Volume 39 — California Appellate Reports

<p>Contract—Damages—Bulkheading and Filling Tide-lands.—In this action by an assignee for damages for breach of a contract to bulkhead and fill in tide-lands, for which the contractor was to receive an undivided one-half interest in the land when the work was completed, the court erred in excluding evidence offered by defendant to show what would have been the value.of the land : if it had been filled and walled.</p> <p>Id.—Measure of Damages.—The measure of damages upon such a breach of contract is the difference between the price at which the contractor agreed to do the work and the reasonable cost to the owner of the property of having this work completed.</p> <p>Tide-lands—City of Richmond—Deed from Commissioners—Vested Rights.—The grantee of tide-lands adjoining the city of Richmond, by deed from the tide-land commissioners acquired rights of which he could not be divested by the subsequent act of June 11, 1913, conveying the land in question with others to the city of Richmond.</p>

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

<p>Pbincipal and Agent—Existence op Agency—Insufficiency of Evidence.—In this action, based on a claim of a contract of agency, to recover money alleged to have been expended by plaintiff on account of the defendant, it is held that the evidence fails to show the existence of any contract whatever between plaintiff and defendant.</p>

<p>Vendor and Vendee—Default of Vendee—Liability of Vendor for Money Paid.—Under a written agreement for tlie sale of land for a consideration payable in installments, where the vendee made default as to the final payment which became due after making Ms first payment, and the vendors thereupon treated the contract as abandoned and conveyed the property to others, without in any manner protecting the rights of the vendee, and without offering to perform the conditions of the contract on their part, the vendors were liable to the plaintiff for the return of the money paid by him, notwithstanding a provision in the contract that time was of the essence of the contract, and that upon the failure of the vendee to make the deferred payments as agreed the contract should at once become null and void and the vendors should be at once released from any and all obligations thereunder.</p>

<p>APPEAL from an order of the Superior Court of Los 'Angeles County granting a new trial. John W. Shenk, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. T. L. Lewis, Judge. Affirmed.</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—Order Denying Vacation op Default.—An order denying a motion to vacate a default is not an appealable order.</p> <p>Pleading—Overruling op Demurrer—Time to Answer.—When a demurrer to a pleading is overruled and time to answer is given, the time so given runs from written service of notice of the order.</p> <p>Id.—Waiver of Written Notice.—Where written notice is required by the statute, actual notice or actual knowledge thereof is not the equivalent thereof or a substitute therefor, but the party for whose benefit the notice is so required may waive the same.</p> <p>Id.—Extension of Time to Answer — Effect of Stipulation.-—A written stipulation that the defendant may have a certain time in which t'o serve and file her answer and cross-complaint operates as a waiver of notice of the overruling of her demurrer to the complaint, but such waiver is not retroactive, and does not become effective as of the date of the order overruling the demurrer, but is effective to take the place of the written notice required by the statute only at the time when the acts which constitute it were performed.</p> <p>Unlawful Detainer—Pleading—Cross-complaint and Counterclaim. A counterclaim or cross-complaint is neither proper nor permissible in an action in unlawful detainer.</p>

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

<p>Negligence—Nonsuit—Evidence.—In an action for damages for personal injuries sustained as a result of defendant’s negligence, proof of plaintiff’s negligence is not alone sufficient to warrant the granting of a nonsuit, however clear that proof may be, but in addition thereto, it must further appear that plaintiff’s negligence contributed proximately to his injuries.</p> <p>Id.—Injury to Elevator Inspector — Contributory NegligenceNonsuit Properly Denied.—In this action for damages for personal injuries sustained by an inspector of elevators under contract with defendants to inspect, oil, and grease the same, it is held that the motion for nonsuit based on the ground that plaintiff was guilty of contributory negligence, as a matter of law, was properly denied.</p> <p>Id.—Taking Hold oe Guard-rail—Seasonable Strain—Instruction. An instruction given at the request of the plaintiff to the effect that while he may have been employed to inspect the elevator, yet, if the jury believed that it was not his duty to inspect the guard-rails and the shaft of the elevator, he had a right' to assume that the guard-rail, at the time of his injury, was in a reasonably safe condition, “and that the same would stand such a reasonable strain upon the same, such as the taking hold of t'he same with his hands for the purpose of enabling him to step from the top of the cage to the second floor of the building,” provided the taking hold of and use of the same was with the exercise of ordinary care and caution on Ms part', is not subject to the objection that the quoted portion amounts to an instruction on a question of fact.</p>

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

<p>Divorce—Quieting Title—Jurisdiction.—While in an ordinary proceeding for divorce the court is not authorized to dispose of the separate property of either party, that rule does not apply in a case where the action is dual in character, seeking not only a divorce but an adjudication as to the separate character of certain described property, and where the parties voluntarily submit the issue as to the property for determination, the court has jurisdiction to quiet the title of the rightful owner thereto.</p> <p>Id.—Decree—Failure to Order Conveyance.—Where the decree in an action for divorce, which also determined the character of property, has become final, its effect may not be avoided by the contention that it should have provided for a conveyance of the property by the holder of the legal title to the successful party.</p>

<p>Prohibition—Interference With Eights in Probate Proceeding— District Court of Appeal Without Jurisdiction.—A petition for an alternative writ of prohibition presented to the' district court of appeal and directed to a judge of the superior court commanding him to cease and desist from threatening, oppressing, or intimidating the petitioner in his efforts to enforce his alleged rights in a probate proceeding pending in said superior court, must be denied, since the writ pertains to a probate proceeding in which the district court of appeal would not have original appellate jurisdiction if an appeal were to be taken from any action therein.</p> <p>Id.—Points and Authorities.—A petition for a writ of prohibition must, under rule XXVI, section 2, of the supreme court, be accompanied with the points and authorities upon which the petitioner relies in support of Ms petition.</p>

<p>Municipal Corporations—Town Ordinance—Businesses Within and Without Town Limits—Discriminatory Regulation.—A town ordinance which discriminates unreasonably between cleaning and dyeing businesses conducted without the town limits and soliciting business therein and the same kind of an establishment with a fixed place of business within the limits of the town is illegal and void.</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, and from an order allowing alimony pending appeal. George E. Church, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. P. F. Gosbey, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contract—Purchase of Mining Property—Damages for Breach— Insufficient Offer of Performance—Nonsuit.—In this action for damages for breach of a contract to purchase mining property it is held that a nonsuit was properly granted on the ground that the evidence failed to show either a sufficient offer to perform the contract which was the basis of the action, or readiness or ability to perform the conditions thereof.</p> <p>Id.—Offer of Performance—Good Faith—Ability to Perform.—An offer of performance must be made in good faith and in such manner as is most likely under the circumstances to benefit the creditor, and under section 1495 of the Civil Code an offer to perform, whether made in writing or orally, is of no effect if the person making it is not at the time able to perform according to the offer.</p>

<p>Criminal Law—Infamous Grime Against Nature—Proof of Corpus Delicti.—In a prosecution for the commission of the infamous crime against nature, where the corpus delicti has been established by the testimony of the accomplice, the necessary corroboration may be furnished by' the confession of the defendant'.</p> <p>Id.—Reading of Code Section to Jury—Omission to Request—Refusal not Erroneous.—On an appeal from a judgment of conviction of the infamous crime against nature, the appellant cannot maintain that the court erred in refusing to read to the jury section 1111 of the Penal Code with respect to the testimony of accomplices, where no such instruction was requested.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County, and from an order denying a new trial. Z. B. West, Judge. Affirmed.</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>Street Law—Foreclosure of Liens—Bight of Assignee to Becover —Prima Facie Evidence.—In an action to foreclose liens for unpaid assessments for work done by plaintiff’s assignor in the due performance of an alleged contract for improvements on a public street pursuant to the provisions of the Vrooman Act, the introduction in evidence of the assessment-roll, the diagram and certificate of the city engineer, the affidavit of demand and nonpayment and the warrant signed by the street superintendent, is, in view of section 12 of the act, prima fame sufficient to prove the right of the plaintiff to recover.</p> <p>Id.—Sufficiency of Findings.—Findings that all the allegations of the complaint are true, and all of the allegations of the answer opposed thereto are untrue, are sufficient, where there are no affirmative defenses contained in the answer.</p> <p>Id.—Performance of Work Before Signing Contract—Exclusion of Proof Erroneous.—In an action for the foreclosure of liens for unpaid assessments for work done on a public street pursuant to the Vrooman Act, it is prejudicial error to refuse to permit the defendant to introduce evidence for the purpose of showing that the work was done before any contract was signed by the contractor. Id.—Failure to Appeal to Proper Board—Bight to Objection not Precluded.—The defendant is not estopped from making the objection that the contract was not signed in time because of Ms failure to appeal to the proper board within thirty days from the date of the warrant, since section 11 of the act does not apply to such a case.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District. Petitioner discharged.</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. Bernard J. Flood, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Vendor and Vendee—Contract for Sale of Mining Property—Fraud —Conflict of Evidence—Findings—Appeal.—Where in an action to recover a sum of money claimed to be due under an agreement of sale of mining property the evidence is conflicting but ample to support the findings upon the questions presented as to fraud in the procurement of the contract, the judgment will be affirmed.</p>

<p>Easement—Interference With Eight of Way—Damages.—Damages may be recovered for an interference with an easement of right of way whereby property of plaintiff has been depreciated in value.</p> <p>Id.—-Construction of Spur-traok—Impairment of Eight of Way— Elements of Damage.—In an action against a railroad company for impairment of a right of way by the construction and operation of a spur-track, it is proper for the jury in determining the damages to consider the damage from the operation of the trains as well as the damage from the laying of the track.</p> <p>Id.—Evidence of Damages.—In such action evidence of cars left standing on the tracks as an obstruction to plaintiff’s right of passage, the numbers of ears operated daily, and the increased danger to life aad limb is admissible.</p> <p>Id.—Measure of Damages.—In such action, the measure of damages is the difference between the value of plaintiff’s property before the construction and operation of the railroad and its inherent value thereafter.</p>

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

<p>Appeal—Insufficient Record.—Where an appeal taken under the alternative method from a judgment and order denying a new trial is predicated upon claimed insufficiency of the evidence to support' certain findings, and neither the findings nor any part thereof, nor any portion of the pleadings framing issues to which such findings would be responsive, is printed in the appellant’s brief, there is no record presented in the manner prescribed by law upon which the merits of the appeal can be considered.</p> <p>Id.—Printing of Record in Briefs.—Where an appeal is taken under the alternative method 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>

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

<p>MOTION to dismiss appeal. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Deed — Conditions — Construction.—Conditions in deeds are strictly-construed against t'he grantor with a view of preserving the estate granted, and evidence of violation of the conditions must be clear and satisfactory to justify a court in decreeing a reversion of the conveyance.</p> <p>[d.—Deed of Forest Land to University—Condition—Devotion to Forestry Investigation—Time for Beginning of Work—Silence of Conveyance—Reasonable Time.—Where a deed of forest land is made to a university upon the condition that the land shall be devoted to forestry investigation and research, connected with that branch of instruction as it is taught in the institution, and no time is provided in the deed for the beginning of the work, a reasonable time is to be allowed.</p> <p>Ed.—prohibition of Use of Land for Stock Range—Unauthorized Entry of Few Cattle.—A condition in such a deed that the land shall not be used for a stock range, but campers may keep thereon the necessary stock for their camping purposes, is not violated by the unauthorized entry of a few cattle at various times.</p> <p>Id. — Lack of Knowledge of Straying Cattle.—In determining whether the condition prohibiting the use of the land for a stock range was violated, the circumstance that the grantee had no knowledge of the cattle straying upon the land and that no damage was caused thereby, should be considered.</p> <p>Id.—Naming Premises—Compliance With Condition.-—A condition in such a deed that the lands and premises shall be known and called “Whitaker’s Forest,” without any attempt of specifieátion as to what should be done to carry out such condition, is sufficiently complied with by giving notice of the gift in the university publications under the heading of “Whitaker’s Forest.”</p>

<p>Contract—Claim Against Corporation—Personal Promise of Officer to Pat — Consideration.—An agreement on the part of an individual holding a claim against a corporation to accept from its president and one of its directors a lesser amount, constitutes a sufficient consideration to support the promise of such official .to personally make the payment.</p> <p>Id.—Statute of Frauds.—In view of the provisions of subdivision 3 of section 2794 of the Civil Code, such an agreement is not required to be in writing.</p>

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

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

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

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

<p>New Trial—Evidence op Action op Court—Minutes.—In granting a new trial, the order of the court entered upon its minutes is the only evidence of its action, and such order is to be measured by its terms, and not by the reasons which the court may give for it.</p> <p>Id.—Letter op Judge—Ground op Making Order—Record upon Appeal.—A personal letter from the trial judge to appellant’s attorney, written subsequent to an order in general terms granting a new trial, stating that only one ground was considered in making the order, namely, that deceased was guilty of contributory negligence, constitutes no part of the record on appeal, and cannot be used as a limitation of the general order.</p> <p>Id.—Order in General Terms—Presumption on Appeal.—If any of the grounds specified in the notice of motion for a new trial are sufficient to sustain the order granting the motion, the appellate court is bound to assume that the motion was granted on that ground.</p> <p>Id.—Insufficiency of Evidence—Specification as Ground—Conflict of Evidence—Discretion.—In an action for damages for death, where insufficiency of the evidence to justify the verdict is one of the grounds specified in a motion for a new trial, and the evidence is conflicting, an order granting a new trial is wholly within the discretion of the trial court, and its ruling will not be disturbed, in the absence of a showing of an abuse of such discretion.</p>

<p>Criminal Law—Bail Monet—Payment or Fine.—Where in a criminal action money belonging to a third party is deposited as bail for the appearance of the defendant, such money cannot be used to pay a fine imposed upon conviction, and where an offer to surrender the defendant into custody and a demand for the return of the money is made, it is the duty of the court to direct its return to the depositor.</p>

<p>Fraud — Promise Without Intention of Performance.—A promise made without any intention of performing it, in order to induce' another to enter into a contract, constitutes actionable fraud.</p> <p>Ib.—Contract for Exchange of Property—Intention not to Perform—Sufficiency of Evidence.-—In this action to cancel and rescind a contract for the exchange of real property it is held that there was sufficient evidence from which it may be justly inferred that at' the time of entering into the contract the defendant had no intention of performing his obligations thereunder.</p> <p>Id.—Evidence—Intention.—An intention not to perform a promise is a matter of inference from the fact's proven.</p>

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

<p>Certiobar.i—Ordbr in Excess or Jurisdiction—How Reviewed.—If a party has the right of appeal from an order made in excess of jurisdiction, he cannot have such order reviewed in certiorari proceedings.</p> <p>Id.—Order on Proceedings Supplemental to Execution—Review op.—An appeal lies from an order made on proceedings supplemental to execution, and such order is not subject to review on certiorari proceedings.</p>

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

<p>Marbiage—Annulment—Female Under Age op Legal Consent—Construction op Code.—An annulment of a marriage of a female is possible under subdivision 1 of section 82 of the Civil Code only when she was under the age of fifteen years at the time of the marriage, and the consent of her parents or guardian had not' been previously obtained.</p> <p>Id.—Wrongful Issuance of License to Female—Valid Marriage.— A marriage is neither void nor voidable because of the failure of the county clerk, either willfully or through mistake, to obtain the consent of a parent or guardian in issuing a license to a female under the age of eighteen years.</p>

<p>Accident Insurance — Statements in Application — Warranties.— Where there is a distinct agreement that an application for insurance is a part of the contract, and the statements in the application are expressly declared to be warranties, they are to be treated as such, and not merely as representations, and must be strictly true or the policy will not take effect.</p> <p>Id.—Signing op Application by Insured — When Unnecessary.— Where a policy of accident insurance provides that the policy with a copy of the application therefor signed by the insured, “and such other papers as are attached to or indorsed thereon,” shall constitute the entire contract between the company and the insured, ' it is immaterial that the application was not signed by the insured, where a copy is attached to the policy.</p> <p>Ed.—Knowledge op Statements in Application—Possession op Policy by Broker.—Possession of a policy of insurance by the broker who procured the same at the instance and request of the insured is as effectual as possession by the insured for the purpose of charging knowledge of statements contained in the application for the policy.</p> <p>Id.—Acceptance op Policy—Effect op.—An insured by accepting and retaining the policy without objection is bound by its terms, and the beneficiary cannot be heard to say that the insured did not read the policy or any of its provisions.</p>

<p>Vendor and Vendee—Contract for Sale of Beal Estate—Default of Vendee—Bights of Vendor.—When time is made of the essence of a contract for the sale and purchase of real estate, that provision will be enforced both in law and equity unless waived expressly or by the conduct of the vendor; and upon a breach of any of the conditions, such as failure to make a payment, the vendee, at' the option of the vendor, forfeits all right in and to the contract, and to all payments made, and the vendor may without notice to t'he vendee commence suit either to quiet title or in ejectment for the purpose of establishing judicially that the vendee has forfeited his rights to the contract and no longer has any interest in and to the property described therein.</p>

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

<p>Boad Improvement Bonds—Mandamus to Compel Delivery—When not Maintainable.—Where after a mandamus proceeding in the superior court to compel a county treasurer to deliver to the petitioner certain road improvement bonds which were claimed to be the property of the petitioner, an appeal was taken from the judgment awarding a part of the bonds to certain interveners, and thereafter, pursuant to an order of the court all of the bonds were delivered by the treasurer to the county clerk to hold until the final determination of the action, a writ of mandate will not lie, in view of the provisions of section 943 of the Code of Civil Procedure, to compel the court to make an order commanding the county clerk to deliver to the petitioner the portion of the bonds not included in those claimed by the interveners.</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—Flight of Defendant—Instruction.—An instruction that the flight of a person immediately after the commission of a crime of which he knows he is accused is a circumstance to be weighed by the jury as tending in some degree to prove a consciousness of guilt, and is entitled to more or less weight according to the circumstances of the particular case, is not to be taken as an instruction upon the evidence.</p> <p>Id.—Guilt of Defendant—Argumentative Instruction.—An instruction that before the jury could convict the defendant they must be satisfied not by the mere preponderance of the evidence but by evidence entirely convincing to themselves that the defendant was guilty, is argumentative, since it is only required that the jury be convinced of guilt beyond a reasonable doubt.</p> <p>Id.—Jury—-Change in Qualifications—Prior Crime.—The question of who among the citizens of the state shall comprise a jury is one of procedure, and a statutory change in the qualifications of jurors after a crime has been committed, is not obnoxious to the constitutional provision against ex post facto laws.</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>Accounting — Finding Against Partnership.—In this action for an accounting arising out of an alleged partnership, and for a judgment for such amount as might be found due, the evidence justified the finding that no partnership existed between the parties.</p>

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

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

<p>Workmen’s Compensation Act—Death op Employee—Injury Arising Out op Employment—Accident to Automobile on Way to Business Engagement.—In this proceeding before the Industrial Accident Commission for compensation for the death of an employee, who was killed by an electric ear colliding with an automobile which he was driving on his way to a place to which he and another employee had been sent on business of the employer, the commission properly held the deceased at the time he was injured was engaged in an act arising out of his employment.</p> <p>Id.—Unfamiliarity With Automobile—Contributory Negligence— Bight to Compensation not Barred.—In such case, where it appeared that the men had the right to travel in an automobile of their own choosing, and that the employer had laid no injunction upon them as to who should operate the machine, the right to compensation was not barred by the fact that the accident resulting in the death of the injured employee was due to his unfamiliarity with the kind of machine he was driving, since his driving a machine with which he was unfamilar was a mere act of negligence, and contributory negligence is no bar to an award of compensation being made.</p>

<p>Criminal. Law—Bape—Evidence.—In this prosecution for rape, the conviction was sufficiently established both by the testimony of the prosecuting witness and by the confession of the defendant.</p>

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

<p>Corporations—Stockholder’s Liability—Pledge op Bonds—Statute op Limitations.—Where a corporation, authorized to create a bonded indebtedness, issued bonds by pledging them 'as security for the payment of a note, the liability of the stockholders upon such ■bonds arose at the time of the pledge and not at the time of the sale of the bonds under the pledge, and an action against the stockholders commenced more than three years after the date of the pledge is barred by section 359 of the Code of Civil Procedure.</p>

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

<p>Trusts—Action by Heir to Declare Trust Void—Statute op Limitations.—The four-year statute of limitations runs against- an . action by an heir of a trustor to declare void a trust created by deed executed by the trustor in his lifetime.</p> <p>Id.—Estoppel op Heir to Attack.—Where the owner of a large amount of property more than a year before his death distributed to his wife and children such portions of his property as he desired them to have, and thereupon they all accepted the property given them and receipted for the same, and, in the receipt, expressed their understanding and assent that the allotment was in full of all their interest, present or future, in the estate of the husband and father, and that it was received as an advancement of their entire interest in and to his estate, one of these children was estopped from maintaining an action after the death of the donor to declare void a deed by which he gave a large amount in personal securities to a trustee in trust to pay the income to himself during his life and the principal to his grandchildren after his death.</p> <p>Ed.—Validity op Trust Instrument.—The trust instrument in such case was not rendered invalid by the indefiniteness of a provision that after the death of the trustor the whole or any part of the interests, dividends and annual proceeds should he applied toward the education of the grandchildren living at the date of the execution of the instrument, and that the trustee should “pay the same, either directly, or to his, her or their natural guardian or guardians without being required to see to the application thereof, or to require any accounting of the same, and apply the residue of such income, if any, in augmentation to the said trust fund.”'</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>Fraud—Rescission—Findings upon Conflicting Evidence.—In an action to rescind a conveyance for fraud, where the records show conflicting evidence, the findings for the plaintiff will not be disturbed on appeal.</p> <p>Id.—Offer to Restore Consideration.—An offer by the plaintiff in the language of the statute to restore “everything of value or otherwise” received from the defendant was sufficient.</p> <p>Id.—Decree, Form of.—It was not necessary that the court in its decree for the plaintiff should provide for the reimbursement of the defendant for his expenses in the upkeep of the property when the defendant introduced no evidence on that point.</p> <p>Trial—Denial of Continuance — Stipulation as to Testimony of Witnesses—Discretion of Trial Court.—The trial court did not abuse its discretion in denying a continuance asked for by defendant to enable him to meet the allegations of an amendment to the plaintiff’s complaint, where the plaintiff stipulated at the trial that defendant’s witnesses, if called, would testify as stated by counsel for defendant.</p>

<p>Lease—Guaranty of Rent—Ambiguity in Description of Premises— Parol Evidence.—In an action against guarantors of rent under -a lease, parol evidence was properly admitted to explain an extrinsic ambiguity in the description of the leased premises.</p> <p>Id.—Principal and Agent—Knowledge of Agent.—In such action, knowledge of the agent of the guarantor as to what property was being leased was the knowledge of the defendants. - Id.—Other Action Pending.—In such ease the pendency of another action by the lessor against the lessee for rent is not a bar against am action by the lessor against the guarantors.</p>

<p>APPEALS from judgments of the Superior Court of Orange County, and from orders denying motions for new trials. W. H. Thomas, Judge. Affirmed.</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. Daniel G. Deasy, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal — Findings — Weight op Evidence.—Where the findings on which a judgment in favor of the defendant is based are supported by the evidence, the judgment will not be disturbed on appeal, though the evidence would have supported findings in favor of the plaintiff.</p>

<p>Physicians and Surgeons—Malpractice—Verdict Supported by Evidence.—In this action by a physician for services, a verdict for damages in a cross-action for malpractice was held to be not without substantial support in the evidence.</p> <p>Id.—Evidence—Expert Testimony—Hypothetical Question—Facts not Included.—Considerable latitude must be allowed in the choice of facts as the basis of hypothetical,questions, and if the question is fair and understandable by the witness it is not to be excluded because it does not comprehend all the important facts in the ease.</p> <p>Id.—Form op Objection.—One desiring to insist on the objection to a hypothetical question that it fails to include essential facts should specify the facts which ought to have been included.</p> <p>Id.—Bes Gestae—• Statements op Attending Physicians — Declarations.—Statements of the attending physicians at the time of the treatment are admissible as part of the res gestae, and may be included in a hypothetical question, but declarations that were no part of the treatment should be left out, as they are incompetent.</p> <p>Id.—Cross-examination — Prejudicial Statement by Counsel. — Where in a cross-action for malpractice against a physician, one of Ms witnesses, a member of a county medical association, was asked whether the cross-complainant was not a member of the same association, the statement of counsel in reply to inquiry by the court that the purpose of the question was to show whether or not “the association protects any member in litigation brought against him in a case of the present character,” was likely to be prejudicial.</p> <p>Id.—Illustrating Testimony — Human Skeleton.—Refusal by the court to allow the appellant physician to illustrate his testimony by reference to a human skeleton violated no legal right, the matter being left to the sound discretion of the court, which was not abused by the refusal.</p> <p>Id.—Instructions—Degree of Skill and Learning Required.—A requested instruction to the effect that whether the defendant physician was negligent in his treatment of the patient was to be determined by finding whether or not he possessed and used that degree of skill and learning possessed and used by physicians of the same school practicing in the same or similar localities, lays down a standard clearly established by the authorities, and might well have been given by the trial court.-</p> <p>Id.—Instruction Properly Refused.—The court properly refused to instruct the jury to the effect that, as to whether the physician in breaking up certain adhesions in the knees of t'he patient exercised ordinary care and skill in his method and in the amount of force used therefor, were questions that the jury must look solely to the testimony of the medical and surgical witnesses to determine.</p> <p>iId.—Action for Physician’s Compensation—Cross-action for Malpractice-Instruction Improperly Refused.—In this action for a physician’s services, and for room, board and nurse hire, in which the defendant brought a cross-action for malpractice, the two actions having been tried together, and the second action treated as a cross-complaint, the court erred in refusing to instruct the jury that the complainant physician was entitled to recover the reasonable value of the use of "the room and of board and nurse hire, regardless of the question whether he exercised ordinary care and skill in the treatment of the patient.</p> <p>,Id.—Erroneous Instruction.—The trial court erred in instructing the jury in such case to the effect that it was not necessary for the defendant and cross-complainant to prove gross culpability on the part -of the plaintiff, but proof of any failure to exercise proper care on the part of the plaintiff, or any carelessness or negligence in the discharge of the duty assumed by plaintiff, was sufficient to enable the defendant and cross-complainant to recover in this action, if the jury believed from a preponderance of the evidence that plaintiff was unskillful or careless or negligent, and that the cross-complainant was injured thereby.</p>

<p>Banks and Banking — Checks Signed in Blank — Fraud or Depositor’s Employee—Fictitious Payee—Negligence or Drawer. Where a depositor having a commercial account in a bank signed a number of checks “in blank” and delivered them for use in his business to his bookkeeper, who, after leaving his employ, retained one of the checks, filled in the date, the amount, six hundred dollars, and the name of a fictitious payee, and procured it to be indorsed by another with this fictitious name, and negotiated! it t'o another bank which paid it and presented it through the clearing-house to the bank on which it was drawn, and the latter bank paid it, the fact that the name of the payee was fictitious did not render the bank on which the cheek was drawn, and by which it was ultimately paid, liable for the amount to the depositor, since his own negligence was the proximate cause of the loss.</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>Rescission — Sale op Corporate Stock — False Representations' — Ownership op Patent.—Where in an action to recover upon a contract the agreed price of certain corporate stock, the defendant set up in his answer fraudulent representations of the plaintiff and his associates, and sought to have the contract rescinded .on that and other grounds, statements by the plaintiff that he and his associates owned a certain device exhibited to the defendant and letters patent issued by the United States therefor, and that they had investigated the patent, and that it had already been established in an infringement suit, were affirmations of fact and not mere expressions of opinion.</p> <p>Id.—Judgment Supported by Finding.—A finding by the court that such representations were untrue was sufficient to support a judgment for the defendant.</p> <p>Id.—Finding op Want op Consideration.—A finding of the trial court in such case that the sole consideration of the contract was the pretended ownership of a patent which the corporation did not own, was also sufficient to support the judgment.</p> <p>Id.—Exclusion op Rebuttal Evidence.—The trial court did not err in refusing to permit the plaintiff to testify in rebuttal, when the testimony offered was merely contradictory of evidence of the defendant and his witnesses.</p> <p>Id.—Hearsay Evidence.—The court did not err in receiving on behalf of the defendant evidence relating to conversations between certain persons and defendant relative to the representations of the plaintiff, which conversations were objected to as hearsay, since the record showed that the persons making the statements were the agents of the plaintiff.</p>

<p>Pleading—Fictitious Name'of Defendant—Waiver by Answer.—A defendant, sued by a fictitious name, waives the right to insist on the filing of an amended complaint by answering in his proper name.</p> <p>Conditional Sale or Lease of Personal Property.—In this action in claim and delivery for certain property whether the goods were leased by the defendant from the plaintiff or were purchased conditionally, the title remained in the plaintiff, who, upon default by the defendant in making any payment provided for became entitled to a return of the property, whoever might have possession of it.</p> <p>Claim and Delivery — Possession by Tenant — Eight of Action Against Landlord.—An action in claim and delivery will lie against a landlord for property in the possession of his tenant where the landlord resists the delivery of the property.</p>

<p>Criminal Law—Bape—Sufficiency of Information.—An information charging that the defendant on or about a certain date, and in a certain county, prior to the filing of the information did willfully, unlawfully and feloniously, and with force and violence, attempt to have and accomplish an act of sexual intercourse with and upon the person of a named female, who was not then and there the wife of the defendant, without the consent and against the will of said female (naming her), and she, the said female, then and there resisted the attempt of said defendant to accomplish the said act of sexual intercourse, stated a public offense.</p> <p>Id.—Erroneous Discharge of Jury—Trial—Mandamus.—Where on the trial of a criminal prosecution the trial court erroneously sustained an objection to the sufficiency of the information and discharged the jury from further consideration of the case, mandamus was a proper remedy to compel the trial court to vacate its order and to proceed with the trial to verdict and judgment.</p>

<p>Municipal Corporations — Streets —■ Ejectment — Right to Sue.— Under section 850 of the General Laws of California, Act 2348, an unchartered municipal corporation of the sixth class has the right to bring in its own name an action to eject persons occupying a part of a public highway therein and to recover damages for the use and occupation thereof.</p> <p>Id.—Adverse Possession Negatived.—In such action a finding that the territory in question was and is a public street would make it impossible for defendant to have obtained title to any portion of the street by adverse possession, since no right can be acquired against the public by adverse possession.</p> <p>Id.—Dedication.—Where an owner of land files a map thereof showing it to be divided into streets, alleys, etc., and then sells lots with reference to such map, he thereby makes an irrevocable dedication of the space represented on the map as streets to the use of the public.</p> <p>Id.—Acceptance by Town Authorities.—In such case acceptance by the town authorities is unnecessary.</p>

<p>APPEAL from an order of the Superior Court of Sonoma County, vacating and setting aside an order granting a new trial. Emmett Seawell, Judge. • Affirmed.</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—Appeal—Discharge of Jury Before Verdict—Nonappealable Order.—An order discharging a jury in a criminal prosecution before verdict and while the ease was yet on trial, and the people were attempting to introduce their evidence, is not appealable under section 1238 of the Penal Gode.</p>

<p>APPEALS from orders of the Superior Court of the City and County of San Francisco, setting aside judgments.. E. P. Shortall, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contract—Sales on Commission—Findings Supported by Evidence.. In this action on an oral contract by a salesman for the sale of automobile trucks on commission, the evidence is held sufficient to support a verdict that under the contract the plaintiff was entitled to commission on a sale brought about by him although the defendant received the order from another.</p>

<p>Street Improvements — Oakland Charter — Statutory Procedure— Reference to Particular ¡Statute.—Under section 51 of the charter of the city of Oakland, authorizing the council to proceed, in the •matter of street improvements, under the provisions of the general laws of the state in force at the time of the improvement, it is not necessary that the council should" pass a resolution expressly providing that it is proceeding under any certain statute.</p> <p>Id.—Foreclosure of Assessment Lien — Agreement Between Contractor and Street Superintendent.—In an action to foreclose the lien of an assessment for a street improvement, the validity of the lien is not impaired hy an oral agreement between an officer of the contractor and the street superintendent to which the city council was not a party, and of which it did not know, and upon which it did not act.</p>

<p>Fire Insurance — Amount op Loss — Assent to — Validity op Contract.—A provision in a fire insurance policy that the insurer shall be deemed to have assented to the amount of the loss claimed by the insured in a preliminary proof of loss required by the policy, unless, within a specified time, the insurer shall notify the insured in writing of its disagreement with the amount claimed, and also of the amount admitted by the insurer, is a binding condition of the contract, and cannot be viewed in any sense as directory.</p> <p>Id.—Failure to Give Notice op Disagreement.—Where, in an action on a fire insurance policy containing such a provision, the preliminary proof of loss stated, among other things, the value of the property and the fact that the loss was total, and the only exception by the insurer was a letter to the insured stating that the insurer “was criticising section ‘C ” (the section of the proof of loss containing the statement as to the amount of damage suffered) and was “also criticising the elimination of the date of the fire,” such letter did not notify the insured of the insurer’s partial or total disagreement with the amount stated, and the insurer was deemed to have assented to the amount of the loss claimed.</p> <p>Id.—Evidence—Negotiations por Adjustment—Objections Properly Sustained.—In such action the trial court was correct in sustaining objections to an offer made by the defendant insurer to prove that, prior t'o the filing with it of the verified preliminary proof of loss, it had had negotiations with the selling agent and the treasurer of the plaintiff (a corporation), and that negotiations were in progress looking to an adjustment of the amount of the loss, since in making that offer, the defendant did not offer to show that the persons with whom it was dealing had any authority, and from the character of the offices held by them there would be no presumption that they possessed authority to make any binding engagement in that behalf.</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 orders refusing a new trial, and denying a motion in arrest of judgment. George H. Cabaniss, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Certiorari—Writ of Review—Interest of Applicant.—Under section 1069 of the Code of Civil Procedure, providing that an application for a writ of review must be made on the verified petition of the “party beneficially interested,” where the application is made by a private party, his interest must be of a nature which is distinguishable from that of the mass of the community.</p> <p>Id.—Goods Stored in Warehouse—Seizure Under Search-warrant— President of Warehouse Company —Lack of Beneficial Interest.—The president of a warehouse company is not a party beneficially interested, within the purview of said section 1069 of the Code of Civil Procedure, so as to entitle him to become an applicant for a writ to review'the proceedings of a police court by which goods of a third party, stored in the warehouse of the company, were seized under a search-warrant issued out of said police court.</p> <p>Id.—Defective Return — Striking Answer from Files.—Where in answer to a writ of review issued out of a superior court and directed to a judge of a police court, requiring him to certify a transcript of the record in certain search-warrant proceedings, no such return was made, but t'he judg'e of the police court appeared by verified answer in the action for the writ, setting out in narrative form the history of the case, and alleging that “no further proceedings have been bad in said police court other than as set forth in the petition for a writ of review,” such purported answer did not constitute a return to the writ, and the superior court properly struck the answer from the files.</p> <p>Id.—Lack of Jurisdiction in Superior Court.—The superior court, in such ease, acted in excess of its jurisdiction in proceeding under the writ of review with no record before it.</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—New Trial—General Order Granting—Presumption as to Ground.—Where one of the grounds upon which a motion for a new trial is made is the insufficiency of the evidence to justify the verdict, and the new trial is granted by the trial court without specifying the ground of its action, the appellate court will presume in support of the order that it was made upon the ground of the insufficiency of the evidence.</p> <p>New Trial—Authority op Trial Court.—The superior court is authorized to grant a new trial if in its opinion the verdict is against the weight of evidence, and its action in that respect can be reviewed on appeal only when its discretion has been abused.</p>

<p>Mortgage—Foreclosure—Finding—Conflict of (Evidence.—In this action for the foreclosure of a mortgage, in which the only issue of fact was found by the trial court against the defendant on a conflict in the evidence, the appellate court was not at liberty to disturb the finding.</p>

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

<p>Sales — Action for Price of Horses and Mules — Conflict of Evidence.—In this action for the price of certain horses and mules, purchased by the defendant for the allied powers in the war against Germany, the defense being that the sale was conditional upon approval and acceptance of the stock by representatives of the allied powers, findings by the trial court on conflicting evidence that the sale was absolute and not conditional, were sufficiently supported, and were therefore binding on the appellate court.</p>

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

<p>Accident Insurance—Death Resulting from Exertion—Not “External” “Violent” or “Accidental” Means.—In an action to recover for the death of a person who was insured under an accident insurance policy, by the terms of which he was insured against “death or disability while sane, and resulting directly and independently of all other causes from bodily injuries, effected through external, violent and accidental means,” proof that the death of the insured resulted from an exertion in assisting in pulling a swing-pipe out of a sump-hole, which had become clogged therein, during which effort the insured did not slip nor lose his hold nor become unbalanced, and that neither the pipe nor anything else struck him in any way, but that the entire operation was carried on precisely in the manner intended by the insured, fully sustained the finding of the trial court that the death did not result directly and independently of all other causes from bodily injuries effected through external, violent and accidental means.</p> <p>New Trial—Error in Granting.—In such case the trial court erred in granting a new trial.</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>Municipal Corporations — Public Officer — Designation of Police Officer of San Francisco—Lack of Duress or Coercion.—Where a San Francisco police officer, acting upon the suggestion of the board of police commissioners applied for and obtained leave of absence for three months without pay, for the purpose of engaging temporarily in business, and thus working a temporary reduction in the cost of maintaining the department during the critical period following the earthquake and fire, upon the assurance that the board, on application, would extend the time for one year further, and before the year expired he was recalled to duty, under the alternative of either returning or resigning, but being unable to return to duty, owing to inability to dispose of the business in which he had engaged, he resigned, such resignation was not induced by duress or coercion, but was voluntary and worked a final severance of his relations as a police officer with the department.</p> <p>Id.—Duress and Coercion—Unlawful Action Necessary.—Under the definition of duress in sections 1569 and 1570 of our Civil Code, and under the long-accepted definitions of the terms “duress” and “coercion,” in order for the action of the board of police commissioners, in presenting to such police officer the alternative of either resigning or returning to his post of duty to have savored of duress or coercion, such action must have been unlawful.</p> <p>Id.—Mandamus—Reinstatement of Police Officer—Laches.—Where such police officer sought reinstatement by mandamus, and his petition showed delays of nearly five years on his part in moving the police department to have his resignation set aside, his remedy was barred by laches.</p>

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

<p>Mechanic’s Lien—Notice of Completion—-Time foe Filing Claim of Lien.—"Where a notice of completion is filed under the code provisions, the time for filing claim of lien may run from the date of the filing of the notice of completion, and not necessarily from the actual date of completion or acceptance or occupancy of the building.</p>

<p>Novation—Necessity op Pleading.—Novation is a new matter of defense or discharge which must be specially pleaded.</p> <p>Appeal—'Cross-examination—Waiver of Objection.—Where the trial court sustained an objection to a question to plaintiff by defendants on cross-examination, but stated that it might be matter of defense which defendants could prove as part of their case, the defendants, who did not seek to avail themselves of this permission, cannot complain on appeal.</p>

<p>Municipal Corporations—Ordinance—Pleading.—Under section 459 of thA Code of Civil Procedure, in pleading an ordinance it must be set out in liaec verba, or by reference to its title and the day of its passage.</p> <p>Id.—Action to Becoyer Taxes Paid Under Protest—Invalidity of Ordinances as Ground—Failure to Set Out.—Where in an action to recover taxes paid under protest on the ground of the invalidity of the ordinances levying the same, the complaint neither set the ordinances out in haee verba nor by reference to their titles and dates of passage, but merely referred to them as being numbered 1208 and 1209, and asserted that they were adopted on a date mentioned, the trial court was in no position to declare the legislation valid or invalid, and, upon submission of the case on the record, it was justified in refusing the relief sought.</p> <p>Id.—Judgment—Default—Application for Judgment.—While in the nature of an action for money had and received, such action is based upon the statute, section 3819 of the Political Code, which takes the place of the ordinary action for money had and received, and the clerk, therefore, is not authorized to ent'er judgment under subdivision 1 of section 585 of the Code of Civil Procedure, but on default in such ease application must be made for the relief demanded, under the second subdivision of said section 585.</p> <p>Id.—Judgment by Clerk—Vacating.—The court was justified in vacating a judgment entered by the clerk in such ease.</p>

<p>Adverse Possession—Title Based on Written Instrument—Findings Supported by Evidence.—In this action to quiet title, the evidence discloses all the requisites of section 323 and of the proviso of section 325 of the Code of Civil Procedure essential to the establishment by the plaintiff of title to land by adverse possession based upon a written instrument.</p> <p>Id.—Title of Defendant Barred.—The evidence also shows that the title claimed by defendants was lost by the bar of section 318 of the Code of Civil Procedure long prior to the commencement of the action.</p> <p>Id.—Land Usually Cultivated or Improved—Meaning of Term.— The requirement of the statute that the land be usually cultivated or improved means that it should be cultivated or improved in the manner or to the extent usual in the case of similar property. If so improved, it is not necessary that it should- be either cultivated or inclosed.</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. Daniel C. Deasy, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Pleading—Amendment—Discretion.—Where an amended complaint showed that the action was not, as it purported t'o be, an action to quiet title, that there was a joinder of several causes off action, all obnoxious to general demurrer, that alleged fraudulent acts charged were not only all barred by statute of limitations but were all on their face stale claims, and that although the plaintiffs averred that they did not discover the matter set forth in their complaint until a recent date it was clear that for several years they had been sufficiently apprised thereof to put them upon inquiry, the trial court very properly ordered judgment for the defendants upon sustaining their demurrer to the amended complaint and did not abuse its discretion by refusing the privilege of further amendment.</p>

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

<p>Mortgage — Action to Foreclose — Pleading — Error in Claim for Principal and Interest—Mistake Without Prejudice.—In an action to foreclose a mortgage given to secure the payment of a promissory note, an error in the complaint in claiming too much for interest and too little for principal is without prejudice, where the aggregate amount is correct.</p> <p>Id.—Specific Allegation Unnecessary.—In an action to foreclose a mortgage given to secure the payment of a promissory note, a specific allegation in the complaint of the amount due for principal and interest was unnecessary. It was sufficient to aver that the whole amount was owing and unpaid.</p> <p>Id.—Pleading—Demurrer for Uncertainty—Bill of Particulars.— The payments made upon a promissory note and the balance due are but items of an account, which, if the defendant wants, he can demand in the form of a bill of particulars, but a demurrer for uncertainty is not the remedy.</p> <p>Id.—Amendment at Trial.—Where in an action to foreclose a mortgage the trial court after the evidence was all in permitted the complaint to be amended by increasing the amount claimed for principal by five hundred dollars, and reducing the amount claimed for interest by the same amount, there was no merit in the objection that such amendment was made without notice to the defendant or service upon him, it being presumed that he was served, the contrary not being made to appear by bill of exceptions.</p> <p>Pleading—Amendment to Conform to Proofs—Notice and Service Unnecessary.—Where an amendment is made to make the pleadings conform to the proofs it is not necessary that notice thereof be given or that such amendment be served.</p> <p>Id.—Correction of Clerical Error—Harmless to Defendant.—In an action to foreclose a mortgage an amendment to the complaint made after the evidence was all in to correct a clerical error in the amount claimed for principal and interest, the claim being five hundred dollars too little for principal and five hundred dollars too much for interest, but the aggregate amount being unchanged, the amendment did not in the least' affect the cause of action and could not possibly have prejudiced the defendant.</p>

<p>Contract—Sale of Tractor—Warranty—Evidence.—In this action on a promissory note given as part of the purchase price of a tractor, sold under a written contract, in which the only warranty was that the tractor, when delivered, would be “in good working order and free from any latent defect arising from poor workmanship,” parol evidence was inadmissible to prove representations by an agent of the plaintiff as to the capacity of the machine in the matter of driving threshers, the offer of such evidence being an attempt to add an additional warranty to that expressed in the written contract.</p> <p>Id.—Express Warranty Defined.—An express warranty means simply an undertaking or covenant that the thing which is the subject of the contract is or is not of a certain quality or capacity.</p> <p>ID,—Fraudulent Bepresentation as Warranty.—A representation or assurance as to the capacity of a machine was not changed in its significance as a warranty by reason of the fact that it was claimed to have been fraudulently given.</p> <p>Id.—Written Agreements—Presumption.—Where the parties have reduced their agreement to writing, they are conclusively presumed to have exhibited therein all the covenants and conditions as to the quality and capacity of the thing sold which are binding on the vendor, and no additional warranty can be ingrafted on, or added to, one that is written.</p> <p>Id.—Fraud Vitiating Contract.—Although neither party is precluded from showing fraud that might vitiate their apparent contract, the fraud must relate to and be connected with the agreement which is the basis of the action.</p> <p>Equity—General Verdict of Jury.—In an equity case a general verdict rendered by a jury is not determinative of the pleaded issues, and a failure to find upon said issues is error requiring reversal of the judgment.</p> <p>Trial—Legal Issues—Special Findings Unnecessary.—In this action, allegations in a so-called cross-complaint of fraudulent representations were immaterial; but it stated a defense by alleging that it was not true as warranted in the written contract that the tractor "was in good working order and free from latent defects arising from poor workmanship or the use of improper and defective materials.” The only material issues were, therefore, of legal cognizance and there was no necessity for specific findings by the court.</p>

PROCEEDING in Certiorari to review an order of the Superior Court vacating the discharge of an administratrix. J. C. Rives, Judge. Order annulled. The facts are stated in the opinion of the court.

<p>Schools—Warrant Against School Funds—Duty op Auditor.—The duty of the auditor to draw a warrant against the school funds of a district is limited under section 1543 of the Political Code to cases where “he allows said demand.”</p> <p>Id.—Warrants in Favor op Teachers—-Construction—Section 1543, Political Code.—Section 1543 of the Political Code, which, as amended, transfers the duty of drawing warrants from the superintendent of schools to the county auditor, must be read together with section 1700 of the same code which provides that “no warrant must be drawn in favor of any teacher, unless the officer whose duty it is to draw such warrant is satisfied that the teacher has faithfully performed all the duties prescribed in section sixteen, hundred and ninety-six.”</p> <p>Id.—Auditor’s Duty Discretionary.—The duty of the auditor with respect to demands of teachers is discretionary and not merely ministerial.</p> <p>Mandamus—Enforcement of Discretionary Power—Abuse of Discretion.—Where the officer’s duty in such respect is discretionary, mandamus will not lie to compel Mm to draw the warrant unless an abuse of discretion has been shown.</p> <p>Id.—Burden of Showing Abuse of Discretion.—In a proceeding by mandamus to enforce a particular action by a public officer, where the official duty is discretionary, the burden of showing abuse of discretion is upon the petitioner.</p> <p>Id.—Pleading — Demurrer Properly Sustained Without Leave to Amend.—In this proceeding to compel a county auditor to allow and indorse and to draw a warrant for a claim wMch had been allowed by the county superintendent of schools, where the petitioner’s complaint did not show what service or other consideration was the foundation of his claim, and did not allege any fact from which an abuse of discretion could be inferred, the trial court did not err in sustaining a demurrer to the petition without leave to amend.</p>

<p>Vendor and Vendee — Procurement of Loan for Purchaser — Bead Estate Broker’s Authority—Implied Agreement as to Title. Where a vendee, who had contracted to purchase real property, had, in order to finance the purchase, authorized the brokers of the vendor, through whom he made the purchase, to procure a loan for him, on the security of the purchased property and other property then owned as community property of himself and his wife, his authorization to the brokers to procure such loan, carried with it the necessary implication that he would furnish as to both properties a good and merchantable title for the purposes of such loan.</p> <p>Id.—Agreement to Procure Loan—Performance.—In such case the' agreement of the brokers to procure such loan for the vendee was performed when they had found a bona fide lender ready and willing and able to consummate the loan upon such sufficient title as the vendee had at the date of the agreement both as far as they were concerned, and also as far as their principal, the vendor, was concerned, although the transaction was not consummated because the vendee’s wife caused a homestead to be declared on the community property, which was to be given as part of the security for the loan, and refused to execute the papers necessary to consummate the loan.</p> <p>Id.—Breach of Agreement — "Vendee’s Liability.-—In such case the failure to consummate the purchase was a breach of the agreement by the vendee, from which the legal consequences of a vendee’s breach of an agreement for the purchase of real estate must flow.</p> <p>Id.—Promissory Note on Account of Purchase Price—Bight of Vendor to Betain.—Where the vendee in such case had executed to the vendor a promissory note in lieu of a deposit in cash on account of the purchase price, the vendor had the same right to retain to his own use the promissory note as he would have had to retain the cash deposit, especially as it was expressly stipulated in the agreement that in the event of the vendee’s “failure to comply therewith,” the vendee should “forfeit the deposit herein paid.”</p> <p>Id.—Consideration for Promissory Note.—The contention of the vendee, in such case, that the note was without consideration, and therefore void, is without merit, since the agreement itself and the detriment thereby suffered by the vendor through the prevention of making a sale of his land to another during the life of said agreement, would constitute a sufficient consideration for the note.</p>

'APPLICATION for a Writ of Supersedeas to secure the return of money collected under a writ of execution which had been stayed. Money ordered returned.

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

<p>APPEALS from a judgment and from an order of the Superior Court of Nevada County. George L. Jones, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

Sidney M. Reeve, Judge thereof, to proceed with the hearing and determination of a proceeding before it under section 15 of the juvenile court law. Granted; The facts are stated in the opinion of the court.

<p>Place op .Trial—Action to Compel Reconveyance of Real Property —Corporation—Suit by Stockholder.—A suit by a stockholder for the benefit of a corporation to compel the reconveyance to the corporation of re'al property alleged to have been conveyed by the corporation to a bank by fraud, is in the nature of a real action, which under the provisions of section 392 of the Code of Civil Procedure, . must be tried in the county where the real estate in question is situated.</p> <p>Id.—Prayer for Accounting.—In such action the seeking of an accounting by the plaintiff on behalf of his corporation does not make the action one involving personal property.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. iWm. D. Dehy, Judge. Denied. The facts are stated in the opinion of the court.

<p>Promissory Note—Action by Pledgee—Assignment—Evidence.—In an action by a bank as pledgee of a promissory note, the production in evidence by the plaintiff of an instrument' in due form, whereby another bank, which formerly owned the note sued on, purported to transfer to t'he plaintiff all its notes and assets, was sufficient proof of plaintiff’s ownership.</p> <p>Id.—Pledge Agreement—Obligations Secured by.—A statement in a promissory note executed to a bank to the effect that the maker pledged as collateral security for the payment of this “or any other liability of mine to said bank when due or to become due or may be hereafter contracted,” the promissory note sued on and certain shares of stock described, was sufficient to cover past due obligations.</p> <p>Id.—Defense of Maker of Pledged Note.—The maker of a note held as a pledge t'o secure the payment of other notes is not concerned with the manner in which those other notes were acquired by the pledgee, in the absence of any claim that the maker of the latter notes had any ground of defense against them.</p> <p>Id.—Pledgee not an Assignee for Collection.—A pledgee of a promissory note is not to be regarded merely as an assignee for collection, but is by reason of his interest as pledgee an actual holder for value. Id.—Negotiability of Note Secured by Collateral.—The bare fact that the pledged mote was it'self secured by a pledge of shares of stock given by the maker to the payee, even if known to the plaintiff, did not affect the negotiability of the note.</p>

<p>Negligence—Action for Damages fob Death—Master and Servant— Authority of Servant to Admit Visitor.—In this action for damages for the death of plaintiff’s wife, who was killed by falling through an elevator shaft, while visiting her husband at defendant’s premises, where he was employed, the evidence shows that an employee of the defendant, who took the place of defendant’s store manager when the latter was absent, had authority to admit the deceased to the premises for the purpose for which she came there, and was also authorized to place her in charge of another employee for the purpose of taking her up in the elevator.</p> <p>Id.—Licensor’s Liability for Injury to Licensee.—The rule that a mere licensee cannot recover for injuries caused solely by the unsafe condition of the licensor’s premises does not apply to a case where the licensee is upon the premises of a defendant and is injured by an overt act of negligence committed against him by the owner of the premises. In such case the licensor is responsible.</p> <p>Id.—Active Negligence—Question for Jury.—In the case at bar the trial court in determining as matter of law that the acts of the employees and their failure to warn the deceased did not constitute negligence of an active or overt character erred. Upon the evidence presented the plaintiff was entitled to have the question of defendant’s negligence determined by the verdict of the jury under suitable instructions.</p> <p>Id.—Contributory Negligence.—In the case at bar it does not appear from the facts that the deceased was guilty of contributory negligence.</p> <p>Id.—Evidence—Error in Directing Verdict for Defendant.—Under the evidence in the present case the trial court was not justified in directing a verdict for the defendant.</p>

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

<p>MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Charles Wellborn, Judge. Appeal dismissed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sales — Action by Purchaser to Kecover Money Paid — Finding ■Supported by Evidence.—In this action by the purchaser of an automobile to recover money paid on account of the purchase price on the ground that the car delivered was second hand, and not a new one as contracted for, the evidence is held sufficient to support findings for the plaintiff.</p> <p>Id.—Appeal — Objections to Evidence.—Objections t'o evidence on grounds advanced for the first time in the appellate court cannot be considered.</p> <p>Id.—Fraud and Deceit.—Statements of a representative of the seller held to constitute fraud and deceit.</p> <p>Id.—Credibility of Witness — Conflicting Testimony.—Where the testimony of a representative of the defendant was evasive and elusive, the trial court was justified in. resolving a conflict in favor of the plaintiff.</p> <p>Id.—Fraudulent Representations and Matters on Opinion — Non-applicability op General Rule.—The rule that where parties do not occupy confidential relations to each other, one of them cannot predicate fraud on t'hef statement of the other as to facts equally kn-own to both or upon statements which are merely expressions of opinion, has no application to the case at bar, in which the agent of the defendant falsely represented that the car was a new ear, and falsely represented that a new contract which he induced the plaintiff to sign was a similar contract to one previously signed by her.</p> <p>Id.—Intent to Deceive — Presumption.—Under section 1963 of the Code of Civil Procedure the court was not bound by the defendant’s testimony that he did not intend to deceive.</p> <p>Id.—Delivery and Acceptance op Goods—Right to Rescind—Waiver. Where the plaintiff accepted an automobile in the evening relying on defendants’ false representation that it was new, and without an, opportunity for full examination drove it some distance, but upon the discovery next morning of the fraud returned the ear and demanded the return of her money, her right to rescind was not waived.</p> <p>Id.—Interest—From What Time Recoverable.—In this action to rescind a contract and recover money paid under it, nothing was due until rescission or demand for repayment, and interest prior to that time was not allowable.</p>

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

<p>Vendor and Vendee—Contract por Sale op Beal Property—Improvements, Agreement as to Ownership.—An agreement in a contract for the sale of real property, that all buildings and improvements then on the property, or thereafter to be placed thereon, shall become a part of the realty and shall not be removed therefrom, but shall be the property of the vendor until full performance of the contract by the vendee, constitutes a valid contract and is enforceable.</p> <p>Id.—General Bule Independent op Contract.—The general rule, independent of any contract between the parties, is that articles annexed or structures erected by a vendee of land in possession by virtue of his contract of purchase, who has not yet obtained title to the premises, cannot be removed by him without the consent of the vendor.</p> <p>Id.—Bemoval op Buildings by Vendee—Bemedy—Claim and Delivery.—Where the vendee in violation of Ms contract had separated and removed from the purchased land, a house, barn, and windmill, and the buildings were on the public highway when the vendor commenced his action, they constituted personal property, and were recoverable by action of claim and delivery.</p> <p>Id.—Bescission by Vendor Unnecessary.—In such ease rescission of the contract by the vendor or declaration by him of the forfeiture of the vendee’s right to further possession of the property, for default in payment of the purchase money, was not necessary as a condition precedent to the action.</p>

<p>Claim and Delivery—Corporation Stock—Pleading—Complaint Defective — Omission to Describe Certificate.—In an action in claim and delivery to recover possession of forty-three shares of the capital stock of a corporation, a complaint, which omits to describe or in some appropriate way identify the certificate representing the shares, is demurrable for failure to state a cause of action.</p> <p>Id.—Defect not Cured by Answer.—In such action the defect is not cured by the answer of a defendant admitting that it has in its possession forty-three shares of t'he capital stock of the corporation mentioned.</p> <p>- Id.—Defective Pleading not Cured by Evidence.—Nor was the defect in such complaint cured by the introduction of evidence showing that the stock referred to in the complaint was evidenced by a certificate, where the defendants objected to the introduction of any evidence on the ground of the failure of the complaint to state a cause of action.</p> <p>Id.—P'ossession in Defendant Essential.—The action of claim and delivery is not available or appropriate against defendants, as to whom it is not charged in the complaint that they have actual or constructive possession of the property sought to be recovered.</p> <p>Id.—Adverse Claim by Defendant—Suit to Determine.—Where in an action against a bank and the executors of the will of a deceased person to recover shares of stock in the bank,"claimed to have been a gift from the decedent to the ward of the plaintiffs, it was alleged in the complaint that the executors claimed some right, title, or interest in the shares which claim was entirely without right, such allegation did not state a cause of action against the executors under section 1050 of the Code of Civil Procedure authorizing an action by one person against another to determine an adverse claim by the latter against the former for money or property upon an alleged 'obligation, but was, so far as the executors were concerned, more in the nature of, or appropriate to, an action to quiet title.</p> <p>Quieting Title—Personal Property.—No action will lie in this state to quiet title to personal property.</p> <p>Claim and Delivery—Parties—Misjoinder.—The executors in this action were improperly joined as parties and their demurrer on that ground should have been sustained.</p> <p>Id.—Misjoinder op Cause op Action.—An action to determine an adverse claim in such ease was improperly joined with the cause of action in claim and delivery.</p> <p>Id.—Form op Action Appropriate.—Claim and delivery is an appropriate form of action against a bank to recover a certificate of stock kept in a box in a vault of the bank over which the bank has such control that it may prevent any person from removing any box or paper deposited therein.</p>

<p>Partnership—Unauthorized Execution of Contract by One Partner—Individual Liability.—Where one of two partners owning a ranch as tenants in common signed in t'he name of the partnership without authority from the other partner a contract employing a real estate broker to sell the ranch and agreeing to pay a commission therefor, the contract was not, so far as he was concerned, a joint contract, but a joint and several contract on which he was individually liable.</p> <p>Id.-—Presumption as to Liability.—In such case the presumption as to liability that should prevail is not that created by section 1431 of the Civil Code, but that created by section 1659.</p> <p>Id.—"Variance Between Pleading and Proof—Judgment.—Where an action upon such contract was brought against the partnership and the individual who signed the contract, the trial court did not err in rendering judgment against the latter alone, who, having misled the pleader by the manner in which he signed the contract, should not be permitted to act as though he and not t'he pleader had been misled and thus to claim a variance in the pleading which as to him was not a material variance.</p> <p>Id.—Pleading—Evidence—Admission by Answer.—Where the defendant had by his answer admitted that he had “in form executed the agreement,” the trial court did not err in neglecting to rule upon his objection to the offer of the instrument in evidence, it being already in evidence under the admissions of the answer.</p>

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

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

<p>APPLICATION for reinstatement as an attorney and counselor at law.</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>Dismissal op Action—Demurrer not Heard—Jurisdiction.—The failure of the plaintiff, within reasonable time, to obtain a ruling ppon a demurrer to the complaint offers no obstruction to a dismissal of the action for want of prosecution.</p> <p>Id.—Where No Answer Filed.—The trial court has power to dismiss an action for want of prosecution in such case although no answer has been filed.</p> <p>Id.—Discretion not Abused.—Where more than five years elapsed after the time of filing a demurrer to the complaint, an order dismissing the action for want of prosecution was not an abuse of discretion. Id.—Applicability op Section 583, Code op Oivil Procedure.—Section 583 of the Code of -Civil Procedure applies only to cases where an answer, as distinguished from a demurrer, has been filed.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial Fred H. Taft, Judge. Affirmed.</p>

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

<p>Trust Deed—Foreclosure Sale—Action for Deficiency.—The holder of a trust deed given to secure a loan upon real property may, after exhausting the remedy by sale, proceed by action to recover any deficiency.</p>

<p>Partnership—Joint Liability.—Generally and at common law a partnership obligation is joint, and not joint and several, and a judgment against less than all the partners upon such obligation extinguishes the original claim against all.</p> <p>Id.—Dormant or Silent Partners.—This rule that a partnership obligation is joint, and not joint and several, obtains even where partners, not made defendants, were dormant or silent partners whose cmm-ectioh with the firm was unknown to the plaintiff when he commenced Ms action.</p> <p>Id.—Common-law Rule in California.—In this state the common-law rule has been expressly enacted by section 2442 of the Civil Code, which declares the liability of copartners to be joint.</p>

<p>Criminal Law—Assault With Intent to Murder—Self-defense— Resistance to Unlawful Search — Instruction Properly Refused.—On the trial of a charge of assault with intent to murder, the victim of the assault being a police officer, a requested instruction that it was unlawful for an officer to search a person, unless he had first lawfully placed him under arrest, was properly refused when the evidence on neither side tended to show that' any attempt was being made by the officer to search the appellant.</p> <p>Id.—Protecting Mere Companion from Unlawful Search.—One convicted of an assault with intent to murder had no such relation to a mere companion as would entitle him to resort to a deadly weapon to protect such companion from an unlawful search.</p> <p>Id.—Unlawful Arrest—Instruction as to Justifiable Force in Resisting.—Instructions intended to advise the jury that where an unlawful arrest was attempted to be made, any force necessary to prevent its accomplishment was justifiable, did not correctly state the law, and were properly refused.</p> <p>Id.—Duplicated Instructions as to Self-defense Properly Refused. Instructions containing correct statements of the rights involved in the law of self-defense were properly refused when the court in other instructions given had very fully advised the jury upon that matter.</p> <p>Id.—Conviction Supported by Complete Record.—In this prosecution for assault with intent .to murder, the verdict' and judgment of conviction are supported by the complete record.</p>

<p>Criminal Law—Breach op the Peace—Security to Keep the Peace —Power op Magistrate.'—In a proceeding under chapter III (sections 701 to 714) of Title I of Part II of the Penal Code, providing for “security to keep the peace,” t'he magistrate has no power other than that given in said chapter III, and therefore has no power to require a defendant to invest money in “Liberty” bonds and give them to his wife.</p> <p>Id.—Appeal — Magistrate’s Order Unappealable.—Chapter III of Title I of Part II of the Penal Code, providing for security to keep the peaice, makes no provision for an appeal, and a superior court in entertaining an appeal from the magistrate’s order at all act's in excess of its jurisdiction.</p>

<p>Criminal Law — Alcoholic Liquor — Local Option — Sale in No-license Territory — Information —- Designating Supervisorial District—Charging Offense in Language of Statute.—Conceding it to be the better practice, in charging the selling of alcoholic liquors, and the keeping of a place for the sale of alcoholic liquors in violation of the Wyllie local option law, to designate the supervisorial district or unit' wherein the infractions are alleged to have taken place, the information is sufficient if it follows the language of the act and charges that it occurred within the boundaries of no-lieense territory.</p> <p>Id.—Appeal—Unprejudicial Omission from Information.-—Where, in such case, as shown by the evidence, the place where the defendant kept the liquors sold was in no-lieense territory and the proof was addressed to no other place, the appellate tribunal would be constrained to hold under section 4%- of article VI of the constitution that the failure to designate the supervisorial district did not in the slightest degree prejudice the defendant in his substantial rights.</p> <p>Id.'—Conflict of Evidence—Question for Jury.—-It is the sole province of the jury to resolve a conflict of evidence.</p> <p>Appeal — Errors in Eejecting or Admitting Evidence — Insufficiency of Brief.—Where no ground is assigned by appellant’s counsel in his brief for his claim that the court erred in its rulings in admitting or rejecting evidence, the appellate court will not assume the burden of examining a voluminous record to determine whether such rulings are correct.</p> <p>Criminal Law—Intoxicating Liquors—Violation of Local Option Law-—Selling and Keeping a Place for Sale—Evidence Sufficient to Sustain Conviction.—In this prosecution for selling and keeping a place for sale of intoxicating liquors in violation of the Wyllie local option law, the evidence is found' sufficient to sustain a conviction.</p>

<p>Judgments—Motion to Vacate—Surprise.—A plaintiff’s motion to vacate a judgment against her on the ground of surprise under section 473 of the Code of Civil Procedure is properly denied where the alleged surprise consists of the trial court having made an order during the trial permitting the defendants to amend their answer, thus raising new issues which she was not prepared to meet, when the defendants did not avail themselves of the permission granted but elected to stand upon their original answer.</p> <p>Id.—Erroneous Rulings on Evidence—Findings Outside Issues or Unsupported by Evidence — Remedy.—Erroneous rulings on the admission of evidence or claims of error based upon the fact that the findings are not within the issues, or are not supported by evidence, cannot be reviewed upon a motion to vacate the judgment under section 473 of the Code of Civil Procedure.</p>

APPEALS from orders of the Superior Court of Los Angeles County. Grant Jackson, Judge. Affirmed. The facts are stated in the opinion of the court. U. S. Webb, Attorney-General, Joseph L. Lewinsohn, Deputy Attorney-General, and Jerry H. Powell for Appellants. A. J. Hill, County Counsel, and J. Allen Davis and David R. Faries, Deputies County Counsel, for Respondent.

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

<p>Time—Action on Highway Contractor’s Bond—Last Day to Commence Falling on Holiday.—Where the last day to commence an action on the bond of a highway contractor, for supplies furnished him for the performance of the work, falls on a holiday, the action may be brought on the succeeding day, in view of section 10 of the Civil Code.</p> <p>Highway Contract—Action on Contractor’s Bond—Grain Supplied to Contractor.—In an action by a grain dealer on the bond of a highway contractor, for feed alleged to have been supplied for horses used in the performance of the work, an appellate court', after trial and judgment against defendant, must, in the absence of the evidence from the record, assume that it was satisfactorily made to appear to the trial court that the grain, however used, was used in the performance of the work called for by the contract.</p>

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

<p>Execution — Exemption — Automobile.—An automobile used continuously by a laundry-man in collecting clothes and garments from patrons and returning them after they had been laundered is not exempt from attachment and execution under subdivision 6 of section 690 of t'he Code of Civil Procedure, although the claimant of the exemption was a married man having a wife and four minor children, all supported solely by his labor, since the general term “or other vehicle” used in that section plainly refers to horse-drawn vehicles.</p>

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

<p>'Vendor and Vendee — Contract for Sale of Land — Agreement of Vendor to Furnish Certificate of Title—Breach of Contract. Where the vendor in a contract for the sale of land agrees unqualifiedly to furnish a certificate of title by a specified title company, a failure to furnish such certificate constitutes a breach of contract, although the title company refuses to furnish such certificate.</p> <p>Id.—Torrens Title Certificates.—The vendee in such case cannot be compelled to accept a certificate under the Torrens land registration law in lieu of the certificate of a title company contracted' for.</p>

<p>Judgment—Parties—Recovery by One of Two Plaintiffs.—In view of the provisions of section 578 of the Code of Civil Procedure, it is not the law that where two or more persons join as plaintiffs in an a/ction at law all must recover or none.</p> <p>Id.—Appeal—Presumption.—Where a defendant in an action by two plaintiffs for money had and received answered, denying indebtedness to the plaintiffs or either of them, and the court rendered judgment in favor of defendant as to one plaintiff and against the defendant as to the other, and the evidence is not brought up, it will be assumed on appeal that the issue in response to which the court found that defendant was indebted to the one in whose favor judgment was rendered was tried.</p> <p>Trial—Findings—Conformity to Issues.—In an action by two persons for money had and received, where the defendant denied indebtedness to either, a finding that the defendant' was indebted to only one of the plaintiffs was responsive to the issues.</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—Libel—Commitment by Magistrate.—In view of the provisions of section 872 of the Penal Code, where the accused person failed to attack the complaint upon which a warrant was issued for his arrest on a charge of libel, as insufficient to justify the issuance of the warrant and examination, from which it appeared that a public offense had been committed and sufficient cause existed to believe defendant guilty thereof, it was the duty of the magistrate to commit the defendant for the offense of libel upon said examination shown to have been committed, even though the complaint concededly failed to charge a public offense, and an information based on the commitment having followed it, the superior court erred in setting aside such commitment on the ground that before the filing thereof the defendant had- not been legally committed by a magistrate.</p>

<p>Claim and Delivery—Action to Becover Possession of Automobile —Defense of Bill of Sale by Agent of Plaintiff—Failure to File Affidavit Denying Genuineness and Due Execution.— Where in an -action in claim and delivery to recover possession of an automobile the defendant sets up as a defense its purchase by himself and a bill of sale thereof set forth in haee verba on its face purporting to be signed by the plaintiff through an agent, the failure of the plaintiff to serve and file an affidavit as required by section 448 of the -Code of Civil Procedure precluded the plaintiff from showing that t'he bill of sale was executed by the purported agent without authority.</p> <p>Id.—-Motion for Belief Discretionary.—The court did not err in such case in denying a motion for relief under section 473 of the Code of Civil Procedure, since in order that relief should have been granted under that section it was necessary that it should be made to appear th-at there was some inadvertence, neglect, or mistake of an excusable kind, and the court had discretion in determining that matter.</p>

<p>Receivers—Appointment in Creditors’ Suit Without Notice—Emergency.—The appointment of a receiver in a creditors’ suit without formal notice cannot be legally made except upon a showing o-f great emergency.</p> <p>Id.—Order Appointing Erroneous If Indefinite.—An order appointing a receiver is erroneous if indefinite in failing to define the scope of the receivership or to describe the property to be affected.</p> <p>Id.—Order Erroneous Where Lis Pendens Would have Been Effective.—An order appointing a receiver is erroneous where the plaintiffs could have adequately protected the property and their interest in it from future alienation by filing a Us pendens.</p> <p>Id.—-Ex Parte Order Void for Failure to Require Undertaking.— The order was made ex parte and was therefore void under section 56-6 of the Code of Civil Procedure, for failure to require an undertaking before the making thereof.</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—Bill of Exceptions on Appeal from Order—Presumption. Where on appeal the evidence is brought up by a bill of exceptions, even though it appear affirmatively that there was other evidence than that incorporated therein, the presumption is that the record exhibits all matters material to a consideration of the points presented.</p> <p>Id.—Motion to Vacate Order Appealed from—Affidavits Used on Motion.—Affidavits and other matters presented to the lower court on a motion to vacate the order from which the appeal was taken after such motion was presented, and while it was under submission, although incorporated in the bill of exceptions, being subsequent in date to the order before the appellate court, cannot' be considered.</p> <p>Proceedings Supplementary to Execution—Commissioner, Appointment of—Waiver of Objection to Appointment.—Any objection by the alleged' debtor of a judgment debtor to the appointment, authority, or jurisdiction of a commissioner to conduct the examination is waived by the appearance of such alleged debtor before the commissioner.</p> <p>Id.—Money Agreed to be Loaned by the Party to be Examined for Specific Purpose.—Evidence that the person examined in the supplement'ary proceedings had agreed to lend the judgment debtor and his wife money for the construction of a building on a lot in San Francisco, which money was to be advanced by checks of the lender to the order of the judgment debtor and1 his wife and by them to be indorsed to real estate brokers, who were to use the checks to pay the building bills as the building progressed, warranted neither a finding nor a conclusion that the money was payable to the judgment debtor or to a general creditor of the judgment debtor, as the money constituted a fund to be used for a specific purpose.</p> <p>Id.—Necessary Parties to Proceedings.—The money agreed to be loaned by the person examined in this ease being payable to the real estate brokers, no order made in their absence to pay it to the judgment creditors could have protected him against the claim of the real estate firm.</p>

<p>Criminal Law—Elections—Recall Petition—False Affidavit Concerning— Penal Code Provision — Applicability to San Francisco.—Subdivision 1 of section 64b of the Penal Code, making it unlawful for any person circulating any petition authorized or provided by the constitution or laws of the state regulating the initiative, referendum, or recall, to misrepresent or make any false statement concerning the contents or effect of such petition, is general in its application, and applies to a recall election in the city and county of San Francisco and not exclusively to state initiative, referendum, and recall elections.</p> <p>Id.—Indictment for Making False Affidavit—Sufficiency.—An indictment for making a false affidavit under section 64b of the Penal Code is not defective for failing to allege that the defendant caused, consented or permitted the affidavit to be used or filed, where it alleges that the defendant made the false affidavit and that it was filed.</p> <p>Id.—Amending Indictment on Its Face at Trial.—The trial court did not err in permitting the district attorney at the beginning of the trial to amend the indictment on its face by striking out a name which had been used in one instance only, and evidently by inadvertence and typographical error, and inserting in place thereof the name of the defendant which had been used elsewhere throughout the document referring to the same person, the amendment not in any manner prejudicing the rights of the defendant, and being clearly authorized by section 1008 of the Penal Code.</p> <p>Jury — Examination of Juror—Unprejudioial Error.—Where in a criminal prosecution the defendant has not exhausted his peremptory challenge's, a ruling on a question to a prospective juror, even though erroneous, would not warrant a reversal of the judgment.</p>

<p>Negligence — Action for Damages — Personal Injuries—Crossing Street-car Track—'Contributory Negligence—Absence of Ordinary Care—Nonsuit.—In an action for damages for personal injuries received by a passenger while crossing a street-ear track after-alighting from a car and being struck by another car approaching from the opposite direction, a nonsuit was properly granted, where it appeared that the accident occurred in the daytime on a street with which the injured plaintiff was familiar, and with the conditions of travel thereon, and at a time when there was no congestion of travel, and that if the plaintiff had observed the slightest precaution for her own safety, the accident would not have occurred.</p> <p>Id.—Question for Jury or Question of Law.-—The general rule, as to which there are few exceptions, is that negligence is a question to be determined by the jury, even though there be no conflict as to the facts, if persons of rational minds might reach different conclusions from inferences drawn from the evidence, but where the standard of conduct required of persons under given circumstances is so obvious as to be applicable to all persons under such circumstances that there can be only one conclusion drawn therefrom, a question of law is presented.</p>

<p>PROCEEDING in Mandamus to compel the Superior Court of Alameda County to entertain and pass upon the merits of a certain action pending in said court; also to compel the Industrial Accident Commission to stay execution upon a certain award. Dismissed as to Industrial Accident Commission; granted as to said Superior Court.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>Deed op Gift—Quieting Title op Grantee—Competency op Grantor— Freedom prom Undue Influence.-—-In this action to quiet the title of a daughter to property conveyed to her mother by deed of gift the findings of the trial court of the competency of t'he grantor and her freedom from undue influence are held to be abundantly sustained by evidence.</p> <p>Husband and Wipe—Community Property.—Subdivision 8 of section 1386 of the Civil Code has no reference to the situation presented ■where community property was devised by a husband to his widow, who invested the proceeds in other property which she thereafter transferred by deed of gift to her daughter.</p>

<p>Lost Deed—Action to Establish—Evidence.—While the evidence to establish a lost deed must be clear and certain, and its execution must be proved and its contents established not literally, but substantially, it is not necessary that the witnesses should testify with verbal accuracy to its contents; it is sufficient if they are able to state it in substance.</p> <p>Id.—Quieting Title—Evidence Sufficient.—In this action to establish a lost deed and to quiet title under it, the evidence established! the contents of the deed with clearness and certainty.</p> <p>Deeds — Description — Error in Statement of Commencing Point— Giving Effect to the Intention of the Parties.—The point of commencement will be changed from the northwestern to the northeastern line of a street when necessary, in order that any effect may be given to the subsequent calls of the instrument in accordance with the rule that effect must be given to the intention of the parties.</p> <p>Id.—False Term Rejected.—A false term in a description will be rejected when necessary to effectuate the intention of the parties.</p> <p>Lost Deed—Action to Establish Against Subsequent Grantee of Grantor—Parties.—In an action to establish a lost deed against a subsequent grantee of the grantor, the representative of the grant- or’s estate is not a necessary party, since the decree does not adjudicate any rights of such estate.</p>

<p>Appeal—Conflict of Evidence.—Where there is a conflict of evidence, the judgment of the lower court will not be disturbed on appeal, nor will the appellate court undertake to weigh the conflicting evidence.</p> <p>Negligence—Action for Damages for Injury to Pedestrian by Automobile — Evidence •— Custom of Pedestrians When Confronted Suddenly With Automobile!-—In an action for damages for injuries to a pedestrian who was struck by an automobile at a street crossing, there was no error in excluding a question to an experienced chauffeur as to what was Ms “observation, and experience of persons when suddenly confronted with an automobile.”</p>

<p>Criminal Law — Murder—Jury — Error in Denying Challenge fob Cause.—In a prosecution for murder the defendant was prejudicially injured by the denial of a challenge for cause to a juror where the defendant exhausted his peremptory challenges, and was thereafter denied a challenge for cause, and it appeared from the examination to tlie first challenged juror that such juror had an opinion as to the guilt of the defendant independent of "any evidence.</p> <p>Id.—Evidence—Hearsay.—The trial court erred in refusing to strike out as hearsay certain answers given by a witness of the prosecution that he had got “information from good authority” as to the movements of the defendant and the direction in which he was traveling.</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>Indemnity Insurance — Action on Covering Note — Date of Issuance—Findings on Conflicting Evidence.—In an action against an indemnity company on a “covering note” to recover the amount plaintiff was compelled to pay in satisfaction of a judgment obtained against him for damages by reason of an automobile accident, where the defense was that the cover note was obtained by plaintiff by fraud and concealment after the happening of the accident, the findings of the trial court on conflicting evidence in favor of plaintiff were conclusive on appeal.</p> <p>Id.—Covering Note, Effect of.—A cover note is itself a present contract of insurance.</p> <p>Id.—Pleading—Conditions Precedent.—Where the complaint alleged a valid present insurance contract and that defendant extended the plaintiff credit for sixty days (on the premium) and unconditionally delivered the cover note, that within sixty days plaintiff offered to pay tire premium, that he was at all times ready, willing, and able to pay, and that he promptly notified the defendant of the automobile accident, and.no conditions precedent on the part of the plaintiff appeared on the face of the complaint, a general demurrer thereto was properly overruled.</p> <p>Id.—Nonpayment Implied.—Nonpayment, though not directly alleged in such case, may be implied from the allegations that defendant refused to receive from plaintiff the tendered premium, denied any liability under the policy, refused to defend the suit brought against the plaintiff, and that plaintiff was compelled to pay the judgment obtained against him, and that he had been damaged in the amount specified by reason of defendant’s “failure to comply with the terms of its policy.”</p>

<p>Banks and Banking—Check Payable so Corporation—Unauthorized Indorsement by Secretary—Misappropriation op Proceeds—Liability op Bank.—A bank, without previous dealings with a corporation, and unacquainted with its officers or their powers, cannot accept a check, by its terms payable to the order of such corporation, bearing the indorsement only of the payee’s name by its secretary, collect the amount of such cheek, place it to the credit of the person presenting it, refrain from making any inquiries as to the authority of such person, permit him t'o withdraw the proceeds and escape liability to the payee, in the face of uneontradicted evidence that such person as secretary had no authority to act, and that the moneys withdrawn were devoted to his personal use.</p> <p>Corporation—Authority op Secretary.—The secretary of a corporation has no authority by virtue of his office as secretary t'o indorse and collect a check which is payable to the order of the corporation.</p>

PROCEEDING in Mandamus to compel the Superior Court of Los Angeles County to proceed to a hearing of a cause in that court pending. Writ granted. 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>Negligence — Permitting Fire to Spread -—Destruction or Hat— Findings Sustained bt Evidence.-—In this action to recover 'the value of hay destroyed by fire spreading from defendant’s land, there was sufficient evidence to sustain the finding of the trial court that the defendant was guilty of negligence in permitting the fire to spread from his land to plaintiff’s.</p> <p>Id.—Offer of Settlement—Admission.—Where a plaintiff, who claimed that he had been damaged by defendant’s having permitted fire to spread from his land to plaintiff’s and destroy hay thereon, wrote a letter to the defendant, before bringing action, saying he had heard; that some thirty tons had been destroyed and asking, “Will you please make good the loss to me?” this did not amount to an admission that only thirty tons had been burned.</p> <p>Id.—Damage, How Computed.—In computing the damages in such ease, the court properly based its estimate on the acreage involved and the estimates of witnesses as to the yield per acre.</p> <p>Id.—Value of Hay—Finding not Sustained by Evidence.—The finding of the trial court that the value of the hay destroyed was $8 a ton is not supported by the evidence, none of the witnesses having placed the value higher than $8 a ton for baled hay and the cost of baling having been shown to be $1.75 a ton.</p>

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

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

<p>Criminal Law—Habeas Corpus—Preliminary Hearing—Refusal to Issue Subpoena for Witnesses for Defendant.—The refusal t'o issue a subpoeua for witnesses by a committing magistrate, or even the refusal to cause one to he issued for a like purpose by -the superior court, is not a ground for the release of a prisoner on habeas corpus.</p> <p>Td.—Abuse of Discretion.—Discretion in that regard may be abused and error thereby committed, and a person examined or on trial on a criminal charge may be thus deprived of a lawful hearing, but such abuse of discretion is mere error which does not go to the question of jurisdiction to commit or to impose judgment of sentence.</p>

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

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

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

<p>Master and Servant — Injury to Servant by Vicious Horse Furnished by Master—Action for Damages—Neglect of Employer to Procure Medical Assistance—Instructions.—In. an action by an employee against his employer for damages for injuries sustained by being trampled upon by a vicious horse furnished by the employer for farming work in which the employee was engaged, it was error prejudicial to the defendant to instruct the jury “that if you find from the evidence that the plaintiff was disabled as it is alleged in his complaint, and1 unable to procure medical aid for the length of time, and that the defendant carelessly neglected to procure medical aid and assistance, as alleged in the complaint, and the evidence shows you that the plaintiff suffered damages from said negligent act, it is your duty to find for the plaintiff in such amount as yon may deem reasonable from the evidence, regardless of the cause leading up to the accident,” as such instruction-assumes that a legal liability can exist an! constitute a cause of action in the absence of a corresponding legal duty.</p> <p>Id.—Obligation to Provide Medical Attendance.—Except as modified by statutory workmen compensation acts, it is a rule applicable to all descriptions of servants that a general obligation to provide medical attendance is not an implied incident of a contract of hiring, and that the master is not bound to defray the expenses of such attendance upon a servant who falls sick or receives personal inijuries in the course of his employment, unless he has expressly or impliedly agreed to do so.</p> <p>Id.—Erroneous Instruction — Servant’s Knowledge op Defective Appliance.—The court erred in instructing the jury that “a servant is not barreo iron’ recovering in every case, as a matter of law, when he knows a defect exists in the appliance and that there is a certain amount of danger surrounding its use, and if you believe from the evidence in this case that the plaintiff knew that a defect existed in the appliance which he used in course of his employment, he is nevertheless entitled tc recover in this action, unless you are convinced by the evidence that the risk was so great that a man of ordinary prudence would have been impelled by reason thereof to discontinue his work,” since the instruction told the jury that the plaintiff was entitled to recover irrespective of alleged fault on the part of the defendant.</p> <p>Id.—Proximate Cause of Injury — Unsafeness of Team — Defendant’s Knowledge.—The court erred in instructing the jury “that the employer must in all cases indemnify his employee for losses caused by the employer’s want of ordinary care, and if plaintiff necessarily suffered loss and injury in direct consequence of his obedience to the direction of his employer, and if you believe from the evidence that the team with which the said plaintiff in this case was furnished was untrustworthy and unsafe as alleged in plaintiff’s complaint, and if you believe from the evidence that the proximate cause of plaintiff’s injury, if any he received, was the unsafe- . ness of said team, then you should find for the plaintiff and he is entitled to recover in this section . . . , ” because it instructed the jury that the plaintiff was entitled “to recover in this action” irrespective of alleged fault on the part of defendant.</p> <p>Id.—Defendant’s Knowledge of Unsafeness of Team—Instruction on Facts.—The court erred in instructing the jury “that to render defendant liable to plaintiff in damages, it is not necessary that they should have had actual knowledge of the unsafeness of the team used by plaintiff; the proof is sufficiently made out by plaintiff when it is shown that the team and appliance was defective and unsafe in such respect that if a proper inspection of it had been made by defendant, such unsafeness and defectiveness would have been ascertained in time to prevent the injury. If the unsafeness was conspicuous, defendants will be presumed to have had knowledge of it.” The instruction should not have been given for the reason that it takes from the jury the decision of questions of fact and instructs the jury to draw conclusions from presumptions imposed] by the court..</p> <p>Id.—Assumption of Bisk-—Instructions.—In this ease, the court did not err in refusing to give certain instructions requested by defendant to the extent that said instructions recognized the defense of “assumption of risk,” since the defendant herein cannot he permitted to urge as- a defense that the plaintiff either expressly or impliedly assumed the risk of the hazard complained of, and for the further reason that the Boseberry Act which abolishes that defense and repeals section 1970 of the Civil Code in that regard, is not, as to farm labor, repealed by the Workmen’s Compensation Act of 1913.</p> <p>Id.—Befusal of Nonsuit.—For the same reason the court did not err in refusing to grant defendant’s motion for nonsuit.</p> <p>Id.—'Erroneous Instruction not Prejudicial.—In this action by a farm laborer for damages for personal injuries, it was error, but not prejudicial to the defendant, to give certain instructions which were given upon the theory that assumption of risk was a defense.</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>APPEALS from orders of the Superior Court of Los Angeles County granting new trials. Lewis R. Works, Judge. Affirmed.</p> <p>The facts are similar to those stated in the opinion in Schmidt v. Santa, Monica Commercial Co., ante, p. 785, [178 Pac. 315].</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to change place of trial. John J. Van Nostrand, Judge. Reversed.</p> <p>The facts are in all substantial respects the same as in Bonner v. Lehfeldt, ante, p. 649, [722 Pac. 179],</p>