Volume 37 — California Appellate Reports

<p>APPEAL from a judgment of the Superior Court of San Joaquin County, and from an order denying a new trial. D. M. Young, 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>Adverse Possession—Conveyance oe Title—Subsequent Deed from Demote Owners—Interest not Acquired.—One who acquires title to real property by adverse possession and payment of taxes and then conveys it to another acquires no interest in the property under a later deed from the owners previous to his adverse possession, nor do his subsequent grantees acquire any interest.</p>

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

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

<p>Sale—Breach op Warranty—Rrocreatve Powers op Stallion—Recovery of Price—Burden op Proof.—In an action to recover upon promissory notes given for the payment of a stallion, which was sold under a written guaranty that he was a sixty per cent foal-getter, and that if not, the sellers would furnish another stallion upon his redelivery, it was incumbent upon the defendant, in order to defeat the action upon the theory that the guaranty contained the real agreement of the parties, to show that the horse failed to meet the procreative' requirement, that he was properly cared for, and that the defendant delivered! or was legally excused from delivering him to the sellers in as good condition as when sold.</p> <p>Id.—Return op Stallion—Offer of Buyer—Sufficiency op.—Under such a warranty, where the buyer, upon discovery of the lack of potency of the stallion, offered to return the animal, but the sellers refused to furnish him with another horse, such refusal relieved the buyer of an obligation to do more than to offer to make the return.</p> <p>Id.—Timely Offer to Return.—Where such warranty was not limited to one season and the buyer, upon discovery of the lack of potency of the horse, did not make offer to return him until the early part of the next season, the offer was timely, it not being unreasonable to try him another season.</p>

<p>Judgment—Motion to Vacate—Time.—Where the defendants appeared in court and formally made their motion to set aside the judgment within six months after its rendition, as required by section 473 of the Code of Civil'Procedure, the fact that after reading the motion the further consideration thereof was postponed until after the expiration of such statutory period did not divest the court of jurisdiction to grant relief.</p> <p>Id.—Order to Show Cause—When Immaterial.—Where the adverse party made his appearance in court at the time fixed for hearing the motion to set aside the judgment and had an opportunity to do all that he could do under any circumstances, the fact that a formal order to show cause was not made was immaterial.</p> <p>Id.—Compromise Judgment — Order Setting Aside — Discretion not Abused.—Where the defendants in an action concerning water rights agreed to a compromise judgment and authorized their attorney to prepare a judgment according to the terms and conditions of the compromise, but upon the understanding that the judgment was to be submitted to them for their approval before it should be entered, and the judgment was entered without such submission, and they did not understand or appreciate the effect' or significance of such judgment as explained to them by their attorney, it was not an abuse of discretion to set the judgment aside.</p>

<p>Street Law—Proceedings Under Improvement Act of 1911—Doing of Work by Property Owners—Duty as to Awarding of Contract.—Under the part of section 12 of the Street Improvement Act of 1911 (Stats. 1911, p. 730), providing that the owners of three-fourths of the lots liable t'o be assessed may within ten days after the first publication of the notice of award of contract elect to take said work and enter into a contract for the doing of the same, and that if they fail to so elect the superintendent of streets shall enter into a contract' with the person to whom the contract was awarded, when the board of trustees makes its award, its powers and duties in respect to the letting of the contract cease, and it then becomes the duty of the superintendent of streets to enter into the contract, and a notice given by the property owners to the trustees within the ten days confers no rights upon the property owners nor imposes any duty upon the trustees.</p> <p>Id.—Time of Completion of Contract—Mistake in Recording Contract—Validity of Lien Unaffected.—A lien for street work done under the Improvement Act of 1911 is not invalid because of an error in copying into the record kept by the superintendent of streets that the contract was t'o be completed within 80 days, the original contract on file calling for 180 days, since the lien existed before the making of the record.</p> <p>Id.—Plans for Work—Erroneous Statement of Frontage—Validity of Assessment Unaffected—Requirements of Specifications.— An assessment for work done under the Improvement Act of 1911 . is not invalid for t'he reason that the plans which accompanied the specifications indicated an erroneous frontage as to some of the property owners, where the specifications and resolution of intention did not call for the improvement of a certain number of feet in front of each lot, but for the improvement of the street between certain stated points.</p>

<p>'Negligence—Action fob Death of Employee—Code Provision Applicable—Instruction.-—In an action brought under section 377 of the Code of Civil Procedure by the surviving wife and children as heirs •to recover damages for the death of a carpenter- employed on a 'building in course of construction, and alleged to have been caused by the negligence of defendants, it was not error to instruct' the jury that the action was properly brought under that section, and an order granting a new trial in such action on the ground that the instruction was erroneous, and that the jury should have been instructed that the action should have been brought under section 1970 of the Civil Code, and maintained for the benefit of the widow-alone, instead of the widow and children, was error.</p> <p>Id.—New Trial—Insufficiency of Evidence to Support Verdict.— In an action to recover damages for the death of a carpenter in falling from a building on which he was employed, where the uncontradicted facts show that the accident was not caused by any improper or faulty or defective construction or dangerous place of work, but solely through the carelessness and negligence of the deceased, an order granting the defendant a new trial is sufficiently supported on the ground of the insufficiency of the evidence to justify the verdict.</p> <p>Id.—Order Granting New Trial—Erroneous Season—Appeal—^Scope of Beview.—Where a motion for a new trial is based upon several grounds, and the reason for granting the motion is erroneous, the appellate court is not concluded by such reason, but may examine the record to determine i£ the new trial, should have been granted on any of the grounds set forth in the notice of intention, except as to the sufficiency of the evidence, where it is conflicting.</p> <p>Id.—Safe Place to Wobk—Meaning of Teem.—The word “safe” as used in connection with the duty of employers to furnish a reasonably safe place to work does not mean a place so made and guarded that it precludes all possibility of danger, but the word is a relative one, and the safety of the place is to be judged by the'nature of the work.</p>

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

<p>APPEAL from a júdgment of the Superior Court of Los Angeles County, and from an order denying a motion for a new trial. Paul J. McCormick, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Action tor Foreclosure—Deficiency Judgment—Limitation to Defendants Personally Liable for Debt.—In an action for the foreclosure of a mortgage, the deficiency judgment contemplated by section 726 of the Code of Civil Procedure can only be docketed by the clerk against the defendant or defendants personally liable for the debt.</p> <p>Id.—Sufficiency of Judgment—Express Becital of Personal Liability Unnecessary.—In an action for the foreclosure of a mortgage it is not necessary that the judgment should in express terms state that the defendant is personally liable for the debt in order to warrant the docketing of a deficiency judgment against him, if such fact clearly appears from the findings and judgment; and a judgment against defendant in a named sum is equivalent to a judgment that defendant is personally liable for t'he amount found due and to authorize the entry of a deficiency judgment against him.</p>

<p>Contract — Grant of Bight of Way to Telegraph Company — Telegraph Privileges as Consideration—Breach—Money Obligation. Where a contract between a property owner and a telegraph company granting to the latter a right of way over the lands of the former provided that the consideration for the grant was “telegraph privileges to the amount of one thousand five hundred dollars, which said amount shall be taken in the use of telegraph privileges at the usual and ordinary rates,” on the failure of the company to issue to such grantor any telegraph franks or allow him any telegraph privileges, by reason of the passage of laws prohibiting telegraph companies from issuing franks for any consideration except cash, the contract, in view of section 1451 of the Civil Code, became one to pay the sum of money designated as the consideration for the privileges granted by the contract, since the amount of money named in the contract was the exact equivalent of the value of the privileges which the obligor was compelled to furnish.</p> <p>Id.—Prohibition of Franking Privilege—State Public Utilities Act —Price Contract Unaffected as to Intrastate Messages.—The State Public Utilities Act prohibiting telegraph companies from issuing franks for any consideration, except cash, does not impair the validity of a contract granting a right of way in consideration of telegraph privileges executed prior to the passage of such act, in so far as the furnishing of franks for intrastate messages is concerned, in view of section 10, article I, of the federal constitution •prohibiting any state from passing a law impairing the obligation of contracts.</p> <p>Id.—Illegality of Contract as to Interstate Messages—Validity as to Intrastate Messages—Severable Contract.—A contract providing for the furnishing of franking privileges in consideration of the grant of a right of way, which became void as to interstate messages by the passage of the Interstate Commerce Act, is not also void, as to intrastate messages, since the contract as to interstate and intrastate messages was clearly separable in fact and law.</p> <p>Id.—Action on Quantum Meruit—Value of Bight of Way—Continuance in Possession—Pleading—Sufficiency of Complaint.—In an action against a telegraph company on a quantum meruit for a right of way granted it for a pole line after the consideration for the grant had become partly illegal, the complaint is not subject to the objection that it failed to allege that defendant continued in possession after a stated date, where it is alleged that the value of the right of way and the use and enjoyment thereof up to that date was one thousand five hundred dollars.</p> <p>Id.—Illegal Contract—Subsequent Legislation—Bule as to Parties in P'ari Delicto Inapplicable.—The rule that where parties to an illegal contract are in pari delicto, the court leaves them as it finds them, does not apply where the contract was a legal, just, and equitable one when made, but has become unlawful in part by subsequent legislation.</p>

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

<p>Promissory Note — Threat of 'Grimknai. Prosecution — Public Policy—Void Instrument.—A promissory note obtained by threats of criminal prosecution for embezzlement is against public policy and void.</p>

<p>Negligence—Breaking of Levee—Flooding of Land—Defective Construction of Canal—Inference from Evidence.—In this action for damages to crops caused by the flooding of plaintiff’s land, due to the breaking of the levee of a reclamation district, it is held that it is not an unreasonable inference that the levee would not have given away if the additional water had not been projected against it by reason of the negligence of the reclamation district trustees in the construction of the canal.</p> <p>Id.—Measure of Damage to Crops.—In such an action, the measure of plaintiff’s damages is to be determined by finding the value of the probable yield and the market value of the crop had it not been damaged, less the cost of producing and marketing the crop.</p>

<p>APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the Third Appellate District to compel the Superior Court to proceed with the trial of a Justice’s Court appeal.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law—Information—Double Charge—Lack of Prejudice—Same Class of Grimes.—In view of section 954 of the Penal Code, which provides that an indietinenj; or information may charge two or more different offenses connected together in their commission, or two or more different offenses of the same class of crimes or offenses, under separate counts, an information charging the defendant under two counts with having committed the crime of rape, and with having committed lewd and lascivious acts, such as are described by section 288 of the Penal Code, is without prejudice, where both crimes were alleged to have been committed on the same day and with the same female child, and the defendant found guiltless of the second offense charged.</p>

<p>Appeal—Judgment—Payment—Moot Questions—Dismissal.—Where pending an appeal from a judgment directing the payment of money it is made to appear to the appellate court that the judgment has been paid in full, the questions presented upon the appeal become moot, and the appeal will be dismissed.</p>

<p>Municipal Corporations—Street Work Under Private Contract in San Francisco—Running op Statute op Limitations—Resolution op Acceptance.—Under article "VI, chapter I, section 22, and chapter II, section 9, subdivisions 9 and 10, of the charter of the city and county of San Francisco, providing that private contracts for street work shall be done under the direction and to the satisfaction of the board of public works, and that such satisfaction shall be declared by resolution, the statute of limitations does not start to run against the contractor until the adoption of such resolution, regardless of the time of the actual completion of t'he work.</p> <p>Id.—Applicability op Charter Provision to Contracts.—The requirement of article "VT, chapter I, section 22, of the charter of the city and county of San Francisco that private contracts for street work must contain a “provision” that all materials used must be to the satisfaction of the board of public works, applies to all contracts for street work, public as well as private, in so far as the statute of limitations is concerned.</p> <p>ID.—Permit por Street Work.-—The charter of the city and county of San Francisco nowhere 'provides that the person actually performing street work under a private contract must himself obtain the permit, the only requirement being that such permit be obtained.</p>

<p>Street Law—Installation of Electric Lighting System—Improvement Act of 1911.—The installation of an electric street lighting system in a municipality is authorized by the Improvement Act of 1911 (Stats. 1911, p. 730), notwithstanding the title of the act provides for “work” in and upon streets, as subdivision 2 of section 79 in defining the word “work” was intended t'o include street-lighting systems.</p> <p>Id.—Enactment of Public Utilities Act of 1913—Improvement Act of 1911 not Repealed by Implication.—The Improvement Act of 1911 covering street improvement alone was not repealed by implication by the Public Utilities Act of ISIS covering the acquisition of public utilities.</p> <p>Id.—Creation of Street-lighting System—Procedure Under Improvement Act of 1911—Right of Municipality.—While street lighting is a municipal affair, where the municipality has not provided a complete procedure for the creation of a street-lighting system as empowered to do by-its charter, it may follow the provisions of the Improvement Act of 1911.</p> <p>Id.—Connection of Wires With Electric Distributing System of Public Utility—Constitutional Amendment not Violated.— The improvement of streets by the construction and installation of electroliers and a conduit system for the purpose of lighting such streets, cost of the improvement to be made a charge upon the property within the district, does not violate section 1 of article XIV of the amendments to the constitution of the United States, in providing that the electroliers be wired and connected by the underground system of conduits with a public utility company's lines, since the improvement does not become the property of the utility company, but the property of the city.</p> <p>Id.—Reference to Streets to be Improved—Insufficiency of Resolution of Intention.—A resolution of intention for improving street's in installing an electric lighting system, not naming the streets, and providing that the work was to be done according to certain specifications which did not name the streets, but referred to plans attached which contained a legend designating colors by which the proposed improvement's could be located, does not comply with the requirements of section 3 of the Improvement Act of 1911, providing that the resolution of intention shall refer to the street to be improved by its lawful or official name or by the name by which it is commonly known.</p>

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

<p>APPEAL from an order of the Superior Court of Tehama County refusing to dissolve an attachment. John F. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Action fob Wrongful Death—Refusal to Pass on Certain Issues—Presumption as to Evidence on Other Issues.— In an action for wrongful death, where the court refused to pass on the issues of negligence and the amount of damages sustained, upon the assumption that plaintiff had no standing in court under a former decision, it cannot he presumed on appeal that there was no evidence on other issues or that the evidence produced was unfavorable to plaintiff.</p> <p>Id.—Jurisdiction of Action.—An action for wrongful death is governed by the law of the jurisdiction where the tort is committed, and as it is a transitory action, it may be maintained in any jurisdiction where the defendant is found, unless the court where the suit is brought, in enforcing the remedy, would be acting in conflict with the express provisions or the general policy of the law of its own jurisdiction.</p> <p>Id.—Statutory Action Under Laws of Another State—Construction.—In considering a statutory remedy, such as an action for wrongful death, created by the law of a foreign jurisdiction, the court will adopt the construction of the statute given to it by the courts of that jurisdiction; but if the statute has never been construed in the foreign state, the court will construe it as it would a like statute of its own state.</p> <p>Id.—Action for Wrongful Death Under Laws of Alaska—Benefit of Estate.—Section 1185 of the laws of Alaska, codified by authority of the act of Congress of August 12, 1912, confers a right of action for wrongful death on the personal representatives of the deceased for the benefit of the estate, and any damages recovered become assets of the estate, to be administered like other assets, and the creditors and the expenses of administration to be paid therefrom if necessary, which is contrary to the policy of the laws of the' state of California.</p> <p>Id.—Later Enactment—Repeal of Former Law in Cases of Employer and Employee.—Section 1185 of the laws of Alaska, conferring a right of action for wrongful death on the personal representatives of the deceased for the benefit of the estate, was repealed by chapter 45 of the Sessions Laws of Alaska for 1913, as to cases between employer and employee, which provides a remedy for the wrongful death of an employee in accord with the spirit of the laws of California.</p> <p>Id.—Erroneous Ruling on Jurisdiction—Amendment op Complaint.— Where an action for damages for wrongful death brought under the laws of Alaska was disposed of on an erroneous ruling on a question of jurisdiction alone, the plaintiff, as a matter of substantial justice, should be permitted to amend to supply a necessary allegation, if possible.</p>

<p>Costs-—Waives or Findings—Running op Time op Service and Filing.—Where findings of fact are waived, an entry on the minutes of the court directing judgment for one or the other of the parties constitutes the decision of the court, and the time for serving and filing memorandum of costs commences to run from the minute entry date, or the date of notice, to the party claiming costs, of such minute entry.</p>

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

<p>Action fob Services—Contract of Employment—Liability of Defendant—Sufficiency of Evidence.—In this action for services of a physician rendered to a third party, it is held to be a fair inference from the testimony that the services were performed upon the reliance that the defendant would pay therefor, and that the latter directly promised to make such payment.</p> <p>Id.—Original Contract—Sufficiency of Consideration.—Where services were performed for the benefit of a third party in reliance that defendant would pay therefor, and defendant directly promised to pay, an original contract was thereby constituted with a sufficient consideration for its support.</p>

<p>Sale—Action fob Price of Engine—Breach of Warranty—Sufficiency of Evidence.—In this action on a note for the balance of the price of a tractor engine, it is held that the evidence supports the findings that the engine never at any time measured up to the warranted test, that the defendant never at any time unconditionally accepted it, and that the whole transaction was subject of controversy founded on repeated complaints.</p> <p>Id.—Breach of Warranty—Question for Jury.—In an action on a note for the balance of the price of a tractor engine, the question of breach of warranty, where the findings are conflicting, is for the jury.</p> <p>Id.—Notice of Defects—Waiver.—The requirement in a contract for the sale of a tractor engine that notice of the failure of the engine to work properly must be given within a specified time is waived by the continued and persistent efforts of the agents of the seller, including the one who made the sale, to make the machine work, after the expiration of the time limited.</p> <p>Id.—Authority of Sale’s Agent.—Authority of an agent who makes a sale of a tractor engine extends to all such acts as are properly connected with the sale and delivery of the machine, and does not stop when the proposed vendee first takes the machine on trial, but continues until the sale is completed or the machine returned.</p> <p>Id.—Knowledge of Defects—Waiver of Notice.—The provision in a contract of sale of a tractor engine that the purchaser shall give written notice to the seller of any defects, and that failure so to do shall constitute a waiver of breach of warranty, is waived where the agent who made t'he sale is present at the trial of the machine, and thus has knowledge of failure of performance.</p> <p>Id.—Action for Price of Engine—Omission to PXead—Waiver— Trial.-—In an action on a note for the balance, of the price of a tractor engine, although the defendant did not specially plead waiver of condition in the warranty as t'o the time for trying out the machine, the case was not tried erroneously on the theory of such waiver where the answer and cross-complaint set out all the facts of the transaction.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting a new trial. John Hunt, 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>Specific Performance—Contract Impossible to Enforce.—When the enforcement of a contract by decree of court is difficult or practically impossible, specific performance will not be granted.</p> <p>Injunction—Breach of Contract—Affirmative and Negative Covenants Impossible of Enforcement.—In view of subdivision 5 of section 526 of the Code of Civil Procedure, providing an injunction cannot be granted to prevent the breach of a contract the performance of which could not be specifically enforced, a contract containing affirmative and negative covenants impossible of enforcement will not support a suit for an injunction to restrain breach.</p> <p>Id.—Contract to Prepare and Furnish Medicines—Exclusive Bight to Use—Prevention of Breach.—An injunction will not lie to prevent the breach of a contract requiring a medical institute company to prepare and furnish medicines and advertising literature and to give plaintiff the exclusive right to use the remedies.</p>

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

<p>Parent and Child—Award of Custody to One Parent—Other Parent not Liable for Support.—Where by a decree of divorce the custody of the minor children of the parties is awarded to one of the parents, without charging upon the other parent the support of such children, the parent to whose custody the children are so awarded is, under the terms of section 196 of the Civil Code, alone liable for their support, and the parent not entitled to the custody of the minors is relieved of that duty.</p> <p>Id.—Omission to Provide for Minor Child—Unwarranted Commitment.—Where in an action for divorce the custody of the minor children of the parties was awarded to the mother, but no provision was made in the decree for their support, an order holding the husband to answer in the superior court for the alleged violation of - section 270 of the Penal Code, and the commitment thereupon issued, are void and of no legal force.</p>

<p>APPLICATION for a Writ of Mandate originally filed in the District Court of Appeal for the First Appellate District to require the Superior Court to accept and exercise jurisdiction of a certain proceeding.</p> <p>The facts are stated in the opinion of the court."</p> <p>U. S. Webb, Attorney-General, John H. Riordan, Deputy Attorney-General; and Arthur Lindauer, for Petitioner.</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>Parol Trust in Beal Property—Evidence.—In an action to establish a parol trust in real property, the testimony of the plaintiffs without corroboration is sufficient to warrant a judgment in their favor.</p> <p>Id,—Character of Evidence.—In order to prove a trust in real property by parol under a deed absolute in its terms, the evidence must be clear, satisfactory, and convincing.</p> <p>Id.—Question for Trial Court—Appeal.—The determination of the sufficiency of evidence to establish a trust in real property is for the trial court, and the same will be accepted as conclusive by the appellate court.</p> <p>Id.—Findings Supported bt Evidence.—In this action to have it declared that defendants were holding certain real property in trust for the plaintiffs under a conveyance absolute in its terms, it is held that the findings against the existence of the trust are supported by the evidence.</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>Water Bights—Prescriptive Title—Burden of Proof.—In an action between riparian owners for the admeasurement of the waters of a creek, the burden of establishing all the elements of a prescriptive right rests upon the defendants claiming such rights.</p> <p>Id.—Evidence—prescriptive Bight not Established.—Use by a riparian owner of the waters of a creek is not such as to establish a prescriptive right where he used the water, or a large part of it, when he needed it, but not regularly, sometimes letting it go down the creek, and never using it in such a way as to deprive his neighbors lower on the stream of the use of it according to their rights.</p>

<p>Attorney and Client—Collection of Money—Right of Retention Pending Determination of Compensation—Evidence—Action for Conversion.—An action for conversion cannot be maintained against attorneys at law for a sum of money collected by them for a client where, under the facts of the case, the attorneys had the right to retain the possession of the money until it was legally ascertained that a reasonable compensation for their services amounted to a less sum than that collected.</p>

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

<p>Vendor and Purchaser—Title Free from Defects—Change of Records—Liability of Purchaser.—Under the terms of a contract for the sale of real property requiring the vendor to furnish an abstract showing title free from defects, the purchaser is not obliged to accept title, make payments, or forfeit payments made, where the abstract shows that a deed necessary to complete the title which was recorded in the name of one “Robbins,” as grantee, was changed by the county recorder by striking out the name “Robbins” and substituting the name “Robben,” with a marginal insertion of the date and initials of such official, such change being made thirty-eight years after the recording of the deed and by a different recorder.</p> <p>Id.—Action for Foreclosure by Vendor After Breach—Recovery on Money Paid and Damages—Right of Purchaser.—Where a vendor, after breach of contract to furnish an abstract showing title free from defects, commences an action to foreclose the purchaser’s rights under the contract of sale, and the purchaser, within the time for answering, surrenders the land, he may file a cross-complaint to recover installment's paid and damages for the breach.</p>

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

<p>Constructive Trust—Purchase on Mining Property—Taking op Deed in Name op Option-holder.—Where a party has an option to purchase mining property for a certain sum, although it is apparently for a greater sum, and for a valuable consideration such party transfers the option to a third party and the latter pays to the owner the full consideration for the property, but the deed is taken in the name of the original holder of the option, a constructive trust is thereby created in favor- of the purchaser.</p>

<p>Accident Insurance Law—Indemnity Against Liability for Bodily Injuries—Negligence of Employee of Independent Contractor— Accident not Covered.—A policy of insurance against liability imposed by law upon the owner of a building and the party under whose supervision the work was done and who let the contract and did the carpenter and mason work, and resulting from the negligence of any contractor or subcontractor engaged in such work, does not cover an accident to person passing along the street sustained by the negligence of an employee of an independent contractor.</p>

<p>Negotiable Instruments—Notice of Protest by Mailing—Statement in Certificate of Protest.—Where a notice of protest of a promissory note is given by mail, the provisions of subdivision 3 of section 3144 of the Civil Code must be followed, which permits the mailing to residence alone, and a protest which recites that notice was mailed to the office of the indorser is not prima facie evidence of the matters stated therein as declared by section 795 of the Political Code.</p>

<p>Action on Promissory Note—Lack of Consideration—Fraud— Sufficiency of Evidence.—In this action by the assignee of a promissory note executed to a corporation in payment for stock, it is held the evidence supports the finding that there was no consideration for the note, and that it was obtained by the corporation through fraudulent representations.</p> <p>Id.—Note Procured by Fraud—Action by Assignee—Innocent Holder—Burden of Proof.—In an action by the assignee of a corporation on a note given in payment for its stock, and procured from the maker by fraud and misrepresentations, the burden is upon the assignee t'o prove he is an innocent holder.</p>

<p>Action on Promissory Note—Interest—Rate in Excess of Limitation of Personal Property Broker’s Act—When Allowable.— In an action on a promissory note bearing interest at the rate of five per cent per month, interest is to be calculated at such rate in the judgment, where the note is unsecured and no showing made that the plaintiff was a personal property broker.</p>

<p>Negligence—Collision Between Automobile and Taxicab—Conflict of Evidence—Findings Conclusive on Appeal.—In an action for damages resulting from a collision between an automobile and taxicab, where the evidence is conflicting and contradictory as to whether the collision was due to the negligence of the driver of the taxicab or to the defendant, the findings of the trial court will not be disturbed on appeal.</p> <p>Id.—Damages—Conflict of Evidence—Question fob Trial Court.— Where the testimony as to damages is conflicting, the amount to be awarded is a question for the determination of the trial court.</p>

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

<p>Trust — Deed Absolute on Face — Farol Evidence — Statute op Frauds.—Under the statute of frauds it is the general rule that parol evidence cannot be received to prove that a deed absolute on its face was given in trust for the benefit of the grantor.</p> <p>Id.—Fraud—Exception to Rule.—Where, however, by means of an oral promise made without any intention of performing it, one obtains an absolute deed without giving any consideration therefor, it is a case of actual fraud, and the statute of frauds is not a bar to relief.</p> <p>Id.—'Constructive Fraud—Violation op Promise to Reconvey.—If a grantee by means of a parol promise to reconvey obtains an absolute deed without consideration from one t'o whom he stands in a confidential relation, the breach of the promise is constructive fraud, although at the time it was made there was me intention not to perform.</p> <p>Id.—Action to Declare Trust—Sufficiency of Evidence.—In this action to declare defendant an involuntary trustee of certain real property, it is held that the evidence sustains the finding that the conveyance was made upon the understanding that the property was to he held in' trust and to be reeonveyed upon demand.</p> <p>Id.—Existence of Confidential Relationship—Sufficiency of Evidence.—In this action, it is also held that the evidence supports the finding that a confidential relationship existed between the parties at the time of the delivery of the deed.</p> <p>Id.—Confidential Relationships—Inference from Proven Pacts.— There are certain relationships from the existence of which the law infers special confidence, such as those of husband and wife, parent and child, guardian and ward, counsel and client, etc., hut it also exists in numerous eases where the fact's proven will warrant the inference.</p>

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

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

<p>Negligence—Action for Loss of Property—Fire from Locomotive— Evidence—Burden of PIioof.—In an action against a railroad company for damages for loss of property from fire set by one of its locomotives, the gist of the action is negligence, and the burden of proof is upon the plaintiff.</p> <p>Railroad Corporations—Liability for Fires.—A railroad company is not an insurer at all events against the consequences of fire set by its locomotives, but it is only liable for fires negligently caused by it, and the facts upon which the liability rests cannot be established by mere conjecture but must be proved by satisfactory evidence.</p> <p>Id.—Appeal—Scope of Review.—In an action against a railroad company for damages for loss of property by fire negligently set by one of its engines, the appellate court cannot, on appeal from the judgment, take the place of the trial court for the purpose of determining whether the findings are supported by a preponderance of the evidence, but will consider the evidence solely for the purpose of determining whether or not the essential findings of fact are supported by satisfactory evidence tending substantially to establish the facts as found.</p> <p>Id.—Negligence of Defendant—Findings Supported by Evidence.— In this action against a railroad company for damages for loss of property from fire negligently set, it is held that there was satisfactory evidence to support the findings that the fire which destroyed the property had its origin in fire which escaped with the smoke from the engine of the defendant, and that the fire and the consequent damage was occasioned by careless and negligent management of the engine.</p>

<p>Action fob Architect’s Services—Verdict Supported bt Evidence.— In this action for architect’s services, it is held that the verdict was amply warranted by the evidence, and that there was no error in the refusal of certain instructions and the modification of others.</p>

<p>Attachment—Action on Bond—Previous Satisfaction of Judgment for Costs—Time of Commencement of Action.—An action will lie on an undertaking given on the issuance of a writ of attachment when the judgment in favor of the defendant for costs has been satisfied, notwithstanding the time for appeal from the judgment has not expired.</p> <p>Id.—Attachment of Automobile—Measure of Damages.—In such an action, the attached property being an automobile and kept by the plaintiff, for sale only, the plaintiff is only entitled to damages for depreciation in value for t'he time it was held under attachment, and is not entitled to any compensation for being deprived of its use, since the damages depended upon the use to which the owner of the property would put the same had his possession of it been undisturbed.</p>

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

<p>Pleading—Actions fob Injuries to Person and Property—Joinder in Same Complaint.—In ¡view of section 427 of the Code of Civil Procedure, as amended in ¡1915, a cause of action for damages to property and a cause of action for injury to health may be joined in the same complaint, where both grow out of and are the direct result of the same tort.</p> <p>Id.—Action for Damages, and Injunction—Joinder.—It is not improper to unite a cause, of action for damages with a cause of action for injunctive relief. !</p> <p>Municipal Corporations—Improper Improvement op City Street— Damage to Property Owner — Pleading — Improvement Under Municipal Authority—Sufficiency of Complaint.—In an action against a municipal corporation for injuries to person and to property from the improper grading, filling, and improvement of a city street, the complaint is not subject to t'he objection that it fails to show that the work was done under the authority of the defendant, where it is alleged that the defendant caused the work to be done.</p> <p>Id.—Damage to Property Owner—Liability of Municipality for Improper Street Improvement.—A municipal corporation is liable to a property owner for the flooding of his property from the improvement of a street on which his property abuts, where the work was done strictly in accordance with plans and specifications adopted •for the work, and such plans and specifications did not provide for adequate means for taking care of the surface waters which would accumulate on the property.</p> <p>Id.—Flooding of Dwelling—Raising to Proper Height—Proper Element of ISamage.—In an action against a municipal corporation for damages caused by the alleged flooding of plaintiff’s dwelling from the improvement' and grading of a street, the expense necessarily incident to the raising of the structure to a height preventing the water from entering the dwelling is an element of damages, notwithstanding the raising increased the value of the premises.</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>Brokers’ Commissions—Exchange of Property—Compensation from Both Parties—Bulb.—An agent in acting in the matter of the sale or exchange of property may not collect compensation from both parties unless each party had full knowledge of the facts concerning the agreement of the other to pay compensation.</p> <p>Id.—Action for Commissions—Double Agency—Lack of Knowledge of Parties—Judgment Without Support.—In an action by an agent for a commission in procuring an agreement for an exchange of real properties, where it was found that plaintiff was acting as agent for both parties, and there was no finding that both parties knew of the double agency, the judgment in favor of the plaintiff is not sufficiently supported.</p>

<p>Criminal Law—Assault With 'Deadly Weapon—Pointing of Unloaded Gun Accompanied by Threat—Insufficiency to Sustain Conviction.—In a prosecution for the crime of assault with a deadly weapon, the pointing of an unloaded gun at' the prosecuting witness, accompanied by a threat, without any attempt to use it otherwise, is not an ^.ssault with a deadly weapon, and cannot sustain a conviction for ¡an assault for want of present ability to commit a violent injury on the person threatened in the manner attempted.</p>

<p>Action tor Foreclosure of Mortgage—Default in Payment of Interest—Length of Time—Pleading—Reference to Filing Mark —Sufficiency of Complaint.—Where in an action for the foreclosure of a mortgage it appears from the allegations of the complaint that if any of the installments of interest falling due under the terms of the note set forth in the complaint should remain unpaid for thirty days, the principal should forthwith become due at the election of the holder of the note, the complaint is not demurrable for omission to aver that the alleged unpaid interest was more than thirty days overdue, where it is alleged that the principal with a certain amount of interest was due and unpaid, and by turning to the filing-mark on the complaint it can be learned that the pleading was in fact filed more than thirty days after the alleged default in the payment of interest.</p> <p>Id.—Election to Declare Whole Amount Due—Notice—Filing of Complaint.—In such an action it is not necessary to allege that the plaintiff had elected to regard the whole amount of the principal as due on the default in payment of interest, since the filing of the complaint was of itself a sufficient notice of such election.</p>

<p>Chattel Mortgage—Conversion of Mortgaged Property—Liability for Debt.—One who converts personal property which is subject to a chattel mortgage is liable to the mortgagee for the full amount due under the mortgage. '</p> <p>Id.—Action for Conversion—Pleading—Sufficiency of Complaint.— In an action for the conversion of a mortgaged automobile, an allegation in the complaint “that said automobile was at said time and ever since has been in the possession of the defendant” is not inconsistent with the mortgagor’s right to execute the mortgage, where the complaint also alleges that defendant had no title.or claim to the property, since it must be assumed that defendant held the automobile as agent or trustee of the mortgagor.</p> <p>Id.—Mortgage of Property in Possession of Another—Bight of Owner.—The owner of personal property may execute a valid mortgage thereon, though the property at the time is in the actual possession of another.</p>

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

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

<p>Corporation Law — Transfer op Property — Issuance op Stock by Transferee—Validity op Transaction—Question not Presentable in Stockholders’ Liability Action.—In an action to recover judgment upon the statutory liability of certain stockholders of a corporation, the defendants cannot question the validity of a transaction between the corporation and its corporate predecessor in business, by the terms of which the assets and business of the latter were taken over by the former and stock in the new corporation issued to the stockholders, although the transaction was in violation of section 309 of the Civil Code and sections 1227-1232 of the Code of Civil Procedure.</p> <p>Id.—Action upon Stockholders’ Liability—Ownership op Stock— Evidence.—In an action upon the statutory liability of stockholders in a corporation, proof of ownership of stock at a certain time is sufficient to show ownership at the time the liability was incurred, in the absence of evidence to the contrary.</p> <p>Id.—Void Assessment—Recovery op Money Paid.—Stockholders of a corporation may recover of the corporation the amounts paid by them under a void assessment.</p>

<p>Appeal—Alternative Method—Presumption as to Record.—Where the record on appeal from a judgment is prepared under the alternative method, without a printed transcript, the law presumes, without examining the typewritten transcript, the court will rely solely upon, those portions of the record which the parties print in their briefs.</p> <p>Td.—Insufficiency of Evidence to Support Findings — Defective Record—Matter not Reviewable.-—On an appeal from a judgment taken under the alternative method, the insufficiency of the evidence to sustain the findings cannot be considered where there is not printed with t'he appellant’s brief a copy of the notice of appeal or any part of the judgment-roll, and the brief contains only extracts of the evidence.</p>

<p>Attorney at Law—Suspension from Practice—Record op Foreign ■Court—Procedure.—An attorney at law can be removed or suspended upon the record of a foreign court convicting him of a crime involving moral turpitude, without notice and without giving him an opportunity to he heard or to answer to the sufficiency of 'the record or to deny the allegations therein contained.</p> <p>Id.—Crimes Denounced by Revised Statutes op United States—"When Cause por Disbarment.—The erimés denounced by section 5470 of the Revised Statutes of the United States are within the terms of section 287 of the Code of Civil Procedure whenever they involve moral turpitude.</p> <p>Id.—Concealment op Stolen 'Currency—Crime Involving Moral Turpitude.—The crime of receiving currency from one who has stolen it from the mails, and to conceal and aid in the concealment of it, is a crime involving moral turpitude.</p> <p>Id.—Application por Reinstatement to Practice—Insufficiency of Evidence.—An application by an attorney at law for reinstatement to practice upon the ground of reformation of character cannot be considered where the letters asking for such reinstatement are from attorneys residing out of the state and their signatures are not verified.</p>

<p>Tenancy at Will—Mode of Termination.—Where a tenant enters agricultural land under oral agreement for lease for two years, and occupies the land for two years, rendering an annual rent which is accepted by the owner, the tenancy thus created must be terminated by the notice prescribed in section 789 o-f the Civil Code, before the tenant is liable to an action in unlawful detainer.</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>Boundary — Construction op Deed by Parties — Consideration by Court.—In determining the location for a boundary line, the construction placed upon a description in a deed, as shown by the acts and conduct of the grantor and his grantees for a long period of time with relation to the line, is entitled to the gravest consideration, unless the terms of the deed are clear and certain to the contrary.</p> <p>Id.—Deed—Road as Boundary—-Parol Evidence.—In an action in ejectment to determine a boundary line, where a deed gave a road as a boundary, but it was not clear what road was intended, it was proper to show by parol evidence the identity of the road.</p> <p>Id.—Monuments Controlling Over Courses.—When monuments mentioned in a deed are identified, they control both courses and distances given, whether they were seen by the parties to the deed or not.</p> <p>Id.—Fixing of Line by Agreement—Estoppel.—Where the boundary line between the lands of contiguous owners is doubtful or -uncertain and they by parol agreement fix and determine a dividing line between their respective tracts, said line being marked- by the erection or maintenance of a fence or other equivalent structure along it, and thereafter the parties hold and occupy their respective lands to the boundary as so agreed on, the accuracy of such boundary line cannot be subsequently questioned by the parties- establishing it, or by those claiming under either of them.</p>

<p>Wage Act—Immediate Payment upon Discharge—Penalty for Failure Recoverable by Employee—Constitutional Law—Uniform: Operation of General Laws Provision not Violated.—The act approved May 1, 1911 (Stats. 1911, p. 1268), and the amendment thereof approved April 28, 1915 (St'ats. 1915, p. 299), providing that whenever an employer discharges an employee, wages due and unpaid shall become payable immediately, and imposing a penalty ■ for nonpayment recoverable by the employee, is not violative of article I, section 11, of the constitution, providing all general laws shall have uniform operation."</p> <p>Id.—Passage op Local Law Provision not Violated.—Such act is not violative of article IV, section 25, subdivision 33, of the constitution, providing the legislature shall not pass local or special laws where a general law can be made applicable.</p> <p>Id.—Due Process op Law Provision not Violated.—Such act is not violative of the fourteenth amendment to the federal constitution, providing no state shall deprive any person of life, liberty, or property without due process of law.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Z. B. West, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contract—Street Railway Advertising—Nonperformance—Insufficiency of Evidence.—In this action by a street railway advertising company to recover payments due under an advertising contract, it is held that the evidence is not sufficient to support the finding of nonperformance of the contract.</p>

<p>Negligence — Collision at Railroad Crossing — Excessive Speed op Train—Question por Jury.—In an action hy a passenger in an auto stage for personal injuries received from a collision with a freight train at a point where the highway crossed the railroad' track, the question whether thirty miles an hour was au excessive rate of speed for the train when approaching the crossing was for the jury.</p> <p>Id.—Signal op Approach op Train—Question por Jury.—In such an action, the question whether the train sounded or gave any warning of its approach to the crossing was for the jury.</p> <p>Id^—Pleading—Sufficiency op Complaint.—In such an action, the complaint states a cause of action where after alleging that the auto in which plaintiff was riding was a public conveyance, and after describing the crossing, it averred the defendant ran one of its trains across the highway in a negligent manner and at negligent speed, without giving any signals, so that plaintiff, while traveling with due care, was injured.</p> <p>Id.—Contributory Negligence—Pleading and Evidence.—In an action for personal injuries, contributory negligence is a defense which may he set up, and if set up, must he supported hy defendant.</p> <p>Id.—Ownership op Auto—Immaterial Averment.—In such an action, it is not necessary that the complaint should show who was the owner or driver of the auto at the time of the collision.</p> <p>Id.—Due Care—Negligent Operation op Train—Proper Allegations. In such an action, allegations in the complaint that plaintiff was traveling with due care and that defendant ran its train across the crossing in a negligent manner and at negligent speed are not improper, as mere conclusions of law.</p> <p>Ib.—Injury to Passenger in Auto Stage—Negligence op Driver not Imputable to Passenger—Lack op Control.—In such an action, assuming that the driver of the auto stage was negligent, and that his negligence concurring with that of the railroad company brought about the collision and its results, the plaintiff cannot' he charged with such negligence, having no authority or control over the driver.</p> <p>Id.—Conduct op Passenger upon Observation of Danger—Lack op Negligence.—In such action, the passenger cannot he charged with negligence because on seeing the approach of the train he jumped from his seat' on the side door, of the stage into the middle of the car and held on to the front seat.</p> <p>Id.—Person in Great Peril—Care.—A person in great peril when immediate action is necessary to avoid it is not required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under ordinary circumstances.</p> <p>Id.—Approach op Railroad Crossing—Duty op Traveler.—It is the duty of a traveler on a highway approaching a railroad crossing to use ordinary care in securing a time and place to stop, look, and listen for coming trains, and he is negligent if he merely looks or listens, believing the people in charge of the train will ring the bell or sound the whistle.</p> <p>Id.—Evidence—Acts op Other Passenger.—In such an action, the court properly refused t'o strike out on defendant’s motion the answer given by another passenger that he did not watch or notice other passengers and that he could see those in front of him glancing up and down the track, as the driver did.</p> <p>Id.—Conflict op Evidence — Proof Beyond Preponderance — Erroneous Instruction.—In such an action, where the evidence is contradictory, an instruction requiring proof beyond the preponderance of the evidence is erroneous.</p> <p>Id.—Amount op Verdict—Instruction.—In such an action, an instruction that if plaintiff was injured as described, the jury should render a verdict for full amount of “damages,” not exceeding the amount prayed for, is not erroneous, as an unqualified direction to return a verdict for the full amount.</p>

<p>Appeal—Question op Fact.—Appellate courts are not permitted to disturb a judgment where the determination of the facts is the issue presented, except where the evidence to the point is all one way, when the question becomes one of law as to what judgment is indicated therefrom. .</p> <p>Action on Promissory Note—Evidence—Manner op Payment—Letter op Third Party Inadmissible.—In an action on a note indorsed and transferred to plaintiff by defendant in consideration of the transfer to the latter of an option to purchase real property owned by plaintiff and a third party, a letter written by such third party to defendant stating that' the note was to be paid from the sale of stock of a corporation to be organized for the disposal of the property was not admissible as against plaintiff, the note being plaintiff’s property.</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>Public Officers — Copyists in Eecorder’s Office — Compensation— Words Actually Copied.—Copyists in the office of the county recorder are entitled to be paid only for the words actually copied by them into the books of record, and are not' entitled to compensation for the words contained in the printed forms in such books.</p> <p>Id.—Warrant for -Claim—Presentation to Supervisors for Allowance—Condition Precedent.—A claim for compensation for services as copyist in the recorder’s office must be presented to and allowed by the board of supervisors before the county auditor is authorized to draw his warrant for its payment.</p>

<p>Nuisance—Abatement Under Red-light Act—Dismissal of Proceeding.—In an action to enjoin the use of property for immoral purposes under the Red-liglit Abatement Act, where it is shown that the nuisance had been abated before the action was commenced, the proceeding will be dismissed.</p> <p>Tb.—Evidence—Explanation of Visitor—Testimony of Police Officers—Hearsay.—In such an action, testimony of police officers, who raided the premises, that a man found in the room of an inmate of the house had told them that he was there for an immoral purpose was hearsay and inadmissible.</p> <p>Id.—Improper Corroboration.—In such an action, it is not proper to corroborate the testimony of a police officer, by permitting another officer to testify that he had heard the testimony and that it was true in all particulars.</p> <p>Id.—Decree Enjoining Use of Property for Immoral Purposes — Title not Clouded.—A decree under the Eed-light Abatement Act enjoining defendants from using certain real property for immoral purposes, but not closing the premises or ordering the sale of furniture or taxing costs, is not prejudicial, as clouding the title to the property.</p>

<p>Public Officers—District Attorney—Authority to Employ Detectives.—Under section 4307, subdivision 2, of the Political Code, a district attorney is authorized to employ detectives at the expense of the county, when necessary for the detection of persons guilty of crimes or to obtain evidence of their guilt.</p> <p>Id.—Compensation for Detective Services—Presentation of Claim— Procedure upon Rejection.—A claim for detective services performed by a county at the request of the district attorney must be presented to the board of supervisors, and if it be rejected, the claimant may bring his action as provided by section 4078 of the Political Code.</p> <p>Id.—Claims Against Counties—Action by Boards of Supervisors— When not Pinal.—Where a claim has been allowed in full by the board of supervisors, if it be within the jurisdiction of such tribunal, it can only be attacked by a suit in equity on the ground of fraud. If it be apparent that the board has exceeded its jurisdiction in the allowance, of the claim, the order may be nullified through an action brought in court, or such order may be disregarded and (treated as nugatory by any officer who is called upon to give effect to the invalid determination of the board. If, however, a claim within the power of the board to allow has been rejected, or allowed only in part, the decision of the board is not final, but by virtue of the statute the claimant may bring hiis action at law and establish his claim against the county as fully and effectively as it’ could be by a favorable order of the board in the first instance.</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—Larceny—Custodian op Property.—A person not hired for a servant, Tout for a caretaker, whose principal duty was to see that no one took anything out of the house of his employer, is guilty of larceny, and not of embezzlement, in feloniously taking personal property from the house.</p>

<p>Criminal Law — Mailing or Forged Check — 'Collection in Another State—Crime Partly Committed in This State.—Under section 27 of the Penal Code, which provides that all persons who commit, in whole or in part, any crime within this state, are liable to punishment under the laws of this state, a person who mailed a forged cheek in a foreign country to a bank in this state with instructions to such bank to mail the cheek for collection to a bank in another state is guilty of a crime committed in part within this state, and is liable to punishment therefor.</p>

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

<p>Appeal—Awernative Method—Printing op Record in Brief.—On an appeal taken under the alternative method, the parties must print in their briefs sueh portions of the record as they desire to call to the attention of the court.</p> <p>Id.—Typewritten Transcripts not Review able.—Appellate courts will not look to the typewritten transcripts filed under the alternative method of appeal for the purpose of determining whether grounds exist for the reversal of the judgment appealed from.</p> <p>Open Account—Allowance of Interest.—In an action for the reasonable value of goods on an open account', interest is allowable only from the date upon which the balance is ascertained.</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>Conversion—Lease oe Farming Land on Shares—Seizure oe Whole Crop by Lessor—Liability to Mortgagee oe Lessee.—Where land is leased to be farmed on equal shares, and the lessor attaches and takes possession of the whole crop, and personally and through the sheriff refuses upon demand to deliver the other one-half thereof to the holder of an overdue note secured by chattel mortgage on such one-half with the right of possession upon failure to pay the note, such lessor is guilty of conversion.</p>

<p>Street Law—'City op Petaluma — Improvement Under State Law— Preliminary Ordinance Adopting Procedure Unnecessary — Charter.—In the doing of street work in the city of Petaluma under the provisions of the act of March 6, 1889 (Stats. 1889, p. 70), it is not necessary that t'he city, prior to 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, requiring that such work should be done by ordinance not in conflict with state laws, must be read in connection with section 68 of the same 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 be followed.</p>

<p>Contract—Sale oe Cement—Quality—-Satisfaction of Engineer of Highway Commission.—Where a letter ordering cement provided that the cement should comply with inclosed specification of the highway commission and be acceptable to their engineer, and in reply thereto the letter of the seller stated that the cement “will easily meet the specifications of the commission,” after which communications passed relating to the price alone, the contract called for cement acceptable to the engineer.</p> <p>Id.—Evidence — Terms of Contract — Preliminary Negotiations.— Where a contract for the sale of cement consisted of letters and telegrams, it was error to admit oral evidence as to the terms of the contract and of the negotiations leading up to the same, but such error was harmless where the letters and telegrams clearly showed the contract.</p> <p>Id.—Recovery for Breach of Contract — Rejection of Cement by Highway Commission Insufficient.—Where a contract for the sale of cement provided that the cement should meet the specifications of the highway commission and be acceptable to their engineer, the mere rejection of the cement by the commission, apart from the question of its quality, was not a compliance with the contract by the buyer, and, while a rejection by the engineer would be prima facie conclusive, such decision could be impeached for gross mistake amounting to fraud.</p> <p>Id.—Pleading—Insufficient Complaint.—In action for breach of contract to deliver cement conforming to the specifications of the highway commission and acceptable to its engineer, the plaintiff cannot recover on the theory of the rejection of the cement' by the engineer where the only allegation in the complaint was that the cement had been rejected by the highway commk,sion.</p>

<p>Contract — Hauling of Book and Sand — Default of Haulers—Demurrage Charges—Costs of Gasoline and Oil—Priority in Payment—Bight of Contractor.—Under a contract for hauling rock and sand, wherein the haulers agreed to save the contractor harmless from demurrage charges, and the contractor agreed to pay for all the gasoline and lubricating oil used in the hauling, the contractor had the right, upon the default of the haulers after permitting demurrage to accrue and contracting a bill for gasoline and oil, to first retain out of the sums due the haulers the amount of the demurrage charges.</p> <p>Id.—Payment for Gasoline and Oil—■ Nature of Contract.—Under such a contract, the agreement to pay for gasoline and oil is not a contract made expressly for the benefit of a third person, which the seller of the oil could enforce.</p>

<p>Judgment—Setting Aside.-—-Equity will not overturn a judgment valid on its face,zunless it is against conscience, and it appears that a like judgment would not follow in the same action or upon the same cause of action.</p> <p>Id.—Meritorious Defense.—In an action to set aside a default judgment, the defendant must establish a good defense on the merits to the complaint upon which the judgment is based.</p> <p>Husband and Wife — Deed to Wife — Note of Wife to Husband’s Creditor—Sufficiency of Consideration.—Where a husband, upon being told that he was about to die, made a deed of all his property to his wife, and the wife at the same time and at her hus- - band’s request signed a note to a person to whom the husband was indebted for money loaned, the advantage gained by the wife in not' having to probate the estate, and the disadvantage of the creditor in not being able to collect his debt out of the estate, constituted a sufficient consideration for the note.</p> <p>Promissory Note — Delivery — Presumption from Possession.—A promissory note found in the possession of the payee will be presumed to have been delivered to him upon its date.</p>

<p>Deed—Delivery to Notary Public—Reservation op Control—Title not Divested.—Where a grantor delivered a deed to a notary public with instructions to keep the deed until the grantor called for it, or until the death of the grantor, and in the latter event to hand it to the father of the grantees, there was no delivery sufficient to pass title. ,</p> <p>Evidence—Rejection op Testimony—Right op Court.—While it is true that a judge or jury have no right to arbitrarily reject testimony, this may be done when it does not produce conviction.</p> <p>Ib.—Number op Witnesses—Instruction—Rule Applicable to Judge and Jury.—The rule laid down in subdivision 2 of section 2061 of the Code of Civil Procedure that jurors are to be instructed that they are not to decide in conformity with the declarations of any number of witnesses which do hot produce conviction in their minds, as against a presumption of other evidence satisfying their minds, applies alike to judge and jury.</p> <p>Id.—Contradiction op Witness by Facts.—A witness may be contradicted by the facts he states as completely as by direct adverse testimony.</p> <p>Action to Set Aside Deed—Lack op Delivery—Want op Consideration—Findings Supported by Evidence.—In this action by an administrator to set aside a deed made by his deceased wife, it is held the findings of nondelivery of the deed, lack of consideration, and that the wife was the owner of the property at the time of her death, were supported by the evidence.</p>

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

<p>Statutory ‘Construction — Different Language — Presumption. — When different language is used in the same connection in different parts of a statute, it is presumed the legislature intended a different meaning and effect.</p> <p>Id.—Repeated Use op Phrase—Presumption.—A- word or phrase repeatedly used in a statute will be presumed to bear the same meaning throughout the statute, unless there is something to show that another meaning is intended.</p> <p>Municipal 'Corporations — San Francisco Board op Fire Commissioners and Secretary—Civil Service.—Under the charter of the city and county of San Francisco, the words “fire department” as employed in the civil service section of the charter are not intended to embrace the board of fire commissioners nor the secretary thereof, and therefore such secretary does not come under the protection of section 12 of article XIII providing that no person employed in the classified civil service shall be removed or discharged, except for cause, upon written charges and after -an opportunity to be heard in his own defense.</p>

of Appeal for the Second Appellate District denying an application for a Writ of Review to annul an order of 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>Costs—Actions in Justices’ Courts—Right to Sue in Forma Pauperis.—The township justices’ courts of this state are, as were courts at common law, vested with power to, and should upon a proper showing, admit parties to sue in forma pauperis, since the statutory provisions with reference to prepayment of costs are not applicable to the exceptional eases of indigent suitors who at common law were entitled to sue without payment of such costs.</p>

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

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

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

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

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

<p>Appeal—Alternative Method—Typewritten Transcripts not Reviewable.—Appellate courts will not look to the typewritten transcripts filed under the alternative method of appeal, to determine whether ground exists for the reversal of the judgment appealed from.</p> <p>Insurance Law—Defense of Suits -Covered by Policy—Duty of Insurer.—Where an indemnity policy provided that the insurer was to defend any suit against the insured t'o enforce a claim for damages covered by the policy, whether groundless or not, the insurer was required to defend every action in which the complaint showed 6 claim for damages covered by the policy, notwithstanding the suit was groundless and defeated, and where the insurer failed to defend, it was liable to the insured for the costs and expenses of the defense.</p> <p>Id.—Action on Policy—Recovery op Costs and Expenses op Depending Action—Sufficiency op Complaint in Liability Action—Appeal—Record—Presumption.—In an action on such a policy to recover costs and expenses of defending an action which the insurer failed to defend, where the record on appeal taken by the insurer failed to show whether the complaint disclosed that the complaint in the other action stated a cause of action, the appellate court is bound to assume in support of the judgment that such a showing was made.</p>

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

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

<p>Appeal — Default Judgment — Misjoinder of Causes of Action.— Upon an appeal upon the judgment-roll from a default judgment, the appellate court will not consider the question of misjoinder of causes of action in the manner it would if a demurrer had been filed in t'he case upon that ground.</p> <p>Id.—Sufficiency of Pleading.—-If a complaint states a cause of action sufficient as against a general demurrer to sustain the relief actually, given in the judgment, it will not be held invalid because it also states fact's authorizing other relief.</p> <p>Unlawful Detainer—-Default Judgment — Misjoinder of Other Causes of Action—Insufficient Ground for Reversal of Judgment.—Upon an appeal from a default judgment in an action in unlawful detainer, the court will not reverse the judgment because of an attempt to unite other causes of action with that of unlawful detainer, where the complaint states a cause o£ action in unlawful detainer.</p> <p>Id.—Reformation of Lease—Default Judgment Based upon Three-day Summons not Void.—A default judgment in an action in unlawful detainer predicated on a three-day summons is not void because a reformation of the lease was also asked in the complaint, since the court had the right to construe the lease to determine its true meaning, reformation being immaterial.</p> <p>Id.—Effect of Default Judgment.—A default judgment in an action in unlawful detainer, entered without findings, must be taken to have established all the facts aptly pleaded in the complaint.</p> <p>Id.—Notice to Quit—Performance of Covenants.—A notice to quit for nonperformance of covenants in a lease need not demand a performance of a covenant to take care of trees, cultivate the ground, or furnish the landlord vegetables, since such covenants could not afterward be performed.</p> <p>Id.—Commission of Waste—Demand of Performance.—Where a tenant has committed waste, a notice to quit need not demand- performance of the covenants against committing waste, in view of section 1161, subdivision 4, of the Code of Civil Procedure.</p> <p>Id.—Reason for Terminating Lease.—A notice to quit for failure to perform covenants in a lease need not state the reason for terminating the lease.</p> <p>Id.—PLeading.—In an action in unlawful detainer, the complaint need not set out in full the notice to quit, it being sufficient to allege its legal effect.</p> <p>Id.—Service of Notice.—In an action in unlawful detainer, plaintiff need only allege that he served notice in .writing, on defendant, or that notice in writing was served.</p>

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

<p>Extradition—Duty or Governor.—Where a person is properly charged with the commission of a crime under the laws of another state while within its jurisdiction, after which he departs from such state and is found within this state, it is the duty of the Governor, upon the presentation of proper documents, to honor the requisition made by the Governor of such state, and neither the - executive nor the courts of this state have the right to inquire into the question of his guilt or innocence.</p> <p>Id.—Fugitive from: Justice.—The expression “fugitive from justice,” as used in the Revised Statutes, section 5278, regulating the extradition of fugitives from justice, has reference to a person who, having within the state committed that which by its law constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, has left its jurisdiction and is found in the territory of another state.</p> <p>Id.—Habeas Corpus—Scope of Inquiry.—On habeas corpus by one arrested on an extradition warrant, inquiry may only be made into the question of fact as to whether the accused was within the territory of the other state when the alleged offense was committed.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco setting aside a judgment. E. P. Shortall, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Contract—Sale op Calculating Machines—Repudiation bt Principal—Estoppel to Claim Forfeiture.—In an action by an agent on a contract of employment for the sale of calculating machines, providing for forfeiture if he did not sell fifty machines t'he first year, where the defendants repudiated the contract two and one-half months after it had been executed, they were estopped from claiming forfeiture for nonsale of the required number of machines.</p> <p>Id.—Profits from Sales of Other Machines—Mitigation of Damages—Lack of Evidence.—In such an action, profits made by plaintiff on sales of machines purchased by him from another firm are not available in mitigation of damages, in the absence of evidence as to the capital invested by plaintiff or how many he sold.</p> <p>Id.—Commercial Agents and Principals—Damages for Breach.— While contracts between commercial agents and their principals embody many elements of uncertainty, damages for breach thereof are not speculative or remote, and such compensation will be awarded as the evidence shows with reasonable certainty the wronged party is entitled to.</p> <p>Appeal—Construction op Findings—Support op Judgment.—Courts may finfi damages in a lump sum, and any uncertainty in the findings is to he construed so as to support the judgment rather than defeat it.</p>

<p>School Law—Discharge of Teacher—City of Oakland—Power of i Board of Education.—The board of education of the city of Oakland had unrestricted and absolute power to discharge a teacher in its school department for the ensuing fiscal year by giving the notice required by section 1617, subdivision 7b (now section 1609), of the Political Code, and mandamus will not lie to compel such board to reinstate a teacher dismissed for violating a rule of the board which provided that when a woman employee married, her position should become vacant.</p>

<p>Municipal Corporations—San Francisco—Public Utility Acquired by City — Preference in Appointment of Employees.—Under article XIII, section 11, subdivision B, of the charter of the city and county of San Francisco, only employees of a municipal railway acquired by the city who have secured standings in examinations are entitled to preference in appointment.</p> <p>Id.—Discharge of Employees of Municipal Railroad.—In view of section 11, article XIII, subdivision A, of the charter of the city and county of San Francisco, an employee of a municipal railway is subject to discharge and suspension at any time without trial, and section 12, of article XIII, providing that no employee in classified service shall be removed except for cause upon written charges, is inapplicable.</p> <p>Pleading—Order Sustaining Demurrer—Silence as to Amendment— Judgment.—An omission in an order sustaining a demurrer to a complaint to say anything about leave to amend does not prevent judgment from being entered.</p>

<p>Criminal Law—Release Without Bail.—Under the procedure generally applicable in criminal actions a defendant is not entitled to be released without bail upon his mere promise to appear for trial, nor will such release ordinarily be permitted by an arresting officer until it is so ordered by the court or magistrate.</p> <p>Id.—Violation of Vehicle Act — Validity of Judgment of Conviction.—A judgment of conviction for a violation of section 22 of the Vehicle Act (Stats. 1917, p. 404) is not void on its face merely because it does not affirmatively declare that the defendant upon his appearance before the justice of the peace on the day of his arrest waived his right to the five days’ time provided by subdivision (e) of said section/ and does not affirmatively set forth that such justice was the most accessible magistrate.</p> <p>Id.—Bights Under Vehicle Act—Denial by Justice’s Court—Bembdy by Appeal—-Habeas Corpus.—The rights given to persons arrested for speeding under section 22 of the Vehicle Act may be waived, and their denial by the justice’s court is mere error, eorrectible on appeal, but not re viewable under habeas corpus.</p>

<p>APPLICATION for a Writ of Mandamus originally made to the District Court of Appeal for the Second Appellate District to compel a sheriff to pay into the county treasury fees received by him from the state in delivering prisoners and insane persons to state institutions.</p> <p>The facts are stated in .the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, 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>Negligence—Drowning of Child in Cemetery Beservoir—Pleading— Bights of Lot Owners and Public—Surplusage.—In an action to recover damages for the death of child by drowning in a reservoir maintained by defendant in its cemetery, where children were permitted freely and without hindrance to go and come, allegations as to the rights of lot owners and visitors, and as to the right of the public to use a certain roadway for the purpose of passing through the cemetery, were surplusage.</p> <p>Id.—Excavation Adjoining Highway—Insufficient Allegation.—In such an action, an allegation in the complaint that in a prominent place in the cemetery and “immediately alongside” one of the driveways therein, and only a short distance from a certain entrance to the cemetery, the defendant dug, excavated, and constructed and still maintains in a prominent place a large reservoir for the holding of water, does not bring the ease within the class where an excavation has been dug or maintained “adjoining a highway” into which a traveler on the highway, where he had the right to be, had accidentally fallen.</p> <p>Id.—-Bulb of Turntable Oases.—Where dangerous and attractive machinery is maintained unguarded and exposed to the observation •and temptation of little children, the natural allurement's of which will tempt them to go about or upon, and against the danger of which action their immature judgment interposes no warning or defense, the conduct of the party in so maintaining such machinery involves an act of negligence for which he is liable in damages where a child of the above description, having gone upon or played about and with the machinery, is thereby injured, notwithstanding that the child so injured is a trespasser upon the land upon which the machinery is maintained.</p> <p>Id.—Qualification of Bule.—The rule is to be understood with the qualification that the dangers of the machinery, although novel and attractive to the immature mind of a child, can be fully or sufficiently guarded to protect against injury without destroying its usefulness for the purpose for which it is maintained.</p> <p>Id.—General Invitation to Visit Cemetery—Right of Children to Use as Playground not Included.—A permissive general invitation to visit a cemetery, not abandoned, but parked and having driveways, does not include the granting of a privilege to children to make a playground of the place.</p> <p>Ib.—Knowledge of Use of Cemetery as Playground—Licensees.— Mere knowledge by a cemetery association that children habitually went into the cemetery and therein indulged in their childish sports would make the children at most mere licensees, to whom the association owed no duty or obligation.</p> <p>Id.—Nonliability Under Rule of Turntable 'Cases.—A cemetery association maintaining an unguarded reservoir alongside a driveway near an entrance to the cemetery is not liable, under the rule of the turntable cases, for the drowning of a child of the age of eight .years..</p>

<p>■School Law—Superintendent of Schools op City op Marysville— Charter Provision not Repealed by Code.—Section 1617 of the Political Code, relating to the establishment and maintenance of schools in cities as part of the common school system of the state and which provides that boards of education in city school districts shall have power to employ a city superintendent of schools and fix and order paid his compensation, has not repealed by implication the provision of the charter of the city of Marysville which provides that the county superintendent of schools of Yuba County shall be ex-officio superintendent of public schools for the city of Marysville, and which fixes his compensation.</p> <p>Id.—School District and Municipality—Exercise of Same P'owers.— A municipality and a school district, the territorial boundaries of which are the same as those of the city, notwithstanding they are different and separate or distinct corporate entities, may, if the legislature elects to give them the right so to do*, exercise precisely the same identical power with respect to matters connected with and calculated to further the .interests of the public school system, in so far as such city and school districts are concerned, and merely because the Political Code in its provisions establishing a system of common schools, confers upon the board of education of a city the power to employ a superintendent of city public schools, it does not follow that the provision of a city charter -authorizing the county superintendent to perform the duties of city superintendent thereby becomes a dead letter.</p>

<p>Mechanics’ Liens—Engineering Expert—Bight to Lien.—An engineering expert employed for a single and specified purpose in the construction of a building, even though he may not be classed as an architect, comes within the provisions of section 1183 of the Code of Civil Procedure, as one bestowing skill to be used in the construction of the building, and is entitled to a lien for the furnishing of engineering designs to the architect's.</p> <p>Id.—Notice to Withhold—Effect of Code Amendment.—Section 1184 of the Code of Civil Procedure, as amended in 1911, does not, save at the option of the owner, secure unto persons giving the requisite notice an equitable garnishment upon the moneys due or to become due to the contractor.</p>

MOTION to dismiss appeal and counter-motion for relief from default in filing opening brief. The facts are stated in the opinion of the court.

<p>Criminal Law — Void Sentence — Indeterminate Term—Pronouncement of Second Sentence—Power of Court.—A judgment in a criminal case sentencing the defendant for an indefinite term upon conviction of a crime committed prior to the enactment of the indeterminate sentence law is void, and the court has jurisdiction to pronounce a second sentence for a fixed term of imprisonment.</p>

<p>Criminal Law—Murder—Evidence—Harmless Error.—In this prosecution for murder, it is held there is nothing in any of the rulings on testimony which, even assuming some to have been erroneous, could have unduly prejudiced the rights of the defendant.</p> <p>Id.—Verdict—Sufficiency of 'Evidence.—It is also held that the evidence was sufficient to support the verdict.</p>

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

<p>Criminal Law—Indeterminate Sentence—Crime Committed Prior to Enactment.—An indeterminate sentence for a crime committed prior to the adoption of section 1168 of the Penal Code, relating to indeterminate sentences, is improper.</p> <p>Id.—Bate—Verdict Supported by Evidence.—In this prosecution for the crime of rape, it is held the verdict is supported by the evidence and that no prejudicial rulings appear.</p>

<p>¡Workmen’s Compensation Act — Death op Driver op Transfer Truck—Accident Arising in Course op Employment.—Under the Workmen’s Compensation Act, the death of the driver of an automobile truck for a transfer company was occasioned by an accident that happened in the course of his employment, where it uas shown that he had loaded his truck and left it, as customary, in the street adjacent to the office during the noon hour, while waiting for the freight depot to open, and who in obeying instructions to get the truck and go to the depot, was struck and killed by a passing automobile while crossing the street.</p>

<p>Street Law—Improvements Under Act of 1911—Resolution of Intention—Names of Streets.—In street improvement proceedings under the Improvement Act of 1911 (Stats. 1911, p. 730), the streets to be improved need not be mentioned by their official names in the resolution of intention, but may be referred to by the names by which they are commonly known.</p> <p>Id.—Uncertainty as to Location of Lines—Defect in Resolution of Intention Cured by Plans and Specifications.—Uncertainty as to the location of certain lines in the resolution of intention is cured by the plans accompanying the resolution and the specifications referred to therein, wherein the location of such lines is made certain.</p> <p>Id.—Change of Grade—Proceedings Under Act of 1909—Hearing of Protests—Persons Entitled to-Notice.—In a proceeding for the change of the grade of a street under the Change of Grade Act' of 1909 (Stats. 1909, p. 1018), the proceeding is valid, notwithstanding upon the hearing of protests notice was only given of the hearing of such protest's to the persons protesting, since under such act no notice is required to be given of such hearing to nonprotesting owners.</p>

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

APPLICATIONS originally made to the District Court of Appeal for the Second Appellate District for a Writ of Supersedeas and for a Writ of Mandate. John M. York, Judge. The facts are stated in the opinion of the court. Andrews, Toland & Andrews, Kenton A. Miller, Hocker & Austin, and W. A. Alderson, for Petitioner.

<p>Justice’s Doubt or Appeal—Payment or Pees—Time.—On an appeal from a justice’s court, it is not necessary that the fees provided by section 981 of the Code of Civil Procedure to be paid to the county clerk for filing the transcript on appeal and placing the action on the calendar in the superior court should be paid to the justice at the time of the filing of notice of appeal, and where paid within the thirty-day period allowed for taking the appeal, the statute has been sufficiently complied with, and jurisdiction of the appeal acquired.</p>

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

<p>Criminal Law—Appeal—Support op Verdict—Presumption.—On appeal from a judgment and order denying a new trial in a criminal case, the presumption is that no prejudicial error was committed and that the verdict is amply supported.</p> <p>Id.—Bobbery—Verdict Supported by Evidence.—In this prosecution for robbery, it is held that the verdict is supported by the evidence.</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 punishing the petitioners for contempt of court. Grant Jackson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street Law—Assessment—State University Land.—Before land, a portion of which is actually in use by a state university for educational purposes, may be subjected to the lien of a street assessment, it must be separable from the remainder of the property for the public use of which it is a part without impairing the value of the property for the public use to which the occupied portions of it are already put.</p> <p>Id.—Strip op Land Forming Part of University Block—Nonliability for Street Assessment.—A strip of land fronting on a street and forming about one-seventh of a block owned by the state university, six-sevenths of which is occupied by college buildings, is not' separable from the remainder without impairing its use, and therefore cannot be subjected to the lien of a street assessment.</p> <p>Id.—Assessment Wholly Void.—An assessment of a block of land belonging t'o the state university for street improvement is wholly void where six-sevenths of the block is occupied by college buildings.</p> <p>Id.—Assessment of Nonassessable Land—Waiver and Enforcement of Lien Against Other Land not Permissible.—Where an assessment of a block of land for street improvement was void, because six-sevenths of the land was occupied by college buildings of a state university devoted to public use, and therefore not' subject to assessment, the contractor cannot waive his lien as to the six-sevenths and enforce it against the one-seventh.</p> <p>Id.—Invalidity of Assessment—Failure to Protest to Council—■ Property Owner not Estopped.—A property owner is not es-topped from asserting the invalidity of a street assessment because he failed to protest t'o the city council or because he remained silent while the work was being done.</p>

<p>Workmen’s Compensation Act—Removal op Concrete Foundations— Status op Injured Person—Employee and not Independent Contractor.—A person engaged by a cemetery corporation to remove from its property, by the use of explosives and blasting, some concrete foundations, is an employee and not an independent contractor, and therefore entitled to compensation for injuries received in the course of the work, where he was paid by the day and there were no restrictions placed upon the power of the corporation to direct and control his operations at will.</p> <p>Id.—Employment in Usual Course op Business.—The employment by a cemetery corporation of a person skilled in the work of blasting and in the handling of explosives used in the conduct of blasting operations, to remove by the use of explosives and blasting certain concrete foundations, while casual, is in the usual course of the corporation’s business.</p> <p>Id.—Violation op Blasting Permit—Excessive Charges op Dynamite—Misconduct When not Willful.—The violation of the terms of a permit granted 'by a municipal corporation in the use of dynamite for blasting purposes is not willful misconduct, in the absence of evidence that such violation proximately or remotely caused the injury.</p>

<p>Broker’s Commissions—Acceptance op Purchaser—Admission op Ability.—Where an owner of real property accepts the offer therefor made by a person produced by the broker employed to make the sale, he thereby admits the readiness, willingness, and ability of the purchaser to consummate the sale.</p> <p>Id.—Negotiation op Sale—Bight to Commissions—When Complete. When a broker employed simply to negotiate a sale of real estate has found a purchaser ready, able, and willing to purchase upon the vendor’s terms, his right to the agreed commission is complete, and not contingent upon the consummation of the sale.</p>

<p>Negligence—Collision With Automobile op Exposition Company— Injury to Pedestrian—Negligence op Superintendent op Grounds —Evidence—Use on Private Business.'—An- exposition company cannot be held liable for damages for personal injuries received by a pedestrian from a collision with an automobile owned by the company and negligently driven by its superintendent of grounds, where at the time of the accident the superintendent was on his way home from work, where the machine remained until taken to the grounds, where it was kept nights:</p> <p>Motor Vehicle Law—Keeping to Bight—'Construction op Statute. The provision of. the motor vehicle law (Stats. 1913, p. 648) that the person in control of any vehicle moving slowly along and upon any public highway shall keep such vehicle as closely as practicable to the right-hand boundary of the highway, allowing more swiftly moving vehicles reasonably free passage to the left', is elastic, and does not attempt to lay down a definite and rigid rule as to the distance which the slowly moving vehicle must keep from the curb.</p> <p>Evidence—Distrust op False Witness—Instruction.—The failure to instruct the jury that a witness false in one part of his testimony is to be distrusted in others is "not error where the instruction is not requested.</p>

<p>Broker’s Commissions—Contract of Employment—Defect in Description—Parol Testimony.—In an action to recover a commission claimed to have been earned for securing the acceptance of an offer to exchange real property, it is not error to permit' the plaintiff to remedy by oral testimony a defective description in the broker’s contract of employment.</p> <p>Corporation Law—Acceptance op Opper op Exchange op Keal Property—Authority.—A written acceptance by a corporation of an offer to exchange real property is sufficiently shown to have been made under the authority of the board of directors where the acceptance contained the signatures of the vice-president and secretary and the corporate seal.</p>

<p>Contempt—Annulment op Unwarranted Order:—Writ op Beview.—■ An unwarranted order adjudging one guilty of contempt may be annulled upon a writ of review.</p> <p>Id.—Violation op Injunction—Dismissal of Proceedings—Lack op Ground—Annulment op Order.—Where in a proceeding instituted hy the beneficiary under a judgment granting an injunction, the disobedience of which is made to appear, the court without any ground therefor denies to such beneficiary the process of the court, which constitutes the only means of enforcing the judgment, sueh order should be annulled.</p> <p>Id.—Affirmative Allegations in Affidavit—Trial.—Affirmative allegations contained in an affidavit of the defendant in contempt proceedings for the disobedience of an injunction cannot be deemed established without a trial to determine the issues so joined.</p> <p>Id.—Act Constituting Crime—Statute op Limitations.—When an act sought to be punished constitutes a crime, the court may by analogy adopt the limitation prescribed by statute for criminal prosecutions.</p> <p>Id.—Violation op Injunction—Plow op Water—Time for Contempt Proceedings.—The beneficiary under a judgment perpetually enjoining the obstruction of a flow of water is not barred from instituting contempt proceedings against a person violating the injunction by failure to bring the proceedings within a particular time, unless the obstruction has continued under circumstances and for a period of time from which a grant so to do would be implied.</p> <p>Id.—Delay op Pour Years—Proceeding not Barred by Laches.—The failure t'o bring contempt proceedings until after the obstruction had continued for four years did not in itself constitute laches.</p> <p>Id.—Bight to Institute Proceedings—Matters not Affecting.—The willingness of the beneficiary under a judgment restraining the obstruction of a flow of water to waive his rights thereunder provided the person violating the judgment would pay the expense of protecting his land from overflow, and his motive in instituting contempt proceedings to compel sueh payment, does not affect the rights to institute such contempt proceedings.</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 to compel a sheriff to release a writ of attachment.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Dismissal of Action—Failure to Bring to Trial Within Five Tears —Mandatory Provision.—The provision'of section 583 of the Code of Civil Procedure as to the dismissal of actions not brought to trial within five years after the filing of the answer is mandatory, and the circumstance that the trial was postponed several times without plaintiff’s consent, one of those occasions being a relatively short time before the date when the defendant would be entitled to require the court to dismiss the action, is a matter of no significance. '</p>

<p>Conditional Sale—Default of Vendee—Retaking of Possession and Resale by Vendor—Nonliability for Conversion.—A vendor of personal property -which had been delivered to the vendee under a conditional sale contract, which authorized the vendor to demand and have possession of the property “at any time before said sale and transfer,” cannot be held guilty of conversion in taking possession of the property under a claim, and delivery action and thereafter making a resale thereof, where the vendee was in default and made no reasonably prompt' tender of performance.</p>

<p>Partition—Personal Money Judgment—Jurisdiction.—In an action in partition, where the complaint alleged that one of the defendants had acquired an undivided two-thirds interest in the property from his codefendants .with full knowledge that plaintiff had a claim against said codefendants for money advanced by plaintiff upon their part of the purchase price, such codefendants were proper, if not necessary, parties to the action, and their disclaimer filed in the action did not prevent the court from rendering a personal judgment against them in favor of plaintiff for the amount of such advancement.</p>

<p>Banking Law — Payment or Fogged Checks — Negligence or Depositor.—A bank is not liable to a depositor for money paid out on forged cheeks of the cashier of the depositor extending over the period of almost one year where at the end of each month the forged cheeks, together with the valid cheeks which had been paid during the month, were returned to the depositor with a statement of account, accompanied with a written request to report discrepancies within fifteen days, and neither the depositor nor its manager ever made any examination of the returned cheeks and statements until after the cashier had absconded.</p> <p>Id.—Action by Depositor—Statute op Limitations.—The provision of the statute of limitations embodied in subdivision 3 of section 340 of the 'Code of 'Civil Procedure that an action against a bank by a depositor for the payment of a forged check must be brought within one year begins to run on presentment and payment of the cheek, and not upon discovery of forgery.</p>

<p>Pleading—Parties—Action Against Wife.—Under the provisions of section 370 of the Code of Civil Procedure, it is not sufficient to merely name the husband as a party defendant in an action against his wife, but he must also be served with summons.</p> <p>Id.—Appeal—Right to Site Wipe Alone—Presumption not Entertainable.—Upon an appeal from a judgment upon the judgment-roll in an action against a wife, it cannot be presumed that the case falls within one of the exceptions enumerated in subdivisions 2 and 3 of section 370 of the Code of Civil Procedure, in which a wife may be sued alone, where the complaint alleges that the husband is joined because he is the husband of his codefendant.</p>

<p>Street Law—Regularity of Proceedings—Issuance of Bonds—Conclusive Evidence.—In street improvement proceedings, where there is an evident attempt in good faith to comply with the statute, and such substantial compliance therewith that no one has suffered from lack of strict compliance, the issuance of bonds is conclusive evidence of the regularity of the jurisdictional proceedings.</p> <p>Id.—Posting of Notices—Issuance of -Bonds—Cure of Trifling Defect.—In view of section 66 of the Improvement Act of 1911 (Stats. 1911, p. 730), a defect in the posting of two notices of the passage of the resolution of intention, in that they were posted 309 feet -4 inches apart instead of three hundred feet, as required by section 5 of the act, is cured by the issuance of bonds.</p> <p>Id.—Notices of Improvement—Posting—Sufficiency of Affidavit.— An affidavit as to completion- of posting of the notice of improvement stating that the affiant had actually posted the notice on the street to be improved to a certain line, which line did not, however, mark the termination of the improvement, is sufficient where it was also stated in the affidavit that affiant “posted said notices conspicuously along the line of said contemplated work or improvement at' not more than three hundred feet in distance apart and not less than three in all, and when the work was to be done upon an entire crossing or any part thereof, in front of each quarter block liable to be assessed.”</p> <p>Id.—Completion op Posting op Notices—Suppioienot op Apbtdavit.— An affidavit stating “that affiant posted said notices as herein specified on the 25th day of May, A. D. 1911,” is a sufficient statement that the posting was “completed” on such date, as required by section 5 of the act.</p> <p>Id.—Liberal 'Construction op Act op 1911.—The Improvement Act of 1911 by its own provisions is to be liberally construed to the end that its purposes may be effected (Stats. 1911, p. 768, sec. 82), and the provisions regarding the posting of notices and the like are to be read in the light of the purposes to be accomplished.</p>

<p>Mechanics’ Liens—Continuance op Lien Pendente Lite—Lis Pen-dens.—Where an action for the foreclosure of a mechanic’s lien is commenced within the ninety-day period provided by section 1190 of the Code of Civil Procedure, the lien continues during the pendency of the action, and it is not essential to file a notice of lis pendens in order to preserve t'he lien as against purchasers pending suit.</p>

<p>Husband and Wife—Property Acquired in Wife’s Name—Presumption—Evidence.—The presumption that property acquired in the name of the wife is her separate property is not conclusive, and where the question of ownership is involved, the court' is entitled to receive and consider any competent evidence which tends to disclose the manner of acquisition of the property, and from the acts and conduct of the husband determine whether the transaction whereby the property was conveyed to her constituted a gift.</p> <p>Id.—Action on Building Bond—Husband’s Ownership—Estoppel.— In an action on a building contractor’s bond, where it is shown that the contract for the erection of the building was entered into with the husband as owner, although the record title was in the name of the wife, and he as owner expended his money for the building, the obligors named in the bond are estopped from denying the husband’s ownership, since as to them he should conclusively be presumed to be the real party in interest.</p> <p>Id.—Defense of Lien Claims—Attorney’s Pees—Recovery on Bond. Where a building contract has been abandoned and the building completed by the owner as permitted by the contract, the owner in an action on the bond may recover money paid for attorney’s fees in defending actions to recover upon lien claims.</p> <p>Id.—Actual Payment of Attorneys’ Pees—Right to Recovery not Affected by.—The fact that a part of the attorney’s fees for which compensation had been 'allowed in the judgment had not been actually paid does not affect the owner’s right to recover therefor.</p>

<p>Action for Services—'Reasonable Value—Payment—Insufficiency of Findings.—In an action to recover for services rendered, where by the pleadings the reasonable value of the services and the question of payment are made the chief issues, and no finding is made as to the reasonable value of the services other than that plaintiff worked “at the rate of thirty-five dollars a week,” and no finding at all is made on the issue of payment, the judgment in plaintiff’s favor is not supported by the findings.</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—Commission of Lewd Act upon 'Child—Verdict Warranted by Evidence.—-In this prosecution for committing lewd and lascivious acts upon and with the body of a female child under the age of fourteen years, it is held that there was sufficient evidence to warrant a verdict that the defendant was guilty of the offense charged, and not of an attempt to commit rape.</p> <p>Id.—Argument of District Attorney—Reference to Defendant as “Debauchee”—Conduct Without Prejudice.—In such a prosecution, reference by the district attorney in his argument to the case as one in which the “little girl” had been “debauched” by the defendant and also declaring that the defendant was a “debaucher” is not misconduct.</p> <p>Id.—Sentence Fixing Maximum Term of Imprisonment—Crime Committed Subsequent to Indeterminate Sentence Law — Unauthorized SENTENdE.—The provisions of section 1168 of the Penal Code relating to indeterminate sentences are applicable to offenses committed subsequent to the enactment, and a sentence fixing the maximum term of imprisonment at twenty years for a violation of section 288 of such code is unwarranted.</p>

APPLICATION originally made to the District Court of Appeal for the Second Appellate District for a writ of prohibition to restrain the Superior Court from pronouncing judgment for contempt. The facts are stated in the opinion of the court.

<p>Claim and Delivery—Damages—Usable Value of Property.—In an action for the wrongful detention of property, the ordinary measure of damages is interest, but where the property has a usable value which exceeds the lawful rate of interest, such rule has no application, and the successful party is entitled to recover, as damages for the detention, the value of such use during the period that he was wrongfully deprived thereof, which value is to be estimated by the ordinary market price of the use of the property.</p> <p>Id.—Recovery of Possession of Automobile—Wrongful Seizure by Officer—Rental Value as Damages.—In an action in claim and delivery to recover the possession of an automobile wrongfully seized by an officer under a writ of attachment, the trial court is authorized under section 667 of the 'Code of Civil Procedure to fix damages for detention on basis of rental value, although it amounts t'o more than the value of the machine.</p>

<p>Specific Performance-^-Contract for Carload of Iron—Uncertainty as to Quantity.—A contract for a carload of iron is enforceable, notwithstanding the parties in making the contract did not state how much iron should constitute a carload and did not attempt to provide what should be either t'he minimum or maximum amount of iron in such carload.</p> <p>Appeal—Alternative Method—Printing of Record in Briefs.—Where the record on appeal has been prepared in typewritten form under the alternative method provided by sections 953a et seq. of the Code of Civil Procedure, the parties must print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court.</p>

<p>Criminal Law—Commission op Lewd Acts upon Child—Accusatory Statements op Wipe op Dependant—Failure to Make Beply— Erroneous Admission in Evidence.—In a prosecution for the offense defined in section 288 of the Penal Code, the admission in evidence, over defendant’s objection, of the testimony of an officer as to what transpired on the occasion of a visit made by defendant t'o his home was error where such testimony was to the effect that the defendant’s wife told the defendant that he had “been warned about this thing before” and that she did “not believe in this thing of ruining young girls,” and the defendant made no reply thereto other than saying that “this is not any place to discuss that.”</p> <p>Id.—Silence op Accused in Presence op Accusations—Bule as to Admissibility.—Statements of third parties made to or in the presence of one charged with the commission of a crime and tending to connect him therewith are admitted, not' as of themselves constituting evidence of the facts stated, but to show what it is that calls for a reply; and where the statement is such that under the circumstances the accused, if innocent, should repudiate it, his remaining mute will constitute evidence of his admission of the truth of the statement made.</p> <p>Id.—Warning op Accused — Admission — Insufficient Evidence op Lascivious Nature.—In such a prosecution, admissions of the accused that he had been warned is not, in the absence of evidence showing reason or occasion therefor, evidence tending to prove that defendant was of a lascivious nature, or that he had theretofore indulged in such acts.</p> <p>Id.—Erroneous Admissions op Accusatory Statements—Argument op District Attorney—Prejudicial Error.—In such a proseeu-</p> <p>tion, the erroneous admission of accusatory statements of the wife .of the defendant was prejudicial where the district attorney laid great stress on the statements in his argument.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying a motion to strike out an undertaking on appeal staying execution and to vacate the stay. Fred H. Taft, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Intoxicating Liquors—Purchase by Club—Sale to Members—Violation of Wtllie Act.—Under section 14 of the Wyllie local option law, prohibiting the keeping of a place within no-license territory where alcoholic liquor is sold, served, or distributed, a club and its chairman of house committee and steward, as its agents, are guilty of a violation of the act, where the members of the club, which was located in no-license territory, desiring liquor, notified the steward, who ordered it from a wholesale liquor house, and the liquor was shipped to and charged to the club, and upon its arrival distributed among the members and payment therefor collected by the club, the liquor being kept either in a locker used in common, or placed indiscriminately with that of others in a refrigerator until served by the steward.</p>

<p>The facts are similar to those stated in Chase v. Peters et al., ante, p. 358, [174 Pac. 116].</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County. J. A. Plummer, Judge.</p> <p>The questions presented in this case are identical with those considered in Wentland et al. v. Clark & Henery Construction Co., ante, p. 34, [173 Pac. 480].</p>

<p>APPEAL from a judgment of the Superior Court of Butte County. H. D. Gregory, Judge.</p> <p>The facts are identical with those in the ease of Doty v. California Rice Milling Co. et al., ante, p. 449, [174 Pac. 389].</p>

<p>Reclamation District—Payments Under Void Assessment—Right to Credit—Mandamus.—Judgment affirmed on the authority of Spurrier et al. v. Neumiller, etc., ante, p. 683.</p>