the two are repugnant, the latter must be so far disregarded.</p> <p>Id.—Written Modification of “Second Item” of Policy—Personal Property—Blank Form—Printed Words—“First Item” not Changed.—Where the “first item” of the policy related exclusively to the insurance on the dwelling, and the “second item" related exclusively to personal property therein, and the modifying slip began with the written words: “The second item of this policy is hereby made to read as follows,” and its sole object was to allow it to remain insured while in another dwelling described in another city, to which it had been removed, the mere use of a blank form containing inapplicable printed words, as a part of such second item, including the printed words, “also vacancy during change of tenants, if the subject of insurance be a dwelling located in a town,” does not indicate an intended modification of the first item of the policy.</p>

<p>Order Granting New Trial—Presumption upon Appeal.—Upon appeal from an order granting a new trial, all presumptions are in favor of the order, and unless it is shown to the contrary, it will be presumed that the order was made upon some valid reason.</p> <p>Id.—Statement on Motion for New Trial—Laok of Specifications— Amendment—Discretion.—Where the statement on motion for a new trial contained no specifications of error, or of particulars wherein the evidence was insufficient, the court properly exercised its discretion in allowing the statement to be amended by inserting the same, so that the motion might he presented on its merits.</p> <p>Id.—Specification of Insufficiency of the Evidence—Findings Held Unsupported — Neglect of Appellant. — Where the amended specifications of insufficiency of the evidence to support the findings are sufficient under the liberal rule allowed by this court, and the trial court has held them unsupported, by granting a new trial, .and the appellant has not pointed out the evidence that tends to support them, it is not the duty of this court to look through a mass of evidence for the purpose of finding sufficient evidence to overthrow the ruling of the trial court.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, dismissing a motion for new trial. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>New Trial—Unreasonable Delay in Presenting Engrossed Bill for Signature—Dismissal of Motion.—Any unreasonable delay in presenting an engrossed bill of exceptions for the signature of the judge authenticating it is subject to the same rule as in the ease of failure to engross the bill, and is ground for a dismissal of the motion for want of due diligence in prosecuting the same.</p> <p>Id.—Absence of Judge—Duty of Moving Party to Ascertain Return—Necessity of Diligence.—The fact that the judge was absent when the bill of exceptions was engrossed cannot relieve the moving party from the necessity of diligence in ascertaining his return, and procuring his signature to the bill.</p> <p>Id.—Unauthorized Deposit with Clerk.—There is no law authorizing an engrossed bill of exceptions to be filed with the clerk before it has received the judge’s'signature; and it is not the duty of the clerk with whom it may be left to deliver the engrossed bill to the judge for his signature.</p> <p>Id.—Determination of Diligence by Judge—Discretion—Review upon Appeal.—The question whether the moving party has or has not exercised due diligence in causing a bill of exceptions to be engrossed, or in presenting the engrossed bill to the judge for his signature, is to be determined by the judge under the circumstances of each ease; and his determination thereon is matter of discretion which will be accepted on appeal as correct and conclusive, unless it is made to appear that he has abused his discretion.</p> <p>Id.—Refusal to Settle Bill—Nonappealable Order—Remedy by Writ of Mandate.—The refusal of the judge to settle the bill of exceptions is not an appealable order, or the subject of an appeal. Any unauthorized refusal to settle or certify a bill of exceptions is to be corrected by means of a writ of mandate.</p>

<p>Partnership—Compensation tor Labor—Share in Proceeds.—An agreement between the owner of a ranch and another person that he may milk the cows upon the ranch, and for Ms labor in their care and milking shall have one-half of the proceeds of the cream sold, and one-half of any calves born while he is so earing for them, ■ and shall feed the sMmmed milk to hogs owned by both parties equally, does not establish a partnersMp between them.</p>

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

<p>Criminal Law—Charge of Rape upon Young Girl—Verdict for Attempt.—By the terms of section 1159 of the Penal Code, every information charging a public offense includes an attempt to commit the crime charged; and under an information charging the defendant with the crime of rape upon a female under the age of sixteen years, a verdict may be rendered convicting the defendant of an attempt to commit rape, though it be not charged that the rape was accomplished by force and violence and against the will of the female.</p> <p>Id.—Evidence—Corroboration of Prosecutrix.—Upon trial of such a charge, there is no absolute rule requiring corroboration of the testimony of the prosecutrix, and corroborative evidence need not tend directly to connect the defendant with the offense charged; and though the testimony of the prosecutrix be contradictory, and the corroboration slight, appellate courts will not interfere, unless the preponderance of evidence against the verdict makes reversal a duty.</p> <p>Id.—Evidence of Penetration—Ruptured Hymen.—Though penetration is not an element of the crime of which defendant was convicted, the testimony of a physician that on an examination of the proseeutrix six months after the alleged offense her hymen was found ruptured, was relevant and competent as tending in some degree to prove the crime charged in the information, and its admission was harmless, in view of the verdict.</p> <p>Id.—Declarations of Third Person in Presence of Accused.—Evidence of declarations of a third person in the presence of the accused, and of his Conduct in relation thereto, is admissible.</p> <p>Id.—Action of Defendant—Association with Prosecutrix.—Evidence was admissible to show the action of the defendant and his association with the prosecutrix, and that he occupied a room which was found locked.</p>

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

<p>Mechanjcs’ Liens—Prior Deed of Trust—Agreed Loan for Construction of Building—Payments After Work Begins.—A prior recorded deed of trust to secure the note of the owner to a building and loan association, in consideration of a definite loan to the owner of the amount of the note, to be paid toward the construction of a building, to be further security for the loan, will take precedence of subsequent mechanics’ liens upon the building, though the agreed loan was paid after the commencement of the work.</p> <p>Id.—Distinction Between Optional and Obligatory Advances—Consideration.—There is a marked distinction between the payment of future advances which are optional and those which are obligatory for a definite sum agreed upon, for a sufficient consideration. The deed of trust and note of the owner were a sufficient consideration for the loan agreed upon, and the association was under an enforceable obligation to furnish the money as agreed.</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>Mechanics' Liens—Foreclosure by Materialman—Notice to Owner —Amount Due Contractors—Sufficiency of Complaint.—A complaint by a subcontractor to foreclose a lien against the owner, which is in' the usual form, and sets forth that at the time of the statutory notice given to the owner by plaintiff the sum of $4,000 was yet unpaid to the contractors, sufficiently states a cause of action; and a demurrer thereto was improperly sustained.</p> <p>Id.—Unnecessary Averments Against Contractors—Nonpayment—• Notice—Facts Presumptively Known.-—-Where no judgment was sought against the contractors, the complaint need not allege that when notice was given to the owner anything was due and unpaid to plaintiff from the contractors; and no statutory notice being required to be given to the contractors, none need be'averred; nor need the complaint aver any facts as against the contractors, which are presumptively within their knowledge.</p> <p>Id.—Other Claim upon Fund not Presumed.—It was not necessary for the complaint to allege that no one else has a claim upon the alleged fund unpaid by the owner to the contractors. If any other party also claims the same fund, it will be time enough to determine it, when set up in some appropriate manner. Without its being set up, the court should not presume that it exists, nor is the court, upon mere demurrer to the complaint, to act upon the theory that there may possibly be any such claim.</p>

<p>Chattel Mortgage—Foreclosure—Finding as to Execution—Sufficiency.—In an action to foreclose a chattel mortgage to secure a note of the defendant, where the findings as to the execution of the note and mortgage follow the allegations of the complaint, a finding in accordance therewith that to secure the note the defendant executed “a, mortgage of the personal property described in paragraph 3 of the complaint,” followed by a finding of its record, referring to volume and page of the record, sufficiently shows the execution of the mortgage described in the complaint, though not in terms referring thereto, and an objection to its sufficiency is hypercritical.</p> <p>B>.—Construction of Findings.—Findings are to be liberally construed in support of the judgment; and any uncertainty in the findings is to be construed so as to support the judgment rather than to defeat it.</p> <p>Id.—Description of Property Mortgaged.—Where the complaint as amended, "the findings, and the decree of foreclosure give merely the description of various articles of household furniture, as set forth in the chattel mortgage, without other description or location of the property, the mortgagor cannot be heard to complain of an indefinite description of the property mortgaged, in the action *to foreclose it as written, whatever might be the effect of a sale under the description.</p> <p>Tn—Maturity of Note—Payment of Interest in Advance—Unexecuted Oral Agreement—Foreclosure not Premature.—Where the note provided by its terms for the payment of interest in advance, the acceptance of interest in advance after the maturity of the note cannot operate as an executed oral agreement extending the time of payment of the note under section 1698 of the Civil Code, until the expiration of the period foi which the interest was paid, and a foreclosure of the mortgage before the expiration of such period is not premature.</p> <p>2d.—Modification of Time of Payment — Vague and Uncertain Words—Parol Evidence Inadmissible.—Words indorsed on the note by the plaintiff's wife as nominal payee on January 5, 1901, the date of its maturity ‘ ‘ Renewed July 6,” and signed by her, are too vague and uncertain to constitute a modification of the time of payment of the note as originally executed; and parol evidence to show that she verbally agreed with the maker that the time of payment should be extended to July 6, 1902, was properly excluded as inadmissible.</p> <p>Id.-—-Husband and Wife—Joint Complaint—Loan from Joint Earnings—Note to Wife for Husband—Husband’s Ownership—Estoppel of Wife.-—Where the complaint was joined in by husband and wife as coplaintiffs, and alleged a loan from the husband to the defendant from their joint earnings, and that the note and mortgage were executed to the husband through the wife, and that the husband was the owner and holder thereof, there was no need of litigation by the husband against the wife before enforcing his rights against the defendant, and the wife is estopped from claiming anything in her own right against the defendant.</p> <p>Id.—Power of Husband to Recover Community Property—Note and Mortgage to Wife.—The fact that the note and mortgage were made payable to the wife did not divest her husband of his ownership thereof as community property, in the absence of evidence that he intended to make her a gift of the same. The husband has the right to sue therefor and recover it as community property, as a necessary incident to his right to the control and disposition of such property.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Frank C. Prescott, and Prescott & Morris, for Appellant.</p>

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

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

<p>Negligence—Injury to Passenger Alighting from Electric Railway Car—Sudden Jerk—Presumption—Burden op Proof.—In an action for injuries sustained by a passenger while alighting from an electric railway car, as the result of a sudden jerk, where the evidence showed that the car had slowed down and nearly stopped at the end of its road, when plaintiff started to get off, and that he had hold of the stanchion, with a view to alighting, and that the sudden jerking of the car was so violent as to compel plaintiff to release his hold and to throw him violently to the ground, he was not required to explain the cause of the sudden jerk, but the evidence was sufficient to raise a presumption of negligence in the operation of the car, and the burden of proof was cast upon the railway company to rebut such presumption to the satisfaction of the jury.</p> <p>Id.—Ordinary Course of Things—Ground of Presumption Against Proper Care.—When an event takes place which, according to the ordinary course of things, would not happen, if proper care was exercised, it is presumed that such care was not exercised, and it cannot be said as matter of law that, according to the ordinary course of things, when a ear has reached its terminus, and is slowing down, and nearly at a stop, the ear is likely to suddenly and without warning accelerate its speed to such extent as to throw a passenger violently to the ground who was holding to the stanchion and preparing to alight. In such ease, the character of the injury, resulting from the sudden jerking of the car as a cause, might well tend to show that but for defendant's negligence it would not have happened.</p> <p>Id.—Harmless Error in Instruction—Financial Ability of Plaintiff to Employ Good Physician—Compliance with Treatment— Unskillfulness.—Where the evidence showed that the physician and surgeon who attended the plaintiff was of unquestioned skill, and while he at first prescribed a treatment to which plaintiff would not submit, his testimony was that under all the circumstances the treatment followed was equally effective, and probably the better course, and there was no evidence that the damage was increased by want of proper surgical attention, an instruction relative to the financial ability of the plaintiff to employ a good physician, and his compliance with the treatment, and his want of responsibility for unskillful treatment, conceding it to be erroneous, was harmless.</p>

<p>Action to Quiet Title—Refusal of Continuance—Absence of Defendant from Trial—Insufficient Showing—Discretion not Abused.—In an action to quiet title, in which defendant set up no affirmative claim, and which had been at issue for nine months, where the defendant, after the case had been set for trial, voluntarily left the state for New York to negotiate city bonds, and the only showing for a continuance consisted of the affidavit of his attorney and a brief telegram from the defendant without any showing as to the necessity of his presence in New York at that time, or that it could not have preceded or followed the date of the trial without injury to himself or the city, the court did not abuse its discretion in refusing a continuance on the ground of his absence. [Per Gray, P. J., and Allen, J. Smith, J., doubting.]</p> <p>Id.—Absence of Showing on Motion for New Trial—Appeal from Order.—Where no additional showing was made on the motion for a new trial, and no affidavit of the defendant was at any time filed showing any necessity for his absence, the appeal from the order denying a new trial was without merit.</p> <p>Id.—Presumption in Support of Order.—In the absence of the evidence, or any showing to the contrary on the motion for a new trial, it must be presumed in support of the order denying a new trial that the case was fairly tried, and that the appellant was in no wise injured by his absence, and that there was no abuse of discretion in the denial of the motion for a new trial. [Per Smith, J.]</p>

<p>Unlawful Detainer—Improper Judgment upon Pleadings—Holding by Dependant Under Agreed Bental.—Where the complaint in an action for unlawful detainer alleged a lease of the premises to defendant for a private hotel for one year from May 1, 1902, for $100 per month, and that extensive improvements comprising twenty-seven rooms were added thereto, and completed December 1, 1902, after which defendant paid $300 per month until July 1, 1903, when plaintiff gave her thirty days' notice to quit, and three days’ notice thereafter, and claimed treble damages, and where the answer pleaded a holding under an instrument executed by plaintiff September 9, 1903, stating that defendant can have the premises “at a monthly rental of $200 as long as she likes,” a judgment for plaintiff upon the pleadings was erroneous.</p> <p>Id.—Construction of Instrument upon Admitted Facts—Agreed Termination of Former Lease—Additional Bent—Tenancy for One Tear.—Under the admitted facts, December 1, 1902, was the apparently agreed termination of the original lease, in view of the completed improvements, and the amount of $200 monthly rental, in the instrument pleaded in the answer, is determined by the subsequent acts of the parties to have meant $200 in addition to the $100 in the original lease, and that the new instrument was to have effect December 1, 1902;. and whether a new lease was contemplated or not, the promise made and the holding over under its terms, “as she like%,” without designation of the term desired, and without a new lease, was sufficient to rebut the presumption of a tenancy from month to month, under section 1945 of the Civil Code, which presumption being removed, a tenancy for one year of the hotel premises would be presumed, under section 1943 of the same code, in the absence of a definite term.</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. Thomas F. Graham, 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>

PETITION for Writ of Prohibition against the Superior Court of the City and County of San Francisco. James M. Troutt, Judge. The facts are stated in the opinion of the court.

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

<p>Action by Administrator upon Note—Defense—Grant by Deceased to Wife—Presumption of Delivery—Rebutting Proof.—Where the defense to an action by an administrator upon a note was that all of the property of the deceased was in bis lifetime granted to his wife, including the note sued upon, the presumption from the execution of the grant that it was delivered at its date may be controverted, and is overcome by proof that the scrivener was directed thereafter to insert an omitted description, .and return the deed to the grantor, that it was inserted after his death, and the deed was then recorded by the scrivener, and that it was never in fact delivered by the grantor to the grantee, or to anyone for her.</p> <p>Id.—Note not Assigned to Wife.—Whatever claim the widow could have to the note, being based only upon the deed which was not completed nor delivered by the grantor in his lifetime, cannot be held to come from the operation of the deed as an assignment of the note to her as a chose in action.</p> <p>Id.—Special Admission of Delivery on Dormer .Trial—Erroneous Rulings—Mistake of Dacts—Permitted Withdrawal—Plaintiff not Estopped.—A special admission by plaintiff of the execution and delivery of the deed, made upon the former trial, in ignorance and mistake as to the facts, and made only with reference to a sustained demurrer to the defense, and the exclusion of the dee.d from evidence, which were held erroneous upon appeal, was properly permitted to be withdrawn before the second trial in the exercise of the court's discretion, and plaintiff is not estopped upon such trial from showing the true facts in rebuttal of the defense.</p> <p>Id.—Intervening Death of Scrivener—Withdrawal of Admission not Affected—Presumption.—The intervening death of the scrivener cannot operate to affect or prevent the withdrawal of the ad- . mission where there is no showing or presumption that his evidence, if living, would contradict the other witnesses, who testified to the facts in regard to the noneompletion and nondelivery of the deed in the lifetime of the deceased grantor.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County, setting apart a homestead to minor children of a decedent. H. D. Tuttle, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County, granting letters of guardianship to the aunt of a child, and refusing letters of guardianship to its father. M. H. Hyland, 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. Thomas F. Graham, 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>Habeas Corpus—Review of Judgment—Validity of Pleading.—The writ of habeas corpus cannot be invoked to review a judgment for any error, committed in the exercise of jurisdiction, nor to review anything which is matter of defense; and it is only where a void complaint or information is alleged as the basis of a commitment, which of itself seems sufficient, that such complaint or information and all the record proceedings upon which the commitment depends will be examined into for the purpose of determining whether there is any legal ground for holding the petitioner.</p> <p>Id.—Conviction for Robbery—Description of Offense—Feloneous Stealing—Ownership of Property Described—Plea of Guilty— Absence of Objection.—Where the petitioner was convicted of the crime of robbery upon a plea of guilty under an information to which no objection was taken in any manner, and which substantially charged the offense of robbery in the terms of section 211 of the Penal Code defining it, and also averred that the defendant “did willfully, unlawfully, and feloniously steal and carry away from the person and immediate presence of” the person robbed the property described, the information taken with the plea of the defendant establishes a ease of robbery as completely as if it had been specifically averred that the person robbed was the owner of the property so taken, and the petitioner is not entitled to be discharged on habeas corpus for want of such specific averment.</p>

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

<p>APPEAL from a judgment of the Superior Court of Tuolumne County, and from an order denying a new trial. G. W. Nicol, 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>Mandamus—Restoration or Discharged Vice-principal op School— Statute op Limitations.—A writ of mandate to restore a person elected to the position of vice-principal of a grammar school in San Francisco, who was summarily removed therefrom without the causes specified and referred to in section 1793 of the Political Code, rests solely upon the provisions of the statute, and is upon a liability created by statute, which is barred by the statute of limitations after three years under subdivision 1 of section 338 of the Code of Civil Procedure.</p> <p>Id.—Laches and Acquiescence.—The plaintiff’s right to the writ of mandate is also barred by laches and acquiescence, where she did not bring the action therefor for more than three and one-half years after her removal, during one year of which time some one else filled the position and during all of which time the public has received no benefit of her services, for which, if reinstated, the plaintiff expects the public to pay.</p>

<p>Action to Becover Homestead—Ignorance of Bights—Cancellation of Instruments—Beal Action—Statute of Limitations.—An action by a widow to recover a homestead declared by her deceased husband as the alleged owner thereof, and to cancel an abandonment thereof alleged to have been made in ignorance of her rights until the month when suit was brought, under a stipulation by all parties interested in his estate in consideration of $5,000 paid to her to secure such abandonment, and also to cancel a deed made under an order of sale of the property, sixteen years before suit brought, as well as subsequently recorded deeds to successors of the grantee, is in effect an action to recover real property, and is barred by the provisions of section 318 of the .Code of Civil Procedure.</p> <p>Id.—Mistake op Law—Ground op Equitable Relief not Shown.— Where the complaint of the plaintiff seeks relief on the ground of ignorance of her legal rights, the gist of the whole case being that she did not know the law that the homestead declared by her husband vested in her by his death, and does not show that the $5,000 paid to her was not the value of the homestead or a good compromise thereof, and does not offer to restore it, and alleges no fraud or other inequitable conduct, and states no facts taking the case out of the general rule that courts will not grant relief on the simple ground of mistake of law, it shows no ground for equitable relief.</p>

<p>Action to Recover Taxes Paid Under Protest—Statement of Ownership Under Invalid Ordinance as of May 1st—Insufficient Complaint.—A complaint to recover taxes paid under protest as having been illegally assessed under an amended city ordinance claimed to be void, as having required a statement of ownership as of date May 1st, instead of the first Monday in March, next preceding, as required by the original ordinance, and by the laws of the state, which does not allege that plaintiff was not the owner of the property assessed on the first Monday in March, next preceding the assessment, does not state a cause of action, and a demurrer thereto was properly sustained,</p> <p>to.—Presumption op "Validity op Assessment—Immaterial Mistake. Assuming the amended ordinance to be void, the original ordinance remained in force, which "conformed to the laws of the state, and it must be presumed that the assessment was regularly made, and that its actual effect under the municipal incorporation act was to constitute liens on the property assessed from and after the first Monday in March; and the statement of ownership of the first day of May under the void ordinance, must be regarded as the result of a mistake on the part of the assessor and the plaintiff and as in no way affecting the validity of the assessment.</p>

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

<p>Action to Keform and Enforce Contract—Support of Findings and Judgment.—An action will lie under the provisions of sections 3399 to 3402 of the Civil Code, to reform a contract, and enforce it as reformed, where the court finds, under the pleadings, upon sufficient evidence, that it did not express the agreement and understanding of the parties, although there was no mutual mistake or any mistake of the parties to the contract at the time of making it, but that plaintiff understood the promise therein made in accordance with the reformed contract, and defendant at said time believed such to be plaintiff’s understanding thereof. Such findings are sufficient to support a judgment for plaintiff.</p>

APPEALS from a judgment of the Superior Court of Tuolumne County, and from orders refusing to set the judgment aside, and refusing to retax costs. G. W. Nicol, Judge. The facts are stated in the opinion of the court.

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

<p>Statute of Frauds—Time of Performance of Contract—Purchase of Stock—Prior Promise to Repurchase—Date of Contract.— An oral promise made May 1, 1902, that if plaintiff would subscribe for and purchase stock in a corporation, and should not' be satisfied with Ms investment at the end of a year, defendant would repurchase the same and pay to plaintiff all moneys expended by him, on demand, one year from the date of purchase, was a mere pollicitation, not amounting to a contract, until the purchase was made June 16, 1902, and such contract was to be performed on June 16, 1903, within one year from its date, and was not within the statute of frauds, as not to be performed within one year from the maMng thereof.</p> <p>Id.—Oral Contract to Purchase Beyond Two Hundred Dollars— Executed Consideration—Original Contract—The oral contract was not to purchase stock of greater value than two hundred dollars within the statute of frauds. The consideration of the defendant’s promise to repurchase the stock was not the sale of it, but its purchase by the plaintiff, which was carried into execution, and the transfer of the stock was a mere condition of defendant’s promise, and merely incidental thereto; and the contract was an original contract, not within the statute of frauds.</p>

<p>• PETITION for writ of review to annul proceedings in the Superior Court of Sacramento County under an accusation by the grand, jury against petitioner for misconduct in office. E. C. Hart, 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, and from an order denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court</p>

<p>Mandamus—Pension of Widow op Deceased Policeman—Evidence— Declaration—Hearsay.—In a mandamus suit to compel the payment of a pension to plaintiff as widow of a policeman alleged to have been killed while in performance of his duties, evidence of what the policeman said after he had been injured, and alter the persons claimed to have injured Mm had passed out of sight, as to what was the matter with him, was purely hearsay, and not part of the res gestae, and was properly excluded.</p> <p>Id.-—Privileged Communications—Physician and Patient.—A question not confined to communications made by the deceased to the physician attending upon Mm, during the first interview between them, when the wife was present, but which covered the, whole, period 'of twenty visits, during which eomnnmications were made by the patient to the physician when no one else was present, and which were necessary to enable the physician to prescribe for the patient, called for privileged communications forbidden to be divulged by the terms of subdivision 4 of section 1881 of the Code of Civil Procedure, and was properly excluded.</p>

<p>Estates of Deceased Persons—Account of Testamentary Trustees —Attorney’s Fee for Procuring austribution—Jurisdiction.— The superior court, upou settlement of the first account of the trustees appointed under the will of a deceased person after distribution, has jurisdiction to allow a claim of one of them for counsel fees incurred in obtaining distribution to the trustees, where the co-trustee, who was executrix, refused to petition for such distribution after final settlement of her accounts, and her sisters, who were beneficiaries, were assailing the trust.</p> <p>Id.—Commencement of Trust Relation—Death of Testator—Effect of Distribution.—The relation of testamentary trustees to the trust property begins under the will at the death of the testator, and not by virtue alone of the decree of distribution, although their fuller and more complete powers and duties are devolved upon them by that decree.</p> <p>Id.—Duty of Trustees Before Distribution—Obtaining Control of Trust Property—Liability to Beneficiaries.-—The testator having devised the estate to the trustees, it became their duty, having accepted the trust, to obtain control of the trust property, under all proper circumstances, though one of them is named as executrix; and’ failure to do so would render them liable to the beneficiaries, if loss of the estate or damage thereto should result.</p> <p>Id.-—Jurisdiction not Dependent upon Other Allowances.—The jurisdiction of the court upon settlement of the first account of the trustees, to make an allowance to one of them for counsel fees in obtaining distribution to the trustees, is not dependent upon the power of the court in allowing expenses to the executrix; and is not lost by the settlement of ether items of the expenses and compensation of the trustees, where appellant claimed an item for such counsel fees which was erroneously disallowed for want of jurisdiction.</p>

<p>APPEAL from a judgment of the Superior Court of Placer County. J. E. Prewett, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Execution — Exempt Property Used in Farming — Debtor not a Farmer at Date oe Levy.—In order to claim the exemption from execution of farming utensils and implements of husbandry and other property used in farming described in subdivision 3 of section 690 of the Code of Civil Procedure, it must appear that the judgment debtor was engaged in the business of farming at the date of the levy; and a judgment debtor who was not then so engaged, but had left the business of farming, and "was engaged in other business in another state,' prior to and at the time of the levy upon such property, cannot claim the same as exempt.</p>

<p>Brokers—Commissions on Sale op Beal Estate—Oral Oppbr prom Besponsible Purchaser—Sale by Vendor on Terms Procured.— A real estate broker who, within the time allowed by his contract of employment, procured an oral offer from a responsible purchaser, of which and of the purchaser’s name he informed the vendor, who accepted the offer, and subsequently sold the real estate to such purchaser, on the terms so procured, is entitled to recover his stipulated commissions on the amount of the purchase, though it be less than the original sum provided for, and though the sale was actually effected by the vendor, through another broker, after the expiration of such employment.</p> <p>Id.—Ratification of Broker’s Act—Acceptance by Vendor.—The acceptance by the vendor of the offer actually made to the broker, and the consummated sale upon such terms, was a ratification of the broker’s act, and made the vendor liable to the broker for his commissions.</p> <p>Id.—Denial of Nonsuit—Harmless Error—Evidence Supplied by Defendant.—The denial of a motion for a nonsuit for the lack of certain evidence was not harmful error, where the evidence for the defendant supplied the requisite proof.</p> <p>Id.—Evidence—Division of Commission by Second Broker with Purchaser—Harmless Ruling.—Where the purchaser had been in some respects a favorable witness for the defendant, the permission to plaintiff to cross-question the second broker, to prove that he divided his commission with the purchaser, even if it were not allowable to show a bias or interest in such witnesses, any error in admitting it is of too little consequence to justify a new trial.</p>

Fresno County, and from an order denying a new trial. H. Z. Austin, Judge. 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 Pranciseo. Prank H. Kerrigan, 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. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>D. H. Laubersheimer, Isidore B. Dockweiler, and S. C. Pardee, for Appellants.</p> <p>Charles L. Batcheller, J. W. Ballard, and Charles D. Ballard, for Respondents.</p>

<p>Divorce — Findings—Unsupported Conclusion and Judgment for Maintenance.—In an action by a wife for divorce for extreme cruelty, findings that there was no extreme cruelty; that her condition was not so intolerable that she was forced to leave her husband; that before separation they were nervous and irritable, caused by ill-health; that during a controversy over a payment by him to his daughter, out of his separate property, defendant said plaintiff would get only what she helped to earn; that shortly afterward they were reconciled, and each forgave unkindness toward the other—do not warrant the conclusion that she was justified in leaving him, nor support a decree in her favor for maintenance.</p> <p>Id.—Abandonment of Husband by Wife—Duty of Wife—Obligation of Husband.—Where the wife has abandoned the husband without justification, it is her duty to return and conform to his reasonable place and mode of living as the head of the family. It is not the duty of the husband so abandoned by the wife to solicit her return, and until her offer to return, no obligation of support rests upon him.</p> <p>Id.—Protection of Bight of Maintenance—Fraudulent Transfers— Absence of Bight—Wife not Interested in Transfer of Husband’s Estate.—While an existing right of maintenance of the wife is so far within the protection of section 3459 of the Civil Code that it avoids transfers made with intent to defeat it, yet where no such right exists, and there is no violation of the husband’s obligation of support, the wife is not interested in her husband’s estate, and she cannot avoid a transfer thereof to his daughter.</p> <p>Id.—Conveyance of Separate Property not Affecting Wife’s Bight of Support.—It cannot be truthfully said that the husband, who is able to earn wages and carry on business, has put it out of his power to perform the obligation to support his wife, by making a conveyance of his separate property to his daughter.</p> <p>Id.—Judgments for Alimony Pendente Lite—Transfer Before Suit. Mere judgments for alimony pendente lite, each of which is a final judgment and appealable, there being no possibility of a final judgment for alimony or maintenance under the facts, cannot of themselves be ground for setting aside a transfer of the husband’s separate property before suit when the wife was in no respect a creditor of the husband.</p> <p>Id.—Becital in Final Judgment for Maintenance—Order for Payment from Proceeds of Sale.—The recitals of the judgments for alimony in the erroneous final judgment for maintenance adds nothing to their vitality or force: and orders embodied in that judgment directing payment thereof of the proceeds of the property sold to enforce the maintenance, though they would be valid if that judgment were valid and could be enforced by sale, yet fall with it.</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, refusing a new trial. Curtis D. Wilbur, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from Justice’s Judgment of Nonsuit—Question of Law and Fact—Reversal—New Trial in Justice’s Court.—An appeal from a judgment of a justice’s court granting a nonsuit, though taken on questions both of law and fact, presents a question of law only; and there having been no trial upon the merits in that court, the superior court, upon reversal, properly refused to grant a trial de novo therein and remanded the case for new trial in the justice’s court.</p> <p>Id.—Statement of Case—Jurisdiction to Determine Nature of Appeal—Certiorari.—Where the appeal was heard upon a statement of the case, the superior court had jurisdiction to determine the nature of the appeal; and certiorari will not lie to review the conclusion reached.</p> <p>Id.—Maxim—Order Granting “New Trial.”—The law respects form less than substance; and the fact that the order of the superior court used the words “new trial” in remanding the cause to the justice’s court can neither rob the order of its vitality nor the superior court of its jurisdiction.</p>

PETITION for writ of error to review a judgment of nonsuit rendered in the' Superior Court of Siskiyou County on appeal from the judgment of a justice’s court. J. D. Beard, Judge. 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, and from an order denying a new trial. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Ineffectual Appeal from Order.—An appeal from an order denying a new trial to a defendant convicted of crime, the notice of appeal from which was served upon the district attorney more than sixty days after the order was entered, is ineffectual.</p> <p>IP .—Robbery—Evidence—Interpreter for Prosecuting Witness.— Upon a trial for robbery, where the prosecuting witness was an Indian, not well acquainted with the English language but who understood some Spanish, which was used in talking with the defendant upon the occasion of the robbery, it was not an abuse of discretion to permit the witness to testify through an Indian interpreter, who was a resident of the county.</p> <p>Id.—Evidence of Prostitute—Acquaintance with Defendant—Exhibition of Monet After Eobbert.—A witness for the prosecution, though she appears to be a prostitute, was properly permitted to testify to the length of time she had known the defendant, in connection with her testimony as to his identity and visit to her shortly after the robbery when he showed her money of the kind and character taken from the prosecuting witness.</p> <p>Id.—Argument of District Attorney—Perjury of Defendant—■ Inference from Testimony.—The district attorney was within the lines of legitimate argument in asserting that the defendant had added perjury to his other crimes when such conclusion was a fair inference from the testimony properly before the court. Id.—Improper Comment upon Punishment—Correction by Court.— A comment by the district attorney in his argument upon the character and extent of the punishment which the court, under the law, might inflict, though not to be commended, is not ground of reversal, where the court corrected the abuse by advising the jury that with the matter of punishment they had nothing to do and that it was for the court alone to determine that question.</p>

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

<p>Condemnation of Railway Crossings—Order Granting New Trial— Specified Ground—Review upon Appeal.—Upon an appeal from an order granting a new trial of an action to condemn two railroad crossings in which the only ground specified was error of law in admitting in evidence third amended articles of incorporation of appellant made after the filing of the amended complaint, the limitation in the order does not preclude this court from inquiring as to other grounds and whether the evidence was insufficient to support, the findings where the case does not fall within any exception to the rule concerning such inquiry.</p> <p>Id.—Authority Under First Amended Articles—Amended Complaint—Original not in Record—Rights of Parties to Appeal.— Where the original complaint is not in the record upon appeal, and the appellant’s original articles of incorporation justified no condemnation, but appellant’s first amended articles justified the condemnation of one of the crossings, and were legally established several months previous to the filing of the amended complaint upon which issues were joined, the rights of the parties may be determined upon appeal under the amended complaint and the first amended articles.</p> <p>Id.—Acknowledgment of First Amended Articles—Untenable Objection.—The statute does not require an acknowledgment of amended articles; and where the only objection to the first amended articles of incorporation was that they had the same acknowledgment as the original articles, such objection cannot be sustained.</p> <p>Id.—Main -Line Through Town—East Crossing Condemned on Northerly Branch—Sufficiency of Evidence.—Where the first amended articles of appellant provided for a main line approaching a town northerly on the east side and extending through it westward and for a branch northerly from the town, and a crossing was condemned on the branch road about three-fourths of a mile eastward from the town, the condemnation was supported by evidence that the topography of the country prevented a direct north branch from the town, that a crossing by it in the town would be detrimental to both parties, and that the nearest practicable crossing was at that point.</p> <p>Id.—Completion of Main Line to Town—Northerly Branch Part of It.—Where it appears that the main line was completed to the town on the east side and was in operation before the amended complaint was filed, and that the branch line was connected with it on the east side and diverged from it northward to the crossing condemned, for all practical purposes the branch line might be considered part of the main line to the easterly point of divergence northerly.</p> <p>Id.—Second and Third Amended Articles not Admissible to Justify Westward Crossings.-—Second amended articles not filed with the Secretary of State cannot be considered; and where both the second and third amended articles were made after the amended complaint was filed, the plaintiff had no right to condemn under either of them any crossings of defendant’s road westward from the town or to use another distinct branch from the main line which was first definitely included in the third amended articles.</p> <p>Id.—Measure op Bight op Condemnation—Premature Action.— Plaintiff’s right to condemn is measured by the powers possessed by it at the time the action was commenced; and the action was clearly premature as to the west crossings.</p> <p>Id.—Admission op Corporate Existence—De Facto Corporation— Dual Capacity.—Where the complaint alleged and the answer admitted the averment of the due incorporation of the plaintiff, no question arises in relation to 1 a de. facto corporation. There can be no such thing in law as a de facto power; nor can a corporation exercise simultaneously the dual capacity of a corporation de jure and a corporation de facto.</p> <p>Id.—Construction of Constitution.—Section 17 of article 11 of the constitution is not self-executing in the sense of authorizing the taking of land by a railroad corporation, regardless of its charter powers and of the statute providing for condemnation.</p> <p>Id.—Limitations of Charter—Construction of Bids.—The charter of the corporation ever remains the measure of its power. If it states the purpose to be to construct a railroad by a particular route, the purpose is limited to that route substantially as designated; and the limitation of the charter cannot be circumvented by the terms of subdivision 4 of section 1238 or section 1242 of the Code of Civil Procedure, or of section 1001 of the Civil Code.</p> <p>Id.—Powers Incidental to Charter Powers—West Branch Line not an Adjunct.—A west crossing on a branch line not included in the route designated by the charter applicable to the action for condemnation cannot be sustained as incidental to the powers expressly given by that charter. Such branch line, however necessary for opening contributory business, was in no sense incident to the main line provided for in the charter; nor was it an appendage or adjunct such as is referred to in subdivision 4 of section 465 of the Civil Code.</p> <p>ID.—Condemning Property Appropriated to Public Use—Crossing of Bight of Way—Private Property.—Property appropriated by one railroad for public use for a right of way is private property; and the condemnation of a crossing thereof by another railroad company is the taking of private property for public use; and must be done, if at all, under the provisions of the law regulating eminent domain.</p>

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

PETITION for mandamus to compel the settlement of a bill of exceptions by the judge of the Superior Court of El Dorado County. N. D. Arnot, Judge. The facts are stated in the opinion of the court.

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

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

<p>Corporations—Besidence—Jurisdiction Over Foreign Corporations Doing Business in State.—The residence of a corporation is within the state in which it is created, and so long as it confines the exercise of its corporate powers within that state, it is beyond the reach of the process of courts of other states. In order that those courts may acquire jurisdiction to render a personal judgment against a foreign corporation, otherwise than by its voluntary appearance, its presence in those states must be manifested by the transaction of its corporate business therein, or by such acts as will indicate the exercise therein of its corporate powers, at the time the process of the court is served upon it.</p> <p>It).—Service of Summons on Foreign Corporation.—Under section 411 of the Code of Civil Procedure, in order that the court may get jurisdiction over a foreign corporation, it is requisite that such corporation shall be “doing business” within the state at the time the summons is served, and that the service shall be made upon its agent who is managing that business, or upon its cashier or secretary.</p> <p>Id.—Quashing Service or Summons—Burden of Proof.—On a motion to quash the service of summons on a foreign corporation, the burden of showing that it was doing business in this state, at the time of the service, rests upon the plaintiff when that fact is denied by the defendant.</p> <p>Id.—Agent or Foreign Corporation—Exclusive Bight to Sell.—A local corporation, whose only relation with a foreign corporation is that of a purchaser of goods manufactured by it by orders sent through the mail, which goods after being purchased became the property of the local company and were sold by • it for its own account, is not an agent of the foreign corporation, within the meaning of section 411 of the Code of Civil Procedure, authorizing service of summons on an agent, notwithstanding the local company may have designated itself as the agent of the foreign company on the letterheads used by it in its correspondence; and the foreign company cannot be considered as “doing business” in this state, either from the fact that it had knowledge that the local company so designated itself on its letterheads, or from the fact that the local company had the exclusive right to sell in a limited territory the articles manufactured by the foreign company.</p> <p>Id.—Service on President op Corporate Agent.—If a local corporation is the agent of a foreign corporation, a service of summons on the president of the local company is not a service on the foreign company.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial. D. K. Trask, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Marin County, and from an order refusing a new trial. F. M. Angellotti, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>School District—Contract for Sohoolhouse—Purchase of Materials of Corporation in Which Trustee is Interested.—The mere fact that a contractor, who had erected a sohoolhouse for a school district in pursuance of a contract otherwise valid, after he had secured the contract, and without any previous arrangement or agreement therefor, purchased part of the materials used in the construction of the building from a corporation of which one of the school trustees was a stockholder and general manager, does not render such contract invalid because in violation of section 1876 of the Political Code, prohibiting a school trustee from being interested in any contract made by the board of - trustees of which he is a member; and such corporation, as the assignee of the contractor, may maintain a proceeding in mandamus against the county superintendent of schools to compel him to draw requisitions on the county auditor for the amount of the contract price.</p> <p>Id.—Orders in Due Form—Evidence—Finding.—In such proceeding, where .the complaint alleges that the orders drawn by the trustee for the contract price were “in due form,” and such allegation was admitted, no proof or findings in that regard were necessary.</p> <p>Id.—Evidence Without Prejudice.-—The admission in such proceeding of evidence of the remoteness of other lumber-yards from the place of the construction of the building was without prejudice.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Sacramento County. J. W. Hughes, Judge. The facts are stated in the opinion of the court.

<p>Mutual Benefit Society—Certificate—Beneficiary—Change by Will.—A benefit certificate issued by a mutual benefit society to one of its members, payable on his death “to his legal heirs related to said member in relationship of heirs,” constitutes a contract between the member and the society, and the member has no right to change the beneficiary by his will, unless authorized so to do by the law of the society.</p> <p>Id.—Contract—Successors.—Under such a certificate, the beneficiaries are entitled to take by virtue of the contract, and not by succession, and the certificate did not become a part of the assets of the estate of the member at his death.</p> <p>Id.—Heirs Take Equally.—For the purpose of determining who are the heirs of the deceased member, resort is to be had to the succession laws of the state under which the descent is cast. When such heirs are so determined as a class, they are entitled to share equally in the avails of the certificate.</p>

<p>Counties—License—Power of Supervisors—Regulation and Revenue.—Section 3366 of the Political Code, as amended March 23, 1901, granting to boards of supervisors, “in the exercise of their police powers,” power to license all and every business, not prohibited, for purposes of regulation and not otherwise, operated to repeal by implication the power previously possessed by boards of supervisors, under subdivision 27 of section 25 of the act of March 31, 1891 (Stats. 1891, p. 306, c. 216), and subdivision 25 of section 25 of the County Government Act of 1897 (Stats. 1897, p. 65, e. 277), to license businesses generally for the purpose of both regulation and revenue.</p> <p>Id.—Presumption as to Purpose of Ordinance.—An ordinance passed at a time when the board of supervisors had the power to license business for the purpose of both regulation and revenue, but which does not specify the purpose for which it was enacted, will not be presumed, after section 3366 of the Political Code, as amended in 1901, became operative, to have been enacted solely for the purpose of regulation.</p> <p>Id.—License for Sheep Herding—Purpose of Revenue.—The ordinance of the board of supervisors of Placer county, passed April 13, 1892, providing that every person, company or corporation engaged in the business of raising, grazing, herding or pasturing sheep or goats within that county, shall pay for a license therefor the sum of five cents per head per annum for each head of sheep and goats so grazed, herded or pastured, and imposing a fine for the violation thereof, was for the purpose of revenue only, and the power of the board to enact such ordinance was repealed by the amendment of March 23, 1901, to section 3366 of the Political Code.</p>

<p>Negligence—Evidence—Electric Street-car—Increasing Speed at Crossing.—Evidence reviewed and held sufficient to sustain the finding that the motorman in charge of a car of the defendant was guilty of negligence in increasing the speed of the ear as he was approaching a crossing, when he was charged with knowledge that the plaintiff was about to cross in front of his car.</p> <p>Ib.—Finding oe Negligence—Appeal.—The question of negligence is, in general, one of fact and not of law, and the verdict of tBe jury, or finding of the lower court, in favor of the plaintiff, cannot be disturbed on appeal unless the lack of negligence on the part of the defendant, or the existence of contributory negligence on the part of the plaintiff, follows necessarily as a conclusion of law from the undisputed facts.</p>

<p>Landlord and Tenant—Rent—Deposit in Bank—Offer of Payment.—The mere fact that after a demand by the landlord for rent and its nonpayment by the tenant, the latter deposited in bank the amount of such rent, was not an extinguishment of the tenant’s obligation to pay the rent, under section 1500 of the Civil Code, in the absence of a prior offer of payment to the landlord, or anything indicating that the landlord had actual notice of such deposit or ever acquiesced therein, or availed himself thereof, or did any act which would be held as waiving the forfeiture on account of nonpayment of the rent.</p> <p>Id.—Unlawful Detainer—Tenancy from Month to Month—Termination of Tenancy by Notice—Satisfaction of Judgment.—A tenancy from month to month does not terminate by the mere lapse of time, but may be terminated by the notice from the landlord to the tenant of one month provided for in section 1946 of the Civil Code. In the absence of a termination of the tenancy by such a notice, a judgment in favor of the landlord, in an action of unlawful detainer after default in the payment of rent, may be satisfied by the tenant, in accordance with the provisions of section 1174 of the Code of Civil Procedure, by the payment into court of the amount of the rent, with interest thereon and costs, within five days after the entry of judgment, and the right of the tenant upon such payment to be restored to his estate may be waived by the tenant’s prior surrender of possession to the landlord.</p> <p>Ia>—~Stipulation as to Erroneous Legal Effect of Lease.—A stipulation in the record that a "lease had expired by its terms,” if based upon an erroneous interpretation of the legal effect of the contract, will be disregarded.</p>

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

<p>Sale—Passing of Title — Segregation and Delivery.—A written agreement acknowledging the receipt of part payment for two thousand sacks of potatoes, at a stipulated price per sack, “delivered f. o. b. on Bank, all of which goods I have this day sold,” signed by the purchaser and seller, amounts to a sale and not a contract of sale, and the title to the goods passed to the purchaser as soon as the seller had segregated, sacked and delivered the potatoes at the river bank.</p> <p>Id.—Evidence—Finding.—The evidence reviewed and held sufficient to sustain the finding that the plaintiff delivered the potatoes to the defendants at the time and place and in the condition agreed upon, and that the defendants received and accepted the same on the bank of the river.</p> <p>Id.—Evidence of Quality.—Where issue is raised by the defendants as to the quality of the potatoes delivered, a witness for the plaintiff may testify that he saw the plaintiff digging and sacldng potatoes of good quality about the time of the deliveries to the defendants, when there is other evidence that the potatoes all came from the same field, and were all about the same in quality.</p>

<p>Corporations—Inspection of Books—Mandamus—Evidence of Benevolent Purposes.—Under section 14, article XTT of the constitution, every corporation other than religious, educational or benevolent, is required to maintain an office, in which shall be kept, for inspection. by every person having an interest therein, books in which shall be recorded the amount of capital stock subscribed, the amount of its assets and liabilities, etc.; and in a proceeding in mandamus by a member of a corporation to compel an inspection of its books, the corporation, if it desires to avoid an inspection on the ground that it was organized for benevolent purposes, must prove as well as aver that fact.</p>

<p>Negligence—Physician—Falsely Testifying to Insane Condition of Patient—Pleading.—In an action by a physician t'o recover for his services rendered in pursuance of an express contract, whereby he undertook to make an examination of the physical and mental condition of the defendant, and to testify thereto as a medical expert before a commissioner, an answer which alleges that by reason of gross negligence, ignorance or carelessness of the plaintiff in diagnosing the case, he falsely testified that the defendant was insane and that the defendant was damaged thereby, states a good defense to the action, and should not be stricken out.</p> <p>Pleading Defense—Cross-complaint—Answer—Demurrer.—Error in sustaining a demurrer to a cross-complaint becomes immaterial if the same defense is set up in and could be made fully available by answer.</p>

<p>Street Assessment—Resolution oe Intention.—Under section 37 of the street assessment act (Stats. 1891, p. 196, c. 147), the resolution of intention of the city council to do the work contemplated, and describing it, is the initial step, and by it alone the council acquires jurisdiction to subsequently make the assessment and order the work done.</p> <p>Ib.—Description oe Work—Macadamizing—Kind op Material.—A resolution of intention for macadamizing and making gutters in a street recited that “The macadam shall be class ‘O’ as classified in Ordinance No. 62A.” Section 1 of that ordinance provided a classification of rock used in macadamizing, designated as “Class A, ” “Class B,” and “Class G.” In “Class A” and “Class B” the rock was specifically described, and “Class G” was defined as “such rock as shall be approved by the board of trustees from time to time.' ’ The ordinance further provided that the macadam should be of three classes, to be designated as “Class A,” “Class B, “ and “Class C,” and that all rock used in macadamizing designated as class C should be any rock classified as belonging to class A, class B or class C, by section 1 of the ordinance. No rock was ever approved by the board as class C rock. Reid, that the resolution of intention was insufficient to give the board jurisdiction to let the contract, order the work done, and assess the property for such work, in that it did not sufficiently describe the work to be done by specifying the kind or quality of rock to be used.</p>

<p>Negligence—Excavation in Street—Guarding at Night.—It is the legal duty of one who maintains an excavation in a public street to use such care as an ordinarily prudent and careful person would use under like circumstances in maintaining in or around said excavation such guard or barrier or light or lights as will warn one who is lawfully using the street in the night-time of the existence, location and limits of the excavation, and the omission to perform this duty is negligence.</p> <p>Id.—Insufficient Lights — Contributory Negligence.—The maintenance of one dim light at one end of an extensive excavation extending along the center ©f and diagonally across the street is not a performance of such duty, and the failure of a person driving at night along the street, without knowledge of the excavation, to observe the light or the extent of the excavation had he observed it, cannot be held as matter of law to show contributory negligence on his part.</p> <p>Id.—Evidence—Nonoccubrencb of Other Accidents—Experts.—In an action by a person injured by driving into such unguarded excavation, based upon the negligence of the defendant in so maintaining it, evidence of the nonoeeurrence of other accidents at the same place or under similar eireumstanees, and expert testimony as to the sufficiency of the lights, is inadmissible. The question of negligence in failing to maintain a sufficiency of lights was for the jury, and that duty could not be given to experts.</p> <p>Id.—Plaintiff’s Former Habits as to Use of Intoxicants—Mitigation of Damages.—In such action, evidence of the plaintiff's habits in respect to the use of intoxicating liquors a year or so preceding the accident, if admissible at all, would be considered only in mitigation of damages, and the exclusion of such evidence will be deemed unprejudieial when the verdict is of so small an amount, in proportion to the injury, as to show that all possible mitigating circumstances were resolved by the jury in favor of the defendant.</p> <p>Id.—Taking Map into Jury-room—Discretion.—There was no abuse of discretion, in such action, in refusing to permit the jury to take with them when they retired for deliberation a map that was before them during the trial.</p>

<p>Enforcement of Trust by Creditor—Defective Complaint Aided by Answer—Improper Judgment upon Pleadings.-—In an action by a creditor as a beneficiary to enforce a trust, though the complaint was defective in not averring that the trustee denied the trust or had refused upon demand to carry it out, or that defendant had notice of plaintiff’s claim, yet when the answer denied the trust for plaintiff and the indebtedness alleged, and pleaded a payment in satisfaction of the claim, the defective complaint was aided by the answer showing that any demand would have been unavailing, and was not therefore an essential prerequisite; and a motion by defendant for judgment upon the pleadings was improperly granted.</p> <p>Id.—Death of Trustee—Presentation of Claim of Beneficiary not Required.—The action by the creditor and beneficiary of the trust was not made a claim against the estate of the trustor by reason of the trustor’s death, and no presentation of the claims against such estate was required as a condition of enforcing the trust against the living trustee, where it affirmatively appears that a sale of the trust property was authorized and that the proceeds were to be applied to the expenses of the sickness of the trustor, including plaintiff’s claim, and that the residue of the proceeds was to be the property of the minor children, leaving no interest in the trustor to render necessary the presentation of any claim,</p>

<p>Landlord and Tenant—Construction op Lease—Option to Renew— Obvious Clerical Error—Purchasers Put upon Inquiry.—A lease for two years giving an option to renew, at expiration of the term, to “the party of the first part,” who was the lessor, can literally have no meaning or effect, and is so obviously a clerical error, and so plainly intended to give the option to renew to the lessee, who was “the party of the second part,” as to put purchasers from the landlord upon inquiry as to the tenant's right to renew, and to bind them by equities existing in favor of the tenant who was known to be in possession when the title was acquired.</p> <p>Id.—Notice of Reasonable Construction of Instrument.—Though the record of an instrument imparts no constructive notice of a mistake, yet the instrument imparts such notice as a fair and reasonable construction thereof would indicate as the meaning of the terms employed, and which is required to give it effect as a contract. The parties being bound by the obvious intent of the instrument, anyone dealing with the subject matter whose interests are affected and controlled by the instrument should be subject to a like reading.</p> <p>Ib.—Duty of Parties Reading Lease—Preliminary Action not Necessary.—The same duty devolves upon the parties in reading the lease as upon the court in considering it; and no necessity of any action rests upon either party as preliminary to the exercise of their rights under it.</p> <p>Id.—Rights not Impaired by Delay—Glaring Defect—Mutual Error.—No delay in calling attention to the mistake in the lease by either party would impair their rights; and the fact that the defect therein was so glaring as to suggest the error would establish the mutual character of the error.</p> <p>Id.—Unlawful Detainer—Action by Grantees—Effect Given to Lease—Reformation—Equitable Power of Court—Decree Affirmed.—In an action by grantees of the landlord against the ten. ant and subtenant for unlawful detainer, effect will be given to the lease reasonably construed, however clumsily it may be worded, and a resort need not be had to a court of equity to reform the contract; but the undoubted equitable power of the court in such action to relieve the tenant from a forfeiture, it seems, may properly be extended to a full examination of all the equities involved to the end that full justice may be done; and a finding as to the true intent of the lease, and a decree ordering it to be corrected accordingly will be affirmed.</p> <p>Id.—Forfeiture—Condition Against Subletting—Acquiescence— Support of Finding—Waiver.—A claim by such grantees of a forfeiture of the lease for breach of a condition against subletting is sufficiently answered by evidence suineient to support a finding that both the landlord and the grantees knew of the subletting and acquiesced therein, and received rent with such knowledge; and the effect thereof is a waiver of any rights theretofore existing on account of such violation of the obligation.</p> <p>Id.—Contract for Renewal of Lease—Notice of Renewal Necessary.—The legal effect of the language of the lease, properly interpreted as giving the option to renew it, at the termination of the lease to the lessee as second party, was a contract for a renewal and not an extension of the lease; and a notice was requisite to entitle the lessee to such renewal.</p> <p>Id.—Time fob Giving Notice—Termination of Lease—Fraction of Day Disregarded.—The law disregards fractions of a day in giving notice; and where the lease expired at midnight of September 30th, a notice of the renewal of the lease given on October 1st would be deemed effective as of the first moment of that day, and was given strictly at the termination of the lease as required by its terms.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County directing execution to he issued, and from an order refusing to vacate such order and to recall the execution. Waldo M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment by the Superior Court of Santa Clara County, and from an order refusing a new trial. A L. Rhodes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Place of Trial—Refusal to Change—Convenience of Witnesses.— The refusing or granting of a motion for a change of the place of trial upon the grounds that the convenience of witnesses and the ends of justice would be promoted thereby lies in the sound legal discretion of the trial court, and the mere preponderance in the number of witnesses does not necessarily control the matter.</p> <p>Id.—Preponderance of Witnesses—Discretion.—The mere fact that all the witnesses of the defendant who were seventeen in number, resided in the county to which the change of venue was requested does not show an abuse of discretion in denying the change, when it also appears that the plaintiff and his witnesses, who were six in number, all resided in the county in which the action was brought and that the plaintiff, by reason of Ms destitute circumstances, could not procure the attendance at the trial of some of them, if the transfer were made.</p>

<p>Negligence—Unsafe Place fob Miner—Knowledge of Master_ Ignorance of Servant—Sufficiency of Complaint.—A complaint for injuries to a miner from fall of part of the roof of the mine, alleging that the defendants who employed him in excavating the mine negligently maintained a chamber without necessary supports or props, to prevent the roof and walls from sinking, and that water percolated through the same causing it to become soft, disintegrated and loosened, and thereby rendered it an unsafe and dangerous place to work; and that defendants had full notice and knowledge of all the facts before the injury, and that plaintiff had no knowledge, or means of knowledge, of the unsafe or dangerous condition of said stope or of the causes thereof, states a cause of action. It cannot be said from such allegations that the unsafe condition of the stope was so plainly apparent that the plaintiff must be held to have had knowledge thereof.</p> <p>Id.—Duty of Master—Bight of Servant—Presumption.-—It is the personal duty of an employer to exercise reasonable care to furnish his employees a reasonably safe place to work; and in the absence of knowledge - to the contrary the servant has the right to rely on the presumption that the master has performed his duty.</p> <p>Id.—Knowledge of Percolation of Water—Patent Danger not Shown.—If it be assumed that plaintiff must have seen that water percolated through the ground above the chamber, it does not necessarily follow that it was patent to him that the place was unsafe.</p> <p>Id.—Character of Work—Pleading—Negligence—Affirmative Defense.—The complaint is not defective in omitting to allege the character of the work in which the plaintiff was engaged at the time and place of the action. It was sufficient to allege the negligence of the defendant in general terms; and if the character of the work was such that he must be deemed to have assumed the risk of working in a dangerous place, this is a matter of affirmative • defense to be shown by the defendant, and need not be negatived by the plaintiff.</p> <p>Id.—Necessity of Timbering—Expert Evidence—Qualification-Question of Fact—Discretion.—The qualification of miners, as expert witnesses, to testify to the conditions rendering timbering necessary in a stope or chamber, was a question of fact to be determined in the first instance by the trial court, and its decision as to their qualification will not be disturbed upon appeal, where it cannot be said that there was a clear abuse of the court’s discretion.</p> <p>Id.—Answer not Responsive—Error not Prejudicial.—An answer not responsive to a question put to the plaintiff should have been stricken out; but the error' cannot be held prejudicial when it appears that if the answer had been stricken out, the objection might have been obviated by another question.</p> <p>Id.—Objections to Expert Evidence—Constructions of Conditions— Support by Evidence.—Objection to the evidence of a miner abundantly qualified as an expert, that it calls for conditions not borne out by the evidence, was properly overruled, where the particular defects were not pointed out and the conditions were susceptible of a construction supported by evidence.</p> <p>Id.—Photograph of Timbers in Another Mine—Withdrawal After Objection Overruled.—The exhibition to the jury of a photograph of timbers in another mine, in connection with evidence as to what it represented, admitted without objection, which was withdrawn immediately after an objection to its admission was overruled, did not prejudice the defendants, where they did not ask the court to instruct the jury to disregard any evidence afforded by the picture thus withdrawn.</p> <p>Id.—Safety of Place—Rule as to Changing Conditions Inapplicable—Timbering not Required of Plaintiff.—The exceptional rule that the employer is not required to supply a safe place for his servants to work, if the work of itself constantly changes with the character of the work, or if they are employed in making the place safe, does not apply when the dangerous condition of the place was not the result of changing conditions of work, but of the percolation of water through an untimbered slate roof in a stope used as a passageway by the miners, the timbering of which was not in the scope of plaintiff’s employment, but was in the charge of an underground mine manager.</p> <p>Id.—Questions for Jury—Negligence—Contributory Negligence.— The question whether the defendants were negligent 'in failing to support the wet rock in the roof of the stope with timbers, and whether the plaintiff was guilty of contributory negligence, or had knowledge of the danger, or whether the facts known to him ought to have brought home to him knowledge of the danger, were questions of fact for the jury to determine.</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. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Page, McCutchen, Harding & Knight, and Page, McCutchen & Knight, for Appellant.</p>

<p>Assumpsit—Unrecorded Building Contract—Validity Between Parties—Test of Contractors’ Recovery.—In an action of assumpsit by contractors on a building contract for more than one thousand dollars, in which no lien is involved, the fact that the contract was not recorded is immaterial. The contract is not void between the parties, and constitutes the measure and test of recovery by the contractors, who must show a substantial compliance with its terms.</p> <p>Id.—Record upon Appeal—Prima Facie Showing of Substantial Compliance—Specifications not Shown.—Upon appeal by the owner from a judgment in favor of the contractor, if the record does not contain any copy of the plans,and specifications, but contains evidence showing prima facie, in connection with the contract alleged and not denied, that plaintiffs substantially complied with the contract, an objection that certain specifications were not complied with cannot be considered.</p> <p>Id.—Measure of Compensation for Labor and Materials.—The fact that the contract was unrecorded cannot limit the recovery by the contractor to the actual cost of work done and materials furnished; but the contract price is the measure of compensation in an action brought upon the contract.</p> <p>Id.—Testimony of One of Plaintiffs—Reasonable Value of Concrete Work.—The testimony of the plaintiffs as to what was the reasonable value of the concrete work done, and as to his knowledge of what was usually charged by concrete men for similar work, was admissible, and was relevant and material under the claim in assumpsit.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, granting a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Otto Irving Wise, and Crittenden Thornton, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order refusing a new trial. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Walter Gallagher, J. J. Guilfoyle, and R. M. Royce, for Appellants.</p>

<p>Corporation—Electric Lighting Company—Regulation op Use op City Streets.—The privilege given an electric lighting company, by article XI of section 19 of the constitution, under the direction of the superintendent of streets, or other officers in control thereof, of using the public streets of a municipality for introducing and supplying such city with electric lights, does not curtail the power of the municipality in making needful and reasonable regulations touching the use by such company of the streets, although the city will not be allowed to enforce regulations which are tantamount to a denial of the company’s right to use the streets, or are arbitrary, capricious, unreasonable, or prohibitory in their nature or effect.</p> <p>Ip.—Change op Location op Poles.—The original location of electric lighting poles by such company, by permission of the city authorities, does not give it an absolute, indefeasible right, or irrevocable = license, to have each pole remain at the particular spot for all time, and the city authorities have the power, by reasonable regulations, to compel the company to change the poles to other positions.</p> <p>Id.—No Prescriptive Right to Public Property.—Lapse of time will not confer on the company the absolute right to have the poles remain as originally located, as lapse of time creates no prescriptive right to public property.</p> <p>Id.—Injunction Against Change op Poles—Necessary Averments.— In an action by the company to enjoin the carrying out of a resolution of the city trustees requiring it to remove its poles to other locations, the complaint must show that the regulation is unreasonable, arbitrary, confiscating or prohibitory, or that its sole purpose is to harass or annoy the company in the enjoyment of its franchise. A mere allegation that the proposed change would work irreparable injury to the company is not sufficient to warrant an injunction, nor is an allegation that the change would work inconvenience and deprival of use in the manner theretofore enjoyed by the inhabitants of the city sufficient to show an arbitrary or unreasonable exercise of power on the part of the city authorities.</p>

<p>Habeas Corpus—Order Discharging Petitioner not Appealable.— Neither the provisions of article VI, section 4 of the constitution, conferring jurisdiction on the district courts of appeal in certain actions and proceedings, nor the provisions of section 1475 of the Penal Code, as amended in 1905, give a right of appeal to the district court of appeal from an order of the superior court discharging the petitioner in proceedings on habeas corpus. Such an order is not a final judgment within the meaning of section 939 of the Code of Civil Procedure, and is not appealable.</p>

<p>Griminal Law—Appeal—Absence op Appearance por Appellant— Examination'op Transcript.—Except in criminal cases involving capital punishment, the appellate court will not examine the transcript for errors of law, in the absence of any brief or appearance of counsel for the appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Cassius Carter, District Attorney, and Albert Schoonover, Deputy District Attorney, for Appellant.</p>

<p>Id.—Reference for Accounting—Findings of Fact by Referee.— Upon a reference, by consent of the parties, to a referee to take an accounting, and report the testimony with his findings of fact therefrom, such findings were equivalent to a special verdict or the findings of fact made by the court on the trial of the case; and a review of his decision upon a question of fact is subject to the same rules as is the action of a jury in a special verdict, or of a court upon its finding of facts.</p> <p>APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. A. L. Rhodes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of habeas corpus to the sheriff of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a writ of review to the Superior Court of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Public Libraries—Municipal Corporations—Donation to City—Control op Construction op Library Buildins.—The board of library trustees of a city of the sixth class created under the act of March 23, 1901 (Stats. 1901, e. 170, p. 557) for the establish- . ment and maintenance of public libraries within municipalities, are not entitled to control the construction of a public library building from a fund donated to the city, eo nomine, and not to them as trustees, “for the express purpose of defraying the cost and expense of building and constructing a building to be used only for , the purpose of a public library building ’ ’ in said city. The construction of such building, under the terms of the donation, rests with the board of trustees of the municipality.</p>

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