Volume 27 — California Appellate Reports

<p>APPEAL from a judgment of the Superior Court of Los Angolés County. E. N. Rector, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made in the District Court of Appeal for the First Appellate District.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 Santa Clara County and from an order denying a new trial. John E. Richards and William A. Beasley, Judges.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeals—Attachment—Application to Sell Property—Nonappealable Order.—An order denying an application for the sale of perishable personal property which has been seized by the sheriff under a writ of attachment is nonappealable, and the district court of appeal is without jurisdiction to entertain an attempted appeal from such order.</p> <p>Id.—Construction op Sections 547 and 548 Code Civil Procedure.— Although section 547 of the Code of ’Civil Procedure makes it the duty of the sheriff, without an order from the court or judge, to sell property of a perishable character, which has been levied upon and seized by him under a writ of attachment, and that officer could, if he failed in that duty, be compelled by proper process to perform it, yet it is doubtless the correct practice for the parties to proceed, if they so desire, under section 548 of said code, in a case where the property attached may be shown to be of a perishable nature and upon such showing be entitled to an order directing its sale, since, obviously, the sale of property of that character would certainly be to subserve the interest of the parties to the action. But, in providing the mode sanctioned by section 548 for procuring the sale of attached property in cases where it may be shown that such sale will subserve the interest of the parties to the action, the legislature seems to have conceived it to be proper to make the decision of the trial court or judge upon the question of the propriety of ordering such sale final and conclusive, for no appeal from such an order had been provided for.</p>

<p>APPLICATION for a Writ of Mandate originally made in the District Court of Appeal for the Third Appellate District to compel the Board of City Trustees to adopt an ordinance or call a special election.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Obtaining Property by False Pretenses—Construction of Code—Promissory Note, “Property.”—A promissory note in the hands of the payee thereof, or in the hands of any other person than the maker, is an evidence of debt, and as such, is “property” which may be the subject-matter of the offense of obtaining property by false pretenses within the meaning of section 532 of the Penal Code.</p> <p>Id.—Procuring Indorsement upon Promissory Note—Sufficiency of Information.—An information charging a defendant with the felonious obtaining of personal property by false pretenses, which alleges that the defendant induced the complaining witness by means of such pretenses to “make and deliver” to defendant the promissory note set out in the information, from which note it appears that the defendant alone was the maker and that the complaining witness was merely an indorser, fails to state facts sufficient to constitute a public offense, as such pleading charges the defendant with nothing more than procuring the indorsement of the note by false pretenses, which indorsement is not an evidence of debt while the note remains in the hands of the defendant and has not been negotiated.</p> <p>Id.—Promissory Note—Delivery.—Neither a promissory note, nor the indorsement thereon, has any legal existence until delivered to and accepted by the payee.</p>

<p>Criminal Law—Rape—Sufficiency of Evidence.—In this prosecution for rape committed on an unmarried female whose age was under sixteen years, it is held that every fact implied in the verdict and essential to the crime is supported by evidence which the jury might reasonably have believed to be true.</p> <p>Id.—Trial—Continuance—Sufficient Affidavits for.—Where upon a motion for a continuance of the trial of a criminal action, the affidavits failed to state facts which furnished any definite and satisfactory assurance that the witnesses therein named could or would be produced at a later time if the continuance were granted, it was not an abuse of discretion to deny the motion.</p> <p>Id. —• Evidence — Illicit Relations With Defendant—Inconsistent Statements of Prosecutrix.—Where in a prosecution for rape it was admitted by the prosecutrix on cross-examination that she had told another girl that she had had improper relations with but one person, not the defendant, no prejudicial error was committed in sustaining objections to a series of questions designed to compel admissions that on certain specified occasions the witness had been questioned about her alleged illicit relations with the defendant and on those occasions she had made statements inconsistent with her present testimony as to the time when she first had such relations with the defendant.</p> <p>Id.-—Evidence—Capsules to Prevent Pregnancy—Sufficient Identification.—-Where the prosecutrix in such a case testified that the defendant gave her medicine for the purpose of preventing pregnancy, it was not error to admit certain capsules or pellets in evidence over objection on the ground of lack of identification, where she identified the exhibited capsules or pellets as the medicine given her by the defendant.</p> <p>Id.—Evidence—Want of Chastity of Prosecutrix.—Where the prosecutrix is under the age of consent, proof of her relations with other • men as tending to show want of chastity is immaterial.</p> <p>Id.—Misconduct of District Attorney—Improper Mode of Cross-Examination of Defendant—When Not Reversible Error.—In this action it is held that the conduct on the part of the district attorney in his mode of cross-examining the defendant as to the testimony given by the latter before the grand jury concerning the medicine given to the prosecutrix, and concerning his refusal to assist the prosecutrix in informing her mother of her pregnant condition, was improper, but that upon the whole record in the case, it cannot be said that such misconduct resulted in a miscarriage of justice under section 4% of article VI of the constitution.</p> <p>Id.-—Instruction to Jury—Weight of Testimony—Polios Officers and Detectives.—A proposed instruction separately designating the testimony of police officers and detectives who testified “on behalf of the state,” and stating a rule of greater strictness in weighing their testimony than that of other witnesses, is properly refused.</p> <p>Id.—New Trial—Newly Discovered Evidence—Availability Before Close of Case.—A motion for a new trial on the ground of newly discovered evidence was properly denied, where such evidence consisted of a statement made by the prosecutrix to the district attorney about a month before the case was tried, and it was shown that such statement came into the hands of the defendant’s counsel before the close of the ease and no permission was asked for the recall of the prosecutrix for further cross-examination.</p> <p>Id.—New Trial—Discretion.-—Motions for new trial are addressed to the sound discretion of the trial court and its action will not be disturbed unless the record shows an abuse of such discretion, the presumption being that the discretion was properly exercised.</p>

<p>Contracts—Sale of Real Estate—Action to Recover Deposit—Defective Title—Findings.—In an action to recover from a real estate broker a deposit received by him from the purchaser under a contract of sale of real estate which provided that if plaintiff’s title to the property did not prove good, the deposit should be returned to the purchaser, on appeal from the judgment on the judgment-roll alone, without the evidence, it must be assumed that the findings of the trial court to the effect that objections to the title to the property had no foundation in fact were correct.</p> <p>Id.—Sufficiency of Findings—Title Free From Objections.—In such a case a finding that objections to the title were hot “good or valid” must be construed in connection with the further finding that “the said title to the said property was good and merchantable,” and so construed it means that the plaintiff's title was in fact free from valid existing objections.</p> <p>Id.—“Merchantable” Title—Meaning of.—The word “merchantable” is usually, if not exclusively, employed in mercantile contracts and strictly speaking signifies the salability of merchandise with regard to quality or medium quality of goodness. The word “merchantable” used in such findings is synonymous with the word “marketable” as used in reference to title to real property, and means a good and perfect title free from any reasonable objection.</p>

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

<p>Action to Quiet Title—Eight op Way—Pipe-Line—Findings—When Conclusive.—In this action to quiet title to certain land over which defendant claims a right of way for a pipe-line, based upon the fact that it expended large amounts of money under an oral license given by the owners of the land, it is held that the finding of the trial court, made upon conflicting evidence, that no license was given and no expenditures were made in reliance thereon is conclusive on appeal.</p>

<p>Action to Quiet Title—Claim op Lien by Dependant—Pleading— Cross-Complaint—Waiver op Objection.-—In an action to quiet title where the defendant by his answer and cross-complaint admits plaintiff’s ownership of the land, but claims a lien thereon for labor performed in the construction of a -building upon the premises and prays judgment for the amount of his demand and for foreclosure of the lien and no objection is made to the sufficiency of the cross-complaint as a pleading in the action, or to the right of the defendant to file the same, but the ease is tried upon the stipulation of counsel that the issues tendered by the cross-complaint as well as those tendered by the complaint may be determined, plaintiff cannot on appeal from a personal judgment against her for the amount of such claim successfully urge that such cross-complaint was an improper pleading.</p> <p>Id.—Trial Without Objection to Pleading—Waiver.—In such a case the parties having tried the case in the lower court upon the theory that the pleadings were sufficient, cannot on appeal for the first time raise the objection that the cross-complaint was improperly interposed in the action.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order refusing a new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporation Law — Board op Directors —• Quorum — Vacancy. — A quorum of a board of directors of a corporation is a majority of the entire board as it would be constituted if all vacancies were filled, and not a majority of the board as it remains with the vacancies unfilled; and the power of the board to transact corporate business is neither diminished nor defeated by the fact of a vacancy in the board, unless the number of statutory directors be reduced below the required quorum.</p> <p>Id.—Removal op Superintendent—Validity of Resoluton.—A resolution of a corporation providing that a certain party be deprived of all salary as superintendent of the corporation, and a resolution calling for his removal from the office of superintendent, and depriving him of all authority to sign checks and documents for or in the name of the corporation, are valid, where they were adopted by the affirmative vote of two out of the three qualified directors present at the meeting, which was regularly called, although there was an unfilled vacancy on the board because of the death of one of the directors and the superintendent, who was a director, was disqualified from voting by reason of his interest in the subject-matter of the resolution.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. L. T. Price, 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 Alameda County. J. D. Murphey, 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. E. P. Mogan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Dentistry—License to Practice—Construction of Amendments to State Dental Law—Exemption of Previous Practitioners.—The amendment of 1909 (Stats. 1909 p. 800), to section 14 of “An act to insure the better education of practitioners of dental surgery, and to regulate the practice of dentistry in the state of California, approved March 12, 1885,” which provides that before “any person” can practice dentistry in this state, he shall obtain a license so to do from the board of dental examiners, did not have the effect of creating an irreconcilable conflict between such amended section and section 1 of such act, which exempts persons who were lawfully practicing dentistry at the time of the passage of the original act, from such requirement, as the language of sueh amendment must be construed in the sense limited by the proviso contained in section 1, and as thus considered, it means any person other than 'those belonging to the class exempted by the proviso of sueh section must procure a license to practice and pay the general license-fee of twenty-five dollars.</p> <p>Id.—Payment of Annual License-fee—Duty of All Practitioners—• Construction of Amendments to State Law.—Under the amendment of 1909 to section 1 of sueh act which provides that “no dentist shall be exempt from paying an annual license tax, as hereinafter provided,” all dentists are required to pay the annual license-tax of two dollars, regardless of when or how they became entitled to practice.</p> <p>Id.—Revocation of License—Provision Nonconflicting.—The provision of section 21% of sueh act for the revocation of a license where the licensee has been convicted of a public offense, unprofessional conduct, inefficiency, etc., is not in conflict with section 14 of sueh act.</p> <p>Id.—Sufficiency of Title of Act.—The act entitled “An act to insure the better education of practitioners of dental surgery and to regulate the practice of dentistry in the state of California,” does not embrace subjects not comprehended in such title as the provision requiring the payment of an annual license fee is included in the general subject of regulation expressed in such title.</p> <p>Id.—Constitutionality of Act.—Section 14 of such act is not obnoxious to the provisions of section 25, subdivision 2 of article IV of the constitution, on the ground that it purports to be a special law for the punishment of a misdemeanor, nor does it violate section 25, subdivision 10 of said article, in that it provides for the collection of taxes which are local or special; nor does it violate section 1 of article XIII of the constitution, in that it undertakes to levy a tax upon a class of property not taxable by the constitution; nor does it violate section 16 of the bill of rights, in that it impairs the obligation of contracts.</p>

<p>Criminal Law—Grand Larceny—Fake Pool-room—Evidence—Similar Offenses—Prejudicial Error.—Where, in a prosecution for grand larceny committed by procuring money to bet on fake races through the medium of a fake pool-room equipped for the purpose of receiving such bets and having therein telegraph and telephone instruments not connected with any system, the evidence is sharply conflicting as to the identity and presence of the defendant as a participant in the crime, it is prejudicial error to admit proof of the commission of like offenses in which the defendant was a participant, where it is not shown that the telephone and telegraph instruments used in the betting exchange where such other offenses were committed were not connected with the wires or system of some telephone company, or that the races were not actually run.</p> <p>Ed.—Evidence—Proof of Like Offenses.—The commission of evidence of other like offenses for the purpose of showing intent is an exception to the general rule and should only be received in eases where the intent accompanying the act is equivocal, or where it otherwise becomes an issue in the trial, as where it is claimed the act was the result of mistake, accident, or inadvertence; but where from the nature of the acts constituting the crime with which the accused is charged, proof of its commission carries with it the evident and conclusive implication of guilty knowledge, there is no occasion for admitting such evidence, and the rule, not the exception, should apply.</p>

<p>APPLICATION for a Writ of Mandate originally made in the District Court of Appeal for the Third Appellate District directed against the Board of Supervisors of the County of Merced to compel it to repeal a certain ordinance providing for discontinuing one of the judicial townships of the county and the re-establishment of the boundaries of another township so as to include the one abolished, or submit the same to the voters of the county.</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. Charles Wellborn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Public Officers—City Attorney'—Municipality of Sixth Class—■ Compensation—'Special Services.—The duties of a city attorney of a city of the sixth class are described in section 879 of the Municipal Corporations Act, wherein it is provided that his duty shall be to advise the city or town authorities and officers in all legal matters pertaining to the business of said city or town, and that he shall receive a certain specified compensation in connection with the collection of delinquent taxes and such other compensation as may be allowed by the board of trustees.</p> <p>Id.—Ordinance Defining Duties and Fixing Salary—When Extra Compensation not Allowable.—Where a city attorney of a city of the sixth class accepted the office under an ordinance which fixed the “salary and compensation” at a specified sum per month and provided that such salary “shall be in full compensation for all services rendered” by the attorney, these provisions of the ordinance must be deemed to be supplementary to the statute, and must ■be considered as having in view not only mere advice to be given by the city attorney to the city officers, but also any other services that might be rendered by the officer in the nature of services by an attorney, and for which no extra compensation was definitely and directly agreed to be paid; and in the absence of official action of the city trustees providing for extra compensation, such attorney cannot recover for services claimed to have been out of the line of his regular employment.</p> <p>Id.—Municipal Officers—Compensation—Rule of Construction.— As between a municipality and its officers, the charter defining the duties of the officers and regulating their compensation is to be construed, in case of doubt, to protect the treasury of the city, for claims against the treasury of the eity, cannot be sustained on doubtful implication; and this is emphatically true where the officer claiming the compensation is the one charged with the duty of advising the city concerning its legal obligations.</p>

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

<p>Action in Claim and Delivery—Motion for Change of Place of Trial—Conflicting Evidence.—-In an action in claim and delivery to recover possession of an automobile alleged to have come into the possession of the defendants through fraud in giving a false check for the purchase price, where the affidavits of the respective parties on a motion for change of place of trial are conflicting on the question of the residence of the parties, the decision of the trial court thereon will not he disturbed on appeal.</p> <p>Bx—Parties—Proper Denial of Motion.—In such a case where it appears from the complaint that plaintiff was defrauded out of his automobile by two of the defendants in a certain county and it was taken to another county and placed in the custody of the other two defendants, the plaintiff had a right to make all four of the parties defendants, and where one of the defendants was a resident of the county where the possession of the automobile was obtained at the time the action was brought, the action cannot be changed to the county of the residence of the other defendants upon their motion.</p> <p>Id.—Betaking Personal Property—Auxiliary Bemedy.—The remedy of retaking personal property through the process of claim and delivery is not to be classed as an independent form of action under our system of pleading but it is available as an auxiliary remedy in any action wherein the plaintiffs assert a present right to the possession of the personal property.</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>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporation Law—Stockholders’ Liability—Pleading—Sufficiency of Complaint.—In an action against stockholders of a corporation upon their stockholders’ liability, where the complaint alleged that within three years last past, the corporation became indebted to plaintiff for a balance .due upon an open book account in a certain sum for money paid, loaned, and advanced, and for goods, wares, and merchandise, sold and delivered by plaintiff to the corporation, at its special instance and request, and that at all times mentioned in the complaint each of the defendants was the owner of a specified number of shares of the capital stock of the corporation, in the absence of a special demurrer, the complaint was sufficient as against the objection that it did not appear therefrom that the defendants were stockholders of the corporation at the time the original indebtedness arose, but only at a time when there was a balance of such indebtedness due.</p> <p>Id.—Construction of Contract—Statute of Limitations.—Where the alleged liability grew out of an agreement between the corporation and another corporation which agreement the court found, upon sufficient evidence, was in substance that the latter corporation merely authorized the first corporation to sell a specified number of cases of its tomatoes and receive the money arising from such sale and use the same when so received to relieve, if necessary, its financial stress, and that the obligation of the corporation of which the defendants were stockholders had its inception from the date of the actual receipt of the moneys arising from the sale of tomatoes, the action having been begun within three years of the earliest date of the receipt of the proceeds of the sale of the tomatoes, the plea of the statute of limitations was of no avail to the defendants.</p> <p>Id.—Evidence—Warehouse Receipts—Curing or Error.—In such a case where, when defendants proposed to introduce evidence preliminary to the introduction of the warehouse receipt for the tomatoes which had been issued to the company owning them and delivered by it to the other company, defendants stated that their purpose was to show the date of the delivery of the goods in order to fix the date of the inception of the defendants’ liability, error of the court in sustaining objection to the evidence, if any, was cured, where subsequently the parties admitted that the delivery of the goods was prior to a certain date.</p> <p>Id.—Nonsuit—When Error Denting Cured.—In this case it is held that there was no error in denying defendants’ motion for a non-suit as to the second alleged cause of action in view of the fact that both counts in plaintiff’s complaint covered substantially the same ground, and especially as the defendants presented evidence which would have cured any defects in plaintiff’s proof.</p>

<p>Contracts—Purchase of Real Property—Default in Installments of Purchase Price—Waiver.—Under a contract for the purchase of real property calling for monthly payments of installments of the purchase price, in which time is made the essence of the agreement, and it is provided that if payments shall not be made according to its terms, all past payments shall be forfeited as liquidated damages, where the purchaser almost from the beginning of the contract fell behind in making payments at the stipulated dates, but the seller accepted, without objection, payments at irregular intervals and not at the dates fixed by the contract, the vendor waived his right to insist upon the strict letter of the contract and to take advantage of past delinquencies so as to either declare the contract canceled because of them or to claim the forfeiture of such payments.</p> <p>Id.—Notification of Default—Construction of.—In such a case where the seller notified the purchasers that “I have on this date canceled your contracts for lots in the Brown Andrade Tracts on account of nonpayment of installments, as you are now delinquent ten months, and I feel that I have carried this account long enough. However, if at any time within one year from date of this letter you should wish to buy four lots from me, I shall he very glad to apply what payments you have made on any four lots that you may select that I haive in any of my tracts at current prices,” the utmost effect that- can be given to the notification is that the seller intended thereafter to insist upon a strict compliance of the terms of the contracts, and that unless within a reasonable time, the purchasers paid up their deficiency, and thereafter made their payments strictly in accordance with time conditions of the contract, the forfeiture clause would be enforced; and where the purchasers within a reasonable time after such notification sent the seller the full amount due to date, which the latter refused to accept, the purchasers complied with their contract, and failure of the seller to accept constituted a breach of contract on Ms part, entitling the purchasers to recover payment of the installments theretofore paid.</p> <p>Id.—Cancellation and Rescission.—The word “rescind” when used with reference to a refusal of a party to a contract for the sale of real estate to further proceed with the fulfillment, is not employed in the sense in which it is used in the code sections which refer to the termination of contracts by the technical process of rescission; but it is rather employed in the sense and as the synonym of an abandonment of the contract by the party refusing to longer be bound by its terms.</p> <p>Id.—Rescission—Manner of Making.—It is not necessary for such a party to use the word “rescind” in order to accomplish what the eases intend by the use of that term. Any appropriate words, or any definite acts, by which the vendor indicates that he will not proceed further with the fulfillment of the contract, and that he will not permit the purchaser to proceed further with the performance of its obligations on his part to be performed, will be taken to amount to a rescission or an abandonment of the contract so far as the vendor is concerned, and will be held to entitle the vendee not in default to his choice of remedies for the breach of the contract on the part of the vendor, in the exercise of which he can either stand upon his contract and insist in a court of equity upon a specific performance, or he can accept the vendor’s admitted repudiation and abandonment of the contract and, treating it as rescinded, sue for the return of the money adready paid on it.</p> <p>Id.—Judgment on Pleadings.—In an action by the purchasers, to recover installments paid on such contracts, where the admissions of the pleadings show such facts, judgment should be rendered in favor of the plaintiffs on the pleadings.</p>

<p>APPEAL from an order of the Superior Court of the City »nd County of San Francisco granting a motion for a new trial. B. Y. Sargent, 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 Alameda County and from an order denying a new trial. T. W. Harris, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Claim Against Deceased Person—Action upon Bejected Claim— Identity op Parties—Jurisdiction.—While it is the ordinary rule that courts will not entertain jurisdiction of an action where the plaintiff and defendant are in fact one and the same person, the rule has no application to an action upon a rejected claim of an insane person against the estate of a deceased person where the guardian of the claimant and the administrator of the estate are one and the same person, or where the appointment of a guardian ad litem, ,to prosecute the suit was suggested "by such guardian and administrator.</p> <p>Id.—Pleading—Erroneous Buling on Demurrer—When Harmless.— Where it is apparent that the defendant has not been placed to any disadvantage by an erroneous order overruling his demurrer to a complaint such error is harmless.</p> <p>Id.—Fraternal Insurance—Disposition by Will—Construction op By-law.—A by-law of a fraternal society which provides that “a married member must leave the insurance either to his wife or his children; and it is not necessary for him to make a will, as the money will be paid to the widow, or if none outlive him, to the children,” is subject to the interpretation that under the by-laws the insurance money of a deceased member without regard to the will of the deceased-, will go to and must be paid to the widow of the deceased member, or, if there be no widow, then to his children.</p> <p>Id.—Action fob Recovery of Insurance Money—Evidence—Contribution Toward Support of Beneficiary.—In an action by the widow of the deceased member of such a society to recover the insurance money from her son to whom it was paid pursuant to the will of the deceased, there is no error in sustaining an objection to a question propounded to a witness for defendant as to whether the witness knew of her own knowledge if the son ever paid the mother any money or contributed any funds toward her support, where the answer does not purport to plead a set-off against the claim of plaintiff, hut merely denies that the money had not been paid td her.</p> <p>Id.—Estates of Deceased Persons—Action upon Claim—Formal Rejection not Essential.—It is not necessary that a claim be formally rejected by the administrator in order to maintain suit thereon, as the neglect to act upon the claim within ten days after presentation is equivalent to a rejection.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand; and John E. Richards. J. E. Barber, and George H. Buck, Judges presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Monterey County and from an order denying a new trial. B. Y. Sargent, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contracts—Agency for Sale of Fruit Boxes—Amount of Commissions.'—Where a contract between the manufacturer of fruit boxes and an agent for their sale in certain territory, which was already represented by another agent, provided that the former agent was to receive twenty-five per cent of the total commissions payable on the business done by the latter agent and itself should its individual sales amount to twenty-five per cent or more of such business, and in the event of its sales amounting to less than twenty-five per cent of such combined sales, it was to receive five per cent commission on the actual sales it made, it was not entitled to any commission other than the twenty-five per cent of the amount earned by the joint efforts of the agents specified in the contract, if its sales amounted to more than one-quarter of the joint sales.</p> <p>Id.—Accord and Satisfaction—Check in Full Settlement of Account—Subsequent Conduct of Parties.—An accord and satisfaction between the parties to a disputed account is not established by the acceptance and cashing of a check given in full settlement of the account, where the note which accompanied the check stated that the sender had no personal knowledge regarding the transaction, but relied on an inspection of its books of account, which seemed correct, and the recipient of the check did not apply the payment as closing the account, but merely gave the sender credit for it on its books, and thereafter negotiations looking to a settlement of the account were had between the parties.</p>

<p>Action' Against Garnishee—Pleading—Sufficiency of Complaint.— In the absence of a special demurrer, a complaint against a garnishee which alleges that on a certain date defendants became indebted to plaintiff in a specified amount by virtue of a certain writ of garnishment being served upon them by the sheriff of a named county in a certain designated action, sufficiently states a cause of action.</p>

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

<p>Contracts—Guaranty—Security for Payment of Rent—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>L>.—Construction of Contract.—In such a ease where the contract of sale was prepared by the guarantor and neither the lessor nor any legal advisor 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.—Parol evidence of the eon- • versations 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>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Charles Wellborn, 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. Henry C. Gesford, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

APBEAL from a judgment of the Superior Court of the County of Santa Cruz denying an application for a writ of mandate. Benj. K. Knight, Judge. The facts are stated in the opinion of the court.

<p>Action for Damages—Negligence—Personal Injuries—Violation of Municipal Ordinance'—Nonsuit.—The operation of an automobile on the wrong side of the street in violation of a municipal ordinance, is negligence per se, but it must be shown that such negligence was the proximate cause of injuries resulting to another in colliding with the bicycle upon which he was riding in order to hold the former liable; in other words, there must be a causal connection between the unlawful act and the injury; but in such a case where it appeared that the negligent act of the defendant continued to the very moment of the collision, a nonsuit could not properly be granted upon the ground that there was no testimony indicating that defendant’s negligence caused the injury to plaintiff.</p> <p>Id.—Contributory Negligence—Question for Jury.'—In such a case it was error to grant a nonsuit upon the ground of plaintiff’s contributory negligence based upon the facts that plaintiff, who was a boy of the age of about twelve years, rode his bicycle down the street without a brake or any means upon his wheel to stop or adjust the speed of his bicycle; that he did not try to stop the speed of the bicycle; that some one called him as he approached the street on which defendant was driving and that he was then going so fast that he could not stop the bicycle and discovered then for the first time that his brake would not work, and that if he had used ordinary means to prevent the accident, it would not have happened, as, at most, this was but sufficient to present a question for the jury to determine.</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 Placer County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Unlawful Detainee—Lease—Uncertainty of Description.—Where a lease of a certain building described the property as “on the southwesterly line of California and Larkin streets,” in San Francisco, it is plain that there was a clerical error in substituting the word “corner” for the word “line,” as taking judicial notice of the streets in San Francisco, and of the direction in which they run, the court can determine that there is no southwesterly line of California and Larkin streets; and an action in unlawful detainer to recover the premises and rent may be maintained without first resorting to an independent equitable action to reform the lease, where the description was sufficient to enable the tenant to take possession of the property intended to be covered by the lease and continue in possession until ousted by this action, during a portion of which time rent was paid according to the terms of the lease.</p> <p>Id.—Bent—Attorney’s Fees.—In such an action plaintiff is entitled to a judgment, not only for the rent that was due when the suit was commenced, but also for the rent that accrued up to the time of judgment, and also attorney’s fees taxed as. costs, where the lease expressly provided for them.</p>

<p>Building Contract—Destruction or Uncompleted Building—Bights or Parties.—Where a building contract provided for payment of seventy-five per cent of the contract price as the work progressed and twenty-five per cent thirty-five days after acceptance of the work, and it was further provided that in case the work, before completion, should be wholly destroyed by earthquake or other acts of God, the loss occasioned thereby should be sustained by the owner to the extent that he had paid installments thereon, or that might be due under the contract, and the loss to be sustained by the contractor should be for the uncompleted portion of the work upon which he might be engaged at the time of the loss and for which no payment was yet due under the contract, the contractor was entitled to payment for those amounts only that were due at the time of the destruction of the building by earthquake and not the full value of the work done at the time of such destruction.</p>

<p>Action for Monet had and Received—Deposit on Contract for Purchaser of Land—Sufficiency of Evidence.—In this action to recover a sum of money paid as a deposit on a contract for the purchase of a parcel of real estate brought against the vendor and the real estate broker to whom the deposit was paid, it is held that the finding that the broker was not the agent of the owner of the property is supported by the evidence, but that the finding that such broker and the owner were jointly liable to the plaintiff for the repayment of the deposit is not sustained by the evidence, which shows that the owner only received a part of the deposit.</p> <p>Id.'—Contract for Sale of Land—Time to Perfect Title.—Where a contract for the sale of land provides that the vendor shall have thirty days to remedy defects in title after notice of same and that the deposit is to be returned in the event that the defects are not remedied within such -time, he is not entitled to a reasonable time thereafter within which to perfect the title.</p> <p>Id.-—Time of Essence of Contract—Express Statement Unnecessary.—It is' not necessary in order that time shall be of the essence of a contract that it shall be so declared in those words, as any provision in the contract from which that intention clearly appears is sufficient.</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 for a new trial. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Building Contract — Suretyship — When Surety Exonerated.—A surety is exonerated, except in so far as he may be indemnified by the principal, if by any act of the creditor, without the consent of the surety, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto in any way impaired or suspended, and where such is the case no inquiry will be allowed as to whether or not the surety was in fact injured thereby.</p> <p>Id.-—Building Contract—Correction of Monthly Estimate of Labor Done and Materials Furnished—Surety not Exonerated.— Where a building contract provides that the progress payments are to be based upon the monthly estimates of all work done and materials furnished and “paid for in the building” up to and including the last day of the preceding month, but that such estimates “are presumed to be only approximate,” and subject to the correction in any subsequent monthly estimates, the owner is not entitled there- _ under to authorize the issuance of any certificate upon which the monthly payments to the contractors were to be made unless the labor performed and the materials furnished were paid for and the material in the building, but such estimates are not thereby required to conform precisely to the actual labor performed or the material furnished and paid for in the building, and if the same should include labor or materials not actually performed or furnished, the error is subject to correction in subsequent estimates, without being a departure from the terms of the contract or of the bond which insured its faithful performance.</p> <p>Id.—Action Against Surety—Substantially Complied With Contract.—In this action on a surety bond executed to insure the faithful performance of the terms of a building contract it is held that the evidence shows that the demands of the contract as to the ascertainment of the payment of bills for labor and material were substantially complied with before making payments to the contracting company.</p> <p>Id.—Advances to Contractors por Freightage—Surety not Discharged.—The surety on such a bond is not injured by the payment to the contractors of a sum of money before due to enable them to pay the freightage upon certain materials to be used in the construction of-'a .building, where such materials were actually so used and they and the payment for their freightage actually accounted for in a subsequent estimate and payment.</p> <p>Id.—Changes in Plans—Surety not Discharged.—Where a building contract provides that the owner might “make or require to be made any alterations, additions, omissions or substitutions in the plans, material, or workmanship which it may desire, without invalidating this contract,” and further provides that should alterations or deviations from the plans and specifications involve increased, or diminished expense or require additional time to complete the building, a proper addition to or reduction of the contract price should be made and a reasonable amount of time added for the completion of the building, the surety on the bond was bound by such provision, and cannot urge that certain deviations from the plans were made without his consent, and thereby added to its liability.</p> <p>Id.—Instructions to Jury—Release op Surety.—Instructions that a surety on a contractor’s bond cannot claim a discharge of his obligation because of a premature payment by the owners to the contractor if he has not been harmed by such prepayment; that such surety is not relieved of his liability by reason of a change in the Contract without his knowledge where changes are made wholly at the expense of the one for whose protection the bond is given and did not add to the surety’s liability; that a provision in a building contract for payments on the certificates of the architect superintending the construction for the owner is for the benefit of the latter only, and that a payment made without such certificates would not constitute a premature payment if it was actually due at the time of payment, and that payment made before it was due would not relieve the surety unless the latter had by reason of sueh payment suffered some harm or damage or the effect thereof was to increase its liability or lessen its security, correctly state the law applicable to a contractor’s bond.</p> <p>Ed.—Abandonment op Contract—Liability op Material.—An instruction that after the contractor had ceased working on the building before its completion, and the three days’ notice in writing as prescribed by the contract, of the intention of the owner to enter upon the completion of the work on a specified day, and exclude the contractor and his men therefrom, had been given by the owner to the contractor, the latter must be deemed to be in charge of the building and responsible for all materials therein until the expiration of the time so given and that if during that time any materials were removed from the building, no deductions on account of sueh materials could be made or allowed as against the owner, is a correct statement of the law.</p> <p>Id.—Measure op Damages.—In this case it is held that the measure of damages1 is the difference between the contract price and the cost of the building and the loss following the delay in its completion. ‘</p>

<p>Broker’s Commission—Sale of Beal Property—Failure to Procure Purchaser—Sufficiency of Evidence.—In this action by a broker to recover a commission for the sale of real property, it is held that the finding that the plaintiff did not procure or find a purchaser within the time provided is supported by the evidence.</p> <p>Id.—Evidence—Admissibility of Letters.—In such a case it was competent for the owner to show by letters between himself and the purchaser that he himself, unaided by the plaintiff, procured the purchaser.</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>Common Carriers—Recovery of Freight Overcharge mom Railroad Corporation—Jurisdiction of State Courts.—There is nothing in either the constitution or any of the statutes of this state to warrant the conclusion that the courts may not entertain an action for the recovery of moneys paid for freight when the same were collected in violation of law, and the requirement of the Railroad Commission Act of 1911 (Stats. 1911, p. 13), compelling the presentation of applications for relief on account of excessive or discriminatory charges to the railroad commission has not divested the jurisdiction of such courts.</p>

<p>Criminal Law—Murder—Sufficiency of Evidence.—In this prosecution for murder it is held that the verdict finding the defendant guilty of murder of the second degree is supported by the evidence.</p> <p>Id.—Evidence—Dying Declaration—Opinion of Deceased as to Responsibility for Homicide—Proper Instruction to Jury.—An instruction to the jury in such a prosecution that if they believed from the evidence that the deceased, after he was shot, made a statement as to who shot him, and under what circumstances the shot was fired, and that at the time he made such statement he believed he would die from the effects of said shot and entertained no hope for recovery, then they should give such statement, if proven, as touch weight as if he were duly sworn, present, and testified in the case, is not subject to the objection that the instruction is not applicable to the facts, because the deceased did not speak of the circumstances under which the shot was fired but said he was not to blame, where the evidence, independent of such opinion, shows that the defendant was to blame for the homicide.</p> <p>Id.—Responsibility for Homicide — Opinion of Deceased — Attack upon Appeal.—The introduction in evidence of the opinion of the deceased that he was not to blame for the homicide cannot be attacked upon appeal for the first time, where the same was elicited by an unobjectionable question and no motion made to strike out the answer.</p> <p>Id.—Statement of Defendant to District Attorney—Voluntary Character.—It is also held- in this ease that the preliminary proof as to the voluntary character of the statement made by the defendant to the district attorney was sufficient to warrant its introduction in evidence.</p> <p>Id.—Cause of Separation of Defendant from Wife—Proper Cross-examination.—Where the wife of the defendant had virtually testified that she was induced to leave her husband by the solicitations and importunities of the deceased it was open to the prosecution to assail the credit of this statement by inquiry as to whether she had not declared that she left on account of the ill-treatment of her husband.</p>

<p>Mechanics’ Liens—Labor on Mining Claim—Knowledge op Owner’s Nonliability—Recordation op Notice Unnecessary.—Where a person performing labor upon a mining claim has actual notice and knowledge by a notice posted upon the claim by the owner that she would not be responsible therefor, a judgment against her is unwarranted, notwithstanding that she failed to file such notice in the office of the county recorder as required by the act of 1911 (Stats. 1911, p. 1318).</p> <p>Id.—Foreclosure op Lien—Judgment.—Where in an action for the foreclosure of a lien on a mining claim, the judgment declares that the plaintiff has a lien for work and labor performed without stating the amount, such judgment is a final determination of the issues, and the court has no authority to render a second judgment reciting the amount, without setting aside the first judgment.</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 for a new trial. J. A. Plummer, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Cancellation of Promissory Note—Pleading—Ownership of Assignee—Sufficiency of Complaint.—A complaint in an action to obtain a decree for the cancellation of a promissory note and for the retransfer of corporate stock pledged to secure the payment of such note is not subject to general demurrer for failure to expressly allege that the plaintiff, to whom the stock and the right to sue therefor had been assigned, was the owner or entitled to the possession at the time of the commencement of the action, where it is alleged that plaintiff’s assignor was the owner of the stock up to and including the day, when, it is alleged, he assigned the stock and his right to sue for it to the plaintiff, and the plaintiff brought the action the day following the assignment and alleged that the stock had previously been assigned to him.</p> <p>Id.—Transaction Concerning Pledged Stock—Sale not Constituted. A sale by the pledgor to the pledgee of stock delivered to the latter by the former to secure the payment of a promissory note, is not established by the execution by the parties of a written agreement after the maturity of the note declaring that the “debt shall be and is hereby canceled and said stock shall now become the property” of the pledgee, and that the pledgor “shall have the right or option to purchase the stock” within a provided time for a stated amount, where it is shown by parol evidence that it was not intended thereby to change the legal relations of the parties, the pledgee continued thereafter to hold the note, and the debt was vastly less in amount than’ the value of the stock.</p> <p>Id.—Evidence—Parol Evidence as to Nature of Transaction.—It is not erroneous to permit the introduction of parol evidence to show that the transaction leading up to the execution of the written agreement did not involve a sale or was not intended to change the legal relation of the parties, notwithstanding that no fraud or coercion was charged in the procurement of the writing.</p> <p>Id.—Deed as Mortgage—Bule Applicable to Personal Property.— The rule of law that parol testimony is competent to show that a deed, absolute upon its face, was not, as a matter of fact, intended to convey the absolute fee but to operate only as a mortgage, is applicable where the subject of the transaction is personal property.</p>

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

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

<p>Criminal Law—Commission of Lewd Act With Child—Sufficiency of Evidence.—In this prosecution for the commission of a lewd and lascivious act with a child thirteen years of age, it is held that while the story told by the girl contained certain elements of improbability, it cannot be said that the story as a whole is so inherently improbable as to require the setting aside of the verdict upon the ground that it must have been rendered under the influence of passion or prejudice.</p> <p>Ib.—Evidence—Illicit Relationship of Mother of Prosecutrix With Defendant.—Where the mother of the child testified upon her direct examination that her daughter had admitted to her that the defendant had never tampered with her, it is proper to question the mother, on cross-examination, for the purpose of showing her interest in the defendant, as to illicit relations which she herself had with the defendant on a number of occasions.</p> <p>Id.—Improper Question by District Attorney—Failure to Assign as Misconduct.—The defendant cannot be heard to complain of the alleged misconduct of the district attorney in asking the mother of the prosecutrix if she is not proud in taking sides with the defendant, where the asking of the question is not assigned as misconduct at the trial.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Thomas C. Denny, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial. Wm. H. Waste, 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. William P. Lawlor, 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. Frank H. Dunne, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Perjury—Materiality of Matter Sworn to.-—The matter sworn to need not be directly and immediately material to constitute the crime of perjury, but it is sufficient if it be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact by giving weight or probability to the testimony of a witness testifying thereto, or otherwise.</p> <p>Id.—Prosecution for Receiving Stolen Goods—False and Material Testimony—What Constitutes.—The giving of false testimony upon the preliminary examination in a prosecution for receiving stolen goods, the tendency of which testimony was to fix the crime upon the defendant charged therewith and to show that the witness had taken no part in the transaction, constitutes the giving of false and material testimony within the meaning of the rule.</p> <p>Id.—Materiality of Testimony—Determination by Jury—Erroneous Instruction.—An instruction to the jury which submits to them the determination of the materiality of testimony given at the preliminary examination of a criminal charge, upon which prosecution for perjury is based, is erroneous, as such determination is a question of law for the court; but the instruction is not prejudicially erroneous, where the jury is elsewhere instructed that all of “the said testimony . . . was a material matter and was material evidence and testimony in the said preliminary examination and proceeding.”</p> <p>Id.—Falsity of Part of Testimony—Proper Instruction.—An instruction that it was not necessary to a conviction of the defendant that the jury find all of the testimony alleged in the indictment to have been given by the defendant, false, but that if any of the matters and things so sworn to were proven false, such fact would justify them in finding defendant guilty of the charge of perjury, is not erroneous, where the indictment sets forth upwards of thirty answers to as many questions propounded to the defendant in the case out of which the prosecution arose, and alleges that each and everyone of said answers was false.</p> <p>Id.—False Statement—Sections 118, 125, Penal Code.—An instruction to the jury in a prosecution for perjury embodying the provision of section 125 of the Penal Code, that “An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false,” is not prejudicially erroneous, when read in connection with an instruction given in the language of section 118 of the Penal Code.</p> <p>Id.—Evidence—Kesolution op Corporation—Prejudicial Error.—It is gross error in such a prosecution to admit in evidence a resolution of the corporation of which the defendant was president showing his removal from office for wrongful appropriation of moneys belonging to the corporation, and the prejudicial effect thereof is not cured by the fact that the defendant introduced the findings and judgment of a court in a civil action brought by the corporation against defendant to recover such moneys which findings and judgment exonerated him from the charge.</p> <p>Id.—Evidence—Impeachment op Witness.—The state of mind of a witness, his interest in the ease, hostility to, friendship for, bias and prejudice against the parties, are always proper matters for inquiry, and this is especially true where the one testifying occupies the position of prosecuting witness.</p>

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

<p>Libel — Action for Damages — Pleading — Insufficiency of Complaint—Charge of Insolvency.—In an action for damages for libel based upon notices alleged to have been sent by defendants to certain corporations, and to a bank, where the complaint did not set out -the words in which the notice to the bank was framed but pleaded it as, “A notice in writing, signed by them, in and by which notice in writing they wrongfully, maliciously and falsely charged that the plaintiff was insolvent, and that they were about to have him declared insolvent, and were about to have a receiver appointed of his business and affairs,” and then pleaded an innuendo that it was intended by the notice to charge that the plaintiff was insolvent, a demurrer to the complaint upon the ground that -the alleged libelous words did not appear in the pleading was properly sustained.</p> <p>Id.—Libelous "Words—Innuendo.—Unambiguous publication in words of common and ordinary import, containing no technical or provincial terms, is libelous per se or not libelous at all; and where statements which it is charged were libelous do not show upon their face that they -are such, nor by a reasonable inference can they be so construed, the fact that the plaintiff pleaded an innuendo as indicating a hidden meaning to- be drawn from the words, does not aid the cause of action.</p> <p>Id. — Order Sustaining Demurrer — Power to Correct. — Where the court first made an order sustaining a demurrer only as to certain of the causes of action and overruling it as to others, and later entered a corrected order sustaining a demurrer as to each of the alleged causes of action, the second order showing that the first entry was made by the clerk in the form in which it appeared through inadvertence, and reciting that the first ruling as entered was incorrect, and for that reason the minutes were ordered corrected to set forth the intended ruling of the court, there was no error in the action of the court.</p> <p>Id.—Sustaining Demurrer on Specific Grounds—When Sufficient on Appeal.—Where the trial judge has sustained a demurrer upon certain specific grounds, the ruling cannot be disturbed on appeal where it appears that any of the objections taken to the complaint, even though they be other than those deemed valid by the trial judge, are good.</p>

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

<p>Foreclosure or Mortgage—Appeal—Orders and Papers not to be Considered.—Upon an appeal from a judgment forclosing a mortgage under the alternative method prescribed by section 953a et seq. of the Code of Civil Procedure, intermediate orders and papers referred to which are no part of the judgment-roll and the integrity and purpose of which have not been certified to by the trial judge, cannot be considered.</p> <p>Id.—Absence or Evidence—Presumption in Favor or Findings.—On such an appeal where the record does not contain the evidence, only the papers constituting the judgment-roll can he considered, and it must he presumed that the evidence supported the findings.</p>

<p>Water-rights—Action to Determine—Sufficiency of Evidence.—In this action to determine certain water-rights, it is held that the evidence was sufficient to support the finding that plaintiff was the owner of one-sixth of the waters in question and that the development of certain waters by defendants and their predecessors in estate above the spring from which plaintiff’s waters flowed did not affect the flow at that spring.</p> <p>Id.—Conflicting Evidence—Appeal.—Where the evidence is conflicing but there is substantial evidence to support the findings of the trial court, every substantial conflict must be resolved in favor of the findings.</p>

<p>Vendor and Purchaser—Mutual Termination op Contract by Known Parties—Becovery op Deposit by Unknown Interested Purchasers.—Where in an action brought to recover the deposit paid upon a contract for the sale and purchase of real estate it is shown by the acts and declarations of the vendor and the person whom the agents of the vendor led the latter to believe was the only interested purchaser, that the vendor and such person had mutually terminated their respective obligations under the contract and released each other therefrom in consideration of the retention of the deposit by the vendor, the intent of said parties cannot be defeated by allowing parties never known by the vendor to have had any interest in the contract to come in nearly four years thereafter and seek recovery of the deposit on the theory that it was their money and not the money of the person represented to the vendor as the real and only purchaser.</p> <p>Ib.—Mutual Abandonment op Contract—Oral Agreement.—A contract can be mutually abandoned by the parties at any stage of their performance and each of the parties released from any further obligation on account thereof, and such abandonment may be done by parol and the fact of its having been done established by evidence of the acts and declarations of the parties.</p>

<p>APPLICATION for a Writ of Review originally made in the District Court of Appeal for the First Appellate District directed against the State Board of Dental Examiners.</p> <p>The facts are stated in the opinion of the.court.</p>

<p>False Imprisonment—Recorder's Court—Warrant.—A warrant is a process issued in the name of the state, directed to any sheriff, constable, marshal, or policeman commanding him to arrest and to take into custody the named defendant.</p> <p>Id.—Failure to Serve Warrant—Contempt.—The failure to serve a warrant issued by a recorder’s court would be disobedience of the lawful order of the court, and hence contempt thereof, for which the officer so disobeying might be punished as provided by law.</p> <p>Id.—Service op Warrant—Duty op Oppioer.—An officer whose duty it is to serve process is bound to serve the same when such process is regular on its face.</p> <p>Id.—When Process Regular.—Process is said to be regular on its face when it proceeds from the court, officer, or body having authority of law to issue process of that nature, and which is legal in form, and contains nothing .to notify, or fairly apprise any one that it is issued without authority.</p> <p>Id.—Lack op Authority to Issue Warrant—Duty op Oppioer.—When lack of authority is apparent the officer is not only justified but it is his duty not to serve the illegal process; and if he does so, it is at his peril.</p> <p>Id.—Pleading—Insufficiency op Complaint—Irregularity op Warrant Must be Alleged.—In an action for damages for false imprisonment where the complaint shows that the imprisonment was made under a warrant, it is the duty of the plaintiff to set out in his complaint the fact that such warrant was irregular on its face, and where the complaint fails to do so, a demurrer should be sustained, to it.</p>

APPLICATION originally made in the District Court of Appeal for the Second Appellate District for a Writ of Mandate to compel the entry of a final decree of divorce. The facts are stated in the opinion of the court

<p>Criminal Law—Murder—Firing of Pistol Shots into Body After Blow by Third Party—Conviction—Sufficiency of Evidence.— Where in a prosecution for the crime of murder charged to have been caused by the firing of pistol shots into the body of the deceased by the defendant immediately after the deceased had been struck a fatal blow by a third party, the evidence is not conclusive as to which of the injuries was the immediate cause of death, proof of the firing of the shots is sufficient to justify a conviction.</p> <p>Id.—Conviction of Defendant as Accomplice—Proper Instructions to Jury.—Instructions to the jury in such a prosecution which assumed that the evidence might tend to show and that the jury might find that, although the immediate cause of death was the blow administered to deceased, yet the defendant might be convicted as an accomplice, if the jury should find that his actions were those of an accomplice, are not erroneous, notwithstanding the information was in the ordinary form and made no reference to the means by which death was produced.</p> <p>Id.—Death from Blow—Duty to Acquit-—Improper Instructions.— It is not error in such a prosecution to refuse to instruct the jury that if they believed from the evidence that the deceased died as a result of the blow it was their duty to acquit the defendant; or, that if they believed from the evidence that deceased was dying as a result of the fracture of his skull from the blow when the shots fired by the defendant struck him and that his death was not hastened as a result of the pistol shot wounds, it was their duty to acquit the defendant, as both instructions ignore and exclude from consideration any evidence tending to show and from which the jury may have believed that under the circumstances shown the defendant was accessory to the acts of the party administering the blow.</p> <p>Id.—Reasonable Doubt as to Cause of Death—Duty to Acquit— Improper Instruction.—An instruction that if there was in the minds of the jury any reasonable doubt as to what caused the death of the deceased, it was their duty to give the defendant the benefit of such doubt and to acquit him, is improper,' as the only doubt under the evidence was as to the relative results of the blew and of the shots, which doubt might exist without entitling the defendant to a verdict of acquittal.</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>Dismissal—Failure to Prosecute Action—Jurisdiction—When not Lost.—Jurisdiction in an action is not lost by reason of the plaintiff’s failure to prosecute it to trial within five years after filing of the answer to the complaint, as required by section 583 of the Code of Civil Procedure, where the delay is attributable in part to the action of the defendants in asking for and being granted permission to file a cross-complaint when the plaintiff made an effort to have the cause placed upon the calendar for trial within two and a half years after the answer to the original complaint had been filed.</p> <p>Id.—Filing Cross-complaint—Defendants as Actors.—Upon the filing of the cross-complaint in such a case the defendants became aggressive and interested actors in the presentation of at least one phase of the case, and therefore, they were charged in part with the duty of bringing the case on for trial.</p>

<p>APPEAL from a judgment of the Superior Court of the County of San Diego 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>Criminal Law—Pimping—Excessive Sentence—Erroneous Judgment —Correction on Appeal.—In a prosecution for the crime of pimping where the court imposed a term of imprisonment in excess of the maximum term fixed by the statute, the judgment was merely erroneous and not void, and may be corrected upon appeal, but the trial court had no power after the judgment was in process of execution to set it aside and pronounce a new judgment for a term within that provided by the statute.</p> <p>Id.-—Erroneous Judgment—Excessive Penalty—Valid for Legal Term.—In such a ease the first judgment remained in force and was valid for such portion of the imprisonment specified therein which did not exceed the maximum term of imprisonment prescribed for the offense for which the defendant was convicted.</p> <p>Id.—Motion for New Trial—When Too Late—Dismissal.—Where the defendant made no motion for a new trial at the time when the first judgment was pi-onounced, the proceedings of the court thereafter upon which it undertook to recall the defendant and set asida the original judgment being entirely void, the defendant at that time had no right to make a motion for a new trial and the court had no right or jurisdiction to entertain the same, either to grant or deny it, and an attempted appeal from an order made at that time denying such motion will be dismissed by the court, although no motion therefore has been made.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. M. L. Short, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action to Quiet Title — Deformation of Deed — Insertion of Property by Mistake—Evidence—-Competency of Witness.—In an action by the devisee of a wife’s separate property to quiet title thereto and have the description of the same expunged from a deed intended to convey only the separate property of the husband, and which the wife only signed upon the request of the husband for the purpose of avoiding any objections to the title to his property, the attorney who drew the deed- and who took their acknowledgments thereto is competent to testify that the insertion in the deed of the description of the wife’s property was by mistake, where it is shown that he had been the attorney for both and had attended to such matters as either of them brought him and possessed their confidence, but that in the particular instance he was not called upon to advise either of them, but simply requested to draw the deed and take the acknowledgments, which had been determined upon before they called upon him.</p> <p>Id.—Attorney and Client—Communications—When not Privileged. There are many cases in which an attorney is employed in business not properly professional and where the same might have been transacted by another agent; and in such cases, the fact that the agent sustains the character of an attorney does not render the communication attending it privileged, and it may be testified to by him the same as by any other agent.</p> <p>Id.—Mistake—Equities.—In such an action, the equity of the devisee of the wife is superior to that of the grantee's under the deed, and he may maintain an action to reform the deed.</p>

<p>Action to Quiet Title—Fraud—Transfer of Notes and Mortgages— Evidence—Bona Fide Transaction.—In this action to quiet plaintiffs title to certain notes and mortgages purchased by him at sheriff’s sale under a writ of execution issued upon a judgment obtained by the plaintiff against the original owner of the notes and mortgages, it is held that the evidence supports the finding that the transfer of the notes and mortgages by such original owner to the defendant herein involved a tona fide transaction and was not done with intent to defraud creditors.</p> <p>Id.—Evidence—Improper Impeachment—Hearsay.—In such an action, it is not error to refuse to permit a witness to testify as to what the agent of the original holder of the notes and mortgages had told him that his principal had written concerning his continued ownership of the notes after having transferred them to the defendant, the testimony sought being hearsay.</p> <p>Id.—Pleading—Amendment to Conform to Evidence—When Refusal not Erroneous.—It is not an abuse of discretion to refuse leave to the plaintiff to amend his complaint so that it would conform to certain facts developed by the evidence relative to the time at which the assignment of the notes and mortgages was made, where he was properly given, under the rulings of the court, the full benefit of the proof to which the proposed amendment was directed.</p> <p>Id.—Trial—Refusal to Reopen Case—Review on Appeal.—An order overruling a motion to reopen a ease before decision rendered is not an appealable order, but is reviewable on appeal from the judgment and the order denying a new trial when the proceeding is incorporated in the bill of exceptions.</p>

<p>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Second Appellate District directed to the Civil Service Commission of the County of Los Angeles to compel it to audit and certify to the demand of petitioner for salary as Chief Probation Officer.</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. Charles Munroe, 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 Diego County. T. L. Lewis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law —■ Grand Larceny — Sale of Mortgaged Personal Property—Failure to Inform Mortgagee of Sale—Sufficiency of Evidence.—In this prosecution for the crime of selling mortgaged personal property without informing the mortgagee of the intended sale or the purchaser of the existence of the mortgage, it is held that the evidence was insufficient to show that the property sold was that mortgaged by the mortgage referred to in the information.</p> <p>Id. — Presumption of Innocence — Application, of. — In such a case every presumption is in favor of the innocence of the defendant, and, under this presumption, the Statement of the defendant that part of the property sold was mortgaged and part not, must be presumed to refer to mortgages other than the one mentioned in the information, where the evidence showed that other mortgages existed.</p> <p>Id.—Evidence—Sale of Cattle.—The mere fact that the cattle mortgaged could not be found on defendant’s ranch was not itself evidence of a sale .thereof to any one.</p> <p>Id.—Evidence of Intent—When not Necessary to Allege or Prove.— In such a case the intent with which the act was done is not an element of the offense; and when the intent is not made an affirmative element of the crime, the law imputes that the act knowingly done was with criminal intent and it need not be alleged or proven.</p> <p>Id.—Evidence of Other Offenses—Prejudicial Error.—Proof of intent not being required, it was prejudicial error to admit evidence offered by the prosecution, over defendant’s objection, showing the sale by the defendant of property included in other mortgages than that set forth in the information, for the purpose of proving the intent with which the act complained of was committed; and the prejudicial effect of such evidence was accentuated by reason of the fact that the court not only failed to instruct the jury as to the restricted purpose, for which, in a proper case, evidence of other like offenses may be considered, but gave an instruction embodying section 538 of the Penal Code in its entirety.</p>

<p>Negligence—Action fob Damages—Death of Party—When Action not Abated.—An action for damages for injuries to an automobile alleged to have been caused by the negligence of the defendant, is not abated by the death of the defendant during the pendency of the action, as the common-law rule has been modified by section 1584 of the Code of Civil Procedure, which provides that “Any person . . . may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken, or carried away, or converted to his own use, the goods, or chattels of any such person. ...”</p> <p>Ed.—Action Against Administrator—Construction of Section 1584 Code Civil Procedure.—Section 1584 of the Code of Civil Procedure does not apply alone to cases where the deceased has in his lifetime destroyed goods or chattels of which he was in possession, as each of the words, “wasted, destroyed, taken or carried away,” must not only be given some effeet, but should be construed in accordance with the plain import of the language used; and it is immaterial that the deceased was not benefited by the act.</p> <p>Id.—Injuries to Automobile—Contributory Negligence When not a Bar.—In an action for damages for injuries to an automobile based upon the defendant’s negligence, the right of the plaintiff to recover is not barred by his own negligence in operating his own ear at' the time of the injury in violation of statute, where there is no evidence that such operation contributed in any way to the injuries.</p> <p>Id.—Violation of Statute.—While the failure of a person to perform a duty imposed upon him by statute is sufficient evidence of negligence on his part, nevertheless such neglect, however illegal, in the absence of evidence showing it to have been the contributing cause of the injury, furnishes no legal ground for complaint.</p> <p>Id.—Evidence—Disqualification of Witness.-—It is prejudicial error to permit the plaintiff in an action against an executor for damages for injuries to an automobile based upon the negligent act of the testator in his lifetime, to testify as to the occurrences and facts upon which he based his claim and demand.</p>

<p>Contracts—Order for Payment of Money—Liability as Partners.— In this action to recover money under an agreement to accept and honor an order of a certain party for the amount, it is held that the evidence was sufficient to sustain the verdict against the defendants as copartners.</p> <p>Id.—Evidence—When Error Cured.—Any error committed by the court in permitting a witness to testify that certain store accounts were kept in the general names of the defendants was cured by the subsequent testimony of the same witness, where he retracted that statement and admitted his mistake.</p> <p>Id.—Intoxication of Witness-—Cross-examination.—In such a case the matter of discretion was involved in the court refusing on cross-examination of a witness to allow opposing counsel to ask how many drinks the witness had had on the day referred to in his testimony, and where the witness had already stated that he was not intoxicated at the time, the examination might properly have been considered by the trial judge as being beyond the limits of a reasonable cross-examination.</p> <p>Id.—Evidence—Proof of Contract—Failure to Identify Signature. There was no error in admitting in evidence the contract under which plaintiff’s assignor performed work, although the signature of one of the defendants thereto had not been identified, where it was admitted in all the testimony that the particular contract was one under which the work was done and the defendant, whose signature was not identified, at no time contended that this contract did not express the agreement correctly or that it was not so made.</p> <p>Ib.—Admission of Evidence—Instructions.—It is held that there was no error in the admission of evidence or in the instructions to the jury and that the evidence was sufficient to sustain the verdict and judgment.</p>

<p>Contracts—Promissory Note—Non-negotiability—Failure of Performance—Defense.—In this action to recover upon a contract in the form of a promissory note it is held that the note was an inseparable part of an agreement between the parties which constituted it a non-negotiable instrument, and that the findings of the trial court in favor of the defendants on their plea of failure of performance on the part of plaintiff were sustained by the evidence.</p>

<p>Negligence—Action for Damages—Personal Injuries—Nonsuit.— In this action for damages for the death of an electrician alleged to have been caused by the negligence of the defendant while the former was working as its employee in a distributing or transforming station of the defendant, it is held that a nonsuit was properly granted on the ground of the insufficiency of the evidence to warrant submitting the case to the jury.</p> <p>Id.—Nonsuit—Sufficiency of Grounds.-—Where it would have served no useful purpose to have made a more particular statement as to the sufficiency of the evidence to sustain the allegations of the complaint, a motion for nonsuit “on the ground and for the reason plaintifE had not produced sufficient evidence to warrant the court in submitting the same to the jury,” was sufficient.</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>Action for Conversion—Seizure of Property Under Attachment—• Purpose of Bond to Prevent Levy—Insufficient Finding.—In an action against a sheriff for the alleged conversion of personal . property seized by him under a writ of attachment regularly issued in an action against the plaintiff and his copartner for a partnership debt, a judgment against such officer is unwarranted, where it is set up as a defense that the plaintiff failed to give the defendant security to prevent the attachment of such property, and there is no finding that the security given by the plaintiff’s co-partner to prevent such attachment was given for or on behalf of plaintiff or to prevent the attachment of plaintiff’s property.</p> <p>Id.—Attachment—Bond to Prevent Levy—Construction of Code.—• Section 540 of the Code of Civil Procedure manifestly means that the plaintiff cannot have the property of the defendant attached if the required security is given by a bond to prevent the attachment, but the section requires that such bond be given by the one whose property is about to be attached, the demand of the section being that “such defendant” give the security.</p>

<p>Contracts—Sale op Land—Action to Recover Purchase Price— Insufficient Defense of Fraud.—A vendee under a contract for the purchase of a small tract of land, which contract binds him to pay the price in two installments at stated times, and which also provides for his employment on a commission basis to make sales for the vendor of another and larger tract of land which the vendor is authorized to sell by the owners of such tract, is not in a position to avail himself of the claim that he has been released from all liability under his contract of purchase by reason of the inability of the vendor to convey title to the latter tract in eases of sales thereof made by the vendee in small parcels, where such vendee has failed to make the payments as provided for in his contract, and it is found by the court upon sufficient evidence that no fraud was committed by the vendor in the procurement of said contract, which the vendee set up as his only defense to the action to recover such payment.</p> <p>Id.—Findings—Conflicting Evidence.—A finding against the great weight and preponderance of the evidence can be maintained on the doctrine of conflict only where the alleged conflict rests upon evidence, either direct or circumstantial, which so materially contradicts the testimony on the other side, or is so radically inconsistent with it as to leave room in a fair and reasonable mind to find the fact the other way.</p> <p>Id.—Deed—Sufficient Description.—The description in a deed as “The north 1878 feet of the west 1852 feet of section 9, township 11 north, range 5 east', situated in the county of Placer, state of California,” is sufficiently definite and certain to enable the land to be identified.</p> <p>Id.—Vendor and Purchaser—Ability to Convey Title.—The vendor under an executory contract of sale is only required to have the title to the land at the time when by the terms of the contract he is obligated to convey.</p>

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

<p>Lease—Proposals and Counter-proposals in Letters—Oral Waiver op Points op Disagreement—Statute op Frauds.—A lease of premises sufficient to take the transaction out of the statute of frauds is shown by the writing of a letter to the owner of the premises offering to lease the same for a fixed term at a stipulated rental, provided that the writer should have the privilege of subletting and that the owner make certain alterations, and the reply letter thereto expressly accepting the offer “with some small changes” to the effect that the alterations be paid for by the lessee and that a bond to secure the lease be given by him, where thereafter at a subsequent interview the requirement as to the bond was waived and the lessee agreed to make the alterations at his own expense, and possession of the premises was delivered and accepted, notwithstanding that some time thereafter the lessee declined to sign a submitted form of lease for the reason that it contained a provision prohibiting the subletting of the premises.</p> <p>Id.—Statute of Frauds—Informal Writing.—A formal document in the form of a lease or other contract is not required in order to take a transaction out of the statute of frauds, but letters, telegrams, receipts, and like informal writings will suffice for that purpose if these are found to contain the essential elements of the agreement between the parties.</p>

<p>APPEAL from a judgment of the Superior Court of El Dorado County and from an order denying a new trial. N. D. Arnot, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contracts—Procuring Loan—Liability for Commission.—In this action to recover for services in procuring a loan for a corporation it is held that the evidence was sufficient to sustain the findings of the trial court in favor of the plaintiff.</p>

<p>Contract—Apportionment of “Becoveries or Avails Effected in Suits”—Construction of Stipulation of Parties.—A stipulation between the plaintiffs and their respective attorneys in two different actions against a common defendant, “that all recoveries or avails effected in either of said suits under or by virtue of the attachments which have been issued therein and levied upon the property (of the defendant) shall be ratably apportioned between said plaintiffs according to the respective amounts of their claims, or according to the respective amounts of the judgments rendered and entered in said suits, should judgments be recovered and entered,” is not subject to the construction that only such recoveries as might be obtained by either party from the common defendant under their judgment should be ratably apportioned, but contemplates that if the action, attachment, or judgment of either party culminates in a financial profit, whether as the result of an enforced satisfaction of the judgment by execution, or as the result of a fortuitous sale without resort to execution, the “recoveries” on the one hand, and the “avails” or proceeds on the other, are to be ratably apportioned between the parties to the stipulation, and one of the parties is therefore liable to the other for the latter’s proportionate share of the sum of money realized by the former from the sale of his cause of action and judgment; to a third party without execution. /</p> <p>Id.—“Avails and Becoveries”—Meaning of.—The word “avails” is not synonymous with the word “recoveries,” And as ordinarily understood and judicially defined, means the profits or the proceeds of the sale of property after deducting expenses; and the word “recover” when used in connection with actions, at law for money does not necessarily or even ordinarily^ include the actual payment of the money sued for, but onjy the recovery of the judgment for money. /--''</p> <p>Id.—Pleading—Admission—Evidence—Consideration.—Where the answer of the defendant in an action to recover upon such stipulation contains noticing more than a naked denial of the existence and eharaetei eft the particular consideration alleged in the complaint, thí existence of a sufficient consideration is an admitted fact in the c.t.o, and proffered evidence by the plaintiff upon the subject is psóperly excluded.</p>

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

<p>Public Park—Dedication to General Uses—Presumption.—Where a plot of land is dedicated to general park purposes without any reservation as to the nature and extent of its uses as such a public park appearing either in the agreement between the parties in- - terested in the dedication, or upon the recorded map of the subdivision of land within the confine's of which the park is located, purchasers of lots subsequent to the recordation of said map, and buying theirs lots with express reference to it, have a right to assume that the park designated thereon was only limited, as to its use and enjoyment by the public, to those purposes to which public parks are usually and properly devoted.</p> <p>Id—Children’s Playground—Proper Use of Park.—The devotion of a reasonable portion of a public park to tennis courts, croquet grounds, and children’s playgrounds, with suitable appliances for these forms of public amusement and recreation, comes strictly within the proper and legitimate uses for which public parks are created.</p> <p>Id.—Possible Abuse of Contemplated Uses—Insufficient Ground for Injunction.'—An injunction will not lie at the instance of a tax-payer to restrain the board of trustees of a municipal corporation from placing and maintaining tennis courts, croquet grounds, and children’s playgrounds in a public park of a municipality, on the ground that the installation of such amusements might possibly lead to other more noisy and less decorous forms of public amusement which would disturb the quiet and shock the moral and prudential senses of those residing in the vicinity of the park, as it is to be presumed that municipal oficiáis will perform their duty, and surround such contemplated uses with such suitable restrictions as will not only render such uses inoffensive, but will also safeguard them from undue extension and abuse.</p>

<p>APPEAL from an order of the Superior Court of Tuolumne County dismissing an action. G. W. Nicol, Judge. ■</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Dismissal op Indictment.—The order of dismissal of the indictment in this case is affirmed on the authority of People v. Knowles, (Grim. No. 297), ante, p. 498.</p>

<p>APPEAL from an order of the Superior Court of Tuolumne County dismissing an indictment. G. W. Nicol, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Tuolumne County dismissing an indictment. G. W. Nicol, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Suprerior Court of Los Angeles County. Charles Wellborn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPLICATION originally made to the District Court of Appeal for the Second Appellate District for a Writ of Mandate to compel the board of directors of a corporation to call an annual meeting of stockholders. The facts are stated in the opinion of the court.

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

<p>Municipal Corporations—Petition for Incorporation of City—■ Sufficiency of Notice.—A notice of the time for presenting a petition to incorporate a city under the act of 1883 (Stats. 1883, p. 93), and amendments thereto, which stated that such petition would be presented to the board of supervisors on Tuesday, April 5t'h, is sufficient, notwithstanding the day of the week corresponding with April 5th was Wednesday.</p> <p>Id.—Day of Week and Month in Notice—Inconsistency in—Bule.— Where the day of the week named in a notice does not correspond with the day of the month specified therein, the latter controls, and the day of the week may be discarded as surplusage.</p> <p>Id.—Presentation of Petition—Adjourned Meeting—Sufficiency of Notice.—In such a case where the board of supervisors met in regular monthly session on Tuesday, April 4th, and adjourned its meeting to Thursday, April 6th, by reason of which action the petition was not presented to the board on April 5th, but presentation thereof was made at the session held on April 6th, the adjournment being but the continuance of the session and the interruption being in the nature of a recess, the presentation of the petition, pursuant to the published notice, although made on the 6th, the day to which said adjournment was had, was sufficient to entitle it to a hearing.</p> <p>Id.—Second Adjournment—Unfinished Business Carried Over.— Where on April 6th, upon presentation of the petition, the board took certain action thereon, after which, without making any formal order adjourning the hearing of said matter, it was ordered that the meeting of said board be adjourned to April 14, 1911, at which time it directed notice of the election of officers as required by law for the formation of cities, the adjourned meeting being but the continuance of the regular meeting, in the absence of any order to the contrary, carried over to such time for further hearing unfinished business pending before the board, such order being implied from the order adjourning the meeting.</p> <p>Id.—Order for Continuance—Presumption.—Where on May 29, 1911, at a special meeting of the board of supervisors, an order was made and entered to the effect that the city be incorporated as a municipal corporation, the contrary not being made to appear, it must be presumed that the hearing of the matter was at the adjourned meeting of the board continued to May 29th, at which time the order was made.</p> <p>Id.—Failure to File Certified Copy of Order With Secretary of State—Failure to Ascertain Number of Inhabitants—Irregularities.—In such a case the failure of the board to order a certified copy of its order filed in the office of secretary of state, and its failure to ascertain the number of inhabitants within the boundaries of the proposed city before ordering the publication of notice of the election of officers therein, were at most errors and irregularities which cannot be reviewed in a proceeding for a writ of certiorari to annul the order of the board incorporating the city, since the board had jurisdiction to act.</p>

<p>Contracts—Sale of Land—Agreement to Return Purchase Price— Purchaser Dissatisfied—Construction ' of Contract.—The purchaser under a contract for the sale and purchase of lands planted in eucalyptus trees, which contract was executed by the selling agent for a larger tract, he being entitled to have allotted to him lands from the larger tract as compensation for his services in making such sales, was not required within six months of the date of the contract to elect whether he would enforce his demand for the return of the purchase price of the land, the contract providing that the seller should pay back the purchase price one year from date if the purchaser so demanded, and a written application made by the purchaser to the company owning the land providing that the purchaser should examine the land within six months, and if dissatisfied might reject the contract; but he was entitled to hold the property for a year, and if dissatisfied with it during any of that time, he might demand back the purchase price.</p>

<p>Contracts—Sales—Action for Purchase Price—Destruction of Property—Delivery of Possession—Insufficiency of Evidence to Show.—In this action to recover the purchase price of a planing mill which was destroyed by fire on the day the transaction was to be closed, it is held that the" uncontradicted evidence established that the contract between the parties was at the time of the burning of the mill purely executory, but possession of the mill had not been taken by the defendant, and that when the fire occurred the loss incurred thereby was one which as between these parties must fall upon the plaintiffs.</p>

<p>Estate of Deceased Person—Rejection of Claim—Action on—Statute of Limitations.—Where an amended claim against the estate of a deceased person was presented to the executor within due time after the first publication of notice to creditors, and at a time when the executor had not acted upon the claim theretofore presented, as required by law, the time within which the claimant’s action upon the claim should be commenced being fixed by the date of the rejection of the claim, the action was not barred by the statute of limitations, where the complaint was filed within three months after the rejection.</p> <p>Id—Evidence—When Claimant Disqualified as Witness—Section 1880, Code Civil Procedure.—Under section 1880 of the Code of Civil Procedure, parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person, are not competent to testify to the claim or demand in an action upon it.</p> <p>Id.—Construction of Section 1880 Code of Civil Procedure—Purpose of.—The purpose of the rule stated in section 1880 of the Code of Civil Procedure is to prevent a plaintiff in an action to recover upon the claim against the estate of a deceased person, from giving testimony which would in itself tend to establish plaintiff’s claim or demand.</p> <p>Id.—Book Account—Inadmissibility of Claimant’s Testimony as to Correctness of.-—The rule of said section is violated by permitting the claimant to testify (and in this instance to give the only testimony) to the effect that the entries in his book of accounts made by him at or about the time of the transactions upon which the claim is based and to which the entries related were true and correct; but he might be permitted to testify that he kept such book of accounts at the time stated and that the book produced was the one kept by him, and if his evidence wore supplemented by evidence other than the claimant’s testimony establishing the trustworthiness of the account book, it would then be receivable in evidence.</p> <p>Id.—Account Books—Verification of.—When books of account are offered in evidence to establish items of account, it is necessary to show by other evidence the correctness of the books. This may be shown hy testimony of those who have dealt and settled with the party from his book of accounts, that he keeps fair and honest books of account; or the correctness of the entries may be shown by the testimony of any one who is able of his own knowledge to testify to their correctness.</p> <p>Id,—Claim as Evidence—Purpose of Admission.—The admission in evidence of a claim against a decedent as presented to the executor, with its attached affidavit to the claim, is solely for the purpose of showing that plaintiff has presented his claim as required by law, and cannot be taken as supplying proof of rendition of the services upon which the claim is based or of their value.</p>

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

<p>Juvenile Court Law—Provisions of.—Section 29 of the Juvenile Court Law of 1913 (Stats. 1913, p. 1285), provides that no neglected person shall be taken from the custody of his parent without the consent of .such parent, unless the court shall find such parent to be incapable of providing, or to have failed or neglected to provide proper maintenance, training, and education for said person; and in no case unless the parent be found to be incapable of providing, or to have failed or neglected to provide proper maintenance, training, and education for said person.</p> <p>Id.—Order Adjudging Children to be Neglected Persons—Appeal— Absence of Evidence from Record—Presumption.—On an appeal from an order denying a petition of the' father of minors to set aside a judgment of the juvenile court, made without his consent, adjudging the children to be neglected persons, where the proceedings leading to the judgment are not in the record on appeal, it will be presumed that there was evidence of neglect on the part of the father such as made his consent to the judgment unnecessary and immaterial.</p> <p>Id.-—Power to Reopen Case.—In such a case where the order was made subject to the further order of the court, the court had, on the petition of the father, the power to reopen the question of his children’s care and custody and inquire into his present fitness for such care and custody.</p> <p>Id.—Preponderance of Evidence—Rule.—The juvenile court statute introduced a rule under which the reviewing court may determine the issues upon the preponderance of the evidence; but notwithstanding this rule the reviewing court must accord to the trial judge the superior advantage of looking into the faces of witnesses and observing their demeanor, thus giving him a better opportunity to pass upon their credibility when testifying, which is denied on the hearing of the appeal.</p> <p>Id.—Determination of Preponderance of Evidence.—The question of preponderance of evidence upon a given fact is not necessarily determined by the number of witnesses testifying to or disputing such fact.</p> <p>Id.—Pleading—When Answer to Petition Unnecessary.—No answer to such a petition was necessary where the petitioner by his petition presented the entire matter of his right to have the custody of the children based upon his fitness in every way for having such custody, it being within the power of the court, and its duty as well, to inquire into all matters having any bearing upon the claims presented by the petitioner.</p> <p>Id.—Evidence—Lascivious Conduct of Petitioner with Daughters. In such a proceeding the contention that the testimony of the wife and one of the daughters of the petitioner that he had been guilty of lascivious conduct with two of Ms daughters when they were very young, should be rejected; 1. Because it related to a period several years before; and, 2. Because it was inherently improbable, and rebutted by evidence of witnesses as to his good character, showing that, if their story was true he had reformed, cannot be maintained.</p> <p>Id.-—Sufficiency of Evidence.—In this proceeding it is held that the evidence was sufficient to sustain the order of the trial court determining that the petitioner was unfit to have the custody of his minor daughters.</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. V. Sargent, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action for Damages—Raising op Street Grade—Injury to Abutting Property—Appeal—Absence op Evidence—Presumption.— Where in an action against a municipal corporation for damages to abutting property from the raising of the grade of the street in front thereof, the defendant relies upon the defenses that no damage was done to plaintiff thereby, and that she was estopped by reason of the dedication of the street from claiming any compensation for damage, a general verdict in favor of the defendant embraces both issues, and upon an appeal from the judgment, it must be presumed in support of the verdict, where the evidence is not contained in the record, that if any evidence on the subject was introduced, it showed that no damage was done to the property.</p> <p>Id.—Appeal—Error in Instruction—Evidence.—It is incumbent upon the party appealing to show, not only abstract error, but error prejudicial to him upon the facts in evidence; and to avail himself of the point that an instruction was erroneous, he must bring before the court sufficient evidence to show that, upon a proper instruction, there might have been a finding in his favor.</p>

<p>Negligence—Action fob Damages—Death of Journeyman Painter-Control of Work and Selection of Appliance by Decedent— Proper Nonsuit.—A nonsuit is properly granted in an action for damages for the death of a journeyman painter from falling in some unknown manner to the bottom of a light-we'll while engaged in taking down the “falls” which had been used in painting the well, where it is shown by the evidence that the deceased was a man of more than twenty-five years’ experience in his occupation, that he had the full management of the job and that the plank from which he fell was an arrangement of his own selection, which he had used instead of a ladder suggested by the defendant for the purpose.</p> <p>Id.—Master and Servant—Furnishing Safe Appliances.—The rule which requires a master to provide a safe place and safe appliances for the servant has no application when the place at which the work is to be done, or the appliances for doing the same, are to be prepared by the servant himself.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. A. J. Buckles, 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 County of Los Angeles 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>Corporation—Election op Board op Directors—Time op Closing op Polls—Construction op By-law—Authority op Election Committee.—Where a by-law of a corporation provides that the secretary, treasurer, and auditor of the corporation shall compose the committee on elections, and that it shall be their duty to make all arrangements therefor, with full power to determine all questions touching the qualification of voters, validity of proxies, and the acceptance and rejection of votes, they, and not the board of directors, possess the sole right to determine as to how long the polls shall be kept open to entitle the shareholders to vote their stock, and in the absence of an abuse of discretion their action in such regard will not be disturbed by the courts.</p> <p>Id.—Keeping op Polls Open Beyond Published Time—Discretion not Abused.—Under such by-law, it is not an abuse of discretion for an election committee to keep the polls open for an election of directors of the corporation from 10 o’clock a. m., January 14th, to 12 o’clock noon, January 15th, pursuant to an announcement made hours before the time when the polls were closed, notwithstanding that the published notice of election recited that the polls would close at 6 o’clock p. m. on the fourteenth day of January, and notwithstanding that by the keeping open of such polls the committee was thereby enabled to cumulate enough votes on a certain candidate to secure his election, which would have been otherwise had the polls closed at the published hour.</p> <p>Id.—Conduct op Election Officers—Cumulation of Votes on Candidate.—It is not illegal for such a committee to exercise their persuasive powers upon certain stockholders to secure votes for a contesting director, notwithstanding that in so doing they were actuated by a desire to retain their positions in the corporation.</p> <p>Id.—Legal Act—Motive Immaterial.—Where an act done is not illegal, the motive which prompts the doing thereof is immaterial.</p> <p>Id.—Action to Set Aside Corporation Election—Pleading—Complaint Subject to Demurrer.—In a proceeding brought under section 315 of the Civil Code to set aside the election of a director of a corporation, or any other election held by the corporation, the sufficiency of the complaint may be raised by general demurrer.</p>

<p>Contracts—Memorandum op Lease—Statute op Frauds—Uncertainty.—A memorandum reading as follows:</p> <p>“Dated June 25, ’10.</p> <p>“Mr. E. Wineburgh:</p> <p>“I will lease to you the stores now occupied by the Union Title & Trust Co. for 5 years, beginning Jan. 1, 1911. 250. for the first two years and 275.00 for the following three years. Usual clauses in lease to rebuilding.</p> <p>"John H. Gay.”</p> <p>is too uncertain to form a basis for that meeting of minds or mutual assent which is necessary to constitute a contract, and is also insufficient for the further reason that the terms of the proposed agreement are not stated in the writing with sufficient certainty to satisfy the requirements of the statute of frauds.</p> <p>Id.—Specific Performance—Damages—Essentials op Contract.— No action will lie to enforce the performance of a contract, or to recover, damages for its breach, unless it be complete and certain; and the rule applies as well to price as to subject-matter and parties.</p> <p>Id.—Essentials op Memorandum.—To satisfy the statute of frauds a memorandum must contain the essential terms of the contract expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties.</p> <p>Id.—Action for Damages-—Breach of Agreement to Execute Lease —Pleading—Insufficient Complaint.—A complaint in an action to recover damages claimed to have been suffered by reason of the neglect and refusal of the proposed lessor to enter into an agreement of lease pursuant to the terms of the above memorandum, fails to state a cause of action, where it appears from the allegations of the complaint that the parties had not completed, but were still continuing, their negotiations in respect as to whether the clause in the memorandum having reference to the right of rebuilding was intended to apply only in the event of the destruction of the building by some disastrous action of the elements, or under other conditions, and also as to whether the' right of rebuilding was to be absolute, or under some provisions protecting the lessee’s property and business.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, from an order requiring the defendants to interplead, from a restraining order, and from an order permitting the plaintiff to deposit money in court. M. S. Sayre, 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 Napa County and from an -order denying a new trial. Henry C. Gesford, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Insane Persons—Commitment op—Sufficiency of Findings.—An adjudication and commitment for insanity is not sufficiently supported by the certificate of the medical examiners and the findings of the judge stating that the patient is insane and is so far disordered in mind as to possibly endanger health, person, and property; but where such findings further recite that it is dangerous for life, health, person, and property for such person to be at large, and that her condition is such as to require care and treatment in a hospital for the care and treatment of the insane, the judgment and commitment are sufficiently supported.</p> <p>Id.—Adjudication op Insanity—Danger to Public—Findings.—It is essential in order to justify a judgment or order adjudging a person insane to the extent that his confinement in a hospital for insane persons is necessary to the safety of the public, that there be a finding of the mental condition in the patient from which there will follow more than a mere possibility that he will, by reason of such condition, if allowed to remain at large, “endanger life, health, person, and property.”</p> <p>Id. — Commitment op Insane Persons — Power op Courts. — The power of the superior courts or the judges thereof to examine or try and commit insane persons to the hospitals for the insane, maintained by the state, is derivable alone from legislative enactments, and where the statute prescribes a specific test determinative of the question of insanity, that is to say, where the test thus prescribed requires a finding of a specifically defined character of mental derangement to authorize or justify the commitment of a patient to sueh hospital, the evidence addressed to the issue and the findings of the judge must measure up to sueh test in order to sustain the conclusion that the person is afflicted with sueh form of insanity; otherwise, even though the patient be not wholly of sound mind, the order of commitment is in excess of the legal authority or jurisdiction of the court or judge conducting the inquisition.</p> <p>Id.—Necessary Degree op Insanity—Construction op Code.—Under the provisions of section 2168 to and ineluding section 2171 of the Political Code the degree or character of insanity necessary to be found in one to justify an adjudication that he is insane is, that he must he, by reason of his insanity, a menace to life, health, person, and property, and, therefore, dangerous to be at large, and while it is not necessary in order to support the adjudication and commitment that a finding or conclusion from the evidence that he is disordered in mind t'o the degree prescribed should be in the precise language of the statute, it should be so expressed that it clearly appears therefrom, that the patient is so disordered in mind as to endanger life, health, person, and property, and for that' reason is dangerous to be at large.</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>New Trial—General Order—Rule on Appeal.—An order granting a new trial which is general in its terms must be sustained if it can be fairly said that the motion therefor is well grounded upon all or any of the statutory grounds upon which the motion is based.</p> <p>Id.—Corporation Law—Subscription for Stock—Signing of Supplementary Agreement—Reference to Original Agreement—Ep- - fect upon Manner of Collection.—A subscriber for corporate stock who signs a subscription agreement which is supplementary to the original subscription agreement and which makes no provision therein as to the manner or at what times the amounts subscribed shall bd paid is bound by the terms of the original agreement which provides that the subscriptions shall be payable upon calls made by the board of directors upon such notice as the corporation bylaws provide, notwithstanding that such subscriber did not sign the original agreement and that the same was not attached or annexed to the supplemental agreement, as recited therein, where the supplemental agreement shows upon its face by reference that it was executed and intended as a supplement to the original agreement; and in an action to recover such subscription the subscriber cannot contend that the same is only collectible by assessment levied in accordance with the provisions of the Civil Code governing such matter.</p> <p>Id.—Contracts—Reference—Merger.—A written agreement may by reference expressly made thereto, incorporate other written agreements; and when such reference is made the original agreement and those referred to must be considered and construed as a whole. Actual annexation is not essential to a merger by reference of separately executed written instruments.</p>

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

<p>APPEAL from a judgment of the Superior Court of Monterey 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>APPLICATION for a Writ of Habeas Corpus originally made in 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 the City and County of San Francisco. George A. Sturtevant, 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 Diego County and from an order denying a new trial. W. B. Guy, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Telegraph Companies—Delay in Delivering Telegram—Action for Damages—Pleading—Insufficiency of Complaint.—In an action against a telegraph company for damages alleged to have been sustained by plaintiff by reason of defendant’s neglect to deliver a telegram on time relating to the making of a bid for the furnishing of metal furniture for a university building, by reason of which delay the contract was awarded to the only other bidder, whose bid was higher than that of the plaintiff, a demurrer to the complaint was properly sustained, as the damages sought to be recovered were too remote, section 1438 of the Political Code vesting in the board of regents of the university the power to reject any and all bids for the construction and furnishing of university buildings.</p> <p>Id.—Damages—When not Eecoverable.—The mere probability that a certain event would have happened, upon which a claim of damages is predicated, will not support' such claim or furnish the foundation for an action for such damages.</p> <p>Id.-—Delay in Delivering Message—Loss of Contract—Damages.— The damages which are recoverable for the alleged negligence of a telegraph company in not delivering a telegram, the receipt of which on time would have enabled the person to whom it should have been promptly delivered, to make an advantageous contract, must' be such damages as would follow as of legal certainty from the negligent act of the company, and not merely 'those damages the accruing of which would depend upon the act of some third person which might or might' not be done.</p> <p>Id.—Pleading—Certainty of Event—Opinion of Bidder.—The contention that the positive averment in the complaint that the board of regents “would have” awarded the contract to plaintiff was sufficient to have enabled his ease to pass a demurrer and be presented to the jury, cannot be maintained, as the averment can go no further ■ than the language of section 1438 of t'he Political Code, and the averment is but a pleader’s opinion.</p>

<p>Water-rights—Well—Quitclaim Deed to Interest in—Construction OF.—Where a quitclaim deed purported to convey an undivided one-half interest in a certain well of water, together with t'he windmill and other appurtenances attached to it for “conveying water to the present home and lands of the said party of the second part, with which said plant is now connected,” which well thereafter caved in and was abandoned, the deed cannot be construed as granting an interest in a new well constructed by the successor in interest of the grantor, at her own expense, upon the land some thirty-five feet distant from the old well, notwithstanding the equipment of the old well was used with the new one, the constructor of the new well having purchased it from the pa-son on whose land the first well was located.</p> <p>Id.—Title by Prescription—When not' Shown—'Use of Water by Tenant.—Where t'he owner of the land upon which the new well was constructed occupied, as a tenant, the land to which the water from the old well had been conducted, and during her tenancy, connected the new well with the pipe-line extending to the property that she occupied as tenant, but at the time of the termination of the tenancy she disconnected the pipe, shut off the flow of water and refused to recognize the owner or his tenant as possessing any interest in the new well or right to receive water therefrom, the facts show a want of all the elements essential to constitute a prescriptive right to take the water from the well, as the use was interrupted and was not adverse.</p>

<p>Municipal Corporations—School Districts in—Application op General Laws to Cities and Towns—Municipal Incorporations Act. The Municipal Incorporations Act, as it stood at the time of the incorporation of Hillsborough as a city or town of the sixth class, was silent as to t'he formation, existence, or government of school districts within cities or towns of that particular class. The constitution, however, supplied this omission with its provision that “cities and towns heretofore or hereafter organized, and all charters thereof framed or adopted by authority of this constitution, except in municipal affairs, shall be subject to and controlled by general laws”; and it has been fully settled that the organization and control of school district's is not a municipal affair.</p> <p>Id.—Municipalities Separate School Districts — Construction op Section 1576 Political Code.—Section 1576 of the Political Code as it existed at the time of the incorporation of Hillsborough, provided that “Every city or incorporated town, unless subdivided by the legislative authority thereof, shall constitute a separate school district”; and it has been uniformly held that this provision of the code applies to municipal corporations generally, however created, and that, as this section read prior to the year 1911, it' had application to cities and towns of the sixth class.</p> <p>Id.—Creation op Municipality—School District in.—When the city of Hillsborough was created under the Municipal Incorporations Act in t'he month of May, 1910, a school district with boundaries coterminous with its own sprang into being by virtue of section 1576 of ■the Political Code as it then stood, and, even though the Municipal Incorporations Act in so far as it related to cities and towns of the sixth class, made no provision for the organization and government of school districts therein, the general school law supplied this omission.</p> <p>Id.—Section 1576 Political Code—Amendment of 1911—Construc-tion of.—The amendment to section 1576 of t'he Political Code enacted in 1911 providing “Every city or incorporated town (except cities and towns of the sixth class), unless subdivided by the legislative authority thereof, shall constitute a separate school district,” was not intended to be retroactive in its operation, so as to apply to the city of Hillsborough or the school district organized therein.</p> <p>Id.—Taxes fob School Bonds—When Inapplicable to Property in Municipality.—Property in the town of Hillsborough is not subject to a tax levied prior to its incorporation for the purpose of paying upon the principal and interest of certain bonds of the San Mateo School District issued prior to the incorporation of said town for the purchase of school lots and the building of school houses in said district, but outside the limits of said town, and where said faxes were paid under protest by the owner of such property, they may be recovered.</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>APPEAL from an order of the Superior Court of the City and County of San Francisco settling the account of a receiver, discharging him and directing him to pay the money in his hands to the defendant. George H. Sturtevant, 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. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Fraud—Pleading—Insufficient Complaint—Misjoinder of Causes of Action and Parties Defendant.-—In an action to obtain judgment that a certain sum of money obtained by the defendants in the form of a loan from the plaintiff (a note and chattel mortgage being executed to plaintiff in connection therewith), was obtained by the defendants by means of fraud and deceit, and for a judgment for an unpaid balance of the money loaned, and that the defendants hold said unpaid balance in trust for plaintiff, there is a misjoinder of causes of action and of parties defendant, where it appears from the complaint that the note and chattel mortgage executed to plaintiff in connection with the loan were executed by only one defendant, and the complaint is capable of being construed as an attempt to recover moneys obtained by both defendants by fraudulent means, and it being attempted to state a cause of action to recover from one defendant the unpaid balance due upon the note after the security had been exhausted by sale of the mortgaged property and the proceeds applied toward the payment of the note.</p> <p>Id.—Suit in Equity—Insufficiency of Complaint.—-Such a complaint, as a pleading in a suit in equity based upon the theory of fraud, fails to state facts sufficient to constitute a cause of action, where it appears from the allegations thereof that the only item of falsity concerning the alleged representation regarding the ownership of the mortgaged property (a confectionery establishment), was contained in the statement that the fixtures did not' belong to the defendants, without any description of them or statement as to their value, and that the falsity of the other alleged principal representation concerning the value of the business and good will, was not intended to refer to or include representations of facts as to the value of the physical property mortgaged, by reason of the fact that the complaint- contained no allegation of the actual or represented value of gueh physical property.</p> <p>Id.—Laches of Plaintiff—Knowledge of Fraud—Estoppel.—Where it appears from the complaint that plaintiff had knowledge of the principal facts upon which she relied for more than two years before filing the complaint and with such knowledge withheld the charges of fraud and consented, at the instance of the defendants, to a sale of the mortgaged property and application of the proceeds for her benefit, upon their representation, which is not alleged to have been false, that they were financially embarrassed and could not pay the debt in full, plaintiff is estopped from maintaining an action based upon the fraud, and a personal judgment as in an action at law is the only available remedy.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from orders denying motions for new trials. Frederick W. Houser, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Action fob Labor Performed and Money Expended—Establishment of Townsite—Acts of Promoter—Liability of Owner—Agency. In this action to recover a sum of money for labor performed and for money paid and expended in connection with the laying out of a town, it is held that the court was warranted in finding from the evidence that the promoter of the enterprise, who employed all the help and exercised general power of supervision over the work, was the agent of the owner of the townsite, and, therefore, authorized to employ the plaintiff and his assignors to perform the services and make the expenditures referred to in the complaint, and to purchase such articles or goods as were necessary in carrying out the enterprise.</p> <p>Id.—Evidence—Declarations of Promoter.—Declarations made by the promoter of the enterprise, in the absence of the owner of the townsite and the person jointly interested with Mm, that he was the representative or agents of the two defendants in the inauguration and carrying out of the scheme are inadmissible.</p> <p>Id.—Agency—Evidence—Extrajudicial Statements.—Agency cannot be established by the extrajudicial statements or the declarations in pais of one pretending to act as agent, and testimony of such statements or declarations is incompetent and inadmissible for that purpose.</p> <p>Id.—Liability of Jointly Interested Party—Support of Einding.— In this action it is held as to the connection of the other defendant with the scheme that while the testimony appears to be less satisfactory than that addressed to the question of the relation of the owner of the townsite to the promoter of the enterprise, it sufficiently shows that such defendant was jointly interested in both the townsite and the proposition to locate a town thereon.</p> <p>Id.—Findings—Inference of Fact—Appeal—Presumption.—The inference of one fact from others, unless such fact is a necessary conclusion from those others, must be made by the trial court, and if the facts that it has found are such as might authorize different inferences therefrom, it will be presumed that the inference made by the trial court was one that will uphold, rather than defeat, its judgment.</p> <p>Ib.—Agency—-Inference from Circumstances.—Where the authority of an agent is unwritten, and express oral authority is not satisfactorily shown, such authority may be implied from the acts and circumstances shown.</p>

<p>Action for Damages—Personal Injuries—Admission of Negligence —Erroneous Instructions—When Nonprejudicial.—Where, in an action for damages for personal injuries received by a passenger on a street car from a collision between such car and an oil train of the defendant, the negligence of the defendant is admitted, and the only issue raised is as to whether the plaintiff sustained any injuries from the accident, it is error to instruct the jury that the fact that plaintiff was injured in the collision was admitted by the defendant; but such error is without prejudice, where the evidence produced established beyond controversy that serious injuries were inflicted upon the plaintiff.</p> <p>Id.—Instruction—Proof of Injuries—Preponderance of Evidence.— It is also error to refuse to instruct the jury as to the plaintiff’s duty to show by a preponderance of the evidence that he sustained the injuries as a result of the accident, but in view of the evidence, such error is likewise not prejudicially erroneous. ,</p> <p>Id.—Instruction—Damages—Loss of Earning Power—Prejudicial Error.—It is, however, prejudicially erroneous to instruct the jury that, “it is not necessary that any witness should have expressed an opinion as to the amount of damages sustained by the plaintiff as a proximate result of the accident. The jury will estimate it from •the evidence, using their own knowledge and experience in the affairs of life; and the jury will consider what, if anything, has been or mil probably be the plaintiff's loss of earning power. It is not necessary that evidence should be presented in tins matter. The jwy may estimate it. Also his reasonable expenses actually paid or incurred,” as such italicized portion of the instruction limits the evidence presented bearing upon the loss of earning power, and tells the jury that as to the latter, no evidence was required, and implies that as to such part of the detriment suffered by the plaintiff, the amount of his damage, measured in terms of money, the jury might estimate without regard to the evidence. Damages thus determined by conjecture are not the damages which are “reasonably certain to result in the future.”</p>

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

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Emmet Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

John E. Richards, and William A. Beasley, Judges. The facts are similar to those stated in the opinion in Hum-burg v. Board of Police mid Fire Commissioners of the City of San Jose, ante, p. 6.

of Santa Clara County and from an order denying a new trial. John E. Richards, and William A. Beasley, Judges. The facts are similar to those stated in the opinion in Sum-burg v. Board of Police and Fire Commissioners of the City of San J ose, ante, p. 6.

<p>Vendos and Vendee—Construction op Contract.—Judgment and order denying a motion for a new trial reversed on the authority of Depavo y. Bizgo, ante, p. 200.</p>

<p>Water-eights—Action to Determine.'—In this action to determine certain water-rights, the judgment is affirmed upon the authority of the decision in Robertson v. Finlcler, ante, p. 322.</p>