23 Cal. App.

Volume 23 — California Appellate Reports

150 opinions

23 Cal. App. 1Gobert v. Butterfield (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 10Knapp v. Knapp (1913)
Divorce—Cruelty—Acts Constituting—Sufficiency of Complaint.— In an action for divorce on the ground of cruelty, the complaint states a cause of action if it alleges generally that the defendant wrongfully and willfully inflicted upon the plaintiff a course of grievous mental suffering and grievous bodily injury, and further specifically alleges, among other acts of violence, that the defendant, without reasonable cause or excuse, slapped the plaintiff’s face and injured her person so as to leave black and blue spots thereon for several days. Id.—Division of Community Property—Presumption on Appeal.— In such case the appellate court, in the absence of the evidence, will assume that the facts warranted the distribution of the community property made by the trial court between the parties. Id.—Disposition of Common Property—Discretion of Trial Court.— Where a divorce is granted on the ground of cruelty, section 146 of the Civil Code leaves the disposition of the community property, in the first instance, to the discretion of the trial court, with perhaps the qualification that, as a general rule, more than one-half of such property must be decreed to the innocent spouse. Id.—Separate Property—Disposition in Decree.—The statute does not contemplate the disposition in the decree of the separate property, but of the community property only. Id.—Appeal—Errors op Which Dependant cannot Complain.—If the trial court failed to accord to the plaintiff what the findings of fact show she was entitled to in the way of property rights, it is of no legal concern to the defendant on appeal.
23 Cal. App. 14Henry v. Caswell (1913)
■ The facts are stated in the opinion of the court.
23 Cal. App. 17Dougherty v. Union Traction Co. (1913)
Street-railway—Passenger Attempting to Alight prom Moving Cab —Contributory Negligence.—Where a passenger on. a street-car attempts, without notifying the conductor, to alight while the car is in motion, acting upon the assumption that because the speed of the car has been slackened it will stop at the next crossing, the negligence of the passenger precludes her from recovering from the railway company for injuries received by falling to the ground at the time of an alleged sudden jerk or lurch of the car. Id.—Slackening op Speed op Cab—Assumption That It will Stop.— It is not for a passenger, desiring to alight from a street-car at a particular place, but not having notified the conductor of such desire, to assume, and to act upon such assumption, that merely because the speed at which the car has been traveling has been diminished for some reason, it is to be stopped at the next street crossing, especially where such crossing is not one where the cars are required to stop in any event but only on signal. Id.—Passenger Arising While Gar is in Motion—Contributory Negligence.—For a passenger to arise from his seat, preparatory to leaving the car, while it is still in motion, raises no presumption of negligence on his part, or, in other words, is not negligence per se; but when a passenger arises from his seat in a moving car for any purpose, he must exercise a reasonable or proper degree of care to protect himself from falling off the car, or, if he is inside, from falling against any object properly in the car, otherwise any injuries he may thus sustain will legally be imputed directly to his own negligence. Id.—Conductor—Duty Toward Passengers While Collecting Fares. When a street-car conductor is collecting fares, he is not to be expected to perform the impossible act of watching or keeping his eyes on all the passengers in the car, and there is, therefore, some responsibility very justly east upon the passengers themselves to look out for their own safety, and before attempting to leave a moving ear, or when preparing to do so, to notify the conductor in some proper manner of their desire to alight. Id.—Remarks and Instructions of Court—When not Prejudicial.— If the case is one which the court should take from the jury, because the personal injuries for which the plaintiff is suing were due to her own and not to the defendant’s negligence, errors in the matter of the court’s instructions and remarks are not prejudicial to the plaintiff. Id.—New Trial on Ground of Improper Remarks of Court—Review on Appeal.—Where the affidavits of the plaintiffs on their motion for a new trial on the ground of improper remarks by the court in the presence of the jury, are contradicted by the affidavits of ten of the jurors that they heard no such remarks, and the affidavit of the judge that he did not make them within the hearing of the jury, the decision of the trial court on the issue is conclusive on the appellate court.
23 Cal. App. 25Norman v. Hall (1913)
Building Contract—Imperfect Performance—Bight of Contractor to Becover Damages for Breach.—Where a building contractor put in a foundation which was defective in a substantial respect, and for that reason the owners refused to permit him to proceed with the work, he cannot recover damages for breach of the contract, although he contemplated putting in a new foundation, but did not because he received no' assurance, in addition to that afforded by the original contract, that the second foundation would be accepted.
23 Cal. App. 29Caldwell v. Regents of the University of California (1913)
APPEAL from an order of the Superior Court of Alameda County dismissing an action for want of prosecution. William H. Waste, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 36Hines v. Copeland (1913)
APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 44People v. Bradley (1913)
APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. John Ellsworth, Judge. The facts are stated in the opinion of the court. T. L. Christianson, and William H. H. Gentry, for Appellant.
23 Cal. App. 48People v. Stirgios (1913)
Criminal Law—Burglary—Sufficiency of Evidence.—The evidence in this prosecution for burglary not only warrants but compels the conviction of the defendant. Id.—Admissions of Defendant—Duress or Promise of Reward.—Certain incriminatory statements and admissions of the defendant are not shown to have been induced by duress and promise of reward, but the most that can be said is that the record shows a decided conflict in the evidence. Id.—Specific Instruction to Jury — Necessity for Request. — A charge to the jury is not open to attack on the ground that it fails specifically to cover a particular point in the ease which the defendant deems pertinent and material, if no request for such instruction has been made. Id.—Witness — Cross-examination — Admission of Conviction of Felony.—When a witness for the defendant in a criminal prosecution admits on cross-examination that he has been convicted of a felony by pleading guilty thereto, an objection to a question by the defendant calling for the reasons which induced the witness to plead guilty, is properly sustained.
23 Cal. App. 50People v. Wing (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. William P. Lawlor, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 53People v. Wing (1913)
APPEAL from'a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. William P. Lawlor, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 55W. B. McGerry & Co. v. Marsicano (1913)
Beal Estate Brokers—Value op Services—Bate Fixed by Board op Brokers.—In an action by a broker to recover the reasonable value of services in leasing real property, a resolution of the real estate board of brokers in the city, establishing a scale of commissions to be charged by brokers in negotiating leases, is admissible in evidence, and, together with positive and uncontradicted testimony of a witness that such rate is reasonable and customary, is sufficient to support a finding in favor of the plaintiff. Id.—Questions op Fact—Conclusiveness op Determination by Trial Court.—The power to determine questions of fact is vested exclusively in the trial court in civil cases, and its determination is controlling when substantial evidence exists to support its finding.
23 Cal. App. 59Pfoh v. Porter (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 67Nichols v. Davis (1913)
Attachment—Affidavit—Amendment by Attorney.—Under sections 538 and 558 of the Code of Civil Procedure, an amended affidavit in attachment proceedings, as well as the original affidavit, can he made for the plaintiff by his attorney. Id.—Amendment of Affidavit—When Allowable.—Under section 558 Of the Code of Civil Procedure the attaching party may, hy amendment, supply that which, by reason of inadvertence or oversight, was omitted from the affidavit, hut the provision cannot be construed as authorizing the filing of an affidavit in support of a writ theretofore issued in the absence of that which constitutes the substance of the act required as a prerequisite to the issuance thereof. Ib.—Action Against Two Defendants—Amendment of Affidavit to Show.—An affidavit on attachment in ap action against two de"fendants, which recites that the attachment is not sought, and the action is not prosecuted to hinder, delay, or defraud any creditor or creditors of the “said defendant,” may he amended under section 558 of the Code of Civil Procedure by changing “defendant” to “defendants,” and adding thereafter the words “or of either of them.” Id.—Amendment of Affidavit—Description of Contracts.—-A statement in the affidavit that the defendants are indebted to the plaintiff upon seven express contracts for the direct payment of money in this state, and that payment of the same has not been secured, may be amended so as to describe the contracts, which consist of seven promissory notes, by reference to the complaint, and adding “that the payment of the same and each of them and each part of them has not been secured,” etc. Ib.—Construction of Affidavit—Security for Notes.—The affidavit, as thus amended, is not subject to the criticism that from aught that appears from the affidavit the payment of some of the promissory notes has been secured. The affidavit plainly enough states that such contracts have not been secured, nor has either of them nor any part thereof been secured. Id.—Negative Pregnant—Interpretation of Affidavit.—The rule with regard to a negative pregnant, as also an affirmative pregnant, has reference more particularly to a pleading, which must not be ambiguous. An affidavit in an attachment is not strictly a pleading, but is more a matter of evidence, and is to he given a fair and reasonable construction in arriving at its meaning.
23 Cal. App. 72People v. Hartman (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 82People v. Fraser (1913)
Criminal Law—Filing False Birth Certificate.—A birth certificate is not an “instrument” within the meaning of the term as used in section 115 of the Penal Code, which makes it a felony to procure the filing or recording of a false or forged instrument in any public office of,the state. Id.—Recording False Instrument—Meaning of “Instrument.”—The "word “instrument” as used in section 115 of the Penal Code, is lira.ited in its meaning and application to that class of instruments invariably referred to throughout our statutes. Id.—Definition of Word “Instrument.”—Generally the term “instrument” as applied to documents necessarily imports a paper writing; but every paper writing is not necessarily an instrument within the settled statutory meaning of the term. With reference to writings the term “instrument” as employed in our statutes has been defined to mean an agreement expressed in writing, signed and delivered by one person to another, transferring the title to or creating a lien on real property, or giving a right to a debt or duty.
23 Cal. App. 86City & County of San Francisco v. Main (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 91Holland v. Canty (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 92People v. Kawasaki (1913)
Criminal Law—Homicide—Defense of Alibi—Sufficiency of Evidence.—In this prosecution for homicide the evidence sustains the finding against the defendant on his claim of alibi and justifies the jury in concluding him to be the identical person who did the killing. Id.—Alibi—Refusal of Instructions Regarding.—The refusal to give an instruction requested by the defendant on the question of alibi is proper, when full and'correct instructions have been given on the subject, and the one refused adds nothing to one which has been given at the defendant’s request, and the court tells the jury over and over again that if they have a reasonable doubt of the defendant’s guilt they must acquit him, and that the law deems it better that many guilty persons should escape rather than one innocent person be punished. Id.—Identity of Accused'—Instructions Cautioning Jury.—An instruction to “view with care most earnestly the testimony of those who testify to defendant’s identity,” is open to the objection that it is argumentative in form and directs special attention to one particular feature of the testimony, thereby conveying the implication that the judge is distrustful of it. Id.—Evidence as to Whereabouts of Accused at Time of Crime.— If a witness testifies that he was at a theater with the defendant on the night of the homicide, it is proper to exclude questions as to when he heard of the crime, if counsel does not state that the purpose of the testimony is to show that the homicide was committed while the witness and the defendant were at the theater, and that they first learned of its commission on their return therefrom. Id.—Examination of Witness—Counsel Taken by Surprise.—Where counsel for the defendant is taken by surprise in questioning a witness, but does not take advantage of permission given by the court to examine the witness as to different statements made before the trial, and turns the witness over to the prosecution for cross-examination, and the prosecution, without objection, examines the witness as to such statements, counsel for the defendant cannot, on redirect examination, go into the matter, nor can he have the answers of the witness on cross-examination stricken out. Id.—Unsatisfactory Testimony—Surprise—Bight to Show Contrary Statements Elsewhere.—The mere failure of witnesses to give favorable testimony for the party producing them does not entitle him to prove that they have made contrary statements elsewhere. Id.—Refusal of New Trial—Newly Discovered Evidence—Presumption on Appeal.—Applications for a new trial on the ground of newly discovered evidence are addressed to the discretion of the court below, and the presumption is that the discretion was properly exercised, where affidavits in the record are conflicting.
23 Cal. App. 100Petaluma Rock Co. v. Smith (1913)
Municipal Corporation—Street Assessments—Omission op Signature op Superintendent op Streets.—The fact that the superintendent of streets does not sign an assessment for street improvements does not deprive the contractor of his right to a lien, if the assessment recites that the superintendent made it, and the warrant is signed by the superintendent and refers to the assessment and diagram as made by him, and the three documents are attached together and duly recorded.
23 Cal. App. 108People v. Stein (1913)
Criminal Law—Preliminary Examination—Eight to Counsel.—It is unnecessary for the magistrate at a preliminary examination to go through the formality of advising the accused of his right to counsel, when he has already employed an attorney who is present when ¡the case is called. Id.—Eeading or Complaint to Accused—Whether may be Omitted.— An information will not be set aside because the complaint was not read to the accused at the preliminary examination, where his attorney, who was present with him, waived the reading and announced a readiness to proceed with the examination. Id.—-Informing Accused of Charge Against Him—Whether Complaint must be Actually Read.—The statute does not in terms declare that the complaint shall be read to the accused at the preliminary examination, but that the magistrate must inform him of the charge. Id.—Homicide—Shooting into. Crowd—Malice Implied.—Where one deliberately and unnecessarily shoots into a crowd of people, with an utter disregard of consequences, whereby human life is destroyed, malice is implied and the crime is murder, although he has no malice against any particular person in the crowd. Id.—Partial Insanity—Responsibility of Accused—Instructions.— It is not error to instruct the jury in a homicide case that, although the defendant, at the time he committed the act, was laboring under partial insanity, “if he still understood the nature and character of his act and its consequences, and had a knowledge that it was wrong and criminal, and he had mental power at the time sufficient to apply that knowledge, and to know if he committed the act he would be doing wrong, and receive punishment, and that he possessed a , will sufficient to restrain the impulse he may have had to kill, arising from his diseased mind, then such partial insanity will not exempt him from responsibility, under the law, for such act, and you should find him guilty, in the degree shown by the evidence,” provided the jury were convinced by the evidence beyond a reasonable doubt that the killing of the deceased by the defendant was without legal justification or legal excuse. Id.—Voluntary Intoxication—Responsibility of Accused—Instructions.—Where the defense in a homicide ease is insanity, partly superinduced by intoxicating liquors, and the prosecution claims that the accused was not,insane but merely in a state of voluntary intoxication at the time of the offense, and considerable testimony is addressed to this feature of the ease, it is proper to instruct the jury that “no act committed by a person in a state of voluntary intoxication is less criminal, by reason of his having been in such condition, but that where the actual existence of any particular purpose, motive or intent is a necessary element to constitute any particular species or degree of crime, evidence of the intoxicated condition of the accused at the time of the committing the act is admissible and may be considered by the jury in determining the purpose, motive or intent with which he committed such act.” Id.—Defense of Insanity—Instruction Cautioning Jury.—An instruction in which the court cautions the jury to examine with care the defense of insanity interposed by the defendant “lest an ingenious counterfeit of the malady furnish protection to the guilty,” while open to criticism, is not ground for reversal. Id.—Instructions—General Objection—Review on Appeal.—Where error is claimed in rulings of the trial court on instructions, it is the duty of the party complaining on appeal to point out the error, otherwise it will not be reviewed, as it is not incumbent on a reviewing court to search through the record for the purpose of .discovering for itself wherein the action of the trial court in the respect complained of involves error prejudicial to the defendant. Id.—Argument op District Attorney—Whether Objectionable.— Where the evidence in a homicide ease shows that the defendant, while intoxicated, deliberately and without provocation, shot into a crowd, the district attorney is justified in stating in his argument to the jury that if there ever was a case in his experience wherein there was disclosed an “abandoned and malignant heart,” it is the . case of this defendant. Id.-—Misconduct in argument—Objection—Review on Appeal.— Objectionable remarks by the district attorney in' a criminal case will not be reviewed or considered on appeal, unless they have been objected to at the time they were made, so that the trial court might have been accorded an opportunity to counteract their effect upon the jury. Id.—Verdict—Delivery op Form to Jury Fixing Place op Imprison ment.—The delivery by the court to the jury in a homicide case of a form of verdict designating the place of imprisonment in case the defendant is found guilty, while improper, is not prejudicial as being suggestive.
23 Cal. App. 120People v. Guaragna (1913)
Criminal Law—Indictment—Purpose of Pleading Particulars.— Primarily the purpose of precision in pleading the particulars of a crime is to preclude the possibility of a second prosecution for the same act, and at the same time to inform the defendant with reasonable certainty of that which he will be called upon to meet and defend against upon the trial. Id.—Abortion—Sufficiency of. Indictment—Description of Instruments and Manner of Their Use.—An information charging an abortion is not insufficient because of failure to allege by name or description the character of the instruments alleged to have been employed, or of failure to specify the manner in which the instruments were used, where the doing of every act essential to the commission of the crime is alleged in the language of the statute, and it is specifically charged that the crime was committed by the use of “instruments in and about and within the body” of the alleged victim. Id.—Argument of District Attorney—Reference to Reputation of Accused.—In a prosecution for abortion it is not misconduct for the district attorney in his argument to the jury to state that the evidence discloses that the defendant is generally reputed to be a professional abortionist, where positive testimony to that effect has been developed by counsel for the defendant upon cross-examination of the people's witnesses. Id.—Instruction—Refusal Because Covered by Others.—It is not error to refuse to instruct the jury that they should acquit the defendant if they find that the abortion charged was produced by means of drugs, and not, as alleged in the information, by the use of instruments, where the subject matter of such instruction is completely and correctly covered in the charge of the court. Id.—Evidence—Sufficiency to Convict of Abortion.—In this prosecution for abortion the evidence, direct, circumstantial, and opinion, is amply sufficient to justify the finding of the jury implied from the verdict that the defendant, by means of instruments of some kind, committed the crime charged. Id.—Evidence—General Assignment of Error—Review on Appeal.— Where some eighteen rulings upon the admission or rejection of evidence are generally assigned as error, and no particular point concerning any one of the rulings is discussed in the brief of the appellant, but the appellate court is merely referred to the pages and folios of the transcript where the objections and rulings are to be found, it will not examine and pass upon points thus presented.
23 Cal. App. 124William Nicol Company v. Cameron (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 126Hastaran v. Marchand (1913)
Appeal—Statement of Case—Specification of Errors—Sufficiency of Evidence.—A statement of the ease on motion for a new trial, which does not specify nor attempt to specify the particulars in which the evidence is claimed to be insufficient to justify the findings, cannot be considered, either upon the appeal from the order denying a new trial or on the appeal from the judgment, for the purpose of determining the sufficiency of the evidence. Id.—Insufficient Statement—-Whether Cubed by Other Documents in Transcript.—The failure of such statement to specify the particulars in which it is claimed the evidence is insufficient, is not cured by the incorporation, elsewhere in the transcript, of two separate documents .entitled “Bill of Exceptions,” one of which contains several specifications of the insufficiency of the evidence intermingled with argument and the citation of authorities, and the other made up of specifications of errors in law alleged to have occurred during •the trial, neither documents being authenticated by the trial judge, nor referred to in the authenticated statement or made a part thereof, nor purporting to set out in narrative form or otherwise the evidence and rulings at the trial, although upon the diminution of the record there was indorsed thereon the certificate of the trial judge that such documents were used on the hearing of the motion for a new trial. Id.—Specifications of Insufficiency of Evidence—Their Object and Purpose.—The specifications of the insufficiency of the evidence in a statement of the case or bill of exceptions are not required merely for use upon the hearing of the motion for a new trial, but are intended primarily, if not entirely, for the information of the adverse party and the trial court, to the end that they may be fully advised upon the settlement of the statement or bill of exceptions as to what matters of evidence covering the points in controversy should be included therein. Id.—Briefs on Appeal—Necessity of Stating or Arguing Errors of Law.—Alleged errors of law relating to the reception and rejection of testimony, not stated or argued in the brief of the appellant, but merely adverted to in a general way in an unauthenticated document purporting to be a bill of exceptions, will not be considered by the appellate court. Id.—Statement of Case—Errors of Law—When Beviewable.—Errors of law appearing either in a proper statement of the case or bill of exceptions may be reviewed upon an appeal from the judgment, regardless of whether or not an appeal has been perfected from an order denying a new trial. Id.—Objection to Evidence—Necessity of Interposing.—Errors of law in the admission of evidence are not available on appeal, if no objection was made to the reception of the evidence. Id.—Sufficiency of Evidence—Presumption on Appeal.—In the absence of an efficient statement of the case or a bill of exceptions, an appellate court must assume that the evidence adduced at the trial fully supports the findings, and justified the denial of a new trial.
23 Cal. App. 136Reed v. Witcher (1913)
APPEALS from a judgment of the -Superior Court of Alameda County and from an order refusing a new trial. Henry C. Gesford, Judge presiding. The facts are stated in the opinion of the court.
23 Cal. App. 143Dyar v. Stone (1913)
Brokers—Commission for Exchange of Properties—When not Earned.—A broker who is employed to effect an exchange of real .estate is not entitled to a commission if he does not produce a person ready and able to make an exchange in accordance with the proposed terms. Id.—Failure to Effect Exchange—Commission—Burden of Proof.— Where no exchange is effected, the burden of proof is upon the broker to show that he found one who was ready, willing, and able to effect the exchange upon the terms proposed.
23 Cal. App. 146People v. Mancuso (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. William P. Lawlor, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 148People v. Ong Git (1913)
Criminal Law—New Trial on the Ground of Newly Discovered Evidence.—Newly discovered evidence whose only tendency is to contradict and impeach the testimony of a witness for the prosecution' neither warrants nor requires the granting of a new trial. Id.—Criminal Trial—Grounds for Exclusion of Person From Courtroom.—The fact that a person has been guilty of misconduct at the preliminary examination of one accused of murder, in coaching and signaling witnesses for the prosecution, is not a valid ground for his exclusion from the courtroom at the trial of the accused in the superior court; if counsel for the defendant claims that such person has coached witnesses for the prosecution, and that his presence at the trial will intimidate witnesses for the defense, then counsel should develop these facts by cross-examination or independent proof, and not rely on mere assertions, otherwise the court does not abuse its discretion in refusing to exclude such person from the trial. Id.—Exclusion of Witness—Reasons for Rule.—The purpose of the rule permitting the exclusion of witnesses from the courtroom upon the request of either party is to prevent them from hearing the testimony of a witness under examination. Strictly construed, the rule applies only to a witness of the party adverse to the party making the request; liberally construed, it applies to a witness who, in good faith, has been subpoenaed to testify for either party to the action. Id.—Exclusion of Witness—Discretion of Court.—The exclusion of a witness is not a matter of absolute right in every ease. A request therefor is addressed to the discretion of the trial judge, the exercise of which must be controlled largely by the circumstances of the individual case; and the court does not abuse its discretion in refusing to exclude a person who appears to have been subpoenaed by the defense to lay a foundation for his exclusion. Id.—Interpreter—Competency—How Questioned and Determined.— Where the competency of a Chinese interpreter and .the accuracy of his interpretation of testimony at the preliminary examination are questioned at the trial of the accused, testimony, by cross-examination or otherwise, may be elicited to show his lack of ability or accuracy in translation, but the court may properly refuse the request of the accused that the interpreter hold a conversation in the Chinese language with Chinese witnesses in the presence of the jury to determine his qualifications. Id.—Witness—Impeachment by Transcript of Evidence at Inquest— Interpreter.—The court may properly refuse to permit the accused to show, by a transcript of the testimony taken at the coroner’s inquest, that two of the witnesses for the prosecution there made statements irreconcilable with their testimony at the trial, when the testimony at the inquest was given through an interpreter, and he is not produced to prove the correctness of the transcript. Id.—Homicide—Degree of Offense—Instructions.—Where the only defense interposed in a homicide case is that the defendant is not the person who fired the fatal shots, and the evidence is such as to compel the jury either to find the defendant guilty of an offense greater than manslaughter or acquit Mm, the court is not required to instruct on the subject of manslaughter. Id.—Instructions—Refusal Because Covered by Charge of Court.— The refusal of instructions requested by the defendant is proper where they are covered by the charge of the court. Id.—Homicide—Proof of Corpus Delicti.—The evidence shows that the deceased in this ease was Mlled by a gunshot wound inflicted by the defendant; an autopsy upon the body, was not necessary to the establishment of the corpus delicti. Id.—Remarks of Counsel—Admonition to Jury.—Where the trial court admonishes the jury to pay no heed to remarks of the district attorney, it will be presumed on appeal that the admonition was observed. Id.—Misconduct of Counsel—Time fob Admonition.—Ordinarily it is better practice to correct an abuse occurring in argument to the jury at the moment of its occurrence, but it was not prejudicial error in this prosecution for homicide for the court to refuse to entertain further exceptions while the argument of the district attorney was in progress, and direct counsel for the defendant to note and assign as misconduct any remark which they deemed objectionable and prejudicial at the close of the argument; counsel complying with the ruling, and the court then admonishing the jury at the close of the argument that “the arguments of counsel are of value to you in your deliberations only in so far as they are based upon the testimony that has been given to you by the witnesses upon the stand. Any outside matters that may have been brought into the case by counsel or any of them have no bearing, and should have no weight with you.” Id.—Homicide—Evidence as to Identity of Accused.—Photographs. ■—Where the defense in cross-examination of a witness for the people in a homicide case endeavors to show that shortly after ■the commission of the crime the witness was uncertain in his identification of the accused, he may testify on redirect examination that a short time after the offense was committed he was shown a photograph of a group of Chinamen and therein recognized and identified the accused.
23 Cal. App. 159Moore v. Gilson (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 160Kowalsky v. Nicholson (1913)
23 Cal. App. 164B. & W. Engineering Co. v. Beam (1913)
Accord and Satisfaction—Sufficiency of Evidence to Establish in Action to Recover for Clearing a Lot.—In this action to recover a balance alleged to be due for clearing a lot, the evidence justifies a finding to the effect that the original claim of the plaintiff’s assignor 'was extinguished by the execution of an accord and satisfaction. . Id.—Definition and Effect of Accord and Satisfaction.—The phrase “accord and satisfaction,” as it is known and applied in the law, means the substitution of a new agreement for and in satisfaction of a pre-existing agreement between the same parties. More minutely defined, an agreement of accord and satisfaction is one whereby one of two parties, having a right of action against the other upon a claim arising out of an existing agreement, agrees to accept from the other party something in satisfaction of such right of action different from and usually less than that which might be recovered upon the original obligation. The effect of such agreement when executed is to extinguish the antecedent liability. Id.—Prior Controversy—Existence of Bona Fide Dispute.—An agreement of accord and satisfaction presupposes a prior controversy concerning the relative rights of the -parties under the pre-existing agreement; and before a dispute concerning a claim for money alleged to be due under an existing contract can be ma'de the basis of an agreement of accord and satisfaction, the dispute must be shown to be bona fide; but it is not required, in order to validate an executed agreement of accord and satisfaction, that the circumstances of the transaction upon which it is founded should affirmatively show that there is room for an honest dispute. Id.—Foundation fob Dispute—Whether Essential to Satisfaction. —If a debt or claim is disputed at the time of payment, the payment, when accepted, of a part of the whole debt is good satisfaction, and it matters not that, there was no solid foundation for the dispute. The test in such case is, Was the dispute honest or fraudulent? If honest it affords a basis for an accord between the parties, which the law favors, and the execution of which is the satisfaction. Id.—Bona Fide Dispute—Question of Fact.—The question of the existence of a bona fide dispute is a question of fact to be determined by the trial court from all the circumstances of the transaction. Id.—Determination of Question—Immaterial Circumstances.—In the determination of that question the mere fact that it might have been held, in an action involving the construction of the original contract, that the plaintiff’s assignor could not have been compelled to relinquish any portion of its original claim, was of no consequence in the face of the established fact that it did actually and knowingly accept a lesser amount in full satisfaction and settlement of its claim. Id.—Conclusiveness of Settlement—Determination of Which Party was in the Bight.—Where the parties to an executed agreement of accord and satisfaction have met upon equal terms, and without fraud, misrepresentation, or mistake have adjusted existing differences concerning their relative rights and obligations arising out of a valid pre-existing agreement, it is neither necessary nor permissible to go behind a settlement actually made for the purpose of ascertaining which of the parties was right in the controversy which preceded and constituted the basis of such settlement. Id.—Good Faith of Dispute—Findings and Judgment.—Where the good faith of the dispute, which is expressly found to be the basis of an executed agreement of accord and satisfaction, follows as an irresistible inference from all the facts and circumstances of the ease and the acts of the parties which are found by the trial court to have attended the execution of the agreement, the findings are not open to attack as not sustaining a judgment for the defendant on the plea of accord and satisfaction, although they do not specifically and affirmatively determine that the dispute which preceded the payment of the claim in controversy was genuine and made in good faith. Id.—Compromise by Agent—Ratification by Principal.—Where a principal accepts and retains money paid to his agent, with full knowledge that such payment was made, accepted, and receipted for upon the express condition that it was in full settlement of a disputed claim, the principal thereby ratifies the compromise and is estopped to deny the agent’s authority to make it. Id.—Part Performance—Whether Extinguishes Obligation.—Section 1524 of Civil Code.—Section 1524 of the Civil Code providing that “part performance of an obligation, either 'before or after breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation,” has reference only to agreements of release and satisfaction made in cases where the obligation is neither doubtful nor disputed, and has no application to an executed agreement of accord and satisfaction founded upon the settlement and extinction of a disputed debt. Id.—Accord Without Satisfaction—Whether Bars Debt.—An accord without satisfaction will not operate to bar an action upon a. disputed debt. Id.—Parol Evidence—Whether Admissible to Prove Performance. Parol evidence, even though it involves the subject matter of an executory contract which in itself would be within the statute of frauds, may be resorted to for the purpose of proving performance in satisfaction of the accord. Id.—Executed Agreement—Effect to Extinguish Original Obligation.—Where an agreement to accept in full payment a sum less than the amount in dispute has been shown to have been fully executed by the payment and acceptance of the lesser sum, the original obligation is thereby extinguished. Id.—Pleading—Necessity of Specially Pleading Accord and Satisfaction.—The settled rule of pleading in this state requires an agreement of accord and satisfaction to 'be specially pleaded before it can be availed of as a defense. Id.—Exception to Rule That Accord and Satisfaction is to be Specially Pleaded.—This rule is subject to the exception that if a plaintiff, as a part of his case, proves a payment, and the circumstances under which it was made tend to show an accord and satisfaction, the defendant may rely upon the facts thus shown as constituting an accord and satisfaction though not pleaded as such in the answer. Id.—Amendment of Answer.—It is not an abuse of discretion to allow the defendant to amend Ms answer, at the close of the evidenee, by specially pleading the existence of an executed agreement of accord and satisfaction, where the evidence tends to show the existence of such an agreement. Id.—Pleading and Facts Constituting Accord and Satisfaction.— The defense of accord and satisfaction, at the very best, requires nothing more to be pleaded than the payment and acceptance, upon a mutual agreement express or implied, of a certain sum of money or other thing of value in full settlement and satisfaction of a pre-existing and previously disputed obligation.
23 Cal. App. 179Murdough v. Murdough (1913)
Husband and Wipe—Desertion—Action for Maintenance.—In this action by a married woman for separate maintenance, the evidence is sufficient to show that her husband, after being informed that she was suffering from consumption, left her and resolved to live with her no more. Id.—Separate Maintenance—Amount op Allowance.—If it appears in such case that the husband has a net income of one hundred dollars a month, an award to the wife of forty dollars a month for her separate maintenance will not be disturbed on appeal. Id.—Appeal—Silence op Record—Presumption.—On appeal from the judgment it will be presumed that the trial court ruled upon a demurrer to the complaint, if the record fails to show that the court did not rule thereon. Id.—Assignment op Error—General Statement as to Rulings on Evidence.—A general assignment of errors in the admission or rejection of evidence, by the statement in the appellant’s brief that an examination of the record will satisfy the court of the correctness of his position, will not be considered on appeal.
23 Cal. App. 182Craycroft v. Superior Court (1913)
APPLICATION for Writ of Prohibition to be directed to the Superior Court of Kern County. The facts aré stated in the opinion of the court.
23 Cal. App. 183Jacoby v. Peck (1913)
Landlord and Tenant—Destruction oe Premises—Liability eor Bent.—One who contracts with the lessees of certain premises to pay them a stipulated sum monthly for the remainder of their term in consideration of their transferring their interest to the owners of the property, and securing from them a lease direct to him for which the owners are to receive an additional rental, is released from his obligation to the original lessees on the destruction of the premises by fire prior to the expiration of the term.
23 Cal. App. 188Davidow v. Griswold (1913)
Pleading—Complaint in Intervention—Denial for Want of Information.—In a suit to quiet title, where the matters involved are of such a character that the plaintiffs cannot hide behind the pretense of want of information, their answer to a complaint in intervention is" not good if in this form: “These plaintiffs have no information upon the subject sufficient to enable them to answer all of the allegations contained in the complaint in intervention, and basing their denial upon that ground these plaintiffs deny,” etc. Id.—Denial on Information or Belief.—By such allegations the plaintiffs do not even bring themselves within the provision of the code permitting an answer upon the ground of want of “information or belief.”. Dedication—Streets and Parks—Estoppel Where Lots Sold With Reference to Map.—Where the owner of land has it surveyed and platted as a townsite, files in the recorder’s office a map delineating streets and parks, sells lots all over the tract described by reference to the map and upon representations that the streets have been laid out and dedicated to public use, and the lots are purchased and improved in reliance upon these representations, equity will not thereafter permit him to deny the dedication of the streets and parks as against the purchasers and the public. Id.—Statute of Limitations—Whether Bars- Right to Use Streets.—The statute of limitations can be of no avail as against the right of the public to use the streets thus dedicated; - and even if the dedication is considered available only to the large number of persons who purchased lots, there is sufficient evidence in the record to support the finding against the bar of their right by the statute.
23 Cal. App. 199People v. California Safe Deposit & Trust Co. (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. J. M. Seawell, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 211Winston v. Idaho Hardwood Co. (1913)
Foreign Corporation—Failure to File Articles op Incorporation— Rigipt to Defend Action.—The failure ef a foreign corporation doing business in this state to file a certified copy of its articles of incorporation in the office of the secretary of state, as required by sections 408 and 409 of the Civil Code, renders it subject to a fine, and deprives it of the right to maintain any action in any of the courts of this state, but does not prevent it from defending any such action brought against it. Id.—Designation of Person on Whom to Serve Process—Time for Filing.—Such corporation is not required to file a designation of some person residing in this state upon whom process may be served, as provided by section 405 of the Civil Code, until the time of the filing of a certified copy of its articles of incorporation in the office of the secretary of state, and in the absence of proof of the filing of such a certified copy, such time has not arrived and no duty devolves upon it to file such designation. Id.—Service of Summons on Secretary op State.—In an action against such corporation service of summons on the secretary of state is unauthorized, if it is not alleged in the complaint or otherwise shown that the defendant.has failed to comply with the provisions of sections 408 and 409 of the Civil Code requiring such a corporation to file a certified copy of its articles of incorporation in the office of the secretary of state, but it is simply recited in the return of service of the summons that the defendant has not designated any person residing in the state upon whom process can be served. Id.—Default Judgment—Power op Clerk to Enter.—In such case the clerk of the court is without authority to enter a judgment by default against the corporation. Id.—Appeal—Denial op Motion to Dismiss.—A motion to dismiss an appeal from such judgment, on the ground of failure to file a copy of the articles of incorporation and a designation of some person on whom to serve process, is properly denied. Id.—Failure to File Articles or Designate Person on Whom to Serve Process.—The failure to file a copy of its articles of incorporation, as required by sections 408 and 409, renders a foreign corporation subject to the penalties imposed by the provisions of section 410, but the denial of the right of such corporation to defend an action, as provided in section 406, attaches only when it fails to designate an agent in the state upon whom service may be made, and the duty of filing such designation arises only at the time of filing the copy of the articles of incorporation, which in this case was never filed.
23 Cal. App. 216Merchants Collection Agency v. Gopcevic (1913)
The facts are stated in the opinion of the court. John F. Davis, Charles S. Wheeler, J. F. Bowie, and W. S. Andrews, for Appellant.
23 Cal. App. 222Johnson v. Reliance Automobile Co. (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 232McNutt v. Pabst (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Franklin J. Cole, Judge presiding. The facts are stated in the opinion of the court.
23 Cal. App. 233Heim v. Mooney (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 241People v. Ostrander (1913)
Burglary—Breaking and Entry—Intention.—One who breaks and enters a boat-house to obtain a place for his companion to rest is not guilty of burglary. Id.—New Trial—Review of Order Granting.—Where a conviction for burglary is had on conflicting evidence, an order of the trial court granting a new trial will not be disturbed on appeal.
23 Cal. App. 242Medlin v. Spazier (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Walter Bordwell, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 247Young v. Young (1913)
23 Cal. App. 251Emirzian v. Asato (1913)
Specific Performance—Contract to Grow and Sell Orange Trees.— Where one breaks his contract to grow and sell nursery orange trees of a kind which can be bought in the market at the place where the agreement is made, the buyer cannot maintain an action for specific performance against the seller and have him enjoined from disposing of the trees to others; the remedy is an action at law for damages. Id.—Breach of Agreement to Sell Chattels—Remedies.—There is a presumption that the breach of an agreement to transfer personal property can be relieved by pecuniary compensation; and where the breach of such a contract can be thus compensated, an injunction will not be granted to prevent the breach. Id.—Personal Service—Specific Performance of Contract Respecting.—Performance of an obligation to render personal service cannot be specifically enforced. Id.—Contract Relating to Chattels — Specific Performance.—In general a court of equitable jurisdiction will not decree the specific performance of a contract relating to the transfer of personal property which has a market value and no special or unique value, and which is bought and sold in the open market. The remedy at law is sufficient, since, with the unpaid purchase money and the moneys recovered by action, the buyer can purchase in the open market property of the same character as that contracted for, if the seller is in fault. Id.—Offer of Performance by Defendant—Refusal of Acceptance— Finding.—Where in an action for the specific performance of a contract to grow and sell nursery orange trees the seller alleges offer of performance and refusal of acceptance, he is entitled to a finding upon such issue. Id.—Finding on Material Issue—Failure to Make.—A failure to find on a material issue demands a reversal of the case, and a judgment based upon findings which do not determine all the material issues is a decision against law.
23 Cal. App. 259People v. King (1913)
Criminal Law—Prosecution for Embezzlement—Evidence of Prior Offenses.—Where the defendant in a prosecution for embezzlement admits having received the money, but contends that he has returned it to the complaining witness, it is prejudicial error to admit evidence of previous offenses committed by the defendant, similar to the one charged, to show his guilty intent in dealings with the complaining witness. Id.—Evidence of Other Offenses—Whether Admissible in Criminal Prosecution.—Proof of an offense distinct from and wholly disconnected with the particular crime charged against a defendant is not admissible in evidence. But this general rule is subject to certain well-defined exceptions, one of which is that evidence of the commission of similar offenses, although separate and isolated from the crime charged, is admissible for the purpose of showing a guilty intent whenever in any given ease the existence of such intent is material and either disputed or doubtful.
23 Cal. App. 264Dennen v. Jastro (1913)
Election — Printing of Ballots — Candidate of More Than One Party.—It was the intention of the legislature, as expressed in section 1197 of the Political Code, that where a candidate is the nominee of two or more political parties, his name should appear upon the ballot but once, followed by appropriate words designating him as the candidate of such parties; but this provision, like many other minute directions contained in such section, is not essential to the validity of the election but is directory only. Id.—Ballots—Printing Name of Candidate Twice.—To print the name of a candidate of two political parties for the office of supervisor twice upon the ballot, followed by the separate designation of each political party, instead of but once followed by the designation of both parties, while an irregularity, does not invalidate the election. Id.—Election Laws — Failure to Comply With Technical Directions—Whether Invalidates Election.—A failure to comply with some technical direction of an election statute, where due alone to mistake or inadvertence on the part of those whose duty it is to prepare and furnish the ballots, should not disfranchise the entire vote of the district and vitiate the election, unless it is made to appear that by reason of the irregularity the result was different from what it would otherwise have been, or that it prevented the voter from freely, fairly, and honestly expressing his choice of the candidate for the office.
23 Cal. App. 268Mulvey v. Wangenheim (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 274Merchants' Mutual Adjusting Agency v. Davidson (1913)
Corporation—Stockholders’ Liability—Creditor’s Suit—Conditions Precedent.—Where it appears from the allegations of the complaint in an action by a judgment creditor to reach unpaid subscriptions to corporate stock, that the corporation is wholly insolvent and without any assets other than those which the judgment creditor has made a futile attempt to reach by execution, he has done all that he should be required to do as a condition precedent to maintaining the action. Id.—Beturn of Execution Nulla Bona—When Unnecessary.—The return of an execution nulla tona is not a prerequisite to maintaining an action of this character, where the complaint shows that the corporation is wholly insolvent and has no assets upon which to levy an execution. Id.—Issuance of Stock as Paid-up—Effect of Agreement to Such Effect.—The evidence in this case does not establish an agreement whereby the shares were sold and the certificates issued to the defendant stockholder as “paid up” stock; but conceding such agreement, if made, binding upon the corporation, it could not affect the rights of the plaintiff as a judgment creditor of the insolvent corporation to enforce payment to it of the full par value of the stock less the price actually paid therefor. This is upon the doctrine of the so-called trust fund theory. Id.—Insolvent Corporation—Trust Fund Theory.—The assets of an . insolvent corporation, in whatever form, are held in trust for its creditors. Among such assets are unpaid balances consisting of the difference between the par value of the stock and the amount actually paid therefor by the purchaser from the corporation, as to the payment of which, so far as the creditor is concerned, the obligation is unconditional, even though the corporation has, in selling the stock, accepted a qualified liability whereby it is estopped from enforcing payment of the balance. Id.—Financial Embarrassment op Corporation—Sale op Stock to Believe.—The rights of a creditor of the insolvent corporation are not affected by the fact that the corporation, when it sold the stock, was in financial straits, and made the sale in good faith to- relieve its embarrassment.
23 Cal. App. 281Strange v. Strange (1913)
APPEALS from a judgment of the Superior Court of the City and County of San Francisco and from orders made in the matter of a motion for a new trial. H. D. Burroughs, Judge presiding. The facts are stated in the opinion of the court.
23 Cal. App. 285Williams v. McDougald (1913)
APPEAL from an order of the Superior Court of the City and County of San Francisco settling the report of an inheritance tax appraiser and fixing the amount of the inheritance tax. J. Y. Coffey, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 290People v. Dadmun (1913)
Criminal Law—Larceny—Theft of Deed by Grantee—Indictment.— An indictment charging the grantee named in a deed with grand larceny in stealing and carrying away the deed, which, if properly delivered, was sufficient to convey the title to the property described therein, and alleging the value of the property but not the value of the deed, is demurrable. Id.—Theft of Instrument or Document—Section 492 of Penal Code. Section 492 of the Penal Code, providing that “if the thing stolen consists of any evidence of debt, or other written instrument, the amount of money due thereupon, or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recovered in- the absence •thereof, is the value of the thing stolen,” does not purport to define any offense, but merely prescribes a rule of evidence for ascertaining and fixing the value of the article stolen. Id.—Meaning of “Written Instrument”-—Necessity of Delivery.— The term “written instrument” means a written document, delivered with the intention that it shall take effect in accordance with its purpose as shown by the language used therein; the use of the word with respect to contracts and deeds of conveyance of real estate implies a delivery, without which the document is inoperative for any purpose. Id.—Undelivered Deed—Whether a Subject of Larceny!—An undelivered deed is not a “written instrument” within the meaning of section- 492 of the Penal Code, and is not a subject of larceny.
23 Cal. App. 294Douglas v. Spangenberg (1913)
Broker—Commission for Sale of Beal Estate—Production of Purchaser.—A broker’s contract for the sale of real estate is not performed, nor is Ms commission earned, until it affirmatively appears that he has procured and secured a purchaser ready, willing, and able to buy the property offered for sale upon the terms and conditions and at the price fixed by the owner. Id.—Commission—What must be Done in Order to Earn.—Such a showing can be made only by proof of the fact that the broker procured from the prospective purchaser an enforceable contract binding him to purchase the property offered for sale at the price and upon the terms specified by the owner or assented to by him; or, in the absence of such a contract, by proof of the fact that the broker brought the owner and prospective purchaser together for the purpose of consummating a contract of sale at the price and upon the terms proposed or assented to by the owner, and that the owner declined to proceed with the sale upon such terms. Id.—Action for Commission — Sufficiency of Evidence.—In this action by a broker against Ms principal for commissions alleged to have been earned in procuring a purchaser for real estate, the evidence fails to show that the 'broker procured a purchaser who was ready, able, and willing to buy upon the terms originally authorized by the principal, or upon other and different terms proposed by the broker and subsequently accepted and ratified by the principal.
23 Cal. App. 298Parsons v. Cashman (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 303Gard v. Ramos (1913)
APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. John Ellsworth, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 306People v. Horvath (1913)
L'kiminal Law—Information—Waiver of Objections in Absence of Demurrer.—An objection to an information that it does not substantially conform to the requirements of sections 950 and 952 of the Penal Code, will be regarded as waived in the absence of' a demurrer. Id.—Rape—Information in Language of Statute.—An information for rape, drawn in substantial compliance with section 261 of the Penal Code, is sufficient. Id.—Sufficiency of Evidence to Support Verdict of Guilty.—In this prosecution for rape the evidence is sufficient to support the verdict of guilty. Id.—Misconduct of District Attorney—Assignment of Error—Review on Appeal.—Asserted error of the trial court in failing to instruct the jury to disregard certain alleged prejudicial remarks of the district attorney during the argument of the case will not be considered on appeal where the record fails .to show what such remarks were, or that any objection was made to them at the 'time, or that any request for an instruction to the jury to disregard them was ever made.
23 Cal. App. 308Taylor v. Simi Construction Co. (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 310Fisher v. Fisher (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 315Berkeley Bank of Savings & Trust Co. v. Miller (1913)
Mortgage—Action to Foreclose—^Stipulation as to Disposition op Surplus—Conclusiveness on Appeal.—Where all the defendants in an action to foreclose a mortgage stipulate that all claims (except those of defendants who afterward appeal) to any surplus that may remain after the satisfaction of the mortgage need not be disposed of in the present action but should await adjudication in another action pending between the several defendants to determine the extent and priorities of their respective claims to the mortgaged premises, the appealing defendants cannot complain of a provision in the decree of foreclosure requiring the surplus to be deposited with the court to await judgment in the other action pending, nor can they complain of the failure of the lower court to adjudicate the issues presented by the answers of the nonappealing defendants. This is so because of the principle of appellate procedure which denies to a party in a civil action the assertion of a right which he has formally waived, or the advantage of an error in which he has knowingly acquiesced. Id.—Attorney Fee—Power or Court to Find as to Reasonableness. In an action to foreclose a mortgage the court has the right to determine, even if no evidence has been adduced on the subject, that the attorney fee provided in the mortgage is reasonable. Id.—Foreclosure op Mortgage—Subrogation to Rights op Plaintipp —Substitution op Parties.—Where one of the defendants in foreclosure proceedings, who claims an interest in the premises subordinate to the mortgage, makes a tender .to the plaintiff for the amount due him, together with the costs and counsel fees, which tender is accepted, he is entitled to be subrogated to the interests of the plaintiff, and then properly substituted as the plaintiff in the action.
23 Cal. App. 318Union Collection Co. v. Oliver (1913)
Appeal—Time for Filing Transcript—Pendency of Proceeding— Rule of Supreme Court.—A proceeding is pending for the settlement of a bill of exceptions, within, the meaning of rule II of the supreme court relating to the time of filing the transcript on appeal from a judgment, where an appeal has been taken from an order relieving a party moving for a new trial from his omission to serve his notice of intention within the time prescribed by law, regardless of the ultimate success or failure of the proceeding. CORPORATIONS'—'SALE OF STOCK—GUARANTY TO REFUND MONEY IN CASE of Dissatisfaction.—Where a guaranty is made to the purchaser of corporate stock to refund to him all moneys paid “in twelve months from date, in the event that you are not satisfied with your investment,” an expression of dissatisfaction and a demand for the fulfillment of the guaranty may be made at any time during the life of the agreement, and are not premature if made before the last day of the life of the guaranty. Id.—Assignment of Guaranty—Validity and Effect.—An assignment of the guaranty by the obligee, prior to the last day fixed in the demand for refunding the money, is valid; it operates to authorize the assignee to collect the same when it becomes due and payable. Id.—Assignability of Guaranty — Ratification of Assignment.— Such a guaranty is assignable, and if it were not, its assignment could be ratified by the guarantor, with notice of the assignment, agreeing with the assignee to pay an amount agreed to be due under the contract. Id.—Contract—Whether That of Corporation or of Its President. The fact that the guarantor in signing the contract adds the word “President” after his signature does not make the contract the obligation of the corporation of which he is president, nor does the use of the letterhead of the corporation carry any such presumption. Id.—Return of Stock on Payment of Money—Judgment—Appeal.— The failure to provide in the judgment, in an action on the guaranty for the return of the money, that the stock must be returned on payment of the judgment, cannot be objected to on appeal, where the complaint in the action contemplates that upon payment the stock shall be returned to the defendant, and he, neither in his answer nor in any other way, indicated that he was not satisfied to let the case go to trial and judgment resting on that assumption. Id.—Pleading—Complaint Embracing Two Counts—One Count Defective.—Where a complaint embraces two counts, one of which states sufficient facts to constitute a cause of action, it is good as against a general demurrer, and an appellate court will not reverse a judgment for the plaintiff, even if the other count is defective; for the sake of upholding it, the judgment will be presumed to be based upon the count against which there is no valid objection.
23 Cal. App. 325Boschetti v. Morton (1913)
Guaranty of Lease — Action to Enforce — Lessee not Necessary Party.—In an action by the lessor on a guaranty of a lease, the lessee, who is insolvent, is not a necessary party defendant. Id.—Pleading—Redundant Matter in Complaint—Refusal to Strike Out.—In such action the refusal of the court to strike out redundant matter in the complaint setting forth proceedings to recover rent in the justice’s court, is not ground for a reversal of the judgment, it not appearing that defendants were in any wise prejudiced by the redundancy. Id.—Amended Answer Alleging Pendency of Another Action-Refusal of Leave to Pile.—It is not error in such action to refuse leave to file an amended answer, setting forth by way of plea of abatement the pendency of another action between the lessee and the plaintiffs here to recover damages for the defective construction of the building and the consequent injury to goods, where the guarantor is not a party to such action. Id.—Execution of Lease and Guaranty—Sufficiency of Proof.—In this action on a guaranty of a lease the execution of the lease and the guaranty appeared both by failure to deny and by the averments of the answer and the complaint in intervention. Id.—Action on Guaranty of Lease—Evidence.—In such action it is material to show that the plaintiffs accepted possession of the premises from the lessee, and that their reason for doing so was the nonpayment of the rent. Id.—Surrender of Premises by Lessee—Acceptance by Lessor.—• Upon the surrender of the key and abandonment of the premises by a lessee during the term, the lessors have a right to take possession and thus manifest their acceptance of the surrender, without being held to have evicted the lessee and absolved him from liability for rent. Id.—Eviction of Lessee—What is not—Liability of Guarantor for Rent.—Where a tenant, not under compulsion but voluntarily, gives up the premises and the landlord accepts the abandonment, there is no eviction, and guarantors of the lease are not discharged from liability for rent. Id.—Default of Lessee—Necessity of Notice to Guarantor.—One who guarantees the payment of rent under a lease is not entitled to notice within reasonable time of the lessee’s default in paying rent.
23 Cal. App. 333Nahl v. Alta Irrigation District (1913)
Waters and Watrercoursbs—Irrigation Ditch—Duty op Owner to Prevent Injury to Others.—The owner of an irrigation ditch must so construct and maintain it as that, in its operation, by the exercise of reasonable or ordinary care, no damage will result to others. To him applies the principle that one must so use his own property as not to injure that of others. Id.—Degree op Care Exacted prom Owner op Ditch.—Such owner, however, is not an insurer against all damages arising from his ditches, but is liable when 'negligent in the construction, maintenance, and operation thereof. He is, in other words, required to exercise only reasonable or ordinary care in thg construction, maintenance, and operation of his ditches. A>.—Act of God—Liability of Owner of Ditch or Canal.—A ditch or canal owner is not responsible for that which is solely the result of an act of God, or inevitable accident; it is only when human agency is combined with the act of God, and neglect occurs in the employment of such agency, that a liability for damage .results from such neglect. Id.—Overflow Due to Extraordinary Floods—Liability of Owner of Ditch.—In this action against an irrigation company for damages occasioned by an overflow of one of its ditches, flooding the plaintiff’s land and destroying eucalyptus trees thereon, the evidence is sufficient to justify the findings of the court that the overflow and consequent damages were not due to any fault or negligence of the defendant, but to extraordinary rainfall and. unprecedented storms. Id.—Conflicting Evidence—Review on Appeal.—Where upon some of the main points the evidence is conflicting, and nothing appears upon the face of the testimony from which the findings must have been reached indicating the improbability of its verity, an appellate court, upon a review of the ease, must abide by the decision of the trial court upon the ultimate result arrived at by it from such testimony.
23 Cal. App. 340People v. Cramley (1913)
Criminal Law—Homicide—Sufficiency of Evidence.—In this prosecution for homicide the evidence is sufficient to sustain the conviction of manslaughter, both as showing that a crime was committed and that the defendant was the perpetrator thereof. Id,—Reasonable Doubt—Sufficiency of Instructions.—An instruction that “if, by the evidence adduced in a criminal action, there is raised in the minds of the jury, upon any hypothesis reasonably consistent with the evidence, a reasonable doubt as to any fact necessary to a conviction, that doubt must be resolved in favor of the defendant,” is not erroneous in failing to set out or specify what facts are necessary to warrant a conviction, when the charge as contained in the information is read to the jury in other instructions given by the court, and the jury is told that every material allegation contained in the information is required to be established by proof beyond a reasonable doubt, before a verdict of guilty can be rendered. Id.—Presumption of Innocence—Refusal of Instructions.—The re- . fusal of the court to instruct the jury that “the presumption of innocence is one to which the law is partial,” and “that where conflicting presumptions supervene, the presumption of innocence must be deemed superior,” is not error, if the jury is further instructed that the presumption of innocence must be overcome by the prosecution to the extent that all material facts should be established to the satisfaction of the jury and beyond a reasonable doubt, and the evidence discloses no situation where there arises a conflict of presumptions. Id.—Instructions to Jury—Use of Different Language by Court.— The fact that the court may employ different language in its instructions from that which the defendant may desire shall be used in presenting the same matter to the jury, is not good ground for objection. Id.—Manslaughter—Propriety of Instruction Defining.—Where the accused in a homicide case pleads not guilty and seeks to show from the circumstances surrounding the death that the deceased destroyed himself, the court may, of its own motion, properly read to the jury instructions defining the crime of manslaughter; and the defendant cannot complain of a verdict of manslaughter, which is more favorable to him than one which the jury might well have returned under the evidence. Id.—Motive for Homicide—Instructions Where Evidence Direct.— Where much of the evidence in a homicide ease is direct and not by way of circumstance, it would not be proper to tell the jury .that, under the evidence, proof of express motive is controlling. Id.—Cross-examination of Witness—Striking Out Answer—Harmless Error.—The accused cannot predicate prejudicial error upon the ruling of the court in striking out an answer to a question on cross-examination, if the witness is afterward allowed to answer in regard to the subject of inquiry and thereby give the defendant the benefit of such testimony. Id.—Misconduct of Counsel — Absence of Objection—Review on Appeal.—An alleged improper statement by the district attorney in a homicide trial cannot be complained of on appeal, if the defendant neither objected to the statement nor asked the court to strike it from the record. Id.—Improper Question to Witness—Reprimanding Attorney.—It is improper in a homicide case for counsel for the defendant to ask the wife of the deceased on cross-examination if she was arrested about three weeks before for shoplifting, and the court properly reprimands him for asking it. Id.—Misconduct of Court—Comment on Attorney’s Intelligence.— A statement by the court to counsel for the defendant, “I am going to rule in your favor if you have sense enough to keep quiet,” is not prejudicial error. The matter of the interchange of courtesies between the judge on the bench and counsel at the bar has been said never to come within purview of a proper subject for review, unless it appears reasonably that the jury has been affected in a way prejudicial to the rights of the defendant. Id.—View of Premises—Evidence of Change in Condition.—After the jury in a homicide ease, pursuant to a request joined in by the defendant, has viewed the premises where the crime was committed, the prosecution may be allowed to account for any change in their condition, between their state as shown by the evidence and their appearance at the time the jury inspected them.
23 Cal. App. 349Baldwin v. Walls (1913)
APPEAL from an order of the Superior Court of Modoc County sustaining a demurrer. Clarence A. Raker, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 349Baldwin v. Walls (1913)
23 Cal. App. 350Waterman v. Visalia Electric R.R. Co. (1913)
APPEAL from a judgment of the Superior Court of Tulare County and from an order refusing a new trial. W. B. Wallace, Judge. The facts are stated in the opinion of the court. J. W. McKinley, Frank Karr, Powers & McFadzean, and W. R. Millar, for Appellant.
23 Cal. App. 358Loyalton Electric Light Co. v. California Pine Box & Lumber Co. (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. J. M. Seawell, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 363Jacoby v. Peck (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 369Third Street Improvement Co. v. McLelland (1913)
Action for Money Had and Received—Written Settlement—Oral Evidence of Omitted Item.—Where it is shown, in an action for money had and received by the defendants for the use and benefit of the plaintiff, that the parties made a settlement in writing, parol evidence is not admissible that .prior to the written settlement the plaintiff paid the defendants five hundred dollars which, by inadvertence, was not entered in the books of the plaintiff, and consequently was not taken into consideration in the negotiations for settlement, nor had the plaintiff received credit for the same. Id.-—Oral Negotiations — Merger in Written Settlement.—The moment it appeared that the parties had stated their account in writing, a presumption arose that the payment of the five hundred dollars made prior thereto, together with all previous oral negotiations, were merged in the written agreement. Id.—Mistake in Settlement—• Amendment of Complaint so as to have Contract Reformed.—But it was reversible error to refuse the plaintiff leave to amend its complaint by adding a count thereto, in which to allege the mistake of fact in the agreement of settlement, and praying for the reformation of the contract and the recovery of the five hundred dollars overpaid.
23 Cal. App. 373Beckett v. Stuart (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 376People v. Profumo (1913)
Criminal Law—Dying Declaration—Instruction Giving Jury’ Liberty to Disregard.—An instruction in a homicide case, upon the subject of dying declarations: “Whether the declaration was in fact made under a sense of impending death is a question of fact which most materially affects the question of -its credibility, and the determination of the court thereon is not conclusive upon the jury. They have the right, in considering whether they shall accept the declaration as a correct statement, to. determine for themselves whether the declarant was in extremis, and fully convinced of that fact when making the declaration, and are at liberty to disregard it if not satisfied that it was made under a sense of 'impending death” —while it correctly commits to the jury the final determination as to whether the declaration was made while the declarant was in extremis, and was conscious of the fact of his condition, leaves the jury “at liberty” to regard or disregard the declaration, although it has not been proved to their satisfaction that it was made under a sense of impending death. Id.—Instruction as to Dying Declarations—Waiver by Failure to Bequest More Specific Charge.—This error in such instruction is not waived by the failure of the defendant to request a more specific instruction upon the subject of dying declarations. Where a general instruction is given by the court which is correct as far as it goes, but is merely deficient by reason of its generality, the defendant is bound to request that the charge be made more specific, and ■in the absence of such request is held to have waived his objection to the instruction; but to hold that an error of an instruction, which merely informs the jury that they are at liberty not to do that which under given conditions they are bound not to do, must be corrected by the defendant at the moment of its commission, under penalty of waiving his right to object to it upon appeal, would be to carry the rule of waiver entirely too far. Id.—Error in Instruction as to Dying Declaration—When Harmless.—The misdirection to the jury in .such instruction is not such prejudicial error as to have resulted in a miscarriage of justice and require a reversal, where the appellate court, pursuant to its duty under section 4% of article VI of the constitution, makes an examination of the entire cause, including the evidence,, to determine whether the error was prejudicial, and finds that undisputed evidence shows beyond a reasonable doubt and to a moral certainty ' that the alleged dying declaration of the decedent was in fact so, and was made under a sense of impending death, and that the jury must have so found from the affirmative and unquestioned proofs before them. Id.—Dying Declaration—What Constitutes—Admissibility in Evidence.—A dying declaration is admissible in evidence only when, in the first instance, the court is reasonably satisfied by evidence alkmde that it was made under a sense of impending death; and, having been so admitted by the court, is competent evidence to be considered by the jury only when they shall also have first satisfied themselves beyond a reasonable doubt that it was made by the declarant as a dying person and under a sense of impending death. Id.—Manslaughter—Refusal of Instructions Defining.—The failure of the court in a homicide case to instruct the jury on the subject of manslaughter is not reversible error, when the elements of manslaughter are not reasonably deducible from the evidence.
23 Cal. App. 382People v. Smith (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 384Keating v. Keating (1913)
Appeal—Order Refusing New Trial—Absence of Statement.—No error can be predicated upon the ruling of a trial court in denying a motion for a flew trial, when no statement has been settled and allowed. And although the want of a settled statement may be due solely to an error of the court in refusing to allow the same, this cannot avail a party aggrieved, on appeal from such order, when upon the record nothing appears to show the alleged errors upon which the motion is based. Id.—Notice of Refusal of New Trial—Failure to Serve—Deficient Record.—If notice of the denial of an appellant’s motion for a new trial is not served, and the record on appeal does not contain the papers specified in section 661 of the Code of Civil Procedure, as required by section 952 of that code, the order denying the motion for a new trial must be affirmed. Id.—Divorce—Motion for New Trial—Agreement to Prepare Statement—Default in Preparing and Serving Statement.—Where the co-respondent and the defendant in a divorce action agree that the defendant shall prepare a statement to be used by both on their respective motions for a new -trial, but the plaintiff is not a party to the agreement and is served with the statement in support of the motion of the defendant alone, the co-respondent is not entitled to rely on the statement of the defendant. The failure of the defendant to carry out the agreement is no ground for relief from the co-respondent’s default in preparing and serving a statement.
23 Cal. App. 388Morris v. Iden (1913)
APPEAL from a judgment of the Superior Court of Tulare County and from an order sustaining a demurrer to the complaint. J. A. Allen, Judge. The facts are stated in- the opinion of the court.
23 Cal. App. 396People v. Carmean (1913)
Criminal Law—Rape—Time of Commission of Offense—Evidence— Instructions.—Where in a prosecution for rape evidence is introduced showing that the prosecutrix visited the defendant’s place of business (where the offense is alleged to have been committed on March 2d) on March 23d and on March 27, 1913, but there is no evidence of an unlawful act between them on either of those latter occasions, .and her testimony that she never had intercourse with him except on the one occasion of March 2d, is not contradicted by other testimony, an instruction to the jury that “an act of sexual intercourse committed on a girl under sixteen years of age not the wife of the accused is rape, the date of such act is immaterial, if it occurs at any time within three years before the filing of the information. The witnesses for the prosecution fix the date of the act testified to by them as March 2, 1913. If they are mistaken in the date this is immaterial,” is not erroneous or misleading, when there is no evidence of the commission of but the one offense, and the jury is also advised that any other misconduct of the defendant is not material or proper to bring before them. ■ Id.—Evidence Admitted fob Limited Purpose—Instructions to Jury —Failure to Request.—The failure of the court to tell the jury that evidence of improper familiarity on the part of the defendant with the prosecutrix was admitted solely for the purpose of proving bis adulterous disposition, and not as evidence of the commission of a crime on. former occasions, is not error if no> such instruction is asked. Where a defendant desires to restrict evidence to a particular purpose, he should so frame Ms objections, and ask a proper instruction to the jury. Id.—Misconduct of District Attorney—Failure to Object—Review on Appeal.—Alleged misconduct of the district attorney in asking witnesses improper questions will not be considered on appeal, in ■the absence of specific objection and exception based thereon.
23 Cal. App. 401Kummeth v. Atkinson (1913)
MOTION to tax costs in a proceeding for a writ of Mandate. The facts are stated in the opinion of the court.
23 Cal. App. 402Peatland Realty Co. v. Edwards (1913)
Sale of Jack—Construction of Contract—-Condition Precedent to Consummation of Sale—Death of Animal.—Under a contract providing that the “first party has sold unto the second parties,” for a valuable consideration, a certain jack “upon the following conditions, possession of jack to pass to second parties at once. First party guarantees jack to- serve m-ares and to- get at least' sixty (60%) of stock served the first ye'ar with foal. In -ease of •failure in either of foregoing provisions first party agrees to surrender to second panties their notes upon return of said jack, this contract to be liberally construed so as to protect the rights and interests of the parties hereto,” the provision that the jack should get sixty per cent of the mares served with foal is a condition precedent upon the performance of which the consummation of the sale depends; and where the jack dies within the year, without the fault of the second parties, and fails between the time of delivery of possession and death to get more .than, thirty-eight per cent of the stock served with foal, the second parties may set up these facts as a defense to an action on the purchase-money notes. Id.—Meaning op Word “Sold”—Executory Agreement.—While the word “sold” primarily means a consummated sale passing title, such meaning is controlled by the context, which here clearly indicates an executory agreement not intended to transfer title, except upon the performance of the condition specified.
23 Cal. App. 405Hoffecker v. Board of Supervisors (1913)
Municipal Corporation—Proceeding to Incorporate—Petition op Electors—Affidavits as to Signatures.—In proceedings for the incorporation of a city of the sixth class, the affidavit of three qualified electors, filed with the petition, certifying the genuineness of the signatures to the petition of more than fifty of the qualified electors of the county residing within the proposed limits, is prima faoie evidence of the requisite number of signers; and if no other evidence-is presented to or considered by the board of supervisors, it is bound to determine that it has jurisdiction to make its order, so far as such jurisdiction depends upon the number of qualified electors signing the petition. Id.—Writ of Review-—Questions That mat be Considered.—In proceedings for a writ to review the action of the board of supervisors in granting such petition, the court cannot take into- consideration &ny facts other than those which would .appear in a return by the board -showing the record of the proceedings before it; and in this case the- return would show that the petition was signed by ¡the requisite number of qualified electors, and -therefore -the alleged want of jurisdiction upon the ground of defect in number of qualified electors could not be made -to appear in this proceeding. Id.—Notice of Petition—Publication for Two Weeks.—The publication of the petition for incorporation, reciting -that the same will be presented on September twentieth, in the issues -of September thirteenth and twentieth of a weekly newspaper, is a sufficient publication for two weeks, and fulfills the requirements- of the statute. Id.—Publication Once a Week—Daily or Weekly Newspaper.—A requirement that a notice be published for a designated number of weeks in some newspaper published in the county is fully satisfied by a publication once each week for the designated number of weeks in a daily newspaper publishéd in the county. The s-ame is true when the newspaper is only of weekly publication-.
23 Cal. App. 409Smiley v. Watson (1913)
Promissory Note—Promise op Payee to Advance Money to Build House—Breach op Agreement—Failure op .Consideration—Action to Cancel Note.—Where a promissory note, secured by a deed of trust and providing that on default in payment of interest the whole sum of principal and interest shall immediately become due at the option of the holder, is executed on the oral agreement of the payee to advance .the money specified therein to the makers in certain installments as the erection of a house by them progresses, and the payee advances only a small part of the money called for by the note and transfers the note before maturity and for value to one without .notice, the makers can maintain a suit to cancel the note and deed of trust. ■ Id.—Negotiability op Note—Option op Holder to Declare Due on Default in Payment op Interest.—Such note, secured by a deed of trust and due in three years with interest payable quarterly, is rendered non-negoidable by the clause “should the interest not be paid when due, then the whole sum of principal and interest shall become immediately due and payable at the option of the holder of this note.” Id.—Cancellation op Instruments—Tender op Money Received.—In this action by the makers to have the note and deed of trust canceled, the payment by the plaintiffs into court, at the time of bringing suit, of the small amount of money received by them from the •payee, to abide the result of the action, is a sufficient compliance with subdivision 2 of section 1691 of the Civil Code relating to restoration on rescission.
23 Cal. App. 415Crooks v. Hodgdon (1913)
Will—Undue Influence as Ground for Revocation of Probate—Sufficiency of Evidence.—In this proceeding for the revocation of the prehate of a will on the ground of undue influence, the evidence presented by the contestant falls far short of measuring up to the degree of proof required to establish undue influence, or requisite to have warranted the lower court in submitting the issue to a jury; and for these reasons the motion of the respondent for a nonsuit was properly granted. Id.—Undue Influence—Evidence—Whether Sufficient to Warrant Court in Overthrowing Will.—Courts have neither the right nor the power .to overthrow a will on the ground of undue influence, in the absence of direct and substantial proof bringing the case within those well established rules of law which define undue influence, and prescribe .the extent to which the evidence in any given case must go in order to measure up to the requirements of such definition. Id.—What Constitutes Undue Influence in Execution of Will.—Undue influence consists in the exercise of acts or conduct by which the mind of a testator is subjected to the will of the person operating upon it; some means taken or employed which have the effect of overcoming the free agency of the testator, and constraining him to make a disposition of his property contrary to and different from what he would have done had he been permitted to follow his own inclination or judgment. Id.—Time at Which Undue Influence Exercised.—Courts must refuse to set aside a will upon the ground of undue influence, unless there is proof of a pressure which overpowered the mind and here down the volition of the testator at the very time the will was made. Id.—Confidential Relation—Husband and Wife—Presumption of .Undue Influence.—Where a wife makes a will in favor of her husband, no legal suspicion of undue influence arises from their confidential relatione so as to. impose on him the burden of proving .that he has not unduly influenced her in making the will; hut such relation and ..the opportunity afforded thereby may be taken into consideration with other evidence to prove undue influence on his part. Id.—Revocation of Probate of Will—Motion for Nonsuit—Consideration of Evidence.—In considering the evidence before the court on a motion for nonsuit in proceedings for the revocation of the probate of a will, the entire evidence presented is to be viewed from a point most favorable to the contestant, disregard is to be had of contradictory evidence, all facts supporting the ease of the contestant must be taken as true, and all presumptions from the evidence and all reasonable inferences susceptible of being drawn therefrom must be considered as facts proved in Ms favor.
23 Cal. App. 423Coleman v. Coleman (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from orders refusing leave to file notice of new trial and. denying alimony and costs. William P. Lawlor, Judge. . The facts are stated in the opinion of the court.
23 Cal. App. 427Krigbaum v. Sbarbaro (1913)
Monopolies—Cartwright Anti-trust Law—Combination to Prevent Broker from Effecting Sale of Land—Sufficiency of Complaint for Double Damages.—In an action by a real estate broker against the stockholders of a bank for double the amount of damages alleged .to have been sustained by him by their acts in preventing him from consummating the sale of certain real property devoted to the growing of wine grapes, a complaint alleging that the defendants combined together, in violation of -the Cartwright anti-trust law (Stats. 1907, p. 984; Stats, 1909, p. 953) for the purpose of securing and maintaining a monopoly of the wine industry and of lands suitable to the growing of wine grapes in the state, and .that they determined ffco destroy the plaintiff’s business, by reason of bis having preferred charges against the bank to obtain its expulsion from a certain real estate board, and that they coerced the bondholders’ committee of a certain vineyard corporation, who had employed the plaintiff to sell certain land, to refuse to conclude a sale negotiated by the plaintiff through his agency, does not state a cause of action under the Cartwright Act. Ib.—Character of Transaction—Injury not Directly Eesulting from Monopoly.—It is manifest from the circumstances of the transaction complained of as divulged by the complaint that the injury, if any, sustained by the plaintiff in such transaction did not occur as the direct result of the restrictions' in trade or commerce which it is charged are being maintained by the alleged trust or combination, but must have been directly occasioned, if at all, by the wrongful acts either of the trust itself, as a corporate entity, not acting within ibhe scope of the purposes of its organization, or by the defendants, as individuals, combined together, it may be, for that express purpose. Id.—Interpretation of Cartwright Act—Injury to Business or Property.—Injury in business or property within the contemplation of section 11 of the Cartwright anti-trust law providing that any person injured "in his business or property by any other person or corporation or association or partnership, by reason of anything forbidden or declared to be unlawful”' by such act, may recover twofold damages, arises where the injury has directly resulted from the fact of the existence of the trust, that is, where the business or property has directly sustained injury solely by reason of the restrictions in trade or commerce which are fostered by such trust or combination. One whose business or property has been injured cannot maintain an action under such law if the injury, although directly the result of the wrongful acts of the trust or the constituent members thereof, did not arise by reason of the restrictions in trade or commerce carried out by such trust or combination. Id.—Alelegations as to Trust—Matters of Inducement.—The averments in such complaint as to1 the alleged trust are wholly immaterial to the gist of the complaint,-—namely, the wrongful acts whereby the defendants, having combined and conspired together for that purpose, hut net as- a -trust or combination in restraint of trade, caused the committee to break its contract with the plaintiff. At best such averments can be regarded -as nothing more than matter of inducement, explanatory to some extent, perhaps, of the gist of the complaint. Ib.—Complaint—Sufficiency of Statement of Tort.—While such complaint is not good under the anti-trust act, it sufficiently states an actionable wrong against the defendants to fortify .the pleading against the force of a general demurrer, and the measure of damages is the actual detriment he has suffered by reason of the wrong. Id.—Purchaser Ready and Able—Allegation Concerning.—It is not necessary for the plaintiff in such action to allege that at the time the sale was prevented he had procured a purchaser, ready, willing, and able to purchase for the amount and upon the terms prescribed, where it appears that the only step necessary to the procurement was in concluding the negotiations, that is, in consummating or crystallizing the negotiations into an agreement. Id.—Exclusive Right of Broker to Sell—Allegation Regarding.— Nor is it necessary to allege that the plaintiff had the exclusive right to sell the property during the life of his contract, or that the committee in its contract with him did not reserve to itself the right to make a sale within that time.
23 Cal. App. 428Krigbaum v. Sbarbaro (1913)
23 Cal. App. 436Trimble v. Hellar (1913)
Waters and Watercourses—Amount or Appropriation—How Determined.—Priority in the use of waters and the capacity of the ditch through which they are diverted do not necessarily establish the extent of the right. The true test is the amount of water actually used for beneficial purposes. Id.—Measure op Approfbiator’s Bight—Amount op Water Actually Used or Needed.—The .appxopria.ior’o right is measured by what he in fact uses for some useful or beneficial purpose, not what he might have used; and if the capacity of the ditch is greater thaji is necessary to irrigate Ms lands, he will be restricted to the quantity of water needed for purposes of irrigation, watering stock, and domestic purposes. Id.—Irrigation—Bight to Enlarge Use op Water.—Where the purpose for which water is appropriated is the irrigation of land, the appropriator is not confined to the amount first used, but is entitled to such further amount of water, within the capacity of his ditch, as will be required for future improvement of Ms land, if the right is otherwise kept up; but this right to enlarge the use may be lost by nonuser for a long period- of time, and the appropriation of the water meantime by others. Id.—Amount of Appropriation—Circumstances Indicating.—In determining the -amount of water to which a claimant is entitled, the acts and conduct of the first appropriator at the time of his appropriation, his object in making the appropriation, the quantity of land capable of irrigation, the necessity for irrigation, together with his actual appropriation and use, must be considered. Id.—Action to Determine Conflicting Water-rights.—In this action to determine conflicting claims to the waters of Kerlin Creek, in Trinity County, it appears that the defendant never did, either by the acts of his predecessors in interest or by his own acts, acquire a right to a greater quantity of the waters of the creek than that allowed him in the judgment, that is, one-half thereof. Id.—Judgment—Necessity of Definitely Fixing Quantity of Water —Equitable Division.—The failure of the court in such action to indicate definitely in its judgment the quantity of water to which each party is entitled is not objectionable where it appears that the flow of the stream is shown to vary greatly at different seasons of the year, that for a long period of the time the claimants have used substantially the same quantity and found it sufficient for their purposes, and that there have been no other users. Id.—Water-right—Grant by Implication.—Where a water-right is appurtenant to land, it passes with a conveyance of the land, irrespective of whether the deed, in terms, conveys the "appurtenances.” Id.—Appropriation—Notice as Determining Quantity of Water.— Where an appropriator of water posts a notice of his claim to an amount of water in excess of what he appropriates, this will not affect the rights of other appropri-ators. His right is not measured " by the extent of his appropriation as stated in the notice, or by the actual diversion from the stream, but by the extent to which he applies the waters for useful or beneficial purposes.
23 Cal. App. 447People v. Powers (1913)
APPEAL from a judgment of the Superior Court of Contra Costa County and from an order refusing a new trial. J. E. Barber, Judge presiding. The facts are- stated in the opinion of the court.
23 Cal. App. 455Rawles v. Los Angeles Gas & Electric Corp. (1913)
Witness — Cross-examination as to Depression in Street — Whether Question Calls for Conclusion.—Where, in an action by a pedestrian for personal injuries sustained from stepping into a depression left in a street by a gas company, a photograph of the depression, taken the day following the accident, is admitted in evidence, and the witness who took it testifies that he made no examination of the depression on the day of the accident, but that the street was in the same condition when he took the photograph as when the accident occurred, it is proper cross-examination to ask him how he knows the conditions were identical. Id.—Cross-examination—Opinion or Conclusion of Witness—Refusal to Strike Out.—Where a witness in such ease, who visited the scene of the accident, has testified on direct examination' as to the dimensions of the depression, is asked on cross-examination, “Sow did you happen to go down and visit that hole?” and in reply says, among other things, that on seeing the depression he stated this “is gross carelessness on the part of this party that dug this hole,” it is error to refuse to strike out such opinion or eonclusion. Id.—Ordinance Regarding Street Excavations—Introduction in Evidence—Instructions.—If in such action a eity ordinance is introduced in evidence, detailing the requirements as to making and refilling excavations in streets, and containing provisions beneficial ■ to the city as administrative regulations and other provisions for the benefit of persons using the street, and the eourt gives a general instruction that a violation of the latter provisions, if the proximate cause of the .plaintiff’s injuries, is sufficient to show a breach of duty and consequent negligence, it might well go further and define the provisions designed for the benefit of private persons.
23 Cal. App. 460Tucker, Lynch & Coldwell, Inc. v. Hawley (1913)
Brokers—Lease of Beal Estate—Bight to Commission.—Under a contract providing that if a certain- company “or any concern represented by” a designated person leases a building to be erected by the lessor, the lessor will pay a firm of real estate brokers a commission for services rendered in making the lease, the commission is earned upon .the execution of a lease to lessees produced and presented by such person, irrespective of whether he has power to bind them. Id.—Bringing Minds of Parties Together—Whether Necessary.— Under such agreement it is unnecessary for the broker to bring the minds of the lessor and lessee together, and thus become the procuring cause of the execution of the lease. The agreement contemplates that the parties to the lease shall arrive at its terms themselves. Id.—Formation of Corporation by Lessor—Effect on Broker’s Bight to Commission.—The right of the broker to- commissions under such contract is not affected by the fact that the building ■was erected by a corporation instead of by the lessor personally, as provided in- the contract, the corporation having been formed for that purpose by the lessor, because of his lack of funds, and he being the owner of a large proportion of the stock.
23 Cal. App. 465Major v. Walker (1913)
APPEAL from orders of the Superior Court of the City and County of San Francisco dismissing action and vacating substitution of administrator as party defendant. J. M. Seawell, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 468Gray v. O'Banion (1913)
Elections—Ballot—Distinguishing Mark—Cross Outside Square.— A cross on a ballot, made by the voter with .the voting stamp,, immediately to the right of the name of one of the candidates, and not in the voting square, constitutes & distinguishing mark under section 1205 of the Political Code. Id.—Distinguishing Mark on Ballot—What Constitutes.—A distinct mark in the form of < on a ballot between the words “amend” and "section” in a referendum proposition which, from its position on the ballot with reference to the other marks properly made with the voting stamp, cannot be regarded as a transfer from such marks caused by the folding of tha ballot, is a distinguishing mark. Id.—Blurs and Offsets Due to Folding Ballot.—Blurs caused by the awkward handling and folding of ballots, and offsets, that is, the transference of the mark of the voting stamp through the folding of ballots before the ink becomes dry, are not distinguishing marks. Id.—Educational Qualification of Voter—Finding of Trial Court—■ Conclusiveness.—A finding of the trial court in an election contest that a voter was under sixty years of age at .the time of the adoption of the constitutional amendment prescribing an educational qualification of voters, is conclusive on appeal. Id.—Residence of Voter—Dwelling on Line Dividing Two Districts.—Where the dividing line between two supervisorial districts runs through a dwelling-house, so that the greater part of the dining room is in one district and the other rooms are mostly or altogether in the other district, the owner or occupant has the right to vote in the latter district. Id.—Voting in Wrong District—Whether Bars Voting in Right One.—And his right to vote there is not affected by the fact that heretofore he has illegally voted in the other district. Id.—Domicile of Laborers on Ranch—Dwelling in One District— Bunkhouse in Another.—Where the boundary line between two election districts divides a ranch so as to leave a bunkhouse and a larger part of the dining-room of the dwelling-house in one district, and the remaining and larger portion of the dwelling-house in the other district, unmarried laborers employed on .the ranch, who sleep in the bunkhouse and take their meals in such dining-room, are entitled to vote in the first district.
23 Cal. App. 479Harrelson v. Oro Grande Lime & Stone Co. (1913)
Eminent Domain—Leased Premises—Value of Leasehold and of Bight to Behove Buildings—Award Made by Judgment—Presumption.—Where the judgment in eminent domain proceedings awards a certain amount to the owner of the property and a certain amount to his lessees, who have the right, under the lease, to remove the improvements at the end of the term, it will be presumed, in a subsequent action on the lease to recover rent, wherein the lessees set up as a counterclaim that the award to them did not include the value of the right to remove the improvements, that in the judgment in the condemnation proceedings the rights of all parties interested in the property condemned, whether as owners or lessees, were fully and correctly determined, and the value of each particular interest fixed and award thereof made to the owner.
23 Cal. App. 482Newlin v. Myers (1913)
Pledge oe Corporate Stock—Interpretation op Contract—Action by Pledgor to Compel Eedelivery op Shares—Payment as Condition Precedent.—Where the owner of corporate stock pledges it under an agreement to protect the pledgee -against all loss, expense, and liability which he may incur in the matter of a pledge of stock to him made by another stockholder, the pledgee is not entitled, in an action against him by the first pledgor to recover the shares of stock, to payment from such- pledgor, as -a condition to- redelivery of the stock, of moneys voluntarily paid out and- expended by' the pledgee in a wrongful and futile attempt to hold the stock of the second pledgor. The loss, expense, and liability against which the first pledgor agreed to protect the pledgee in- entering into ithe contract with the second pledgor was such only as he might incur, under and by virtue of the terms of that contract, and not by reason of acts on .the pari of the pledgee and expenditures m-ade wholly without the terms of the -agreement.
23 Cal. App. 492Payne v. Ward (1913)
Drainage Act—Adjustment of Assessment bt Board of Equalization—Review by Courts.—Under the Drainage Act (Stats. 1885, p. 204; 1891, p. 262; 1909, p. 25) the action of the board of equalization in adjusting an assessment is not conclusive upon the landowners, but is subject .to review by the courts. Id.—Drainage Assessments—Manner of Litigating Validity—Action'to Restrain Foreclosure.-—The litigation of the validity of the assessment may be had in an action brought by the property owners themselves to nullify the action of the board of equalization and to restrain the trustees from bringing suits to foreclose the liens of the assessment.
23 Cal. App. 500Volquards v. Myers (1913)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Edgar T. Zook, Judge presiding. The facts are stated in the opinion of the court. Edgar C. Levey, George M. Lipman, and J. P. O’Brien, for Appellant.
23 Cal. App. 507People v. Quan Gim Gow (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Paul J. McCormick, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 513People v. Wilson (1913)
Criminal Law—Homicide—Admissibility in Evidence of Pieces of Buggy Shaft.-—In a prosecution for murder, where the evidence is purely circumstantial, pieces of a buggy shaft, found on the premises where the crime was committed, are admissible in evidence, there being evidence tending to show that the fatal blow received by the deceased was administered by the use of the shaft. Id.—Foreman of Coroner’s Jury as Witness—Cross-examination— Introduction of Coroner’s Verdict.—In such prosecution it is proper, on the cross-examination of the prosecuting witness, who was foreman of the coroner’s jury, to refuse to admit in evidence the verdict of such jury certifying that they did not know who killed the deceased. Id.—Evidence op Prior Acts op Violence—Refusal.to Strike Out-~ Nonprejudigial Error.—When in such prosecution evidence is admitted of violence suffered by the deceased on a certain occasion, but the defendant is not shown to have been connected therewith, it is error to refuse to strike out such evidence; but the error is not to be regarded as prejudicial on appeal, when the record contains other evidence of actual violence on other occasions on the part of the defendant toward the deceased. Id.—Evidence—Previous Hostility and Violence—Remoteness in Time.—Testimony in a homicide case that the defendant has at different times within a year or two before the death of the decedent quarreled with and expressed hostility toward the deceased is admissible as tending in some degree to show -malice and motive with reference to the offense charged. The objection as to the remoteness of .the occurrences goes to the weight rather than to the admissibility of the evidence. Id.—Threats Against and Assaults upon Deceased—Evidence— Instructions.—An instruction that “evidence has been introduced as to altercations with, threats against and assaults upon the deceased by the defendant. This evidence has been admitted for the sole purpose of showing the relations existing between the deceased and the defendant, and for the purpose of showing motive, if any; -and may be considered by you as a circumstance in connection with the other faets and circumstances in the ease in determining whether or not the defendant is guilty of the crime charged,”—is not objectionable, (although it might have been phrased more carefully), as telling the jury that those altercations, assaults, and threats actually occurred. Id.—Circumstantial Evidence—Sufficiency to Sustain Conviction —Argumentative Instructions.—An instruction in a homicide case, where the evidence is purely circumstantial, that “counsel for defendant has referred to a number of eases wherein convictions have been sought and had upon strong circumstances- of guilt ■proved against the accused in these eases, and afterward it has transpired that the accused was innocent, notwithstanding the strong circumstances shown against him. These cases are extreme cases, and probably do not occur but seldom in cases decided upon circumstantial evidence. Reference to such cases is proper in order to make the jury careful in arriving at the proper conclusion from such evidence; but the plain, piactical rules of evidence which have been established for ages ought not to be shaken because of the reference to extreme cases by counsel wherein improper convictions have been had—and if much search be made, it would be found that probably a greater number of cases might be cited wherein improper convictions have been had from direct and positive evidence .through inattention or perjury of witnesses. All human testimony is fallible. But jurors in their decision must ■take and consider circumstances and if sufficient act upon them, although the main fact is proved by no eye-witness,” is argumentative and should not be given. Id.—Proof of Motive—Instruction Similar to One Requested by Defendant.—Where the defendant in a homicide case has requested an instruction that “it is not indispensable to a conviction of the defendant that a motive be shown for his commission of the crime,” he cannot complain of an instruction given by the court that “in criminal cases the proof of the moving cause is permissible and oftentimes valuable, but is never essential.” The defendant cannot complain of instructions which are in substance the same as •those requested by him. Id.—Evidence of Good Character of Defendant—Refusal of Instructions Concerning.—Where the defendaut in a homicide case has introduced in evidence the testimony of several witnesses who have been acquainted with him for many years, showing his good reputation “for peace and quietude and truth and veracity” in the communities where he has lived, and has requested the court to give the jury certain instructions pertinent to this evidence, the refusal of the court to give such instructions must, under the circumstances of this case, be regarded as prejudicial error resulting in a miscarriage of justice and calling for a reversal of the judgment of conviction. Id.—Effect of Proof of Good Character—Necessity of Jury Giving It Consideration.—Proof of good character comes in aid of the general presumption of innocence, and is no more to be laid out of view by the jury in their deliberations than is the original presumption itself; it is itself a fact in .the case. Id.—Appeal—“Miscarriage of Justice”—Meaning of Phrase.— The phrase “miscarriage of justice,” within the meaning of section 4% of article VI of -the constitution, does not simply mean •that a guilty man has escaped, or that an innocent man has been convicted. It is equally applicable to eases where the acquittal or the conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied. The right of the accused in a given case to a fair trial, conducted substantially according to law, is at the same time the right of all inhabitants of the country to protection against procedure which might at some time illegally deprive them of life or liberty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respeotgd.
23 Cal. App. 526Neuhart v. George K. Porter Co. (1913)
Corporation—Authority of Manager—Employment of Broker.—A general manager of a corporation las express authority to do those tilings only which are ordinarily customary and usual in the transaction of its business. He may have also ostensible authority to do other things which the corporation by a course of conduct may hold him out as being possessed of j but that condition is not shown in this case where a broker, in his suit against a corporation for a commission alleged to have been earned in procuring a purchaser of its stock and bonds, contends that the manager employed him for that purpose. Id.—Broker—Procurement of Offer—Acceptance by Principal.— In this action by a broker against a corporation for a commission alleged to have been earned in procuring a purchaser for its stock and bonds, it is held that, conceding the manager of the corporation had authority to bind it in the matter of the sale of the stock and bonds, it did not, through such officer, accept the proposal made to it through the broker, tho broker admitting that he was not employed to obtain a purchaser at a price fixed but at such a price as would be satisfactory to his employer, and it mot appearing that the broker ever obtained a binding contract from Ms proposed purchaser. Ed.—Sale of Bonds—Affidavit as Showing Acceptance.—A mere recital in an affidavit, filed by the president of a corporation in an action to enjoin the sale of the stock and bonds in question, that an offer of two hundred thousand dollars had been obtained for them wMch it was desirable to accept, does not bind the corporation as an acceptance of the offer of the broker’s client.
23 Cal. App. 532Bernard v. Weaber (1913)
Appeal—Moot Question—-Improvement Bonds—Refusal to Enjoin Issuance.—An appeal from am order dissolving an injunction against the issuance of improvement bonds on the ground of their invalidity will be dismissed, where pending the appeal the bonds are issued, since -a decision would have no binding authority and would not affect -the legal rights of the parties. Id.—Presumption of Issuance of Bonds—'Pendency of Appeal.—In such case where the complaint alleges that the city treasurer will, unless restrained, immediately issue the bonds, the appellate eou-rt will accept this allegation as true and assume that he has performed the duty imposed upon Mm by law, and that therefore the bonds were issued upon the dissolution of the injunction and during the .pendency of the appeal. Id.—Decision on Merits—Judgment for Costs.—In such case the appellants cannot insist upon a decision upon the merits by reason of the fact that a judgment for costs was rendered against them, where it appears from the record that no judgment for costs in any sum was rendered, it bring recited therein that defendant recover costs of suit amounting to the sum of .... dollars.
23 Cal. App. 537Connell v. Harris (1913)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Edgar T. Zook, Judge presiding. The facts are stated in the opinion of the court.
23 Cal. App. 543Lawyer v. Los Angeles Pacific Co. (1913)
APPEAL from a judgment of the Superior Court of Los . Angeles County and from an order refusing a new trial. Gavin W. Craig, Judge. The facts are stated in the opinion of the court. J. W. McKinley, R. C. Gortner, Frank Karr, Gurney E. Newlin, and W. R. Millar, for Appellant.
23 Cal. App. 549Roseberry v. Clark (1913)
Water-rights—Springs and Stream—Parol Grant—Adverse User. In this action to restrain the defendant from interfering with the plaintiff’s use of water from a stream formed by springs situated on the defendant’s land, the evidence shows a parol grant to thq plaintiff to appropriate the water, followed by all the elements of adverse use under claim of right for more than the statutory period. Id.—Prescriptive Bight to Water—Injunction to Protect.—If the plaintiff in such case, with the knowledge and acquiescence of the defendant who owns the land on which the springs are situated and who had the prior right to the water, constructed a dam and appropriated the water of the stream notoriously and continuously, under claim of right, for more than ten years, he thereby acquired a prescriptive right to the continued use of the water, entitling him to an injunction against interference by the defendant. Id.—Extent oe Bight to Use Water—Compromise Agreement— Evidence to Sustain.—The defendant not only failed to maintain his proposition that the plaintiff’s use of the waters of all the springs was a mere permissive use and never developed into a use adverse to the interests of the defendant, but he also failed to maintain Ms .proposition that, by the terms of an agreement upon wMch a compromise was had in a prior suit involving the same waters, the plaintiff was entitled only to the use of the waters of two springs, and nothing more.
23 Cal. App. 560Carpenter v. Bradford (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 566Diamond v. Fay (1913)
Broker—Contract to Procure Lessee—Parol Evidence to Vary— Commissions.—In an action by a real estate broker to recover commissions on a contract employing him to procure a purchaser or lessee for certain property, testimony tending to show the agreement to have been that the plaintiff’s right to commissions was to accrue only in case a lease of the property was made by the defendant and then that such commissions were to be paid out of the first money received from the lessee, is improperly received as being an attempt to vary the terms of the written contract, where the phraseology of the contract contains no suggestion of any such conditions, and there is no room for the claim that the language therein used is ambiguous or indefinite in any of the particulars referred to, and the defendant makes no claim of excusable mistake. Id.—Financial Ability of Proposed Lessee—Refusal of Lessor to Execute Lease.'—But error in the admission of such testimony is nonprejudicial, if it is found upon the entire evidence adduced that the tenant proposed by the broker did not produce satisfactory evidence of his financial ability to respond to the obligations of the proposed lease, and for that reason the owner refused to accept him as a lessee. Id.—Contract to Procure Lessee—When Fulfilled.—The engagement of a real estate broker who proposes to secure a tenant for an owner of real property is, that he will present a satisfactory person who is ready, able, and willing to enter into such a lease as is proposed to be made by the owner.
23 Cal. App. 571Stadler v. Pacific Electric Railway Co. (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 578Mesmer v. Board of Public Service Commissioners (1913)
Municipal Corporation—Amendment of Charter—Board of Public Service Commissioners ■—Constitutional Law.—The amendments to the freeholders’ charter of the city of Los Angeles, creating a board of public service commissioners and giving it control of the revenues derived from the sale of water, are not violative of section 13 of article XI of the constitution, which prohibits the legislature from delegating municipal' functions to special commissions. Id.—Freeholders’ Charter—Approval by Legislature—Power to Change.—The legislature has no power to mould or change a freeholders’ charter of a city when such instrument is before it for approval. Id.—Approval of Freeholders’ Charter by Legislature—Whether an Exercise of Law-making Power.—The legislature does not, when it approves by resolution a freeholders’ charter for a city, exercise law-making power in the sense intended to be expressed in the prohibitory clause of the constitution, that “the legislature shall not delegate to any special commission, private corporation, company, association, or individual, any power to make, control, appropriate, supervise, or in any way interfere with, any county, city, town, or municipal improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or assessments, or perform any municipal functions whatever.” Id.—Municipal Charters—Whether Superior to General State Laws.—Municipalities are now given the power to draft charters whose provisions, in so far as they refer to municipal affairs, are superior to the general state laws. The legislature cannot enact any law which will repeal or change such charter provisions. Id.—Public Service Commissioners—Powers—Purchase of Ground and Erection of Building.-—The board of public service commissioners of the city of Los Angeles has .power, under the freeholders’ charter, to purchase ground and erect thereon an administrative building for its uses, the cost thereof to be paid from the -revenue of the water -department. Id.—City Indebtedness—Constitutional Limit.—Section 18 of article XI of the constitution, which forbids a city from incurring any indebtedness exceeding in any one year .the income and revenue provided in such year, without the favorable vote of two-thirds of the electors, is not applicable to the board of public service commissioners in carrying on such an undertaking.
23 Cal. App. 584Ferrochem Co. of Pennsylvania v. Danziger (1913)
Corporation—Subscription Agreement for Stock in Proposed Company—Action to Recover Unpaid Balance Thereon.—Where; one enters into a subscription agreement with respect to a proposed corporation, agreeing to pay his subscription on demand of the board of directors, and accepts the .stock and pays part of the subscription price, having knowledge that the corporation is not formed by the same persons who signed the subscription agreement, and admitting that the corporation thus formed is the one contemplated by the agreement, the corporation may recover from him the unpaid balance due on his stock, without pleading the subscription agreement as the basis for the action. Id.—Irregularity in Issuance of Stock Certificate—Whether Defense to Action on Subscription.—The defendant in such action is not excused from paying for his share's of stock, as required by the contract, because the certificate issued to him does not comply with the requirements of section 323 of the Civil Code.
23 Cal. App. 587Dannenbrink v. Burger (1913)
Waters and Watercourses—Water Seeping prom Ditch op Appbopriator—Subsequent Appropriation by Others.—A prior appropriator of water may not so repair or reconstruct Ms ditch, flumes, and dam -as to prevent water seeping through them from discharging into the original stream from which the water was taken, after such discharge has continued uninterruptedly for a length of time sufficient to establish a prescriptive title thereto in -one who. has actually appropriated and continuously used such seepage water, after its return to the original stream, during all of such period. Id.—Amount of Water Appropriated—How Determinable.—It is neither the capacity of the ditch, nor the amount originally appropriated, which determines the rights of an appropriator of the waters of a stream, but the amount which he puts to some beneficial use. Id.—Water Escaping prom Artificial Watercourse—Bights of Appropriator Thereof.—Where water escaping or leaking from an artificial watercourse goes to waste by flowing promiscuously over other lands, or finds its way to some other stream than .the one from which it has been diverted, a person appropriating such water merely takes the corpus and not the usufruct therein, thereby leaving the owner of such ditch or artificial watercourse at liberty at any time to change or alter it without invading any vested right of the appropriator. But this rule does not apply where the escaped water has returned to the stream from which it was originally diverted, and has thereafter been appropriated by others than the original appropriator.
23 Cal. App. 598Ventre v. Tiscornia (1913)
Partition—Improvements in Leveling and Bulkheading Land— Bindings Contrary to Evidence.—In this action for partition of a tract of land wherein the defendant, by way of cross-complaint, sought judgment against the plaintiff for money expended in improving and preserving the common property by leveling and bulk-heading it, the findings fixing the cost of such improvements and refusing to allow the defendant anything therefor, are contrary ■to the evidence, which is not conflicting either as to the necessity for the improvements or their cost. Id.—Improvements Without Consent op Cotenant—Liability to Contribution.—If in such ease the improvements were necessary and the plaintiff shared in the benefits thereof, he is chargeable with his proportion of their cost, though they were made without his consent, express or implied. Id.—Equitable Considerations in Action for Partition—Allowance for Improvements.—A cotenant, seeking partition of the common property at the hands of a court of equity, will be granted relief only upon the condition that the equitable rights of his eoowner will be respected and protected. Therefore where one' tenant in common has, in good faith, with or without the consent of his cotenant, expended money in making permanent improvements which were necessary to the preservation of the common property, partition should not be decreed without first counting the cost of such improvements and making a suitable allowance for them. Id.—Necessity of Improvements—Sharing in Benefits—Election by Cotenant.—If, as appears to be true, the evidence in the present case shows without conflict that the improvements to the common property were necessary to its preservation and enhanced its rental value, then the plaintiff should have been put to his election either to contribute equally to the undisputed cost of the improvements, or else relinquish all claim to a share of the increased rentals resulting therefrom. Id.—Relation of Landlord and Tenant—Tenant at Will.—The finding of the lower court in this ease, relating to the necessity and cost of the improvements in question, cannot be justified upon the theory that the improvements were made by the defendant in the character of an ordinary tenant at will of the plaintiff. The case was not tried, either in whole or in part, upon the theory that the relation of landlord and tenant existed between the parties to the partition; but was heard and determined solely upon the issue of the relative rights of the parties as tenants in common.
23 Cal. App. 608Aigeltinger Co. v. Healy-Tibbitts Construction Co. (1913)
The facts are stated in the opinion of the court.
23 Cal. App. 611California Reclamation Co. v. New Zealand Insurance (1913)
Marine Insurance—Dredge in Tow of Tug—Oral Evidence That Insurance Covers Barges.—A policy of marine insurance which undertakes specifically to insure the dredge “San Francisco” in tow of the tug “Sea Rover,” from San Francisco to San Pedro, and which by its terms is silent as to any barge to accompany the dredge, may be shown by oral evidence to cover the towing of two barges attached to the dredge. Id.—Concealment by Insured—Remedies of Insurer.—If the fact that the two barges made a part of the tow was concealed from the insurer, he may rely upon such concealment in avoidance of the policy in an action thereon by the insured. Rescission is not the exclusive remedy of one who has become entitled to avoid a contract by reason of acts or omissions of ,the other party to it which are fraudulent in their nature; he may cancel the contract by its rescission, or he may seek affirmative relief in a court of equity for any injury sustained by the wrongful act or omission of the other, or he may set up the fraud by way of defense to an action brought to enforce the apparent liability. Id.—Matters Material to Risk—Length of Tow—'Concealment by Insured.—The fact that barges, increasing the length of the tow two or three times, are to be attached .to a dredge to be towed by a tug upon the ocean in the winter time, is a material matter increasing the risk of the voyage, and a concealment thereof by the insurer is sufficient to avoid a policy of marine insurance. Id.—Failure to Read Policy—Right to Assume That It Conforms to Application.—One who procures marine insurance has a right ■to rely on the presumption that .the policy he receives is in accordance with the facts disclosed in his application, and his failure to read the policy will not relieve the insurer, whose duty it is to make the policy conform to the facts received from the insured. Id.—Concealment of Facts by Broker—Effect on Liability of Insurer.-—-Where the owner of a barge engages a firm of insurance brokers to obtain insurance on it during an ocean voyage, disclosing to them the facts material to the risk, and they 'apply for policies to a firm of general agents dealing in marine insurance, giving them the information they have received from their principal relative to -the risk, but the latter agents, being unwilling to place the entire risk with their company, place part of it with an agent for another company, in accordance with a custom among local insurance agents, a policy issued by the latter company is not avoided because such latter agents did not communicate to it material facts which had been given to them.
23 Cal. App. 619Williams v. Wheeler (1913)
APPEAL from a judgment of the Superior Court of Alameda County refusing a Writ of Mandate. William H. Waste, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 627Durbrow v. Chesley (1913)
The facte are stated in the opinion of the court.
23 Cal. App. 630Wilson v. Chesley (1913)
Appeal—Transfer by Both Parties to Third Persons of Property in Litigation—Dismissal of Appeal.—Where an appeal is taken from an order vacating a default judgment in an action of ejectment, and thereafter both of the parties transfer their respective interests in the property to a third person, the appeal will be dismissed. Id.—Costs—Detention of Appeal to Determine.—The court will not retain the appeal and decide alleged errors merely for the purpose of determining who is to pay, and who is entitled to receive, the costs on appeal, which are alone in issue. But as it appears from the record that the trial court abused its discretion in making the order from which the appeal is taken, the costs on appeal should be shared equally between the paries and not all placed on the appellant.
23 Cal. App. 634Walker v. City of Los Angeles (1914)
The facts are stated in the opinion of the court. John W. Shenk, City Attorney, Charles D. Pillsbury, Charles D. Houghton, Deputy City Attorneys, and W. A. Martin, for Appellants.
23 Cal. App. 637Matter of Application of Burner (1914)
23 Cal. App. 637In re Burner (1914)
Juvenile Court—Commitment of Dependent Minor—Absence of Jurisdiction—Habeas Corpus.—Where a petition, praying that a minor be taken into custody as a dependent child, fails to state •any of the facts required by statute to constitute the child a dependent, an order of the juvenile court eomitting him to the custody of the probation officer is without jurisdiction and the child will be released on habeas corpus.,
23 Cal. App. 638Waratah Oil Co. v. Reward Oil Co. (1914)
Specific Performance—Contract to Purchase Oil Land—Possibil ity of Sale not a Defense.—The vendor of oil land will not be denied specific performance of the contract of purchase merely because the property may be sold on the market for the contract price. Id.—Value of Land—Market Value as Test.—The proper test of the value of the land in such action Is its market value. Reformation of Contract—Mutual Mistake in Omitting Date.— Where the court in an action wherein one of the counts in the complaint is to have a contract for the purchase and sale of oil land reformed so as to insert the date thereof, finds' that the failure to insert the date in the eon tract was- a mutual mistake of the parties, the result of inadvertence and “unconscious forgetfulness,” the court is not only warranted but compelled to decree reformation. Corporation—Sale of Entire Assets—Ratification of Transaction.—A contract to sell all the assets of a corporation cannot be repudiated on the ground that the delegation of authority to the president 'and secretary of the company to make the sale was void, if thereafter both parties assume and 'act upon the contract as though its validity were without question, and the directors pass a resolution expressly ratifying the rule and tender a deed of the property to the purchaser. Id.—Ratification of Contract—Consent or Repudiation.—Such contract may be ratified by the corporation without the consent of the purchaser, and before he repudiates it. Ib.—Special Directors’ Meeting—Notice—Specifying Object of Meeting.—A notice of a special meeting of directors need not specify the object of the meeting.
23 Cal. App. 644Doran, Brouse & Price v. Bunker Hill Oil Mining Co. (1914)
Escrow—What Constitutes—Delivery of Deeds to Bank to Await Decision of Court.—Where two parties deliver three deeds to a hank, the plaintiff delivering two and the defendant one of them, under an agreement that the plaintiff, thirty days after notice of the affirmance of a certain decision hy the supreme court and upon delivery to Mm of the third deed with certificate of title, will pay one thousand dollars to the bank on .the defendant’s account, and that the bank will then deliver his two deeds to the defendant, and that in ease of default hy the plaintiff the bank will, on demand, deliver the three, deeds to the defendant, but that iu case the supreme court reverses the decision in question the hank will return the deeds to the respective parties, the transaction constitutes a delivery to .the bank in escrow. Id.—Unauthorized Withdrawal of Deeds—Delivery upon False Representations.—In such case the defendant has no right to withdraw any of the deeds before the expiration of the time fixed for the happening of the event, or the performance of the condition upon which they are to be delivered; and if by means of false representations he obtains possession of the plaintiff’s deeds and withdraws them from the depositary, there is no valid delivery to him and he will be deemed to hold them and the property in trust for the plaintiff. Id.—Trust—Action to Enforce—Sufficiency of Complaint.—The complaint, in an action involving such transaction, which alleges such agreement and escrow, as well as the defendant’s acts in wrongfully obtaining possession of the deeds, and prays that it he declared that the deeds and property are held by the defendant in trust for the plaintiff, as shown hy the escrow agreement, is good as against general demurrer. Id.—Interpretation of Escrow Agreement—Delivery of Deeds— Title of Defendant.—It appears from the language of such escrow agreement that it was the intention of the parties that, while the defendant could not enforce specific performance of the contract by compelling the plaintiff to pay the ten thousand dollars without a title based upon a patent, he could, upon the decision referred to in his favor being affirmed by the supreme court, without showing ■title in fee vested in him, insist that the plaintiff should accept the deed as conveying such title as the defendant possessed and pay therefor the sum of ten thousand dollars, or, in the event of his failure so to do, insist upon his right to have the deeds held ■by the bank delivered to him.
23 Cal. App. 652Ingalls v. Monte Cristo Oil & Development Co. (1914)
APPEAL from an order of the Superior Court of Kern County granting a motion for a, new trial. W. M. Conley, Judge presiding. The facts are stated in the opinion of the court.
23 Cal. App. 663Funkenstein v. Superior Court (1914)
APPLICATION for Writ of Prohibition to be directed to the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.
23 Cal. App. 668City of Hanford v. Williams (1914)
Municipal Corporation—Mandamus to Compel Countersigning Bonds —Validity op Election—Nonpfejudicial Error in Counting Ballots.—Where, on appeal by a city clerk from a judgment granting a peremptory writ of mandate commanding him to countersign certain municipal bonds, it appears that, conceding all the appellant claims as to the erroneous rulings of the court in counting the ballots voted for the issuai.ee of the bonds, the election was carried by more than a two-third s vote of the legal ballots east, such erroneous rulings could not have affected the result and hence ' are not prejudicial to the appellant or ground for reversal of the judgment.
23 Cal. App. 670Starr v. Superior Court (1914)
PETITION for Writ of Prohibition to be directed to the Superior Court of Los Angeles County. The facts are stated in the opinion of the court.
23 Cal. App. 672Pacific States Corporation v. Arnold (1914)
Landlord and Tenant—Action for Us;e and Occupation—Necessity of Existence of Contractual Relation.—In an action for use and occupation of real property, the plaintiff is not entitled to recover unless lie shows that the conventional relation of landlord and tenant exists. Id.—Relation of Landlord and Tenant—Whether Implied from Findings.—The existence of the relation, of landlord and tenant is not to "be implied from a finding in such action “.that no written or verbal lease was executed by plaintiff to defendant of said premises, but that notice was given by plaintiff to defendant that defendant would be liable for the rental of said premises if he continued to use and occupy the same after May 1, 1911.” Id,—Notice of Liability for Rent—Whether Shows Relation of Landlord and Tenant.—The fact that the plaintiff gave notice that the defendant would be liable for rent, in the absence of any showing of assent on the part of the defendant, is insufficient to show the existence of any contractual relations between the parties, without which the plaintiff could, not prevail in an action to recover rent. Ib.—Appeal—Intendments in Support op Judgment and Findings.— Not only are all intendments on appeal in favor of the regularity of the action of the trial court, but the findings of fact made by the trial court are to receive such a construction as will uphold rather than defeat its judgment thereon.
23 Cal. App. 675San Pedro, Los Angeles & Salt Lake Railroad v. Pillsbury (1914)
The facts are stated in the opinion of the court.
23 Cal. App. 681McIntyre v. City of Los Angeles (1914)
Municipal Corporation—Contract for Street Improvement—Release of Contractor by Execution of Second Contract—Remedy of Property Owner.—Where the board of public works, having entered into a valid contract for street improvement, makes another contract releasing the contractor from doing certain work required by the original contract, the remedy of a property owner is by appeal to the city council, which has power to set aside the assessment and order the work completed in accordance with the specifications; and if this remedy is not resorted to, an action to cancel the bond issued against his property for the improvement and to annul the lien thereof is not maintainable.
23 Cal. App. 683Lapique v. Denis (1914)
The facts are stated in the opinion of the court.
23 Cal. App. 687Robinson v. Bledsoe (1914)
APPEAL from a judgment of the Superior Court of San Bernardino County and from an order refusing a new trial. Frank F. Oster, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 694McEwen v. New York Life Insurance (1914)
Life Insurance—Representations n; Application—Statements as to Prior Ailments and Accidents—Whether Substantially True.—Where an applicant for life insurance, in reply to the question, “What illnesses, diseases, or accidents have you had since childhood?” answers “typhoid pneumonia,” whereas he was once struck by a mule as a result of which one rib was fractured, causing the spitting of purulent matter and totally disabling him for a period of nearly four months, followed by partial disability for a longer .period, such answer is not “substantially true,” and it was error for the .court in instructing the jury on this point to use the expression “substantially true,” without defining it, where it appears that the jury misunderstood the term in that they found the applicant’s representation substantially true. Id.—Representations by Insured—"Substantially True”—Meaning of Words.—“Substantially true” does not mean somewhat true, partially true, on the one hand; nor does it mean true in every possible and immaterial respect, or the other. It ¡means true, without qualification, in all respects material to the risk. Id..—Submitting Speci'al Interrogatories to Jury—Form of Questions.—Questions propounded to the jury as to such representations, upon which they were requested to render special verdicts, in an action on the policy, should have been whether or not the answers so given were true; or, if Van term “substantially true” were employed, the court should have instructed the jury as to the meaning of those words. Id.—Materiality op Representations—Whether Question for Jury or por Court.—In such action it was error for the court to submit to the jury the question whether the representations so made were material, and in effect that, notwithstanding the fact that they might find the answers and representations to be untrue, they should, nevertheless, render a verdict in favor of the plaintiff, unless they found that such representations were material. Where the materiality of the representations depends upon inferences drawn from facts and circumstances proved, the question is one for a jury. A different rule, however, applies where the representations are in the form of written answers made to written questions. In such case the parties, by putting and answering the questions, have indicated that they deemed the matter to be material. Id.—Misrepresentations by Insured—Admissibility of Evidence to Show.—Declarations made by an insured person, inconsistent with statements which he made in his application as to prior ailments and accidents, are admissible against his beneficiary in an action by the latter on the policy, where the policy expressly reserved the right in the insured to change his beneficiary. Id.—Vested Interest op Beneficiary—When Does not Exist.— Where a policy of life insurance reserves to the insured the right to change his beneficiary, the beneficiary has no vested interest during the lifetime of the insured. Id.—Special Findings—Inconsistency With General Verdict.— Where special findings are not only inconsistent with themselves, but irreconcilable with the general verdict, this is ground for reversal.
23 Cal. App. 701Jensen v. Dorr (1914)
The facts are stated- in the opinion of the court.
23 Cal. App. 705Betts Spring Co. v. Jardine MacHinery Co. (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Clarence A. Raker, Judge presiding. The facts are stated in the opinion of the court.
23 Cal. App. 708People v. Balestieri (1914)
ABBEAL from a judgment of Vie Superior Court of Marin County and from an order refusing a new trial. E. T. Zook, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 713People v. Rial (1914)
APPEAL from a judgment cl: the Superior Court of Los Angeles County and from an order refusing a new trial. Frank G. Finlayson, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 721People v. Prather (1914)
Criminal Law—Forgery—Evidence op Conduct and Transactions Leading Up to Crime.—Where it appears on a prosecution for forging travelers’ checks that the defendant and his associate had acted in concert throughout a general scheme to relieve the complaining witness of whatever of value he possessed, including the checks, and to turn the latter into money by whatever criminal means might be required, the prosecuting witness may testify of a conversation which he had with the defendant’s associate before the defendant appeared on the scene, and also of conversations and conduct after the defendant joined his associate and the complaining witness, before the Requisition and forgery of the checks, as to the laying of illegal bets on a horse race, in the course of which ithe complaining witness lost -all his ready money. Id.—Indorsement of Traveler’s Check—Indictment for Forgery— Variance.—Where an information charges the forgery of “a certain indorsement” of a traveler’s cheek, and the evidence shows that the forged signature was written, not on the back of the check, but on the face thereof at the place indicated as essential to its transfer, there is no variance between the information and the proof. Id.—Negotiable Instrument—Indorsement on Face.—The writing of the name of the payee of a traveler’s check on its face, at the place indicated thereon as essential to its transfer, constitutes an indorsement thereof within the intendment of section 3108 of the Civil Code.
23 Cal. App. 727Russell v. Chisholm (1914)
The facts are stated in the opinion of the court.
23 Cal. App. 729People v. Principe (1914)
The facts are stated in the opinion of the court.
23 Cal. App. 731People v. Hales (1914)
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. Dunne, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 736Brown v. Martin (1914)
APPEAL from an order of the Superior Court of Fresno County refusing to set aside a default. Geo. E. Church, Judge. The facts are stated in the opinion of the court.
23 Cal. App. 742People v. Sanchez (1914)
Criminal Law—Examination of Witness—Overruling Objection to Question—Harmless Error.—Error, if any, in overruling an objection to a question propounded by the district attorney to the prosecuting witness in a rape caso, is not prejudicial, if the fact testified to by the witness in response to the question has already been proved by necessary inference from answers previously given, and is established without conflict as a fact in the case. Id.—Defect in Information—Review on Appeal from Order Refusing New Trial.—A defect in an information cannot be considered on an appeal from an order refusing a motion for a new trial.
23 Cal. App. 744Ryan v. Crist (1914)
The facts are stated in the opinion of the court.
23 Cal. App. 745People v. Dean (1914)
The facts are stated in the opinion of the court.
23 Cal. App. 750Keefe v. Superior Court (1914)
PETITION for Writ of Mandate to be directed against the Superior Court of the State of California, in and for the County of Los Angeles, and Charles Wellborn, one of the Judges thereof. The facts are stated in the opinion of the court.
23 Cal. App. 754Costa v. Raza (1914)
The facts are stated in the opinion of the court.
23 Cal. App. 755Pratt v. Phelps (1914)
Promissory Note—Actíon to Recover Balance—Conflicting Evidence—Review on Appeal.—Where the evidence, in an action to recover an alleged unpaid balance on a promissory note, is conflicting, the plaintiff’s evidence showing that she was in possession of the note and the defendants’ testimony showing that they had paid the balance by an assignment of mining stock to the payee, a decision by the trial court in favor of the defendants will not be disturbed on appeal. Id.—Evidence—Letter—Carbon Copy-—Foundation for Admission.— In such case a ruling by the trial court, based upon one of two possible constructions of the evidence, that a letter written by the payee of the note was in reply to a letter written by one of the defendants, and therefore that an alleged carbon copy of the defendant’s letter was admissible in evidence, will not be disturbed on appeal. Id.—Secondary Evidence—Contents of Lost Letter.—If a letter, claimed to have been written by one of the defendants to the payee of such note, is shown to have been lost, it is proper to admit evidence of its contents. Id.-—Weight of Evidence—Consideration on Appeal.—Primarily the weight of the evidence in every case is a matter for the consideration of the trial court, and ordinarily cannot be considered upon appeal
23 Cal. App. 758Whitaker v. Moran (1914)
APPEAL from an order of the Superior Court of the City and County of San Francisco taxing costs. W. M. Conley, Judge presiding. The facts are stated in the opinion of 'the court.
23 Cal. App. 763Henne v. Summers (1914)
Landlord and Tenant—Change op Original Contract—Assignment or Subletting—Release op Surety op Tenant.—Where lessees form a corporation, and the corporation occupies the leased premises and pays rent without obtaining an assignment of the lease, and, financial difficulties overtaking the corporation, the premises are occupied successively by the sheriff, a trustee in bankruptcy, and a purchaser at the trustee’s sale, each paying rent on account of the lease, the sureties of the lessee are not thereby released from liability on the theory that the lessor has allowed an assignment or subletting without their consent. Id.—Written Lease—How may be Altered.—The lease, being a written contract, could be altered only by a contract in writing or an executed oral agreement. Id.—Rent—Acceptance prom Person in Possession—Release op Lessee and Sureties.—The mere acceptance by the landlord of rent from the various persons in possession did not release the lessees from the covenants contained in the lease nor discharge their sureties. Id.—Fees op Attorney—Recovery in Action Against Sureties.—Attorney’s fees incurred by the lessor on account of the lessees’ nonpayment of rent and the various changes in occupancy, may be recovered by the landlord, in his action against the sureties of the lessees, without proving that such fees have actually been paid.
23 Cal. App. 766Fey v. Rossi Improvement Company (1914)
Landlord and Tenant—Lease of Preiv ¡fíes on Which to Manufacture Nickel and Slot Machines—Lawfulness of Enterprise— Cancellation of Lease.—A complaint, in an action by a lessee for the cancellation of the lease, which alleges that the premises were leased for the purpose of conducting therein the business of manufacturing “coin operating machines, i ommonly known as nickel-in-the-slot machines,” and that by an set of the legislature in the year 1911, the business of manufacturing or having in possession any nickel-in-the-slot machine became unlawful, fails to state a cause of action upon the theory tha; the subsequently enacted law rendered the terms of the lease impossible of performance. Id.—Nickel-in-Slot Machines—Conste iction of Section 330a of Penal Code.—Section 330a of the Penal Code, enacted in 1911, does not prohibit or penalize the ma in facture of nickel-in-the-slot machines, but has reference only to such machines when they are intended for gambling purposes, “upon the result of action of which money or other valuable thing is staked or hazarded.” Id.—Words and Phrases — Meaning of Nickel-in-the-Slot Machines.—The phrase “nickel-in-the-slot machine” ordinarily has reference only to that “numerous elim; of cateh-penny contrivances” which, when a nickel or other small coin is dropped into the slot, will return something of value witho ut any element of chance other than that usually present in ordina. / transactions of barter and trade. Id.—Pleading — Demurrer — Admission of Allegations of Complaint.—The general rule of pleading, which admits as true upon demurrer all matters of fact averred i a a complaint, has no application to facts of which a court mat take judicial notice; and a demurrer never admits the conclusion of law to be deduced from those facts.
23 Cal. App. 770People v. Hunt (1914)
Cbiminai, Law—Fokoeiíy op Check—Kiiphcienoy op Evidence to Sustain Conviction.—In this proseen, ion for the forgery of a cheek, it cannot be said that there is n> evidence of knowledge on the part of the defendant of the spurious character of the cheek. The identity of denomination of the Money found on his person with that by which the cheek was pail on the previous day is highly significant, and goes far to corrobórate the testimony of the paying teller that the defendant is the nun to whom he paid the money. And the defendant’s denial of having money on his person, except a few cents, is also not without siguí iicanee.
23 Cal. App. 773Sayre v. San Pedro, Los Angeles & Salt Lake Railroad (1914)
Action for Negligence—Allegation of Contributory Negligence— Findings That Allegations are True—Judgment for Defendant.—Where, in an action against a railroad company for damages on account of a collision of a freight car with the plaintiff’s automobile, the defendant alleges that the injuries sustained by the plaintiff were due to his own negligence, and it is found “that all of the affirmative allegations of the defendant’s answer are true,” and “that paragraphs 1, 2, 3, 4 and 5” (presumably of the complaint) are true, the defendant is entitled to judgment on the findings.
23 Cal. App. 774Strait v. Wilkins (1914)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Eugene P. McDaniel, Judge presiding. The facts are stated in the opinion of the court.
23 Cal. App. 778Golden & Co. v. Justice's Court (1914)
APPLICATION for Writ of Prohibition to be directed against the Justice’s Court of Woodland Township, County of Yolo, and J. E. Strong, Justice of said court. The facts are stated in the opinion of the court.
23 Cal. App. 802Golden & Co. v. Justice's Court (1914)
APPLICATION for Writ of Prohibition to be directed against the Justice’s Court of Guir da Township, Yolo County, and J. H.. Norton, Justice of said Court. The facts are stated in the opinion of the court.