Volume 26 — California Appellate Reports

<p>Summons—Substituted Service—Strict Compliance With Statute Necessary—Jurisdiction.—The rule is well settled that substituted service of summons, being purely of statutory origin and in derogation of the common law, can be made effectual only by a substantially strict observance of the terms of the statute authorizing it. If, therefore, there has not been such a compliance with the statute, the service is void and the court fails to acquire jurisdiction of the person of the defendant and is for that reason without jurisdiction to render and enter judgment against him in the action in which such summons has been issued.</p> <p>Id.—Construction of Section 412, Code Civil Procedure—-Essential Prerequisites to Jurisdiction—'Showing of Cause of Action by Affidavit or Verified Complaint.—Section 412 of the Code of Civil Procedure is the source, of authority in this state for substituted service of summons or service thereof by publication; and one of the essential prerequisites to conferring upon the court authority or jurisdiction to make an order for the publication of summons is a showing, either by a verified complaint that ha's been filed; or by an affidavit, that a cause of action exists against the ■defendant in respect to whom the service is to be made, and in the absence of such a showing by either of the modes prescribed by said section an order for publication is without jurisdiction and is nugatory and void, and a judgment rendered on a publication of summons made in .pursuance thereof is comm non judice and void ab initio.</p> <p>Id.—Action for Divorce—Charge of Adultery—Unverified Complaint—Insufficient Affidavit for Publication of Summons.— In an action for divorce, although the complaint confessedly states a cause of action upon the ground of adultery, where it is unverified, the court is unauthorized to make an order for the publication of summons upon it; and an affidavit for publication of summons in such a case is insufficient in failing to show that plaintiff has a good cause of action where, after alleging that the suit had been instituted, that defendant had, previously to the filing of the complaint, departed from the state of California and that her whereabouts were then unknown and could not after due diligence be ascertained, the affidavit proceeds: “I have fully and fairly stated the facts of this ease to B. B. Tappan, whose office is at the northeast corner of Santa Clara Avenue in the city of Alameda in said county and state, who is my counsel, and I am by him informed and I verily believe that I have a good cause of action in this suit against the said defendant, as will fully appear by my complaint now on file herein, to which reference is hereby made and the said defendant, Isabel P. Lima is a necessary and proper party defendant thereto, as I am advised by my said counsel, after such statement made as aforesaid and as I verily believe.”</p> <p>Id.—Insufficiency of Affidavit—Ineffectual Befefence to Complaint—Conclusion of Affiant.—Such .affidavit does not either make the complaint a part of it, nor does the affiant either expressly or upon information and belief declare that the facts alleged in the complaint are true. The statement that plaintiff is advised ■by his counsel and that he “verily believes” he has a good cause of action is only a conclusion of the affiant or his attorney upon whose advice in that regard he relies. Nor does the mere fact that in the affidavit plaintiff refers to the complaint on file measure up to the requirement of the statute that it must be made to appear by the affidavit (in the absence of a verified complaint showing the fact) that “a cause of action exists against the defendant in respect to whom the service is to be made,” for such reference is to an unverified complaint, and to hold this to be sufficient would simply be to say that the essentially jurisdictional fact of the existence of the cause of action in favor of plaintiff may be found by the court from ultimate facts not sworn to by plaintiff or his attorney, which practice is clearly not contemplated by the statute.</p> <p>Id.—'Construction of Section 412, Code Civil Procedure—Statement of Cause of Action—Averment of Ultimate or Probative Pacts Essential.—Section 412 of the Code of Civil Procedure means that the ultimate facts alleged in a verified complaint, if they state a cause of action, are sufficient to vest in the court the jurisdiction to make an order for the publication of a summons; but that, where the complaint is not verified and an affidavit is relied upon, the latter instrument must, within the real contemplation of said section, state probative facts from which the court may infer the fact of the existence of a cause of action in favor of the plaintiff. If, however, the averment of ultimate facts in an affidavit might rationally be held to be a compliance with the mandates of the statute, such facts, so stated, must, equally with the complaint, clearly disclose the statement of a cause of action in favor of the plaintiff.</p> <p>Id.—Columbus Screw Company v. Warner Lock Company—Comparison With Case at Bar.—The ease of Columbus Screw Company v. Warner LoeJc Company, 138 Cal. 446, cannot be differentiated from the case at bar upon the proposition that in that case the affidavit was by the attorney for the plaintiff, whereas, in the present case, the affidavit is by the plaintiff himself, for in that case, although the affidavit alleged facts sufficient to disclose that a cause of action existed in favor of the plaintiff its force was destroyed by an allegation which showed that the affiant stated the facts upon information received from his client, and the affidavit was held insufficient for this reason and not because it was made by the attorney instead of the party.</p> <p>Id.—Death of Party to Divorce Suit—Purpose for Which Action Survives.—While it is true that the effect of the death of one of the parties to a divorce suit, whose sole and only object is to sever the matrimonial bonds existing between them, is to extinguish the action and the cause of action, and it is also true that the settlement of the property rights between the parties is regarded merely as an incident of every decree for divorce, where there is any property involved, it is equally true that, when, in a divorce action, the property rights of the parties are adjusted and settled by the court, the legal result is that the decree adjudicates the question of such property rights as effectually and definitively as though such question was the paramount object of the action, and the death of one of the parties to such an action will not operate-to abate the action so that it cannot be revived and re-opened, if proceedings to that end be properly instituted, for the purpose of determining -whether the court erred in its adjudication of such property rights.</p> <p>Id.—Insufficient Affidavit for Publication of Summons—Lack of Jurisdiction—Void Judgment.—In such a ease, where the affidavit for the publication of summons was insufficient in failing to show that a cause of action existed in favor of the plaintiff, and the complaint was unverified, the court was wholly without jurisdiction to make the order for the publication of summons, and consequently, all the proceedings thereafter had in the cause and depending upon said order for the publication of the summons were likewise beyond the jurisdiction of the court and void, and such ease is not one where there is mere error of judgment, but no defect of jurisdiction.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George L. Jones, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeals—Inconsistency of Judgment and Findings—Power of Appellate Court.—Where the trial court has made a miscalculation as to the proper amount of a money judgment, or has been mistaken as to the law applicable to the facts as found, it would be the plain and simple duty of the appellate court to modify the judgment so as to, correct the mistake or conform to the law of the case; but the power of this court upon appeal is not limited in this class of cases to that form of relief. Under the plenary grant of power by article VI, section 4, of the constitution, and section 53 of the Code of Civil Procedure, the appellate court has full authority to either affirm or reverse or modify the judgment or order of the trial court in any case before it.</p> <p>Id.—Action fob Divorce—Award of Community Property—Inconsistency Between Judgment and Findings—When Be versal Proper.—On an appeal from a judgment in an action for divorce, where from a comparison of the findings and judgment made in the light of the express language and direction of section 146 of the Civil Code, defining the powers and duty of the trial court in the matter of the proper division of community property in actions for divorce on the ground of cruelty, it appears that the trial judge either acted inadvertently in the adoption of the findings and determination of the proper judgment to be given thereon, or that he had other facts and circumstances in mind in rendering the judgment than those which the findings contain or the record discloses, it is clearly the duty of the appellate court to reverse the judgment and remand the case for a new trial.</p>

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

<p>Payment or Wages—Act op 1911—Unconstitutionality op—Imprisonment por Debt on Mesne Process.—The act entitled “An act providing for the time of payment of wages,” (Stats. 1911, pp. 1268-9), is unconstitutional in that it in effect permits an imprisonment on mesne process for debt.</p> <p>Id.—Imprisonment por Debt—Construction op Section 15, Article I op State Constitution—Fraud Essential.—Under section 15 of article I of our state constitution providing that, “No person shall be imprisoned for debt in any civil action on mesne or final process, unless in cases of fraud,” the right of a creditor to control and confine the person of his debtor by the process of arrest, which the law, at one time, gave the creditor for the enforcement of his debt, has been abolished, and is prohibited in this state, save and except that the body of a debtor may be seized and confined in cases where it is made to appear that the indebtedness was fraudulently contracted, or that there has been an attempted fraudulent disposition of the property of the debtor with the intent to delay or defeat the payment of the debt.</p> <p>Id.—Exceptional Cases—Fraud—Arrest not Allowed for Failure to Pay.—In the exceptional cases noted fraud must exist before a debtor may be subjected to arrest and imprisonment, and in such cases the arrest and imprisonment permitted by various statutes do not fall within the inhibition of the constitution, for the obvious reason that the penalty prescribed is not for or on account of the failure to pay the creditor’s demand, but solely because of the fraud alleged to have been committed in the creation of the debt or in a subsequent attempt to delay or defeat its satisfaction, by a transfer, removal, or concealment of the property of the debtor.</p> <p>Id.—Act of 1911—Fraud not Essential of Offense.—The statute of 1911 providing for the time of payment of wages does not involve the element of fraud as an essential of the offense defined therein, nor does it provide imprisonment as the penalty for the failure of an employer to pay a debt due to his employee; it is silent as to the process by which the magistrate before whom complaint is made of an alleged violation of the statute may obtain jurisdiction of the person of the offender; and in this ease, where jurisdiction was attempted to be obtained by a resort to the provisions of sections 812 and 813 of the Penal Code, which authorize the issuance of a warrant of arrest when the magistrate is satisfied from the deposition presented to him that the offense complained of has been committed and that there is reasonable ground to believe that the party charged has committed it, as by this process, and under our system of procedure a defendant unable to give bail is jailed and restrained of his liberty until such time as a hearing can be conveniently had of the charge made against him, the proceeding is an attempt to enforce the statute by the issuance and execution of a mesne process which may result in the temporary imprisonment of the defendant, the cause of his imprisonment being his unwillingness or inability to discharge a debt which was not conceived or contracted in fraud of his creditor, and the arrest of the defendant in such a case is in conflict with the fundamental law of the state and therefore illegal.</p>

<p>Action for Goods Sold and Delivered—Pleading—Answer—Statute of Limitations—Insufficient Form—Waiver of Objection.—In an action for goods sold and delivered, although a plea of the statute of limitations set up in the answer of the defendant in form, "that said action is barred by the statute of limitations,”- is concededly insufficient to satisfy the requirements of section 458 of the Code of Civil Procedure, where the plea of the statute was treated as sufficient by the parties upon the trial, and the only question presented to the trial court was presented on a stipulation of the parties, upon a motion for a nonsuit, as to whether the plaintiff’s cause of action was or was not barred by the statute of limitations, the objection to the form of the plea was waived and cannot be maintained on appeal.</p> <p>Id.—Claim Against City of Santa Cruz for Goods Sold and Delivered—Presenting Claim to City Authorities—Accrual of Cause of Action—Statute of Limitations.—Where the charter of the city of Santa Cruz (Stats. 1875-6, p. 193, sec. 11), provided that, “Every claim and demand that shall arise against the city of Santa Cruz shall be filed with the city clerk and presented to the common council, and if found correct shall be allowed and ordered paid by a majority vote of the councilmen elected, and when so allowed shall be presented to the mayor for approval, and if.he approves such allowance he shall indorse his approval upon such claim or demand, and if he fail or refuse to approve such allowance within ten days, the said claim or demand, in order to render the same payable, must be allowed and ordered paid by the votes of three councilman,” a claim against the city for goods sold and delivered to it did not ripen into a cause of action upon which a suit could have been begun and maintained prior to the date of the presentation of the claim to and rejection by the city officials as provided in this charter provision; and where said claim ° was presented to the city officials in October, 1907, and during that month rejected, and action thereon commenced April 2, 1909, a plea of the statute of limitations to the action cannot be sustained.</p> <p>Id.—Statute of Limitations—Motion foe Nonsuit—Stipulation— Presenting Claim to Court—Interest—Bight to Judgment upon.—In such a case, where, at the close of plaintiff’s evidence, defendant moved for a nonsuit upon the sole ground that the cause of action was barred by the statute of limitations, and thereupon the parties stipulated that the jury in attendance should be dismissed and that, if the court determined upon the pending motion for nonsuit that the cause of action was not barred by the statute of limitations, it should render judgment for plaintiff for the amount due upon its claim; and that if it should determine that the cause of action was barred by the statute of limitations, judgment should be for the defendant, the claim not being barred by the statute of limitations, under the stipulation the plaintiff is entitled to have judgment entered in its favor for the amount of its claim together with interest at the statutory rate from the date of the commencement of the action.</p>

<p>Election Law—Recall of City Trustee—Contest of Election— Code Inapplicable to.—In section 1112 of the Code of Civil Procedure, it is provided that the misconduct of the election officers specified in section 1111, sufficient to avoid an election, must be “such as to procure the person whose right to the office is contested to be declared elected, when he had not received the highest number of legal votes.”</p> <p>■ Id.—Recall of City Trustee—Contest of Election—Misconduct of Board—Refusal to Count Legal Votes Against Recall—Reception of Illegal Votes—When not Ground for Contest.—Upon a contest of a recall election for the office of trustee of a city, where it is conceded that the candidate opposed to the incumbent, being the only candidate to succeed the incumbent in case of his recall, received all the votes cast, and no attack is "made upon the legality of the votes so cast for him, the fact that the board of canvassers refused to count legal votes against the recall, while misconduct was not a ground for contest, nor did the reception of illegal votes in such a ease, under section 1114 of the Code of Civil Procedure, constitute a ground for contest, unless the result would have been different and another candidate elected.</p> <p>Id.—Election Contest—Provisions for Statutory.—The right to contest an election is purely statutory, and must be determined in accordance with the terms of the statute.</p> <p>Id.—Recall Proceedings—Proceedings for Contest not Applicable to.—The provisions for removal of an official by recall proceedings are the subject of quite recent legislation, while the provisions for contesting an election were enacted in 1872 and have continued without material change down to the present date; and it was clearly not the intention of the legislature that the latter provisions should apply to a recall election.</p> <p>Id.—Recall Election—Right of Contest not Given by Implication. The contention that, conceding there is no statutory provision giving the right of contest in a recall election, such right nevertheless exists ■by implication by reason of the fact that the constitution provides for an election and makes no provision for contesting the same, cannot be maintained, as such proceedings are purely statutory for the summary determination of the right to an office, limited and restricted to cases only mentioned therein and upon the grounds specified therein.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. S. E. Crow, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Earl Rogers, W. H. Dehm, Watermann, Westover & Green, for Appellants.</p>

<p>Action for Labor—Pleading—Parties—Amendment of Title of Action—Power of Court.—On an appeal to the superior court, iu au action brought in the justices’ court to recover the sum of money-alleged to have been earned by plaintiff for labor performed, the court has power to allow the plaintiff to amend the title of his action by changing it from “San Jacinto Packing House, Plaintiff, vs. I. N. Miller, Defendant” to “Arthur S. Holden, doing business under the name and style of San Jacinto Packing House, Plaintiff, vs. I. N. Miller, Defendant,” where it appears by an affirmative allegation in the complaint that the plaintiff designated as San Jacinto Packing House was represented in the person of Arthur S. Holden as the owner of the business transacted under that name.</p> <p>Id.—Designation op Plaintiff—Fictitious Style—Identity op Party —Determination of by Complaint.—While a party to a suit designated in an authorized way under a fictitious style, where the complaint does not disclose his true character, cannot afterwards correct his pleading by amendment, in determining the identity of a party plaintiff, the allegations of the complaint may be looked to as well as the title.</p> <p>Id.—Amendment of Title—Disclosure op Identity op Party by Complaint—Bight to Bequire Amendment—Bight to Dismissal fob Failure to Amend.—In such a case, the contention that, had the cause proceeded to judgment under the title in which it was brought and that judgment had been in plaintiff’s favor, such a judgment would be of no value as against the plaintiff designated under the fictitious name, is answered by the fact that, as the complaint discloses the identity of the real party in whose favor the action was being prosecuted, the defendant might have asked the court to require an amendment to be made which would clearly describe the name of the real party in interest; and if the order for the amendment was not complied with, the action might have been dismissed.</p>

<p>Criminal Law—Poison Act—Ant Poison Containing Arsenic— Grocers and Dealers Prohibited from Selling—Construction of Amendment of June 11, 1913.—The amendment approved June 11, 1913 (Stats. 1913, p. 694), to section 7 of the “Poison Act,” which section, prior to this amendment, in schedule “A,” included arsenic, its compounds and preparations, in a list of articles which might not lawfully be sold by persons other than licensed pharmacists, recognizes the existence of two classes of ant poison, some of which may contain poison enumerated in schedule “A” and ' others may be prepared without any of those poisons; and the first named class is thereby excluded from the ant poison which may be sold by grocers and dealers generally, notwithstanding the provisions of the so called insecticide and fungicide act approved May 1, 1911 (Stats. 1911, p. 1248), as amended June 2, 1913 (Stats. 1913, p. 363), in which amendment ant poison was included in a list of articles permitted to be sold by grocers and dealers generally without restriction.</p>

APPEA.L 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. Paul M. Nash, and L. D. Barnett, for Appellant.

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County and from an order refusing a new trial. E. P. Unangst, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>W. B. Rinehart, for Appellant.</p>

<p>Foreclosure of Mortgage—Pleading—Amendment of Complaint to Conform to Proof—Failure to Answer—When Allegations Deemed Denied.—In a suit to foreclose a mortgage, where the plaintiff, with permission of the court, filed an amended complaint to conform to the proofs and no answer to it was served or filed, and no stipulation was made that the answer to the original complaint should be deemed an answer to the amended complaint, but the case was tried upon the theory that the facts presented by the amended complaint, except as admitted, were denied substantially as appeared in the answer to the original complaint, the allegations of the amended complaint will be treated as denied on appeal.</p> <p>Id.—Failure to Make Objections Until After Judgment—Waiver.— Where the court permits the plaintiff at the end of the trial of an action to file an amended complaint to conform to the proofs, the opposing party cannot stand by without answering or demurring until after the court has made its findings and entered its judgment, and then claim that he was deprived of his right to answer or demur. If he has objection to the amended complaint as allowed by the court he should seasonably make such objection known or he must be deemed to have waived the same.</p> <p>Id.—Amended Complaint—Original Complaint Superseded by— Waiver of Objections.—It is well settled that an amended complaint supersedes the original complaint and furnishes the sole basis of plaintiff’s cause of action; and if the defendant in such an action desired to avail himself of objections, other than to the sufficiency of the amended complaint to state a cause of action, he should have renewed his special demurrer after the amended complaint was filed.</p> <p>Id.—Vendor and Vendee—Assumption op Mortgages by Vendee—■ Mortgages Given as Part Payment op Purchase Price— Second Deed to Correct Error—Mortgages not Discharged by.—Where a part of the consideration of the purchase price of two separate parcels of land consisted in the assumption by the purchaser of the payment of separate mortgages of the vendor on such parcels, and the execution and delivery of the purchaser’s two promissory notes secured by separate mortgages on the same parcels, the latter two mortgages were not released or discharged, as to the grantee of such purchaser, by the act of the vendor and his wife in executing another deed to the purchaser, at the latter’s request, five days after the first deed, where the only purpose thereof was to convey the wife’s interest in the land, which had been omitted from the first deed, and where it was shown that the grantee did not, as contended by him, purchase the property with only the notice shown by the'records, but had actual knowledge of the transaction.</p> <p>Id. -Ownership op Property—Amendment to Complaint to Include Wipe’s Interest.—In such a case it cannot be successfully contended that an amendment to the complaint was trivial and therefore did not require a new demurrer, where the amendment was made to show that the property under foreclosure was owned by plaintiff and his wife, whereas the original complaint alleged that plaintiff was the owner; nor can such an objection be sustained to an amendment alleging that plaintiff and his wife made the second conveyance of the premises merely by way of correcting the deed theretofore made by the husband alone and with no intention that it should affect the mortgages given by the purchaser, especially where appellant strongly urged at the trial that the second deed absolutely released and discharged the mortgages and merged them in the purchaser and the latter took the title freed therefrom, and where appellant further contended, on a motion to strike out the amended . complaint, that the amendment radically altered the alleged cause of action set forth in the original complaint and introduced new and distinct matters and issues.</p> <p>Id.—Special Demurrer—When Overruling not Prejudicial.—In such a case, where the matters called to the attention of the court by special demurrer were gone into at the trial, and appellant was not misled by any of the defects in the pleading pointed out in the special demurrer, he was not prejudiced by the overruling of the same.</p> <p>Id.—Subordinate Lien—Eight op Redemption—Subrogation—Sections 2903 and 2904, OmL Code.—Sections 2903 and 2904 of the Civil Code, confer upon a person having an interest in property, subject to a lien, the right to redeem from the lien and by such redemption he becomes subrogated to all the benefits of the lien; and they further provide that one who has a lien inferior to another upon the same property has a right to redeem the property, in the same manner as its owner might, from the superior lien, and to be subrogated to all the benefits of the superior lien, when necessary, for the protection of his interest, upon satisfying the claim secured thereby.</p> <p>Id.—Payment of Mortgage by Vendor—Subrogation.—Where under such circumstances, the vendor is obliged to pay one of the mortgages, the payment of which the purchaser assumed, in order to protect the mortgages given by the purchaser, he is entitled to be subrogated to the rights of the mortgagee under such mortgage.</p> <p>Id.—Form of Judgment—Sufficiency of.—A judgment in an action for the foreclosure of the mortgages given by the purchaser in such a case which adjudges that the land “be and hereby is declared a valid lien for the payment to plaintiff,” etc., is sufficient, notwithstanding that it is nowhere decreed that the mortgages are a lien upon the premises, or that the plaintiff is entitled to the foreclosure thereof, where it describes the property, directs its sale, appoints a commissioner to conduct the sale, and gives specific directions as to the application of the proceeds to pay the amounts due, which are specifically given, and declares that all the defendants and all persons claiming under them, or having liens subsequent to plaintiff’s liens, and who have acquired any estate or interest in said premises subsequent to the filing of the notice of the pendency of the action “be forever barred and foreclosed of and from all equity of redemption.”</p> <p>Id.—Foreclosure of Bight of Bedemption—Section 2931, Civil Code. Section 2931 of the Civil Code provides that a mortgagee may foreclose the right of redemption of the mortgagor in the manner prescribed by the Code of Civil Procedure.</p> <p>Id.—Form of Judgment—Section 726 Code Civil Procedure.—Section 726 of the Code of Civil Procedure prescribes no form for the judgment in a suit to foreclose a mortgage. The principal object of the proceeding is to cause a sale of the encumbered property and the application of the proceeds of sale to the payment of the debt secured thereby as in that section directed.</p>

<p>Negligence—Personal Injuries—Pleading—Sufficiency of Complaint.—In an action for damages for personal injuries alleged ■to have resulted from the negligence of the defendant, where the original complaint in one count clearly alleged sufficient facts to state a cause of action on each of the three alleged acts of negligence of the defendant, notwithstanding that the several causes of action were not separately stated, the pleading was not, as to any of the causes of action so stated, obnoxious to a general demurrer or to a special demurrer for uncertainty.</p> <p>Id.—Different Acts of Negligence—Bight to Bely upon Any or All.—In such a case the plaintiff: had the right to rely upon any one of the alleged acts of negligence as the proximate cause of his injury or upon all of said acts as operating together or concurrently in so causing the damage.</p> <p>Id.—Different Causes of Action—Failure to Separately State— Waiver of Objection.—If the original complaint in such a case was faulty in form, because the several causes of action were not therein separately stated, the defendant, if it desired a reform of the pleading in that regard, should have specially demurred to it on that ground; and having failed so to do the court was authorized to disregard that fault in the pleading.</p> <p>Id.—Original Complaint Stating Different Causes in One Count— Amended Complaint Stating Separate Causes—Cause of Action not Changed.—In such a case, where the original complaint alleged in one count three different forms of negligence, that is, negligence in the operation of the machine which caused the injury, the employment of an incompetent person to operate the machine, and that plaintiff was inexperienced and uninstrueted in the duties and risks of his work, the amended complaint did not introduce either a new cause of action or any different issues, where it separately stated two of the causes of action, substantially in the same language, that is, the one based upon general negligence and the other upon the alleged incompetency of the employee of the defendant to operate the machine.</p> <p>Id.—Negligent Operation of Machine—Incompetent Operator— Sufficiency of Evidence to- Sustain Verdict—Lack of Contributory Negligence.—In this action for damages for personal injuries alleged to have resulted from defendant’s negligence, it is held that the evidence was sufficient to sustain the verdict of the jury in favor of the plaintiff finding that the machine causing the injuries was negligently operated by defendant’s employee, and that the latter was incompetent to operate the machine, and that plaintiff was not guilty of contributory negligence.</p> <p>Id.—Incompetent Employee—Investigation of Qualifications by Employer—Presumption—Rebuttal of by Character of Incompetency—Question for Jury.—While the presumption is that an employer has done his duty in investigating the qualifications of an employee to operate a machine which he has been employed to operate, the incompetency of the employee at the time of his employment may be of such a character that the evidence showing it will be legally sufficient to rebut the presumption that the employer used the requisite care in his selection, and make the question one for the jury. This is on the theory that the incompetency was of such a nature that a reasonable investigation would have disclosed it, and that, therefore, the employer either knew of it or omitted to make such an investigation.</p> <p>Id.—Instructions—No Error in.—It is held in this action for damages for personal injuries that there was no error in the instructions given by the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. J. J. Trabucco, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>John F. Clute, James Alva Watt, and Wyckoff & Gardner, for Appellants.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County and from an order refusing a new trial. T. L. Lewis, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Shreve, Reed, Sample & Shreve, for Appellants.</p>

<p>Action to Quiet Title—Claim op Easement—Railroad Right op Wat-—Permissive User.—In an action to quiet title to a tract of land, where the defendant set forth a claim of an easement by adverse user for a right of way over the land for a“railroad for logging purposes in connection with a lumber business, the trial court was warranted in finding that the user was never adverse, where the evidence was undisputed that the road was constructed and its use initiated under a written agreement with plaintiff’s predecessors in ownership, providing, among other things, that “the party of the first part hereby grants to the party of the second part, the exclusive right to occupy and use a strip of land fifty feet in width along the southerly bank of said Wages Creek for the purposes of a rail or wagon road or both for such time as he shall continue in the lumber business on said Wages Creek, not to exceed .twenty-five years. It is agreed and understood, that upon the termination of the lumber business of the second party on the said Wages Creek the strip of land occupied by said party, as aforesaid, shall at once revert to the first party and that this agreement shall bind the heirs, executors, administrators, assigns and tenants of the parties hereto,” and there was no evidence that the license was ever repudiated or questioned in any manner.</p> <p>Id.—Title bt Prescription—Adverse User—Repudiation of License —Knowledge op Owner—Burden op Proof.—In such a case the privilege having originated in license or express permission it is presumed to have so continued until the license was repudiated and the repudiation brought to the knowledge of the licensor; and the rule is not affected by the fact that the privilege is claimed by the successors in interest of the licensee, and from the continuance of the use by the latter it will be presumed, in the absence of anything to the contrary, that it was based upon the same right and under the same limitations as characterized the licensee’s exercise of the privilege, and the burden of proving the contrary is upon the one claiming the easement.</p> <p>Id.—Adverse User or Implied License—Question op Fact.—The question whether or not the user is adverse or with the implied license of the owner of the servient estate is one of fact to be determined in the light of all the surrounding circumstances.</p> <p>Id.—Evidence op- Adverse User.—While it sometimes occurs that evidence of the use itself and of the manner in which it is exercised carries with it a conviction that said use was under a claim of right and therefore will justify a finding to that effect, each case depends upon its own particular facts, and unless those facts compel •the conclusion that the use is adverse the court should find in favor of the owner of the record title.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County and from an order refusing a new trial. T. L. Lewis, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Davis & McCoy, for Appellant.</p>

<p>Election Contest—Filing Findings and Entering Judgment—Section 1118a Code Civil Procedure Directory—Jurisdiction.—The sections of the act of the legislature governing the court’s action upon the trial of election contests are directory in the absence of an express provision declaring them to be mandatory; and the court in such proceeding did not lose jurisdiction under section 1118a of the Code of Civil Procedure by reason of its failure to file its findings and enter judgment within ten days after the submission of the case and the granting of a motion for nonsuit.</p> <p>Id.—Contest for Office of School Trustee—Misconduct of Election Board—Erroneous Nonsuit.'—Where it appeared from the undisputed facts before the court at the time that a motion for a nonsuit was made in an election contest for the office of high school trustee that the election board in one of the precincts disregarded the requirement of section 1253 of the Political Code, which provides that the count by the election board of the number of votes east at the close of the polls shall be compared with the poll list of voters, and likewise disregarded the succeeding section, which provides the pro- • cedure to be followed where two ballots are folded together as a single ballot,'and on the night of the day following the election and after the result had been declared, withdrew their official returns from the custody of the clerk of the school district with whom they had been deposited, and altered the same by adding to the recorded vote of one of the candidates the ballots folded together as one, which changed the result of the election, the court erred in granting the motion.</p> <p>Id.—Comparison of Count of Votes With List of Voters—Section 1253 Political Code.—In such a ease it was the duty of the election board, under section 1353 of the Political Code, to compare their count of the number of the votes cast with the list of voters kept by the clerk.</p> <p>Id__Ballots Bolded Together—Section 1254 Political Code.—Under section 1254 of the Political Code, if two or more separate ballots are found so folded together as to present the appearance of a single ballot, they must be laid aside until the count of the ballots is completed; then, if upon comparison of the count with the number of names of electors on the lists which have been kept by the clerks, it appears that the two ballots thus folded together were cast by one elector, they must be rejected.</p> <p>Id.—Double Ballots—Disposal op.—If the election board, after following the procedure outlined in sections 1253 and 1254 of the Political Code, were in doubt as to whether two sets of double ballots should be counted each 'as one or as two votes, the succeeding section of the code supplied the procedure by-providing that, if the number of ballots is in excess of the names on the list, the ballots must be placed in the box and a number of ballots equaling such excess must be publicly drawn therefrom by one of the judges and destroyed unopened.</p> <p>Id.—Count op Votes—Time for—Section 1252 Political Code.'—It is the plain intendment of section 1252 of the Political Code that the election board shall commence their count of the votes at once upon the close of the election and that they shall publicly and in the presence of -the bystanders conduct the same without adjournment until such count is completed and the result declared and recorded, and when this is done and the ballots, together with their returns, have been deposited with the clerk of the school district as other sections of the act require, the powers and duties of the election board are at an end; and their jurisdiction over any matter concerned in the election ceases. Thenceforth any review or correction of their returns must be done under the direction of the board of trustees of the school district, or other canvassing board, under the provisions of section 1281a of ,the Political Code.</p> <p>Id.—Withdrawal of Official Returns—When Unwarranted.—In such a case, there was no authority in law for the withdrawal by the election board, on the day following the election, of their official returns from the custody of the clerk of the district for any purpose whatever.</p>

<p>Motor Vehicle Act—Construction of—Limit of Speed.—The Motor Vehicle Act of 1913 (Stats. 1913, p. 639) provides, among other things, that no motor vehicle shall be operated at such rate of speed as to endanger the life or limb of any person or the safety of any property, which provision is independent of the provision fixing certain maximum speeds; and the act then fixes the maximum rate of speed generally, i. e., in sparsely settled portion of the county, at thirty miles an hour; where the contiguous territory is closely built up, at twenty miles an hour; in business districts of any incorporated city and county, city or town, at fifteen miles per hour; and finally where the operator’s view of the road traffic is obstructed either upon approaching an intersecting way, or in traversing a crossing or intersection of ways, or in approaching or traversing a bridge, dam, trestle, causeway, or viaduct, in going around corners or a curve in a street or highway, at ten miles per hour.</p> <p>Id.—Provision for Different Bates of Speed in Cities and Towns— 'Power of State.—The Motor Vehicle Act very properly provides for different speeds at different places and under different conditions in incorporated cities and towns for the obvious reason that where “the view of the road traffic is obstructed upon approaching an intersecting way,” also when “traversing a crossing or intersection of ways,” also “when approaching a bridge, dam, trestle, or viaduct,” also “in going around comers or a curve in a street or highway,” the danger to life and property is increased in proportion as the speed is increased; and it follows that any reasonable rate of speed deemed necessary for the protection of life and property may be prescribed by the state as within its police power.</p> <p>Id.—Construction of Act—Uniform Regulation in Cities and Towns. The Motor Vehicle Act was intended- to provide uniform regulations to govern all persons in operating motor vehicles in incorporated cities and towns unless it may be where some exceptional conditions in such cities and towns demand a lower rate of speed and in some parts thereof than is prescribed by the state law and such conditions clearly appear.</p> <p>Id.—Object of Act—Raising of Revenue.—The Motor Vehicle Act has for its object the regulation of the licensing and operating motor vehicles and the raising of revenue for the improvement of the state highways.</p> <p>Id.—Highway Act of 1909-—Motor Vehicle Act Supplement op.— The Motor Vehicle Act is intended in no small degree to supplement the Highway Act of 1909, for it deals with and regulates the speed of vehicles over all the highways and all the streets in- the state whether within or without incorporated cities and towns.</p> <p>Id.—Notices—Local Authorities—Regulation of Speed.—The direction given in the Motor Vehicle Act “to -local authorities” to post notices requiring persons using the street “to slow down-miles,” does not authorize municipalities to insert therein the speed prescribed by the municipality and allow a different rate of speed from that prescribed in the act and punish the person who exceeds it.</p> <p>Id.—Revenue and Regulation—Collection op Fines—Interference With State by Municipalities.—The Motor Vehicle Act is essentially a revenue law as well as a regulatory measure; and to allow incorporated cities and towns unrestricted authority to impose and collect fines for municipal purposes would tend to defeat one of the objects of the act, for it is common knowledge that most of the prosecutions for the infractions of speed regulations arise within incorporated cities and towns.</p> <p>Id.—Municipal Corporations-—Regulation of Speed of Motor Vehicles—Conflict With Motor Vehicle Act.—An ordinance of the city of Merced which fixes the limit of speed of motor vehicles in all parts of the city at twelve miles per hour, regardless of crossings and intersecting streets or of obstructions to the view of the operator in approaching (an intersecting way, is in conflict with the Motor Vehicle Act of 1913 which limits the speed to ten miles an hour under certain conditions and- allows fifteen miles per hour under other circumstances.</p> <p>Id,—Streets and Highways—Eight op State to Begulate.—Except as to “municipal affairs” concerning which cities having freehold charters (Merced is not among them) are, by the constitution, given exclusive authority to pass ordinances, and except where the state has relinquished control to municipalities, the state in its sovereign capacity has the original right to control all public streets and highways, which carries with it the power to make regulations for the use of streets in incorporated cities and towns. This control the state has not relinquished.</p> <p>Id.—City op Sixth Class—Authority op.-—Merced, which is a city of the sixth class, has authority to go no further than to make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with the general laws; and where an ordinance of that city attempting to regulate the speed of motor vehicles may be said to conflict with the Motor Vehicle Act -or if said act can reasonably be held to have intended to supplant all other legislation, state and local, with regard to the subject-matter of the act, the ordinance is invalid.</p> <p>Id.—Conplict Between Ordinance and State Law—Bulb as to.— There may be a conflict where an act of the legislature follows as well as where it precedes a local ordinance; and it is immaterial how or when the conflict arises if at the time of the alleged violation the ordinance is in conflict with the existing general law.</p>

<p>Criminal Law—Appeal—Neglect to Pile Points and Authorities or Appear at Hearing—Affirmance of Judgment.—Where the attorneys of record purporting to appear for a defendant in a criminal case neglected and failed to file any memorandum of points and authorities and did not appear when the cause was called for argument, and at the request of another attorney who offered to appear as counsel for the appellant, the court gave twenty days’ time to file a brief on behalf of the appellant, but no brief was filed, under the circumstances, the court will assume that no ground for reversal exists and that, as permitted by section 1253 of the Penal Code, the judgment should be affirmed.</p>

<p>Agreement to Léase Real Property—Term op Five Tears—Failure to Reduce to Writing—-Invalidity of—Damages.—Under the rules declared in sections 1624, 2309, and- 2310 of the Civil Code, an agreement to lease real property for a period of five years which is not reduced to writing, and there being no lease made or signed by the promisor, or any person authorized in writing by him to act for him, is invalid and not binding; and there being no valid contract no damages for the breach thereof can be recovered.</p> <p>Ib.—Payment of Money on Proposed Lease—Right to Recover.—In such a case, where plaintiff paid the' sum of one hundred dollars on account of the proposed lease he would be entitled, in an action properly brought for that purpose, to recover the money so paid, either from the person to whom he paid it, or from the proposed lessor, upon a showing that the money was received on -behalf of the latter or applied to his use, but where the complaint does not purport to demand anything except damages for the breach of the agreement, the action cannot be maintained.</p>

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

<p>APPEAL from a judgment of the Superior Court of Kings County and from an order refusing a new trial. M. L. Short, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. T. Cosper, for Appellant.</p>

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

<p>APPEAL from a judgment of the Superior Court of Merced County and from an order refusing a new trial. E. N. Rector, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>F. G. Ostrander, for Appellant.</p>

<p>Lease of Farm—Construction of—-Latent Ambiguities—Gross and Net Proceeds—Admissibility of Parol Evidence.—Where a lease of a farm provided, among other things, that in consideration of the execution thereof, the lessees “will semi-annually on the first day of January and June of each year during the term of this lease and at the expiration thereof, render to said first parties, a just and true accounting of all of the affairs pertaining to the conduct of said farm, and that they will deliver to parties of the first part, or to their order, one equal half part of all the proceeds and crops produced on said farm,” and there was nothing else in the lease from which the court could determine whether the parties meant by the use of the word “proceeds” gross or net proceeds, the lease was so ambiguous in this regard that parol evidence was admissible to explain the intention and understanding of the parties.</p> <p>Id.—Contracts—Rule of Construction.—It is elementary that it is no part of the office of construction to add to or to take from a contract, but to ascertain what the parties intended by what they have said. If there be no ambiguity in the contract it must speak for itself; but where the language employed is fairly susceptible of either one of the two interpretations contended for, without doing violence to its usual and ordinary import, or some established rule of construction, then an ambiguity arises, which extrinsic evidence may be resorted to for the purpose of explaining. This is not allowing parol evidence for the purpose of varying or altering the contract, or of putting a different sense and construction upon its language from that which it would naturally bear, but for the purpose of showing the circumstances under which the language was used, and applying it according to the intention of the parties.</p> <p>Id.—Unlawful Detainer—Meaning of Lease.—It is held in this action of unlawful detainer that the evidence sufficiently showed that the actual agreement 'between the parties was that the lessees were, at the time specifically designated in the lease, to render and deliver to the lessors, in writing, a just and true accounting of all the affairs pertaining to the conduct of the farm leased, and to deliver to the lessors an equal half share of the net proceeds and crops produced on the leased premises.</p>

<p>Action to Quiet Title—Unauthorized Conveyance by Attorney in Fact—-Ratification.—In this action to quiet title, where defendants claim under a certain deed executed by the attorney in fact of the plaintiffs, in settlement of certain litigation, it is held that while the attorney was not authorized, under the express terms of the power of attorney to make the conveyance, the same was executed with the knowledge, consent, and approval of the plaintiffs, and hence was ratified by them.</p>

<p>Contracts—Sale of Goods—Mistake—Deformation of Contract.— In an action upon a written contract to recover a balance alleged to be due on the purchase price of certain goods, where the defendant by its cross-complaint admitted the execution of the agreement but alleged that by mistake the contract omitted a condition and guarantee in fact .agreed upon by the parties ¿hat the sale was subject to a freight rate between the city of Cleveland and the city of San Francisco of one dollar and forty cents per hundred, whereas the rate charged to and paid by the purchaser was three dollars per hundred, and but for said condition and guarantee the purchaser would not have made the purchase, evidence offered in support of these allegations of the cross-complaint was admissible, and under such evidence defendant was entitled to a reformation of the contract to express the real intention of the parties.</p> <p>Id.—Written Contract—Mistake—Eight of Eeformation.—When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not fully express the intention of the parties, it may be revised upon the application of a party aggrieved so as to express that intention, so far as it can be done without prejudice to the rights acquired by third persons, in good faith and for value; and in revising such written instrument, the court may inquire what the instrument was intended to mean, and what were intended- to be its legal consequences, and is not confined to an inquiry what the language of the instrument was intended to be.</p> <p>Id.—Pleading—Failure to Plead Mutual Mistake—Waiver.—In such a case the contention that, as .the defendant did not plead the mistake as mutual, he was not entitled to a reformation, cannot be maintained, where the plaintiff did not demur specially but answered the averments in the pleadings, as there is no rule that would preclude defendant from proving the mistake if entitled to a reformation of the contract.</p> <p>Id.—Materiality of Mistake.—While the fact concerning which the mistake was made in such a ease must be material to the transaction, and not merely incidental, to entitle the party to a reformation of the contract, where the pleading alleged that but for the guarantee as to the freight rate defendant would not have made the purchase, it was of the essence of the agreement and was material.</p> <p>Id.—Delivery F. O. B.—Latent Ambiguity.—A reformation of the contract in such a case by the insertion of the terms alleged to have been omitted from it did not create a latent ambiguity or contra-diet the term thereof that the purchaser was to pay for the goods “the sum of $3800.00 f. o. b. ears Cleveland, Ohio.”</p> <p>Id.—Tekm F. O. B.—Meaning of.—It is understood in mercantile parlance that the term “f. o. b.”' stands for “free on board”-—that is, when used in an agreement that goods are to be delivered at a certain place “f. o. b.” means that they will be delivered to a carrier at that place free of drayage charges, etc.; and the phrase is only evidence, and not conclusive, that the goods were to be so delivered to the purchaser.</p>

<p>Partnership—Contract for Labor and Materials—Dissolution of Partnership—Liability on Contract.—Where a copartnership contracted to pay a certain amount for labor and materials to be furnished to it in the construction of a certain building, it was bound by its promise the same as an individual or a corporation, and its liability to the other party for the contract price continued notwithstanding the dissolution of the partnership with or without notice to its creditor, even though all .the labor was not performed or all the materials furnished before the dissolution, and notwithstanding an agreement between the partners that one of them should assume the liability, in the absence of a release of the partnership by the creditor or the termination of the liability in some recognized legal way.</p> <p>to.—Partnership Liabilities—Termination ot.—The liability on partnership obligations, which have been properly created during the continuance of the relationship, can be terminated only in one of the methods recognized by law for the termination of joint contracts in general, viz.: payment, release, merger, or novation.</p> <p>Id.—Extra Materials—Liability tor.—In such a case extra materials may be recovered for where they were necessary to complete the work contracted for.</p> <p>Id.—Partnership Legal Entity—Judgment.—The copartnership being a legal entity could be sued as such and judgment was properly entered against it notwithstanding its dissolution after the contract was entered into.</p>

<p>Insurance Law—Indemnity Bond—Statements in Application as to Honesty op Employee—Warranties.—Where an employer in making application for an indemnity bond to insure him against loss through the dishonesty of his employee, in answer to questions asked by the insurer, stated that the employee had never been in arrears with him or indebted to him and he did not know any reason why the bond should not be issued, which statements were declared by the policy to be warranties and part of the contract of insurance, and which warranties were false, the policy being issued in reliance upon them was void ab initio, and in an action upon the bond the court should have directed a verdict in favor of the defendant.</p> <p>Id.—False Warranties—Void Policy.—When a warranty is broken in its inception the policy never attaches to the risk which it purports to cover.</p> <p>Id.—Warranties False in Fact—Good Faith op Insured Immaterial.—In such a case, the fact that the statements of the insured were made in good faith and in the belief of their truth and without any negligence in the examination of his books—which might have, but did not, lead to a knowledge of a prior embezzlement of the employee—is immaterial; and the materiality of the statements is removed from the consideration of the court by the agreement of the parties that such statements are absolutely true and that if untrue in any respect the policy shall be Void.</p>

<p>John Yule, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of Napa County. Henry C. Gesford, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>James A. Nowland, for Appellant.</p> <p>T. C. Coogan, Percy S. King, and Coogan & O’Connor, for Respondents.</p>

<p>Mechanics’ Lien—Planting of Vineyard—Construction of Section 1191 Code Civil Procedure.—The planting of a vineyard on property within the incorporated limits of a city or a town is an “improvement” of the property within the meaning of section 1191 of the Code of Civil Procedure which provides that “any person who, at the request of the reputed owner of any lot in any incorporated city or town, grades, fills in, or otherwise improves 'the same . . . has a lien upon said lot for said work done and materials furnished.” The plain meaning of the statute is that whoever contributes to the substantial improvement of the lot, either by furnishing work or material, is entitled to the privilege of enforcing his claim as a lien; and it is not necessary that the claimant should have furnished the materials, for the statute makes no distinction between the one who furnishes the material and him who performs the labor in effectuating the improvement.</p> <p>Id.—Section 1191 Code Civil Procedure—Building not Contemplated by.—Section 1191 of the Code of Civil Procedure does not contemplate a building, but provides for improvements to the lot or to the street or sidewalk in front of or adjoining the same.</p>

<p>Action fob Goods Sold—Agency—Sufficiency of Evidence.—In this action to recover the reasonable value of certain goods delivered by plaintiff’s assignor to defendants it is held that the evidence was sufficient to sustain the finding that one of the defendants was liable for the goods ordered by the other up to the time the former notified the vendor that he would no longer be responsible for supplies furnished the other defendant.</p> <p>Id.—Agency—Evidence—Declarations and Testimony of Agent.— While it is a well-settled rule that agency cannot be established by the extra-judicial statements or declarations in pais of one pretending to act as agent and that such statements or declarations are incompetent and, therefore, inadmissible as in proof of agency, it is equally well established that the fact of agency, when it rests in parol, may be established on the trial by the testimony of the agent himself; in other words, the testimony of an agent sworn as a witness in a case, when the question of his agency is involved, is competent to establish it and its extent and nature.</p> <p>Id.—Implied Authority—Acts and Circumstances.—Where the authority of an agent is unwritten and express oral .authority is not satisfactorily shown, such authority may be implied from acts and circumstances shown.</p> <p>Id.—Witness—Inconsistent Statements—Impeachment — Question for Trial Court,—The effect of inconsistent statements in the testimony of a witness is merely to impeach the integrity of the entire testimony of such witness or impair its evidentiary force, but whether it has such effect or to what extent, if any, is a proposition whose determination is wholly with the trier of the facts; and the latter is at liberty to accept parts of the witness’s testimony and reject other parts thereof, if such a course is not inherently unreasonable, and if it believes certain parts thereof which covered the salient points in issue, it has the right to accept the parts so credited as the bases of its findings, even though such parts, besides being inconsistent with other parts of the witness’s testimony, are directly opposed by the adversary testimony presented.</p> <p>Id.—Ratification—Inference from Words ob Conduct.—Ratification of a contract made by an agent need not be in express terms in order to bind the principal; if it is fairly inferable from the words or conduct of the party it is sufficient, and like the act of conferring antecedent authority upon the agent may be express or implied.</p> <p>Id.—Implied Authority—Rights of Third Parties—Ratification.— Quiescence is tantamount to acquiescence, and, therefore, the law forbids the principal denying an authority in the agent the existence of which is implied from his own conduct, where such authority concerns and affects the rights of third parties. This rule is not alone applicable to the doctrine of ostensible agency but is equally applicable to the doctrine of ratification.</p> <p>Id.—Trial by Court—Admission of Incompetent Testimony—When Disregarded.—In such a ease, where the cause was tried by the court, ■ without a jury, it will be assumed on appeal that, if incompetent testimony crept in the record, the trial court disregarded it in deciding the question at issue, there being ample competent testimony to support the conclusion reached.</p> <p>Id.—Cross-examination—Proper Rule.—In such a case, there was no error in sustaining an objection to the cross-examination of the plaintiff to a question asked by the defendant which had for its object to impeach the plaintiff by showing that in his verified complaint he had averred that one of the defendants was severally liable for the full amount of the claim, while the evidence showed that this defendant was liable, if at all, for only a part of the sum sued for, the witness having repeatedly answered that he understood he was suing both of the defendants for the full amount, and the court finally remarking that it understood what the witness intended to say and refused to allow further cross-examination along that line.</p>

<p>APPLICATION for a Writ of Prohibition originally made to the District Court of Appeal for the Third Appellate District to restrain the respondent from proceeding to hear a certain proceeding growing out of a divorce suit.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of" San Francisco and from an order refusing, a new trial. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>A. L. O’Grady, Thomas V. Eddy, and Nathan C. Coghlan, for Appellants.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Henry C. Gesford, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contracts—Purchase of Beal Property—Specific Performance— Damage for Breach of Contract—Agency—Lack of Authority to Pledge Property.—In this suit for the specific performance of a certain contract for the purchase of certain real property and for damage for the breach of another such contract, it is held that the facts and circumstances fully warranted the court in finding that one of the plaintiffs was authorized as the ostensible agent of the other plaintiff, his wife, to purchase the property in question and to make the payments thereon; but that the facts do not justify the conclusion that he had authority to pledge the property to secure the payment of money borrowed for his own use.</p> <p>Id.—Actual and Ostensible Agency—Definition of.—An agency is either actual or ostensible, and it is ostensible when the principal unintentionally or by want of ordinary care, Causes a third person to believe another to be his agent who is not really employed by him.</p> <p>Ib.—Scope of Ostensible Agency—Notice of—Bights of Third Parties.—Within the scope of his ostensible authority the agent represents the principal and all liabilities that would; accrue to the agent within such limits accrue to the principal; and, as against the principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought in good faith and the exercise of ordinary care and diligence to communicate to the other. A principal is bound by the acts of his agent, under a merely ostensible authority, to those persons who have in good faith, and without want of ordinary care, incurred a liability or parted with value upon the faith thereof.</p> <p>Id.—Proof of Agency—Testimony of Agent Competent—Extrajudicial Declarations of Agent Inadmissible;—The rule is well established that the fact of agency when it rests in parol may be established on the trial by the testimony of the agent himself; his testimony is admissible and competent to prove the agency and the nature and scope of his authority and to bind his principal thereby; but it is equally well established that extra-judicial statements or declarations in pais of one assuming to act as agent are inadmissible and incompetent to establish the fact of agency.</p> <p>Id.—Lack of Authority in Agent to Borrow Money—Want of Notice to Principal—Executed Contract.—In such a case, where there was no evidence that the husband was the wife’s agent or authorized by her to borrow money upon the security of the wife’s property, except the declarations of the husband, which w.ere incompetent, notice of the transaction cannot be imputed to the wife under section 2332 of the Civil Code; nor can such an agreement be upheld as an executed agreement binding the wife, the husband not having had any authority, actual or ostensible, to make the agreement, and it not appearing that he was the general agent of the wife.</p>

<p>Action to Quiet Title—Boundary Land—Quitclaim Deed—Presumptions in Favor of—Charos of Fraud and Mistake—Burden of Proof.—The presumptions are in favor of the validity of a quitclaim deed to a certain strip of land between adjoining owners, where the deed was executed with the formality and solemnity usually observed in such transactions; and in an action by the grantor to quiet title to the land, in which the deed' is attacked upon the ground of fraud, mistake, failure of consideration, and misrepresentation in its execution, the burden of proof is on the plaintiff as to the issues affecting •the purported conveyance.</p> <p>Id.—Insufficiency of Evidence to Overthrow Deed.—In such a case, where there were no confidential relations between the parties, and there was no evidence from which a rational inference could be drawn that any misrepresentations were made to the grantor, that any undue influence was exercised, that he did not have the deed read to him or did not thoroughly understand its terms, that it was not, in other words, his entirely voluntary act, made understandingly with the intention to convey to the grantee therein named whatever interest he had in the premises included in the description; but at most it may be inferred that the grantor was somewhat advanced in years, not very strong physically, and that he acted without the advice of his attorney to whom he generally applied for assistance in matters of such moment, the evidence falls short of justifying an appellate court in reversing a finding in favor of the deed, and a judgment in favor of the defendant for his costs should be upheld on appeal.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. J. E. Prewett, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>H. W. Glensor, for Appellant.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally presented to the District Court of Appeal for the Second Appellate District to procure the discharge of the petitioner from a commitment for contempt of court.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. W. Dorsey, W. E. Cashman, and R. M. F. Soto, for Appellant.</p>

<p>Eminent Domain—Riparian Rights—Condemnation op por Public Use—Law op the Case.—In this proceeding in eminent domain to acquire the right to divert certain waters of the San Joaquin River as against riparian lands of the defendant, it is held that the decision of the supreme court on the former appeal (164 Cal. '221) that the use which the appellant proposed to make of the waters sought to be condemned is one for which it is authorized to exercise the right of eminent domain, under section 1238 ' of the Code of Civil Procedure, applies with equal force to the facts revealed on the second trial; and that as to the public character of the use the law was settled by that decision.</p> <p>Id.—Evidence—Damage to Lands Other Than Those Described in Complaint—Prejudical Error.—In such a ease, where the issue tendered by the complaint involved simply the riparian right of the land described therein, the necessity for the condemnation of the right and the (lamage to this particular land, if said right should be taken, were all that concerned the jury, and the damage to this particular land was to be ascertained by deducting from the market value of the land as it existed at the time of the issuance of the summons the market value it would have if deprived of this riparian right; and it was prejudicial error to permit the defendant to introduce in evidence an elaborate scheme for prospective reclamation and irrigation of this land and in allowing evidence of damage to other lands than those described in. the complaint.</p> <p>Id.—Issues Triable by Court—Necessity for Taking of Property— Quantity op Water Necessary for Use.—In such a case the issue as to the necessity for the taking of the property sought to be condemned is one to be tried by the court, and not submitted to a jury, the rule in cases of eminent domain being that all questions, except those necessary to determine the compensation to be made to the owner for his property taken or damaged, are to be determined by the court; and this necessarily includes among the questions triable by the court without a jury, the question whether plaintiff’s canal will unreasonably waste the water sought to be condemned and the quantity necessary for the use, after allowing for unavoidable waste; also the question whether the water which the plaintiff has already acquired the right to take, would be sufficient for its public use, if carried and distributed without unreasonable waste.</p> <p>Id.—Prevention op Waste by Seepage—Requirement op Cementing Canal.—In such a ease the question as to whether or not the plaintiff should be required to cement its canal to prevent waste by seepage is one of fact to be decided in each ease upon all the circumstances, but no unreasonable expense should be imposed on the public service company; and it is held by the supreme court in this ease on the petition to transfer the cause to it for rehearing that the opinion of the district court of appeal on this subject is not to be regarded as the law of the ease on the re-trial of the action.</p> <p>Id.—Prescriptive Right—Erroneous Instruction.—In such a case the following instruction given at the request of the defendant is objectionable in implying that if the plaintiff acquired a prescriptive right to five hundred feet of water as against all other riparian owners except defendant the latter would have the right to all the balance of the river without regard to the claim of any other riparian owner: “By diverting a greater quantity of water than seven hundred and sixty cubic feet per second, the plaintiff could acquire no right against the lands of defendant, that are described in the complaint, but plaintiff could acquire, as against other riparian owners, the rights by prescription to take such excess of water. And if the plaintiff did acquire the rights of the other riparian owners by prescription, or otherwise, then the defendant would have a right as between it and plaintiff to use the entire flow of San Joaquin River in excess of said seven hundred and sixty cubic feet per second, and, that too, without regard to the rights of those riparian owners whose rights had been acquired by prescription by the plaintiff.”</p>

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

<p>Justice’s Court—Record on Appeal—Question of Law — When Statement Unnecessary.—A statement is not necessarily an essential part of the record on appeal to the superior court from the justice’s court on questions of law, and if the point upon which the appellant depends may be shown by the docket a statement would-be useless; and where there is no such statement filed the record before the superior court is a copy of the docket and the motions and notices, if any, described in section 975 of the Code of Civil Procedure.</p> <p>Id.—Dismissal of Appeal—Writ of Mandate.-—-In such a case a writ of mandate will issue to compel the superior court to set aside and vacate an order of dismissal made by it upon the ground that no statement was ever prepared or filed, and to compel it to proceed with the trial and determination of the appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. P. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court-.</p> <p>A. L. Frick, and P. M. Walsh, for Appellant.</p>

<p>The facts are stated in the opinion of the court-.</p> <p>Henry L. Ford, and A. Q. Lomba, for Appellants.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Alameda and from an order refusing a new trial. Everett J. Brown, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Vendor and Purchaser—Option to Purchase Land—Sale to Third Party by Owner—When Action por Damages Does not Lie.— An action for damages based upon an option to purchase land cannot be maintained by the holder of the option against the owner because the latter during the life of the option himself sold the land to the party for whom the holder of the option claimed to have procured it, where such owner had no notice that the purchaser was the party with whom the holder of the option was negotiating, and such sale was made subject to such option, and the holder of the option at no time during its duration exercised his right to purchase or tendered any money in payment thereof, or otherwise signifying his acceptance of the proposed offer.</p> <p>Id.—Bight op Owner to Sell.—In such a case, subject to plaintiff’s right to purchase the land under the terms of his option, defendants, without notice to plaintiff, had the right to sell to whomever they pleased, and in no event was plaintiff in a position to complain without a showing that within the life of the option he tendered the amount specified therein in compliance with its terms or otherwise signifying his acceptance of the proposed offer.</p> <p>Id.—Unilateral Contract—Lack op Consideration—Bight to Withdraw—Becital op Consideration in Option—-Evidence.—In such a case, where no consideration was paid for the option, it constituted a unilateral contract which defendants might repudiate at any time before the exercise of the right to purchase by the holder thereof, and the recital of a consideration in the option- itself did not preclude an inquiry as to whether or not an actual consideration was paid therefor and it was error to exclude evidence offered for the purpose of showing that there was no consideration.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Charles Munroe, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Percy V. Long, City Attorney, and Harry G. McKannay, Assistant City Attorney, for Appellants.</p>

<p>Landlord and Tenant—Eviction—Action por Damages—Motion fob 'New Trial—Motion to Dismiss—Service op Notice op Intention—Insufficient Notice op Entry op Judgment.—In this action for damages by a tenant against her landlord for an alleged eviction from the leased premises it is held that, as it does not necessarily appear from the record that the defendant had such notice of entry of judgment as would satisfy the statute, the appellate court should hear the appeal from the order denying a motion for a new trial, to which plaintiff objected on the ground that the notice of intention was not given in time.</p> <p>Id.—Eviction—Cutting opp Water Supply—Excluding Light and Air prom Leased Premises.—In such a case the cutting off of the water connections with the leased premises and the boarding up and obstruction of a certain porch and of certain windows in the rear of the premises by which the leased premises received necessary light and air over other lands of the defendant, which the jury found rendered the premises untenantable for use as a store or place of abode, and compelled the plaintiff to vacate the premises, constituted an eviction by the landlord for which the tenant was entitled to recover damages.</p> <p>Id.—Water and Light—Bights op Tenant.—The fact that the water pipes and the water service were in place and in use in connection with the premises at the time of the lease made them an appurtenant to the premises, to the continued use of which plaintiff was beneficially entitled during her term without charge or cost to her in the absence of a provision to the contrary in the lease; and the defendant’s interference with the plaintiff’s right to receive light and air in the rear of the premises were in violation of her contractual rights as the lessee of the premises such as would suffice to work an eviction.</p> <p>Id.—Motion for Nonsuit—Reopening Case—Proof op Value op Business.—In such' a case there was no error in reopening the case after motion for nonsuit, and in permitting the plaintiff to prove the value of a grocery business lost by reason of her eviction.</p> <p>Id.—Evidence—Value of Business.—In such a ease the court did not err in permitting the plaintiff to testify as to the value of her business, based upon its average daily profits, where plaintiff owned, conducted, and attended to the business herself, and personally kept all such accounts of its purchases and sales as were kept, and she testified to the matter of her daily profits therefrom from her own knowledge and not merely as a matter of guess or opinion, such evidence being perfectly competent to show her damage suffered in the destruction of her business as a result of her eviction.</p> <p>Id.—Parties—Husband and Wipe—Separate Property op Wipe.—In such a case the objection that the business conducted by one of the plaintiffs upon the property which she had individually leased was community property, for the loss of which she was not entitled to recover, has no merit, where the whole trend of the evidence goes to show that said plaintiff was acting throughout in the capacity of one dealing with her own separate property, and there was not only no showing that the husband had any community interest in the grocery business, but the strong inference arises that it was the separate property of the wife, and it further appearing that the husband was made a party plaintiff with her and the judgment was in favor of both. All that the defendant would be entitled to would be protection against another action by the husband in relation to the property; and the joining of the husband in the action and in the judgment gives the defendant that protection.</p>

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

<p>Public Officers—Bemoval of City Marshal—Imposition of Fine— Begularity of Proceeding—Prohibition.—Where a city marshal was by decree of court, pursuant to the provisions of section 772 of the Penal Code, deprived of his office and adjudged to pay a fine to one at whose relation the accusation was filed, in a proceeding for a writ of prohibition directed to the board of trustees of the city and its members, prohibiting it and them from proceeding to fill the vacancy in the office and asking that the judgment in favor of the relator be set aside, the denial by the supreme court of a writ of review, since an appeal does not lie, (168 Cal. 531), must be deemed an adjudication of the regularity of the proceeding in which the decree was rendered.</p> <p>Id.—Finality of Decree Declaring Vacancy—Power to Appoint.— Tn such a ease where no attack is made upon the final decree adjudging that petitioner be deprived of his office, it follows that a vacancy exists in the office, which vacancy the board of trustees is empowered to fill by appointment.</p> <p>Id.—Ministerial Act—Prohibition.—In such a case the act of appointing a successor to the petitioner, whether ministerial or executive, at all events is not judicial in its character; and as the function of the writ of prohibition is to prohibit the doing of judicial acts, not ministerial acts, where the board or tribunal is proceeding without or in excess of jurisdiction, prohibition will not lie.</p> <p>Id.—Parties—Denial of Writ.—Among other reasons for denying such writ is the fact that neither the court which rendered the decree, nor the relator, the judgment in favor of whom it is sought to have set aside, was made a party to the proceeding.</p>

<p>Action for Damages for Death—Negligence—Eight of Administrator to Sue.—That an action for death is statutory which the personal representative of the deceased is permitted to bring merely as a statutory trustee for the benefit of heirs and that in the absence of heirs no action lies, is well settled.</p> <p>Id.—Insufficiency of Complaint—Failure to Allege Existence of Heirs.—It is equally well settled that the existence of heirs is an essential element in a cause of action for death and it must be alleged in the complaint, failing in which no cause of action is stated.</p> <p>Ib.—Failure of Complaint to Show Heirs—Trial Without Objection to Evidence—Waiver.—In such case, although the complaint failed to show the existence of any heirs, where the plaintiff testified, without objection, that the deceased was her son; that she had^ a husband, the father of the deceased; that deceased, at the time of his death was contributing his earnings to the support of his parents and for several years prior thereto had been doing so, and many other facts as to his relationship to the family, and the trial proceeded in all respects as though the pleadings sufficiently presented the issue as to there being heirs and precisely as it would had the complaint contained the omitted allegation, the omission of this allegation of the complaint was cured.</p> <p>Id.—General Demurrer—Insufficiency of to Apprise Plaintiff of Defect.—In such a case a general demurrer to the complaint was insufficient to apprise plaintiff of the defect and relieve defendant from the necessity of objecting to the evidence.</p> <p>Id.—Collision Between Bicycle Eider and Delivery Wag*on—Duty of Driver of Wagon to Turn to the Eight of Center of Highway.—In such an action for damages for the death of the plaintiff’s intestate while riding a bicycle along a public street from being thrown beneath the wheels of a heavily loaded wagon caused by a collision between the bicycle and a delivery wagon traveling in an opposite direction and on the wrong side of the street, there was no error in instructing the jury that “if the driver of the delivery wagon could have turned seasonably to the right of the center of the highway so as to pass the other wagon without interference, and did not do so, he should have done so, so far as the rights of the decedent were concerned, and was guilty of negligence toward deceased, if said deceased was then riding on the right of the center of the road,” and that “The rule that when vehicles meet, the driver of each must turn seasonably to the right of the center of the highway, applies when a wagon meets a bicycle. If the deceased was riding in front of the Ransome-Crummey wagon, and the driver of the Goldberg-Bowen wagon could have turned to the right of the center of the highway when he met him, and did not do so, that in itdelf was negligence on the part of said driver.” Such instructions were not open to the objection that they permitted of no excuse or extenuation by defendant, and in effect told the jury to find the issue of negligence against the defendant, it not being denied that the defendant’s wagon was on the left of the center of the street.</p> <p>Id.—Vehicles Meeting on Road—Duty of Drivers.—Such instructions should be construed as saying (what the statute lays down as the rule) that when vehicles meet, the drivers of each must turn seasonably to the right of the center of the highway, so as to pass without interference, and by the instructions the court did not intend to say that the failure of defendant’s driver to turn to the right determined all questions of negligence against it.</p> <p>Id.—Violation of Statute—Negligence.—In such a case an instruction that a violation of a statutory requirement constitutes negligence is correct.</p> <p>Id.—Wagons Traveling on the Same Side of the Street—Meeting as Defined by Statute—Gross Negligence.—In such a ease where defendant, Goldberg-Bowen Co.’s wagon was traveling on the same side of the street at a fast gait, in close proximity to and facing the Ransome-Crummey wagon and the bicycle ridden by the deceased, the vehicles were “meeting” in the sense of the statute; and where the circumstances were such that the jury were authorized to believe that defendant Goldberg-Bowen Co.’s driver saw deceased and the Ransome-Crummey wagon as he approached them, it was gross negligence for him not to have seen him, he being directly in front of them and on the side of the street which called for vigilance and circumspection on his part.</p> <p>Id.—When Instructions not Conflicting.-—In such a case there is no necessary conflict between said instructions and instructions proposed "by the defendant which informed the jury that the mere fact of passing on the left did not constitute negligence, that a driver may use any part of the street when necessary, and, whether on the one side or the other, the question of negligence depends upon the circumstances, as the question was still left for the jury whether or not the driver could have turned to the right or was negligent in not turning to the right or in failing to stop when he saw the position of the deceased.</p> <p>Id.—Proximate Cause of Injury.—In such a case the instructions were not open to the objection that they did not take into account that the question of the proximate cause of the injury was involved, where full instructions upon the question of defendant’s alleged negligence being the proximate cause of the injury were given, as no single instruction could embody all the law.</p> <p>Id.—Right to Presume Wagon Would Pass to the East.—There was no error in such a case in instructing the jury that “if the deceased was behind the Ransome-Crummey wagon and saw the Goldberg-Bowen wagon coming, before it reached the Ransome-Crummey wagon, he had a right to presume that the Goldberg-Bowen wagon would pass to the east of the Ransome-Crummey wagon, provided it was possible for it to do so; and if he himself attempted to pass the Ransome-Crummey wagon on the west, he is not chargeable with negligence unless he knew, or should have known, that the driver of the Goldberg-Bowen wagon would not or could not turn to the right. And if deceased was in front of the Ransome-Crummey horses, and saw the Goldberg-Bowen wagon coming, he had a right to presume that the Goldberg-Bowen wagon would pass to the east of him.</p> <p>Id.—Imminent Danger—Determination of Course to Pursue.—In such a case there was no error in instructing the jury that “When a person is in imminent danger, he is not called upon to exercise that intelligence and judgment he would be expected to exercise were-he not in danger. So if a party in imminent danger has two ways open to him, but has not the time to stop and investigate, and determine which- is the right or safe way, and which is the wrong or unsafe way, his choosing the latter is not, under the circumstances, negligence on his part. So, if you should find from the evidence in the case that deceased found himself in imminent danger or had reasonable ground to believe that he was in such danger, and had not time to stop and consider and determine the better course to pursue, then you are instructed that his choosing to turn one way instead of the other in such emergency was not negligence on his part even though in so doing he may have ridden right against the approaching team or wagon instead of away from it.”</p> <p>Id.—Placing Self in Danger—Right of Recovery—Proximate Cause of Injury—Question for Jury.—Although the deceased might have been in a dangerous position through his own fault, the rule in this state does not preclude a recovery on his part, it being for the jury to decide, in view of all the circumstances, at whose door must rest the charge of the proximate cause for the injury.</p> <p>Id.—Allegation of Contributory Negligence—Negligence Presupposed—Instructions—Last Clear Chance Doctrine.—In such a case where the defendant alleged contributory negligence of the deceased this presupposed negligence on the defendant’s part; and it is held that the instructions of the court upon the last clear chance doctrine were within the issues made by the pleadings.</p> <p>Id.—Verdict—When not Excessive.—It is held that under the facts of the present case a verdict of ten thousand dollars was not excessive.</p>

<p>Justices’ Courts—Failure of Plaintiff to Appear at Trial—Judgment for Defendant—Eight of Appeal.—Under section 884 of the Code of Civil Procedure, relating to trials in justices’ courts, •where the plaintiff fails to appear at the time regularly set for the trial, the defendant has the right to proceed with the trial until, as provided in section 873 of the Code of Civil Procedure, all the issues are disposed of, and as the judgment in such case constitutes a bar to another action based upon the same claim, the only remedy for the plaintiff against a judgment for the defendant is by appeal to the superior court upon issues of both law and fact and a trial de novo; and a judgment of the superior court in favor of the defendant after such appeal and trial will not be annulled in a proceeding for a writ of review upon the ground that the superior court' had no jurisdiction to entertain the appeal under §uch circumstances.</p> <p>APPLICATION for Writ of Review originally made in the District Court of Appeals for the Second Appellate District to annul a judgment of the Superior Court of Los Angeles County.</p>

<p>Cbiminal Law—Perjury—Indictment—When not Subject to Attack on Habeas Corpus.—In a prosecution for perjury an indictment charging that the perjury was committed in giving, under oath, false answers to questions propounded to the defendant by the grand jury, the subject under investigation by said body at the time being “Prostitution in the city of Bakersfield,” is not subject to attack on habeas eorpm on the ground that it does not state a public offense, because prostitution being a misdemeanor it was not a subject concerning which the grand jury was empowered to investigate, and hence that perjury could not be predicated on the answers of the witness. As the indictment was susceptible of amendment by striking out the words "Prostitution in the city of Bakersfield,” and substituting therefor the word “pandering,” the latter being an offense which the grand jury might properly investigate, it could not foe said that the answers given foy the witness were immaterial.</p> <p>Id.—Sufficiency of Indictment—Habeas Corpus.—The true rule is that where an indictment purports or attempts to state an offense of a kind of which the court assuming to proceed has jurisdiction, the question whether the facts charged are sufficient to constitute an offense of that kind will not foe examined into on habeas corpus.</p>

<p>The facts are stated in the opinion of the court.</p> <p>B. F. Thomas, and A. B. Bigler, for Appellant.</p>

<p>Husband and Wipe—Furnishing Necessaries to Minor prom Community Property-—Action by Wipe por—Nonsuit.—A married woman living with her husband has no cause of action to recover the reasonable value of necessaries of life furnished a minor while not under the care of its parents or guardian, and which minor was living in the home of the plaintiff and her husband and was being supplied with such necessaries out of their community property; and in such an action by the wife alone a nonsuit was properly granted.</p> <p>Id.—Parties—Bight op Husband to Sue—Community Property.— Such a case is not one of defect or nonjoinder of parties plaintiff, and the sole right of recovery in such a transaction is in the husband, he being in full control of the community property and alone having the original right to sue.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting a motion for a change of venue. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Grand Larceny—Sufficiency op Evidence.—In a prosecution for grand larceny for having stolen a sorrel mare the evidence was sufficient to sustain a conviction where it showed the possession of the stolen property a few days after the theft by defendant and another who were jointly charged with the crime, the flight of the accused, they having been arrested one hundred and fifty miles from the scene of the offense, their presence in the immediate neighborhood at or near the time the animal was stolen, their abandonment near the place from which said sorrel mare had been taken, of an emaciated and exhausted horse which they had been driving, and contradictory and unreasonable explanations made by the defendants of their possession of the mare and of their peregrinations through the country.</p> <p>Id.—Argument—Absence op Misconduct.—It is held in this case that the record does not disclose anything in the address of the district attorney to the jury outside of the legitimate range of argument or to which exception could be justly taken.</p> <p>Id.—Interviewing Witnesses by Dependant.—In such a case the law does not confer upon the defendant the right to demand that the sheriff conduct him to certain parts of the state that he may interview parties whose names he does not know, but by whom he expects to prove an alibi. *</p> <p>Id.—Evidence—'Cross-examination—Impeachment op Dependant— Examination prom Written Transcript op Interview With Dependant—Section 2052 Code op Crviu Procedure.—In such a case where the district attorney on cross-examination of defendant, in laying the foundation for impeachment, read from a transcript of notes taken by a stenographer in an interview of the defendants by the district attorney after their arrest, in the presence of the sheriff and the stenographer, the district attorney was not required under section 2052 of the Code of Civil Procedure to exhibit the transcript to the witness, he never having had anything to do with the execution of it or having seen it before; and the refusal to permit the witness to inspect the transcript in such a case, even if technically erroneous, could not have resulted in prejudice to appellant, where there is nothing to indicate that the district attorney did not correctly read the transcript, or that he refused defendant’s counsel the right to inspect it, or that the cross-examination in reference to it was at all abridged.</p>

<p>Appeals—Appeal prom Judgment—Time fob.—An appeal from a judgment cannot be considered where it is not taken within six months from the entry of the judgment.</p> <p>Nonsuit—When not to be Granted.—A motion for a nonsuit may not be granted if there is ■ any evidence tending to sustain plaintiff’s cause of action.</p> <p>Promissory Note — Accommodation Maker — Action Against Comaker for Amount Paid on Note—Evidence—Presumption.— In an action by the assignee of one of the joint makers of a promissory note against the comaker to recover the amount paid on the note by the former, where it appears that the defendant first applied to plaintiff’s assignor for a loan in order to obtain sufficient money to purchase the interest of his partner in the, drug business, but that she did not have the money and thereupon requested the payee of the note to make the loan, and volunteered to sign the note for the same, and that defendant paid part of the note, but when he ceased paying plaintiff’s assignor, upon demand, paid the sum sued for which was credited on the note, and it is further shown that defendant in a conversation had admitted the indebtedness to plaintiff’s assignor, such evidence tended to overcome the presumption, if any, arising from the fact that plaintiff’s assignor, as the apparent maker of a joint and several note, received and shared equally with the comaker in the consideration given for the note, and was sufficient to make out a prima facie case for the plaintiff, and a motion for nonsuit was properly denied.</p> <p>Id.—Nonsuit—Waiver of.—In such a case where the defendant when testifying as a witness in his own behalf admitted that he had personally received for his own use and benefit the full amount of the consideration for the note, he thereby supplied any omission in plaintiff’s case and waived his motion for a nonsuit.</p> <p>Id.—Evidence—Uncontradicted Testimony—Credibility of for Court to Determine.—In such a case the fact that the defendant’s testimony that about a week after the execution of the note, plaintiff’s assignor borrowed from him the sum of four hundred dollars, and that when she paid the four hundred dollars in suit to the owner of the note it was paid for and on account of the defendant and with the intent and purpose of .satisfying her individual indebtedness to him, stood uncontradicted by any direct evidence, was not of itself sufficient to compel the trial court to find in favor of the defendant, as it was still the right and duty of the court to determine the credit and weight.to be given such testimony when considered in conjunction with the facts and circumstances of the transaction as shown by the evidence adduced upon the whole case.</p> <p>Id.—Pleading — Statute of Limitations ■— Failure to Plead.—In such a case where plaintiff’s complaint in effect alleged a cause of action for money had and received, which upon its face showed that it was barred by the statute of limitations, and then alleged that the defendant .had renewed the indebtedness by a written promise to pay the same, but the evidence was insufficient to show a new promise, defendant having failed to plead the statute of limitations either by a demurrer or by answer, the complaint upon the original indebtedness must be held to be sufficient to support the findings and judgment.</p>

<p>Landlord and Tenant—Nonpayment op Eent—Notice of Intention to Terminate Lease and Ee-enter Premises—When Lease not Terminated by—Unlawful Detainer.—A notice by a lessor to his tenant, pursuant to the terms of the lease, declaring that the former, for nonpayment of the rent, elected to consider the lease null and void and that he would at the expiration of ten days, re-enter the premises, does not prevent the landlord from giving the statutory three days’ notice to quit, and maintaining an action of unlawful detainer to recover the premises.</p> <p>Id.—Pleading—Notice to Quit—Sufficiency op.'—In such a case the contention that the three days’ notice to quit was insufficient, as no amount of rent was alleged to have been specified in the notice, cannot be maintained where the complaint stated the amount of rent due and alleged that demand was made for the payment thereof, and a copy of the notice was attached to and made a part of the complaint.</p> <p>Id.—Lease op Eeal and Personal Property—Breach op Covenant— Unlawful Detainer.—The terms of section 1161 of the Code of Civil Procedure are broad enough to authorize' the maintaining an action of unlawful detainer where the lease demises both real and personal property consisting of a furnished hotel.</p>

<p>Landlord and Tenant—Construction of Lease—Intention of Parties.—A lease, like every other contract, must be considered and construed in its entirety so as to give effect if possible to the mutual and manifest intention of the parties (Giv. Code, sec. 1636), and in so doing its several clauses and covenants must, if not absolutely repugnant, be considered conjunctively (Civ. Code, see. 1642).</p> <p>Id.—Covenant to Erect Improvements in Lieu of Bent—Construction of.-—-Where a lease -of real property required that the lessee should, in lieu of the payment of the rent reserved for the first year of a three year term, improve the leased premises, “by moving and erecting thereon such improvements as it shall see fit, to revert to the lessor as hereinafter provided,” and it was further- provided that if at any time during the term the lessee should elect to vacate the premises it might, upon the payment of a certain amount, do so and the lease should thereupon terminate, but as a condition precedent to the exercise of such option the lessee should have erected upon the premises improvements of the value of three hundred and sixty dollars, to revert to the lessor, the lease contemplated that the lessee would be required to erect on the premises improvements of a certain value but of such kind or character as it saw fit, which should •be compensation to the lessor for the first year’s rent; and the failure to do so was a breach of the lease giving the lessor a cause of action for damages.</p> <p>Id.—Evidence—Conversation at Time of Execution of Lease—Value of Improvements—Oral Evidence Inadmissible.—In such a case where there was no ambiguity in the lease as to the intention of the parties upon the subject of what the value of the improvements should be, when the lease was construed in its entirety, oral testimony as to the conversations -between the parties at the time of its execution was inadmissible and rightfully rejected upon the ground that it was an attempt to vary the terms' of a written- instrument by paroL</p> <p>Id.—Ambiguous Covenant—-Construction -in Favor of Lessor.—While the covenant concerning the placing and erection of improvements upon the leased premises in such a case standing alone was undoubtedly ambiguous, that construction must be given to it which will be most favorable to the party in whose favor it was made, that is, the lessor.</p> <p>Id.—Contracts—Bulb of Construction.—If the terms of a promise are in any respect ambiguous or uncertain, they must be interpreted in keeping with the sense in which the promisor believed that the promisee understood them, and in the presence of uncertainty the language of a contract must be interpreted more strongly against the party who 'caused the uncertainty to exist, who, in such a case, is presumed to be the promisor.</p> <p>Id.—Waste—Destruction of Improvements—Use and Wear—Pleading.-—In an action for damages by a lessor against his lessee for the destruction of improvements upon the demised premises it is not necessary for the plaintiff to allege affirmatively that the destruction “was not caused by reasonable use and wear and damage by the elements,” such matter, if it existed, being purely a matter of defense.</p> <p>Id.—Issues—Damage to Improvements—Findings.—In such a case the question whether or not the alleged damage to the improvements was due to depreciation as a result of use and the elements not being put in issue by the pleadings, and the action not being defended upon any such theory, the trial court was not required to find what portion, if any, of the damage to improvements was the result of “the reasonable use and wear and damage by the elements.”</p> <p>Id.—Findings—When Conclusive.—In such a case where the findings fixing the damage to plaintiff for the destruction of improvements rest upon conflicting evidence, it will not be disturbed on appeal.</p> <p>Id.—Erection of Improvements—Time for—Demand—Pleading and Proof.—In such a case although it is not clear from the terms of the lease that the parties contemplated that the improvements in question should be erected upon the leased premises during the first year of the lease, where it is reasonably certain from the terms of the lease as a whole that it was the intention of the parties that such improvements should be erected in lieu of the first year’s rental sometime before the expiration of the lease, which covenant was not complied with during the life of the lease, the lessor was not required to plead or prove a demand upon the defendant to comply with the terms of the covenant. When the time has come for the doing of an act which it is the duty of the defendant to do unconditionally no demand other than the suit is necessary.</p>

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

<p>Public Officers—State Wharfinger—Discharge for Violation of Bule—Mandamus.—There was no abuse of discretion by the state board of harbor commissioners in discharging appellant from the position of wharfinger for violating one of its rules providing that each wharfinger must be on duty every day, legal holidays excepted, from eight o’clock a. m. until five o’clock p. m., where the findings of the board were based upon the testimony of witnesses which sufficiently supported the charge and showed something more than a mere technical and unintentional disregard of official duty on the part of appellant; and in such a case the trial court was justified in refusing a writ of mandate to review or revise the order of dismissal.</p> <p>Id.—Salary—Mandamus.-—In such a case a writ of mandate should not issue to compel the respondents to allow and pay appellant’s salary pending the hearing and determination of the power of the respondents to remove him from office.</p>

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

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

<p>Criminal Law—Lascivious Act upon Boy—Instructions—Accomplice.—In a prosecution under section 288 of the Penal Code for lewd and lascivious conduct with a boy under the age of fourteen, there was no error in refusing to instruct the jury at the defendant’s request that “a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof” or “that the prosecuting witness is an accomplice in this case, if you believe from the evidence that he consented to the act charged,” where there was no showing made to rebut the presumption that the complaining witness was incapable of committing the crime or that he understood the wrongfulness of the act and consented to its perpetration, as, in the absence of such evidence, he could not be held to be an accomplice.</p> <p>Id.—Persons Capable op Committing Crime—Children.—The statute defining persons who are capable of committing crimes excepts children under the age of fourteen, in the absence of clear proof that at the time of the act charged against them they knew its wrongfulness.</p> <p>Id.—Evidence—Expert Testimony.—In such a case the question as to what effect such acts charged against the defendant would have in “arousing the feelings or gratifying the lust or passions or sexual desires of the man in the case,” is addressed to a matter of expert testimony and is admissible.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Denson, Cooley & Denson, for Appellant.</p> <p>Dudley D. Sales, and Harold H. Maundrell, for Respondents.</p>

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

<p>Contracts—Sale op Personal Property—Broker’s Commission— Oral Agreement por—Construction op Section 1624 CiyiL Code. An oral agreement to pay a broker a certain commission for his services in negotiating a sale of personal property in the form of street improvement contracts does not come within the provisions of section 1624 of the Civil Code and is valid; and where the seller at the time the contract of employment was made expressed the desire to sell his contracts for money, or to exchange them for any kind of property acceptable to him, the circumstance that he subsequently accepted real estate as a consideration for the contracts did not change the terms or nature of the broker’s employment from that of selling personal property to one of purchasing real estate.</p>

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

<p>Justices’ Court Appeals—Dismissal—Construction op Sections 583 and 890 Code Civil Procedure.—Section 583 of the Code of Civil Procedure does not apply to actions pending in the superior court on appeal thereto upon questions of fact from the justices’ court; and the right of the superior court to dismiss such an action for failure to prosecute it with reasonable diligence does not depend upon either subdivision 1 of section 890 of the Code of Civil Procedure or upon section 583 thereof, but it is a matter within its inherent power limited only by a sound discretion.</p> <p>Id.—Dismissal op Action by Justices’ Court—Lack op Diligence— Section 890 Code Civil Procedure.—Section 890 of the Code of Civil Procedure provides when a justices’ court may dismiss an action pending before it for failure to prosecute the same to judgment and makes the granting or denying of the motion a matter of discretion. This section applies to an action pending in the justices’ court, and not to an appeal pending in the superior court in such an action.</p> <p>Id.—Dismissal by Superior Court—Section 583 Code Civil Procedure. Section 583 of the Code of Civil Procedure, which provides “any action heretofore or hereafter commenced shall be dismissed 6y the court in which the same shall have been commenced, or to which it may be transferred on motion of the defendant, after due notice to the plaintiff, or by the court of its own motion, unless such action is brought to trial within five years after the defendant has filed his answer,” is inapplicable to a justices’ court appeal, as such action is not commenced in the superior court, nor can it be regarded as having been “transferred” thereto on “motion of the defendant.”</p>

<p>Contracts—Purchase op Horses—Action to Rescind—Fraud—Pleading.—In an action to rescind a contract for the purchase of a team of horses the complaint sufficiently alleges an intent to defraud where it avers that the defendant willfully, falsely, fraudulently, and deceitfully stated and represented to the plaintiff the said team of horses, of which he was then and there possessed, “to be a well matched team, to work together under harness for wagon and general farm work, not balky, no bad habits, physically sound and without fault, blemish, disorder or disease,” which representations were false in essential particulars a.nd known to be so by the defendant, and upon which plaintiff relied.</p> <p>Id.—Breach op Warranty.—Such complaint is also sufficient as presenting an action to rescind the contract for a breach of an essential warranty as to the quality of the property sold.</p> <p>Id.—Executed Contract op Sale—Warranties as a Condition—Section 1786 Civil Code—Rescission—Intent to Deceive—When Immaterial.—Whether the parties to an executed contract of sale intended that its warranties should operate as a condition may be determined from the essential nature of the warranties; and if the false representations as to the quality of the property go to the essence of it value, and render it useless, and hence valueless, to its purchaser, it necessarily follows that the warranty was an essential condition of the sale, and upon discovery of its breach the purchaser has a right to rescind his contract under section 1786 of the Civil Code; and in such a ease whether the defendant knew or did not know the representations to be false, or did or^did not intend to commit fraud in making them is immaterial, and it is not neeessary to either plead or prove an intent to deceive in making such representations.</p> <p>Id.—Findings—When Within Issues.—In such a case where the findings set forth specifically the representations made, and also speeifi cally recite the elements of. their falsity, and find that these representations were willfully, falsely, and fraudulently made they sufficiently respond to the issue of fraud.</p>

John Hunt, Judge. The facts are stated in the opinion of the court. Otto tum Suden, and tum Suden & tum Suden, for Appellant.

<p>Criminal Law—Murder—Self Defense—Right to Stand Ground— Instructions.—In a prosecution for murder, where the testimony introduced on behalf of the defendant tended to show that the deceased was the aggressor and made an unlawful assault upon the defendant of such a character as to put him as a reasonable man in fear of his life or of great bodily harm, the jury should have been instructed as requested that if they believed this evidence the defendant was not bound to retreat, but that he had a lawful right ■to stand his ground.</p> <p>Id.—When Party not Bound to Flee—Erroneous Instruction.—In such a case it was prejudicial error to instruct the jury that: “If ho (defendant) could have withdrawn from the danger it was his duty to retreat. Between his duty to flee and his right to kill, he must fly, or, as the books have it, he must retreat to the wall.”</p> <p>Id.—Evidence—Cross-examination—Hostility of Witness.—In such a case it is elementary that the defendant has the right on cross-examination of the prosecution’s witness to ask questions intended to show hostility of the witness toward the defendant, and it was error to sustain an objection to such questions based upon the ground that the questions assumed facts not in evidence where such facts were wholly immaterial to the issues; nor is an objection to such questions that they were impeaching questions and no foundation was laid for them maintainable where it does not appear that the questions were so intended and the witness might have anwered them in such a way as to show animus toward defendant.</p>

<p>Criminal Law—IMvrder—Reasonable Doubt—-Instructions.—In a prosecution for murder, where the proof of the charge did not rest wholly upon circumstantial evidence, but there was the testimony of an eye-witness as to the killing, and the court gave the long approved instruction upon the question of reasonable doubt, the mere fact that the defendant’s counsel desired an elaboration of the general principle announced therein, furnishes no reason for saying that the court committed prejudicial error in refusing to give the additional instruction.</p> <p>Id.—Alleged Misconduct of Judge—Reference to Witness—When Error Cured.—Conceding that there was error on the part of the court in referring to a witness in such a case, which might be taken as indicating that in the judge’s mind weight was to be given to the testimony of the witness referred to, the error was cured where the court, upon the objection of defendant’s counsel, set aside his ruling upon the objection and directly told the jury that the remarks made by the court were not for their consideration; and the conduct of the judge did not amount to prejudicial error.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. A. J. Buckles, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Marshall B. Woodworth, Howard Harron, and Gerald C. Halsey, for Appellant.</p>

<p>Criminal Law—Rape—Motion to Dismiss Information—Failure to Bring Action to Trial Within Sixty Days—Continuance at Defendant’s Request—Waiver.—In this prosecution for rape a motion to dismiss the information upon the ground that the defendant had not been brought to trial within sixty days after his first trial, which had resulted in a disagreement of the jury, was properly denied, where the court offered to re-set the second trial within sixty days after the first trial, but defendant’s counsel, not being satisfied with the date suggested, asked that it be fixed for some other date because he would be engaged in the trial of another action at that time, and the court fixed a date beyond the sixty day period which was the first date upon which defendant’s counsel would be disengaged and could proceed.</p> <p>Id.—Witnesses—.Competency of Defendant as a Witness—When Refusal of Instruction Proper.—In such a ease there was no error in refusing to instruct the jury at defendant’s request, that it was legitimate and proper for a defendant to be sworn as a witness and that he was a competent witness in his own behalf, where the defendant did testify, and the court, without singling out the defendant for special comment, gave a general instruction to the jury furnishing to it the law for its guidance in determining the effect to be given the testimony of witnesses.</p>

<p>Criminal Law—Forgery of Indorsement of Check—Sufficiency of Evidence.—In this prosecution for forgery of an indorsement on a cheek it is held that the evidence was amply sufficient to sustain a verdict of conviction.</p> <p>Id.—Delivery of Forged Instrument to Payee Unnecessary.—It is not essential to such a crime that the cheek should have actually reached the hands of the person for whose benefit it was issued before the forging of the indorsement thereon.</p> <p>Id.—Validity of Check.—In such a ease the check being one which, if it had been received by the payee, might have been used by him and the sum of money represented thereby have been collected from the bank, it was in no sense a nudum pactum.</p> <p>Id.—Evidence—Failure to Bead Check to Jury—When Immaterial. In such a case where the cheek was offered and received in evidence and its contents were pointed out and referred to by witnesses and counsel on both sides, it cannot be maintained that the contents of the cheek were not fully in evidence before the jury even though it was not read to the jury when offered in evidence as an exhibit.</p> <p>Id.—Indorsement—Pleading.—In such a ease whether all the indorsements appearing upon the back of the cheek, particularly one in Japanese, were set up in the information, is immaterial, where the charge against the defendant was that he forged the indorsement of the payee.</p> <p>Id.—Confessions—Admissibility of.—It is held in this case that the evidence was sufficient to warrant the trial court in determining that certain confessions were not made under the influence of coercion or improper inducements.</p>

<p>Contracts—Nonperformance Within Provided Time—Rescission— Due Performance Under Second Contract—Nonliability Under First Contract.—Where the assignee of a contract for the doing of certain work fails to perform the same within the time specified and notice of rescission is given, the rescinding party is not answerable to such assignee for any compensation agreed to be made for such work under a second contract made with the assignor of the first contract which has been duly performed.</p>

<p>APPLICATION for a Writ of Review originally made in the District Court of Appeal for the Second Appellate District of the State of California to review an order of the Superior Court permitting an amendment to be made to a complaint upon the trial of a Justice’s Court appeal.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Harriman, Ryckman & Tuttle, and Henry W. Nisbet, for Appellant.</p> <p>U. S. Webb, Attorney-General, George Beebe, Deputy Attorney- General, and Robert Mitchell, for Respondent.</p>

<p>Findings—Nonresident Judge—Place of Signing—Rule Unchanged by Code Amendment.—A superior judge who presides at the trial of an action outside of his county has the power to settle and sign the findings in the county of his residence, and the amendment of 1913 to section 634 of the Code of Civil Procedure has not changed the rule.</p>

<p>Appeals—Order Vacating Order Stating Execution—Insufficient Record.—An appeal from an order vacating an order staying execution taken under the provisions of sections 953a, 953b, and 953c of the Code of Civil Procedure, cannot be considered where the typewritten transcript is not certified by the judge of the trial court.</p>

<p>Criminal Law—Obtaining Monet Under False Pretenses'—Misrepresentation as to Ownership of Contracts—Pleading—Lack of Causal Connection Between Payment of Monet and Misrepresentation •— Insufficient Information. — An information charging a defendant with the crime of obtaining money under false pretenses by falsely representing, knowing the same to be untrue, that he had contracts for the furnishing of orchestras for certain cafes and theaters, and that the person to whom such representations were made believed the same to be true and relying thereon paid and delivered to the defendant a certain sum of money, fails to state facts constituting a public offense, for the lack of causal connection between the payment of the money and the representation.</p> <p>Id.—False Pretense—What Constitutes.—A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value.</p>

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

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

<p>Contracts ■— Broker’s Commission ■— Exchange of Real Property — Execution Subsequent to Performance of Services—Statute of Frauds.—A written agreement to pay a real estate broker a certain sum of money for services in effecting an exchange of re'al property executed after the full performance of the services but before the exchange was fully consummated is valid under the statute of frauds, as the performance of such services constitutes a sufficient consideration to support the subsequent promise.</p> <p>Id.—Inability of Owner to Convey—Right of Broker to Commission.—A broker through whose efforts a binding contract is made between his principal and the owner of the land has earned his commission, notwithstanding the fact that the owner cannot make a "good -title to the land because of encumbrances not known to the broker, as the remedy of the principal is against the other party to the contract.</p>

<p>Contracts—Conditional Sale op Personal Property—Acceptance— Part Payment op Overdue Money — Extension op Time on Remainder—Effect of.—A vendor under a conditional sale contract of personal property does not waive his right to retake the property upon the vendee’s default by accepting partial payment of money which is overdue and extending the time for the payment of the remainder.</p> <p>Id.—Promise to Perform Accrued Obligation—Insufficient Consideration.—A promise to render what a person is already under legal obligation to render cannot amount to a sufficient consideration to support a new contract.</p>

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

<p>APPEAL from a judgment of the Superior Court of Tulare County. J. A. Allen, Judge.</p> <p>The facts are stated in;the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Napa County striking memorandum of costs from files. Henry C. Gesford, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action for Conversion—Levy upon Mortgaged Property—Failure to Pay Mortgage Debt —Director as Mortgagee. — In an action against a sheriff for the conversion of mortgaged personal property belonging to a corporation in seizing the same under attachment or execution against the mortgagor without first paying or tendering to the mortagee the amount of the mortgage debt, it is no defense that the mortgage was void by reason of the fact that the mortgagee was a director of the corporation and that she voted for the resolution authorizing the execution of the mortgage.</p> <p>Id. — Corporation Law — Contracts Between Corporation and Director.—A contract between a corporation and one of its directors by which such director obtains property or some other advantage to himself is not absolutely void- but is voidable at the instance of the corporation or its stockholders.</p> <p>Id.—Bankruptcy of Mortgagor—Delivery of Property to Trustee— Bights of Mortgagee.—Where the corporation mortgagor is adjudicated a bankrupt and the property is delivered by the officer to the trustee in -bankruptcy, the mortgagee is not bound to follow the property into the bankruptcy proceedings for the purpose of proving her claim and minimizing the damages, or for any other purpose', as the mortgage, being valid, the levy of the writ and taking possession of the property without compliance with the code provisions constitutes a conversion thereof.</p>

<p>Boundaries — Highway — Presumption as to Ownership. — Where a public street or highway is made a boundary of land the owner is presumed to own to the center of the street or highway, and a transfer of land bounded thereby passes the' title of the person whose estate is transferred to the soil of the highway in front of the center thereof, unless a different intent appears from the grant.</p> <p>Id.—Omission to Designate Highway as Boundary—Different Intent not Shown.—A different intent is not shown in a grant of land which in fact abuts upon a street or highway from the omission to designate the street or highway therein as the boundary.</p> <p>Id.—Case at Bar—Public Hoad as Boundary—Findings Supported by Evidence.—In this action to quiet title to a strip of land alleged to be bounded on the south by a county road, it is held that the court was justified from the evidence in finding that two certain deeds under which plaintiffs claim title were intended to make the said county road the southern boundary of the land, notwithstanding that such deeds made no mention of the county road or reference to it in any way as constituting such boundary.</p>

APPLICATION originally made in the District Court of Appeal for the Third Appellate District to prohibit the Superior Court of Humboldt County from proceeding with the trial of an action on appeal from a justice’s court. The facts are stated in the opinion of the court. John H. Dufur, and Henry L. Ford, for Petitioner. Pierce H. Ryan, for Respondents.

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

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial.' B. Y. Sargent, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Robert W. Harrison, and Richard C. Harrison, for Appellants.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. Benjamin F. Bledsoe, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Bums & Watkins, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of Nevada. County and from an' order denying a new trial. George L. Jones, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>C. P. McGlashan, and L. P. La Rue, for Appellant.</p>

<p>Irrigation Districts—Assessments—Petition by Voters for Election—Stay of Assessment—Construction of Bridgeford Act.— Under the "Bridgeford Act.” as amended in 1911 (Stats. 1897, p. 254; 1911, p. 1111), when a petition is filed signed by fifteen per cent of the qualified voters in an irrigation district petitioning for an election relative to the levying of an assessment levied by four-fifths of the members of the board of directors, the proposed levy of assessment is stayed until such election has been held and the requisite number of votes cast in favor of it; but there is nothing in the statute requiring the board of directors to call the election, and a failure to call it, if a sufficient petition therefore has been filed, is in substance an abandonment of the proceeding.</p> <p>Id.-—Mandamus-—When Lies.—A writ of mandamus can issue only to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; and as the law does not specially or at all enjoin the holding of the election in such a ease, even though the requisite number of qualified voters have petitioned therefor, a writ of mandamus will not lie to compel the board of directors of the irrigation district to call such election.</p> <p>Id.—Levying Assessment Without Election—Remedy to Prevent.— In such a ease, if a sufficient petition for an election be filed, and if, notwithstanding such petition, the board of directors of the district attempt to levy and collect the assessment without holding an election, there is a plain, speedy, and adequate remedy under the act, which provides that if the board of directors fail to bring action to determine the validity of the assessment, any assessment-payer, within thirty days after the levy,, may bring such action.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Emmett Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. J. Dole, for Appellants.</p>

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

<p>Contracts—Vendor and Vendee—Default of Purchaser—When Payments not ¡Recoverable.—Where the vendee in a contract for the purchase and sale of land without cause defaults in the payments called for by the contract after making the first payment, he is not entitled to recover the payment made, if the vendor has not defaulted, especially where the contract provides that upon default of the purchaser he shall forfeit payments previously made by him; and the fact that the owner of the legal title to the land enters into a contract to sell the land in question as a' part of a larger tract subject to the original contract did not constitute a rescission of this contract.</p>

APPLICATION originally made in the District Court of Appeal for the Second Appellate District for a Writ of Prohibition. The facts are stated in the opinion of the court.

<p>APPLICATION for a Writ of Review originally made in the District Court of Appeal for the Second Appellate District, to review the decision of the State Industrial Accident Commission on an application of an employee of a railroad company for compensation for injuries accidentally received by him.</p> <p>The facts are stated in the opinion of the court.</p> <p>George H. Johnson, and Johnson & Phipps, for Petitioner.</p>

<p>Criminal Law—Forgery—Pleading—Sufficiency of Information.— In a prosecution for the crime of forgery where the information charged that the defendant did for the wrongful purpose therein stated “willfully” make and forge the name of a certain person upon the instrument therein described, it was sufficient, although it did not state in terms that the name was forged “knowingly,” as the charge necessarily carried with it the meaning that the defendant knew he had no authority so to do.</p> <p>Id.—Intent—Willful Act.—The word “willful” alone does not imply an intent to violate law or to injure another; but when the word is used in connection with a specific statement showing a purpose to injure another, it implies a criminal intent, if the law makes the doing of that act with that purpose a criminal act.</p> <p>Id.—Evidence—Identity of ' Person—Sufficiency of Proof.—The identity of the person whose name was signed to the check in such a ease is sufficiently proven to make out a prima facie case by the testimony of a resident witness of that name who -testified that the check was not signed by him and that he did not authorize the defendant to sign Ms name thereto, notwithstanding the testimony of the defendant that he wrote the name by the permission of a person of the same name who resided at another place, without producing such person or making any other substantial corroboration.</p> <p>In.—Pronouncement of Judgment—Expiration of Statutory Time-Waiver of Objection.—Where there is a motion for a new trial or in arrest of judgment, and also an application for probation, the court has the discretionary power to extend the time for pronouncing judgment for twenty days beyond the original limit of five days after verdict, but in the absence of any request of the defendant for a further extension (no question of present insamty being involved), this is the extreme limit provided in the code; but in such a case the court had power to pronounce judgment twenty-seven days after the return of the verdict where the defendant made no objection at that time and did not ask for a new trial.</p>

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

<p>APPEAL from a judgment of the Superior Court of San Diego County. C. N. Andrews, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorce — Evidence — Limiting Cross-examination—When not Reversible Error.—In an action for divorce upon the ground of extreme cruelty the action of the trial court limiting the cross-examination by appellant in reference to the acts of the defendant and occurrences prior to a certain date, even if erroneous, cannot be attacked on appeal as reversible error.</p> <p>Id.—Extreme Cruelty—Mental Suffering—Rule for Determining. There is no scale by which to gauge the purely mental susceptibilities and sufferings of another. Whether in a given case there has been inflicted “grievous mental suffering” is a pure question of fact, to be deducted from the circumstances of each particular case, keeping always in view the intelligence, apparent refinement, and delicacy of sentiment of the complaining party; and no arbitrary rule of law as to what particular probative facts shall exist in order to justify a finding of the ultimate fact of its existence can be given.</p> <p>Id.—Sufficiency of Evidence.—In this ease it is held that the finding of the trial court, based upon conflicting evidence, against the charge made by the plaintiff of extreme cruelty cannot be disturbed on appeal.</p>

<p>Public Officer—Sheriff of Los Angeles County—Eight to Fees Collected—Construction of Los Angeles Charter.—Where the sheriff of Los Angeles County was serving an unexpired portion of Ms term, for which he had been theretofore elected, at the time the charter of that county went into effect, he was entitled under sections 52 and 56 of article XII of such charter, (which provided that neither the tenure of office nor the compensation to be paid to officers theretofore elected should be changed or altered until they had been chosen by the electorate), to retain for his own use as part of his compensation the fees collected by him under section 4290 of the Political Code, notwithstanding section 15 of article IV of such charter which provides that “all fees collected by any county officer, board or commission shall be paid into the county treasury.”</p>

<p>Contracts—Purchase of Automobile—Agency—Authority of Secretary of Corporation.—In- an action to recover a balance due on the purchase price of an automobile, ostensible authority in the secretary of a corporation, the purchaser, to make the purchase for the corporation and the ratification of the transaction by the corporation is sufficiently shown, where it appears that the secretary was one • of the managers of the corporation -and that the corporation took ■the car into its service, paid two installments and accrued interest on account of the purchase price, had repairs made on it and paid for them and assumed ownership in an endeavor to exchange the machine with the seller for another -type of car.</p>

<p>Husband and Wife—Purchase With Community Funds—Deed to Wife by Direction 'of Husband—Intent to Make Gift.—Where a husband purchases property with community funds and has the conveyance executed to his wife, it will be presumed that he intended to make a gift of the property to her, in the absence of any evidence showing a contrary intention, and the fact that the husband continued thereafter to manage the property is no evidence of such a contrary intent.</p> <p>ü>.—Guaranty—Agreement to Repurchase Stock—Security for Performance—Deed of Trust upon Wife’s Property—Liability of Wife.—A wife who joins with her husband in the execution of a deed of trust upon her separate property to secure the faithful performance of his guaranty to repurchase certain corporate stock sold by him, in the event that the purchasers shall exercise their option of resale within a stated time, thereby becomes a promisor “to answer for the debt, default or miscarriage” of her husband, and her contract is within the code definition of guaranty, notwithstanding that she did not sign the conditional contract to repurchase.</p> <p>Id.—Extension of Guaranty — Ignorance of Wife — Exoneration from Liability.—A wife who has joined with her husband in the execution of a deed of trust upon her separate property to secure the performance of her husband’s agreement to repurchase certain corporate stock sold by him upon certain conditions, is exonerated from liability, where the time of performance is extended without her consent or knowledge, and the trustee under the deed is not liable in reconveying the property in the absence of any proof of knowledge on his part of the extension of the option.</p> <p>Id.—Contracts-—Option for Resale of Stock—Conditions—Acceptance of Indefinite Extension — Option not Exercised. — An option for the resale of corporate stock reciting that the vendor will repurchase the stock on a certain date at a fixed price, provided that the purchaser makes a tender and demand for repurchase on or before such date, is not exercised in time, where the latter makes no such tender and demand within the time limited, but consents to an indefinite extension of the time for the repurchase of the stock.</p> <p>Id.—Options—Acceptance—Rule.—It is a well settled principle, applicable to options as to other contracts, that the offer must be accepted in the terms in which it is made, and the alteration of such terms, or the addition of any condition or limitation, is tantamount to a rejection of the original offer and the making of a counter offer.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Robert T. Linney, and Ralph W. Schoonover, for Appellants.</p>

<p>Appeal—Motion to Dismiss—Denial op Motion—Law op the Case.— An order denying a motion to dismiss an appeal which has become final is the law of the ease on the points involved in the motion.</p> <p>Id.—Failure to Give Notice op Entry op Judgment—When Waiver op Notice not Shown.—An order denying a motion to dismiss an appeal, based upon the ground that notice of the appeal and request for a transcript was not filed within ten days after notice of entry of judgment, was properly made, where there was nothing in the record showing that any notice of entry of judgment was given, or waived, prior to the filing of the notice of appeal; and where a document upon which respondent relied as showing actual notice was a paper not capable of being considered as part of the record, the filing of the paper thereafter did not constitute a waiver of the notice of entry of judgment referred to in section 953a of the Code of Civil Procedure, although under the latter section actual notice established by satisfactory evidence of record will start the statute in motion without the service of the formal written notice of entry of judgment.</p> <p>Action on Account Stated—Agreement as to Balance—When Findings Conclusive.—In this action to recover a sum alleged to be due on an account stated it is held that the findings of the trial court upon conflicting evidence as to the agreement of the parties as to the correctness of the amount alleged to be due is conclusive on appeal.</p>

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

<p>Appeals—Costs—'Construction op Stipulation—When Appellant Entitled to Costs.—The right of parties on an appeal to have the judgment as made in their favor perfected or completed by the insertion therein of the costs allowed to them on the appeal is not affected by a stipulation entered into after the decision providing that “During the currency of this agreement, all fights finally adjudged to either party by the judgment in the action of John Burr vs. the second party herein, etc., as modified and affirmed by the supreme court by its judgment, shall be held in abeyance”; and where it is not shown what the remittitwr on the appeal contained as to costs, it will be presumed that the clerk followed the practice required of him by rule XXIII of the supreme court and inserted the direction, that costs be recovered by the appellant, the judgment appealed from having been modified.</p>

<p>APPEAL from a judgment of the Superior Court of Humboldt County and from an order denying a new trial. Clifton H. Connick, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. M. Frost, and Coonan & Kehoe, for Appellant.</p>

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

<p>APPLICATION for a Writ of Certiorari originally made in the District Court of Appeal for the Third Appellate District to annul a judgment of the Superior Court of San Joaquin County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Third Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Third Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Contracts—Exchange op Beal Property — Broker’s Commission — Statute op Frauds—Evidence.'—Where a written contract for the exchange of real, property provides that when a broker therein named shall have secured an acceptance of the proposition to exchange upon the terms specified he shall be paid “the sum of commissions as per verbal agreement, . . . dollars, as commissions for such services,” the failure to specify the amount of the commission to be paid does not render the contract void under the provisions of subdivision 6 of section 1624 of the Civil Code, and the broker is entitled to a reasonable compensation for his services, where the exchange was consummated; and the verbal agreement may be shown by parol evidence.</p> <p>lb.—Charge oe Fraud in Procuring Contract—When not Sustained. The charge in such a case that the contract was procured hy means of fraud and misrepresentations on the part of the broker is not sustained by testimony of the vendor that he signed the contract when he did not have his eye-glasses with him and did not know whether it contained a provision as to payment of commissions, it being shown that the broker when he presented the contract for execution made no representation whatever as to its contents and the vendor making no claim that he was unable to read without glasses.</p>

<p>APPEAL from a judgment of the Superior Court of Ventura County and from an order denying a new trial. Robert M. Clarke, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contracts—School District—Erection or School Building—Irregularity in Calling Election and Bids—Estoppel.—Notwithstanding the insufficiency of notices calling a meeting of the electors of a school district for the purpose of voting upon the question of the erection of a school building and insufficient publication of notice calling for bids for the contract, where the board of trustees proceeded to make a contract for the erection of the building, which was completed and thereafter used for the purposes for which it was erected by the district for a long period of time, the school district was estopped from maintaining a defense based upon said irregularities, in an action by the contractor to recover the reasonable value of the materials furnished and services, rendered.</p> <p>Id.—Municipalities—Estoppel.-—Where the contract or agreement upon which recovery is sought is one wholly without the scope of the power of the municipality to make—in other words, is ultra vires—there can be no estoppel; but where the authority exists to make the contract but the proceedings precedent thereto have been informally taken only, the rule of estoppel may be made to operate against a municipality as completely as it would against an individual under the same circumstances.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Gavin W. Craig, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Walton J. Wood, Public Defender, David R. Faries, Assistant Public Defender, and Charles J. Kelly, for Appellant.</p>

<p>Action on Promissory Note—Consideration—Subscription for Corporation Stock—Absence of Fraud.—In this action on a promissory note executed by the defendant on an application for the purchase of certain stock of an insurance company it is held that the transaction involved a plain business proposition and from the evidence it appeared free from any taint of fraud and the action was not one which the court should refuse to entertain.</p> <p>Id.—Sufficiency of Evidence.—It is held that the evidence in this case was sufficient to support the findings of the court that the note was taken by the plaintiff as the agent of the company in payment for stock of the company, and at the time of the commencement of the action the plaintiff was the owner and holder of the note.</p> <p>Id.—Acceptance of Note.—It is held in this case that the evidence sufficiently showed that the note was accepted by the company and became a binding obligation and that the company was ready at once to deliver stock according to the terms of the contract of sale.</p> <p>Id.—Sufficiency of Consideration.—In such a case, where it appears from the evidence that, if the defendant had taken up the note the day after its date, the company having accepted her application for stock, she would have been entitled to receive forty shares of the capital stock of the company at the agreed price of twenty-five dollars per share, as stipulated in the contract, the note was supported by a sufficient consideration.</p> <p>Id.—Alleged Failure of Consideration.—In such a case, where under the contract of sale defendant was to accept the forty shares of stock the day after the execution of the note, and the evidence shows that that number of shares of the original issue of stock was tendered to her on that day, which tender was open to her acceptance for two months thereafter, it cannot be said that there was a failure of consideration for the note because about two months after its execution all the original issue of the stock of the company had been sold and it was therefore impossible for the company to deliver to the defendant the stock called for by the contract.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Milton T. Farmer, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Action fob Damages—Killing of Dog—Bight to Defend Poultry— Construction of Section 3341 Civil Code.—The contention that the legislature, by specifying in the second subdivision of section 3341 of the Civil Code the words “sheep, angora goats and cashmere goats,” intended to and did thereby exclude poultry from the enumeration of animals for the worrying or killing of which a dog might be destroyed, cannot be maintained.</p> <p>Id.—Proof—Knowledge of Viciousness of Animal—Bight to Destroy Dog—Public Nuisance.—The first subdivision of section 3341 of the Civil Code, providing for the prosecution of actions, simply dispenses with the proof of knowledge on the part of the owner of the vicious habits of his animal, a burden that was imposed in a certain character of actions against such owners at the common law; and the second subdivision authorizes any person to destroy as a public nuisance any dog found in any place outside the premises of the owner, worrying or killing sheep or goats, whether such sheep or goats belong to the person killing the dog or not—a right that did not exist at the common law.</p> <p>Id.—Bight to Defend Fowls—Common Law.—The natural right has always existed in one to defend his fowls upon his own premises from the attack of trespassing dogs, and there is nothing contained in either subdivision of section 3341 of the Civil Code, which in any way limits or takes away this right. The section was not intended to, nor does it, abridge the common law right of a person to defend Ms domestic animals against the attack of dogs, or to kill such dogs in circumstances that warrant the belief that his property is in peril.</p> <p>Id.—Belative Value of Dog to Property Injured—Bight to Kill not Affected by.—The right to kill a dog found trespassing and endangering property is not affected by the relative value of the dog and the property being injured; and the contention that because the dog killed was possessed of a pedigree and had a greater relative value than the fowls injured by it, the killing was unwarranted, cannot be maintained.</p>

<p>Contracts—Agreement to Purchase Beal Property Jointly—Action for Breach—Absence of Partnership.—Where a contract between two joint purchasers of real property provided that one of them was to pay a certain sum down, and that both of them were to pay certain sums later, whereupon the second purchaser was to procure a loan on the property for the balance of the purchase price, the contract did not constitute a partnership transaction, and where the second purchaser failed to carry out his part of the contract, the first had the right to maintain an action for damages for breach of contract, without resorting to a suit in equity for dissolution of an alleged partnership and for an accounting.</p> <p>Id.—Validity of Contract—Absence of Fraud.—In such a case while, if the plaintiff, when he entered into the contract with the defendant, knew that the interests of the defendant and his principal, the owner of the land, were antagonistic, and that the owner did not know that the defendant was interested in the purchase of the land, the contract might have been void, not only as between the defendant and the owner, but also as to the .plaintiff, where the evidence showed that the owner was to be paid the full price of the property demanded by him and that the defendant was not vested with the exercise of any discretion, but was simply authorized to sell the property on a certain commission for a specific amount, it cannot be held that the plaintiff was guilty of any deceit or fraud preventing him from recovering damages from his eopurehaser.</p>

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

<p>APPEAL from a-judgment of the Superior Court of San Bernardino County and from an order denying a new trial. Benjamin F. Bledsoe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from an order of the Superior Court of the City and County of San Francisco denying defendant’s motion to vacate a default judgment in favor of plaintiffs, and from the judgment itself. George E. Crothers, Judge. The facts are stated in the opinion of the court.

<p>Action fob Conversion—Consignment of Sample Goods—Dissolution of Partnership—When Retiring Partner not Liable.—Where certain sample goods were consigned to a partnership for the mutual benefit of both consignor and consignee, and the partnership was subsequently dissolved and the business thereafter conducted by one of the partners, of which notice was directly given the consignor but the latter allowed the consigned goods to remain with the remaining member of the former partnership, who continued to conduct the business for a year and a half after such dissolution, for the benefit of the business then being conducted, the consignor was es-topped thereafter from making any claim against the retiring partner for conversion of the goods by the partner who had continued to conduct the business.</p> <p>Id.—Liability fob Sale of Goods on Execution.—In such a case where, after the partner who continued the business had abandoned it, the defendant, by an action brought to recover a debt due him from his former partner, took possession of a small portion of the stock found in the place of business after the abandonment, and caused a sale thereof to be made under execution and caused the possession of the property to be transferred to another person, the defendant was liable to the consignor for conversion of these goods and a judgment against him for their value was proper.</p> <p>Id.—Partnership—Liability of Retiring Partner.—There is no question as to the law which declares that a retiring partner may be held for the obligations of the copartnership theretofore created.</p>

<p>Lease—Action to Reform and Rescind—Alleged Mistake in Execution—Failure of Consideration.—In this action for the reformation of a certain lease made by defendant to plaintiff and, as reformed, to have the same, together with a chattel mortgage made by plaintiff to defendant and a bill of sale made by defendant to plaintiff, all executed in connection with the said lease, rescinded for failure of consideration, the reformation asked, being the insertion in the original lease of an alleged oral agreement whereby, it is claimed, defendant obligated itself, at the request of plaintiff, to construct an additional story upon the leased premises, it is held that the evidence fully justified the trial court in finding that the plaintiff was not entitled to have the lease reformed in the manner prayed for.</p> <p>Id. — Reformation of Written Contract — Grounds. — The grounds which will justify the reformation of a written contract are: 1. Fraud; 2. A mutual mistake of the parties; and, 3. A mistake of one party which the other at the time knew or suspected.</p> <p>Id.—Oral Agreement to Construct Third Story on Leased Premises—Inadmissibility of.—In such a ease where plaintiff contended that defendant orally agreed to construct in the spring, if so requested by plaintiff, a third story upon the two-story apartment house covered by the lease, and to lease it to plaintiff for an annual rental equal to ten per cent of its cost, which alleged oral agreement was wholly disconnected with the written lease and chattel mortgage given to secure it, while defendant might be liable for breach thereof, noneomplianee with the oral agreement constituted no defense to the enforcement of the written lease and chattel mortgage, the terms of which must be construed according to the plain import of the language used therein; and such oral agreement was inadmissible in evidence under sections 1625 and 1639 of the Civil Code.</p> <p>Id.—■ Description of Leased Premises — Lease for More Than One Tear—Section 1624, Civil Code.—In such a ease the oral agreement, calling for a three-story building, was in conflict with the description of the premises in the written lease, calling for a “two-story frame apartment house”; and if tie oral agreement required the lessor to build new or additional premises and to lease the same to the lessee for a term for more than a year, it was void under subdivision 5 of section 1624 of the Civil Code.</p>

<p>Contracts —• Guaranty — Security for Payment of Bent — Contract for Sale of Leased Premises—When Guaranty not Terminated by.—A guarantor of the payment of rent reserved in a lease was not released from liability under the guaranty by virtue of the subsequent execution of an executory contract of sale entered into by the lessor and the guarantor, which contract provided that the release of the guarantor was a part of the consideration for the contract, where the contract also provided that if the lessor failed for sixty days after notice of defects to remedy the title to the property, “this agreement shall terminate,” and such notice of defects was in fact given and the title never remedied.</p> <p>Id.—Construction of Contract.—In such a case where the contract of sale was .prepared by the guarantor and neither the lessor nor any legal adviser of his had anything to do with its preparation, any ambiguity in the contract must be construed against the guarantor, as the rule is, that in cases of uncertainty, the language of a contract should be interpreted most strongly against the party who ■ caused the uncertainty to exist; and the contract must be taken in the sense in which the guarantor supposed the lessor understood it.</p> <p>Id.—Parol Evidence—Inadmissibility of.—In such a case parol evidence of the conversations and prior negotiations of the parties was unnecessary and inadmissible, but its admission was entirely without prejudice where it was in line and harmony with the written instrument itself.</p>

<p>Action Against Corporation—Pleading—Mistake as to Dependant— • Amendment—Substitution of Party—Motion to Set Aside Judgment—Abuse op Discretion.—In an action against a corporation, where in the title the name of the corporation was given without stating where incorporated, but in the body of the complaint the defendant was described as a corporation organized under the laws of the state of New York, and it was duly served with summons, filed its answer, and appeared on the trial through its attorney, but upon the introduction of evidence it appeared that the alleged trespass sued for was committed by persons in the service of a corporation of the same name organized under the laws of 'California, which was entirely disconnected from the other corporation, and had not been served with summons or made an appearance, it was error for the court to allow the complaint to be amended by substituting therein the word “California” for “New York” in the name of the defendant, and to direct the trial to proceed without any representative of the defendant; and it was an abuse of discretion to refuse to set aside a verdict and judgment against the California corporation, upon its application for relief under section 473 of the Code of Civil Procedure.</p> <p>Id. — Amendment — Change of Cause of Action — Substitution of Party.—It is well settled that an amendment of the original pleading is not allowable which changes the cause of action therein set forth; nor can a different defendant be substituted for the defendant originally sued where there is no joint or privity of inteies.t; and the rule is the same where the defendant is a corporation, there being no distinction made between natural and artificial persons in respect to such amendment.</p> <p>3d.—Appearance—Manner of Making.—A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance or when an attorney gives notice of appearance for him. An appearance may also be made in an action by acts other than those enumerated in the statute, but they must be of an unequivocal character showing a submission to the general jurisdiction of the court, such as calling for some affirmative relief.</p> <p>3d.—Lack of Appearance.—In such a case where all the proceedings in which the attorney for the New York corporation appeared occurred before the amendment of the complaint and before the California corporation was made a party to the action, at which time this attorney withdrew, it cannot be held that the attorney’s conduct constituted an appearance for the California corporation.</p> <p>Id.—Motion to Vacate Judgment—Section 473 Code Civil Procedure. Among other grounds for relief, section 473 of the Code of Civil Procedure provides that when from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative at any time within one year after rendition of any judgment in such case, to answer the merits of the original action.</p>

<p>Declamation District—Amendment op 1911 to Section 3462 Political Code—Validity op.—There is no legal objection to the provisions of the amendment of 1911 to section 3462 of the Political Code (Stats. 1911, p. 644), in reference to the finality of proceedings before a board of supervisors for levying an assessment in a reclamation district, at least as far as their regularity and the question of apportionment of the assessment are concerned; and this can also be said of defects in the original petition as well as of other irregularities.</p> <p>Id.—Void Assessment—Jurisdiction of Court to Determine.—Such provision, however, does not have the effect of validating an act that is void—in other words, of making an assessment lawful, when the .purpose of it is contrary to the law, and of placing beyond the reach of the general equity powers of the court the question of the jurisdiction or legal authority of the board to take any step at all toward the levy of an assessment.</p> <p>Id. — Purposes of Assessment — Must be for Reclamation. — It is fundamental that no person’s property can be taken for a purpose not authorized by law; and land in a reclamation district must be assessed for reclamation purposes or the assessment cannot be lawfully enforced; and the order of the board of supervisors directing the assessment, if in excess of authority, is amenable to attack in an independent proceeding in a court of equity, it not being within the power of the legislature to divest such court of jurisdiction conferred by the constitution.</p> <p>Id. — Illegal Assessment — Inclusion of Former Illegal Assessments — 'Credit to Owners Who Paid. — A reclamation district assessment which includes the amounts of two former assessments declared illegal, and legal interest accrued thereon, and which provides that those landowners who have paid the former assessments shall be credited with such amounts, together with interest upon said several sums from the dates of their respective payments, is void, and section 3462 of the Political Code is ineffectual to validate such an assessment.</p> <p>Id. — Validity of Assessment — Determined by Statute in Force When Proceedings Commenced.—Under section 3478 of the Political Code as amended in 1911 (Stats. 1911, p. 648), where a petition for an assessment and appointment of commissioners in a reclamation district was filed before said amendment of 1911, the validity of the proceedings must be determined by the statute in force at the time the petition was filed.</p>

G. W. Nicol, Judge, presiding. The facts are stated in the opinion of the court. F. E. Boland, McCutcheon, Olney & Willard, and Clary & Louttit, for Appellant. A. H. Ashley, R. C. Minor, George F. McNoble, and F. O. Housken, for Respondents.

<p>Action fob Services—Procuring Lease—Sufficiency of Evidence.— In this action for services rendered in the negotiations for a lease of real property it is held that the evidence abundantly supports the findings of the court against the contention of defendant that plaintiff’s assignor was to be paid for his services only if he succeeded in procuring a lease or agreement to lease which would not require the defendant to install a vault and steam-heating apparatus in the premises to be leased.</p> <p>Id. — Copartnership — Fictitious Name — Sections 2466 and 2468 Civil Code.—As the statute stands to-day, and as it stood since the amendment of 1911 to sections 2466 and 2468 of the Civil Code, neither a copartnership doing business under a fictitious name, nor its assignee, may maintain an action in any court in this state, where they have failed to file and publish the certificate required by said sections; but an action commenced before the amendment is ■ governed by the law as it stood at that time, which permitted as- ■ signees of such partnerships to maintain suits.</p> <p>Id.—Definition of Word Maintain.—The word “maintain,” as used in said sections, means to commence, institute, begin, or bring an action.</p>

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

<p>Criminal Law —■ Selling Liquor in No-license Territory — Sufficiency of Evidence.—In this prosecution for selling and dispensing alcoholic liquors in no-license territory contrary to the provisions of what is known as the “Wyllie Act” (Stats. 1911, p. 599), it is held that the evidence was sufficient to justify a verdict of conviction.</p> <p>Id. — Argument of District Attorney — When not Prejudicial. —. In such a case it is not prejudicial misconduct on the part of the district attorney in his argument to the jury to make reference to certain things which the jury saw on their visit to the premises where the liquor was alleged to have been sold.</p> <p>Id.—Evidence—Conclusion of Witness.—In such a case where a witness was asked what had been his observation with reference to the general public in going into the premises where the liquor was alleged to have been sold unless invited to do so, and answered “I have had friends with me, but we could not have gone down below unless we were asked to,” the answer was properly stricken out on motion of the district attorney, as it was not only the conclusion of the witness, but no reference was made to the time.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Frank R. Willis, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>E. B. Coil, for Appellants.</p> <p>U. S. Webb, Attorney-General, Robert M. Clarke, Deputy Attorney-General, and George Beebe, Deputy Attorney-General, for Respondent.</p>

<p>Public Officer—Clerk of the Police Court—Piling Bond—Place for.—A clerk of the police court of the city of Los Angeles appointed under the provisions of an act of the legislature approved June 6, 1913 (Stats. 1913, p. 469), which created police courts for cities of the first and one-half class, and continued generally the plan of organization of such courts, which were originally created under what is commonly known as the Whitney Act, should file his official bond in the city clerk’s office, after its approval by the mayor, and not in the office of the county clerk; and, therefore, the fact that such clerk did not file such bond with the county clerk does not cause a vacancy in the position under section 996 of the Political Code.</p> <p>Id.—Official Bond—County Officers—Place for Piling.—Under section 950 of the Political Code the official bonds required to he filed with the county clerk are those of “county and township officers,” but clerks of police courts are neither county nor township officers and the law does not require them to file their bonds in the same place as the bonds of county and township officers.</p> <p>Id. — Clerk of Police Court not City Officers — Los Angeles Charter.—The office of clerk of police court is created by general statute, and as the charter of the city of Los Angeles makes no provision for the appointment of clerks of the police court, its provision that all appointed officers of the city shall hold office for the term of four years, provided, however, that the appointing power shall have the power to remove in all eases, does not apply to such office.</p> <p>Id.—Statute Creating Police Courts—Validity of.—The validity of the acts of the legislature creating police courts and classifying cities for that purpose has long been upheld.</p>

<p>APPEAL from a judgment of the Superior Court of Inyo County and from an order denying a new trial. William D. Dehy, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>P. W. Forbes, and Boyd & Salisbury, for Appellants.</p>

<p>Contracts—Performance—Time for.—In the absence of a time being specified in a -written proposal for the doing of work, the law fixes a reasonable time for the performance thereof.</p> <p>Id.—Contract to Install Automatic Sprinklers and Pibe Extinguishers—Reasonable Time for Performance.—In an action upon a-written contract to furnish materials and labor therefor and install in a box factory a system of automatic sprinklers and fire extinguishers, where the contract did not contain -any provision fixing the time within which the installation of the plant should be made, the finding that in assemblying the material for doing the work much of it had to be shipped from distant parts of the country and testimony that a reasonable time for installing the plant would be two or three months, justified the finding that such reasonable time for the performance of the contract had not elapsed at the time of the destruction of the property by fire which occurred about two months and a half after the contract was entered into.</p> <p>Id.—Evidence—Time fob Completion—When Oral Evidence Inadmissible.—In such a ease, where the contract did not specifically provide any time within which performance should be completed, but did provide that no modifications of the written proposal to do the work, other than in writing signed by the president, should be binding upon the contractor, oral evidence was inadmissible to show that at the time of entering into the written contract, it was orally agreed by an employee of the contractor that the latter would complete the installation within three weeks from the date thereof.</p> <p>Id.—Material Delivered on Premises—Right of Recovery for.—In such a case where by the terms of the contract, it was agreed that in case of the destruction of the property by fire payment should be made not only for the goods destroyed but for “materials furnished, labor and services rendered” up to that time, the contractor was entitled to recover for materials delivered upon the premises but not installed in place, as well as for the property destroyed.</p> <p>Id.—Evidence—Assemblying Materials—Reasonable Time for Per- . formance;—In such a case the testimony of the superintendent of construction as to the preliminary work and assembling of materials necessary to make the installation, was proper as tending to establish what constituted a reasonable time within which to perform the same.</p> <p>Id.—Railway Pare and Charge of Superintendent of Construction —Erroneous Admission.—In such a ease evidence as to the rail-, way fare and per diem charge of the party in charge of construction, for a trip made after the fire, was improperly admitted; but where the court excluded such sum from the amount allowed, defendant was not prejudiced by the ruling; and conceding error in allowing a similar charge of four dollars for a trip prior to the fire, under the rule of de minimis, this would not justify a reversal.</p>

<p>APPEAL from an order of the Superior Court of Imperial County denying a new trial. Franklin J. Cole, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mining Partnerships—Actual Joint Working Essential to.—The actual working of a mine by the owners for their mutual benefit, is essential to the existence of a partnership relation, the parties to contribute to the extent of the work and to share in the profits according to their respective interests.</p> <p>Id.—Contracts—When Mining Partnership not Shown.—A mining partnership is not constituted by an agreement between an attorney and his client that the former should sell certain mining properties of which he held the title in trust for both, and from the purchase price, from time to time, deduct a sum sufficient to repay him all sums put out for the benefit of the properties and to compensate him for his legal services, and after such repayment, and the payment of the expense of the sales, the sums remaining to be divided equally between the parties, and any remaining property to be held in joint ownership.</p> <p>Id.—When Party not Liable for Labor.—In such a case, where the agreement did not contemplate a joint working of the mines by the parties to the contract, but by its terms the -attorney was in sole charge of the property, and whatever work was provided to be done by it was to be done by the attorney and no money was to be advanced by the other party, the attorney was not liable for services performed by a party on the mine who was employed by the other party to the contract.</p> <p>Id.—Attachment—Insufficient Affidavit for.—An affidavit for an attachment which states “that the said attachment is not sought ... to hinder, delay or defraud any creditor or creditors of the defendant,” is insufficient, where there are three defendants, as it only refers to one defendant, which does not meet the requirements of section 538 of the Code of Civil Procedure. Such an affidavit might have been amended upon motion at or before the hearing of an application to discharge the attachment, but where no application was made the attachment should have been discharged.</p>

<p>APPEAL from an order of the Superior Court of Butte County granting a motion for a new trial. John C. Gray, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>T. T. C. Gregory, W. H. Carlin, A. F. Jones, and Theodore W. Chester, for Appellant.</p>

<p>Contracts—Painting—Assignment.—A contract to do certain painting and finishing work in a building under construction is not one where there is any special reliance upon the personal skill and responsibility of the contracting party, and it is, therefore, assignable.</p> <p>Id.—Acceptance of Assignment—Liability for Completion—Estoppel.—Where such a contract was assigned and the assignment did not in specific terms provide for the performance of the contract, by the assignee, such assignee was nevertheless estopped from making such contention in an action against him for the excess of the contract price expended in completing the work after he had done part of the same and received practically the entire contract price upon the understanding that he was responsible for the work.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made in the District Court of Appeal for the Second Appellate District.</p> <p>The facts are stated in the opinion- of the court.</p>

<p>APPEAL from an interlocutory decree in partition of the Superior Court of the County of San Mateo. George H. Buck, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>R. P. Henshall, and Martin Stevens, for Appellant.</p> <p>J. J. Lermen, Ross & Ross, for Respondent George O. Rich.</p> <p>Daniel A. Ryan, for Respondents Weinke et al.</p> <p>A. Kincaid, for Respondents Hendrickson et al.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made in the District Court of Appeal for the Second Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Obtaining Money by False Pretenses—Presenting False Contract—Sufficiency of Evidence.—In a prosecution for obtaining money by false pretenses from a bank, where the evidence shows that the defendant falsely stated to the assistant cashier of the bank that the latter had theretofore executed a certain contract for an advertisement of the bank in a directory and gazetteer, and that defendant was the authorized agent to collect the money therefrom, and the defendant presented to the assistant cashier at the time he made the false representations a purported copy of the gazetteer and advertisement therein and a bill to which was attached the alleged contract, hearing the genuine signature of the assistant cashier over which the false contract appeared, the false contract constituted a “false token or writing,” within the meaning of section 1110 of the Penal Code, and the evidence was sufficient to sustain a conviction of the offense charged.</p> <p>Id.—Variance—When not Shown.—There was no variance between the information and the evidence where it appeared from the testimony of the assistant cashier of the bank that he was induced to pay the money by reason of the demand based upon the false and forged obligation of the bank to pay for the fictitious advertisement in the purported directory.</p> <p>Id.—Instructions—Character of Defendant.—In such a case there was no error in modifying an instruction by striking out the words “he (the defendant) is presumed to have a reasonably good moral character unless the contrary be shown to your satisfaction by testimony in that regard,” where there was no testimony given touching the subject of defendant’s character.</p> <p>Id.—Instructions—Correspondence op Allegations to Proof.—There was no prejudicial error in inserting the word "material” before the word “allegations” in an instruction requested by the defendant that “in every criminal ease the proof must correspond with the allegations of the information, and unless the proof does substantially correspond with the allegations of the information, it will be your duty to acquit the defendant.”</p> <p>Id.—Praud—Guilty Knowledge—Sufficiency of Evidence.—It is held in this case that the evidence was sufficient to show that defendant had guilty knowledge of the fraud being perpretrated by him as a means of procuring the money.</p>

<p>Dismissal of Action—Costs—Right of Defendant to Recover.— Where a plaintiff in an action exercises his right to dismiss, in those eases where the code provides that he may do so hy filing a request with the clerk, the dismissal thus entered hy the clerk determines the action in favor of the defendant, and the latter is entitled to recover the costs that he may have incurred.</p>

<p>Criminal Daw—Abandonment op Wipe—Prosecution Under Section 270a Penal Code.—The evidence was insufficient to sustain a conviction under an information charging the defendant with the crime of unlawfully abandoning and leaving his wife in a destitute condition and failing to provide for her support, as defined by-section 270a of the Penal Code, where it appeared by the uncontradicted evidence that immediately upon the separation of the defendant and his wife, which was the result of their mutual agreement, the latter was received into the family of a relative and there taken care of, and that she had credit at a general merchandising store where she was privileged to obtain merchandise on her own credit.</p> <p>Id.—Section 270a Penal Code—Construction of.—Section. 270a of the Penal Code was obviously intended to cover those cases where the husband, without just cause, has willfully abandoned his wife and left her without means or resources and in a condition of absolute want—a condition in which she is unable to procure for herself the ordinary or common necessaries essential to the sustenance of life.</p> <p>Id.—Support of Wife—Duty of Husband—Abandonment.—While it is the duty of the husband to furnish his wife with the necessaries of life, it is no crime for him not to do so if she is not actually in want of them, even though he might have abandoned her within the meaning of the statute.</p> <p>Id.-—When Abandonment not Shown.—In such a case where the uncontradicted evidence shows that the separation was the result of the mutual agreement of the parties, there was no abandonment by the defendant of his wife within the meaning of section 270a of the Penal Code; nor was any duress or coercion practiced by the defendant to bring about the separation from the fact that he insisted upon a separation because of his wife’s confession that she had sustained immoral relations with other men, notwithstanding she subsequently said that her confession was a pure invention.</p>

<p>Mortgage — Vendor and Vendee— Foreclosure—Redemption.—Order denying a motion for a new trial affirmed cm the authority of Morris v. Hartley, ante, p. 61.</p>