Volume 33 — California Appellate Reports

<p>Corporation—Issuance of Stock-—Services Performed—Consideration.—Corporate stock issued in consideration of valuable services rendered and labor performed for the corporation is not issued •without consideration.</p> <p>Id.—Meeting of Stockholders Contrary to By-laws — Assent of Stockholders—Legality of Acts.—In an action to recover damages for conversion, based upon the refusal of a corporation to transfer to the plaintiff certain shares of its capital stock, which the plaintiff had acquired from a third party to whom the stock had been theretofore issued for services rendered and labor performed for the corporation, the defendant cannot contend that the issuance of the stock was unauthorized, on the ground that the stockholders’ meeting at which the hoard of directors was elected who voted the issuance of the stock was held outside of the state under whose laws the corporation was created and in violation of the by-laws, where all the stockholders gave their consent to such meeting and participated in such election.</p>

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

<p>APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. W. A. Beasly, 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>Williams, Goudge & Chandler, I. Henry Harris, and Daniel M. Hunsaker, for Appellants.</p>

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

<p>Negligence — Personal Injuries — Conflict of Evidence — Appeal— Verdict Conclusive.—In an action to recover damages for personal injuries, where the evidence as to the negligence of the defendant and the contributory negligence of the plaintiff is in conflict, the appellate court is bound by the determination of the jury.</p> <p>pD.—Instruction—Failure to Give—Appeal.—An appellant may not on appeal for the first time take advantage of the trial court’s failure to give some specific instruction, if he presented no such instruction to that court.</p> <p>Id.—Doctrine of Last Clear Chance—Eight to Invoke.—The doctrine of “last clear chance” can be invoked only in favor of the person who is injured.</p>

<p>Parent and Child — Support op Illegitimate Child — Action by Mother—Support Pending Appeal.—In an action brought by a mother of an illegitimate child to compel its alleged father to pay a monthly sum reasonably necessary for the support, maintenance, and education of the child, the trial court has no inherent power, as in actions for divorce where the marriage is admitted, to compel the father to pay to the mother the costs necessary to resist an appeal taken by the father, or to compel the father to support the child pending the appeal, as no such obligation arises until the paternity of the alleged illegitimate child is established.</p> <p>Id.—Construction op Code Provisions.—Section 196a of the Civil Code, requiring the father of an illegitimate minor child to give it support and education suitable to his circumstances, and authorizing a civil suit in behalf of the child by the mother to enforce such obligations, and giving the court power to enforce performance of such obligations the same as under sections 138-, 139, and 140 of the Civil Code, in a suit for divorce by a wife, does not, by making the latter named sections a part of section 196a, impose the obligations provided by such sections upon the defendant in an action to compel the support of an illegitimate child, but the sole purpose of such incorporation was to provide a full and complete remedy for the enforcement of the obligations when established.</p>

<p>'Cancellation op Mortgage—Purchase Price of Agency Contract— Failure op Consideration—Right op Purchaser.—In an action to cancel a conveyance given as a mortgage to secure the payment of the purchase price of a contract giving the right of sale of sub-agencies for the sale of washing-machines, the defendant is not entitled to foreclose the mortgage and leave plaintiff to an action for damages, but the plaintiff, as a defense to the foreclosure, is entitled to show a failure of consideration for which the mortgage was given.</p> <p>Id.—Total Failure op Consideration—Notice op Rescission.—Where there is a total failure of consideration, it is not necessary to give notice of rescission before bringing suit to cancel the contract.</p>

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

<p>Municipal Ordinance—Deliveries for Laundries Situated Outside of City Limits—License—Discriminatory Begulation.—A city ordinance requiring the payment of $12 per annum from every person, firm, or corporation conducting, managing, or carrying on a laundry, and the payment of $120 per annum by every person, firm, or corporation owning, operating, or maintaining a wagon or other vehicle for the delivery of laundry work to and from any laundry situated outside of the city limits, is discriminatory and void as an attempt to create and enforce a discrimination not based upon differences in the nature of the business being transacted, or differences in the manner of conducting the same business, or any other difference other than the mere fact of difference in destination of the goods collected and delivered by wagons collecting for laundries located outside of the city and the destination of goods collected for delivery to laundries within the city.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. J. M. Seawell, Judge.</p> <p>The facts are similar to those stated in the opinion of the court in the case of Aihins v. Kingsbury, 170 Cal. 674.</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>Depositions—Subpoena — Attendance Before Commissioner—Jurisdiction.—Under the provisions of subdivision 3 of section 1986 of the Code of Civil Procedure, a subpoena issued by the clerk of the superior court upon the order of the court or a judge thereof, requiring the attendance of a witness before a commissioner or other officer for the purpose of giving Ms deposition, has the same territorial force and effect as a subpoena issued by the clerk requiring the attendance before the court, and such subpoena may require the attendance of a witness even though he resides outside the county but within the fifty-mile limit.</p> <p>Id.—Disobedience of Subpoena — Contempt — Hearing and Notice Essential.—In view of the provisions of section 1991 of the Code of Civil Procedure, the superior court cannot punish a witness for contempt for failure to obey a subpoena commanding him to appear before an officer for the purpose of giving his deposition until a report has been made to the court of such disobedience and a hearing had, and an order made directing the witness to obey the subpoena.</p>

<p>Assignment—Final Payment Under Building Contract—Bights of Assignee.—An assignment of the final payment due under the terms of a building contract demands, independently of any statute, an inquiry on the part of the assignee as to the conditions of future payments, and the rights of the assignee are no greater thereunder than those of the contractor itself.</p> <p>Id. — Construction of Code — Assignment of Thing in Action — Defenses.—Where the final payment provided by a building eon-tract is not due when an assignment thereof is made, the assignment is of a “thing in action” within the meaning of section 368 of the Code of Civil Procedure, providing that in case of an assignment of a thing in action, the action by the assignee is without prejudice to any setoff or other defense existing at the time of or before notice of the assignment.</p> <p>Id.—Extra Work—Payment by Note—Agreement to Deliver Building Clear of All Charges—Architects’ Pees—Parol Evidence. A written agreement whereby a building contractor in consideration of the execution and delivery of the owner’s note acknowledged satisfaction in full for all extras due' and agreed to deliver the building upon completion “clear of any charge of any character whatever, also including architect,” is not subject to explanation by parol evidence, and the admission of such evidence for the purpose of showing that the intention was to relieve the owners of any lien for the possible charge of the architects for the extra work put upon the building, is erroneous.</p> <p>Id.-—Notice to Withhold — Sufficiency of Notice — Acceptance of Order of Contractor. — An order on the owner given by a contractor to a subcontractor and by the latter presented to the owner for acceptance is sufficient notice to the owner to entitle the owner to withhold the amount from the contractor, as provided by section 1184 of the Code of Civil Procedure.</p> <p>Id.—Delay in Completion—Extra Work—Insufficient Excuse.—» Where a building contract provides that no additional time shall be allowed for completion unless demand therefor be made in writing, delay in performance because of an agreement for extra work is not a sufficient excuse, in the absence of a demand for additional time as provided by the contract.</p>

<p>Insurance — Indemnity Against Damages erom Accidental Injuries—Action upon Policy—Control oe Litigation by Insurer —Recognition oe Liability.—Where an. insurance company, acting under the terms of -a policy indemnifying the insured against loss and expense arising for damages accidentally suffered by reason of the operation of elevators in an apartment house, takes charge of and assumes exclusive control of an action brought against the insured for damages for injuries from such an accident, it recognizes a liability, if it fails to defend successfully, to pay the assured the amount of the judgment not exceeding the amount stipulated in the policy.</p> <p>Id.—Judgment—Payment by Note.—Under the terms of an indemnity insurance policy which promises to indemnify for loss paid by the assured, the satisfaction of a judgment procured by the giving of a promissory note is to be deemed payment of the judgment debt.</p>

<p>■ Statute of Limitations—Money Borrowed by Directors prom Corporation— Repayment upon Accomplishment op Purposes op Loan.—Where money belonging to a corporation is borrowed by two of its directors for certain purposes upon an agreement to repay the same when the purposes should be accomplished, and the corporation ratifies the transaction, the statute of limitations does not commence to run against the corporation’s right to recover the money from the time the money was obtained, but from the time that the purposes were accomplished.</p>

<p>Lease—Action eor Breach—Proximate 'Cause op Damage.—In this action to recover damages for the breach of the terms of a contract of lease, it is held that the proximate cause of the damage sustained by the plaintiff was the failure of the defendant to construct head-gates, as provided by the lease, to enable the plaintiff to irrigate the land demised.</p> <p>Id.—Prevention op Damage—Buns Inapplicable.—Where the failure to 'construct such headgates caused a failure of a large portion of the lessees’ crop, they cannot be denied recovery on the ground that they should have constructed the headgates themselves, where the cost of such construction would have been upward of two thousand dollars.</p> <p>Id.—New Trial—Newly Discovered Evidence.—A new trial will not be granted on the ground of newly discovered evidence which was almost wholly cumulative, and particularly where it appeared that by the exercise of reasonable diligence the unsuccessful party could have procured such evidence at the trial.</p>

<p>Appeal—Findings—Conflict of Evidence.—The appellate court will not disturb a finding of fact by the trial court, or the implied finding of a jury that is supported by evidence, if the evidence is conflicting.</p> <p>Id.—Negligence—Injury to Motorman of Interurban Train—Running into Open Switch—Lack of Contributory Negligence.—In this action by a motorman of an interurban electric train to recover damages for personal injuries sustained from the running of his train into an open switch causing collision with a local car, it is held that the evidence is sufficient to support the implied findings of the jury that the plaintiff was not negligent in driving his train into the switch in disregard of switch lamp signals, or in approaching the switch point with the train not under control and prepared to stop, as required by the defendant’s rules.</p> <p>Id. — Comparative Negligence — Effect of Statute. — Where at the time of the occurrence of such accident there was a statute in force providing that an employee’s contributory negligence should not be a bar to recovery for personal injuries where his negligence was slight, and that of the employer was gross, in comparison, but the damages might be diminished in proportion to such contributory negligence (Stats. 1911, p. 796), the plaintiff, even if found to be negligent, is not precluded from recovery if the jury believed his negligence was slight in comparison with that of his employer; and where such an instruction is given, it will be presumed that the jury properly assessed damages, making due allowance in accordance with the facts found and as required by the statute.</p>

<p>Action fob Maintenance — Joinder of Grantees of Community Property — Unauthorized Judgment. — In an action for maintenance wherein the wife joined as parties defendant with her husband his father, mother, and brother, upon the theory that they had, by means of a fraudulent conspiracy with the husband, acquired certain real estate alleged to be community property of the spouses and thus deprived her of her interest therein, a judgment that the plaintiff do have and recover from such defendants a stated sum of money, found to be one-half of the proceeds of the property so acquired, is unwarranted, in the absence of any finding of' fraud, and where the evidence shows without substantial contradiction that they paid full value for the property.</p> <p>Id.—Attorney’s Fees—Unauthorized Judgment.—In such an action a judgment awarding the plaintiff attorney’s fees against such defendants, as well as the husband, is likewise unwarranted.</p> <p>Id.—Award of Community Property—Lack of Jurisdiction.—In an action for maintenance without divorce, the court is without jurisdiction to award any community property to the wife, as the husband is entitled, until the marriage is dissolved, to the control of the community property with absolute power of disposition other than testamentary, except that he cannot make a gift thereof without her written consent.</p> <p>Id.—Purpose of Action.—The purpose of the suit for separate maintenance is to specifically enforce the general duty of the husband by directing certain definite payments to be made at regular intervals for the wife's support, and, subject to such provisions, their relations to each other and to the community estate is precisely the same as though no such action had been brought or an award made.</p>

APPLICATION originally made to the District Court of Appeal for the First Appellate District for a Writ of Review to annul an award made by the Industrial Accident Commission. The facts are stated in the opinion of the court.

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

<p>Landlord and Tenant—Cropping Lease—Payment fob Leveling and ■Checking Land—Interpretation of Oral Contract—Conduct of Parties.—Where parties standing in the relation of landlord and tenant with respect to a tract of land which the latter was to work on shares under a cropping lease place their own construction upon the terms of an oral understanding between them as to the extent to which the work of the tenant in leveling and checking the land should proceed before he was entitled to be paid for such work, it is not error for the trial court to interpret the contract in keeping with the conduct of the parties in making their settlements from time to time.</p> <p>Id.—Recovery for Leveling and Checking Land—Evidence—Testimony of Surveyor — Rebuttal. — Where an action in unlawful detainer to oust the tenant from the land is consolidated for trial with a subsequent action brought by the landlord for proceeds from the sale of crops, in which action the tenant by cross-complaint sought judgment for money expended in plowing and checking the land upon an oral agreement, it is not prejudicial error to refuse to permit the plaintiff to testify in rebuttal as to his having ordered a surveyor to make a survey of the land for the purpose of showing the amount of work done by the defendant, or in refusing to permit the surveyor to testify as to what work his survey showed to have been done, where the record shows that the surveyor, when called as a witness by plaintiff, testified, without objection, to the extent of identifying the maps which he had made, and such maps were then admitted in evidence.</p>

<p>CONSTITUTIONAL LAW—HOLDING OF CIVIL OFFICE BY MEMBER OF LEGISLATURE — Applicability of Amendment. — The amendment of section 19 of article IV of the constitution, which went into effect December 21, 1916, providing that no senator or member of the assembly shall, during the term for which he shall have been elected, hold or accept any office, trust, or employment under the state, is not confined in its application to senators and assemblymen to be elected after such date, but is applicable to members, of the legislature whose terms began before that date and had not expired at the time the amendment went into effect.</p> <p>Id.—“Term” Defined.—The word “term” used in the section refers to the period for which the member was elected and not merely to his incumbency.</p> <p>Id.—“Shall” Defined.—The word “shall” in such section is used as a word of command, in accordance with the constitution, that its provisions “are mandatory and prohibitory, unless by express words they are declared to be otherwise,” and neither legally nor grammatically does it denote mere futurity.</p> <p>Id. — Statutory Construction — Unambiguous Words. — Where the words of a statute are not ambiguous and their effect is not absurd, the court will not give it other than its plain meaning, although it may appear probable that a different object was in the mind of the legislature.</p>

<p>Insurance — Procuring op Policy by Unlicensed Agent — Violation op Statute — Liability op Insurer. — A life insurance company cannot, by violating the provisions of section 633 of the Political Code, which declares that no person shall in this state act as the agent or solicitor of any insurance company doing business herein until he has produced to the commissioner, and filed with him, a duplicate power of attorney from the company, or its authorized agent, authorizing him to act as such agent or commissioner, absolve itself from liability on a contract that it has authorized or ratified, although the contract may have been secured by a person not an agent or solicitor in the full meaning of the statute. Such statutory provisions as to agents do not change the rule of law as to principal and agent between the company and the policy-holder, and the company attempting to evade such statute is nevertheless bound to its policy-holders as though the statute had been complied with.</p> <p>Id.—False Answers in Application—Fraud op Agent—Recovery on Policy.—Where false answers are written in an application for life insurance, it is the duty of the insured after delivery of the policy to notify the insurer of the fraud, and where the same is not done, the fraudulent act of the agent is thereby approved, and no recovery can be had on the policy.</p> <p>Id. — Repudiation op Fraud — Duty op Insured. — A delay of four months in repudiating the fraud of the agent is fatal to recovery, as it is the duty of the insured to act promptly.</p>

<p>APPLICATION for a Writ of Prohibition originally made to the District Court of Appeal for the Second Appellate District to restrain the hearing of a Justice’s Court appeal.</p> <p>• The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—City of Oakland—Abolition of Clerk-ships and Offices—Power of Council—Construction of Charter.—The general power vested in the council of the city of Oakland by section 31 of its charter (Stats. 1911, pt. II, p. 1551) to create and abolish clerkships and offices is not abridged in so far as those persons are concerned who were in the employment of the municipality on September 1, 1910, by the provision of section 80, declaring that persons employed by the city on that date may retain their employment, subject to classification and reclassification by the civil service board, without further examination, unless removed for cause, or unless it shall be determined by the civil service board that their employment by the city is unnecessary.</p>

<p>Vendor anv PurcHASER—Agreement Relating to Real Property— Option to Purchase.—A written agreement relating to real property, reciting that the owner had received from the other party thereto a certain sum of money as part payment for the property, followed by a statement of the price and manner of payment, constitutes an option and not an agreement of sale, and such party is not, upon default, entitled to the return of the money paid, where it is further recited in the writing that it is distinctly understood that the instrument is an option exclusively, and that the owner in the event the first payment is made will “execute a good and sufficient agreement of sale,” but if not paid, the money shall be retained as “liquidated damages.”</p>

<p>County of Los Angeles—Registrar of Voters—Unauthorized Transfer of Deputy County Clerk—Failure of Civil Service Commission to Prescribe Rules.—Under the charter of the county of Los Angeles, which went into effect on June 2, 1913, the civil service commission of the city of Los Angeles is without jurisdiction to transfer a deputy county clerk to the office of registrar of voters, where the commission had not, as required by section 34, article IX, of such charter, prescribed rules under which it might make transfers from one position to a similar position in the same class or grade, and there existed no other provision in the charter empowering the board to make the transfer.</p> <p>Id. — Office of Registrar of Voters — Manner of Appointment. — Under the provisions of section 14 of article IV of the charter of the county of Los Angeles, the registrar of voters of such county is an appointive officer, and the office not being in the unclassified civil service named in article IX, section 33, appointment to the office must, as required by subdivision 1, section 11, of article III, be made by the board of supervisors from the eligible civil service list, consisting of three persons certified by the commission as standing highest in accordance with the general rule prescribed by the commission for the creation of such list.</p> <p>Id.—Character of Office—Charter.—The office of registrar of voters of the county of Los Angeles is, under the charter of that county, an independent office, as distinct and separate from that of county clerk as is that of auditor or recorder, and since it is specified as one of the offices to be filled by appointment to be made by the board of supervisors from the eligible civil service list, it cannot, under the pretense that it was of a like grade and class with that of deputy county clerk, be filled by the act of the civil service commission under the guise of transferring a deputy county clerk in charge of the registration department to such independent and distinct office.</p>

<p>Counties—Glassification—Use of State Monets.—Counties are not municipal corporations or, strictly speaking, corporations of any kind, but are local subdivisions of the state, created by the sovereign power without the consent of the people who inhabit them, although they possess some corporate characteristics and may be within the inhibition of sections 22 and 31 of article TV of the constitution, against the drawing or appropriation of money from the state treasury for the benefit of a corporation or any institution not under the exclusive control and management of the state and against the making of any gift of such money to any individual or municipal or other corporation.</p> <p>Id.—Tuberculosis Law—Act Constitutional.—The act (Stats. 1915, p. 1530) providing for the establishment and maintenance of a bureau of tuberculosis under the direction of the state board of health and granting state aid to counties for the support and care of persons afflicted with tuberculosis, is not violative of article IV, section 22, of the constitution, providing that no money shall be drawn or appropriated from the state treasury for the benefit of any corporation or institution not under the exclusive control and management of the state, or of article XI, section 13, providing that the legislature shall not delegate to a special commission the power to interfere with or supervise the affairs of counties, or of article IV, section 31, providing that the legislature shall not lend or authorize the lending of the credit of.the state or of any county in aid of or to any person for the payment of any liabilities of any individual, etc.</p>

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

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

<p>Negligence—Injury to P'ainteb—Pall of Scaffold—Sufficiency of Evidence.-—In an action for damages for personal injuries sustained by a painter from the fall of the scaffold upon which he was working, evidence that it was possible for the employers of the plaintiff -to have secured the scaffold against slipping of the shingles to which it was attached by. fastening a rope to the hooks and tying it to a chimney on the top of the building, is sufficient to sustain the finding that the defendants were negligent in not providing plaintiff a safe place to work.</p>

<p>Corporations—Transfer of Assets for Stock—-Avoidance of Financial Buin — Legality of Transaction.—A corporation, to save itself from financial ruin, may, in view of section 343 of the Civil Code, permitting corporations to acquire their own stock under the assessment scheme provided hy law, make a transfer of its assets in consideration of a delivery to it of its own stock, without violating the provisions of section 309 of such code, declaring that directors of corporations shall not divide, withdraw, or pay to the stockholders any part of the capital stock.</p>

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

<p>Criminal Law—Rape—Conviction op Assault to Commit Crime— Evidence—Appeal—Habeas Corpus.—A judgment of conviction of an assault to commit rape, which is not void on its face, cannot be nullified in a proceeding on habeas corpus, even though error was committed in admitting evidence of force under the information which charged statutory rape, as the remedy for the correction of such error is by appeal.</p>

<p>Criminal Law—Lewd Conduct With Minor—Attempt to Commit Act —Conviction Supported by Evidence.—In this prosecution for the felony defined by section 288 of the Penal Code, which punishes lewd and lascivious conduct with minor children, it is held that the evidence is sufficient to support the conviction of an attempt to commit the act charged.</p>

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

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

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

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

APPEALS from orders of the Superior Court of Santa Clara County denying motions for orders to pay for the support and education of a minor child. W. A. Beasly, Judge. The facts are stated in the opinion of the court.

<p>Alienation op Affections — Insufficiency of Evidence. — In this action for damages for alienation of affections it is held that the evidence was insufficient to justify the findings and decision of the trial court.</p>

<p>Place of Trial — Contract — Bemoval to Corporation’s Principal Place of Business.—A defendant corporation is entitled to have removed to the county of its principal place of business for trial, an action on a contract made in that county and to be performed there.</p>

<p>Criminal Law — New Trial — Newly Discovered Evidence.—In a criminal prosecution where alleged newly discovered evidence would have done no more than contradict the statements of some of the witnesses who testified at the trial, the trial court committed no error in refusing to grant a new trial because of the discovery of such evidence.</p>

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

<p>Deed—Contract of Sale Restricting Sale of Intoxicating Liquors— Right to Enforce Forfeiture — Return of Purchase Monet— Insufficient Repudiation by Vendor.—Where a contract of sale of real property contained a provision that when the deed was made it should include a condition that the premises should never be used as a place of business for the sale of intoxicating liquors, and that the title conveyed should revert to the vendor upon breach of that condition, the vendor, upon a threatened breach of such condition, is not deprived of his rights to enforce a forfeiture of the vendee’s rights under the contract, by the return to the vendee of the balance of the purchase price, which had been paid before due, as the vendor was not obliged to receive payment, and was justified in declining to proceed until it could be assured that the purchaser would not carry into effect his threatened violation of his covenants.</p> <p>Id.—Injunction—Further Breach—Lack of Prejudice.—Where the rights of the vendee under such a contract are forfeited, an injunction restraining a further breach is not prejudicial to the vendee, as he has no further right to occupy the premises.</p> <p>Id.—Breach of Condition—Right of Vendor.—Upon such a breach, the vendor may refuse to execute the deed and may quiet Ms title against the purchaser’s claims under the contract.</p> <p>Id.—Insufficient Showing of Monopoly.—The rule that where the owner of the land designed as a site for a town inserts in all deeds made by Mm a condition against the sale of intoxicating liquors on the land conveyed, solely for the purpose of reserving to himself a monopoly of such business, the condition is void as against public policy and its breach will not work a forfeiture to the estate granted, has no application to such case, where the evidence did not show that there was a design to create a monopoly.</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. Lewis R. Works, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Drainage Act—Disposition op Bonds—Construction op Act—Repugnancy of Provisions.—The act of the legislature entitled “An act to promote the drainage of wet, swamp, and overflowed lands, and to promote the public health in the communities in which they lie,” approved March 21, 1903 (Stats. 1903, p. 354), as amended in 1915 (Stats. 1915, p. 359), is not invalid because of the repugnancy existing between sections 8d and 8e, as to the disposition to be made of the bonds to be issued by the county to represent the cost of the work, when the language of the whole act is considered, as upon such a consideration it is apparent that it was the intent of the legislature that payment for the work should be in bonds equal to the amount of the contractor’s bid, plus such sum as he, under all the requirements of the act, should advance in payment of all incidental expenses connected with the work, delivered by the treasurer to the contractor or his assignees as provided by section 8d, and not that they should be sold by the board of supervisors as provided by section 8e.</p> <p>Id.—Construction op Drainage Canal Through Streets op Municipality — Consent op Corporation—Validity op Ordinance.—A municipal corporation operating under a freeholders’ charter, which vests in the city plenary control of all uses of its streets, has the power to enact an ordinance giving the board of supervisors of a drainage district permission to construct a drainage canal through certain specified streets; and without regard to the character of the charter, the consent of the legislative body of the city is a prerequisite condition to extending the drainage canal through the streets of the municipality.</p> <p>Id.-—Construction op Ditch Through City Streets—Consent upon Terms—Valid Ordinance.—An ordinance granting consent of a municipal corporation to the construction of a drainage ditch through its streets is not rendered a nullity by reason of the fact that such consent was upon certain terms named in the ordinance, which were protective of public interest, germane to the subject, and violative of no provision of the Drainage District Act.</p> <p>Id.—Doing of Work—Public Benefit—Silence of Statute—Validity not Affected by.—The Drainage Act of 1903 is not void by reason of its failure to provide in direct terms that the doing of the work shall depend upon its being a public benefit, in view of section 4 of the act which makes the determination of the board to proceed with the hearing therein referred to presumptive evidence of the existence of all facts upon which the power of the board to proceed depends.</p> <p>Id.—Los Angeles County Flood Control Act—Drainage Act not Superseded by.—The Drainage Act of 1903 has not been superseded in Los Angeles County by the act of 1915 entitled “An act to create a flood control district, to be called ‘Los Angeles county flood control district,’ ” (Stats. 1915, p. 1502), as the purpose of the Drainage Act is to dispose of the water and get rid of it as an injurious element, while the purpose of the County Flood Control Act is to conserve the water as a beneficial agent.</p>

<p>Sale—Written Contract—Merger of Oral Negotiations.—A person buying or agreeing to buy personal property, the terms of which purchase or agreement to purchase are put in writing, is bound as to the terms of the contract by such writing, into which all preliminary understandings and assurances are presumed to be merged, and such person cannot go behind such writing to avoid the agreement of purchase for the alleged breach of some oral understanding or guaranty not contained within its written terms.</p> <p>Id.—Contract Procured by Fraud—Rule Inapplicable.—The application of the principle that all preliminary oral negotiations are presumably merged in a written contract for the sale of personal property does not operate to prevent a person from avoiding a contract for fraudulent representations which operate as the inducement for entering into it, and upon which the party injured or misled was entitled to rely.</p> <p>Id.—Contract for Purchase of Automobile — Rescission—Fraud— Effect of Written Recitals.—The purchaser of" an automobile under a written contract which provides that the vendor is not to be bound by any agreements not specified therein, cannot rescind the contract and recover the payments made, on the ground that the sales agent of the vendor misrepresented the character of the machine.</p> <p>Id.—Written Agreement—Recitals—Effect of.—A person signing a written agreement which contains upon its face the statement that only the written representations, agreements, and guaranties contained within its terms shall be binding upon the other party to it, cannot rely upon any oral statements made by the agent or representative of such party prior to or at the time of the execution of the written agreement.</p> <p>Id.—Agency—Knowledge of Authority—Effect of.—Where a party freely contracts with an agent knowing the limit of the agent's authority, he may not be heard thereafter to assert that he was misled into believing that the agent had greater authority.</p>

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

<p>APPLICATION for a Writ of Prohibition originally made to the District Court of Appeal for the Second Appellate District to restrain the Superior Court from hearing a motion for a new trial of a Justice’s Court appeal.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>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—Void Tax Deed—Condition of Relief—Reimbursement of Purchaser at Tax Sale.—Where the owner of property comes into equity asking equitable relief to remove or cancel a tax deed or sale as a cloud upon his title, or to obtain a judgment which will in effect invalidate such sale or deed, the court should refuse any relief except upon the condition that he first repay to the tax purchaser, or his grantee or assignee, the taxes, penalties, interest, and costs justly chargeable upon the land and which the purchaser has paid at the sale, or afterward upon the faith of it, with,legal interest from the time of such payment, less rents received, if any, if the purchaser has been in possession, regardless of the fact that the assessments and levies of taxes were void on account of numerous defects and irregularities.</p> <p>Id.—Bight of Beimbubsement—Equity.—The right of the purchaser of a tax title upon his deed being declared invalid to recover the amount paid out by him for taxes, penalties, costs, interest, and charges, rests upon equitable principles, and is not dependent upon section 3898, subdivision 5, of the Political Code, as amended in 1913.</p>

<p>APPEALS from an order of the Superior Court of the City and County of San Francisco setting aside default from an order refusing an amendment to proof of service of summons, and from an order denying motion to set aside judgment. E. P. Mogan, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>John T. Williams, and John D. Harloe, for Appellant and Respondent George W. McGinn.</p>

<p>Sale op Business-Agreement to Refrain from Carrying on Similar Business—Enforcement—Rights of Successive Assignees. Under a liberal construction of section 1674 of the Civil Code, which provides that one who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part thereof, so long as the buyer, or any person deriving title to the goodwill from him, carries on a like business therein, the assignee of an assignee of a purchaser of the goodwill of a business is as much entitled to protection under such an agreement as his predecessors in interest, and may maintain an action to enjoin the vendor from violating the agreement. Id.—Goodwill op Business — Sale and Transfer.—Goodwill is an important and valuable incident to a business which the law recognizes and protects, and it may be sold with the business and assigned through successive transfers without limit.</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. Bernard J. Flood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action Against Corporation and Stockholder—Legal Services—Separate Judgments—Lack op Prejudice.—In an action for legal services brought against a corporation and a stockholder who owned all of the stock but two shares, the defendants are not prejudiced by the entry of a judgment in a fixed sum against each, since a payment of the judgment by the corporation would discharge the liability of the stockholder, and the payment by the stockholder of the amount adjudged payable by him would discharge the corporation pro tanto.</p>

<p>Contract—Sale of Standing Timber—Time for Removal.—Under a contract for the sale of growing timber which provided that the cutting and removal should be completed within five years from the commencement thereof, and in no event later than July 1, 1915, at which time the premises were to be surrendered to .the owner, the purchaser, where operations were begun and suspended, had not the right to resume operations .after the expiration of five years from the time of such suspension, although such attempted resumption was prior to July 1, 1915.</p> <p>Id.—Time for Removal of Timber—Provision in Contract—Condition of Sale.—A provision in a contract for the cutting of standing timber that the cutting should be completed within five years, and in no event to be carried on beyond a given date, is a condition of the sale, and not a covenant to remove the timber, and the purchaser can only take so much of the timber as he may cut and remove within the specified time.</p>

<p>Appeal—Typewritten Transcript—When Unauthorized.—There is no authority, either in the rules of court or in the statutory provisions, for a transcript presented by a certified typewritten copy where the appeal is from the judgment upon the judgment-roll alone. Sections 953a, 953b, and 953c of the <!ode of Civil Procedure, as they were in August, 1914, when the transcript herein was filed, did not apply on such an appeal.</p>

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

<p>Agreement Concerning Land Patent—Nature of Instrument—Contract of Sale — Specific Performance — Bar by Laches.—An agreement between conflicting claimants for a patent to certain mineral lands that an action pending to determine the right to the lands should be dismissed and that the defendant should proceed to obtain the patent, and that when obtained a conveyance should be made to the plaintiff of a portion of the lands, does not create an express trust against which the statute of limitations does not run until the refusal to convey, but is in effect a contract for the conveyance of land, the right to specifically enforce which is barred by laches, where no demand for a deed or action is commenced to enforce the contract until eight years after the obtaining of the patent.</p>

<p>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Third Appellate District to compel a hoard of school trustees to issue its warrant for the balance due on a contract for the construction of a school building.</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>Landlord and Tenant—Assignment of Lease—Consent of Landlord —Liability of Assignors for Bents.—Written consent given to an assignment of a lease does not have the effect of releasing the lessees from their obligation to pay the rent reserved in the lease, where the assignment imposed no obligation on the assignees to pay the rent, and the consent was conditioned upon the assignees complying with the terms of the lease without any release of the assignors. Id.—Becovery of Bents — Evidence — Oral Agreement to Belease Lessee.—In an action against the lessees to recover the rents, evidence is inadmissible that the plaintiff orally agreed to release the defendants.</p>

<p>Criminal Law—Murder—Evidence—Dying Declarations.—In a prosecution for the crime of murder, declarations made by the deceased immediately after being shot that he was done, that he was going to die, and that he thought he was dead, indicate a sense of impending death sufficient to render them, together with certain other statements made at the same time, admissible as dying declarations.</p> <p>Id.-—Previous Threats—Striking Out of Testimony—Foundation not Laid.—In a prosecution for the crime of murder there is no error in granting a motion to strike out testimony of previous threats made by the deceased, where at the time the motion was granted, no testimony had been introduced of any overt act or attack upon the defendant by the deceased.</p> <p>Id.—Homicide—When Justifiable.—A homicide is not justifiable unless it is shown that the slayer was at the time of the killing in apparent imminent danger of losing his life, or of sustaining serious bodily injury, and previous threats, unaccompanied by some hostile act, do not afford such justification.</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>Master and Servant—Compensation por Services—Unauthorized Eetention op Collected Monets.—In an action by a corporation t'o recover sums of money collected by an employee from debtors of the corporation, he cannot set up as a defense that he had the right to retain such moneys under a claim of increased compensation for his services, where such claim was based upon a notice demanding such an increase to which the corporation never gave its assent, notwithstanding the defendant continued to serve the corporation after the giving of such notice, and the corporation made no objection thereto.</p>

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

<p>APPLICATION on appeal from a judgment of the Superior Court of Sacramento County for a further transcription and certification of the testimony taken at the trial. Malcolm C. Glenn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. A. 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>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Second Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Costs—Annulment of Judgment for Contempt on Certiorari—Allowance Against Judge or County Unauthorized.—Where a judgment for contempt of court is set aside on a certiorari proceeding, the petitioner is not entitled to have the costs incurred by him in the proceeding taxed against the judge nor allowed against the county, as such a proceeding is not the ordinary action to which sections 1027 and 1032 of the Code of Civil Procedure are applicable.</p>

<p>Building Contract—Compliance With Specifications—Defects in Construction—Recovery by Contractor.—Where in the performance of a contract for the doing of certain concrete work in connection with the construction of a building the contractor performed the work in strict compliance with the requisites of the specifications and obtained monthly certificates approving the work, he is entitled to recover the final payment notwithstanding the subsequent cracking of some of the flooring due to an improper mixture of gravel and cement and the refusal of the architect to issue his final certificate because of such defects.</p> <p>Id.—Results of Work—When Risk upon Owner.—Where, in the erection of a building, the owner agrees to pay a certain sum for doing a certain part of the work and specifically provides the kind of materials to be used and the manner in which they are to be used, and stands by and directs and afterward approves the work, the risk of its serving the purpose intended by the owner is clearly upon him.</p>

<p>Vendor and Purchaser—Contract for Purchase—Favorable Report of Attorneys—Construction.—A clause in a contract for the purchase of real property calling for a favorable report' from the attorneys for the purchaser is not to be construed to mean that the obligation of the purchaser was dependent upon a mere arbitrary, capricious, and whimsical rejection of the title.</p> <p>Id.—Broker’s Commissions—Sale of Real Estate.—A broker employed t'o sell real estate is entitled to his commissions where the purchaser procured by him enters into a valid and enforceable contract to purchase, and the fact that the contract contains a clause making the purchase conditional upon the approval of the title by the purchaser’s attorneys does not have the effect of making the contract merely an agreement for an option to purchase rather than a completed contract of purchase and sale.</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>Criminal Law—Quashing of Indictment—Amendment of Code—Ap. plicabilitt to Motion.—The amendment of 1911 to section 995 of the Penal Code which took away the defendant’s right on motion to set aside an indictment to urge any objection to grand jurors which would be good on challenge to the trial jury, either as to the panel or an individual juror, related to procedure, and its applicability to a motion made to quash an indictment filed after the amendment became effective accusing a defendant with the commission of a crime prior to the amendment does not deprive the defendant of any of his substantial rights.</p> <p>Id.—Ex Post Pacto Law—Time.—The time important to be taken into consideration in determining whether a law is ex post facto or not is the time and the state of the law at which the alleged offense was committed.</p> <p>Id.—Motion to Quash Indictment—Sufficiency of Evidence—Mode of Examination of Witnesses by Grand Jury.—A defendant on a motion to quash an indictment can only urge such grounds as are permitted him by section 995 of the Penal Code, and furthermore no inquiry can be made as to the sufficiency of the evidence or the mode of examining witnesses before the grand jury.</p> <p>Id.—Proceedings Before Grand Jury—Presence of Alleged Illegally Appointed Deputy District Attorney—Motion to Quash Properly Denied.-—An indictment is not subject to a motion to quash on the ground that persons other than those authorized bylaw were permitted to be present during the proceedings taken before the grand jury, where the alleged unauthorized person was one who had been appointed a deputy district attorney after the number of deputies who are allowed compensation by the statute had -been appointed.</p> <p>Id.—District Attorney—Appointment of Deputies.—Under section 4230 of the Political Code, a district attorney may appoint as many deputies as he chooses, but if he appoints any in excess of those for which compensation is provided to be paid from the public treasury, he must pay such deputies at his own expense, if they are to receive compensation.</p> <p>Id.—Challenges to Jurors—Actual Bias—Opinions Pounded on Rumors and Newspaper Statements.—In a prosecution for the crime of murder by dynamiting a building, it is not error to disallow challenges to jurors for actual bias, where it appeared from the answers given by them that the foundation for their opinions was public rumor, statements in public journals, and common notoriety, each declaring his ability to lay his opinion aside and consider the case against the defendant fairly and impartially.</p> <p>Id.—Reversal for Disallowance of Challenges — Nature of Evidence.—On challenges to jurors for actual bias based on public rumor, statements in public journals, and common notoriety, in order to justify a reversal, the evidence given by the venireman upon his examination must be practically without conflict, and be so opposed to the decision of the trial court that the question becomes one of law.</p> <p>Id.—Conspiracy—Evidence.—In proving a conspiracy it is not necessary that proof be made that the parties met and actually agreed to undertake the performance of the unlawful act, but a conspiracy may be shown by proof of facts and circumstances sufficient to satisfy the jury of the existence of the conspiracy, leaving t'he weight and sufficiency of the evidence to the triers of the questions of fact.</p> <p>Id.—Murder — Dynamiting of Building—Conspiracy — Evidence— Acts and Declarations of Conspirators.—In a prosecution for murder by dynamiting a building, where it is shown by overwhelming proof that a conspiracy had been organized ■ on t'he part of a labor union and the work thereof prosecuted to the end that at every place in the United States where the open-shop was in force it was planned to use the weapon of nitroglycerin or dynamite to intimidate those opposed to the demands of the union, it was proper to show all of the acts, declarations, and correspondence had between the persons concerned, which referred to the means and methods employed and to be employed in furtherance of the common design, notwithstanding the defendant did not take an active part in the conspiracy until some time after a series of unlawful acts had been committed in other parts of the country.</p> <p>Id.—Evidence — Suitcase Containing Incriminating Articles.—In such a prosecution a suitcase containing an alarm clock, a coil of black fuse, some blasting caps, a brass plate, some brass bars with screws, and copies of newspapers containing accounts of the destruction of the building, which was found in the checking-room at a ferry station in another city several months after such destruction, was competent evidence, where the suitcase was identified as being one seen in the possession of one of the conspirators, and the clock and brass pieces were shown to be of a similar kind to those used by such conspirators.</p>

<p>Criminal Law—Bape—Evidence of Prior Acts.—In a prosecution for the crime of rape, evidence of the commission of prior acts is admissible upon the theory that' the same tends to show the lewd and lascivious tendencies and disposition of the prosecutrix and defendant.</p> <p>Id.—Evidence of Prior Pregnancy and Abortion.—In a prosecution of a father for rape upon his seventeen year old daughter, evidence that when the prosecutrix was about fourteen years of age she became pregnant as the result of an act of sexual intercourse with her father, and when she informed him that' “she did not get her monthlies,” he stated that he knew what was the matter with her and took her to a doctor, who performed an abortion, is -admissible for the purpose of showing that the defendant’s conduct when informed of the interruption of the daughter’s menstrual periods was tantamount to an admission that he knew she was pregnant, and that he was the cause thereof.</p> <p>Id.—Penetration on Sexual Organs—Instruction.—In such a prosecution, while it was improper t'o refuse to instruct the jury that the defendant should not be convicted unless it could be said after consideration of all the evidence that the defendant had penetrated the sexual organs of the prosecutrix, the defendant was not prejudiced by such refusal, where the jury were instructed in accordance with section 261 of the Penal Code defining the crime of rape to be an act of sexual intercourse accomplished with a female not the wife of the defendant, when the female is under the age of eighteen, since the phrase “sexual intercourse” implies actual penetration.</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>Specific Performance—Contract for Purchase of Real Estate— Ostensible Agency.—Where in entering into a contract for the purchase and sale of real estate the purchaser had no actual notice that the person with whom he was contracting was not the actual . owner of the property, and did not at any time during his dealings with such person believe, or have cause to believe, that the latter was acting or purporting to act as the agent for the real owner, he cannot specifically enforce the contract against the owner on the theory of ostensible agency, since it is the rule that he who seeks to charge a supposed principal with the obligations resulting from the act's and conduct of an alleged ostensible agent must show that he himself was cognizant of the facts which gave color to the alleged ostensible agency, and caused him to believe that the person he dealt with was acting in the capacity of an agent rather than as a principal.</p> <p>Id.—Assumption of Obligations Incurred by Agent—Insufficient Ratification.—The fact that the owner, while repudiating the acts and conduct of the alleged agent, offered in one or two instances to assume some of the smaller and comparatively inconsequential obligations incurred by the alleged agent under similar contracts, did not constitute a ratification of the contract.</p>

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

APPLICATION, for a Writ of Mandate originally made to the District Court of Appeal for the Second Appellate District to compel the performance of the duties of city assessor. The facts are stated in the opinion of the court.

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

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

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

<p>Action on Promissory Note—Defense of Payment—Amendment of Answer at Trial—Discretion.—Where in an action on a promissory note the answer failed to. deny that t'he note was unpaid, it will he presumed that the court properly exercised its discretion in refusing the defendant leave at the close of the plaintiff’s case to amend the answer by alleging payment, in the absence of any showing of facts excusing the failure to allege the same in the first instance, or of any affidavit or other matter of record from which could be inferred a reasonable probability that the defense could have been sustained.</p> <p>Id.—Assignment of Corporation Note—Authority of Sales Agent. In an action on an assigned not'e, testimony of the agent who made the assignment on behalf of the corporation payee that he was the sales agent of the corporation, and as such had control of and possession of all books of account and evidences of indebtedness and all other matters in connection with the corporation’s business in the southern end of the state, is sufficient to support the inference that the agent was authorized to make the assignment, although another person was president and general manager of the corporation. Id.—'Corporation Law—General Manager of All Business—Appointment of Department Manager—Authority of.—The fact that a corporation has a general manager whose supervision extends to all of its business, does not exclude its right' to vest in another agent the powers of a general manager representing the corporation in the conduct of some department of its business. The superintendent or manager of such department stands in the same relation to the matters pertaining to his department as does the general superintendent or general manager to the general affairs of the company.</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>Constructive Trust—Breach of Promise to Convey Real Property. Where a wife being severely ill and not expecting t'o live makes a deed of gift of real property to her husband upon his express oral promise that he would in turn execute a deed of gift of the property to a niece of the former husband of the grantor and place the same in escrow to be delivered upon his death, his failure to perform his promise impresses the property with a constructive trust in favor of the niece.</p> <p>Id.—Action to Enforce Promise—Statute of Limitations.—An action to enforce such a promise is one to recover real property and is therefore subject to the five year limitation provided by section 318 of the Code of Civil Procedure.</p>

<p>Criminal Law—Motion in Arrest of Judgment—Demurrer.—A motion in arrest of judgment challenges the sufficiency of the indictment or information to state a public offense, and the office of such a motion is neither more nor less than that of a demurrer.</p> <p>Id.—Drawing of Check—Intent to Defraud—Sufficiency of Information.—An information charging the offense defined by section 476a of the Penal Code, sufficiently states a public offense, where it is alleged, among other things, that the defendant wrote a check payable t'o himself, and delivered it to a third person with intent to defraud him, notwithstanding the check was not indorsed by the defendant.</p> <p>Id.—Gist of Offense—Fraudulent Intent.—The gist of such an offense is in the fraudulent intent with which the cheek is drawn and delivered, and knowledge by the drawer and deliverer, at the time of such drawing and delivery, that he was then without assets of any kind or character in the bank upon which it was drawn to satisfy or meet it.</p>

<p>Trusts—Following of Funds—Eight of Equitable Owner.—The equitable owner of trust funds may follow them into the hands of all persons who acquire them with notice of the trust.</p> <p>Id.—Mingling of Trust Funds With Individual Moneys—Presumption.—Where a trustee has mingled trust funds with his individual moneys, drawing upon the aggregate from time to time, it will he conclusively presumed both against him and his creditors and persons claiming under him, that the residue thereof is attributable to the trust so far as may he necessary to keep the money intact.</p> <p>Id.—Banking Law—Application of Deposit to Debt Due Bank— When Unauthorized.—Where a bank has notice of the equitable rights of a third person in money derived from a check deposited to the account of one of its depositors, it is not at liberty to apply it in satisfaction of an individual indebtedness of the depositor to the bank.</p> <p>Id.—Deposit of Check—Form of Indorsement—Form of Account— Constructive Notice of Trust Funds.—Where a depositor carried an account with a bank under the designation “H. P. Platt, Trustee,” which he used generally, depositing therein his own funds and any others he might' receive as agent or trustee for other persons, and such practice was known to the bank, the deposit of a check bearing the indorsement “Pay to H. P. Platt, agent, or order,” was sufficient to put the bank upon inquiry as to the right's of third parties in the money represented by the cheek; and the form of the account also placed upon the bank the duty of inquiring as to the right's of third persons in the funds composing the account before it could appropriate them in payment of a debt due the bank from the depositor.</p> <p>Id.—Nature op Transaction—Constructive Notice to Bank not Avoided by.—Assuming that the deposit of a check made payable to a depositor as agent and transferred and credited t.o his account' constituted a sale of the check to the bank, such view of the transaction would not avoid the effect of constructive notice to the bank given by the form of the cheek, for its proceeds when placed to the credit of the account equitably belonged to the depositor’s principals, of which the bank had the same notice as of their rights in the check itself.</p>

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

<p>Evidence—Child Witness—Determination as to Competency-—Discretion—Appeal.-—In determining t'he competency of a child under the age of ten years to be a witness, the trial court has a discretion which seldom will be interfered with on appeal.</p> <p>Id.—Rape—Evidence—Complaint to Third Person.—In a prosecution for the crime of rape committed by a father with his seventeen-year old daughter, a witness may testify that the prosecutrix complained of the act to him, but not the detail of it, regardless of the fact that she was under the age of consent.</p> <p>Id.—Nature op Charge—Facility to Invent—Instruction.—In a prosecution for rape, the defendant is not prejudiced by the refusal to give an instruction warning the jury as to the danger of prosecutions for rape being used to satisfy malice or private vengeance, and declaring that in such cases the accused is almost' defenseless, in view of the facility with which such charges may be invented and maintained, where the jury was fully and carefully instructed on reasonable doubt.</p>

<p>Contract for Drilling of Oil Wells—Breach by Land Owner—Damages—Loss of Profits—Pleading.—In an action by a contractor against a land owner to recover damages for breach of a contract for the drilling of oil wells, the profits on the contract are not too speculative and reanote to be a basis for damages, and are recoverable without being specially pleaded.</p> <p>Id.—Assignment of Contract—Liability of Assignee.—While the mere assignment of rights under an executory contract do^s pot make the assignee liable to the other contracting party, yet, where after the assignment' is made, the executory provisions of the contract are fully performed, the benefit inuring solely to the assignee, and where by his actions he holds himself out as personally liable and recognizes the original contract as binding upon Mm, he is liable to the other party equally with the assignor.</p> <p>Id.—Novation—Parol Evidence.—A novation in a written contract may be proven by parol without violating the rule as to the inadmissibility of oral evidence to vary the terms of a written instrument.</p>

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

<p>Municipal Corporations—Street Improvement in City op Petaluma —Necessity op Ordinance.—In the doing of street work in the city of Petaluma under the provisions of the act of the legislature approved March 6, 1889, it is not necessary that the city, prior to the entering upon the work, should adopt an ordinance electing to proceed under the state law and adopting its procedure as the one to be followed in making the improvement, as section 21 of article III of the charter of the city requiring that such work should be done by ordinance not in conflict with state laws, must be read in connection with section 68 of such article, which provides that in the absence of any procedure for carrying out or effectuating any granted or implied power or authority, the general law of the state shall prevail, and be followed.</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>The facts are stated in the opinion of the court.</p>

<p>Contract for 'Construction of Launch—Default in Completion— Direction to Proceed With Work—Compensation for Damages— Lack of Waiver.—The right to rescind a contract for the construction of a launch calling for its completion within a stated time is waived by the act of the party ordering the -launch in urging the contractor to rush the completion after knowledge that it would not be completed within the contract time, but the right to insist upon compensation for the damage caused by the delay is not waived.</p> <p>Id.—Acceptance of Subject Matter of Contract—Nonwaiver of Damages for Incomplete Performance.—The party not in default under a contract is often constrained by his necessities to take what he can get under his contract when he can get it. Such conduct does not and should not operate as a waiver of the right of action for damages.</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>The facts are stated in the opinion of the court.</p>

<p>Landlord and Tenant—Violation of Clause of Sublease—Acceptance of Bent—Bight of Action not Waived.—Under the terms of a sublease of a portion of a storeroom, the acceptance by the sub-lessor of earned rent after knowledge of the violation by the sub-lessee of a clause in the sublease prohibiting the placing of goods in the aisle space reserved for the common use of tenants, is not a waiver of his right to prosecute an action in unlawful detainer, where it is shown that the plaintiff made continuous objection to the violation of the clause, and the defendant continued in its violation, and also continued in the possession of the premises during the pendency of the action.</p> <p>Id.—Waiver of Forfeiture—Continuing Covenant—Forfeiture—Estoppel.—In the application of the rule that where a particular act or omission entitles a landlord to declare a forfeiture, the receipt of rent accruing subsequent to the act waives the forfeiture if the lessor had knowledge of the facts, there is a distinct difference between a covenant or condition which is of a continuing nature and one not of that nature. Where the general course of dealing between parties had led one of them to believe that a strict compliance with the terms of a condition binding on him will not be required, the other party may be estopped from claiming the forfeiture.</p> <p>Id.—Clause of Lease—Covenant or Condition—Immateriality.—In an action in unlawful detainer to recover the possession of a portion of a storeroom for violation of a clause in the sublease thereof prohibiting the placing of goods in the aisle space reserved for the common use of tenants, it is immaterial whether such clause constituted a covenant or condition, as the provisions of section 1161 of the Code of Civil Procedure apply equally to conditions or covenants</p> <p>Id.—Damages — Evidence — Rental Value of Premises — Qualified Witness.—A witness is sufficiently qualified to testify as to the rental value of premises as a basis for the award of damages, who is shown to have been familiar with rental values in the neighborhood for the past three or four years.</p>

<p>Corporation — Contract to Purchase Beau Property — Authority op Agent.—Where a corporation makes delivery of a sum of money to a person who had on one occasion acted as its agent in' the sale of land, with instructions to use the money to bind the bargain on the purchase of certain real property which it desired to acquire, the vendor has the right to assume that such person possessed all necessary authority to complete the transaction, and the corporation cannot thereafter recover the money deposited on the ground of lack of authority of its agent to close the ' deal upon the terms embodied in the contract which he executed.</p>

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

<p>Divorce — Award or Custody or Minor — Judgment — Validity in Other States.—The doctrine of comity between the states of the Union requires that a judgment granting a divorce and awarding the custody of a minor child rendered by a court of one state shall be conclusive in the jurisdiction of the other states, in the absence of a showing of changed conditions affecting the welfare of the child.</p> <p>Id.—Violation or Decree or Foreign State—Duty or Courts or This State.—Upon an application for a writ of habeas corpus to recover the custody of a minor child brought into this state by its mother, in direct violation of the terms of a decree of a court of competent jurisdiction of another state awarding its custody to the petitioner, a due respect for the orderly administration of the law, and according to the doctrine of comity, requires the courts of this state to recognize the right of the petitioner under the decree of the foreign court, in the absence of any showing that since the entry of the decree the petitioner had become an unfit or unsafe person to have the care and control of the minor.</p>

<p>Husband and Wipe—Separation Contract—Recovery op Monthly Payments—Waiver—Evidence—Appeal.—In an action to recover upon an agreement made between a husband and wife, providing for their living apart, the dismissal of a pending action for separate maintenance and the payment to the wife of a stated monthly sum so long as they should remain married, the finding of the trial court upon sufficient evidence that the wife had not waived her right to such payments is conclusive on appeal.</p> <p>Id.—Estoppel—Pleading.—In such an action, where it is claimed that the wife was estopped to claim such payments, it is essential that the estoppel be pleaded.</p>

<p>Criminal Law—Change op Place op Trial—Bias and Prejudice—■ Appeal.—An application to change the place of trial of a criminal action on the ground that, owing to the bias and prejudice against the defendant throughout the county, the defendant could not have a fair and impartial trial therein, is addressed to the sound discretion of the trial court, and where error is assigned, a clear ease should be shown by the record, or the appellate court will not interfere.</p> <p>Id.—Impanelment op Jury—Disclosure op Facts Warranting Benewal op Motion—Procedure.—Where facts are disclosed at the impanelment of the jury which would warrant a renewal of the motion for a change of the place of trial, such renewal seems to be a proper proceeding.</p> <p>Id.—Examination op Jurors—Unwarranted Inperence op Bias.—An inference of bias and prejudice against the defendant throughout the county is not warranted from the fact that ten out of thirty-nine talesmen examined in a county having a population of about six thousand were shown to possess such bias and prejudice.</p> <p>Id.—Opinions op Jurors—Contradictory Answers—Duty op Trial Court.—In the impanelment of a jury where talesmen give contradictory answers to questions as to their ability to disregard opinions which they have formed as to the defendant’s guilt based upon newspaper reports and public rumors, it is the duty of the trial court to decide which of the answers most truly show the jurors’ minds, and its decision is binding on the appellate courts.</p> <p>ID.—Evidence—Change in Testimony—Impeachment—Foundation.— In a criminal action a witness who testified differently at the trial from what he testified to upon a former trial cannot be impeached by the introduction of his former testimony, where no foundation was laid for such impeachment while he was on the witness-stand.</p>

<p>Criminal Law—Indictment—Sufficiency of Evidence—Question not Beviewable.—While it is true that section 919 of the Penal Code provides that the grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence, and while it is also true that section 921 declares that such body ought to find an indictment when all the evidence before them, taken together, if unexplained or uneontradicted, would, in their judgment, warrant a conviction, yet, there is no method provided for revising the action of the grand jury in finding an indictment on the ground that there was not sufficient evidence to support it.</p> <p>Id.—‘Burning of Insured Building—Conspiracy—Evidence—Statements and Transactions of Confederates.—Where, in a prosecution for the crime of burning an insured building with intent to defraud the insurance company, the theory of the people at the trial was that the burning was the climax of a conspiracy concocted by the defendant, his wife, other members of his family and a third party, it is proper to admit conversations and transactions of the alleged conspirators relative to the conspiracy after its formation and before the consummation of its object, regardless of whether the defendant was present when they occurred.</p> <p>Id.—Defendant as a Witness—Impeachment of Character.—Where a defendant in a criminal ease testifies in his own behalf, he for the time being removes from himself the character of a defendant, and takes on that of a witness, and his character as a witness for truth, honesty, and integrity may be impeached like that of any other witness.</p> <p>Id.—Consideration of Testimony of Defendant—Evidence—Harmless Error.—An instruction that the jury should fairly and impartially consider the testimony of the defendant, and if it produced conviction, they should act upon it, otherwise they might reject it, is not prejudicially erroneous, where the evidence of the defendant’s guilt is clear and convincing.</p> <p>Id.—Ciroumstantial Evidence — Instruction.—An instruction that circumstantial evidence may consist of incriminatory admissions made by one accused of crime, plans laid for the commission of the crime by the accused, such as putting himself in a position to commit it—in short, any act, declaration, or circumstance admitted in evidence tending to connect the accused with the commission of the crime—is not an instruction on matters of fact.</p>

<p>Vendor and Purchaser—Damages for Breach of Contract—Material Alterations After Execution—Sufficiency of Evidence.— In an action to recover damages for the breach of an alleged contract for the sale of real estate, a finding that the defendant entered into the alleged contract, which was attached as an exhibit to the complaint, is unsupported, where it is shown that it was materially altered after its execution, without the defendant’s knowledge or consent, by the insertion therein of the purchase price of the property in both letters and figures and the addition of a clause relating to the prorating of the taxes and insurance on the property..</p> <p>Id.—Bight to Attack Due Execution of Contract—Amendment of Answer at Trial—Discretion.—In such an action the failure of the defendant to attack the integrity or due execution of the contract in his original answer did not deprive him of the right to make such attack at the trial by amendment to his answer, as the matter of such amendment rested in the sound discretion of the trial court.</p> <p>Id.—Alteration of Instrument—Trial of Issue—Procedure.—The time when proofs shall be presented upon an issue as to the validity or admissibility of a writing claimed to have been altered after its execution "is a mere matter of procedure during the trial within the regulation of the trial 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. George H. Cabaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Forcible Entry—Finding—Insufficiency of Evidence.—In an action for forcible entry to recover the possession of a tract of land, a finding of the making of such an entry as is defined in section 1159 of the Code of Civil Procedure is not sustained, in the absence of any evidence of violence, offer of violence, or show of superior force attendant upon the entry of the defendant upon the land.</p> <p>Id.—Title of Defendant—When Immaterial.—Where, in such an action it is shown that at the time of the defendant's entry the plaintiff was in the actual peaceable possession of the land, the question of the defendant’s title is not material to recovery, for one who enters where actual possession has been acquired by another, may do so only in a peaceable way or under authority of a judgment of court, excepting where he enters under some form of permission given by * the occupant.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a motion for substituted findings, and from an order refusing to vacate the judgment and enter a different judgment. John M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Assault With Deadly Weapon With Intent to Murder—Evidence — Insufficiently Identified Weapon — Lack of Prejudice.—In a prosecution for the crime of assault with a deadly weapon with intent to commit murder, the defendant is not prejudiced by the admission in evidence of the pistol with which the prosecution claimed the assault was committed, even though the same was not sufficiently identified as the one which the defendant used, where it was admitted that he had a pistol at the time of the assault and that he discharged it.</p> <p>Ib.—Deadly Character of Weapon—Sufficiency of Evidence.—In such a prosecution the deadly character of the weapon used is sufficiently proven by evidence of its discharge which was accompanied with a hissing sound.</p> <p>Id.—Evidence—Interest of Witness—Procuring of Written Statement of Bad Reputation of Another Witness—Admissibility.— In such a prosecution it is proper for the district attorney, for the purpose of showing that a witness for the defense had taken an unusual interest in the case in favor of the accused, to question the witness concerning the securing by him of a written statement of residents of the community declaring that the reputation of a witness for the state for truth was bad, but such statement is not admissible in evidence on motion of the defendant.</p> <p>Id.—Presumption of Good Character of Defendant—Instruction.—■ The refusal to instruct the jury to "the effect that a person accused of crime is presumed to have a good character until the contrary is established by competent evidence, and that it is the duty of the jury to give tie defendant the benefit of such presumption, is not prejudicial, where the character of the accused for the traits involved in the charge upon which he was tried was not directly made an issue by the introduction of proof addressed thereto, and the jury was instructed that the defendant was to be presumed to be innocent until Ms guilt was confirmed by the evidence beyond all reasonable doubt.</p>

<p>Corporation Law—Pleading—Denial of Incorporation upon Information and Belief—Issue not Baised.—In an action by a corporation the denial of the incorporation of the plaintiff upon information and belief is evasive and raises no issue, where the public record of incorporation was within reach of the defendant.</p> <p>Id.—Evidence—Corporate Existence.—Corporate existence may be proved by parol, and, when collaterally assailed, it is sufficient to prove a de facto existence.</p> <p>Id.—Sale of Potatoes—Seizure by Sheriff—Ownership by Buyers —Sufficiency of Evidence.—In an action brought against a sheriff and the surety on his official bond for the conversion of a carload of potatoes, the ownership of the potatoes by the plaintiffs at the time of their seizure under a writ of attachment by the sheriff in an action against the plaintiffs’ vendor, is sufficiently shown by proof of the loading of the same upon the ear and the making out of a shipping receipt naming the plaintiffs as consignees, and the receipt of a large payment on account of the price, with assurance of the payment of the balance when the goods were ready to be shipped.</p> <p>Id.—Attachment — Third-party Claim — Sufficiency of Demand — Waiver.—A sheriff is not permitted to question the sufficiency of the demand for the release of attached property made under section 689 of the Code of Civil Procedure, where he acts upon it and demands and receives an indemnifying bond from the claimant.</p> <p>Id.—Wrongful Seizure and Sale of Property by Officer—Conversion.—Conversion is the proper remedy against a sheriff who seizes and sells property of one person under process against another.</p> <p>Id.—Possession of Converted Property.—In an action of conversion against a sheriff, the plaintiff is entitled to recover where he proves ownership and right of possession together with its appropriation by the defendant, regardless of the fact that at the time of the conversion the property may have been in the possession of a third party.</p> <p>Id.—Judgment Against Administrator—Payment in Due Course of Administration—Correction on Appeal.—Error in a judgment against an administrator in not directing that it be paid in due course of administration is correetible on appeal.</p>

<p>Contract for Shipment of Goods—Delay Caused from; Lack of Crating—Destruction by Dire—Liability for Loss.—Where a van and storage company in the delivery of certain household effects to a railroad company for the purpose of shipment, neglected to crate certain portions of the goods, as required by its contract, in time to get the goods in the freight depot before it closed for the day, and thereupon stored them in one of their warehouses for safekeeping overnight, and the. warehouse was destroyed by fire before the next morning and the goods with it, the company is liable for the value of such goods.</p>

<p>Trust—Change of Form of Savings Bank Account.—Where a depositor in a savings hank in carrying ont her repeatedly expressed desire to so arrange her account that her sister with whom she had lived, and who had taken care of her in her invalid condition for many years, might, during their joint lives, draw on the account and receive the residue upon death without probate, handed the pass-book to her niece with instructions to take it to the bank and have the account changed in such a manner as to carry out her desires, and the bank, after being directed in writing by the depositor to add the sister’s name to the account, entered the account in the book as subject to the cheek of either or the survivor of them, and the book was thereupon returned to the depositor, who, after examining it, expressed herself as greatly satisfied with the change, a trust was thereby created in the deposit for the benefit of the sister.</p> <p>Id.—Eight to Deposit Under Banking Act.'—Such a ease also comes within the purview of section 16 of the Bank Act of March 1, 1909 (Stats. 1909, pp. 86-90), as amended in 1911 (Stats. 1911, p. 1003), making, such persons joint owners in the deposit with the right of survivorship.</p>

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

<p>Mechanic’s Lien—Improvement not Exceeding One Thousand Dollars—Law Prior to Code Amendments op 1911.—At all times prior to the amendments of sections 1183 and 1184 of the Code of Civil Procedure, which became effective on June 30, 1911, the law permitted an owner of real property, in causing the construction of any improvement thereon at a cost of not more than one thousand dollars, to provide for such improvement by a contract not filed in the recorder’s office, or even by an oral contract, and to pay the consideration therefor whenever it pleased him to do so; and the provisions of such code with reference to putting in writing building contracts, and filing them for record, and as to the mode and time of payment and the withholding of a percentage of the contract price, were not applicable to such an improvement.</p> <p>In.—Oral Contract Under One Thousand Dollars—Execution Prior to Code Amendments—Performance Subsequent—Amendments Inapplicable.—The amendments of 1913 to sections 1183 and 1184 of the Code of Civil Procedure are not applicable to an oral contract for the construction of a balcony on á dwelling entered into prior to the date that such amendments became effective, where the amount of the contract price was less than one thousand dollars, although the work was not commenced until after such amendments became effective.</p> <p>Id.—Eight of Lien—Statutory Enactment Essential.—The declaration of article XX, section 15, of the constitution that mechanics, materialmen, artisans, and laborers of every class shall have a lien upon the property upon which they have bestowed labor or furnished material, for the value of such labor done and material furnished, and that the legislature should provide, by law, for the speedy and efficient enforcement of such liens, is inoperative except as supplemented by legislative action, and until the enactment of the necessary statute the lien contemplated by the constitution does not exist.</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>Lease—Use of Premises for Immoral Purposes—Interference bt Municipal Authority—Action for Belief—Insufficient Complaint.—In an action for the cancellation of a lease or its modification in the way of a reduction of rent, the complaint fails to state a cause of action for relief either in law or equity, where it appears therefrom that both the lessor and lessee had knowledge of the fact that the premises were to be used for the purposes of prostitution, notwithstanding it was alleged that the premises by reason of the interference of municipal authority were no longer permitted to be used for such purposes.</p>

APPEALS from judgments and order denying a new trial of the Superior Court of San Diego County. C. N. Andrews, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p> <p>Albert Lee Stephens, City Attorney, W. B. Mathews, S. B. Robinson, and Wm. B. Himrod, for Appellant.</p>

<p>Landlord and Tenant—Bemoval op Glass and Marble Front op Building—Bight op Tenant.—In this action by a landlord against a tenant for damages in removing a plate glass and marble stone front from the demised premises, it is held that the evidence justifies the findings that the glass and marble were attached to the building at the defendant’s own expense and were his property; that they were not so affixed as to constitute them integral parts of the premises; that they were removed without damage to the freehold or building; and that the building upon such removal was put in as good condition as it was at the time that the glass and marble were installed.</p> <p>Id.—Pleading — Amendment op Answer — Discretion.—In such an •action where it was evident that from the very inception of the action, and particularly from the time of the filing of the answer, that it was the theory of the defendant that having put in the glass and marble front at his own expense, they constituted his property, and that he had the right to remove them on the termination of his lease, but such theory was not presented by the answer as originally filed, and that by reason thereof the defendant lost on appeal, it is an exercise of sound judicial discretion to grant the defendant on the second trial leave to amend his answer conformably to such theory.</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. Geo. A. Sturtevant, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from an order of the Superior Court of the City and County of San Francisco denying a motion to enter a default, from a purported judgment entered by the clerk and subsequently set aside by the court, and from an order setting aside said purported judgment. Marcel E. Cerf and E. P. Shortall, Judges. The facts are stated in the opinion of the court.

<p>Contract — Liquidated Damages — Declaration in Instrument.—A declaration in a contract that the actual damages to be suffered from a breach would be difficult to ascertain, and that the parties were making provision for liquidated damages in lieu of actual damages, tends strongly to establish the fact required by the statute to exist, and tends to control the question as to whether the provision is one for liquidated damages or for a penalty, where the contract appears upon its face to be one allowed by the terms of section 1671 of the Civil Code.</p> <p>Id.—Contract for Purchase of Lumber—Damages for Delay in Delivery—Declaration in Contract Conclusive.—In a contract for the purchase of a large quantity of lumber to be used in the construction of a municipal wharf, providing that the city might deduct from the contract price the sum of fifty dollars per day for each day that delivery was delayed, a declaration in the contract that the actual damages to be suffered from such a delay would be difficult of ascertainment, and that the parties were making provision therein for liquidated damages, tends strongly to establish the fact of the impracticability or extreme difficulty of fixing the actual damages, and such declaration is controlling, in the absence of evidence negativing the declaration.</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>The facts are stated in the opinion of the court.</p>

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

<p>Fire Insurance—Cancellation op Policy—Misstatement op Grounds. Where a policy of fire insurance gives the insured and the insurer a mutual right of cancellation without limitation to conditions or contingencies, it is not necessary that the insurer in giving notice of cancellation should state the ground upon which the cancellation was based, and a statement in such a notice that the policy was canceled for nonpayment of premium, when in fact the premium had been paid, does not affect the validity of the cancellation.</p>

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

<p>Assault and Battery—Default in Action for Damages—Judgment for Defendants—Presumption upon Appeal.—In an action for damages for assault and battery, where the defendants made default, and the trial court, upon application of plaintiff, gave judgment for the defendants, it will be presumed on appeal from the judgment, in the absence of any record of the evidence or findings, that plaintiff, although assaulted, was not damaged.</p> <p>Id.—Nominal Damages — Failure to Award — Insufficient Ground for Reversal.—A judgment will not be reversed on appeal for failure to award nominal damages.</p>

<p>Promissory Note—Assignment for Collection—Want of Consideration—Defense not Available.—In an action on a promissory note assigned for the purpose of collection, the defendant is not entitled to plead that the note was without consideration as against the assignee, where his assignor became the holder of the note in good faith and for value before its maturity.</p>

<p>Landlord and Tenant—Becovery of Treble Bents—Willful Withholding—Sufficiency of Evidence.—In an action by a landlord to recover possession of demised property, rents due up to the time of the termination of the tenancy and for treble rent for the period subsequent to that date, a willful holding over is established under section 3345 of the Civil Code by evidence of deliberate, intentional, obstinate refusal to surrender possession with knowledge that the tenancy had been terminated, and that the tenant was holding over against the will and consent of the landlord, and not under a reasonable claim of right.</p> <p>Id.—Willful Holding Over—Omitted Allegation—Cure by Answer. While in an action to recover treble rents for holding over after demand and one month’s notice in writing, the complaint should contain an allegation that the holding over was willful, the omission of such an allegation is cured by the allegation in the answer that the defendants from the date of the termination of the tenancy retained possession of the premises in good faith and under claim of right.</p>

<p>Negligence—Carbolic Acid Given por Whisky—Sufpiciency op Evidence.—In an action for damages for death caused by the defendant in giving the deceased a drink from a bottle containing carbolic acid under the belief that it contained whisky, the gross negligence of the defendant is established by his conduct in keeping carbolic acid in a whisky bottle without any distinguishing mark or label showing its dangerous and deadly quality, of intermingling such bottle with such a content with other similar bottles containing whisky or other drinkables, and in tendering such bottle to the deceased accompanied with the statement that he guessed it contained whisky.</p> <p>Id.—Conduct op Deceased—Lack op Contributory Negligence.—The act of the deceased in accepting the defendant’s proffered drink, and of assuming without question or investigation that the bottle from which he drank contained liquor similar to that which he had just seen the defendant drink, and in believing it to be the whisky which he had just been invited to partake of, did not constitute contributory negligence, in view of the fact that the liquid which he drank was not poured out in a glass, or other open receptacle, where its color or smell or other dissimilarity to whisky might reasonably attract his notice and arouse his suspicion.</p> <p>Id,—Verdict not Excessive.—A verdict of two thousand dollars for the death of a human being in such an action is not so excessive as to justify the conclusion that the jury were moved by undue passion or prejudice in its rendition or amount.</p>

<p>Guaranty — Pleading — Primary Obligation of Principals.—In an action on a contract of guaranty given to secure the payment of rent, the complaint shows no right of recovery, where the facts stated do not show a primary obligation against the lessees corresponding to the obligation of guaranty.</p> <p>Id.—Default in Payment of Rent — Recovery of Liquidated Damages—-Insufficient Complaint.—In an action on a guaranty to recover the amount stipulated as liquidated damages for failure of the lessees to pay the rent reserved in a lease, the complaint is insufficient where it is not alleged, or shown by the alleged facts that it would have been impracticable or extremely difficult to fix the actual damages accruing to the plaintiffs.</p> <p>Id.—Surrender of Possession — Pleading and Evidence — Actual Damages.—In an action on a contract of guaranty of payment of rent brought after surrender of possession of the demised premises, it is necessary for the lessor to plead and prove the amount of the actual damages suffered by him and coming within the terms of the bond.</p>

<p>Claim and Delivery — Demand Before Commencement of Action—' Pleading—Sufficiency of Complaint.—In an action of claim and delivery, the complaint sufficiently shows that demand was made for the possession of the property before the commencement of the action, where it is alleged that the plaintiff on a stated day “demanded" possession and that the defendants “refused and now refuse" delivery, notwithstanding that the day stated was the day on which the complaint was filed.</p>

<p>APPEALS from • orders of the Superior Court of Los Angeles County made upon proceedings supplemental to execution. John M. York, 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>J uvenile Act—Commitment Without Jury Trial—Constitutionality oe Act.—Under the Juvenile Act, no infringement of constitutional rights is worked because the accused is not given a right to trial by jury, as the orders of commitment in such eases are not for the purpose of inflicting punishment, but to provide suitable guardianship, either by individuals or under the official supervision of the superintendents of state schools.</p> <p>Id.—Deprivation oe Custody oe Minor — Findings Essential.—In view of the provisions of section 9b of the Juvenile Act, it is essential to sustain a valid order of commitment, where a minor is taken from the custody of a parent or guardian, that a finding be made that the welfare of the minor requires the taking away of such custody.</p>

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

<p>Fraudulent Conveyances — Transfer of Eight to Plant Crop— Change of Possession—Code Section Inapplicable.-—Where the owner of a leasehold interest in a tract of land makes a transfer to his sons of the right to plant a crop of barley on the land, and the sons go into possession and continue in possession of the land until after the crop is harvested, the transfer is not presumptively void as to creditors of the lessee under section 3440 of the Civil Code, which provides that every transfer of personal property is conclusively presumed to be fraudulent, as against the creditors of the transferrer, unless accompanied by an immediate delivery and -followed by an actual and continued change of possession.</p>

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

<p>Bedlight Abatement Law — Forfeitures and Procedure — Act Constitutional.—The “Bedlight Abatement Law” of 1913 (Stats. 1913, pp. 20-22), which in its general object is no different from that of sections 315 and 316 of the Penal Code, and which differs in a general sense from those sections only in that its design was to establish a summary method, through the civil processes of the law, for putting a stop to the maintenance of houses of ill fame and other places where acts of lewdness and prostitution are habitually practiced and carried on as a business, is a valid exercise of the police power, and the provisions contained in such act as to forfeitures and procedure do not violate any of the constitutional guaranties of property owners.</p> <p>Id.—Nature of Action Under Statute — Use of Building for Immoral Purposes — Lack of Knowledge of Property Owner.— The action authorized by the statute is m rem, or against the property used in the maintenance of the nuisance, as well as in personam, or against the person maintaining it, and while, therefore, the owner, having no actual knowledge of the business carried on in his building, might not personally be bound for the costs, the building and furniture may nevertheless be proceeded against and subjected to the forfeitures prescribed by the statute.</p> <p>Id.—Disobedience of Order of Abatement—Contempt—Punishment. The provision of the statute authorizing the punishment as for contempt of any person guilty of disobedience to the order of abatement or the permanent injunction is not void, because, in point of severity, it conflicts with section 1218 of the Code of Civil Procedure, which fixes a penalty for contempts generally.</p>

<p>Workmen’s Compensation Act — Reduction of Liability — Surgical Operation—Inability to Procure.—An insurance carrier is not entitled to have an award of compensation made by the Industrial Accident Commission reduced or discontinued on the ground that the injured person refused or declined to undergo a surgical operation which would relieve the disability, in the absence of any showing that he had the means to alleviate his situation, or that the refusal was the result of his own negligence, and where it is shown that he had on two different occasions submitted to an operation with but little, if any, benefit.</p> <p>Id.—Injuries from Negligence — Mitigation — Care Required.—One who has suffered personal injuries through the negligence or wrongful acts of another is bound to exercise reasonable care and diligence to avoid loss and to minimize the consequences of the injury, and he cannot recover for so much of his damage as results from his failure so to do, but he is not required to take the -best care of his injuries, nor to employ the means best adapted to heal them, it being sufficient if he acts in good faith and with due diligence, and exercises ordinary care and reasonable or ordinary prudence.</p>

<p>Landlord and Tenant — Termination of Lease — Sufficiency of Tender.—A lease giving the lessor the right to terminate it on the first day of December of any year during the term by paying to the lessee such amount as might be due him for certain reclaiming and leveeing work which the lease provided he was to do, and for which he was to be paid a stipulated sum per acre, is terminated by leaving a properly indorsed certificate of deposit for the amount in question with a bank of excellent standing convenient to the lessee’s place of business, with a written request to notify the lessee that the certificate was there subject to his order, notwithstanding the bank misunderstood the instructions and notified the lessee that the certificate had been left with it to be held pending settlement between the parties in regard to some levee work, where the lessee thereafter learned that the certificate was being held subject to his order, and made no objection at that time, or at any other time, to the time or mode of the tender.</p> <p>Id.—Tender of Check—Payment of Money Obligation.—The tender of a check or of a certificate of deposit in payment of a money obligation is good unless objected to.</p>

<p>APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Second Appellate District to compel the issuance and payment of a warrant for fees of a local registrar under the Vital Statistics Act.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Election Law — Cancellation op Registration op Voters — Parties to Action—Prohibition.—In an action brought by electors under section 1109 of the Political Code to compel a county clerk to cancel certain registrations of voters, such voters are necessary parties defendant under section 1111 of such code, and the court is without jurisdiction, in an action wherein the county clerk is the sole party defendant, to render a valid judgment of cancellation, and prohibition will lie to restrain the superior court from proceeding with the action until such voters are made defendants and served with lawful process.</p>

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

<p>Appeal Dismissed, on the authority of Lapigue v. Plummer, ante, p. 317.</p>

<p>Appeal Dismissed, on the authority of Lapigue v. Plummer, ante, p. 317.</p>

<p>Juvenile Act.—The commitment issued under the Juvenile Act is held on its face to warrant the detention of the minor.</p>