Volume 29 — California Appellate Reports

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

<p>Partnership—Purchase and Sale of Oil Lands—Nature of Transaction—Conflict of Evidence—Findings Conclusive.—In this action to recover profits alleged to have accrued on account of a joint enterprise entered into between appellant and respondent with respect to the purchase and sale of certain oil-producing lands, it is held that the record presents a state of conflicting evidence as to the nature of the agreement between the parties upon which the findings against the claim of appellant of a partnership are conclusive.</p>

<p>Action upon Check—Garnishment of Defendant in Another Action—Erroneous Stay of Proceedings.—An order staying proceedings in an action brought by the assignee of a dishonored check against the maker thereof until another action pending in the same court against the payee of the check was finally determined, is erroneous, where such order was based upon a notice of garnishment in the latter action served upon the defendant in the former action, which did not in any way pretend to describe or identify such cheek, but only gave notice of attachment of all moneys, goods, credits, effects, debts due or owing, or any other personal property belonging to the defendant in the latter action in the possession or under the control of the defendant in the former action.</p> <p>Id.—Garnishment of Drawee in Different Action—Stay of Proceedings Unwarranted.—Such an order cannot be supported for the reason that it is shown by the answer that another attachment in a different case against such payee was issued and garnishment notice therein served on the defendant herein and also on the drawee of the check, and that the refusal of the latter to honor and pay the check was solely on account of such notice of garnishment.</p> <p>Id.—Garnishment of Check After Delivery.—By agreement a cheek may be taken as absolute payment, and the drawer will then be liable only as an indorser, and not on the original debt; and a cheek is always so far payment until dishonored that, after its delivery, the drawer cannot be garnished as debtor of the payee in respect to the debt for which the cheek is given.</p> <p>Id.—Limitation of Garnishee’s Liability.—A garnishee’s liability in the case of a debt due from him is grounded upon and is limited by his liability to the defendant in the principal action whereby the latter has at the time of the garnishment a cause of action, present or future, against him.</p>

<p>Criminal Law—Involuntary Manslaughter—Death from Gross Negligence — Degree of Turpitude. — While involuntary manslaughter may be committed in two different ways, the legislature has not recognized, as between those ways, any distinction in the degree, of turpitude characterizing that crime; in other words, the crime is that of involuntary manslaughter whether the killing be committed in the execution of an unlawful act, etc., or in the execution of a lawful act, etc., or where death, not willfully or intentionally produced, is, nevertheless, caused by the gross or culpable negligence of the defendant—negligence which, in degree, goes so far beyond that negligence merely which suffices to impose a civil liability for damages as to constitute it criminal negligence, for which the party guilty of it may be held criminally liable.</p> <p>Id.—Negligence of Special Officer—Breaking into Boom With Loaded Pistol in Hand—Discharge from Unknown Cause—Verdict of Manslaughter.—In the prosecution of a deputy sheriff and special police officer for the crime of murder, it cannot be said, as a matter of law, that the jury were not justified in returning a verdict of involuntary manslaughter, where the evidence shows that the crime was committed by the discharge of a loaded revolver through some unknown cause, while in the hand of the defendant and while he was engaged in forcibly effecting an entrance into a room where gambling was going on, and where there was gathered a number of persons sitting about a table in close proximity to the door broken open by the defendant, and it appearing that he was aware of their presence therein.</p> <p>Id.,—Verdict of Involuntary Manslaughter—Gross Negligence of Defendant—-Bejection'of Evidence—Befusal of Instructions— Lack of Prejudice.—Where in a prosecution for murder one of the issues involved in the charge was whether, in the handling of the weapon, at the time of the fatal shooting, the defendant was culpably negligent, and if so, whether such negligence was the cause of the death of the deceased, and the jury returned a verdict of involuntary manslaughter, which crime involves no element of intent, but proceeds solely from a degree of negligence which makes the act of killing unlawful, the defendant was not prejudiced by alleged erroneous rulings in the exclusion of evidence and in the disallowance of instructions justifying his conduct in breaking into the room of the deceased, and his right to carry such weapon in his hand at the time of the breaking.</p> <p>Id.—New Trial—Misconduct of Jury—Affidavits of Jurors—Mistaken Opinion as to Nature of Crime.—A motion for a new trial upon the ground of the misconduct of the jury is properly denied where the same is based upon. affidavits of two of the jurors, in which they alleged that they were at all times during the deliberations of the jury of the opinion that the defendant was entitled to an acquittal at their hands, and so voted up to the time that they were led to believe' that the crime of involuntary manslaughter was not a felony under the laws of the state of California, and that had they known or believed that it was a felony, they never would have agreed to a verdict of guilty of such crime.</p>

<p>Probation Officers—Power of Appointment—County Charter.— Where a county charter adopted pursuant to the amendment of 1911 to section 7% of article XI of the constitution authorizes the board of supervisors of the county to make provision for the appointment of probation officers, and provision is so made, the general laws of the state are superseded.</p> <p>Id.—Ordinance Creating Probation Offices—Silence as to Manner of Appointment—General Law Applicable.—Where, however, the board of supervisors, in enacting an ordinance providing for probation offices and fixing the compensation of the officers, makes no mention of the manner in which the appointments shall be made, the general laws of the state govern the matter.</p> <p>Id.—Assistant Probation Officer—Invalid Appointment.—An assistant county probation officer appointed by the judge of the juvenile court instead of by the chief probation officer of the county is not a legally appointed officer, where such county had adopted a freeholders’ charter and provided therein that its board of supervisors might make provision for the appointment of such officers, notwithstanding that such board, in enacting an ordinance providing for such officers, failed to make any mention of the manner of their appointment.</p>

<p>Sales—Action by Seller—Breach of Contract to Purchase Bottles —Measure of Damages—Section 3353, Civil Code.—In an action by a seller for breach of a contract to purchase a certain specified quantity of quart bottles, the measure of damages is that fixed by section 3353 of the Civil Code, which provides that in estimating damages the value of property to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed with reasonable diligence for the seller to effect a resale.</p> <p>Id.—Evidence—Lack of Diligence in Making Sales—Nominal Dam- ■ ages.—Where, in such an action, it is shown that the seller, upon the refusal of the buyer to accept the goods, removed the same to a warehouse, where they were stored and insured, and from time to time sold at private sale at varying prices for an aggregate sum less than the sum total of the contract price, instead of being taken to the nearest market, where they could have been sold at an advance of the contract price, the seller is entitled at most to but nominal damages.</p> <p>Id.—Duty of Seller—Procuring of Highest Market Price—Construction of Section 3353, Civil Code.—Under the provisions of section 3353 of the Civil Code, it is the duty of the seller, regardless of his business capacity or ability along the particular line of goods forming the subject matter of the broken contract, to go into the open market and obtain for the rejected goods the highest obtainable market price therefor.</p> <p>Id.—Market Value—Meaning of.—The market value of a commodity is the highest price in the market where it is offered for sale which those having the means and inclination to buy are willing to pay for it.</p> <p>Id.—Evidence—Prevailing Market Price.—In such an action it is not error to permit evidence of the prevailing market price during the period following the tender and rejection of the bottles.</p> <p>Id.—Failure to Allow Nominal Damages—Insufficient Ground for Beversal.—In such an action, the refusal to allow the plaintiff at least nominal damages will not warrant the reversal of the judgment or the granting of a new trial, as such a judgment would not carry costs.</p> <p>Id.—Nominal Damages—Costs.—Nominal damages have been defined to mean merely an inconsiderable, trifling sum, such as a penny, one cent, six cents, and to carry costs a judgment of the superior court must amount to the sum of three hundred dollars.</p>

<p>Divorce—Subsequent Action—Res Adjudicata.—In an action for divorce, wherein the decree was granted to the wife upon her cross-complaint alleging extreme cruelty, the plaintiff cannot contend that the matters set up in such cross-complaint were made issues by the respective pleadings in a former divorce action denying the parties a divorce, where the plaintiff in his answer to such cross-complaint failed to plead to such judgment, and there is nothing in the record relating to such judgment, other than the mere pleading of the same in the answer to the original complaint.</p> <p>Id.—Extreme Cruelty—Acts Subsequent to Former Judgment— Plea of Res Adjudicata not Maintainable.—A plea of res adjudicata cannot be maintained against an action for divorce on the ground of extreme cruelty, where the acts charged occurred after the judgment in the former action was rendered.</p> <p>Id.—Evidence—Willingness to Return to Husband—Exclusion of Testimony—Lack of Prejudice.—In an action for divorce wherein a decree was granted to the wife upon her cross-complaint alleging extreme cruelty, it is not prejudicial error to refuse to permit her on cross-examination to state whether or not she was willing to go back to her husband, and live with him, where it appears from the evidence that such question would have been answered in the negative if allowed, and that both parties had been persistently engaged in an effort to get rid of each other upon what appears to be sufficient reason.</p> <p>Id.—Support and Maintenance of Minor Children—Reasonable Allowance.—An allowance of fifteen dollars per month to each of the three minor children of the marriage for their support and maintenance is not unreasonable as against the father, where he is shown to be a carpenter and building contractor, earning good wages, and usually employed.</p>

<p>Claim and Delivery—Pleading—Value of Property.—A complaint in an action to recover the possession of mortgaged personal property, which contains no allegation showing the value of the demanded property other than that contained in a copy of the mortgage attached to the complaint, which purports to give the value of some of the mortgaged articles, is insufficient, as an allegation of value at the time of filing the complaint.</p> <p>Id.—Recitals in Contract—Insufficient Pleading.—Recitals in a contract incorporated in a complaint will not supply the want of essential averments in the pleading.</p> <p>Id.—Judgment for Value op Property—Excess op Indebtedness.—• In such an action a judgment for the possession of all the mortgaged property or for its value in case delivery thereof cannot be had is excessive, where the indebtedness for security of which the property was mortgaged does not amount to one-half of such value.</p> <p>Id.—Judgment—Alternative Form.—In an action to recover the possession of personal property, while the judgment must ordinarily be in the alternative, yet a judgment that is not in that form is not void, and whether or not it is even erroneous must depend upon the facts of the particular case.</p>

<p>Justice’s Couet—Dismissal of Action—Nonjustification of Sureties —Filing of New Undertaking.—Under the latter portion of section 978a of the Code of Civil Procedure, it is the duty of the appellant, after exception taken to the sufficiency of the sureties upon the undertaking on a justice’s court appeal, to cause such sureties, or others in their place, to justify after notice and within the time specified in the statute, and where, instead of doing so, an appellant files a second undertaking within such time which has for its purpose the supplying of an inadvertent omission of the word “house” in the expression “is a householder,” in the part of the undertaking referring to the qualification of the sureties, no jurisdiction is acquired of the appeal.</p>

<p>Taxation—Invalid Sale—Reimbursement of Purchaser—Amount of Taxes and Costs.—A purchaser of lands at a delinquent tax sale is not entitled, upon the sale being declared invalid, to have paid to him by the owner the excess of the sum paid for the lands over and above the taxes, interest, penalties, and costs which were chargeable upon the lands at the time of the sale.</p> <p>Id.—Object of Sale.—The primary object of the state in selling the land is to recover the taxes, penalties, costs, etc., and whoever pays more than the amount thereof does so as a volunteer, and at the risk of the proceedings being found invalid.</p>

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

<p>APPEAL from an order of the Superior Court of Yolo County changing the place of trial of an action. W. A. Anderson, 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 order denying a new trial. W. B. Wallace, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Default—Findings—Construction of Section 131, Civil Code.—Under the provision of section 131 of the Civil Code, requiring that in actions for divorce the court must file its decision and conclusions of law “as in other cases,” the quoted words refer to the form of the findings, and are not to be taken as intended to relieve the trial judge in cases where default has been entered in a divorce action against one of the parties from making his decision in writing.</p> <p>Id.—Default—Issues."—In view of the code provision that no divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission, or testimony of the parties, there are issues to be tried in actions where the adverse party has suffered default, as well as in cases where answers are filed.</p> <p>Id.—Extreme Cruelty—Grievous Mental Suffering.—In order to constitute extreme cruelty of the character of grievous mental suffering, it is no longer necessary, as announced in the earlier decisions, that a perceptible effect of such suffering should be produced upon the body or health of the complaining party, but the rule is that whether in any given case there has been inflicted “grievous mental suffering” is a pure question of fact, to be deduced from all the circumstances of each particular case, keeping always in view the intelligence, apparent refinement, and delicacy of sentiment' of the complaining party.</p> <p>Id.—Evidence—Disagreeable Conduct of Defendant—Unwarranted Restriction of Plaintiff’s Examination.—In an action for divorce on the ground of extreme cruelty, it is prejudicial error to refuse to permit the plaintiff, while being examined by her own counsel, to testify as to the acts of the defendant at the times he would intrude himself upon her privacy, on the ground that the witness should not be embarrassed as to matters that could not be corroborated, and that' such testimony would be of no value and disregarded by the court.</p> <p>Id.—Rights of Litigants—Duty of Court.—In actions for divorce, the complaining party has the same right as any other litigant in any other class of actions, not only to the opportunity to present fully his or her case, but to every reasonable assistance of the court in the premises.</p> <p>Id.—Subject of Mental Cruelty-—Testimony of Physicians.—In such an action, physicians of the plaintiff may testify generally as to the subject to which plaintiff ascribed her disturbance of mind and health when she consulted them, as corroborative of her claim that the same was due to marital difficulties.</p> <p>Id.—Corroboration of Acts of Cruelty.—When the cruelty consists of successive acts of ill treatment, it is' not necessary that there should be direct testimony of other witnesses to every act sworn to by the plaintiff; it is sufficient corroboration if a considerable number of important and material facts are so testified to by other witnesses, or there is other evidence, circumstantial or direct, which strongly tends to strengthen and confirm the statements of the plaintiff.</p>

<p>Corporation Law—Stockholders’ Liability—Statute of Limitations. An action to enforce the liability of stockholders of a corporation is, under the provisions of section 359 of the Code of Civil Procedure, an action to enforce “a liability created by law,” and is barred at the expiration of three years from the time when the liability was created, and not at the expiration of such period from the discovery of the facts creating such liability.</p> <p>Id.—Breach of Lease—Liability of Stockholders—Time of Creation —Statute of Limitations.—In an action to recover damages upon a stockholder’s liability for breach of the terms of a lease of land made by the corporation, the statute of limitations runs from the time of breach, and not from the time of the execution of the lease.</p> <p>Id.—Breach of Lease of Oil Lands—Removal of Casing from Well —Measure of Damages.—In an action by a lessor against the stockholders of a corporation for damages for the wrongful removal by the corporation of a quantity of casing from an oil well drilled by it on the lands of the lessor, the correct measure of the plaintiff’s damages is not the amount which it would cost to replace the well in the same condition it was in at the time of removal, but simply the value of the casing when removed from the well, where it is shown that the land was barren and desert land and valuable only if it contained oil, and that no oil had been discovered therein.</p> <p>Id.—Breach of Contract—Measure of Damage.—Courts will not, except where exemplary damages are given, allow a party to a contract to recover upon its breach more than he would have received by its due performance.</p> <p>Id.—Lease of Oil Lands—Nonremoval of Casing TTpon Abandonment—Covenant not Violative of Act of 1903.—A provision in a lease of land for the purpose of exploring for and developing oil thereon, that the lessee should not' remove the casing therefrom or plug any wells without the written consent of the lessor, does not make the lease void as violative of the act t'o- prevent injury to oil or petroleum bearing strata by the infiltration or intrusion of water therein (Stats. 1903, p. 399), and which requires that upon the abandonment of any oil well, it shall be the duty of the owner to withdraw the casing therefrom and fill up the well.</p> <p>Id.—Maintenance of Action by Lessor—Withdrawal of Land from Entry—Prior Rights not Affected by.—The right of the lessor to maintain an action for damages against the lessee of oil lands for a breach of the terms of the lease is not affected by a Presidential proclamation withdrawing such lands from entry, where at the time of breach the plaintiff was in lawful possession of the land as a locator under the mining laws of the United States.</p> <p>Id.—Jurisdiction of Superior Court.—The superior court has no juris-, diction as to defendants in an action upon a stockholders’ liability where the prayer for damages against them is for less than three hundred dollars.</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. Adolphus E. Graupner, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Quieting Title — Fraudulent Conveyance — Evidence — Support op Finding.—In this action to quiet title involving the validity of a deed of real property made by a husband to his wife, it is held that the evidence support's the findings that the husband, and not the wife, was the legal owner of the property at the time the deed thereof was made, and that such deed was void, as to creditors of the husband because of lack of consideration and the insolvency of the grantor at the time of its execution.</p> <p>Id.—Bankruptcy—Judgment Lien—When ‘Preserved.—The lien of a judgment as a preferential lien in favor of a creditor of a bankrupt is dissolved when the petition in bankruptcy is filed within four months of the obtaining of the judgment, but may be preserved for the benefit of all the creditors in a case where the dissolution of such lien would militate against the best interests of the estate of the bankrupt.</p> <p>Id.—Discharge in Bankruptcy—Liens not Affected by.—A discharge in bankruptcy releases from personal liability only, and has no effect upon liens against the property of the bankrupt.</p> <p>Id.—Fraudulent -Conveyance—-Construction of Section 3442, Civil Code—Proof op Fraud—When Unnecessary.—-Section 3442 of the Civil Code makes a transfer fraudulent and void as to existing creditors, as a matter of law, when the transfer is voluntary or without a valuable consideration, by one while insolvent, or in contemplation of insolvency, and no proof of actual fraud is necessary.</p> <p>Id.—Adverse Possession—Void Deed from: Husband to Wife.—The rule that a married woman not living separate and apart from her husband and having no claim in her own right to land cannot acquire title to it as her separate estate by adverse possession, is applicable to a ease where the wife claims separate ownership, under a void deed from the husband.</p>

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

<p>Contract—Exchange of Stallion and Mule—Bescission.—In an action for the rescission of a contract for the exchange of a stallion for a jack mule, where the court found upon sufficient evidence that the exchange had been brought about through certain statements made by the defendant, which amounted to an express warranty of the foal-producing qualities of the jack, and which had proven untrue, the plaintiff was entitled to rescind the contract, where he did so promptly.</p> <p>Id.—Form of Judgment—Return' of Property.—In such a case the judgment which, while giving to the plaintiff in the form of damages all that the evidence showed the stallion to be worth, made no provision for the return of the defendant’s property, was erroneous in this respect, and should be modified.</p> <p>Id.—Warranty—Essentials.-—It is not necessary, in order to create an express warranty of an article of personal property, that the word “warrant” should be employed or that any particular or any formal words of warranty should be used. Any affirmation made at the time of the sale or exchange as to the quality or condition of the thing sold will be treated as a warranty if it was so intended, and if the other party acquired the property on the faith of such affirmation.</p>

APPLICATION originally made to the District Court of Appeal for the First Appellate District to compel the settlement of a bill of exceptions. The facts are stated in the opinion of the court.

<p>Proceeding to Disbar Attorney—Conviction of Felony—Pardon.— In a proceeding to disbar an attorney upon the sole ground of his previous conviction of a felony, an objection that the conviction was subsequently annulled and set aside by a pardon issued by the governor of the state for the offense set forth in the judgment of conviction should be sustained.</p> <p>Id.—Pardon-—Effect of—Grounds for Disbarment.—A pardon releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense; but this is subject to the limitation that an attorney may be disbarred for acts of a felonious nature, where a pardon has followed the conviction of a crime, since evidence of the criminal acts may constitute proof of the charge that the respondent is unfit to be an attorney at law. This is so for the reason that the pardon does not restore his good moral character.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County vacating a final decree of divorce. Charles Monroe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Basement—Right of Way by Necessity.—A right of way by necessity can only be claimed and held where it furnishes the only way by which access may be had to the property of the claimant.</p> <p>Id.—Right of Way—Adverse User—Continuous Use.—While a right of way may be acquired by adverse possession, where it is so asserted the party claiming it must prove its continuous and uninterrupted use.</p> <p>Id.—Adverse Possession—Title of United States and State Unaffected by.:—Title by adverse possession cannot be' asserted as against the ownership of the United States or of the state in lands which have not been patented.</p>

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

<p>Action upon Undertaking on Appeal—Stay of Execution of Order Appointing Receiver—Affirmance of Order—Res Adjudicata.— In an action brought against the sureties upon an undertaking given to stay the execution of an order appointing a receiver pending an appeal therefrom, the affirmance of the order on appeal is res adjudicata as to the authority of the court to appoint the receiver.</p> <p>Id'.—Pleading—Proper Party Plaintiff.—The plaintiff in the main action, and not the receiver, is the proper party to- maintain the action upon the undertaking.</p> <p>Id.—Time of Commencement of Action.—An action upon such an undertaking is prematurely brought where' at the time of its commencement the judgment in the main action has not become final by reason of the fact that the time to appeal therefrom has not expired.</p> <p>Id.—Recovery upon Undertaking—Costs on Appeal.—The fact that in such an action the plaintiff seeks relief for only the damage alleged to have been suffered by him from the moneys which came into the hands of the defendant in the main action pending the appeal from the order appointing the receiver, does not prevent him from maintaining an action in the proper forum upon the undertaking, in so far as it obligates the sureties to reimburse him for the costs on the appeal from the order appointing the receiver.</p> <p>Id.—Construction of .Undertaking.—The provision in such an undertaking, so far as it relates to the possession of the land involved and the collection of the rents, issues and profits thereof by the defendant, pending the decision on the appeal from the order appointing a receiver, “that if the said appellant does not make such payment within thirty days after the filing of the remittitur from the supreme court of the state of California, to which said appeal is taken, judgment may be entered upon the motion of the respondents, and in their favor, against the undersigned sureties for 'the said amount of said judgment, together with interest which may be due thereon, and the damages and costs which may he awarded against the appellant' on appeal,” means, in the absence of any pending appeal the disallowance of which by the appellate court would result in a judgment for any amount of money, that the sureties would not only guarantee the payment of the costs on the appeal from the order, but that, if a final judgment on the merits was eventually obtained by the plaintiff, they would indemnify him against any damage which might result to him by reason of the fact that, pending the determination of the appeal from the order, the defendant was permitted to remain in possession of the property and to collect and retain the rent thereof.</p>

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

<p>Disqualification of Judge—Disclosure During Trial—Timely Objection.—Where there is nothing on the face of the record in advance of the trial of an action to show that the judge was disqualified from trying the same, and such disqualification is first disclosed upon the cross-examination of the plaintiff, a motion thereupon made to change the place of trial is not too late.</p> <p>Id.—Action by Banking Corporation — Relationship of Judge to Director—Disqualification to Act.—A judge is disqualified from sitting or acting in an action in which a bank is the real party in interest, where his brother is a director of the bank, notwithstanding the fact that the action is brought in the name of a private individual.</p> <p>Id.—Corporate .Character of Bank—Time of Objection.—Where, in such a proceeding, it is intended to question the corporate character of the bank, such objection should be made at the time of the motion for change of place of trial, and when not so made the corporate character will he assumed.</p> <p>Id.—Status of Director of Corporation—Officer.—A director of a corporation is an officer within the meaning of subdivision 2 of section 170 of the Code of Civil Procedure, which provides that a judge is disqualified from sitting or acting in any action or proceedings where he is related to an officer of a corporation within the third degree, computed according to rules of law.</p> <p>Id.—Building Contract—Abandonment—Assignment by Contractor of Money to Become Due—Construction of Instrument.—An assignment by a contractor engaged in the construction. of a school building of a specified sum of money “out of the twenty-five per cent of said contract price to be paid to me under said contract after the completion and acceptance of the building,” operates solely upon the fund to become due and payable only upon the completion of the building, and not upon moneys becoming due and payable as . the work progresses; and where the contractor abandons the contract before completion, the school trustees are not liable to the assignee for the amount of the assignment, under their indorsement on the contract recognizing the assignment and reciting an agreement to pay the sum named “out of the payment” to be made “at the time of completion and acceptance of said building.”</p> <p>Id.—Guaranty of Payment to Assignee—Abandonment of Work— Discharge of Guarantors.-—The execution by the school trustees, in addition to such indorsement, of a guaranty that the specified sum of money should be repaid .to the assignee upon the completion of the school building “out of the twenty-five per cent of the contract price of said building held back until the completion of said building,” does not make them guarantors of the original obligation, and upon the abandonment of the contract by the contractor their liability became extinguished.</p>

<p>Criminal Law—Grand Larceny—Lottery Ticket—Insufficiency of Information.—An information charging a defendant with the crime of grand larceny in stealing a lottery ticket fails to state a public offense, as such a ticket has no legitimate value except as the evidence of a debt due from an enterprise which is denounced by law and .conducted in defiance thereof, and an allegation that the drawing had taken place prior to the alleged larceny and that the defendant had collected a large sum of money thereon, adds nothing to the value of the ticket.</p> <p>Id. — Subject Matter of Larceny — Property Having Value. — It is essential to the commission of the crime of larceny that the property alleged to have been stolen have some value—intrinsic or relative—which, where grand larceny is charged and the property was not taken from the person of another, must exceed the sum of fifty dollars.</p> <p>Id. — Larceny of Written Instruments — Construction of Section 492, Penal Code.—Section 492 of the Penal Code, which fixes the value in cases of the larceny of written instruments by providing that “if the thing stolen consists of any evidence of debt, or other written instrument, the amount of money due thereupon, or secured to be paid thereby, and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is shown thereby, or the sum which might be recovered in the absence thereof, is the value of the thing stolen,” contemplates and controls the value to be placed only upon written instruments which create some legal right and constitute a subsisting and enforceable evidence of a debt.</p> <p>Id.-—Illegal Contract.—An obligation which exists in defiance of a law which denounces it has, in the eye of the law, neither validity nor value.</p> <p>Id.—Lottery Ticket—Petit Larceny.—A lottery ticket, considered as a mere piece of paper, possesses perhaps some slight intrinsic value, which, however small, is sufficient to make a wrongful taking of it petit larceny.</p>

<p>Criminal Law — Grand Larceny — Embezzlement — Instruction. — Where in a prosecution for grand larceny it is contended that if any crime was committed, it was embezzlement, and not larceny, the court correctly instructed the jury as follows: “Embezzlement is when the possession of the property has been acquired lawfully and bona fide and afterward fraudulently appropriated. The gist of the offense of embezzlement is breach of trust imposed in the agent, employee, or bailee, by his principal, employer, or bailor, the crime may be in general terms defined to be the fraudulent conversion of another’s personal property by one to whom it has been intrusted. When a bailee of property obtains possession of it from the owner with the intention of stealing it, and carries out that intent, he is guilty of larceny; but where the intent to steal did not exist at the time of taking possession of the property by the bailee, but was conceived afterward, it is embezzlement.”</p> <p>Id.—Sufficiency of Evidence.—In this prosecution for grand larceny it is held that the verdict is sustained by the evidence.</p> <p>Id.—Evidence—Statement of Defendant—Denial of Guilt—Foundation.—It is not necessary to show, as preliminary to the admission in evidence of a statement made by the defendant in the district attorney’s office, that such statement was voluntarily made, where the statement was in no sense a confession of guilt but was in fact an assertion of innocence.</p> <p>Id.—Argument of District Attorney—Punishment—Harmless Error.—It is error for the district attorney in his argument to the jury to call their attention to the fact that the punishment for embezzlement is exactly the same as the punishment for grand larceny, but such misconduct is not prejudicially erroneous where the jury is admonished to disregard the statement.</p>

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

<p>Contract — Option to Sell Real Property — Sale by Owner After Expiration — Recovery of Commissions. — Under an option to sell real estate which expressly limits the life thereof to a period of ninety days from its date, a provision therein that in the event that the owner should sell the property to anyone to whom the property had been recommended by the brokers within ninety days after the expiration of the option, he would pay them a commission of five per cent on the gross amount for which he might so sell the property, contemplates that such commission should be payable only in the event that a sale was thus made to a party to whom the brokers had recommended the property while the option agreement was still in force; and where a sale is thus made to a party recommended by them after the expiration of the ninety day period, they are not entitled to the commission.</p>

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

<p>Partition Wall—Location-—Sufficiency of Evidence.—In this action by the owners of the south half of a city lot and of the remainder in fee of the north half against the life tenant of the latter half to compel the removal of a partition wall which the defendant at the time of the commencement of the action had commenced to construct in the building which covered the entire -frontage, it is held that the evidence was sufficient to establish the fact that a portion of the partition wall was located upon the plaintiff’s side of the dividing line.</p> <p>Id.—Removal of Wall—Completion Prior to Service of Restraining Order—Power of Court.—In such an action the court has power to compel the removal of the partition wall, notwithstanding the wall was completed before the service of any restraining order.</p> <p>Id.—Trespass—Power of Court of Equity—Injunction.—A court of equity has power to compel cessation of a trespass irreparable in its character and of a continuing nature, and in the exercise of such power, removal of obstructions placed by the defendant upon the plaintiff’s property may be enforced.</p> <p>Id.—Tearing up Pipes—Injunction.—The court has also the power to enjoin the defendant from tearing up or disconnecting sewer and drain pipes, independent of any easement right which the plaintiff may have therein, as the accomplishment of such acts would constitute an injury to the inheritance.</p>

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

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

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

<p>Damages — Breach op Contract of Purchase — Growing Crop of Apples—Loss by Elements—Excessive Judgment.—In an action for damages for breach of a contract to purchase a growing crop of apples, it is error to award the plaintiff, as damages, the full contract price, without taking into account the cost of picking, nailing the shook, and hauling the apples to the designated point of shipment and putting them on board the ears, which the plaintiff was obligated to do under the terms of the contract, notwithstanding the apples were destroyed by the elements before harvesting through the alleged fault of the defendant in not furnishing the necessary materials and boxes for such purpose.</p> <p>Id.-—True Measure op Damages—Section 3300, Civil Code.—In an action for damages for breach of a contract to .purchase a growing crop of apples which was destroyed by the elements before it was harvested, and was never in a condition to be delivered to the buyer, section 3300 of the Civil Code, and not section 3311, furnishes the true measure of damages.</p> <p>Id.—Evidence—Market Value of Apples.—Where there is a dispute as to the contract price of the apples, it is error to strike out testimony as to their market value.</p>

<p>Contracts—Sale of Beal Estate—Broker’s Commission.—A contract authorizing real estate brokers to sell property which makes the brokers the exclusive agents for the sale of the property but does not clothe them with the exclusive right to sell the property, does not entitle the brokers to a commission on a sale made by the owner unaided by the agents.</p> <p>Id.—Batification—Sale bt Owner.—The sale by the owner does not constitute a ratification within the meaning of a contract providing that the owner shall be liable for commission on any sale made by the agents, “or ratified” by the owner during the life of the agreement.</p> <p>Id.—Definition of "Batification.”—The terms “adopt” and “ratify” are properly applicable only to contracts by a party acting or assuming to act for another.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Marin County, and from an order denying a new trial. Emmet Seawell, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law—Circumstantial Evidence—Instruction.—An instruction that “there is nothing in the nature of circumstantial evidence that renders it any less reliable than other classes of evidence,” and that “a man may as well swear falsely to an absolute knowledge of the facts as to a number of facts, if true, the fact on which the guilt or innocence depends must follow,” while lacking in clearness of expression and not strictly grammatical, is not misleading.</p> <p>Id.—Dying Declaration—Disregard by Jury—Instruction Properly Refused.—An instruction in which it was declared that dying declarations should be received with caution, and that unless it appeared that the declaration made by the deceased just prior to his death accusing the defendant of having fired the fatal shots was made “under a clear opinion of impending death, you cannot consider such declaration as evidence in this case, and the court cautions you . . . not to give as much weight to such evidence as if the same statement had been testified to in health and subject to cross-examination,” is properly refused, where the jury was instructed to receive with caution the evidence of the dying declaration “for the reason that the declarant had not been administered an oath, and an opportunity for cross-examination has not been afforded the defendant and that the declarant might be influenced against the defendant,” and for the further reason that the physical condition of the deceased when making the statement might have been such as to render questionable the reliability of his declaration.</p> <p>Id.—Identity of Murderer—¡Conflict of Proof—Duty to Acquit Defendant—Instruction Properly Refused,—An instruction in a ' prosecution for murder that if the jury believed from the evidence that the person who fired the fatal shots was a man taller and heavier than the defendant, it was their duty to acquit the defendant, “notwithstanding that certain witness or witnesses may testify that the person who fired such shots was said defendant, nevertheless, there would exist" such a conflict as to the identity of the person who fired such shots as to raise a reasonable doubt as to whether or not it was the defendant,” is properly refused.</p> <p>Id.—Acquittal of Defendant—Reasonable Doubt of Guilt by Single Juror—Instruction Properly Refused.—An instruction advising the jury that if after considering all the evidence “a single juror has a reasonable doubt of the defendant’s guilt, arising out of any part of the evidence, then they cannot convict him,” is properly disallowed, where the court instructed all the jurors that if they entertained a reasonable doubt of the defendant’s guilt or “upon a single fact or element necessary to constitute the crime, it is" your duty to give the defendant the benefit of such doubt and acquit him.”</p> <p>Id.—Credibility of Dying Declaration—Belief in Hereafter—Instruction Properly Refused.—An instruction that if the jury believed that the deceased “had no fear of God” and “had no conception of life after death wherein he would receive punishment for failure to tell the truth,” then his alleged dying declaration should be disregarded “for the reason that there was no compelling cause to tell the truth in the hour of his impending death,” is properly refused, in the absence of any evidence addressed to such matter other than the implication that the defendant might have been an adherent of a heathenish religion from the fact that he was a Chinaman.</p> <p>Id.—Making of Dying Declaration—Desire to Wreak Vengeance— Instruction Properly Refused.—An instruction that if the jury found that the deceased was actuated in making his alleged dying declaration “by the desire to wreak vengeance upon some person whom he might believe was a member of a society or a relative of a member of such society which was an enemy of a society to which the deceased belonged,” it would then be their duty wholly to disregard such declaration, is properly refused, in the absence of any evidence justifying such implication.</p> <p>Id.—Dying Declaration—Evidence.—A dying declaration is admissible when it is made to appear that the declaration was made by a dying person under a sense of impending death, and that such declaration related to the cause of his death.</p> <p>Id.—Evidence—Plight of Defendant — Cross-examination of Witness—Limitation not Erroneous.—Where a witness to the homicide is subjected to an extended cross-examination as to the direction in which the defendant ran immediately following the shooting, it is not prejudicial error to restrict the further examination of the witness as to how near he was to the defendant when the latter passed him.</p> <p>Id.—Examination of Witnesses—Duty of Court.—Where it is evident to the trial court, after a full and exhaustive examination of a witness upon a subject concerning which particular information is desired, that nothing more can be accomplished by continuing the inquiry, it is the duty of the court to put an end to such examination.</p> <p>Id.—New Trial—Impeaching Evidence.—It is not an abuse of discretion to refuse a new trial in such a prosecution upon the ground of newly discovered evidence, where it is apparent from the affidavits in support of the motion that the only purpose which the evidence referred to therein could accomplish would be the impeachment of •two witnesses who testified for the prosecution and whose test!mony was itself wholly in impeachment of the testimony of the defendant and his witnesses upon the question of the alM sought to be shown by the accused.</p>

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

<p>Referendum Petition — Number of Signatures — Construction of Charter of Bakersfield.—Under the charter of the city of Bakersfield approved by the legislature of 1915 (Stats. 1915, p. 1552), the words “general election” contained in section 32 of such charter, relating to referendum elections, and therein requiring that a petition protesting against the passage of an ordinance must be “signed by electors of the city, equal in number to twenty-five per centum or more, of the entire vote cast at the last general election,” when read with other sections of such charter relating to such 29 Cal. App.-—19 elections, have reference to the last general municipal election, and not to the last general state election.</p> <p>Id.—Sufficiency of Petition—Last Municipal Election Prior to Charter—When Controlling.—The sufficiency of the signatures to such a petition is to be tested by the last general municipal election held in the city prior to the adoption of the charter, if it be conceded that the election held after such adoption was not a general municipal election, by reason of the fact that councilmen were not elected in all of the wards of the city.</p> <p>Id.—Direct Legislation by Cities and Towns—Act Inapplicable to City of Bakersfield.—The act to provide for direct legislation by cities and towns, including initiative and referendum (Stats. Ex. Sess. 1911, p. 131), and which requires such petitions to be signed by qualified electors of the city or town “equal to ten per cent of the entire vote east therein for all candidates for Governor of the state at the last preceding general election at which a Governor was voted for,” has no application to the city of Bakersfield, even if it be conceded that the referendum provisions of the charter of such city are modeled upon the terms of such statute.</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, and from an order denying a new trial. Thomas C. Denny, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Negligence—Physician and Surgeon—Degree of Skill—Implied Contract.—A physician or surgeon undertaking the treatment of a patient impliedly contracts not only that he possesses that reasonable degree of learning and skill possessed by others of his profession, but that he will use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he is employed; and if he possesses such reasonable degree of learning and in the treatment of the patient exercises ordinary care and skill in applying it, he is not liable for the results that follow.</p> <p>Id.—Negligent Surgical Treatment—Insufficiency of Evidence.— In this action against a physician and surgeon to recover damages alleged to have been sustained by the plaintiff as the result of negligent surgical treatment of the plaintiff’s arm, it is held that the evidence wholly fails to show any lack of care and skill on the part of the defendant in setting and treating the fractured bone of the arm, and that it likewise fails to show when the dislocation of the elbow occurred, or that a physician in the exercise of ordinary care and skill in treating the plaintiff should have discovered the dislocation and treated the same.</p> <p>Id.—Exercise of Reasonable Skill—Question for Jury.—A surgeon does not undertake to perform a cure, nor does he undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; but he undertakes a fair, reasonable, and competent degree of skill, and in an action against him by a patient, the question for the jury is, whether the injury complained of must be referred to a want of a proper degree of skill and care in the, defendant or not.</p>

<p>Negligence—Death of Telephone Lineman—Contact With Power Line—Sufficiency of Evidence.—In this action to recover damages for the death of the minor son of plaintiff while in the employ of the defendant in the capacity of a general telephone lineman, which death occurred while he was engaged in fastening a bracket of the defendant upon one of its poles for the purpose of stringing and making fast to such bracket a wire, and as the result of his coming in contact with an electric power wire of another company which was alleged to have been strung less than four feet from where the bracket was being attached, it is held that there was sufficient evidence to justify the jury in finding that the defendant was culpably negligent in directing the deceased to work in a place known to the defendant to be dangerous, without specially warning him of the danger and providing for his protection.</p> <p>Id.—Statute Regulating Electric Wires—Violation by Defendant —Conclusive Presumption Against Contributory Negligence— Proper Instruction.—An instruction that if the jury found that the defendant was, in the erecting and constructing of the telephone line upon which the deceased was working at the time of his death, violating the act of April 12, 1911 (Stats. 1911, p. 1037), which prohibits the erection, and maintenance above ground of any wire or cable conveying or carrying less than six hundred volts of electricity within a distance of four feet from any wire or cable which shall conduct or carry at any one time more than six hundred volts of electricity, and that if they further found that such violation of such statute contributed to the death of deceased, the law conclusively presumes that said deceased was not guilty of contributory negligence, is not erroneous.</p> <p>Id.—Constitutional Law—Act Regulating Erection of Power Lines. The act of April 22, 1911 (Stats. 1911, p. 1037), regulating the placing, erection, use, and maintenance of electric poles, wires, cables, and appliances, and providing the punishment for the violation thereof, applies to a single class of individuals or objects, and is not unconstitutional as class legislation.</p> <p>Id.—Evidence—Sagging of Power LiNe—Proof Properly Excluded. In such an action it is not error to refuse evidence and instructions offered to shift the responsibility for the accident upon the power company in causing its line to sag, thus bringing it within the forbidden line of clearance, where it is shown that the power line was first erected.</p> <p>Id.—Pleading—Parties—Appeal—-Waiver.—Upon an appeal from an order denying a new trial, in such action, the objection that the action should have been brought by the husband of the plaintiff cannot be considered, where the cause was tried on the pleadings as they stood without objection to the evidence in support thereof.</p> <p>Id.—Appeal—Order Denying New Trial—What Reviewable.—The sufficiency of the pleadings to support the judgment, or the sufficiency of the findings of fact to sustain the conclusions of law, cannot be considered on an appeal from an order denying a new trial.</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 J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mechanic’s Lien—Action por Foreclosure—Purchase by Agent op Defendant—Sufficiency op Evidence.—In this action for the foreclosure of a lien for materials furnished by the plaintiff for use in the construction of a barn on real property owned by the defendant, the court was warranted in finding that the son of the defendant, in the transaction with the plaintiff, was acting for and as the agent, either actual or ostensible, of the defendant.</p>

<p>Street Law-—Improvements in Town of Santa Clara—Repeal of Charter Provisions — Constitutional Law.—The provisions of section 13 et seq. of the act entitled, “An Act to Reincorpórate the town of Santa Clara” (Stats. 1872, p. 251), relating to street improvements therein, and which authorized contracts to be entered into in advance of the levy and collection of the assessment, were repealed upon the adoption of section 19 of article XI of the constitution, notwithstanding such section in terms only specifies cities as coming within its provisions, and not towns.</p> <p>Id.—Statutory Construction—Word Given Particular Meaning.— When a word or phrase has been given a particular scope or meaning in one part or portion of a law, it is to be given the same scope and meaning in other parts or portions of the law and particularly of the same section thereof.</p> <p>Id.—General Laws Applicable to Street Improvements.—The adoption of such constitutional provision had the effect of not only repealing that portion of the charter of the town of Santa Clara as permitted street improvements to be completed before the assessments had been levied and collected, but of repealing the entire charter provision applicable to street improvements, and of relegating the town to the general laws as to its source of authority and procedure in the improvement of its public streets</p>

<p>Criminal Law—Murder—Evidence—Proof of Corpus Delicti—Admission.—In a prosecution for murder proof of the corpus delicti of the conclusive and convincing character required to support a conviction of the crime charged is not a prerequisite to the reception in evidence of the extra-judicial statements of the defendant that he had killed the deceased, but prima facie proof is sufficient for that purpose.</p> <p>Id.—Sufficiency of Proof of Corpus Delicti.—-In this prosecution of a son for the murder of his father, it is held that the evidence was sufficient prima fade to establish the corpus delicti as the foundation for the admission in evidence of the extra-judicial statements of the defendant that he caused the death of the deceased.</p> <p>Id.—Admissions of Defendant—Order of Pro'of.—In the absence of a showing of prejudice, there is no error in admitting in evidence the defendant’s extra-judicial statements prior to the proof of the corpus delicti.</p> <p>Id.—Result of Experiments—When Inadmissible.—In a prosecution for murder it is prejudicial error to permit the state, over the objection of the defendant, to show the result of certain experiments made by the district attorney and peace officers with shots fired from the gun which killed the deceased at and into cardboards and blocks of wood which were intended to represent the deceased, for the purpose of rebutting the statements of the defendant that the killing was accidental, in the absence of a showing that the experiments were made under circumstances and conditions which were the same, or substantially the same, as those which existed when the killing occurred.</p> <p>Id.—Evidence of Experiments—• Discretion—Preliminary Proof.— While the admission of evidence showing the results of experiments is largely within the discretion of the trial court, nevertheless the admission of such evidence is regulated and must be controlled by the well-settled rule that it must be first shown that the experiments relied upon were made under conditions and circumstances which were essentially the same as those which existed when the alleged occurrence took place.</p> <p>Id.—Instruction—Immateriality of Evidence of Experiments.—An instruction declaring that the evidence of the results of experiments should not be “considered material and effective nor conclusive, but as a mere circumstance to be considered in connection with other evidence in the.case,” is erroneous in the particular that it declares that evidence of the results of experiments was neither material nor effective, and should not he given, notwithstanding it correctly stated the law to the extent that such evidence was to be considered by the jury with the other evidence in the case.</p> <p>Id.—Conflicting Results op Experiments — Disregard by Jury— Erroneous Instruction.—An instruction to the effect that if the evidence of the respective experiments made by the prosecution and defendant under similar circumstances showed different results, then the result of each experiment should be disregarded by the jury, is erroneous, as such a situation amounts to no more than a conflict of evidence, which should be left to the jury for decision.</p> <p>Id.—Experiments Under Different Conditions—Disregard of Evidence—Proper Instruction.—The refusal to instruct the jury to the effect that the evidence of the results of the experiments made by the prosecution should be disregarded unless the jury found that those experiments were made under conditions and circumstances which were the same, or substantially the same, as those which existed at the time of the killing, is error, as the determination of the trial court before ruling upon the admissibility of such evidence is not conclusive upon the jury.</p> <p>Id.—Oral Admissions — Cautious Consideration — Refusal op Instruction—Absence op Error.—The refusal to instruct the jury to ■ the effect that evidence of oral admissions should be viewed and considered by the jury with caution is not reversible error.</p> <p>Id.—Conviction upon Admissions—Establishment of Corpus Delicti —Requested Instruction—Refusal Prejudicial Error.—In this prosecution it is held that under the particular and peculiar circumstances the court erred to the substantial prejudice of the defendant in refusing to charge the jury at the request of the defendant as follows: “You are instructed in this case that before you can convict the defendant you must be convinced from the evidence beyond a reasonable doubt and to a moral certainty that a criminal homicide was in fact committed; and you must be so convinced by evidence other than or in addition to the statements or admissions of the defendant, and this evidence must be sufficient to establish that the death of the deceased was produced by the criminal act of some person and was not the result of accident. The ■ production of the dead body does hot alone establish the criminal homicide; and proof of the dead body alone found, with the statements of the defendant, would not be sufficient to convict, for there must be some evidence tending to show the commission of a homicide before the statement of the defendant would be admissible for any purpose; and hence if you believe in this case that the only evidence which shows that a crime was committed is the production of the dead body of the deceased, coupled with the admissions or statements of this defendant, then it is your duty to acquit this defendant.”</p> <p>Id.—Extra-judicial Confessions—When Insufficient.—A defendant charged with crime must not be convicted upon his extra-judicial confessions or admissions, unless such confessions or admissions be corroborated by proof aliunde of the corpus delicti.</p>

<p>Order for Payment of Monet—Evidence—Construction of Instrument.—In this action to recover upon a written order calling for the payment of various sums of money upon different dates,- which was drawn upon the defendant by a sales agent employed by it to make disposition of certain lands, and which was accepted by the plaintiff in payment of certain advances made by it to such agent to make such sales, it is held that, in the light of the evidence, the dates set after the several installments which were to be paid by the terms of the accepted order referred, not to the times when commissions would be due and payable to such agent from the defendant, but that they referred to the dates whereon the several sums set before them would be due and payable by the defendant to the plaintiff without respect to when or whether any particular amount of commissions was then earned or payable.</p> <p>Id.—Effect of Order—Novation.—It is also held that on the date of the drawing and acceptance of the order a novation was agreed to and accomplished between the parties thereto, and that whatever contingencies there might be as to the amount of commissions then or thereafter to be chargeable to the defendant as between itself and such agent, were assumed by the defendant, and were not to affect or qualify the terms of its said acceptance or the amounts to become due the plaintiff thereon.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. George L. Jones, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p> <p>Hiram E. Casey, Charles F. Blandin, L. A. Kottinger, end Milton Shepardson, for Appellants.</p>

<p>Damages—Breach of Contract—Pleading—Sufficiency of Evidence —General Verdict.—Where in an action for damages for breach of a contract to purchase goods to be manufactured and delivered, the complaint purports to state a cause of action in two counts, one upon an oral contract and the other on a written contract, and the evidence is amply sufficient to support the finding of the jury implied from the general verdict that the defendant breached the oral contract, the insufficiency of the evidence to establish the breacfi of the written contract becomes immaterial.</p> <p>Id.—Statute of Frauds—Signing of Memorandum—Part Receipt.— Where it is pleaded and proven that the written memorandum of the - contract relied upon in the first count of the complaint was signed by the defendant and also that the defendant received and accepted part of the goods, the right of the plaintiff to recover is not inhibited by the statute of frauds.</p> <p>Id.—Measure of Damages—Trial upon Erroneous Theory—Appeal— Rule.—Where the counsel for the defendant insisted over the plaintiff’s protest that the trial should proceed upon the erroneous theory that the measure of damages was covered and controlled by sections 3311 and 3353 of the Civil Code, which in effect declare the measure of damages for the breach of a buyer’s agreement to purchase personal property is the difference between the contract price and the market value, he cannot insist upon appeal that the plaintiff’s damages should have been established under section 1512 of such code, which in effect provides the measure of damages in cases of prevention of performance of contracts to be the difference between the cost of manufacture and the contract price.</p>

<p>Contract — Sale of Raisin Crop — Pleading—Amendment of Complaint—Refusal to Strike from Files—Single Transaction.— In this action, which involved but a single transaction of the alleged sale by plaintiff and purchase by defendant of a certain lot of raisins at a certain price per pound alleged to have been delivered in a certain number of sweat boxes, as to which latter the only dispute was whether or not the defendant had appropriated them to its own use and benefit and as to their value, it is held that the defendant was not prejudiced by the refusal to strike the second amended complaint from the files on the ground that it stated a new cause of action, as the facts all related to one and the same transaction and the relative rights of the parties were fully exploited at the trial upon such complaint and the answer thereto.</p> <p>Id.—Quality of Raisins—Sufficiency of Evidence.—It is held herein that there was evidence from which the jury were justified in finding that the raisins were of the quality called for by the contract.</p> <p>Id.—Appeal—Finding on Conflicting Evidence.—Where the evidence is conflicting and there is substantial evidence sufficient to justify the finding in question, the reviewing court will not disturb it even though the evidence would have justified a finding favorable to the opposing party.</p> <p>Id.—Time of Delivery—Sufficiency of Evidence.—It is also held that considering all the circumstances, together with the failure to express a definite date for the delivery of the raisins, the jury were justified in finding that there was no violation of the terms of the contract so far as the time of delivery was concerned.</p> <p>Id.—Acceptance of Raisins—Sufficiency of Evidence.—Where it is shown that the raisins were such as were called for by the contract and were delivered on time, it became defendant’s duty to accept and pay for them.</p> <p>Id.—Acceptance of Portion of Raisins—Effect upon Delivery—Instruction.—An instruction “that the evidence is without contradiction in this ease that the raisins in question were tendered to defendant, who thereupon accepted a portion thereof; and if you believe such evidence and so find, then the court instructs that the defendant is estopped from claiming that such raisins were not delivered on time,” is erroneous, but without prejudice, where it is found on sufficient evidence that the raisins were of the proper quality and tendered on time.</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. Eugene P. McDaniel, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Personal Injuries—Pleading.—While it is permissible to plead negligence in general terms, specifying the particular act or acts upon which the pleader relies as constituting such negligence, this rule applies only to cases where the acts as alleged might or might not have been negligently done, and has no necessary application to a case wherein the facts complained of and specifically set forth are such that the inference of negligence necessarily arises from their enumeration.</p> <p>Id.— Collision of Automobile and Motorcycle — Sufficiency of Complaint.—In an action for damages for injuries received in . a collision between an automobile and a motorcycle, where the complaint alleges that plaintiff was riding ■ southward along the westerly side of a certain avenue and near the southerly side of an intersecting street, where he had a right to be and to ride, and the defendants, operating an automobile, were proceeding northerly along the easterly side of the avenue, and suddenly, without warning, altered the course of the automobile and drove it with high speed and without any warning or notice across said avenue to the westerly side thereof, near the southerly side of the street, where the plaintiff rightfully was, and there struck and injured him, the inference of negligence from the facts is logical and irresistible, and it was not necessary to aver that they were negligently done.</p>

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

<p>Criminal Law—Bare—Female Under Age of Consent—Evidence— Corroboration—Accomplice.—A female under the age of consent is not an accomplice in the crime of rape committed upon her, nor does the law require that her testimony be supported by corroboration in order to sustain a conviction.</p> <p>Id.—Misconduct of District Attorney—Lack of Prejudice.—In a prosecution for rape on a girl under the age of consent it is misconduct for the district attorney, on cross-examination of a witness, to ask whether the sister of the prosecutrix told the witness that defendant, her father, did the same things to her that he was charged with doing to the prosecutrix; but where the court sustained the objection of the defense to the question and charged the jury to disregard the statements of counsel and all evidence not presented in a legal way, and the district attorney abandoned the subject, the misconduct was not prejudicial.</p>

<p>¡Street Law—Resolution of Intention—Description of Work—Reference to Plans and Specifications.—In the matter of street improvement proceedings the law does not require that the resolution of intention shall in terms describe in detail the work to be done thereunder, but provides that the resolution may give that description by reference to plans and specifications contemporaneously created and adopted.</p> <p>Id.—Foreclosure of Lien—Construction of Complaint—Description of Work—Resolution of Intention—Reference to Plans and Specifications.—A complaint in an action for the foreclosure of a lien for grading a street, and for the construction of gutters on either side thereof and bridges at the cross-walks, which alleges the passage of a resolution of intention, wherein it was resolved “that gutters three feet wide, grouted, be constructed on both sides of the roadway . . . and that wooden bridges 4 ft. by 5 ft. be constructed over the gutters at each end of each cross-walk place, ...” sufficiently describes, in the absence of a special demurrer for uncertainty and ambiguity, the work to be done upon such gutters and bridges, where it is also alleged in a subsequent paragraph of the complaint “that before passing the resolution for the construction of said work or improvement, plans and specifications and careful estimates of the costs and expenses thereof had been required by it to be furnished to said board by the city engineer of said city and special specifications therefor had been furnished by him.”</p>

<p>Criminal Law-—Forgery—Evidence—Effect of Admissions.—In a prosecution for forging the names of two persons to the promissory note of the defendant, given to evidence the indebtedness of the defendant to 'the complaining witness of a certain sum of money which the latter had intrusted to the defendant to be loaned out by him on mortgage securities, and which he had improperly used in furthering a certain resilient tire scheme which he was promoting, it is not error to permit the state to prove the original intrusting of the money to the defendant for loan purposes, nor to prove a conversation had the day before the delivery of the note wherein the defendant admitted that he had falsely stated to the complaining witness that he had loaned the money upon mortgages, whereas he had in truth used the same for his own private business purposes, notwithstanding the admission by defendant’s counsel preceding the opening statement of the district attorney that the sole defense to the charge would be that the defendant had authority to sign the names to the note, and the further admission, when the complaining witness was placed upon the stand, that the note was given as evidence of an antecedent debt.</p> <p>Id.—Motive—Proof of Other Offenses.—Whenever the question of motive, or purpose, or reason for an act is involved, testimony showing such motive, reason, or purpose is always admissible, even though it may establish the commission of other offenses.</p> <p>Id.—Authority to Sign Note—Evasive Answer—Further Interrogation—Bight of State.—Where one of the persons whose name was forged is placed upon the stand by the state and makes evasive answer as to whether he had authorized the defendant to sign his name, it is not prejudicial error to permit the district attorney over objection to further interrogate the witness upon the subject.</p> <p>Id.—Misconduct of District Attorney—Examination of Defendant —Misspending of Other Moneys—Admonition to Disregard.— It is improper to ask the defendant on cross-examination as to whether or not he had not spent a great deal of money that he got from other people in the tire business in which he was engaged, but such misconduct is not prejudicial where the jury was promptly directed to disregard the question and not to draw any inference therefrom.</p> <p>Id.— Instructions — Acts of Defendant — Drawing of Different Conclusions—Duty of Jury.—It is not error to refuse to instruct the jury to the effect that the law presumes innocence, and where two conclusions may be drawn from the defendant’s acts the jury must find him not guilty, where the court gave instructions which covered in substance the only theories involved in the case to which the refused instructions could apply.</p> <p>Id’.—Verdict—Beturn for' Correction—Waiver.—Where at the time a verdict is returned no question is raised as to its form or sufficiency, and the objection is first presented to the trial court upon the de- . fendant’s motion for a new trial, the question whether the court should or should not have returned the verdict to the jury and directed reconsideration, as provided by section 1161 of the Penal Code, is not presented for consideration.</p> <p>Id.—Sufficiency of Verdict.—A verdict in such a prosecution in the following form is sufficient, to wit: “We, the jury in the above-entitled cause, find the defendant guilty of the crime of forgery, as charged in the indictment, of the promissory note set forth in the indictment; and we further find that said defendant forged the name of C. 0. Cartwright to said promissory note, as charged in • the indictment; and we further find the defendant guilty of uttering and passing the forged promissory note as charged in the indictment.”</p> <p>Id.—Language of Verdict.—It is not essential that the language of a verdict should follow the strict rules of pleading or be otherwise technical, for whatever conveys the idea to the common understanding will suffice, and all fair intendments will be made to support it. Id.— Forgery of Two Names — Evidence — Sufficiency as to One Name—Verdict.—In such a prosecution the finding of the jury that the defendant was guilty of forging one of the two names to the note in question is sufficient to support the judgment, notwithstanding the evidence is insufficient to support a verdict that he was guilty of forging the other name thereto. ■</p>

<p>The facts are stated in the opinion of the court.</p> <p>Gavin McNab, R P. Henshall, A. H. Jarman, Nat Schmulowitz, and B. M. Aikins, for Appellants.</p> <p>Peck, Bunker & Cole, John W. Griggs, Henry G. Tardy, and Henry C. McPike, for Respondents.</p>

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

<p>APPEAL from an order of the Superior Court of San Mateo County. George H. Buck, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Undertaking on Appeal—Stay of Execution—Liability of Surety. The liability of a surety on an undertaking on appeal given to stay the execution of a judgment for the return of specific personal ' property, or its value, and for a certain sum of money, is not extinguished, in so far as the money judgment is concerned, by the turning over to the appellant upon affirmance of the judgment of all property belonging to appellant in respondent’s hands, including an amount in cash in excess of the amount of such money judgment, where it is shown that some of the property was disposed of by respondent pending the proceedings, and that upon applying the money upon the demands held by the appellant there still remained a balance due upon the judgment.</p> <p>Id.—Amount of Undertaking—Agreement of Parties.—An undertaking on appeal from a judgment for the delivery of personal property, or its value, and for a fixed amount of money is not void, because of the fact that the amount of such undertaking was fixed by the parties, instead of by the court, as the surety is bound by the statement in its contract, and cannot question the truth of such recitals.</p> <p>Id.—Estoppel of Sureties.—When the party in whose favor the undertaking was executed has had the benefit of a stay of execution, the surety cannot be heard to say that the undertaking was void because all the forms of the statute, through its omission, were not complied with.</p>

<p>Pleading — Variance Between Allegations and Exhibit — Waiver.— ' A variance between the direct allegations of a complaint and a copy of an instrument set forth therein, or an exhibit attached thereto, can be successfully attacked only by special demurrer, and cannot be taken advantage of by general demurrer.</p>

<p>Unlawful Detainee—Appeal—Lack of Error.—It is held on the appeal in this case that the appellant having filed a brief in which not a single question of law or ground of alleged error is presented, and the court having examined the record and finding no error, the judgment and order appealed from should be afirrmed.</p>

<p>Pleading—Unverified Answer—Effect of—Remedy of Plaintiff.— An unverified answer to a verified complaint does not admit all of the allegations of the complaint to be true in the absence of a seasonable objection to the failure of the defendant to verify his answer. The remedy of the plaintiff in such a contingency is to move the trial court to strike out the answer or for judgment upon the pleadings for want of an answer.</p> <p>Id.— Lack of Verification — Trial Without Objection — Waiver. — Where the case goes to trial and is heard and determined upon the issues purporting to have been raised by the pleadings of the parties without a previous objection upon the part of the plaintiff to the lack of verification of the defendant’s answer, the defect will be deemed to have been waived.</p> <p>Id.—Action for Goods Sold and Monets Advanced:—Unverified Answer—Trial Without Objection—Unwarranted Judgment.—In an action for goods sold and delivered and for moneys advanced for the payment of freight and transportation charges upon the goods, the failure of the defendants to verify their answer to the plaintiff’s verified complaint is not sufficient to support a judgment for the moneys advanced as an admitted fact under the pleadings, where it is found that the defendants were not indebted therefor, and no motion to strike out the answer or for judgment on the pleadings was made, and the case was tried upon the pleadings as presented. Id.—Certificate of Partnership—Use of Initials.—A certificate of copartnership which sets forth the initials of the respective partners’ given names instead of their names in full is sufficient.</p>

<p>Fire Insurance—Time of Payment—Denial of Liability—Provision of Policy not Waived.—A provision in a policy of fire insurance that the loss should not become due and payable until a certain time had elapsed after presentation of the proofs of loss, is not waived by reason of the denial of any liability upon the policy by the insurance company at the time-of the presentation of the proofs of loss by the insured.</p>

<p>Criminal Law—Examination of Talesmen—Peremptory Challenge. The limitation of examination of jurors on their voir dire for the purpose of exercising a peremptory challenge is very completely within the discretion of the judge, and defendant is not entitled to embark in a general exploration for the sole purpose of satisfying himself whether it would be safe to try the ease before a juror against whom no legal objection can be urged.</p> <p>Id.—Cross-examination—Limitation of.—Refusal to allow defendant’s counsel to cross-examine a witness with respect to his testimony at the preliminary examination in a murder case, which affected only the form of the questions and did not deny the right to ask appropriate questions showing contradictions and inconsistencies, is not erroneous.</p> <p>Id.—Argument—Reading Newspapers.—In such a case refusal of the court to allow the reading in argument of extracts from newspapers is not erroneous where the record fails to show what the offered extracts were, or what relation, if any, they might have had to the subject matter of the case.</p>

<p>Contract—Services of Attorney—Sufficiency of Evidence.—In this action to recover for attorney’s fees it is held that the findings support the judgment of the trial court as to the services rendered after defendant’s incorporation and as to their value.</p>

<p>Action to Recover Bail Monet — Counterclaim — Conflicting Evidence.—In an action to recover certain bail money, where the defendant attempts to offset the value of certain services, and the evidence is conflicting, the decision of the trial court will not be disturbed on appeal.</p>

H. Z. Austin, Judge presiding. This is an action to recover on a policy of fire insurance. The policy provided that any loss thereunder should be payable in thirty days after the amount thereof had been ascertained either by agreement or by appraisement; but if such appraisement was not had or made within sixty days after receipt by the company of the preliminary proof of loss, then the loss should be payable in ninety days after such receipt.

<p>New Trial—■ Newly Discovered Evidence — Requirements of Affidavit.—In support of a motion for a new trial on the ground of newly discovered evidence, it is incumbent on the moving party to show the diligence employed in preparing for the first trial, how the alleged new evidence was discovered, and why it was not discovered before the first trial, and such other facts as will make it clear to the court that the failure to produce the alleged newly discovered evidence and present it at the first trial of the case was not attributable to the fault or want of diligence of the party, and where the affidavit fails to show these things, it is insufficient.</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. Stanley A. Smith, 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 setting aside a default judgment. Bernard J. Flood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sale—When not by Sample.—Where an order for goods was given after an examination or an opportunity to examine, and the purchaser then and there paid part of the purchase price and an arrangement was entered into between him and the seller fixing a time • for the payment of the balance and the shipment of the goods, it cannot be held that the sale was by sample, although the sellers, at the request of the purchaser, sent samples of the goods to the firm of the purchaser, this being apparently done in order that the latter might solicit orders from 'the customers of suits and cloaks to be cut up from the cloth from which the samples were taken when the cloth should arrive.</p> <p>Id.—Opportunity to Examine Goods—Implied Warranty.—Where the purchaser had an opportunity to examine the goods in such a case, there was no implied warranty as to the quality, even if the representative of the buyers failed to take advantage of the opportunity for examination given him.</p> <p>Id.—Express Warranty.—Where both buyer and seller of goods, by reason of their occupation, have expert knowledge of the kinds of goods in question, an expression of the latter at the time of the sale that the goods are first class is but the expression of an opinion, or what is termed “puffing,” and not an express warranty of quality.</p>

<p>Deed—Conveyance to Husband and Wipe—Tenants in Common—Assumption op Mortgage—Personal Liability.—The insertion, of the names of a husband and wife as grantees in a deed creates the relation of tenants in common between them, and where the grantees accept such a deed containing a provision that the deed is subject to a deed of trust and also a mortgage which the grantees agree to pay, the latter become personally liable for the amount of the obligations which the encumbrances secure, after such security is properly exhausted, even though the signature of the grantees is not appended to the deed.</p> <p>Id. — Liability op" Wipe — Sufficiency op Evidence. — In such a case, where there was substantial evidence, in addition to that furnished upon the face of the deed and the fact that the wife several months after the execution and delivery of the deed to her husband joined in a conveyance of the property and of the title insurance policy, to the effeet that she was made aware of the fact and contents of the deed, at or about the time of the transaction, and the title of the property was permitted to remain in their names as tenants in common for several months with such knowledge and without any objection on her part, the evidence is sufficient to sustain a finding that the transaction was not one in which the husband was dealing with his separate property, but that the property received by himself and his wife was community property, and that the latter was consulted and advised as to the same.</p>

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

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

<p>Claim and Delivery—Judgment for Return of Property—Tender— Unjustified Refusal to Accept.—In an action in claim and delivery to recover possession of an automobile, where judgment was' rendered in favor of the defendant for the recovery of the property, or the amount found to be its value if return could not be had, the defendant was not justified in refusing to accept a return of the property four months after the entry of judgment, upon the sole ground of its depreciation in value merely by lapse of time, and under the circumstances she cannot maintain an action to recover the value of the automobile upon an undertaking given in the original action to procure delivery of the property to the plaintiff therein.</p>

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

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

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

<p>Intoxicating Liquors—Keeping Place for. Sale and Distribution— Character of Territory—Information.—An information charging a defendant with the crime of keeping and conducting a place for the sale and distribution of alcoholic liquors in “no-license territory,” should contain a direct averment that the territory was of such character, and the date when the ordinance so declaring became effective should be stated or proven.</p> <p>Id.—Evidence—Keeping of Place Prior to Date Alleged—Prejudicial Error.—In a prosecution for the crime of keeping a place for the sale and distribution of alcoholic liquors in “no-license territory,” where it is neither alleged in the information nor proven at the trial that the territory was "no-license territory” prior to the date alleged in the information, it is reversible error to admit evidence that the defendant prior to such date kept a place of public resort where alcoholic liquors were sold and distributed.</p>

<p>Criminal Law—Adultery—Essentials.—In order to warrant a conviction of the offense denounced in section 269b of the Penal Code, cohabitation alone is not sufficient, but there must be an assumption of the conjugal relations, such as sleeping together, occupying the same room or bed .at night, having sexual intercourse with each other as though married, and many other relations that are summed up appropriately by the words “cohabiting with.”</p> <p>Id.—Parentage of Child—Relevancy of Evidence.—In a prosecution for such an offense evidence is admissible that the defendant was the father of a child born to his companion in crime while they were living together as husband and wife, where it is shown that the woman was not cohabiting with her husband.</p> <p>Id.—Parent and Child—Rebuttal of Presumption of Legitimacy.— The presumption that a child born of a married woman is legitimate may be rebutted by evidence showing that the husband was incompetent, entirely absent, so as to have no intercourse or communication of any kind with the mother, entirely absent at the period during which the child must, in the course of nature, have been begotten, or only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse.</p> <p>Id.—Conduct of Defendant—Introduction of Companion as Wife.— In such a prosecution there is no error in admitting evidence showing defendant’s attitude and conduct when he heard his companion introduced as his purported wife.</p> <p>Id.—Cause op Wipe Leaving Home—Exclusion op Proof.—In such a prosecution there is no error in excluding evidence that the companion of the defendant left her home by reason of the brutal treatment of her husband.</p> <p>Id.—Character Witness—Explanation op Answer—Lack op Prejudice.—In such a prosecution there is no error in permitting a witness as to the general reputation of the defendant to supplement his answer with the explanation that he had known the defendant for three or four years, and had seen him often, and in the last two or three years had not seen him.</p> <p>Id.—Conduct op Parties—Striking Out op Answer—Lack op Prejudice.—There is no error in striking out the answer of the mother of the woman to the question as to whether she observed any improper conduct on the part of either the defendant or her daughter while visiting them, where such answer was in part not responsive, and the responsive part subsequently given in answer to another question.</p> <p>Id.—Time op Offense—Instruction—Lack op Error.—An instruction to the jury to find the defendant guilty if he lived in cohabitation and adultery “any time from about the month of November, 1912, up to the twenty-seventh day of April, 1915,” is not erroneous, notwithstanding the charge in the information that the offense was committed “on or about the twenty-third day of April, 1915.”</p> <p>Id.—Date op Offense—Averment in Indictment.—It is unnecessary to charge in the indictment the precise date upon which an offense was committed, or to prove the offense to have been committed on the day charged, except where time is of the essence of the offense.</p> <p>Id.—Conviction op Dependant—Evidence to be -Considered—Instruction—Absence op Error.—An instruction that “if the jury believed to a moral certainty and beyond a reasonable doubt that the said defendant did”—reciting the averments of the information— “then I charge you it will be your duty to bring in a verdict of guilty as charged,” is not erroneous, for the reason that it did not confine the jury to the evidence, where the court also instructed the jury that they had no right to go outside of the evidence, but that they must fairly consider all the evidence in the case.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Gavin W. Craig, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Appellant.</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>Negligence—Destruction op Feed by Fire—Sufficiency of Evidence. In an aetion for damages alleged to have accrued to plaintiff by the destruction of several hundred acres of feed standing upon certain land caused by fire, which it is alleged started upon the lands of the defendant and was negligently permitted to spread to plaintiff’s land, where the evidence as to the cause of the fire upon the lands of the plaintiff is in substantial conflict upon the question as to whether it originated from a lighted cigarette dropped upon the lands of the defendant by an employee, or resulted from the burning of grass upon the lands of the defendant for the purpose of clearing the same by a person who claimed to be acting as the agent of the corporation defendant, the findings of the trial court cannot be disturbed on appeal.</p> <p>Id.—Authority of Agent—Sufficiency of Evidence.—In such a case, whether a person who acknowledged responsibility for the origin of the fire upon the lands of the corporation defendant was or was not the agent of the defendant was a matter peculiarly within its own knowledge, and the fact that such person was found upon the lands of the defendant at or about the time of the starting of the fire, openly acting in the capacity of superintendent over the defendant’s land and the work being done thereon, was a circumstance which carried with it the implication of authority to so act from the corporation defendant, and sufficed to make a prima facie showing of the existence of the relation of principal and agent between the corporation defendant and such person, which, in the absence of a showing to the contrary, was sufficient to support a finding of the trial court that such relation did exist at the time of the fire.</p> <p>Id.—Admissions of Agent—Admissibility of.—In such a ease statements of the person who had charge of the defendant’s lands at the time of the fire, concerning its origin-, and his subsequent offer to settle for the damages resulting therefrom to the plaintiff’s lands, were admissible in evidence.</p>

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

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

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

<p>Criminal Law—Murder—Instructions—When Refusal to Instruct on Manslaughter Erroneous.—In a prosecution for murder the court may properly refuse to instruct the jury that they may return a verdict of manslaughter, if the evidence clearly shows that the crime committed was not manslaughter; but where the evidence is such that the jury would be warranted in returning a verdict of manslaughter, it is prejudicial error for the court to refuse, at the request of the defendant, to instruct the jury that it might, if the evidence warranted it, find the defendant guilty of manslaughter.</p> <p>Id.—Manslaughter—Definition.—Manslaughter is the unlawful killing of a human being, without malice; and one of the conditions described in the code definition is that of an involuntary killing “in the commission of an unlawful act, not amounting to felony.”</p>

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

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

<p>Building Contract—Specific Performance—When not Enforceable. Courts of equity will not specifically enforce building contracts where performance cannot be consummated by one transaction, and when the contract, according to its terms, requires a succession of acts and a protracted supervision, with special knowledge and skill in its oversight and management.</p> <p>Id.—Contract of Sale—Interest in Land—When not Enforceable. When a contract for sale of real estate is for any reason incapable of specific performance, it cannot form the basis of a valid claim to an interest, therein, and when such claim is asserted, the owner of the real estate is entitled to a decree quieting his title thereto.</p> <p>Id,—Agreement to Erect House and Resell Property—Action to Quiet Title by Seller—Claim of Interest in Property by Purchaser—Form of Judgment.—In an action in the usual form to quiet title to a certain house and lot, by one holding the legal title, in which the defendants by cro^s-complaint set up a contract between plaintiffs and defendants, providing, among other things, that in consideration of the transfer by defendant to plaintiffs of the land in question, and an agreement by the former to pay the latter a certain balance, the plaintiffs should erect a building upon the land according to certain plans and specifications, the purpose of the conveyance of the land being to secure performance of the contract on the part of defendant to repurchase the lot and building thereon, and the evidence showed that plaintiffs failed to live up to the terms of their contract, in that they did not erect the building according to the plans and specifications, whereupon the defendant claimed an interest in the real property adverse to the plaintiffs, the trial court properly decreed that the plaintiffs should keep the house and lot and pay to the defendant the amount of her outlay plus the enhanced value of the lot, the court having found that the defects in the building were irremediable and depreciated the value of the building.</p> <p>Id.—Pleading — Adequacy of Consideration — Fairness and Reasonableness of Agreement.—In such a case, although the answer and cross-complaint do not in terms allege the adequacy of the consideration or the fairness of the agreement, where they do in formal allegations set forth the facts constituting the defense and the circumstances under which both parties entered into the contract, the statement of facts is sufficient, and a demurrer thereto is properly overruled.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of 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>Criminal Law—Destruction of Insured Property—Sufficiency of Indictment—Name of Owner of Property and Beneficiary of Insurance Immaterial.—In a prosecution for the crime defined by section 548 of the Penal Code, that is, of willfully burning insured property with intent to defraud the insurer, it is not necessary to allege in the indictment the name of the person to whom the property belonged, or who was the beneficiary of the insurance, the essential facts being that the property was insured against loss, and that the defendant burned or otherwise destroyed the property with intent to defraud or prejudice the insurer.</p> <p>Id.—Sufficiency of Evidence—Question for Jury.—The contention that the evidence was insufiicient to show any intent on the part of the defendant to defraud the insurance company, based on the claim that testimony of certain witnesses for the state was unworthy of belief, rather than on any claim that there was no evidence tending to prove such criminal intent, cannot be maintained on appeal, as the question was one for the jury.</p> <p>Id.—Evidence—Photographs of Building After Fire.—There was no error in admitting in evidence certain photographs taken a few hours after the fire, showing the burnt building at the time the photographs were taken.</p> <p>Id.—Instructions—Definition of Malice in Arson—Harmless Error.—As the crime charged was not arson, an instruction given at the request of the people defining malice as a necessary ingredient in the offense of arson should have been omitted, but the giving of it did not constitute prejudicial error.</p> <p>Id.—Alleged Misconduct of District Attorney—-Offering Evidence of Other Fires.—The conduct of the district attorney on several occasions in attempting to introduce testimony showing former fires which had occurred on the same and other premises belonging to one of the defendants, to which evidence objection was sustained, was not prejudicial, where the record shows that the offer was made in good faith and not for the wanton purpose of raising a prejudice against the defendant, and no suggestion was made during the trial of misconduct of the district attorney.</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>Action on Promissory Note—Pleading—Amount Due—Conclusion of Law.—In an action on a promissory note, where the answer admits the execution of the note, and alleges that the principal and interest remain wholly unpaid, but denies that the same is due and owing, or that any amount is due and owing, the admission is of the ultimate fact as to nonpayment, and the denial is a mere conclusion of law, which should be disregarded.</p> <p>Do.—Cross-complaint—Alleged Failure of Consideration—Insufficient Defense.—In such case, where there was attached to defendant’s answer a set of allegations termed a cross-complaint, in which the execution of the notes sued on was admitted, but it was alleged that the same were given in. exchange for certain shares of stock of the plaintiff corporation, and the further" consideration that plaintiff would extend certain favors to defendant because of the purchase, and that plaintiff had agreed in consideration of the execution of the notes that a certain trade discount certificate should be issued, providing that for a period of ten years defendant should be entitled to a discount from catalogue prices of merchandise purchased from plaintiff, and that, after the certificate had been issued, the privileges therein stated were repudiated by plaintiff corporation, which thereafter refused to allow the discounts, and that as a further consideration inducing the execution of the notes defendant was promised a catalogue showing prices of goods for sale by plaintiff, which catalogue was never furnished, and it was represented that plaintiff' was a “strong corporation, and in eighteen months or thereabouts would pay dividends,” which allegation was alleged to be false, and intended to deceive defendant, and was relied upon by and did deceive the latter, the alleged cross-complaint does not state a cause of action for damages, and is insufficient to support a judgment of rescission, it failing to allege the value of the stock or of the alleged privileges which were denied plaintiff, and there being no allegation of tender back of the stock, or vigilance shown by defendant asserting the right to rescind.</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>Mutual Benefit Association — Beneficiary — Bight of Insured to Change.—In the absence of restrictive provisions of the charter, by-laws, or rules under which the association operates, a member of a mutual benefit association has the right to revoke his designation of a beneficiary and substitute a different one.</p> <p>Id.—Bight to Select Stranger as Beneficiary.—Where a mutual benefit association is unincorporated and has no by-laws or set of rules beyond those which are set forth in the circular issued to invite members, which is accompanied by an application blank to be signed by the applicant, and the only qualification required is that the applicant shall be a member in good standing of a certain fraternal order, and shall not be over sixty years of age and in good health, the fund is designated as the “widow’s benefit fund," and the circular informs the prospective members that the protection will be extended to either “wife, children, mother, sister, or friend,” a member has the right to designate as the beneficiary one who does not stand in blood relationship to him.</p> <p>Id.—Life Insurance—Mutual Benefit Associations—Difference in —Bight to Change Beneficiary. — While, under what may be termed ordinary life insurance policies, no right to change the beneficiary exists, the legal relation of a member of a mutual benefit association is different, and with respect to the benefits to accrue in the latter organization, the beneficiaries are possessed of but an expectancy, as against vested interests which accrue under the ordinary life policies.</p>

<p>Criminal Law—Amendment op Information After Plea-—Conformance to Commitment—Statement of Lesser Offense—Lack op Prejudice.—In a criminal action it is not prejudicial to the substantial rights of the defendant to allow the district attorney, after the defendant has entered his plea of not guilty to the information, to amend the information to make it conform to the commitment by the magistrate, where the crime charged under the amendment is included within the crime charged in the original information.</p> <p>Id.—Amendment of Information After Plea—Motion to Set Aside Unauthorized.—A new or amended information cannot be set aside on the ground that an information cannot be amended at any time after the defendant has pleaded thereto, as such ground is not among those enumerated in section 996 of the Penal Code, which expressly prescribes and limits the grounds of such a motion.</p> <p>Id. — Verdict upon Conflicting Evidence — Bule. — If the evidence which bears against a defendant, considered by itself, and without regard to conflicting evidence, is sufficient to support the verdict, the question ceases to be one of law—of which alone the appellate court has jurisdiction—and becomes one of fact upon which the decision of the jury and the trial court is final and conclusive.</p> <p>Id.—Instructions—Self-defense.—It is not error to refuse to give to the jury a number of instructions proposed by the defendant containing a statement of the law of self-defense, where the court gave in substance and effect all that was contained in such proposed instructions.</p>

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

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

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

<p>Beal Estate Brokers—Division of Commissions—Unequal Proportions—Statute of Frauds.—An oral agreement between real estate brokers to divide commissions on sales of real estate in unequal proportions is not within the statute of frauds.</p> <p>Id—Action to Beoover Commissions—Pleading—Compliance with Agreement—Sufficiency of Complaint.—In an action brought to recover commissions due under such an oral agreement, the omission to allege in the complaint that the plaintiff “obtained agreements from purchasers to pay the balance in monthly installments,” etc., which was part of the sale plan, does not destroy the sufficiency of the complaint, as against a general demurrer, where it is alleged that sales were made under such plan, and that monthly payments were made by the purchasers.</p> <p>Id.—Omission to Sign Complaint—Waiver.—The omission to sign a complaint is not jurisdictional, and the defect is waived where no objection is made thereto in the trial court.</p> <p>Id.—Performance of Contract Within Tear—Statute of Frauds.— An oral agreement between real estate brokers to make sales and divide commissions is not void under subdivision 1 of section 1624 of the Civil Code, where the employed broker could sell for cash or on the installment plan for a sufficient amount so that his commissions could be paid within the year.</p> <p>Id.—Agreements not Performable Within Tear—Construction of Statute.—The statute does not declare void a contract which may not be performed within a year, or which is not likely to be performed within that period, but it includes only agreements which, fairly and reasonably interpreted, do not admit of a valid exeeútion within the year.</p> <p>Id.—Performance of Contract Within Tear—Payment of Consideration After Tear—Insufficient Defense to Eeoovery.— When a contract has been so far performed that nothing remains to be done but the payment of the consideration for the performance, the fact that the contract does not require the payment within a year furnishes no defense to an action for the price.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion for a change of place of trial. George E. Crothers, 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. Charles Wellborn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Imperial County denying a new trial. The facts are stated in the opinion of the court.

<p>Appeal—Motion to Dismiss—Sufficiency of Notice of Appeal—Rule of Construction.—A liberal rule of' construction must be applied to notices of appeal in order to effectuate the rights of the parties to an appeal.</p> <p>Id.—Sufficiency of Notice—Failure to Name All Defendants.— In an action against five defendants composing a board of trustees of a high school district, an appeal from the judgment will not be dismissed upon the alleged insufficiency of the notice of appeal which in the title merely describes the defendants as “Charles L. Sanderson et al., Defendants” (without naming each defendant), but in the body of the notice states “that the defendants above named desire to appeal and do hereby appeal . from the whole of that certain order . . . and from the whole of the judgment of the aforesaid Superior Court, etc.”</p>

<p>Criminal Law—Appeals prom Justice’s Court—Construction op Section 1466, Penal Code.—The provisions of section 1466 of the Penal Code, that the parties may appeal from justices’ judgments “in like cases and for like cause as appeals may be taken to the supreme court,” does not make applicable all of the provisions respecting the preparation of the record to be used on appeal as the same are outlined in title IX of said code.</p> <p>Id.—Giving Notice of Appeal and Filing Bond—Loss of Jurisdiction by Justice.—The filing of a notice of appeal from a judgment of the justice’s court and furnishing the required bail in the amount fixed by the justice, after conviction on a misdemeanor charge, ousts the justice of jurisdiction to proceed further, and removes the cause to the superior court, notwithstanding the appellant does not prepare his statement on appeal within the time prescribed by law; and the justice has no power, until the superior court dismisses the appeal, to issue an order attempting to release the bail and commit the defendant to the custody of the sheriff.</p>

<p>APPLICATION for a Writ of Prohibition originally made in the District Court of -Appeal of the Third Appellate District directed against the Superior Court of Humboldt County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Promissory Note—Indorsement—Passing op Title.—The signature of the payee of a promissory note on the baek below the words “demand, notice and protest waived” constitutes a sufficient indorsement to pass the title to the holder.</p> <p>Id.—Evidence—Assignment—Time op.—In an action on a promissory note, it is not error to allow the plaintiff to testify, over objection, when and where the note was assigned to him, the objection not being that the question assumed an assignment made, where the witness testified that the note was assigned to him for a valuable consideration and had never been paid.</p>

<p>Street Law—Proceedings under Act op 1903—Objections to Assessment—Neglect op Clerk to Present in Time—Jurisdiction op Council.—Upon proceedings had under the Street Opening Act of 1903, where the clerk of the city council, through inadvertence or other cause, fails and neglects, as provided by section 19 of such act, to present or lay before the council the assessment and objections filed thereto at the next regular meeting of the council after the expiration of the time for filing such objections, the council has no jurisdiction by the notice so given to act in the premises, but it does not thereby lose jurisdiction of the entire proceeding, and upon a republication of the notice, in accordance with the provisions of section 18 of the act, it has jurisdiction thereafter, upon presentation of the assessment and objections within the required time, to make an order confirming the assessment.</p>

<p>Contract — Sale of Land — Option to Return — Breach — Right to Recover Purchase Money and Interest.—Where on a sale of a certain interest in real property the vendor executed a written agreement to take the land back, if requested by the purchaser, at any time after one year and within two years, and pay the purchaser ten per cent on the investment, in an action by the purchaser for a breach of the contract, a finding in her favor is sustained, where the evidence shows that at or about the expiration of one year from the making of the agreement, and upon several occasions shortly thereafter, plaintiff notified the defendant orally and in writing that she accepted the option to reconvey, and upon each occasion offered to execute a deed conveying to him the lands upon the payment to her of the amount of the original purchase price, and interest for one year at ten per cent, which defendant refused and finally repudiated the obligation; and the fact that subsequent to defendant’s repudiation of the agreement, and at or about the time of the expiration of two years, plaintiff again tendered a deed, coupled with a demand for an amount more than that due, will not overthrow the finding.</p> <p>Id.—Definition of Investment.—The word “investment” as commonly employed has been judicially defined to mean the putting out of money on interest in some form more or less permanent so as to yield an income; and such an agreement providing for the payment to plaintiff under certain contingencies of “ten per cent upon the investment,” must be construed as an undertaking to pay annual interest at the rate named, and not merely an arbitrary augmentation of the sum received for the land.</p> <p>Id.—Findings—Value of Land.—A finding that the value of the land did not at any time after the conveyance thereof exceed the sum of five hundred dollars was not vitally defective in failing to state that the value so found was the market value. The word “value,” when applied to property and no qualification is expressed, means the price which the property would command in the open market, and therefore the word as used in the finding must be held to mean market value.</p> <p>Id.—Measure of Damages.—The measure of the plaintiff’s damages is the difference between the sum found due under the agreement and the market value of the land.</p> <p>Id.—Value of Land—Opinion of Witness—Waiver of Objection.— Error, if any, in sustaining an objection to the opinion of a witness concerning the value of the land in such a case is cured where the witness was afterward permitted without objection to give his opinion of the value.</p> <p>Id.—Value oe Other Property—When Inadmissible.—The sale price of property other than that in question is not admissible in such a case where it is not shown to be similar in character and situation.</p>

APPLICATION originally made in the District Court of Appeal for the Second Appellate District for Writ of Mandamus to compel respondents to restore a civil action to the calendar of the court and to proceed and determine the same. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order dismissing defendant’s motion for a new trial. Stanley H. Smith, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPLICATION originally made to the District Court of Appeal of the Third Appellate District for a Writ of Habeas Corpus.</p>

<p>Action to Set Aside Decree op Distribution — Fraud — Prior Proceeding por Letters—Bes Ad judicata.—A decree denying an application for letters of administration upon an estate which had been finally settled and the property distributed, based upon the ground that" the court by false testimony was deceived as to the character of the distributed property, is res aijudieata as to a subsequent action brought by the applicant for letters to set aside and vacate the decree of distribution upon the same ground.</p> <p>Id.—Character op Property-—Sufficiency op Evidence.—In this action to vacate a decree of distribution on the ground that fraud was committed upon the court as to the character of the distributed property, it is held that the evidence warranted the conclusion that the property claimed by the plaintiffs' to be the separate property of the deceased was in fact the community property of the deceased and her husband.</p>

<p>Contract—Broker’s Commission—Manner or Payment—Construction.—Where a written contract, employing a real estate broker to effect an exchange of properties, provided for payment of a certain sum to the broker, and from the record it appears that after the negotiations for the exchange of properties were completed the defendant informed the broker that he would have to wait until a crop of potatoes belonging to him was' harvested, which was agreed upon, and the parties then entered into a written addition to the agreement providing that when the crop was sold “the proceeds to the amount of $1,650 is to, be turned over to me in liquidation of above indebtedness,” the quoted language of the contract was merely a limitation upon the amount of money to be paid to the broker from the proceeds of the crop, and where the crop sold for less than the amount of the broker’s commission, the latter was entitled to recover the difference from the defendant.</p>

<p>Appeal—Briefs—Construction of Sections 953a, 953b, 953c, Code of Civil Procedure.—On an appeal from a judgment, where the record is presented as provided by sections 953a, 953b, and 953c of the Code of Civil Procedure, under the latter section, in filing briefs on appeal, the parties must print in the briefs, or in a supplement appended thereto, such portions of the record as they may desire to call to the attention of the court.</p> <p>Promissory Note — Consideration — Innocent Purchaser—Instruction.—In an action on a promissory note, negotiable in form, and payable to the order of the defendant, who indorsed and delivered it in purchase of certain corporation stock, in which sale the seller gave an option to the purchaser of returning the stock within a certain time, which option it does not appear was ever exercised or the stock returned or offered for return, and there is nothing in the record to show that the note was executed without consideration or procured by fraud, it is not error for the court to refuse to instruct the jury that the burden of proof rested upon plaintiff to show that he purchased the note without knowledge that it was obtained by fraud or without consideration.</p>

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

<p>Contract — Sale op Corporation Stock — Fraud — Authority op Agent.—Where one securing a purchaser for stock of a corporation represents the corporation in so doing, it must be assumed that he possesses all the usual and ordinary authority of such a sales agent, and actionable misrepresentations made by such agent in the sale are chargeable to the corporation, and a recovery against the corporation therefor may be had.</p> <p>Id.—Right to Recover Purchase Price op Stock.—Where the agent of a corporation in the sale of its stock falsely represented that the corporation was doing a profitable business and earning a profit of not less than ten per cent on invested capital, and that during the whole period of its existence a dividend of ten per cent had been paid, which representations were relied upon by the purchaser, whereas, in truth the corporation at that time was not earning profits, but was insolvent, the purchaser may maintain an action for the recovery of the purchase money.</p> <p>Id. — Rights op Creditors. — Creditors of the corporation whom the records do not show became creditors subsequent to the sale are not injured by a judgment in favor of the purchaser for the recovery of the purchase money, and cannot complain.</p>

<p>Promissory Note —■ Want op Consideration — Invalid Demands — Defense.—A promissory note, given in assumption of an alleged indebtedness which in fact did not exist, has no consideration to support it, and a new promissory note executed in lieu of the first at the date of its maturity also lacks consideration, and this fact may be pleaded in defense to an action thereon.</p> <p>Id.—Contract—Consideration.—A promise to perform a legal obligation is not a sufficient consideration for a contract based thereon; neither is the release of a purported claim against one upon whom there rests no legal or moral obligation to pay the same a sufficient consideration for a third party’s promise to pay such nonenforceable claim, unless it be upon the compromise of a doubtful or disputed claim.</p> <p>Id.—Renewal op Note—Want op Consideration.—A note given in renewal for one void for want of consideration is, like the first, invalid and unenforceable.</p> <p>Id.—Void Note—Extension op Time op Payment—Lack op Consideration.-—Giving an extension of time within which to pay a void note constitutes no consideration for a renewed promise to pay same.</p>

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

<p>Criminal Law—Murder—Prejudicial Remarks op Court—Intimation op Falsity op Defense.—In a prosecution for murder it is prejudicial error for the court, in the presence and hearing of the jury, when ruling upon an objection to evidence offered in support of the defendant’s plea of self-defense, to remark that the claim that the deceased took the dagger, by means of which the killing was accomplished, from the person of the defendant was “an absurdity,” and that the alleged threat of the deceased to kill the defendant was “a mere idle statement made by the deceased.”</p> <p>Id.—Instruction—Disclaimer op Opinion—Error not Cured,—Such error is not cured by an instruction given to the jury upon the conclusion of the argument upon the admissibility of such evidence that there- was no intent upon the part of the court to show its belief in either the truth or falsity of the testimony, nor to intimate any personal view as to its value.</p> <p>Id.—Instruction to Disregard Misconduct—Removal op Prejudice— General Rule Inapplicable.—While, ordinarily, an adm-onition of the trial court to the jury to disregard misconduct of either the judge or district attorney will, in the absence of an affirmative showing of injury, suffice to remove any prejudice resulting therefrom in the minds of the jury, which rule is founded upon the presumption that the jury will heed the admonition of the trial judge, such presumption does not prevail in the presence of an impropriety upon the part of the trial judge, which in its very nature was calculated to weaken, if not utterly destroy, a legitimate and substantial defense apparently interposed in good faith.</p> <p>Id.—Alleged Threat op Deceased — Proop Beyond Reasonable Doubt—Erroneous Instruction.—An instruction given at the request of the prosecution which in effect charged the jury not to consider the alleged threat of the deceased to kill the defendant, unless that fact had been clearly established in evidence beyond all reasonable doubt, is clearly erroneous, as such fact need be proved only by a preponderance of the evidence.</p> <p>Id.—Misconduct op District Attorney—Statement op Contents op Excluded Letter.—It is misconduct for the district attorney to state to the court, in the presence and hearing of the jury, the contents of a letter addressed to the deceased and purporting to have been written by her husband, upon a second attempt to get the letter in evidence, where the letter had been read by the court upon its first offer.</p>

<p>Appeal by One Party—Undertaking on Appeal on Behalf of Several Parties—Lack of Liability.—Where an appeal is taken by one person and the undertaking thereon purports on its face to be given on an appeal taken by several persons, such undertaking is insufficient to support the appeal, and no recovery can be had against the sureties.</p>

B. V. Sargent, Judge presiding at trial. Bernard J. Flood, Judge denying a new trial. The facts are stated in the opinion of the court.

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

<p>New Trial—Appeal—Discretion of Trial Court.—An order granting a new trial will not be disturbed upon appeal save upon a showing of an abuse of the discretion vested in the trial court.</p> <p>Id.—Affirmance of Order—Motion upon Several Grounds.—An order granting a new trial must be affirmed without regard to the ground upon which it is specifically based if it could be rightfully granted upon any of the grounds upon which the motion was made, subject, however, to the exception that in passing upon the correctness of the order the appellate court may not consider the insufficiency of the evidence when the lower court by direct language expressly excludes such ground as a basis for its order.</p> <p>Id.—Excessive Damages—Implication of Insufficiency of Evidence.—An order granting a new trial in an action for damages for personal injuries upon the sole ground that the damages awarded to the plaintiff are excessive does not fall within the exception to the rule, but implies that the motion was granted upon a consideration of the insufficiency of the evidence to support the verdict.</p> <p>Id.—Insufficiency of Evidence—Question for Trial Court.—Upon a motion for a new trial in an action for damages for personal injuries, the probative force and effect of the evidence as to the nature and the extent of the injuries, and the damages resulting therefrom, is for the determination of the trial court, notwithstanding there is no conflict in the evidence.</p> <p>Id.—Action for Personal Injuries—Assauizt and Battery—Excessive Damages—Order Granting New Trial—Discretion not Abused.—In this action for damages for personal injuries sustained as the result of an assault and battery, it is held that no abuse of discretion was committed in granting the motion for a new trial on the sole ground that the verdict in the sum of $750 was excessive.</p>

<p>Contract—Agreement to Form Partnership—Deposit op Money by One Party in Bank—Failure to Form Partnership—Bight to Becover Deposit.—Where two parties agree to form a partnership for conducting a certain business under a firm name, and it being agreed that each should deposit with a certain bank to the credit of the firm a certain sum, and in pursuance of the agreement one of the parties deposited his amount, but the other party failed to make any deposit, and the partnership was never consummated, and after three years nothing was done toward that end, the depositor of the money is entitled to recover from the bank the money so deposited by him, and while the other party technically should be made a party to the suit, section 4¡Yz of article VI of the constitution should be applied, and the suit should not be defeated because he is not.</p> <p>Id.—Deposit in Bank—Bight op Owner to Show Title.—While it is true that a bank receiving a deposit of money may not, in the absence of proper legal proceedings to impound it, dispute the depositor’s ownership thereof, or refuse to honor his checks drawn thereon, nevertheless the real and true owner thereof may show his right to the funds.</p> <p>Id.—Judgment—Validity op.-—Where, prior to the making of findings, a judgment was entered in favor of the plaintiff, but thereafter findings were made, and a second judgment regularly entered, the second judgment is the only one that can be considered, and the first will be assumed to have been vacated.</p>

<p>Justice’s Court—Jurisdiction—Vacating Judgment by Default— Certiorari.—A justice’s court has no jurisdiction to set aside a judgment by default, basing its order upon evidence other than the docket and the papers on file, and an order thus made will be annulled on certiorari.</p> <p>Id.—Summons—Failure to Serve and Return Within Three Years.— A justice’s court is not deprived of jurisdiction because of the failure to make service of summons and return within three years from the commencement of the action.</p> <p>Id.—Default Judgment—Service of Summons Outside County— Record—Silence as to Residence of Defendant—Judgment not Void on Face.—A justice’s court judgment is not void on its face because of the absence of any affirmative statement therein, or in the return of summons, that the defendant resided in the county in which he was served, or that at the time of the commencement of the action he was a resident of the county in which the action was brought, where it appears from the allegations of the complaint that the written order upon which the action was based was entered into and to be performed in the county in which the action was brought.</p> <p>Id.—Improper Service of Summons—Setting Aside Judgment—Burden of Proof.—Upon a motion to set aside a judgment rendered by default upon a service of summons in violation of the provisions of subdivision 2 of section 848 of the Code of Civil Procedure, the burden of proof is upon the defendant to show that he was not a resident of the county in which he was served.</p>

<p>San Francisco Charter—Misconduct of Fire Commissioners—Removal of Chief Engineer Without Trial—Removal of Board by Mayor.—Under the provisions of section 2 of chapter 2 of article IX of the charter of the city and county of San Francisco, which declares that no officer, member, or employee of the fire department should be removed from office except for cause and after trial, the board of fire commissioners have no right to remove the chief engineer of the department without assigning a cause therefor and without trial, and where they do so after being so advised by the city attorney, and after being notified to desist by the mayor, their action affords sufficient ground for their removal from office.</p> <p>Id.—Void Provision of Charter—Effect of Constitutional Amendment.—While, at the time of the adoption of the charter of the city and county of San Francisco in the-year 1900, the provision of section 2 of chapter 2 of article IX thereof was void by reason of its conflict with section 16 of article XX of the constitution, such void provision was effectively validated by the amendment of Hovember 3, 1914, to section 8% of article XI of the constitution, giving municipal corporations governed by charters the authority to provide for the tenure of office and removal of municipal employees, and no change in such charter provision or reenactment was necessary in order to give it effect.</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. Charles Wellborn, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>O’Melveny, Stevens &. Millikin, Walter K. Tuller, and Alex Macdonald, for Appellants.</p>

<p>APPLICATION for a writ of mandate.</p> <p>The facts are similar to those stated in the opinion in Bakersfield & Kern Electric By. Go. v. Hay, ante, p. 289-,</p>