Volume 40 — California Appellate Reports

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

<p>[1] Contract—Void Agreement—Sale of Gas Appliances—Furnishing Gas—Restraint of Trade—Public Policy.—A contract, under which a gas corporation, furnishing gas to a city and its inhabitants, agreed to install for a private consumer certain appliances and piping, in consideration of which the consumer agreed to purchase from the gas corporation all gas which he might use, and in case of 'his failure to do so, and the purchase by him of gas from any other company, to pay to the contracting company a fixed sum in settlement for the articles installed, was illegal and contrary to public policy, as it was not only in restraint of trade, but if upheld would tend to stifle competition and give the contracting gas company a monopoly of the business -of furnishing a supply of gas in the city, and hence be detrimental to the public welfare.</p>

<p>[i] ■Sale—Conditional Sale Contract—-Transfer by Vendee Without Immediate Delivery—Void as to Attaching Creditor of Original Vendee.—Where the vendee in possession of personal property under a conditional contract of sale assigned the contract with the consent of the original vendor to a third person, who assumed the payments specified in the contract, and without ever having taken the property into his possession made the specified payments to the original vendor and received a bill of sale from the vendor, but made an arrangement with his assignor under which the latter retained possession of the property, the sale and purported transfer from the original vendee and the conditional contract to his assignee was as to an attaching creditor of the former to he deemed fraudulent and void under section 3440 of the Civil Code, and a bill of sale from such assignee was ineffectual as a transfer of the property.</p>

<p>[l] Place of Tbial—Defendant Against Whom Cause of Action not Stated—Bight of Codefendant.—The joinder, as defendant, of one against whom no cause of action is stated does not deprive other defendants of the right to have the action tried in the county of their residence.</p> <p>[2] Municipal Corporations—Care op Bridges and Streets—Negligence of Officers—Nonliability.—In the absence of a statutory provision declaring otherwise, a municipal corporation in. California is not liable in damages for the neglect of its officers or agents in the maintenance or care of streets or bridges.</p> <p>[3] Id.—Counties—Joint Bridge—Failure to Maintain—Nonliability for Accident.—Neither a county nor its board of supervisors is liable for personal injuries received by one who, while riding in an automobile, was precipitated into the bed of a creek, the center line of which was the dividing line between this county and another, the accident having occurred in the latter county and the embankment over which the automobile was precipitated being in that county, and the accident having been caused by the failure to maintain a bridge over the creek as had formerly been done, there being no showing of a joint duty imposed hy law upon the boards of supervisors of the two counties to construct the bridge, in the absence of an allegation in the complaint that they had eorne to an agreement as to- the proportion of cost to be borne by each county and that funds were available for the construction of the ■bridge.</p> <p>[4] Id.—Liability of Public Officers—Bule—Under the law of this state, before a public official becomes liable for a breach of duty, the duty musí'be plain and mandatory, the means and ability to perform it must exist, and it must be such as not to involve the exercise of any discretion on his part, either as to its performance or nonperformance or as to the manner of its performance.</p> <p>[5] Id.—Powers of Supervisors—Nonliability.—Other than the power given by section 2713 of the Political Bode to the boards of supervisors of two counties to construct a bridge across the line between the counties and to apportion the cost as previously agreed, the supervisors of one county had no authority to repair the road in the other county where the accident occurred, or to place warning signals thereon, and they cannot, therefore, be charged with liability under the provisions of section 1 of the act of April 26, 1911 (Stats. 1911, p. 1115).</p> <p>[6] Change of Place of Trial—Fictitious Defendants.—A fictitious defendant who has not been brought into court cannot be regarded in considering a motion for a change of venue.</p> <p>[7] Negligence—Pleading—‘Complaint Insufficient.—Although it is not necessary for the term “negligence” to be used in pleading, it is necessary for it to appear by direct averment that acts causing an injury were done negligently, where the facts do not state a cause of action unless done negligently, unless the facts themselves necessarily exclude any hypothesis other than that of negligence.</p>

<p>HI Criminal Law—Murder in Second Degree—Criminal Abortion— Corpus Delicti — Evidence Sufficient.—In this prosecution for murder alleged to have been committed by the defendant in the performance of an abortion, and in which the defendant was convicted of the crime of murder in the second degree, the evidence is examined and found abundantly sufficient to establish that the death of the young woman in question was due to an operation performed upon her, which was criminal in character as not necessary to preserve her life.</p> <p>[2] Id.—Verdict of Guilty Sustained by Evidence.—The evidence was also sufficient to sustain the verdict of the jury holding the defendant ' responsible for the decedent’s death by means of a criminal abortion.</p> <p>[3] Id.—Accomplice—Testimony Corroborated.—The testimony of a companion of the deceased, who the court instructed the jury was an accomplice, is also examined in such case and found to be sufficiently corroborated as to all its essential parts.</p> <p>[4] Id.—Unprejudicial Instruction that One was an Accomplice in Fact.—Error cannot be predicated by the defendant on the action of the court in instructing the jury that a witness, a companion of the deceased, was, as matter of fact, an accomplice, where, throughout the trial, defendant had taken the position that sueh person was an accomplice whose testimony required corroboration.</p> <p>[5] Id.—Evidence—Striking Out Answer not Besponsive.—An answer by a physician who.had1 treated the deceased some weeks previous to her death, which answer, not responsive to the question asked her, stated that she had herself admitted a previous attempt to bring about an abortion, was properly stricken out.</p>

<p>[1] Place of Trial—Defendant Against Whom No Cause of Action Stated.—The joinder as party defendant of one against whom no cause of action is stated does not deprive other defendants of the right to have the action tried in the county of their residence.</p> <p>[2] Negligence—Action for Personal Injuries—Automobile Accident — Plunging Down Embankment — Pleading—Insufficient Complaint Against Driver.—In an action by the guest of an automobile driver for damages for personal injuries sustained when ‘the automobile plunged over an embankment into the bed of a bridgeless creek, the complaint failed to state a, cause of action where the only allegation of negligence was that the defendant “negligently failed to observe that the said road terminated at said creek in such drop or declivity,” while it was also alleged that no lights were displayed nor any warnings of any kind given of the fact that the declivity existed, or that the defendant had any independent knowledge, and it was therefore apparent the defendant, could not be negligent in failing to observe something it was impossible for him to observe.</p>

<p>[1] Waters and Watercourses—Natural Wash—Obstructing by Embankments and Dikes—Diverting Flow upon Land op Another —Action por Damages and por Injunction to Abate Nuisance— Jury Trial.—In an action for damages and for an injunction to abate a nuisance consisting of the maintenance of embankments and dikes by means of which the waters of a natural wash are obstructed and diverted, and the flow precipitated upon plaintiff’s land, the parties are entitled as of right to a trial by jury of the issue as to damages.</p> <p>[2] Id.—General "Verdict—Efpect op.—Where such trial is had, the general verdict of the jury is binding upon the court, which has no power to vacate it except upon motion for new trial.</p> <p>[3] Id.—Statute op Limitations, How Pleaded.—In such action an allegation in the answer that the improvements, embankments, etc., described in plaintiff’s complaint, which it' is alleged caused a diversion of the flow of water, had been erected “for more than five years prior to the institution of the action,” sufficiently pleaded the statute of limitations.</p> <p>[4] Id.—Omission op Finding on Statute op Limitation.—In such case, in ruling on defendants’ motion for a nonsuit, the court erred in holding that the statute of limitations had not been sufficiently pleaded, and consequently erred in making no finding upon the issue tendered upon that statute.</p> <p>[5] Id.—Statutory Mode or Pleading not Exclusive.—'While section 458 of the Code of Civil Procedure provides that the statute of limitations may be pleaded; as a bar to any action, by giving the number of the section and subdivision thereof relied on, such mode of pleading is not exclusive.</p>

<p>[l] Workmen’s Compensation Act — Award of Compensation for Injuries—Subsequent Action Against Negligent Party—Em- ' PLOYBR AND INSURANCE CARRIER DEFUSING TO JOIN- EMPLOYEE Suing Alone.—After an award by the Industrial Accident Commission to an injured employee, and payment by the employer’s insurance carrier, the injured employee may maintain an action alone against the party whose negligence caused the injury, where the employer and his insurance carrier refuse to join as plaintiffs by making them parties defendant.</p>

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

<p>[1] Salary—Action por — Commissioner at Exposition — Duration op Employment.—In this action against a county to recover three months’ salary, claimed as an employee of the county under the designation of commissioner for the county at the Panama-Pacific International Exposition of 1915, the evidence is held sufficient t'o support the finding that the plaintiff was employed for a definite period including the three months in question.</p>

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

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

<p>[1] Pleading—Demurrer to Amended Complaint Sustained—Refusal of Further Amendment — Error.—Although an amended complaint was the third attempt of the pleader to state a cause of action, it' was error, upon sustaining a demurrer thereto, to refuse to allow a further amendment, unless it was clear to the trial court that it could not be amended so as to obviate the objections made thereto.</p> <p>[2] Landlord and Tenant—Eviction—General Demurrer.—In this action by a tenant for damages, pleaded in two counts, it is held that a cause of action is stated in the complaint which is good as against a general demurrer. '</p> <p>[3] Id.—Termination of Lease—Destruction of Buildings.—A lease ‘of land with buildings thereon is not terminated by the destruction of the buildings, unless it is so provided by contract or by statute.</p> <p>[4] Id.—Destruction of “Thing Hired”—Land With Several Structures Thereon.—Although under section 1933 of the Civil Code the hiring of a thing terminates with the destruction of the thing hired, that result may not follow the destruction of a building where leased land has several structures thereon, since the building destroyed may not have been the “thing hired.”</p> <p>[5] Id.—Eviction — Damages—Future Profits.—An eviction entitles the plaintiff in an action therefor to recover any damage he may have suffered thereby, including loss of future profits if ascertainable with reasonable certainty.</p> <p>[6] Id.—Pleading Special Damages—Other Damage not Precluded. The pleading of special damage from loss of future profits does not preclude the recovery of any other damage sustained.</p> <p>[7] Id.—Damage by Elements—Covenant to Repair.—A covenant to repair in case of extensive damage by the “elements” does not include rebuilding structures destroyed by fire, “damage by the elements” being the equivalent of the phrase “act of God,” such as lightning or other superhuman agency.</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>Samuel C. Wiel, William E. Colby, Percy S. King and Clarence N. Riggins for Appellant.</p>

<p>[1] Appeal—Alternative Method—Quieting Title—Denial of Non-suit—Examination of Imperfect Record.—In an action to quiet title, on an appeal by the alternative method, where the denial of a nonsuit is claimed by appellant to have been erroneous and the appellant prints as an appendix to bis brief practically the entire record of title, consisting of many conveyances and other documents, without calling attention to any alleged error or omission as affecting the vesting or divesting of ownership of the property involved in the action, the appellate court will not make a search of this complicated record, without the aid of counsel, to either prove or disprove the uneontroverted statement in respondent’s brief that at the time he rested on the first hearing the evidence established his title to a two-thirds interest in the property in question.</p> <p>[2] Action to Quiet Title—Nonsuit—Properly Denied Where Substantial Interest Shown.—In an action to quiet title, where plaintiff shows title to a two-thirds interest, a nonsuit is properly denied.</p> <p>[3] Id.—Denial of Nonsuit—Evidence Supplied on Further Hearing.—If after the denial of a nonsuit evidence is introduced on further 'hearing, and upon the conclusion -of the whole ease there is evidence upon the material issues warranting the submission of the cause to the jury, the question of whether the court erred in denying the nonsuit becomes of no consequence.</p> <p>[4] Trial—Reopening Hearing of Evidence—Discretion of Trial Court.—It is within the discretion of the trial court to reopen the hearing of evidence at any time before the trial is concluded and until the decision of the court by its written findings, made and filed.</p> <p>[5] Quieting Title — Tax Deed Set out in Answer — Failure to Deny by Affidavit—Admission of Genuineness.—The' genuineness and due execution of a tax deed set up in defendant’s answer in an action to quiet title is admitted under section 448 of the Code of Civil Procedure by failure of the plaintiff to file an affidavit denying the same.</p> <p>[6] Id.—Estoppel from Denying Validity.—But such admission of the genuineness and due execution of the tax deed does not estop the plaintiff from denying its validity in any other respect.</p> <p>[7] Id.—Tax Title—Evidence—Deed to State.—In an action to quiet title where defendant claims title under a tax deed, it is essential for him to produce in evidence a deed to the state as well as a deed from the state; a recital in the deed from the state that the property was sold’ and conveyed t'o the state for nonpayment of taxes is insufficient.</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>[1] Fraternal Insurance—Action on Policy—Breach op Warranty —Burden op Proof.—In an action to recover upon a fraternal insurance policy, the burden of proving the falsity of the representations made by the insured upon which the policy was issued devolved upon the defendant.</p> <p>[2] Id.—Cause of Death of Mother op Insured.—Where, in an action on a fraternal insurance policy, the defense was breach of warranty by the insured in making a false representation that her mother died of pneumonia when she had in fact died of pulmonary tuberculosis, the finding of the court to the effect that the mother’s death was caused by" pneumonia was supported by the evidence.</p>

<p>'[1] Divorce—Alimony Pendente Lite and Suit Money—Order Without Notice—Jurisdiction.—In, am action for divorce, where the court has acquired jurisdiction of the person of the husband, it has the power to order, ex parte, without any previous notice, the payment to the wife of any reasonable sum for alimony and suit money.</p> <p>[2] Id.—Amount Allowable as Suit Money—Discretion of Trial 'Court.—Discretion is vested- in the trial court as to the amount to be allowed the wife as suit money to enable her t'o prosecute or defend an action for divorce, and only a plain case of abuse of discretion is subject to correction by an appellate court.</p> <p>[3] Id.—Order Allowing Suit Money—Appeal Under Alternative Method—Amount Claimed to be Unnecessary or Excessive— Appellant’s Bribe Insufficient.—On appeal from an order allowing a wife alimony and suit money in an action for divorce, where the appeal is taken under the alternative method' and the record is brought up on a typewritten transcript and- the appellant contends that the amount allowed was unnecessary or excessive, it is incumbent upon the appellant to print in his brief so much of the evidence as will enable the appellate court to say that there was no necessity for any sum whatever or that the sum allowed was so excessive as to amount to an abuse of discretion.</p> <p>[4] Id.—Allowance from Time of Commencement of Action—Including Expenses of Past Support.—In a proper case payment of alimony may be made to date from -the commencement of the action, thus including the expenses of the wife’s past support, and where none of the evidence is brought up, so that the appellate court has no means of knowing whether the evidence did or did not show a necessity for such allowance for past support, every reasonable intendment must be indulged iu favor of the correctness of the proceedings and the regularity of the order.</p>

<p>[1] Appeal—Former Appeal—Record.—Documentary evidence before the court on a former appeal, none of which is in the record of a second appeal, is not before the court for the purpose of such second appeal.</p> <p>[2] Id.—Law of the Case—Second " Trial—Different Facts.—The decision rendered by a trial court on a second trial after an appeal is not in conflict with the “law of the case” as established on the former appeal, when the case on second trial as shown by the findings is very materially different in its facts from the case as stated in the former decision by the appellate court.</p>

<p>[1] Appeal—Alternative Method—Judgment—Insufficient Briefs. On an appeal under the alternative method permitted by section 953a of the Code of -Civil Procedure from a judgment based on an order granting a nonsuit, where the appellant insists that the court erred in granting the motion for the nonsuit, the omission of the appellant to print in hi® brief any portion of the record showing, as required by section 953c of said code, that the court erred in granting the motion, is sufficient ground to justify an affirmance of the judgment.</p> <p>[2] Drafts—Acceptance as Agent—Nonsuit as to Alleged Principal—-Agent not Party Aggrieved.—Where, in an action against one who has accepted a draft, the defendant answered alleging that in accepting the draft he acted as agent for -a third party, who at the request of the acceptor was brought in and made a party defendant but without any affirmative relief being demanded against him by the original defendant, and the trial court thereupon granted a motion for a nonsuit of the party thus brought in, the original defendant, even» conceding the ruling to be erroneous, was in no position to complain.</p>

<p>[1] Vendor and Vendee — Exchange of Banch and Personal Property—Fruit Trays “Now” Situated on Property—Construction of -Contract.—A contract for an exchange of a ranch and “all the following described- personal property now situate” thereon, describing, among other things, “all trays and boxes,” included only fruit trays on the ranch at the date of the contract and did not include fruit trays which a-t the time of the contract were, and for a period of a year or more had been, in the possession of a third party on another ranch.</p> <p>[2] Id.—Contract Unambiguous and Without Uncertainty — Construction—Assumption of Mortgage.—The contract being unambiguous and without uncertainty, the fact that in making the exchange the defendants assumed- an-di -agreed to pay as a part of the consideration on their part for the whole property -an- existing mortgage on the trays is unimportant as a means of interpretation1;</p> <p>[3] Id.—Contract in Writing—Bule of Interpretation—Intention. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.</p>

<p>[l] Bankruptcy — Discharge — Judgment Barred—Motion to Quash Execution—Absence of Fraud.—On an appeal from an order denying a motion made by a defendant to quash an execution on a judgment on the ground that the judgment debtor had been released from the judgment by his discharge in bankruptcy, it is held that the judgment, which was entered by defendant’s consent for money received by him from the plaintiff for a half interest in an inchoate land speculation which was never completed, was barred by the discharge, under subdivision 2 of section 17 of the Federal Bankruptcy Act, there being nothing disclosed by the complaint in the action from which the slightest inference could be drawn that the defendant obtained! the money by false pretenses or representations, and there being no allegation therein of fraud or deceit practiced on the plaintiff by the defendant.</p>

<p>[1] Basement—Waters and Watercourses—Bight of Way for Irrigation Ditch—Destruction by Flood—Beconstruction Over New Line—Erroneous Befusal of Injunctive Belief.—After the washing out by flood of an open earthen ditch, by means of which .the ■defendants in this action had acquired and had for many years enjoyed the right to conduct water over plaintiff’s lands along a definite and well-established line from a point of diversion from a creek on plaintiff’s land to lands of defendants below, where defendants used the water for irrigation, the defendants had no right to reconstruct and maintain a ditch of a different character on plaintiff’s lands, along a line distant from twenty-five to forty feet from the former line, and the trial court after the reconstruction of the ditch by the defendants on the line last described, erred in refusing the plaintiff an injunction to restrain its maintenance, and in adjudging that defendants had an easement in plaintiff’s land for the construction and: maintenance of the new ditch line.</p> <p>[2] Id.—Nature of Easement.—The defendants’ right of way having been acquired either by prescription or while the plaintiff’s land was still a part of the public unoccupied lands of the United States, the defendant's’ right in plaintiff’s lands, whatever its source, was simply to continue the use thereof which they were enjoying at the time plaintiff acquired the land.</p> <p>[3] Id.—Location of Ditch Prior to Flood—Bights Acquired Thereby.—The right of way for the ditch having been definitely fixed by the acts of the parties prior to the flood which washed it out, the defendants had acquired the right t'o that particular location and no other.</p> <p>[4] Id.—Beconstruction of Ditch.—On reconstructing the ditch after its destruction by flood, there was no principle of law that' warranted the defendants subjecting to their use another and different portion of the plaintiff’s land without his consent.</p> <p>[5] Id.—Changing Location of Ditch.—The location of an easement of this character cannot be changed by either party without the other’s consent after it has been finally established, whether by express grant or by prescription. 8</p> <p>[6] Id.—Slight Extent of Change Immaterial.—The acquisition of a right of way over one portion of a person’s land gives the grantee no right over any other portion, and it is immaterial that the new line for an irrigation ditch constructed after the washing out of an old one was only from twenty-five to forty feet distant from the old line.</p> <p>[7] Id.—Change not Warranted by Section 806 op Civil Code.—Section '806 of the Civil Code, which provides that the “extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired,” does not warrant the contention of the defendants that because they had acquired a right to divert water from a creek at a point of diversion, on plaintiff’s land, . they necessarily acquired as incident thereto a right of way for a ditch over the land, and that, therefore, if the way formerly used be destroyed by flood or other act of God, they may reconstruct the ditch along a new line, provided it be the one that will entail the least injury to the plaintiff’s land.</p> <p>[8] Id.—Case at Bar—Nature of Servitude.—Where, as in the case at bar, the nature of the respondents’ enjoyment of the servitude prior to the washing out of the ditch consisted -in conducting water in an open earthen ditch that followed a certain, well-defined and established course over appellant’s land—a line that had been established for many years—that line and none other fixed the extent of the servitude that rested upon appellant’s realty.</p> <p>[9] Id.—Appropriation op Water on Government Lands—Nature of Bight.—The right of an appropriatin' of water on government land that has since become private property to divert the water at any particular place of diversion and conduct it to his own land over the land that has passed into private ownership is the right of the grantee of an easement, including such secondary easements as are necessary for the full enjoyment of the primary easement, such as the right to enter on the servient tenement' to make necessary repairs, but not to increase the burden on ¡the servient tenement by any ¡alteration in the mode of enjoyment of the primary easement.</p> <p>[10] Id.—Secondary Basements—Changing Mode op Enjoyment.— The right of secondary easement is not a right" to change the mode of enjoyment, if such change increases the burden on the servient tenement, as by shifting the line of a ditch every time a flood or ¡freshet washed away or ate into the bank of the stream.</p> <p>[11] Id.—Bight to Appropriate Waters—Bight to Construct Ditch Does not Follow.—The right to appropriate waters does not carry with it the right to burden the lands of another with a ditch, although the proposed appropriation cannot be effected without the ditch.</p> <p>[12] Id.—Injunctive Belief—Mandatory Injunction—General Bule. It is a general rule, to which there are a few well-recognized exceptions, that when one, without right, attempts to appropriate the property of another by conduct which will ripen into ¡an easement, a court of equity will compel the trespasser to undo, so far as possible, what he has wrongfully done.</p> <p>[13] Id.—Exceptions.—A court of equity may decline to issue a mandatory injunction where the defendant is engaged in a business that serves the public, or where, by innocent mistake, erections have been placed a little upon plaintiff’s land, and the damage caused to defendant by their removal would be greatly disproportionate to the injury of which the plaintiff complains.</p> <p>[14] Id.—Substantial Injury to Justify Injunction.—To justify an injunction, there must be substantial injury, which, however, does not necessarily involve substantial damage.</p> <p>[15] Id.—Injunction—Comparative Injury from Granting and Withholding—Balancing of Conveniences.—The rule that a chancellor will refuse to enjoin when greater injury will result from granting than from refusing an injunction has no application where the act complained of is in its incidents tortious; there can be no balancing of conveniences when such balancing involves the preservation of an established right, however small, which will be extinguished if relief be not granted against one who would destroy it.</p> <p>[16] Id.—Injury to Land—Nuisance Per se—Injunction not Dependent on Extent of Pecuniary Damage.—In case of an injury to the land of another that is a nuisance per se, the right to an injunction does not depend upon the extent of the damage measured by a money standard, and the maxim, De minimis, etc., has no application.</p> <p>[17] Id.—Balance of Convenience—Doctrine Inapplicable to Final Decrees.—The doctrine of “balance of convenience” though frequently determinative of the propriety of granting or refusing preliminary injunctions, has no application to final decrees on hearing on plenary proofs.</p> <p>[18] Id.—Judgment and Findings in Favor of Defendants Erroneous. In this action to enjoin the defendants from maintaining a reconstructed irrigation ditch on land of the plaintiff other than that over which the record shows they had acquired an easement, the judgment and findings that the defendants are the owners of an easement in that part of the plaintiff’s land and enjoining the plaintiff from asserting any right adverse to that easement are alike erroneous.</p> <p>[19] Id.—Riparian Owner—Erroneous Limitation of Rights to Divert Water.—The plaintiff in the present action being a riparian owner, the court erred in attempting by the decree to limit his right to divert the water to a fixed quantity, since as a riparian owner he had the right to have all the waters flow through his land . in their accustomed way except as decreased by the reasonable use of other.riparian proprietors or prior appropriators.</p> <p>[20] Id.—Appropriator’s Bight to Water—Defendants’ Ownership of Waters of Creek—Finding Unsupported by Evidence.'—In such action a finding that the defendants owned the waters of the creek to the extent of sixty inches, that being the capacity of the defendants’ ditch, was unsupported by evidence and erroneous, since the extent of an appropriator’s or adverse user’s right is limited not by the quantity of water actually diverted, nor by the capacity of his ditch, but by the. quantity which is or may be applied by him to his beneficial uses, and there was direct evidence in the record that sixty inches greatly exceeded the amount necessary for the defendants’ beneficial uses.</p> <p>[21] Id.—Award of Certain Number of Inches—Meaning.—An award of sixty inches in a decree in such ease means sixty inches “constant flow.”</p> <p>[22] Appeal—Conflict of Evidence—Finding Based on Erroneous Theory of Law.—The rule that an appellate court will not reverse a finding if there is a substantial conflict of evidence does not ex; tend to a ease where it is clearly apparent .that the finding is based on an erroneous theory of the law applicable to the evidence.</p>

<p>£1] Mechanic’s Lien—Time for Filing Claim—Construction of Section 1187, Code of Civil Procedure.—Under section 1187 of the Code of Civil Procedure, where work is done under contract between the owner of the property upon which an improvement is made and the contractor, persons furnishing either labor or material may, at their option, file their claims of lien, either within thirty days after ceasing to labor or to furnish materials, or within thirty days after the completion of the original contract between owner and contractor; but where the work is not done under such a contract, laborers and materialmen must file their liens within thirty days after they have ceased to labor or to furnish materials.</p> <p>[2] Id.—Improvements Made by Owner Himself — Estoppel not Applicable.—Where the improvements are not made under contract, but by the owner himself, either actually or constructively, the provisions of section 1187 of the Code of Civil Procedure, as to the filing of notice of completion, do not apply, and the estoppel raised by the latter part of that section, where there is a default on the part of the owner to file such notice, cannot be invoked by a laborer or a materialman.</p>

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

<p>[1] Appeal—¡Question op Fact—Evidence)—Credibility op Witnesses and Weight op Testimony.—It is within the province of the trial court to determine the credibility of witnesses and the weight to be given to their testimony; it is the duty of an appellate court to harmonize apparent inconsistencies in the statements of the witnesses, and to do this it will indulge in every reasonable presumption of fact.</p> <p>[2] Id.—Inherent Improbability—Lack op Substantial Evidence.— To warrant an appellate court in determining there is no substantial evidence because of inherent improbability, there must exist either a physical impossibility of the evidence being true or a state of facts so clearly apparent that nothing need be assumed nor any inferences drawn to convince the ordinary mind of the falsity of the story.</p> <p>[3] Trusts—Finding Against Trust Supported by Evidence.—The evidence in this ease is held sufficient to support findings and judgment that a transfer of stock was absolute and not charged with any trust.</p>

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

<p>[1] Criminal Law—Bail Bond—’Action to Reform and Enforce.— Pleading—Insufficient Obligation.—Sureties on a bail bond must bind themselves that they will do certain things or upon default that they will pay the state a specified sum; it is insufficient where they agree that their principals will pay.</p> <p>[2] Id.—Joint Bond—Excessive Penaizty.—Whore an order of court provided that two defendants in a criminal case be admitted to bail in the sum of five hundred dollars each, a bond purporting to be given on behalf of both defendants and providing that if the conditions are not performed the obligors will pay the people of the state the sum of one thousand dollars is insufficient, as it requires payment of one thousand dollars if either or both defendant's fail to appear, whereas the order required a penalty of only five hundred dollars for each.</p> <p>[3] Id.—Statutory Bond—Common-law Obligation.—A bond: in a criminal proceeding is purely statutory; if it fails to conform to the statute and order of the court, it is not good as a commos.law obligation.</p> <p>[4] Id.—When Bond Void.—A bail bond in excess of the order of the court is absolutely void.</p> <p>[6] Id.—Reforming Void Bond.—A bail bond void upon its face cannot be reformed, and the court below properly sustained a demurrer to the complaint.</p>

<p>EH Brokers — Action por Share op Commission on Sale op Real Estate.—-In this action against defendant’s intestate upon an alleged oral contract to assist defendant in locating land and to assist in selling the same, for a consideration of one-third of the commission received by defendant’s intestate on the sale of the land, a nonsuit was properly granted, the evidence failing to prove that defendant’s intestate received any commission on the , sale as made.</p>

<p>APPEAL from a judgment of the Superior Court of Los" Angeles County. John L. Hudner, 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>APPEAL from an order of the Superior Court of the City and County of San Francisco granting a new trial. George A. Sturtevant, Judge. Affirmed.</p>

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

<p>[1] Pleading—Amended Complaint—Demurrer.—Where a complaint has been amended, the sufficiency of the last pleading is alone in question on a demurrer.</p> <p>[2] Municipal Ordinances—Evidence—Judicial Notice.—Courts of record do not take judicial notice of municipal ordinances in this state.</p> <p>[3] Id.—Pleading.—In pleading a municipal ordinance or a right derived therefrom it is sufficient, under section 459 of the Code of Civil Procedure, to refer to it by its title and the date of its passage.</p> <p>[4] Pleading—General Demurrer—Insufficient Facts.—Where the question of the sufficiency of a complaint to- withstand a general demurrer arises, courts have always discriminated between insufficient facts and an insufficient statement of facts, and where the necessary facts are shown by the complaint to exist, although inaccurately or ambiguously stated or appearing by necessary implication, the judgment will be sustained.</p> <p>[5] Street Law—San Francisco Ordinance—Foreclosure of Assessment Lien—Resolution of Intention.—In an action to foreclose the lien of a street assessment for work done under the San Francisco street improvement ordinance, the objection that the complaint does- not state that the resolution of the board of public works of its intention to recommend tor the supervisors that improvements be ordered to be m-ade contains the reference to the specifications or plans and specifications prepared for the improvement contemplated, is sufficiently met by the allegation -that the board of public works duly a,n:d regularly made an assessment to cover the sum due for the said work so performed and specified in said contract, this being a sufficient allegation under the ordinance that all the steps preceding the making of the assessment necessary to authorize the board to make it had been taken in the manner provided by law.</p> <p>[6] Id.—Demand for Payment.—In a suit to foreclose a street assessment lien under the San Francisco ordinance, a failure to prove a compliance with the essential requirement of the ordinance respecting a demand on the owner of the property assessed, for the payment of the amount of the assessment as alleged in the complaint is fatal to the judgment.</p>

<p>[1] Mortgage—Foreclosure—Appeal.—In an action to foreclose b mortgage which was given by the mortgagors to secare a fixed sum and also further advances, and the fulfillment of any covenants or agreements wMch the mortgagors might agree" in writing with the mortgagees should be secured thereby, the finding of the court that the mortgagors had agreed that a certain further advance should be secured by tie mortgage will not be disturbed by the appellate court where the evidence is conflicting.</p> <p>[2] Id.—' Ooinstruction.—The construction of the clause in question is that t'he necessity of am agreement in writing under said clause is limited to the fulfillment of “any covenants or agreements,” and does not apply to the further advances designated in the same clause.</p>

<p>[1] Malicious ' Prosecution—Defense—Advice of Counsel—Erroneous Exclusion of Evidence.—In an action for malicious prosecution, the court erred in not permitting the defendant te prove that material facts were communicated to Ms counsel despite the fact that some of the facts and circumstances may have been communicated a month or two earlier than the date on which the arrest was advised.</p> <p>[2] Id.—Probable Cause—Mixed Question of Law and Fact.—Probable cause is to be determined by the court when the facts are uncontroverted; but when the evidence is conflicting as to any of the fact's, the existence of the facts in dispute is to be found by the jury, and the question whether the facts found by the jury establish probable cause is to be decided by the court.</p> <p>[8] Id.—In an action for malicious prosecution, the defense of advice of counsel goes to"the question of probable cause and must be considered in determining that matter.</p>

<p>[13 Brokers — Commissions on Sale of Beal Estate — Procuring Cause—Finding for Defendant Supported by Evidence.—In this action by a real estate broker for commissions on the sale of a ranch, the evidence supported a finding that the sale was not made through any effort of the plaintiff.</p> <p>[2] Id.—Sale Between Purchaser and' Vendors.—The mere listing of the property by the brokers and sending purchasers letters describing it among other properties for sale, without calling* particular attention to it, did1 not make the brokers the procuring cause of the sale where the purchasers had been trying to buy the property for a period of eleven years without arriving at an- agreement, and finally bought it directly from the owners after the latter had reduced the price slightly.</p> <p>[3) Id.—Bule as to Broker’s Bight to Commission.—To entitle a broker to commission for the sale of real estate, which he has been given by the owner authority to sell, he must produce before the owner a purchaser ready, willing, and able to purchase at the price and on the terms specifically expressed in the contract of employment.</p> <p>[43 Id.—Change by Owner in Terms of Sale.—A change made by the owner in the terms of sale when consummating the sale cannot impair the right of the broker to his commission.</p> <p>[53 Id.—Broker as Procuring Cause.—In order to recover commissions, the broker must be the “procuring” cause and not one in a chain of causes of the sale.</p> <p>[63 Id.—No Exclusive Contract.—Where a broker had written to the owner asking if his ranch was still for sale.and if there had been any change in the price, and the owner replied, setting a price and mentioning the commission he was willing to pay, the owner still had the right to sell independently of the broker, since there was no exclusive right to sell and no time fixed within which the sale might be made.</p> <p>[73 Id.—Evidence—Hearsay.—In a broker’s action for commission on sale of a ranch a statement by one of the owners that the broker had nothing to do with the sale was clearly hearsay and self-serving, and am objection to the testimony should have been sustained.</p>

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

<p>II] Judgments—Action to Set Aside—Defective Proof of Service—■ Equity.—A bill in equity to set aside a judgment upon the ground that proof of service of summons in the action in which such judgment was obtained failed to- show that it was- served upon each of the plaintiffs (the defendants in the prior action), must show that the plaintiffs were not in fact served1 with summons as required by section 410 of the Code of Civil Procedure, and that they, as defendants in said prior action, have a good defense on the merits thereof.</p> <p>|2] Summons—Defective Return—Equity.—A defective return of process duly served is not sufficient ground for equity to interfere.</p>

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

<p>[1] Writ op Mandate—Execution.—Where the sheriff’s return to an alternative writ of mandate requiring him to show cause why he should not execute a .writ of execution issued out of a superior court is based upon a restraining order issued out of a superior court enjoining him from so doing, and the appellate court, having jurisdiction, has already decided that the last-mentioned superior court had no jurisdiction to make any order in said matter other than one dissolving said restraining order, it follows that the peremptory writ of mandate must issue.</p>

<p>PROCEEDING in Prohibition to prevent the Superior Court of San Diego County and C. N. Andrews, Judge thereof, from proceeding further in a certain action, except to make an order dissolving a restraining order and temporary writ of injunction theretofore granted therein. Writ granted.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Easements—Reservation op Perpetual Right op Way—Construction.—Where the owner of a tract of land conveys a strip thereof to another, reserving to himself, as an easement in favor of the remaining portion of the tract, a perpetual right of way over ami across the strip conveyed, such reservation constitutes and reserves only an easement appurtenant to such remaining portion of the tract', and not an easement in gross in such grantor apart from Ms ownership of such portion.</p> <p>[2] Id.—Right op Grantor to Make Later Conveyance.—As such a reservation embraces only an easement appurtenant to a particular tract of land, the grantor has notMng in the way of an easement in gross wMch he can later convey to the owners of other tracts of land.</p> <p>[:$] Appeal—Action to Quiet Title—Dedication—Waiver op Issue.— In an action to quiet title to a strip of land over which the defendants claim an easement, the issue as to whether said strip had been dedicated to public use cannot be urged for the first time on appeal.</p>

<p>[2] Id.—Payment of Outlawed Pbomissoky Notes — Insufficient Acknowledgment.—A written indorsement on a letter demanding payment of certain outlawed promissory notes that “It is impossible right at the Present time—For me to Pay-any Part of the above amount—I Hope to be able Some time Sooh to hole thing up—I am not making any Promises—I hope to be able to Pay the hole thing up Some day,” is not an acknowledgment of the debt, within the contemplation of section 360 of the Code of Civ-il Procedure,- sufficient to take the case out of the operation of the statute of limitations.</p>

<p>[1] Police Power—Health Regulation—Discretion op Legislature. The adoption of measures for the protection of the public health is a valid exercise of the police power of the state as to which the legislature is' necessarily vested with large discretion not only in determining what are contagious and infectious diseases, but also in adopting means for preventing the spread thereof.</p> <p>[2] Id.—Affliction With Contagious Disease—Isolation.—The isolation of one afflictedi with a contagious or infectious disease is a reasonable and proper measure to prevent the increase and spread thereof.</p> <p>13] Id.—Abuse of Authority Delegated—Quarantine.—The fact that the authority delegated to those charged with the duty of enforcing the law may, in a given case, be abused, is no legal reason for denying the power to quarantine summarily in a case where grounds therefor eoncededly exist.</p> <p>£4] Evidence — Communicability of Disease — Judicial Notice.—The courts may not' take judicial notice that gonococcus infection, is noncommunicable except by actual contact.</p> <p>£5] Police Power—Quarantine Regulations—Judicial Determination of Infection Unnecessary.—It is not necessary that it be first judicially established by some proceeding in court that a person is afflicted with a contagious disease before that person can. be subjected to quarantine regulations.</p>

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

<p>[1] Eminent Domain—Encumbrances—Implied Covenants.—Where property is taken by a proceeding in eminent domain, there is no implied covenant, as in a voluntary conveyance by grant, against encumbrances or liens.</p> <p>[2] Id.—Payment op Liens-—Bight to Deduct prom Judgment—ConSTRUcrapN op Section 1248, 'Code op Civil Procedure.—Section 1248 of the Code of Civil Procedure gives to the person taking property by proceedings in eminent domain the right to retain from the sum of money to be paid for it the amount necessary to discharge any lien existing thereon, but Ms neglect to adopt tMs course would not give rise, in the absence of some other provision of law creating it, to a right of action to recover it when once paid.</p> <p>[3] Id.—Payment in Full to Owner—Eight op Recovery.—Section 1712 of the Civil Code does not give such a right of recovery where the person taking property by proceedings in eminent domain has paid the full purchase price to the owner of the land.</p> <p>[4] Id.—'Condemnation op Land Subject to Tax—Duty op Owner to Pay.—Where a municipal water district condemns certain land and, pursuant to -proceedings had in accordance with section 1254 of- the Code of Civil Procedure, is let info possession thereof, there is no obligation on the part of the owner to pay the taxes which are due and a lien on the land, but not delinquent, at the time of the transfer.</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. C. N. Andrews, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Appeal—Order Denying New Trial—Dismissal.—An attempted appeal from an order denying a motion for a new trial must be dismissed where the notice of appeal therefrom was filed after section 963 of the Code of Civil Procedure was amended in 1915.</p> <p>[2] Public Officers — Proceeding for Removal — Accusation Under Section 772, PEnal Code.-—An accusation presented under section 772 of the Penal Code is an accusation of a public offense, t'o wit, neglect of official duties, or misfeasance in office, the proceeding being criminal, and, in its nature, a prosecution for crime, the penalty wheref-or is removal from office, and a fine of five hundred dollars r that goes to the informer.</p> <p>[3] lb.—Insufficient Accusation—Want of Jurisdiction..—If an accusation filed against a public officer under section 772 of the Penal Code wholly fails to state a ease sufficient to constitute an offense under the criminal law of the state, the eour-t is without jurisdiction, and the sentence or judgment is void, and' subject to collateral ■attack.</p> <p>[4] In.—Offense not Charged in Accusation.—An accusation by a private citizen against a city marshal, filed pursuant to section 772 of the Penal Code, for neglect in the ¡performance of official- duty, fails to state facts constituting an offense known to the criminal law of this state, where it is -alleged that he failed to cause the arrest or prosecution of women whom he knew were occupying and living in houses df prostitution openly and notoriously, and dressing and conducting themselves in a vile and indecent manner, no warrant for their arrest having been delivered to him, and the crime not having ■been committed in his presence.</p> <p>[5] Id.—Removal of Peace Officer—Failure to Arrest for Misdemeanor—Essential Facts.—Where it is sought t'o remove a peace officer from his office upon the ground that he “has refused or neglected to perform the official duties -pértaáning to his office,” in that he has refused or neglected to arrest, -for a crime amounting to a misdemeanor only, some person whom, it is claimed, it was his duty to arrest—no warrant for such arrest having been issued—two things are essential: (1) That the person whom it is claimed should ■have been arrested committed or attempted to commit a misdemeanor; and (2) that the misdemeanor was committed or attempted to be committed in the officer’s- presence.</p> <p>[6] Id. —Charge That Officer “Permits” Commission of Misdemeanors—Affirmative Acts not Implied.—An allegation in an accusation by a private citizen whereby it is sought to- remove a city marshal from office, pursuant to the provision of section 772 of the Penal Code, that such officer “permits” certain persons to commit certain alleged misdemeanors, amounts to no more than that having received no warrant issued upon a complaint sworn to- by some person moved thereto by a proper sense of civic duty, and not having seen “committed in Ms -presence” any acts sufficient to- constitute any of the offenses denounced by the Penal Code, he made no arrests.</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>[1] Street Law—Improvements Under Public Contract—Personal Liability of Property Owner.—No personal liability can be constitutionally imposed upon a property owner for street improvement under a public contract, but the cost thereof may be imposed as a lien or charge upon the specific property benefited.</p> <p>[2] Id.—San Francisco Charter and Ordinance—Lien for Improvements.—Under section 33, article "VI, chapter II, of the charter of ■the city and county of San Francisco, the board of supervisors had authority to enact, as they did in Ordinance No. 2439 (New Series), that the contractor performing street work thereunder should have a lien upon the property benefited by .the improvement for the cost thereof.</p>

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

<p>[1] Taxation—Equalization of Assessments—Hearing by Board— Evidence—Record.—In the equalization of the assessment of property for the purpose of taxation, there is no provision for taking down of evidence introduced before the county board of equalization at the hearing, or providing for a bill of exceptions to the rulings of such board1; hence any question as to the sufficiency of the evidence to authorize the action of the board must be determined by an inspection of the record itself, in the absence of fraud or malicious abuse of power.</p> <p>[2] Id.—Sufficiency of Evidence—Recital Conclusive.—Where evidence was taken at the hearing before the board of equalization in support of a raise in the assessed valuation of the property, the recital of that fact in the order forecloses discussion as to the suffii cieney of the evidence.</p> <p>[3] Id.—Reversal of Valuation—Equity.—Equity will not inquire into irregularities, nor reverse questions of valuation, unless the valuation is so grossly excessive as to be inconsistent with an exercise of honest judgment, or is so unequal and discriminating as to violate the fundamental law of the land.</p> <p>[4] Id.—Void Assessment—Moral Obligation.—In actions to recover taxes, as well as in actions to enjoin or set aside tax deeds, the law is that when there is a moral obligation to pay the tax, it cannot be revoked! on account of some technical defect rendering the assessment void.</p> <p>[5] Id.—Value of Land—Elements.—In arriving at' the value of land used as a stock ranch, the hoard is not restricted to the value thereof when used for that particular purpose, but should take- into consideration all its capabilities or the uses to which it is adapted.</p> <p>[6] Id.—Judgment of Board Conclusive.—Where evidence is in fact taken by the board of equalization, its decision thereon raising an assessment is, in the absence of fraud, valid and conclusive, and its judgment not subject to the supervision -of the courts.</p> <p>[7] Id.—Assessment-roll—Omission of Dollar-marks and Punctuation—Effect.—A taxpayer cannot recover taxes paid under protest because of the omission on the assessment-roll of the dollar-mark •before the figures and the punctuation marks in the proper places, where it was not misled thereby but went into court and! asked for the exact amount which it claims was paid in excess of that which it contends should1 have been paid.</p>

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

<p>[1] Evidence — Uncontradicted Testimony—Impeachment—Weight. A trial court is not legally bound to accept all testimony adduced ■before it at its face value, or as conclusive, merely because there is mo testimony offered and received in contradiction of it. The manner in which a witness may testify often operates as effectually in the impeachment of the verity of his testimony as would affirmative contradiction thereof by other testimony.</p> <p>[2] Id.—Questions of Fact—Tests Available—Appeal—Review.— The tests available to trial judges and juries for determining questions of fact are obviously not available to reviewing tribunals, and, therefore, when a trial court or jury reaches a conclusion upon the facts, such conclusion is rarely reviewable, and only so when the questions of fact are of such a character from the nature of the evidence as to resolve them into questions of law.</p> <p>[3] Id.—Action to Foreclose Mortgage—Fraud as Defense—Rejection of Defendant’s Testimony—Discretion.—In this action to foreclose a purchase-money mortgage, the only evidence offered in support of a special defense of fraud in the concealment of the existence of a prior mortgage having -been the testimony of the defendant, the situation was not such as to warrant the appellate court in saying that the trial court committed error or an abuse of sound judicial discretion in refusing to accept the defendant’s story.</p>

<p>[l] Pleading—Conversion—Title—‘Striking Out Second Defense— When not Prejudicial.—Where, in an action for damages for the conversion of personal property, the matter of plaintiff’s title to the property is fully covered and put in issue by the allegations of t'he complaint and the first defense pleaded, and the court makes a finding thereon, the defendant is not prejudiced by a ruling of the court sustaining a general demurrer to a second defense pleaded which only puts in' issue the same matter.</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>[1] Reclamation Board Act — Nature of District — Formation — Power of Legislature.—Reclamation districts are, in strictness, not corporations at ail, but rather governmental agencies to carry out a specific purpose—the agency ceasing with the accomplishment of the purpose. It would be perfectly legal and competent for the legislature, delimiting a tract of land, itself to appoint a eommis-, eioner or commissioners to perform all of the functions which, under the existing schemes, are performed by the trustees and the assessors.</p> <p>[2] Constitutional Law — Special Laws — Legislative Power.—The constitution dees not deprive the legislature of the power to pass all special acts; but forbids special laws in all cases where a general law can be made applicable.</p> <p>[3] Reclamation Board Act—Sacramento and San Joaquin Drainage District—Purchase of Warrants by State—Special Legislation.—The act of January 30, 1919, "authorizing the State Board of 'Control to purchase warrants of the Sacramento and San Joaquin Drainage District issued in payment for the expense of continuing the construction of the east levee of the Sutter By-pass; appropriating money therefor, -and providing reimbursement to the State of suehi appropriation,” is not unconstitutional as violative of section 65, article TV, of the state constitution, which prohibits special laws in all cases where a general law can be made applicable.</p> <p>[4] Id.—Lending 'Credit of State—Making Gift—Constitutionality of Act.—Such act of January 30, 1919, does not violate section 31, article IV, of the state constitution, which prohibits the giving or lending the credit of the state" or making a gift “to any individual, municipal or other corporation whatever.”</p> <p>[5] Id.—Act op January 30, 1919—Construction of—Effect op Appropriation of Moneys.—Such act of January 30, 1919, is neither more nor less than an act authorizing the state board of control to invest state money in the warrants duly and regularly issued under the aet. The fact that an appropriation of moneys was made to meet the anticipated purchase did not afEeet the power of the legislature to make the appropriation, or the power of the board: to make the investment.</p>

<p>[1] Divorce—Appointment op Receiver — Sale op Property.—Where, in an action for divorce, the court appoints a receiver to take charge ■of and1 sell the community property, the defendant is not injured by the action of such receiver in selling two cows which he claims were neither community property nor separate property of either spouse, but belonged to- a stranger to the action.</p> <p>[2] Id.—Attorney’s Fee—Allowance by 'Court.—In such a proceeding, the court has authority to make an order for the payment of a fee to the receiver’s attorney.</p> <p>[3] Id.—Account op Receiver — Allowance — Review—Insufficient Record.—The appellate court cannot review the action of the trial court in allowing given items in the account of the receiver where the appellant fails to bring up the evidence concerning them.</p> <p>[4] Id.—Status op Property—Determination by Court—When Res Adjudicata.—In an action for divorce, after the court has determined that certain property i-s community property, and more than six months has elapsed after such determination by the interlocutory decree of divorce, the status of the property becomes res adjudicata and not open to further attack.</p> <p>[5] Id.—Community Property—Jurisdiction.—In a proceeding in divorce, the court has jurisdiction to adjudge the character of any property claimed to be community property.</p> <p>[6] Id.—Interlocutory Decree — Disposition op Property—When Final.—An interlocutory decree of divorce becomes final as to all dispositions of property made therein after the expiration of six months from the entry thereof.</p>

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

<p>[1] Summons—-Service—Return—Jurisdiction—Dismissal of Action. The failure of the plaintiff, in an action to foreclose a street assessment lien for work done pursuant to the provisions of t'he Yroom-au Act, to cause the summons, with proof of service thereof, to he returned within three years after the commencement of the action, deprives the court of jurisdiction to take any other action than to dismiss the case.</p> <p>[2] Id.—Dismissal by Court—Notice.—Where the plaintiff has failed to return- the summons with proof. of service thereof, within three years after the commencement of the -action, the court can dismiss the case without notice to either of the parties.</p> <p>[3] Courts—Transfer and Assignment of Cases.—The judges of the superior court in a particular coun-ty, for the more convenient dispatch of business 'or for any reason they may deem necessary, may assign, or transfer cases for trial to any one or more of the several departments of such court. Notice of such transfer is not required by the statute.</p>

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

<p>[1] Findings — Conflicting Evidence — Review.—Findings based on conflicting evidence cannot be disturbed on appeal.</p> <p>[2] Easements—Adverse User—Permissive Use.—A right of way by adverse user or prescription cannot be based upon a permissive use of the road.</p> <p>[3] Id.—Reservation in Grant — Appurtenant to Dominant Tenement—Parol Evidence.—An easement conveyed hy an express grant may' be shown to be appurtenant to a dominant tenement by reason of facts appearing aliunde the deed, notwithstanding a description of such dominant tenement is not contained in the grant.</p> <p>[4] Id.—Division op Lands—Quasi Easements.—Where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion of it, the purchaser takes the tenement or portion sold with all the benefits and burdens that appear at the time of sale to belong to it, as between it and the property which the vendor retains.</p> <p>[5] Id.—Implied Rights op Way—Knowledge op Parties.—In this state, the doctrine of implied right of way is not limited to eases of rights of way by necessity, but applies whenever the quasi easement is obviously apparent or the parties had knowledge of its existence.</p> <p>[6] Id.—Reservation of Quasi Easement—Effect of Other Reservations.—A quasi easement reserved t'o the grantor upon the severance of Ms estate will not be affected by an express reservation of another right of way for another purpose, especially when the latter reservation is a right of way for future, use.</p> <p>[7] Id.—Construction op Easement — Subsequent Conveyance — Reference to in Deed.—In this action to establish a right of way, the easements involved were appurtenant to the land retained by the common predecessor of the parties at the time of Ms severance of the tract over wMch the right of way was reserved and passed by the subsequent conveyance of the land originally retained without particular reference thereto in the deed.</p> <p>[8] Id.—Suit to Establish—Directed Judgment by Appellate Court. On appeal from a judgment in favor of the defendant in an action to establish such right of way, although the conclusions of the appellate court may be in favor of the appellant’s title, it cannot direct the entry of a judgment in his favor in the absence of findings as to the existence and use of the road prior t'o the execution of the deed to the servient tenement.</p>

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

<p>APPEAL from a judgment of the Superior Court of Log Angeles County. E. P. Shortall, Judge Presiding. Reversed.</p>

<p>[1] 'Corporation Law—Forfeiture of Charter—Title to Property— Bights and Duties of Directors as Trustees.—Under the amendment of 1907 to the act of 1905 (Stats. 1907, p. 746, see. 10a), when a corporation forfeits it's charter for nonpayment of the state license tax, the title to its .property vests in those who are its stockholders at the time of its demise, the directors then in office becoming the trustees for the corporation and the stockholders to settle the affairs of t'he corporation, and as such they have possession of its property, with full power to deal with and dispose of the property as is necessary to settle the affairs of the corporation.</p> <p>[2] Id.—Directors Donees of Power in Trust — P'owers.—The directors in office at the time of the forfeiture of the charter of a corporation in becoming trustees for the corporation and the stockholders become donees of a power in trust—the legal title being vested not" in them, but in third persons—and as such, in the absence of fraud, collusion, or abuse of discretion, they may execute the power without the interposition of any court.</p> <p>[3] Id.—Power of Sale Implied.—Since the “affairs” of a defunct corporation can seldom be settled without a sale or other disposition of at least some of the corporate assets, a power of sale necessarily is implied in the legislative grant of the power “to settle the affairs of the corporation.”</p> <p>[4] Id.—Power to Sell Lease—Unpaid Bents—Bight of Purchaser. The trustees of a defunct corporation, in the settlement of its affairs, have the power to sell a lease to property of which the corporation had been the owner and to transfer the right to all moneys unpaid thereon, thereby vesting in t'he purchaser the right to sue for the recovery of all rents due and unpaid.</p>

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

<p>[1] Judgment — Findings and Conclusions.—Findings of fact and conclusions of law do not constitute a judgment.</p> <p>[2] Appeal fbom Judgment—Dismissal.—Where no judgment appears in the judgment-roll as printed in the transcript, a purported appeal from a judgment will be dismissed.</p>

<p>[1] Street Law—Description op District—Pleading—Finding.—In an action to quiet title and to restrain the issuance of bonds upon plaintiff’s property for street work, an allegation “that said resolution [of intention] described the district,” is susceptible of no other construction than that the district was described so as to be capable of identification, and where such allegation is not denied, a finding “that the description of the district as given in said resolution of intention was not sufficient to identify the same,” etc., is outside of the issues and contrary to the allegations of plaintiff’s complaint.</p> <p>[2] Id.—Findings Outside Issues—Waiver.—While a finding of fact not in issue is sometimes upheld upon the theory that the parties have waived the point by their failure to object to the evidence, the rule cannot be extended to the justification of a finding in favor of a party contrary to Ms allegation, which allegation is not denied by Ms adversary.</p> <p>[3] Id.—Assessment — Inclusion op Improper Item — Appeal — Waiver.—An objection to a street assessment on the ground that it includes an item paid to an abstract company for search of record on the property to ascertain the exact frontage of the lots is waived by failure to present such objection to the council on appeal to that body.</p> <p>[4] Id.—Omission op Lot—Remedy.—If a lot in an assessment district is omitted from the assessment, the remedy of a property owner feeling aggrieved thereby is by appeal to the council.</p> <p>[5] Id.—Sufficiency op Appeal—Proof.—On such an appeal, it is not sufficient for the property owner to allege that various parcels of property within the district have not been assessed to pay their proportionate share of the cost, but he must specify and designate the lot or lots which he claims were omitted, and on the hearing present evidence to the council to support Ms claim.</p> <p>[6] Id.—Issuance op Bonds—Procedure to Prevent.—Since section 4 of the Bond Act of 1893 (Stats. 1893, p. 33) provides a simple procedure whereby a property owner may prevent the issuance, of any bond for the assessment of Ms lot, he is in no position to complain of. the issuance of bonds where he has not pursued the course prescribed.</p> <p>[7] Id.—“Mo Sufficient Legal Resolution”—'Conclusion op Law.— In an action to quiet title and to restrain the issuance of bonds upon plaintiff’s property for street work, a finding that “no sufficient _ legal resolution” of intention was passed is a conclusion of 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>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>EH Pleading — Motion to Strike Out — Exception to Order—Appeal.—Aú order refusing t'o strike out a pleading, or a portion thereof, is not an order deemed excepted to under section 647 of the Code of Civil Procedure, therefore, in order that the objection may be urged on appeal, an exception must be taken at the time the decision is made.</p> <p>[2] Deed op Trust—Sale — Purchase bt Creditor — Payment.— Where property is sold for the purpose of satisfying the indebtedness secured by it, and the property is struck off and sold to the owner and holder of said indebtedness for the amount of the debt, it is not necessary that the property should be actually paid for in gold coin. The consideration for the property is the satisfaction of the indebtedness.</p> <p>£3] Id.—Void -Sale — Second Sale — Authority — Estoppel.—Where in an action in ejectment it was stipulated that the deed under which plaintiff claimed title, which was executed by the trustee following a sale under a deed of trust, was a nullity, and thereupon judgment was entered accordingly, and thereafter the property was again sold to such plaintiff and a second deed issued to her, the trustor will be estopped from asserting in a suit to quiet title following such second sale that the trustee had no power to make such second sale.</p> <p>£4] Quieting Title—Pleading—Deraignment of Title—Ownership —Conclusion of Law.—Where the plaintiff in an action? to? quiet title pleads the specific and detailed facts of her ownership and right of possession to the property in controversy and her special equities growing out of the relations of the parties, the further allegation that “by the proceedings hereinabove mentioned the plaintiff has become, and by such proceedings she now is, the owner of said real property and of the whole thereof,” is but a conelu-. sien of law, the denial of which in the answer will raise no issue. £5] Id.—Insufficient Answer—Judgment on Pleadings.—Where in such action the only denial was of the conclusion of law that the . plaintiff was “the owner of said property and the whole thereof,” the court properly granted plaintiff’s motion for judgment on the pleadings.</p>

<p>APPEAL from an order of the Superior Court of Alameda County appointing a receiver pendente lite. William H. Waste, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] School Daw — Bules of Board of Education — Suspension or Nonobsbrvanoe—Who may 'Complain.—A rule adopted by a board of education prescribing the procedure by which its rules may be amended or repealed is merely a rule of parliamentary procedure adopted for the guidance, and it may be the protection, of the members of the board, which they have power to suspend or ignore when occasion requires, and in respect to their action in so doing, no one but the members of the board have a right to complain.</p> <p>[2] Id.—Suspension by Unanimous Action.—Such a rule is effectually suspended by the board through its unanimous action in passing an amendment without the formality prescribed therein.</p> <p>[3] Id.—Amendment of Bulbs—Notice to Teachers.—A teacher may not be heard1 to complain that she was not legally notified of a change in the rules, in that the principal failed to paste in her copy of the rules a copy of the change or amendment as required by the rules of the board, where she was personally made acquainted with the changed rule through having read the same.</p> <p>[4] Id.—San Francisco Charter—Duties and Relations op Superintendent op Schools—General Law of State.'—The charter of the city and county of San Francisco, in assigning to the superintendent o-f schools, who is made by the charter an ex-officio member of the board of education, the specific duty of presenting charges against teachers for violations of the rules of the board, is to be regarded as a state law of equal dignity with the general laws of the state so long as it is not in conflict with them.</p> <p>[6] Id.—Bias or Prejudice of Superintendent of Schools—Duty to Present Charges.—Since the charter expressly imposes upon the superintendent of schools the duty of presenting such charges, any bias or prejudice which he might have will not affect his right and duty to prepare and present the charges.</p> <p>£6] Id.—Hearing of Charges—Disqualification of Superintendent of Schools.—A teacher who has been dismissed cannot raise the objection, in a proceeding in mandamus to secure her reinstatement, that' the superintendent of schools by reason of bias or prejudice, was disqualified to sit as a member of the board in the hearing and determination of charges which he had himself in the character of a prosecutor laid before that body, where her petition affirmatively shows that such superintendent of schools, while ex offieio a member of the board, didi not in fact sit or act as a member of the board in the final determination thereon.</p> <p>[7] Id.—Quasi-judicial Tribunals—Rules as to Disqualification. In relation, to the acts of such inferior and only guosi-judicial tribunals as boards of education, boards of supervisors, town councils, and other governing bodies of public subdivisions or municipal corporations, the rules relating t'o the disqualification of regular judicial tribunals or officers have but a limited application.</p> <p>[8] Id.—Disqualification for Bias or Prejudice—Presentation of Objection.—An objection that the board of education is disqualified by reason of bias or prejudice to hear and determine the charges presented by the superintendent of schools must be presented at the inception of the hearing and must be supported by affidavits. r</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. 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>ÍH Action on Contract—Finding—Evidence.—In this action brought to recover a stated sum for water alleged to have been furnished to one of the defendants under a written contract, there was substantial evidence in support of the finding of the court that the plaintiff did not deliver the water in accordance with its contract.</p> <p>[2] Vendor and Vendee—Reservation op Right op Wat—Consent to bt Vendees—Intent.—Where an instrument executed1 and recorded by the owner of a tract of land purporting to reserve to “its assigns and successors” a right of way for canals and ditches necessary for irrigation is incorporated by reference in a subsequent agreement of sale covering a portion of the tract, and in sucn agreement the vendees recognize and consent to said “reservation,” in an action by such vendees to recover compensation for land appropriated for such right of way, the court is not justified in resorting to technical refinement as to the meaning of “reservations’" to defeat the manifest int'ent of the parties to exclude such right of way from the operation of the deed to be executed pursuant t'o such agreement of sale. '</p> <p>[3] Id.—Purchase Subject to Reservations—Estopped.—Where such vendees agree that their deed shall be subject to such a reservation of a right of way. for canals and ditches, and, acting upon that agreement, a third person and the vendor enter into a contract under which such canals and ditches are made without any objection from said vendees, the latter will be estopped from claiming that said stipulation and reservation is void.</p> <p>[4] Id.—-Reservations in Favor of -Stranger — Effect of.—An attempted reservation or exception in- a conveyance in favor of a stranger, although not conferring title, may sometimes operate as an admission in his favor, or as an estoppel against the grantor.</p>

<p>[1] Animals—Estbays—Common-law Bule—Application to Fresno County—Limitation op Actions.—The rule of the common law which required every man to keep his beasts within his own close is in full force and effect in its application to pastoral lands in the county of Fresno; and an action for the recovery of damages for the trespass of stock upon such uninclosed lands is not limited as to its time of commencement to sixty days after the commission of the act of trespass complained of.</p>

<p>[1] Proceedings Supplementary to Execution—Third Party Claim —Unwarranted Order.—In a proceeding supplementary to execution, an order directing a third person who was not a party to the action but who has possession of goods belonging to the judgment debtor to deliver such goods to the judgment creditor, is wholly unwarranted where such party claims an interest in the goods.</p> <p>[2] Id.—Warehouseman’s Lien—Adverse Claim.—One who claims a warehouseman’s lien on .property claims an interest in such property adverse to the owner.</p> <p>[3] Id.—Determination op Bights op Parties—Procedure.—A person claiming property adverse to a judgment debtor is entitled to his day in court, with an opportunity for the determination of his rights in an ordinary action, as specified in section 720 of the Code of Civil Procedure, which provides that, in a proceeding supplementary to execution, if it appears that a person having property of the judgment debtor claims an interest therein adverse to such judgment debtor, the judgment creditor may maintain an action against such person for the recovery thereof; and the court may by order forbid a disposition or transfer of the property until, an action can be commenced and prosecuted to judgment.</p> <p>[4] Id.—Order in Excess op Jurisdiction—Violation—Contempt.— Where, in a proceeding supplementary to execution, the court makes an order directing a third person to turn over to the judgment creditor property of the judgment debtor in which said third person claims an interest adverse to said judgment debtor, it acts in excess of its jurisdiction, and the violation of such order by said third person constitutes no warrant for adjudging such third person guilty of contempt and imposing punishment therefor.</p> <p>PROCEEDING in prohibition to prevent the Superior Court of Los Angeles County and Grant Jackson, Judge thereof, from adjudging petitioner guilty of contempt for violation of an order issued in a proceeding supplementary to execution. Writ granted.</p>

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Award annulled.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PROCEEDING in Certiorari to review the action of the Superior Court of Los Angeles County in denying petitioner’s motion to dismiss an appeal from a judgment rendered by a Justice’s Court. Order denying motion annulled.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>tl] Leases — Oral Contract for — Specific Performance. — An oral contract between a landlord and tenant whereby the tenant agrees to execute a new lease to the entire premises when certain additions to he made by the landlord for the benefit of such tenant have progressed to- a given stage is at no period of its existence specifically enforceable.</p> <p>[2] Contracts — Full Performance by One Party — Mutuality — Specific Performance—Divisibility of Covenants.—Neither party to an obligation can be compelled 'specifically to perform it unless the other party has performed, or is liable t'o specifically perform; and under this rule the contract cannot be divided into independent covenants.</p> <p>[3] Leases—Action to Compel Specific Performance—Damages for Breach—Pleading.—In an action to compel specific -performance of an oral contract to execute a lease, the court cannot allow damages for breach of the agreement where no issue of damages is tenderedi, the only allegation of damage in plaintiff’s complaint being a mere conclusion of law “that unless said lease be executed plaintiff will suffer great and irreparable injury and loss.”</p> <p>Iti Id.—Pleading—Equity.—Before a court of equity can intervene, it is necessary to allege the facts entitling plaintiff to the relief sought.</p>

<p>tl] Street Law—Street Opening Act of 1903 — Abandonment of Proceedings—Attorneys’ Fees—Constitutional Law.—The provision of section 14 of the Street Opening Act of 1903, as amended in 1911, that if the proceedings to condemn and take land for street purposes “be abandoned or the action dismissed no attorneys’ fees shall be awarded the defendants or either or any of them,” is contrary to the limitations prescribed by the constitution, and, therefore, may not be enforced.</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>Albert Lee Stephens, City Attorney, and Charles S. Burnell, Assistant City Attorney, for Appellants.</p>

<p>[1] Negligence—Excavation in Public Street—Duty to Public.— A person making an excavation in a public street is under the duty to take such precautions with respect to the excavation made as to avoid danger to users of the street; and in an action for personal injuries sustained hy plaintiff hy falling into such an excavation, evidence that the defendant failed to maintain a substantial harrier around that part of the excavation into which the plaintiff fell, established negligence on the part of the defendant.</p> <p>[2] lb.—Failure to Maintain Barrier—Proximate -Cause of Injury. In this action for personal injuries, the negligence of the defendant in failing to maintain a substantial barrier around that part of the excavation into which the plaintiff fell was the proximate cause of the injury.</p> <p>[3] Id.—Contributory Negligence — Care Required of Minor — Instructions.—In this action for personal injuries sustained hy a minor in falling into an excavation made by the defendant in a public street, the instructions given by the court fully advised the jury as to the degree of care required of a child of tender years and that whether the plaintiff himself was guilty of negligence was for them to determine from all the evidence in the case, taking into consideration his age and capacity.</p> <p>[4] Tj>.—“Measure of Damages.—The law prescribes no definite measure of damages in such a case, hut leaves the amount' of damages to the sound discretion of the jury, taking into consideration- all the circumstances attending the occurrence of the injury.</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>The facts are stated in the opinion of the court.</p>

<p>[l] Promissory Note—Consideration—Action Against Maker—Violation of Covenant Running to Third Party.—In an action on a promissory note executed by tire defendant to the plaintiff as part consideration for plaintiff’s interest in a certain corporation as represented by certain shares of stock held by him therein, which was purchased by defendant under an agreement whereby plaintiff , bound himself not to engage in any business in competition with such corporation for a period of five years, plaintiff’s violation of such clause was not a matter which could be made the subject of a cross-complaint by the defendant.</p>

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

<p>[1] Adverse Possession—Essentials—Construction of Code.—For , the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, it is not necessary, under section 325 of the Code of Civil Procedure, that the land' shall have been “protected by a substantial inclosure” or “usually cultivated or improved” for any specific period of time, but only that it shall have been occupied and claimed and the taxes paid for the period of five years continuously.</p> <p>[2] Id.—Recovery of Possession'of Real Property—Statute of Limitations.—An action for the recovery of the possession of real property is barred by section 318 of the Code of Civil Procedure where neither the plaintiff nor its predecessor “was seised or possessed of the property in question, within five years before the commencement of the action.”</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>[1] Divorce—Adultery—Findings—Evidence—Appeal.—Even though it be conceded that the trial court, in an action for divorce on the ground of adultery, should base it's findings of guilt only Upon evidence convincing to a moral certainty and beyond a reasonable doubt, it would still be the duty of the appellate court to give at least the same weight to the findings of the trial court' as it does to the verdict of a jury in a criminal ease.</p> <p>[2] Id.—Province of Trial Judge.—The acts and conduct constituting adultery are of such a nature that an intelligent, observing, and experienced trial judge making full use of his opportunities to observe the conduct, temperament, manner, and appearance of the witnesses before him is in the nature of things more capable of reaching a just conclusion from the evidence than a court of review, even with the assistance of able and zealous counsel.</p> <p>[3] Id.—False "Charge of Adultery in Former Action — Cruelty— Condonation—Subsequent Misconduct.—In such action, a false charge of adultery made in a former action which is set up as a ground of cruelty is not to be considered as stale, although the parties had subsequent to such former action lived together as husband and wife, where there was subsequent misconduct which caused, and was calculated to cause, great' mental suffering.</p> <p>[4] Id.—Charge of Infidelity — Delations With Others — Admissibility of Letter.—Where, in such action, the plaintiff alleged that the defendant had falsely accused her of infidelity and immorality, the court properly admitted in evidence letters written by the plaintiff to a person other than her husband which contained language that indicated that her relations with such person were of such a character as to leave her no cause for rightful complaint as to her husband’s charge against her of infidelity.</p> <p>[5] Id.—Conduct of Plaintiff—Testimony of Eye-witnesses.—In such action, testimony of other persons that on different occasions they had seen the plaintiff lying on the same bed with the person to whom such letter had been written was likewise relevant and pertinent, tending to contradict the allegations of her complaint.</p> <p>[6] Id.—Charge of Failure to Provide—Bequests for Money—Admissibility of Letters.—Where, in such ease, the plaintiff charged the defendant with willfully failing to provide, on cross-examination of the plaintiff the court properly permitted the introduction in evideuce of a letter written by her to the defendant containing a request for money pud which, in substance and tenor, tended to show the actual relations between the parties as regards money matters.</p> <p>[7] Evidence — Cross-examination — Testimony Admissible.—Rules of evidence are primarily rules of exclusion, and in this state the rule has never been so applied as to relieve a party when under cross-examination from his sworn obligation to tell the whole truth when it might in any degree tend to explain, qualify, or shed light on any relevant testimony given by him on direct examination.</p> <p>[8] Id.—Reputation in Place op Former Residence—Admissibility. It is a question for the court to determine whether or not' general reputation in a place of former residence is too remote in point of time to be allowed in evidence.</p> <p>[9] Id.—Reputation.—Where, in an action for divorce on the ground of adultery, it appears that the witnesses have never discussed the reputation of the plaintiff “except in the family,” their testimony might properly be stricken out on motion, if such motion be made.</p>

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

<p>[i] Appeal—Action fob Divobce—Minute Entbt op Decision—Want op Findings—Subsequent Obdeb not Appealable.—In an action for divorce, ap order entered in the minutes of the court, after issue joined and trial, denying to both parties the relief prayed for, does not'constitute a final judgment where findings have not previously ’been made and filed with the clerk, or been waived, and an order thereafter made denying plaintiff's motion for an order directing the clerk to issue an execution against the defendant for unpaid alimony is not appealable under section 963 of the Code of Civil Procedure.</p>

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

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Award annulled.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Warehouses—Liability op Warehouseman—Right to Limit by Provision in Receipt.—In view of the provisions of section 3 of the “Warehouse Receipts Act” (Deering’s Gen. Laws 1915, p. 2022), a warehouseman, by the insertion of a provision in his warehouse receipt that goods are deposited “for account and at the risk of” the depositor, cannot relieve himself from the liability imposed by section 21 of the act, which provides that a warehouseman shall be liable for any loss or injury to goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise.</p> <p>[2] Id.-—Increased Liability by Contract.—While a warehouseman cannot exempt himself from the liability thus imposed by law, he may by special contract assume liability for loss of goods due t'o any cause, thus making himself an insurer thereof.</p>

<p>[1] Divorce—Desertion—Refusal to Have Reasonable Intercourse —Insufficient Corroboration.—In an action for divorce on the ground of willful desertion based upon persistent refusal to have reasonable matrimonial intercourse as husband and wife, where the corroboration of the plaintiff’s testimony was merely the testimony of other witnesses that the parties, though living in the same house, occupied separate bedrooms, it was not of the character and degree required by the code section relating to corroboration in ^ divorce cases.</p> <p>[2] H>.—Evidence—Difficulty to Corroborate—Effect.—While t'he secrets of the bedchamber are very frequently hard to substantiate by other witnesses than the parties themselves, nevertheless the parties to such divorce action are not thereby relieved from t'he necessity of complying with the mandate of the law respecting corroboration.</p> <p>[3] Id.—'Physical Condition of Defendant—Burden of Proof.—In this action for divorce on the ground of willful desertion based upon persistent refusal to have reasonable matrimonial intercourse as husband and wife, there was no testimony nor were any facts elicited, tending to show that the health or physical condition of the defendant did not make his refusal t'o have reasonable matrimonial intercourse reasonably necessary. The burden of establishing this ' fact rested on plaintiff.</p> <p>[4] Id.—Pleading—Sufficiency of Complaint.—A complaint for divorce on the ground of willful desertion which contains the usual general allegation that ‘‘defendant willfully and without cause, or provocation, deserted and abandoned plaintiff, with intent to desert said plaintiff, and ever since said time has continued to live separate and apart from plaintiff without her consent, and against her will, and with intent to desert and abandon her, and without fault of plaintiff,” in the absence of a demurrer for a definite statement of the facts, is not subject to the objection for the first time on appeal that it does not inform defendant that the desertion was intended to be established under the first provision of section 96 of the Civil Code.</p>

PROCEEDING in mandate to compel a trial judge to certify to the correctness of a reporter’s transcript. Dismissed. The facts are stated in the opinion of the court.

<p>[1] Negligence — Action fob Personal Injuries — Fall of Fan in Theater—Bes Ips^a Loquitur—Instructions.—Where a fan which was installed in a theater, and which was exclusively within the charge and control of the owner thereof, pulled or dropped away from its motor bearings and fell and injured' one of the patrons, the accident was such as to make applicable, in an action against such owner for the injuries thus caused, instructions as to a presumption of negligence under the rule of res ipsa loquitur.</p> <p>[2] Id.—Improper Belease of Employee.—The fact that the employee who installed the fan was improperly exculpated in such action is not a matter of which the owner, who was held liable, is in a position on appeal to complain.</p> <p>[3] Id.—Special Damages — Proof — Instructions.—In such action, the court properly instructed the jury that the expenses incurred by the plaintiff for services of physicians and the value of time lost were “subjects of direct proof, and are to be determined only on the evidence which the jury has before it,” while the other elements of damage were from necessity left to the sound discretion of the jury.</p> <p>[4] Id.—Proof of Negligence—Instructions.—In such action, where the general charge of the court as given advised the jury that the burden was upon the plaintiff to sustain the allegations made, there was no error of a substantial nature in refusing to give a particular instruction offered by the defendant which narrated the several things contained in the charging part of the complaint as constituting negligence, and advised the jury that plaintiff was required to make proof thereof.</p>

<p>[1] Partnership — Action Against — Finding as to Existence op — Sufficiency of Evidence.—In this action against three alleged members of a copartnership, there was sufficient evidence to support the finding of the trial court that a copartnership was not shown to have existed between the defendants so as to render one of them liable upon the obligations created as between the other two and the plaintiff.</p> <p>[2] Id.—Admissibility of Parol Evidence.—Where one of the defendants in such action bad merely pledged his credit at a certain bank that the other two might secure certain money, in consideration of his receiving one-third of the profits to he derived from the enterprise contemplated by the other two defendants, and such money was to be repaid out of the first .profits, the court properly admitted parol evidence to show that he was not' a partner, notwithstanding the terms of the written agreement between the defendants strongly indicated that relationship between them, where the plaintiff had no knowledge of the existence of any partnership relationship between the three defendants and did not extend credit to them upon the belief that such relationship existed.</p> <p>[3] Id .—'What Constitutes—Division of Profits not Sufficient.— The mere oral agreement between two or more persons to divide the profits of an undertaking is hot sufficient to constitute them partners. It is the association of two or more persons for the purpose of carrying on business together which is the distinguishing feature of a partnership.</p>

<p>[1] Appeal—Alternative Method—Section 953c, Code op Civil Procedure, Construed.—Section 953e of the Code of Civil Procedure, governing the taking of appeals under the alternative procedure, is positive in its requirements.</p>

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

<p>[1] Street Law — San Francisco Ordinance — Action to Foreclose Lien — Proper Apportionment of Assessment — Insufficient Answer.—In this action to foreclose a lien for street work under ■public contract there was no denial of plaintiff’s averment that the board of public works “duly and regularly” made an assessment to cover the sum due for the work performed in conformity with the provisions of the San Francisco Street Improvement Ordinance (No. 2439), sufficient to raise the issue as to whether or not such board properly apportioned the assessment as directed by such ordinance; and the averment of the defendants’ answer was ineffectual to present such issue.</p> <p>[2] Id. — Defective Assessment — Irregularity — Remedy. — Even though such assessment was defective in that it was not properly apportioned as directed by the ordinance, the defect was not such as would render the assessment void upon its face, but at most was only an irregularity which could and doubtless would have been corrected upon an appeal to the proper board under section 21 of the ordinance in question.</p> <p>[3] Id.—Errors Constituting Defense to Action.—It is only such errors as are jurisdictional and which appear upon the face of the assessment' that may be taken advantage of upon the trial without an appeal having been first made to the board.</p> <p>[4] Id.—Recordation of Warrant, Assessment, and 1 Diagram—Collective Indorsement.—Where the record shows that the warrant, assessment, and diagram were indorsed as having been duly recorded on the same day on which they were filed of record, the fair intendment is that this indorsement was made upon t'he originals where it should appear. The fact that such indorsement was collective as to all three of these documents and not made upon each separately is immaterial.</p> <p>[5] Id.—Failure of Secretary to Authenticate Record.—The failure of the secretary of the board of public works to attach his signature to the record of the return of the assessment and warrant does not render the lien invalid nor prejudice the holder of the warrant.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County. D. M. Young, Judge. Modified and 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 from a judgment of the Superior Court of the City and County of San Francisco. Jas. M. Troutt, Judge. Reversed in part; affirmed in part.</p> <p>The facts are stated in the opinion of the court.</p>

<p>LU Sales—Option to Cancel Contract—Exercise Within Reasonable Time.—Where a contract for the purchase of grapes provides that if the tax on hrandy used in fortifying wines shall be increased from a given sum per. gallon, the purchaser might at its option terminate the contract by giving notice to that effect, and thereafter such tax is increased, the purchaser exercises its option to cancel the contract within a reasonable time where it gives the notice of cancellation two and one-half months before the commencement of the vintage season, or seven months after the occurrence of the event giving rise to the right of cancellation, where such delay is not for any unfair purpose and the growers have suffered no loss or prejudice because of such delay.</p> <p>[2] Id.—When Time Material—Object oe Law.—Time is material in such cases so far only as, when associated with other circumstances, it may produce injury or unjust consequences.</p>

<p>[1] Pleading—Waiver or Estoppel as to Defense.—If the plaintiff relies on waiver or estoppel as to any defense which would otherwise be available to the defendant under the facts stated in the complaint, the facts constituting such waiver or estoppel must be pleaded in the first instance.</p> <p>[2] Mechanics’ Liens ■—Notice of Completion — Delayed Filing of Claim'—Defense—Estoppel—Pleading—Proof.—Where, in an action to foreclose a mechanic’s lien, notice of claim of which was filed more than sixty but less than ninety days after the completion of the work, the plaintiff relies upon the failure of the defendant to file the notice of completion provided for in section 1187 of the Code of Civil Procedure, he must plead and prove the facts constituting such estoppel.</p>

<p>PROCEEDING to disbar an attorney at law. Accusation dismissed.</p> <p>The facts are stated in the opinion of the court.</p>

APP-EAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Curtis D. Wilbur, Judge. Affirmed. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco modifying a final decree of divorce. J. J. Trabucco, 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>[1] Street Law — Vrooman Act — Careful Estimates of Costs and Expenses—Furnishing by City Engineer—Compliance With Act —Pleading.—In an action to quiet title against a lien arising out of the issuance of a bond for street improvements, an allegation in the answer “that before the passing of the resolution . . . careful estimates of the costs and expenses thereof had been required by it to be furnished to said common council by the city engineer of said city,” in the absence of special demurrer, shows a sufficient compliance with section 3 of the Vrooman Act, which provides that “before passing any resolution for the construction of said improvements, plans and specifications, and careful estimates of the cost and expenses thereof shall he furnished to said city council if required by it, by the city engineer of said city.”</p> <p>[2] Id.—Statement of Estimates—What Constitutes.—A furnishing by the city engineer of specifications or a specification of “a careful estimate” is in substance and effect the furnishing by him of a statement of the estimates.</p>

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

<p>[1] Account Stated — Action upon — Recovery.—In a suit upon an account stated, the plaintiff must recover upon the account stated or not at all.</p> <p>[2] Id.—Nature op.—An account stated constitutes a new contract, either express or implied, into which all prior negotiations merge.</p> <p>[3] Id.—Basis op.—An account stated must be based on prior dealings out of which an indebtedness arose.</p> <p>[4] Id.—Architect's Services—Rendition op Bill—Failure to Object—Implication.—Where a bill for architect’s services in connection with the construction of a building is rendered to the owner, in care of her agent, and neither such owner nor her agent objects to the account, the implication of an account stated thereupon arises as a matter of law.</p> <p>[5] Principal and Agent—Undisclosed Principal—Rights op Third Persons.—Where one deals with another believing him to be the principal, on subsequently learning that he was dealing with an agent' of an undisclosed principal, he may recover either from the person with whom he dealt or from the undisclosed principal.</p> <p>[6] Id.—Knowledge op Agent Imputed to Principal — Failure op Agent to Communicate.—The fact that an agent fails to communicate certain knowledge to his principal cannot change the rule of law that the knowledge of the agent is imputed to the principal.</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>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Thomas F. Graham, 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>The facts are stated in the opinion of the court.</p>

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

<p>[1] Criminal Law — Appeal — Failure to Appear — Examination op Record.—Where on appeal in a criminal ease no brief is filed on behalf of the appellant -and no appearance is made by or for him when the cause is, in its regular order, called for hearing and argument, and the case is submitted upon the record, it is not necessary that the reviewing court should enter into a minute examination of the facts. A general, or cursory, examination of the record is all that is required.</p>

<p>[1] Contracts—Sale of Truck—Failure of Sellers to Perform—Rescission by Consent.—Where the sellers, without performance of their promise to furnish the buyer with a truck of a given capacity, in the absence of which no duty is imposed upon the buyer to pay the note given as payment, demand the return of the truck and the buyer complies therewith, a rescission by consent is implied from such acts. ,,</p> <p>[2] Id.—Rescission by Buyer—Compliance With Code.—The refusal of the buyer to pay the note given in payment of the truck on account of the fraud of the sellers, and the returning of the truck upon t'he discovery of the fraud, is all that he is required to do by section 1691 of the Civil Code to accomplish a rescission.</p> <p>[3] Id.—Conditional Sale—Lease—True Character of Agreement— Form Immaterial.—While the law applicable is the same whether the agreement between the sellers and the buyer of a truck constitutes a conditional sale or a lease thereof, the sellers cannot, by designating the contract a lease, take from it its true character as a contract for the conditional sale of the truck where the parties clearly contemplate a sale by the one and a purchase by the other.</p>

<p>[1] Mining Law—Notice of Location—Sufficiency of Description. .' In this action, to quiet title to a copper mining claim, the trial court was justified in concluding that there was an honest attempt by defendants, who claimed under a prior notice of location, to locate said land, that there was a sufficient compliance with the requirements of the law, and that plaintiff had full knowledge of the extent of defendants’ claim.</p>

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

<p>[1] Sales—Loss of Goods Bn Route—Assumption of Risk.—The risk of loss or' destruction of goods while en route from seller to purchaser is placed where the title resides.</p> <p>[2] Id.—C. O. D. Shipments—Passage of Title—Intent—Presumption.—Where goods are shipped G. O. D. and the bill of lading with draft attached is sent t'o the local bank of the purchaser, it will be presumed, in. the absence of evidence showing a contrary intention, that the vendor did not intend that the ownership and right to the possession of the goods should pass to the purchaser until the draft was paid.</p>

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

<p>[1] Pleading—Action upon Joint and Several Liability—Right to Proceed Against Certain Defendants Only—Judgment.—In an action prosecuted against several defendants upon their joint and several liability, the plaintiff may, under section 414 of the Code of Civil Procedure, proceed against such of the defendants as have been served with process as if they were the only defendants, and the court may render a several judgment against any defendant therein without regard to the liability of any other defendant.</p> <p>[2] Landlord and Tenant—Bond Guaranteeing Payment of Rent— Time for Giving—Extension by Lessor.—A provision in a lease requiring a bond guaranteeing payment of the rent thereunder to be executed on or before a given date is clearly for the benefit of t'he lessor; therefore, the time for the giving of such bond may be extended by the lessor.</p> <p>[3] Id.—Option of Lessor to Require Bond—Time Within Which to be Exercised—Extension—Waiver.—Where the lease does not provide at what date the option of the lessor to make the giving of the bond a condition precedent to the taking effect of the lease must he exercised, it will be presumed that it is to be exercised within a reasonable time. The lessor might be indulgent with the lessee in the matter of extending his time without waiving the option secured to it under the lease.</p> <p>[4] Id.—Time of Taking Effect of Lease — Effect of Conditions Precedent.—Provisions in a lease that the execution of á bond guaranteeing the payment of the rent and that the expenditure of a certain sum of money by the lessee upon the premises for lights, display signs, etc., shall at the option of the lessor be conditions precedent to the lease taking effect, indicate that the parties do not intend the lease to take effeet' at the time it is signed. A condition precedent is one which must be performed in order to have any rights vest.</p> <p>[5] Id .—Agreement to Execute Bond—Effect of Subsequent Provision.—Where a lease provides that the lessee will execute and deliver to the lessor on or before a given date a good and sufficient undertaking, in a specified sum, conditioned for the payment of the rent therein reserved, a subsequent provision that “the executing and delivery of said bond” shall at the option of the lessor “be a condition precedent to this lease taking effeet” will neither limit nor enlarge the rights of the lessor or the lessee.</p> <p>[6] Id.—Subsequent Execution of Bond—Effect—Consideration.— In such case, where a bond, though executed subsequent to the time originally contemplated, is the one originally provided for, it relates back to and takes effect in pursuance of t'he original agreement and is supported by the original consideration.</p>

<p>[l] Mechanics’ Liens—Abandonment of Contract—"Value of Work Performed—Sufficiency of Findings.—In an action to foreclose contractors' and materialmen’s liens, under section 1200 of the Code of Civil Procedure, prior to its repeal in 1911, a finding, “that the value of the work' and materials already done and furnished at the time of the abandonment of said work and contract” by t'he contractor, “including materials then actually delivered and on the ground, estimated as near as may be by the standard of the whole contract price, exclusive of t'he extra work,” was a certain aggregate sum, being a given per cent of the contract price, “on account of which there had been paid the contractor” at the time of the abandonment a stated sum, followed by a finding as to the reasonable value of the extra work performed under authorization from the owners, the amount paid on account thereof, and the balance due therefor, was a sufficient finding of fact.</p> <p>[2] Id.—Eight to Abandon Contract — Payment of Liens — Proportion op Contract Price Applicable.—Section 1200 of the Code of Civil Procedure, as it existed prior to its repeal, recognized that a building contract might be terminated by abandonment, and provided a method of arriving at the proportion of the contract price applicable to liens in that event. Under it', upon abandonment, the performance of the contract came to an end, and the rights of all parties thereunder were to be adjusted as of that date.</p> <p>[3] Id.—Amount Applicable to Payment op Liens—Proper Finding. In such action the court, having found that at the time of the abandonment the contract had been a given per cent completed, properly held that that per cent of the contract price, less payments made, was applicable to the discharge of liens which had accrued prior to the abandonment. The actual cost of completing the building was immaterial.</p> <p>[4] Id.—Action to Foreclose Lien—Judgment-roll in Another Action not Admissible.—In such action the court properly sustained an objection to the admission in evidence of the judgment-roll in another action by the same plaintiff against the defendant contractor, wherein the plaintiff had recovered a judgment, which on execution issued thereon was satisfied, where there was an entire absence of evidence connecting the subject matter of the former action with that in the suit before the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, John Hunger, City Attorney of Pasadena, William Hazlett, City Attorney of South Pasadena, Alfred Barsto.w, City Attorney of Alhambra, and Rohe & Jeffers for Appellants.</p>

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

<p>[1] Disqualification of Judges — Voluntary Withdrawal from Trial of Case —Qualification to Make Subsequent Order " Therein.—Where the judge of the county, although there is no showing of actual disqualification made, voluntarily retires from the trial of a ease because of an intimation that he was persona non grata to plaintiff, he is not thereafter disqualified from making an order extending t'he time of defendant within which to prepare and serve its proposed bill of exceptions.</p> <p>[2] Deeds—Railroad Right of Way—Duration of Estate—Construction of Conveyance.—A deed to a railroad corporation which recites that for and in consideration of encouraging and promoting the construction of a railroad, and for other considerations, the grantor conveys the land described in such deed to the railroad company and its successors during “the legal existence of said company,” upon certain specified conditions, and which deed provides that, upon the breach by the said railroad company, or its successors, “of any of the aforesaid conditions, thi? grant shall become void, and the estate conveyed hereby . . . shall cease and determine, and the said lands shall absolutely revert to the said party of the first part [the grantor], his said heirs and assigns, in fee simple, . . . and shall in like manner, at the expiration of the legal existence of said company, revert to said party of the first part, his heirs and assigns, anything hereinbefore contained, to the contrary, notwithstanding” shows an intention to limit the duration of the grant to the period of the legal existence of the company, .and not an intention to irrevocably dedicate the land to railroad use upon a condition subsequent.</p> <p>[3] Id.—Conveyance op Reversionary Interest — Construction of Deed.—A deed, made by the successor in estate of the grantor, conveying a large tract of land within which such right of way was included, conveys to the grantee the reversionary interest of the grantor therein, notwithstanding such right of way is reserved and excepted in the granting clause, where such clause is immediately followed by an explanatory provision showing an intent and purpose on the part of the grantor to convey such right of way to the grantee.</p> <p>[4] Id.—Eminent Domain—Taking op Property—Rights op Owner and Subsequent Grantees — Effect on Contract op Railroad Company.—While it is true that where land has been taken for public use without compensation being first made, and its continued possession is necessary to such use, the owner cannot recover possession of the land itself, but can only compel payment for the same, and that the right to compensation accrues at the time of the taking, and while it is also true that this right, to compensation is a personal one which does not run with the land, nor pass by conveyance thereof after the right accrues, these doctrines in no way affect or abridge the right of the railroad corporation to enter into a binding obligation or contract with reference to land taken by them for rights of way, and such agreements when made stand on the same footing as any other contract for the conveyance of land.</p> <p>[5] Id.—'Private Contracts op Railroads—Public Policy.—In such cases public policy does not enter into the question, nor is it at all concerned with the private contracts of railroads unless they interfere with the public welfare.</p> <p>[6] Id .—Acceptance op Conditional Conveyance — Expiration op Term—Rights op Parties.—A railroad may accept a conveyance of land upon any condition that may lawfully be annexed to an ordinary grant; and such a contract may create an estate less than a fee in land taken for a right of way. If at the expiration of the estate granted the land is necessary for the railroad for railroad purposes, and the corporation or its successor elects to continue its use for a right of way, it can do so by compensating the reversioner; otherwise, it' must abandon such portion of the right of way and surrender possession to the owner of the estate in reversion.</p> <p>[7] Pleading—Office op Supplemental Complaint.—A complaint (or one as amended) and a supplemental complaint are to be considered as separate pleadings, the office of the supplemental complaint being merely to bring to the notice of the court, and the opposite party, matters which occurred after the commencement of the action, and which do, or may, affect the rights asserted and the relief asked in the action, as originally instituted.</p> <p>[8] Corporations — Forfeiture of Charter — Nonpayment of Franchise Tax—Evidence.—Forfeiture of the charter of a corporation in a given year .by reason of failure to pay its franchise tax cannot be proved by testimony of a deputy of the Secretary of State that he made due search of the records in the office of the Secretary of State for the purpose, and found that no tax had been paid by the corporation for that year.</p> <p>[9] Id.—Irrelevant Evidence—Refusal of—Instruction.—Where the evidence as to the forfeiture of the charter of a corporation is irrelevant to any issue of the case, it is not error to refuse t'o instruct the jury on the question of such forfeiture.</p>

<p>The facts are stated in Conlin v. Southern Pacific B. B. Co., ante, p. 733, [182 Pac. 67].</p>

<p>[1] Waters and Water Eights — Use op Water op Particular Stream—Eight op Company to Supply Other Water.—Where a property owner has no interest in the water of a particular stream from which the company furnishing her with water obtains its supply, she has no right to complain because such company sells all or any part of the water from which it supplied her at any particular time, so long as it keeps in its pipes other water of fair quality and reasonable in quantity and pressure.</p> <p>[2] Id.—Bight op Water Company to Abandon Business.—Where such property owner was without any right of use in the water itself, even though the company had abandoned its business of supplying property owners with water and thus left its supply pipes empty, she could not have complained.</p> <p>[3] Id.—Supplying op Water by Municipality — Eight to Compel Extension op System.—From the fact that a municipality may engage in the business of supplying its inhabitants with water, it does not follow that every property owner or taxpayer, however remote his land may be situated from the distributing system, can by mandate compel such extension of the system as will make available to him that supply. It would be most unreasonable t’o hold that a municipality must establish an expensive system of distributing lines to reach isolated inhabitants or to supply one or two persons living in places remote from well-settled districts; and more particularly is this true where the person asking for such service already has at his door water in sufficient quantity and of reasonably good quality.</p>

<p>[1] Mortgages—Signature by Wife—Relating to Obligation.—Where the wife signs a mortgage given as security for the payment of a community debt, she is not merely a surety, but one of the principal obligors to the mortgage.</p> <p>[2] Id.—Hypothecation op Community Interest—Consideration.— A promise by the mortgagee “to put up barley and groceries and summer-fallow the land,” and to bring no action until after harvest, constitutes sufficient consideration to support the hypothecation by the wife of her interest in the community real estate.</p> <p>[3] Id.—Existence op Prior Mortgage—Effect on Foreclosure op Subsequent Mortgage.—The foreclosure of a mortgage will not be barred by the existence of another prior mortgage which is security for the same debt, even though the prior one is a chattel mortgage.</p> <p>[4] Id.—Foreclosure — Marshaling op Assets — Preservation op Homestead.—Where a creditor holds two mortgages as security for the same indebtedness, one of which covers real property on which a declaration of homestead has been duly executed and recorded, the humane policy of the law requires that such homestead, if possible, be preserved for the use and home of the family, and that the creditor first exhaust the other security in satisfaction of the indebtedness.</p> <p>[5] Id.—Effect of Security Being Included in Two Mortgages— Bights Where Both Cover Community Property.—Ij; can make no difference in the application of the principle requiring the creditor to first exhaust other than the homestead property given as security that the security is included in two mortgages instead of one, or that one covers personal property instead of real estate; nor is the question affected in the least by the fact that both mortgages cover community property.</p>

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

<p>[1] Action for Divorce—Venue.—The statute requires that an action for divorce must be brought in the county of the residence of the plaintiff.</p> <p>[2] Id.—Joinder of Fraudulent Grantee of Husband.—A wife’s action for divorce against her husband and her husband’s brother, who is alleged to be the fraudulent grantee of the husband, wherein the wife, in addition to seeking a divorce, alimony, counsel fees, and costs, prays that the conveyance and transfer of her husband to his brother be decreed to be fraudulent and void as to her, and that a lien be imposed upon the property as security for the payment of such sums as may be directed by the court to be paid by the husband, does not constitute two causes of action; and such ease is not within the provisions of section 5 of article VI of the bonstitution or section 362 of the Code of Civil Procedure relating to place of trial.</p> <p>[3] Id.—When Section 362, Code of Civil Procedure, Applicable.— An action must be wholly local in its nature to require it to be brought in the county designated by section 392 of the Code of Civil Procedure.</p> <p>[4] Divorce—Existence of Community Property—Pleading—Proof. In an action for divorce, in the absence of an allegation that there is community property, the presumption is that there is no community property.</p> <p>[5] Id.—Provision for Support of Wife—Liability of Separate Property of Husband.—In an action for divorce, provision is to be made for the wife, and where there is no community property, it must be from the separate property of the husband, either owned or to be acquired by him. No reason exists why either the wife or the chancellor should forego the certainty of recourse to property owned by the husband for the uncertainty of speculation regarding future earnings.</p> <p>[6] Id.—Alimony—Fraudulent Conveyance by Husband.—The husband cannot put his separate property out of his hands for the purpose of defeating his wife in an anticipated application for alimony.</p>

<p>[1] Community Property — Presumption — Rebuttal Evidence.—In this action to quiet title to certain real property claimed by one of ■the defendants to have been the community property of herself and •plaintiff's predecessor, the presumption that the property was community in character, it having been acquired during coverture, was overcome .by the positive testimony of plaintiff’s predecessor that it was paid for out of money received for the sale of other land which he owned prior to his marriage to such defendant.</p> <p>[21 Appeal—Findings—Suspicious Circumstances.—It is idle to ask an appellate court to set a finding aside because the circumstances may be somewhat suspicious and there may he some reason for believing that plaintiff’s predecessor was trying to defraud his wife.</p> <p>[3] Deeds—Presumption op Delivery.—Where a deed is read in evidence without objection, it carries with it the presumption of delivery at its date.</p>

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

<p>[1] Contracts—Purchase of Note—Indemnity Against Loss—Consideration—Findings.—In an action upon an agreement made subsequent to the sale of a promissory note and its security whereby the defendant agreed to protect plaintiff against loss or damage arising from the sale thereof by defendant himself, it is not necessary to decide whether the contract sued upon is á contract of guaranty and supported by a sufficient consideration where it is found that the contract was supported by a sufficient consideration.</p> <p>[2] Findings—Conflict—Construction of.—The findings of the trial court are to be liberally construed in support of the judgment, and iall the findings are to be read together. If possible, they are to be reconciled so as to prevent any conflict on material points.</p> <p>[3] Judgment—Reversal—Conflicting Findings.—A judgment will not be reversed on the ground of conflict in the findings unless the findings are incapable of being harmoniously construed.</p> <p>[4] Pleading—Issue as to Consideration—Findings—Appeal—Presumption.—Even if the allegations of the complaint and answer in an action upon a contract do not raise the issue of the consideration for the execution of the contract, upon an appeal on the judgment-roll alone, it must be presumed in support of the judgment of the trial court that the evidence by which the existence of a sufficient consideration was established was received without objection, and that the case was tried by consent of the parties as if such issue had been properly raised.</p> <p>[5] Contracts — Indemnity Against Loss on Purchase op Note— Statute op Limitations.—An agreement made subsequent to the sale of a promissory note and its security to protect the purchaser against any and all possible loss or damage that he might sustain by not being able to in any manner realize the full benefits of the note and security or to recover the full amount of said note is a contract of indemnity, rather than a contract of guaranty, and a, right of action thereon does not accrue against the indemnitor until the person suffers the loss against which the contract protects him,</p>

<p>[1] Contracts — Oral Agreement to Make Gift of Land — Specific Performance.—An oral contract to make a gift of land, followed by possession on the part of the donee an-d the making of valuable improvements thereon in reliance upon such agreement, is sufficient to justify -a decree of specific performance on the part' of the donor, or the party standing in his place with notice of the rights of the donee, where the property covered by the contract is fully identified.</p> <p>[2] Id.—Full Performance by Vendee — Running of Statute of Limitations.—When there exists a contract to convey land and the vendee has fully performed and nothing remains to he done on his part, the vendor and those who take the land with knowledge of ■ the vendee’s rights then hold the bare legal title in trust for the benefit of the vendee; and while the cestui que trust is in possession, the statute of limitations will not run against him.</p> <p>[3] Id.—Repudiation op Trust—Running op Statute op Limitations. In such a case, if the trustee wishes to start in operation the statute of limitations, he must in some way repudiate the agreement and must take possession, either in person or by agent, in order to break the relation his vendee sustained to him under the agreement before the statute will commence to run. Mere notice that the agreement' is terminated and that the vendor desires possession is not sufficient.</p> <p>[4] Id.—Enforcement of Conveyance by Cestui Que Trust.—In such a case, the cestui que trust, having the equitable title, is entitled to enforce a conveyance of the naked legal title as an incident to such equitable ownership. As long as the equitable title exists, it must exist with all its incident's.</p> <p>[5] Id.—Action to Compel Specific Performance — Consideration— Pleading.—In an action in equity to compel the specific performance of an oral agreement to make a gift of land, it is not necessary that the plaintiff allege in express language that the defendant received a valuable consideration, but only that he set out the facts and the value of the lands and that it affirmatively appear therefrom that the consideration was adequate.</p> <p>[6] Id.—Oral Agreement to Make Gift—Statute of Frauds.—Such a contract to make a gift of land need not be in writing where it has been partly performed and valuable improvements have been made upon the property.</p>

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