Volume 41 — California Appellate Reports

<p>[1] Street Law—Redemption from Sale—Duration op Right.—The right of redemption from a tax sale, or from a sale under the Street Improvement Act, continues in the owner indefinitely until notice of redemption is given and a deed executed in accordance with the provisions of the statute.</p> <p>■[2] Id.—Notice op Redemption—Personal Service.—The service of notice of redemption upon the owner, as provided by section 17 of the Street Improvement Act (Stats. 1909, p. 1051), means personal service.</p> <p>[3] Id.—Strict Compliance With Statute Essential—Want op Injury Immaterial.—Assessments for street improvements, like tax proceedings, are in. imitwrn, and where the statute prescribes the notice which is to divest the owner, of his title, that notice must be given. It is never a question whether, by reason of some omission, the owner has been injured or misled, but whether there has been a compliance with everything the law makes a condition precedent to the right to a deed.</p> <p>[4] Id.—Lands Held in Co-ownership — Assessment and Sale.— Under the Street Improvement Act the undivided interest of each co-owner is neither assessed nor sold separately, but each parcel of land is assessed and sold m solido.</p> <p>[5] Id.—Redemption by Tenant in Common.—A redemption by a tenant in common is a redemption of the entire estate, and not merely of his undivided interest, though he doubtless would have a claim against his eotenants for reimbursement to the extent of their proportionate shares.</p> <p>[6] Id.—Termination op Bight op Bedempiton op Co-owners.—The •purchaser at a tax sale cannot proceed by “piecemeal” to cut off the right of redemption of each part owner. If the whole estate be owned in common by two or more as cotenants, and if any of them retains the right to redeem, all may redeem.</p> <p>[7] Id.—Application por Deed—Certainty op Notice.—A notice of redemption must fix a definite and certain time when the purchaser will apply to the tax collector for a deed.</p>

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

<p>[1] Building 1 Contracts—Abandonment of Work—Determination of Jury — Sufficiency of Evidence.—In this action by the owner against the contractor and his surety for damages for breach of a building contract, the determination of the jury upon the issue as to the abandonment of the work by the contractor was supported by ample evidence.</p> <p>[2] Id.—What Constitutes Abandonment.—In law, the word “abandonment” does not necessarily imply a willful or culpable disregard of the contractor's obligations. It may, as in this case,- be applied .to a condition of affairs where, through misfortune, the contractor is unable to finance -his contract, or by reason of his mental or physical incapacity be precluded from carrying on his work or attending to the business incident to it.</p>

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

<p>[1] Banks and Banking—Deposit in Name op Patee op Note—Title to Money.—"Where the maker of a promissory note deposits the amount of the note in a savings bank in the name of the payee and then sends the pass-book to the- latter, accompanied by a letter notifying him that the deposit is made to repay the indebtedness, upon receipt of which the payee returns the promissory note to the maker, the latter parts with the title to the money and cannot set up any claim to it.</p> <p>[2] Id.—Bights op Attaching Creditor.—The person making such bank deposit having no claim t'o the money, his attaching creditor is in no better position.</p> <p>1. Negotiability of pass-books, note, 105 Am. St. Bep. 743.</p>

<p>[1] Vendor and Vendee—-Failure of Consideration—Right of Vendee.—In this ease, the long-continued failure of the vendor to make certain street improvements in accordance with its agreement with the purchaser constituted a -clear failure of consideration, and, under the terms of subdivision 4 of section 1689 of the Civil Code, entitled the latter to rescind the contract.</p> <p>[2] Id.—tExtension of Time for Performance—Waiver of Right to Rescind.—The right of the vendee to rescind such contract was not waived by her acceptance of the vendor’s proposition to defer payment of the balance due under the contract until the improvements were made, where such improvements were not made within a reasonable time thereafter.</p> <p>[3] Id.—Cost of Performance Immaterial.—The fact that the performance of the agreement by the vendor would entail considerable expense would not excuse performance of its obligation.</p> <p>1. Right of vendee to rescind executory -contract for sale of land because of vendor’s breach of contract to make improvements, notes, L. E. A. 1917B, 403; 21 I». R. A. (N. S.) 823.</p> <p>1. Right of vendee to recover payments made on rescission of contract, note, Ii. R. A. 1918B, 547.</p>

<p>[1] Vendor and Vendee—Contract for Sale of Land — Fraud and Mistake—Materiality of Mistake—Finding—Evidence.—In this action to rescind a contract to purchase land on t'he ground that the contract was entered into as a result of false and fraudulent representations and mistake in regard to the amount of the land conveyed, t'he difference in value between the acreage received and the acreage intended to be sold was sufficient to justify the court in finding that the mistake was a material one when taken in connection with, the plaintiff’s testimony that he would not have entered into the .contract had he not believed that the land contained the number of acres represented.</p> <p>[2] Id.—Consideration of Price per Acre—Presumption.—In such an action there is always a presumption that where the price per acre was considered, the quantity influenced the buyer as an inducement to pay the gross amount agreed upon.</p> <p>[3] Id.—Rescission of Contract —Recovery of Value of Improvements.—-Where the contract provided for the sale and purchase of an undivided one-half of the land, the court in adjudging a rescission of the contract on the grounds of false and fraudulent representations on the part of the vendor did not err in allowing the plaintiff to recover one-half of the value of the improvements placed upon the property.</p> <p>[4] Id.—Value and Cost of Improvements—Evidence.—In such action to rescind the contract of purchase on the ground of false and fraudulent representations on the part of the vendor, the court did not err in permitting the plaintiff and a civil engineer who was acquainted with the property to testify in regard to the cost and value of the improvements placed upon the land.</p> <p>1. Right of purchaser to rescind contract of sale for breach by vendor in tendering less land than quantity contracted for, note, Ann. Cas. 1916D, 1154.</p>

<p>APPEAL from a judgment of the Superior Court of Nevada County. George L. Jones, Judge. Modified and affirmed. -</p> <p>The facts are stated in the opinion of the court.</p>

1. Presumption of negligence from accident resulting in personal injury, note, 113 Am, St. Bep. 987. ' . The facts are stated in the opinion of the court.

<p>[1] Criminal Law — Grand Larceny — Verdict — Evidence.—In this prosecution for the crime of grand larceny the evidence was sufficient to sustain the verdict- of the jury.</p> <p>[2] New Trial—Newly Discovered Evidence—Denial of Motion— Appeal—Insufficient Briefs.—Where the appellants predicate error on the action of the trial court in denying their motion for a new trial on the ground of newly discovered evidence, but there is only a general reference in their briefs to the affidavits, the appellate court is justified in -passing the matter by without investigation.</p> <p>[3] Id.—Unimportant Evidence—No Showing of Diligence—Disregard of Affidavits.—Where the affidavits offered in support of the motion for a new trial on the ground of newly discovered evidence are of slight, if any, importance, and it is not at all probable that if the affiants had so testified at the trial the result would have been different, and no showing of diligence whatever is made by the parties making the motion for a new trial, the court is justified in disregarding such affidavits.</p>

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

<p>[1] Bill of Exceptions—Failure to Serve in Time—Belief from— Discretion of Trial Court.-—-The discretionary power of a trial court in the matter of relieving parties from their default in failing to prepare and serve their proposed bill of exceptions within the time -allowed by law therefor is not to be interfered with- on appeal, except upon a clear abuse of discretion.-</p> <p>[2] Id.—When Extension Must be Obtained.—An extension of time, permitted under section 1054 of the Code of Civil Procedure, must be obtained within the period during which the original right is still alive.</p> <p>[3] Id.—Failure to Prepare and Serve in Time—Refusal to Settle. Where a bill of exceptions js not prepared and. served within the time allowed by law therefor, or valid extensions thereof, the court is justified in refusing to settle the same.</p> <p>[4] Id.—Remedy—Appeal—Mandamus.—-An order refusing t'o settle a bill of exceptions is not appealable. The remedy is by mandamus.</p> <p>[5] Id.—Lack op Diligence—Discretion not Abused.—Refusal to grant a motion for relief from default in failing to prepare and serve a proposed bill of exceptions within the time allowed by law therefor does not constitute an abuse of discretion, where the only excuse offered is that the transcript' could not be secured from the reporter in time, and the record shows that although such transcript was not ordered until eighteen days after notice of entry of judgment, if the parties had secured a proper extension of time, the transcript would have -been in their hands ten days before their time would have expired for serving their proposed bill of exceptions.</p> <p>[6] Id.—Objections to Delay—Reservation—Waiver.—In such case, defendants did not waive their objections to the delay of the plaintiffs in serving their proposed bill of exceptions by requesting and receiving from- plaintiffs additional time within which to propose amendments to such bill, where the stipulation- extending such time provided that defendants should have until a given ‘ date “within which to propose any amendments or make any objections to the proposed bill of exceptions,” while on their admission- of service of the proposed bill they expressly reserved such objection “for presentation when the bill of exceptions is presented for settlement.”</p>

<p>Ll] Appeal—Judgment by Stipulation—Dismissal.—An appeal will be dismissed where the judgment from which the appeal was taken was entered upon a stipulation.</p> <p>[2] Id.—Lack of Jurisdiction—Defective Complaint—Motion to Dismiss Appeal—Examination of Judgment-roll.—Where upon a motion to dismiss such an appeal it is claimed that the trial court did not have jurisdiction of the subject matter of the action, or that the complaint is fatally defective, the appellate court will examine the certified copy of the judgment-roll for the purpose of determining whether or not the appeal is within either of the exceptions to the rule with reference to the dismissal of appeals from judgments entered upon stipulation.</p> <p>[3] Judgments—Sufficiency of Pleadings—Validity of Judgment by Stipulation.—Where the pleadings in a ease are such that if the parties had gone to trial on the issues presented, a valid " judgment might have been entered, a judgment entered therein upon a stipulation is equally binding.</p>

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

<p>[1] Vendor and Vendee—Executory Contract—Fraudulent Bepresentattons—Action tor Damages—Tender.—Where the purchaser under an executory contract for the sale of land, after discovery of fraudulent representations of the vendor as to the identify of the land, elects to affirm the contract and sues to recover the amounts paid for improvements placed on the wrong land, together with the difference between the value of the land covered by the contract and the value of the land represented as covered by the contract, the facts that she is indebted under the contract for an unpaid balance on the purchase price, that at the time of bringing the action she is in default in her payments, and that she does not allege tender of the amounts due, are not fatal to her cause of action.</p> <p>[2] Id.—Pleading—Insutticient Statement op Facts’—Demurrer.— Where the complaint in such action does not disclose any direct allegation of facts which would constitute misrepresentation as to the land to be conveyed under the contract, if there is an attempt to plead the facts relied on as establishing fraud, the main weakness of the complaint being in the sufficiency of their statement, rather than an entire failure of statement, the complaint is sufficient, in the absence of a special demurrer.</p>

<p>[1] Contracts—Recitals in Checks—Acceptance and Indorsement by Payee—Memorandum in Writing—Statute of Frauds.—The acceptance of checks, with the recitals therein that they are from a given corporation and on account of the bonus on a lease of certain lands, and their indorsement by the payee, do not' constitute the making of a memorandum in writing, signed by the party to be charged, sufficient to evidence a contract to execute a lease of the lands, within the statute of frauds.</p> <p>[2] Id.—Agreement to Make Lease—Action for Breach—Evidence—Findings.—In this action by a corporation to recover a sum of money paid on a bonus for a lease of certain lands for oil and mineral purposes, and for the cost of improvements made on the land,, on the ground that the defendant refused to execute the lease, the court was justified in its findings that the defendant at no time had contracted to execute a lease to plaintiff, and at no time was obligated so to do.</p> <p>[3] Id.—Payment of Obligation by Corporation—Contractual Relations With Third Persons not Affected.—Where the defendant in such action had agreed to execute a lease to a certain person who was a stockholder and the president^ of the plaintiff corporation, and had executed a lease to such person, the fact that the corporation paid the bonus on such lease did not alter the contractual relation between the defendant and such third person.</p>

<p>[1] Criminal Law—Giving Away of Alcoholic Liquors in No-license Territory—Verdict—Evidence.—In this prosecution under , the local option, law for willfully, knowingly and unlawfully selling, furnishing, distributing, and giving away alcoholic liquor within no-license territory, the verdict of guilty was sufficiently supported by the evidence, although much of the evidence was of a circumstantial character.</p> <p>[2] Id.—What Constitutes Violation.—If the defendant, in such prosecution, by any means or method or in any manher gave or furnished or distributed intoxicating liquor to other persons within no-license territory, he was guilty under the statute of the offense charged. It was not necessary that he personally have performed the physical act of passing the liquor to the parties.</p> <p>[3] Id.—Evidence—Probative Value—Admissibility.—Evidence is not rendered inadmissible because of the fact that it may he of small probative value as proof of the offense charged.</p> <p>[4] Id.—Hostile Witness—Leading Questions.—Where in such prosecution for unlawfully giving away liquor in no-lieense territory one of the witnesses appeared to be hostile to the prosecution—that is, inclined to tell as little as possible of what he actually knew—the defendant could not have suffered any damage from, leading questions which the court permitted the district attorney to ask.</p> <p>[5] Id.—Self-serving Declarations—Intended Use of Liquor.—In such prosecution, the court properly sustained the prosecution’s objection to a question by defendant’s counsel to a brother of the defendant calling for a declaration by the latter that the liquor which he had requested the witness to procure for him was,to be taken to and used at the defendant’s home.</p> <p>[6] Id.—Instructions—Conviction upon Circumstantial Evidence.— In this prosecution, it was not error to instruct the jury that “there is nothing in the nature of circumstantial evidence that renders it any less reliable than the other class of evidence. All that is required is this: If the testimony is" sufficient to convince you as reasonable men beyond a reasonable doubt that the defendant did commit the act charged, then I charge you that it is your duty to convict, although such evidence may be of a cireumstantial nature." Such instruction does not warrant an implication that the jury were authorized to convict on evidence not sufficiently convincing to show the defendant’s guilt to a moral certainty.</p> <p>4. Permitting leading questions as matter within discretion of trial court, note, 17 Ana. Cas. 840.</p> <p>6. Relative value of circumstantial and direct evidence, note, 97 Am, St. Rep. 774.</p> <p>6. Instructions on circumstantial evidence, note, 97 Am. St. Rep: 789.</p> <p>[7] Id.—Giving Away op Liquor—Knowledge op Dependant.—In such prosecution, the court did not commit error in modifying two of defendant’s proposed instructions, by adding thereto that if the defendant knew that any person or persons were drinking from his jug of whisky, and> so knowing that fact, acquiesced in, consented to, or encouraged such person or persons to drink from said jug, in that case he would be guilty, although he did not personally hand or deliver Said jug to such person or persons.</p>

<p>[1] Mortgages—Homestead—Death op Spouse—Failure to Present Claim—Loss op Eight of Action to Foreclose.—Where the husband prior to his death had declared and recorded a homestead on community property which was subject to a mortgage, and the mortgagee failed to present a claim against his estate within the time prescribed in the notice to creditors, the property covered by such homestead became thereby released from the operation and effect of the mortgage, and an action for the foreclosure thereof could not thereafter be maintained.</p> <p>[2] Homesteads—Property in Two Counties—Eecordation op Declaration in One—Validity or.—Where the property sought to be covered by a homestead is situated partly in one county and partly in another, and the main portion of the lands is located in the county where the declaration of homestead is recorded, the homestead is valid as to the lands described therein which are situated within such county.</p> <p>[3] Estates op Deceased Persons—Notice to Creditors—Time for Publication.—If the first publication of notice to creditors is made after the order therefor has been signed and filed, it is immaterial that such first publication is made upon a date prior to the ’entry of such order. -</p> <p>[4] Place op Trial—Mortgage on Lands in Adjoining Counties— Partial Invalidity.—Where a mortgage is void as to such of the land described therein as is located in a given county, but valid as to that located in another, an action to foreclose such mortgage cannot be maintained in the former county.</p>

<p>[1] Minors—Contract by Minors Under Eighteen—Void Ab Initio. A contract for the purchase of land by a minor under the age of eighteen years is void ab initio.</p> <p>[2] Id.—, Disaffirmance of Contract — Restoration of Consideration.—Such contract being void ab initio, and not subject to ratification, payments -by the minor thereon after he roaches the age of eighteen will not estop him from disaffirming the contract without a restoration of the consideration.</p> <p>[3] Id.—Payments After Reaching Eighteen—Effect of.—Spch contract being void and not subject to ratification, the mere payment of installments of the purchase price after the minor reaches the age of eighteen will not remake the ol-j contract or make a new one.</p> <p>[4] Id.—Want of Consideration.—In such a case, upon disaffirmance of the contract by the minor, there is no consideration to be returned, since the vendor’s loss is the result of its own mistake in entering into a void contract.</p> <p>[5] Id.—Time for Disaffirmance—Recovery of Payments Made— Running of Statute of Limitations.—In such a case, the statute gives the minor the power to disaffirm the contract before he reaches the age of twenty-one years or within a reasonable time thereafter, and as the right to sue for the recovery of the payments made by him cannot accrue until he has disaffirmed the contract, the bar of the statute of limitations runs from the date of disaffirmance.</p> <p>[6] Id.—Section 339, Code of Civil Procedure, not Applicable.— An action for the cancellation of a void contract, and the recovery of the money paid in accordance with its, terms, does not come within the limitations of section 339 of the Code of Civil Procedure.</p>

<p>Li] Pleading—Common Counts—Money Had and Received—Demurrer.—A common count for money had and received is not subject to demurrer for uncertainty.</p> <p>[2] Money Had and Received—Action for—Hndue Influence—Evidence—Nonsuit.—Where an action for money had and received was tried upon the issue as to the undue influence exerted upon plaintiff's intestate hy the defendant, and there was some evidence of undue influence, a motion for nonsuit was properly denied.</p> <p>[3] Id.—Evidence—-Hndue Influence—Mental Condition of Decedent.—In such action, the claim being that the deceased was of weakened mentality hy reason of his sickness, evidence of his mental condition was admissible upon the issue of undue influence.</p> <p>L4] Id.—Rule of Descent—Disposition of Property—Proper Instructions.—In such action, the giving of instructions that in case of intestacy the law fixes the method of distribution, and that in the ease at bar the law would distribute the estate equally between the surviving wife and the two daughters, and that the jury might consider the disposition as being just or unjust, reasonable or unreasonable, as tending to throw light upon the question of whether undue influence was exerted upon the deceased, did not constitute prejudicial error, where they were given in connection with other instructions to the effect that while inequality in the disposition of property was not of itself evidence of unsoimdness of mind or of undue influence, it might be considered as a circumstance, together with all other circumstances shown hy the evidence bearing on the question of the weakness of mind of the decedent, or undue influence exerted upon him.</p> <p>[5] Instructions—Appeal—Waiver of Objections.—Objections to instructions raised for the first time in appellant’s reply brief will not be considered hy the appellate court.</p> <p>16] Verdict—Conflicting Evidence—Appeal.—Where the evidence is conflicting, the verdict of the jury is conclusive, in the absence of reversible error.</p> <p>1. Sufficiency of the common counte under the codes, note, 34 Ii. R. A. (N. S.) 364.</p>

<p>APPE’AL from a judgment of the Superior Court of Modoc County. Clarence A. Raker, Judge. Reversed.</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>11] Boundaries — Government Field-notes — Duty of Surveyor.— In establishing a boundary line, the surveyor should take the field-notes of the government surveyor and from the details therein endeavor to fix the line precisely as it is called for by them; and if by so doing the line can be located, this must be done, and when so located it must control. The surveyor is not authorized to correct what the government has done.</p> <p>[2] Id.—Conflict Between Field-notes and Physical Monuments —Priority.—While the field-notes of the government surveyor are to be accepted as presumptively correct, yet, under subdivision 2 of section 2077 of the Code of .Civil Procedure, when permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount.</p> <p>1. Conclusiveness of boundary lines run by government surveyors, note, 110 Am. St. Rep. 677.</p> <p>[3] Id.—Quantity of Lands in Adjoining Tracts—Maintenance of Equality.—While consideration of the quantity of land in adjoining tracts is of little importance in the determination of the boundary line between them, yet, where such tracts are supposedly equal subdivisions, the fact that if the line were located where contended for by one of the parties the tracts would be very unequal in quantity, would strongly confirm the action of a trial court" in disregarding such location in favor of another which would maintain the equality.</p> <p>[4] Id.—Location—Question of Fact—Finding.—The whole question concerning the location of a government corner is one of fact, and a trial court having determined it, that ends the matter so far as an appellate court is concerned, provided there is substantial evidence to support the trial court’s conclusion.</p> <p>15] Id.—Agreed Location—Not Binding as to Other' Properties.— The fact that certain adjoining property owners acquiesce and agree upon the location of a certain corner and to the boundary line between their parcels of land, though binding upon them and their successors, will not preclude one not a party to such agreement from contesting its accuracy with reference to an entirely different tract of land.</p>

<p>[1] Deeds—Want of Notice of Prior Deed—Bona Pide Purchaser for Value.—A deed to a right of way over a tract of land which, though executed prior in point of time, is not put of record until subsequent to the execution, delivery, and recordation of a deed of trust covering the entire tract, is void as to the grantee under the deed of trust where the latter, at the time it received the trust deed, was wholly ignorant of the existence of sueh prior deed and of facts which would put it as a prudent person upon inquiry as to the fact of said conveyance or of any claim of interest in the land by the grantee therein.</p> <p>[2] Id.—Subsequent Purchase With Notice—Priority.—Under such circumstances, the purchaser of the property at the trustee’s sale under the deed of trust is protected against such prior deed, notwithstanding at the time he purchased he had knowledge that the grantee under the prior deed was constructing a railroad across the property.</p> <p>1. Effect of delay in recording instrument on rights of intervening purchaser without notice, note, 7 Aim. Cas. 367.</p>

<p>[1] Workmen’s Compensation Act—Quarrels Between Employees —Liability op Employer por Injuries.—Injuries suffered by employees due to quarrels between themselves may not be made the basis of compensation under the Workmen’s Compensation Act, except where the fellow-employee committing the injury did so while in an intoxicated state of frenzy and passion, which was his habitude and which rendered it unsafe for him to be permitted •to work with his fellow-employees, and which condition was known to Ms employer, or where the injured employee was the superior ia rank to the one causing his injuries, and the assault arose out of an attempted exercise of discipline on the part of the' superior employee.</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] Waters and Water Rights—Title by Prescription—Payment op Taxes—When Binding Unnecessary.—In an action to establish a prescriptive title to a water right in a stream or creek to which the lands of the party claiming the right are riparian, the failure of the court to find that the taxes had been levied and-assessed on the water right and paid by the parties in whom the title to the water right is found is not fatal to the judgment, where no evidence was introduced by the opposing party that any taxes were or ever had been levied and assessed upon such water right.</p> <p>[2] Id.—Amount op Water Dependants Entitled to—Certainty op Judgment.—In such action the findings and judgment of the trial court are not void for uncertainty for failure to specify in inches the amount of water to which the 'defendants are entitled, where it finds that the plaintiff is entitled to the use of none of the waters of the stream in question, but that the, defendants, having since a given date continuously used all the water thereof for ■beneficial purposes, are entitled to all said water, and it is further found that the quantity of water flowing in said stream does not exceed fifty inches, measured under a four-inch pressure.</p> <p>1. Prescriptive title to water, note, 93 Am. St. Rep. 712.</p>

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

<p>Ll] Juries and Jurors — Irregularities op Sheriff in Forming Panel—Challenge to Entire Panel.—In the absence of a showing that difficulty was had in obtaining from the prospective jurors summoned a jury satisfactory to defendant, or that lier substantial rights were prejudiced by reason of the acts of the sheriff in forming the panel, mere irregularities in the action of that officer in summoning persons to" fill the venire would constitute no ground for the granting of her challenge to the entire panel.</p> <p>[2] Id.—Bias of Sheriff—Summoning of Women Only.—Subject to qualifications applicable alike to each, both men and women are equally competent to act as jurors. Hence it cannot be said that a sheriff, in summoning all women, confined himself to a certain class as distinguished from another class.</p> <p>[3] Id.—Residence of Jurors.—The fact that all the jurors were residents of a particular vicinity would furnish no ground upon which to base a claim that the sheriff was biased.</p> <p>1. Bias or misconduct of officer summoning jurors as ground for challenge to panel, note, Ann. Cas. 1916A, 693.</p>

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

<p>1 APPEAL from a judgment of the Superior Court of Los Angeles County. Fred H. Taft, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contracts—Agreement to Devise Property—Specific Performance—Equity.—Though specific performance, in the literal sense of the term, of a contract to make a certain testamentary disposition of property cannot be given, nevertheless a court of equity, where the facts justify, may grant relief substantially the same as in specific performance by treating the heirs as trustees and compelling them to convey the property in accordance with the terms of the contract.</p> <p>[2] Id.—Unenforceable 'Contract—Erroneous Finding Immaterial. In a suit in equity to compel specific performance of a contract to make a certain testamentary disposition of property, if the contract alleged be one that a court of equity will not enforce, it is immaterial that a finding that no such contract was made is not supported by the evidence. An erroneous finding upon - an issue is immaterial 'where, if the finding were otherwise, a different conclusion would not be necessitated.</p> <p>1. Validity of agreement for bequest or devise, note, 14 L. B. A. 869.</p> <p>|3] Id.—Statute op Frauds—Oral Contract to Devise Property— Validity op.—Under sections 1624 of the Civil Code and 1973 of the Code of Civil Procedure, as amended in 1905 and 1907, respectively, an agreement to devise or bequeath property oír to make any provision for a person by will is invalid if not in writing.</p> <p>[4] Id.—Part Performance—Payment op Money.—The payment of money is not such an act of part performance as will take a contract out of the operation of the statute of frauds. The remedy at law for a recovery of the money paid, with interest, is a complete and adequate remedy, and the payment does not work a fraud upon the party paying if the other refuses or neglects to perform his part.</p> <p>[5] Id.—Marriage.—Marriage as a part consideration for a contract to make a certain testamentary disposition of property is not of itself sufficient part performance to take the contract out of the statute of frauds.</p> <p>[6] Id.—Acts Taking Contract Out of Operation of Statute.—To take a contract out of the operation of the statute of frauds, the acts relied upon must .be unequivocally referable to the contract. Acts which, though in truth done in performance of a contract, admit of an explanation without supposing a contract, are not, in general, such acts of part performance as will take the case out of the operation of the statute. The acts relied upon must clearly appear to have been done in pursuance of the contract, and to result from tie contract, and not from some other relation.</p> <p>L7] ID .—Amendments op Codes—Parol Contracts Unenforceable. Since the amendment of sections 1624 of the Civil Code and 1973 of the Code of Civil Procedure, in 1905 and 1907, respectively, contracts to make certain testamentary disposition of property, if resting wholly in parol, are always unenforceable. ' .</p> <p>[8] Id.—Part Performance op Parol .Contracts—When Enforceable.—The doctrine of part performance, as applied to parol contracts within the statute of frauds, is confined^ to contracts relating to the sale of lands.</p> <p>[9] Id.—Action to Compel Specific Performance—Jurisdiction op Court to Determine Heirship.—In a suit in equity by the widow of the deceased against the administrator of his estate and other persons claiming as heirs, to compel specific performance of a contract to make a certain testamentary disposition of property, the court is without jurisdiction to determine who are the heirs of the deceased.</p>

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

PROCEEDING in Mandamus to compel the clerk of the Superior Court of Siskiyou County to file and enter certain dismissals of actions which had been commenced by petitioners. Writ denied. The facts are stated in the opinion of the court.

<p>[1] Protection District—Bight op ’ Existence—Quo Warranto.— A protection district organized, under the law of 1895 not being a public corporation, a proceeding in the nature of quo warranto will not lie to test its right of existence.</p> <p>[2] Id.—Formation by Supervisors—Excess op Jurisdiction—Certiorari.—Where the board of supervisors, in the attempt to perform functions of a judicial nature with reference to' the formation of a protection district, exceeds its jurisdiction, certiorari will lie at the instance of a person who has been injuriously affected thereby.</p> <p>2. Nature and scope of writ of certiorari, note, 40 Am St. Rep. 29.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a motion for a new trial. J. P. Wood, Judge. Appeal from order dismissed. Judgment 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—Improvement Act op 1911—Applicable to All Municipalities—Notice.—The Improvement Act of 1911 is expressly made applicable to all municipalities in the state, and, where a newspaper is not printed or circulated in the city, notice by posting in lieu of publication is provided.</p> <p>[2] Id.—Posting op Notice—Construction op Act.—As the Improvement Act of 1911 does not in any single section permit the publication of any of the proceedings in a newspaper merely circulated or distributed in the city and not published therein, it is only in a city where no newspaper is published as well as circulated that notice by posting alone can be given.</p> <p>[3] Id.—Notice op Preliminary, Resolution—Time.—All that the statute requires the city council to do, in so far as the giving of notice of the preliminary resolution is concerned, is to publish twice, or to post and keep posted for the same length of time as publication should be had, a copy of its resolution of intention. As under any circumstances the greatest period of publication is eight days, in municipalities where a newspaper is not published and circulated, the demands of the statute are satisfied if the notices are posted and kept posted for a like period.</p> <p>[4] Id Due Process—Opportunity to Make Protests—Power op Legislature to Limit Time—Jurisdiction op City Council.—The guaranty of due process of law only requires that the lot owners be given notice of the intended improvement, and that they be accorded an opportunity to protest and to have their protests heard. It is within the power of the legislature to determine what notice is sufficient for this purpose, and the city eouneil, having given the prescribed notice, acquires jurisdiction for all purposes on the expiration of the time fixed by the statute. Where more time is given than is prescribed by the statute, but, notwithstanding this, no protests are filed during the time given, or at any time thereafter, the court cannot be required to nullify the proceedings resulting therefrom.</p> <p>[5] Id.—Return op Warrant.—Where the warrant, after demand for payment is made, is returned to the superintendent of streets within thirty days after its date, this constitutes a sufficient return under section 25 of the act.</p> <p>[6] Id.—Void Bonds—Cloud on Title—Equity.—A bond, if void on its face because of failure to contain the recitals required by the act, is void in the hands of an innocent ■ purchaser for' value as well as in the hands of the contractor, and does not constitute an enforceable obligation against the lot owner, and hence easts no cloud upon Ms title. If there be no cloud, there is no ground for equitable relief.</p> <p>[7] Id Removal op Cloud—Duty op Lot Owner.—Under the amending act of 1915 the lot owner may remove an asserted cloud upon his title by paying the obligation, and this he should offer to do before he seeks equitable relief.</p> <p>[8] Id.—Notice op Improvement—Height op Letters—Substantial •Compliance With Act.—WMle the act requires that the heading, “Notice of Improvement,” shall be “in letters not less than one inch in length,” if the words “notice of” are in letters of one inch in length and the word “improvement” in letters of ' only five-eighths of an inch in length, there is a sufficiently substantial compliance with the requirement of the statute to warrant the court in siustaining the proceedings after the issuance of the bond, in view of the conclusive evidence provision of section 66 of the act. (Opinion of supreme court on denying hearing.)</p>

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

<p>[1] Leases — Clause Against Subletting — Effect of Omission from Agreement.—The fact that an agreement for a lease does not contain a provision against subletting does not render it an incomplete agreement, nor affect its validity or sufficiency to create the relation of landlord and tenant.</p> <p>[2] Evidence — Conflict—■ Preponderance — Province of Appellate Court.—The appellate court is not concerned with what it may believe is a preponderance of the evidence. It may go no further in its examination of the evidence than is necessary to determine that a substantial conflict exists.</p> <p>[3] Warranty of Authority.—Assuming to Act for Another—Effect.—One who assumes to act for a given company in securing the services of another thereby warrants his authority to act as such agent.</p> <p>£4J Id.—Action for Breach—Measure of Damages.—In an action for damages for breach of a warranty of authority, the plaintiff is entitled to recover from the defendant the amount he would have been entitled to recover from the principal had the defendant been the authorized representative of the latter.</p> <p>£5] Id.—Bight of Plaintiff to Interest.—In such an action, the plaintiff is entitled to recover interest upon the amount due from the time it .became due and .payable.</p> <p>3. Personal liability to other contracting party of one who, without authority, assumes to contract as agent for another, notes, Ann, Cas. 1915D, 723; 34 L. B. A. (N. S.) 518.</p>

<p>[1] Trusts—Power op Trustees to Give Away Subject Matter-Title op Donee.—Trustees may not give away the subject matter of their trust, nor can a person who acquires trust property without consideration successfully maintain he has a legal right to the property so acquired.</p> <p>[2] Municipal Corporations—Gift op Pee in Eeversion by Trustees—Transaction and Deeds Void.—A transaction whereby the trustees of a municipal corporation have an understanding with a given individual that upon the pretence of selling certain real, property owned by the municipality for a valuable consideration, they will convey title in fee to him, and in lien of the payment of the consideration, they will immediately take hack as a part of the same .transaction a limited conditional title, leaving such individual the fee in reversion, is void; and deeds executed and delivered pursuant to such transaction convey no title.</p> <p>[3] Quieting Title—Admission op Possession—Burden op Proop.— Where in an action to quiet title to real property the plaintiff’s ■possession of the property is admitted, the burden is put upon the defendant to plead and prove title in himself.</p> <p>[4] Id.—Claiming Title Under Common Source—Proof.—Where both parties to such action to quiet title claim under a common source, the plaintiff directly and the defendant by a void deed from the plaintiff, the latter is not hound to prove title in such common predecessor.</p>

<p>[1] Basements—Eight of Way “of Necessity”—Superfluous Words —Reversible Error.—In an action to quiet title to a tract of land over which the defendants claim a right of way, error in decreeing that the defendants are the owners and in possession of .a right of way “of necessity,” although no such claim wa's set up in the pleadings, is not a ground for reversal of the judgment where the facts found establish the defendants’ right to use the right of way.</p> <p>[2] Judgments—Technical Error—Eeversal.—A judgment will not be reversed for a matter of form nor upon a rigid interpretation of an immaterial statement of fact, even though technical error appears.</p> <p>[3] Basements—Contractual Right of Wat—Use of Cut-off.— Where there is a definite agreement for a particular right of way, it is immaterial that the persons claiming such easement at times in .good weather make use of an equally well-defined road, described as a little cut-off, which branches from the contractual right of way at one end, rejoining it at the other end.</p> <p>[4] Id.—Right of Wat fob Limited Period.—A right of way expressly granted for a limited period- or upon a contingency or condition is just as firmly vested for the time -being as would be a leasehold.</p> <p>[5] Id.—Purchase of Lands—Knowledge or Notice of Right of Wat — Status of Title—-Subsequent Sale. — Where land is bought without knowledge of an unrecorded contract giving a right of way over it, and also without knowledge, actual or imputed, of facts sufficient to put a prudent buyer upon inquiry, the purchaser takes title free from t'he use, and has the right to convey equally good title to her purchaser, even though the latter has full knowledge of the facts.</p> <p>[6] Id—Use of Land .bt Another—D-utt of Vendee to Make In-quirt.-—A purchaser may not, by failing to acquaint herself with the open and clearly discernible possession and use of the land ■by another than her prospective vendor, avoid making inquiry on the subject, and thereby evade the rule in regard to notice as well as its consequences.</p> <p>[7] Id—Imfracticabilitt of Visiting Land—Immaterial Pact.—It is immaterial that such purchaser lives at some distant point and that it is impractical for her to visit and- examine the land. Under such circumstances she might readily have had another make the examination for her.</p> <p>6. Physical conditions which will charge purchaser of servient estate with notice of easement, note, 8 L. E. A. (N. S.) 418.</p>

<p>[1] Negligence — Death of Pastured Cattle — Overstocking of Banges—Action for Damages—Evidence—Prejudicial Error.— In an action for damages for the death of livestock which had been delivered to the defendant’s ranges for the purpose of being pastured, due to the alleged negligence of the defendant in failing to furnish them with proper food and shelter, it was proper cross-examination to ask the stock foreman of the defendant, who had had an experience of more than five years in that work, and who was called as a witness for the plaintiff, whether the ranges were overstocked, where on direct examination he had been asked how many cattle were kept on the defendant’s ranges at the time referred to; but the rulings of the court foreclosing answers to the questions were without prejudice where both the defendant and' its foreman • had stated in letters to the plaintiff that there was not sufficient herbage produced on the ranges to supply his cattle with feed necessary to their proper sustenance.</p> <p>[g] Id.—Matters of Defense—Failure to Offer Evidence.—While the defendant in such action was entitled to show, if it could, that the ranges were not overstocked, and that there was sufficient feed growing on the ranges to supply in proper measure all the cattle grazing on said ranges, and that the death of certain of the cattle of plaintiff was due to some other cause than that of starvation or want of sufficient feed, yet such facts were peculiarly matters of defense, and where it made no effort to prove such facts in its defense, it was not prejudiced by the action, of the trial court in excluding such matters on cross-examination of one of plaintiff’s witnesses on the ground that the proper foundation had not been laid and that it was not proper cross-examination.</p> <p>[3] Appeal—Preponderance of Evidence—Verdict or Findings Conclusive.—Whenever the question is raised on appeal as to the side on which the evidence preponderates, and there is testimony supporting the conclusion of a jury or the findings of a trial court, which testimony is not inherently improbable, the answer must always be that the jury or the trial court has conclusively decided the question.</p>

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

<p>[1] Negligence—Railroad Track as Sign of Danger—Duty of Person About to Cross—Failure to Exercise Necessary Precautions.—A railroad track is in itself a sign of danger, and persons crossing it are charged with the duty to look and listen. The failure to take the required precautions before crossing a trdck which is being used as a means for the passage of trains is “the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do,” and is, therefore, negligence as a matter of law.</p> <p>[2] Id.—Track in Course of Construction—Lesser Degree of Care Required.—In crossing a track which is in the process of construction and upon which no trains are being, operated, except for construction purposes, as great a degree of watchfulness for danger from passing trains is not required as when crossing a completed track in full operation. '</p> <p>1. Failure to stop, look and listen at railroad crossing as negligence per se, note, 1 A. L. R. 203.</p> <p>1. Presence of electric bell or similar device at railroad crossing as excusing traveler from duty to look and listen, note, Ann. Cas. 1918D, 388.</p> <p>[3] Id.—Contributory Negligence of Plaintiff—Negligence of Defendant Immaterial.—In an action for damages for personal injuries, the contributory negligence of the plaintiff is to be determined without reference to any negligence of the defendant.</p> <p>[4] Id.—Action for Damages for Personal Injuries—Failure to Look for Danger—Contributory Negligence — Question of Fact—In this action for damages for personal injuries received by the plaintiff while crossing a spur-track, which was in course of construction, from the backing upon him of a gondola-car, he having looked for danger when crossing the main tracks, but, having considered all danger was passed when such main tracks had been crossed, t'ook no more notice, the question whether his failure to exercise such precautions constituted contributory negligence was one of fact to be determined by the jury.</p> <p>[5] Id.—Province of Jury and of Court.—A plaintiff’s contributory negligence is ordinarily a question of fact for thg jury, to be decided by it from the circumstances of each particular case, A court is enabled to say, as a matter of law, that negligence ¡ has been shown only when reasonable minds might not draw different conclusions from the facts presented.</p>

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

<p>[1] Estates of Deceased Persons — Succession — Construction of Code.—Subdivision 8 of section 1386 of the Civil Code is a rule of succession to be applied in the specified contingencies, and not a limitation upon the power of the surviving holder of community property to dispose of such property either by gift inter vivos or by last will and testament.</p> <p>[2] Action to Set Aside Deed—Conflicting Evidence—Findings— Appeal.-—-Where in a proceeding to set aside a certain deed alleged to have been executed at a time when the grantor therein was of unsound mind and to have been procured by means of fraud and undue influence imposed upon her by the grantee, there is a conflict in the evidence which the trial court resolves in favor of the defendants, the appellate court has no power to disturb the conclusion reached.</p> <p>[3] Id.—Proof of Confidential Relationship—Finding of Undue Influence—Burden of Proof.—While in such a proceeding if a confidential, -and therefore fiduciary, relation is established, -the burden of showing the good faith of the transaction is on the grantee, the relation itself and opportunity are not sufficient to warrant a finding that undue influence was actually exerted. ,</p>

<p>[1] Appeal — Weight op Conplicting Evidence — Credibility op Witnesses.—The appellate court, when considering cases on appeal, is not empowered to weigh conflicting evidence or pass upon the credibility of witnesses.</p> <p>[2] Criminal Law — Rape — Verdict — Sufficiency of Evidence — Contradictory Testimony.—In this prosecution for rape, the verdict was supported by the testimony of the prosecutrix. The fact that she was contradicted by the defendant,-or even though she told conflicting stories, raised no question of law for the determination of the appellate court on appeal.</p> <p>[3] Id.—Conviction upon Uncontradicted Testimony of Prosecutrix.—In a prosecution for rape, the defendant may be convicted upon the uncorroborated testimony of the prosecuting witness.</p> <p>[4] Id.—Argument to Jury—Misconduct of District Attorney.— In a prosecution for rape, statements by the district attorney in the course of Ms argument to the jury that “a man who would commit such a crime as is he^e charged against this defendant is a moral leper. He is a Hun. He becomes a vile ulcer suppurating on the shoulder of decency. He is a moral cancer on the breast of humanity,” do not constitute misconduct.</p> <p>[5] Id.—Objection to Conduct of District Attorney—Procedure.— Where the district attorney is guilty of misconduct in the course of Ms argument to the jury, a mere exception thereto by the defendant is no ground for reversal of the judgment. It must be made to appear that it was improper and prejudicial and at the time assigned as error, accompanied by a request that the court ■instruct the jury to disregard it, unless the character thereof ,be such that its effect cannot be removed .by such an instruction.</p> <p>[6] Id.—Impeachment of Prosecutrix—Evidence of Conspiracy— Collateral Pacts.—In a prosecution for rape, the defendant is not entitled to ^mpeaeh the testimony of the prosecuting witness, upon the theory that a conspiracy existed to have the defendant arrested for having chastised her sister, by showing acts and conversations of others in which she had no part.</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] Appeal—Order Denying New Trial—Presumptions.—The appellate court must, in the absence of an affirmative showing of error, presume the order of the trial court denying a motion for a new trial was properly made.</p> <p>[2] Id.—Typewritten Transcripts—Application to Bills op Exceptions and Statements—Construction op Code Sections.—The provisions of sections '953a and 953c of the Code of Civil ¡Procedure have no application to bills of exceptions or statements settled and allowed by the trial judge as provided in section 653 of the Code of Civil Procedure. When such method of bringing up the record is adopted, it must be presented by a printed transcript thereof.</p> <p>[3] Id.—When Typewritten Transcripts mat be Used.—It is only in those cases where the appellant avails himself of the provisions of section 953a of the Code of Civil Procedure that he may adopt a typewritten form in bringing up the record.</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] Nuisances—Operation of Railroad on City Street—Equitable Relief.—Where the acts of a railway company, in allowing freight-ears to stand and remain on a city street for a long period of time, in permitting large quantities of smoke and steam to he" emitted from the locomotives and carried into the faces of those in the vicinity and into the homes and business places in the vicinity, and in permitting noises from the valves, steam whistles, and hells to be set forth, constitute not only a nuisance, but also a public nuisance, a case for abatement of the nuisance or for relief through the restraining power of the equity court is shown.</p> <p>[2] Id.—Liability of Railroad for Maintaining.—The quasi-public character of railroads does not relieve them of liability for maintaining a nuisance; and if they have done acts which result in a nuisance, they are in no different situation than an individual proprietor.</p> <p>[3] Id.—Action to Abate—Immaterial Allegations.—In an action by a property owner against a railway company operating over a city street to abate a nuisance injurious to plaintiff, and for which the law affords a remedy, matters set forth in the complaint relating to the railway company’s franchise and its violation may he disregarded.</p> <p>[4] Id. — Right of Private Individual to Injunction — Special Damage.—A private citizen is entitled to an injunction for a public wrong if he suffers an injury peculiar to himself, and not sustained by the public in general, and the rule applies to nuisances as well as other wrongs. But unless the complainant has suffered special damage, equity will not enjoin a public nuisance on the application of an individual, either in his own behalf or in behalf of himself and others of like interest who either do or do not join in the application.</p> <p>[5] Id. — Unwarranted Obstruction of Street — Abatement by Property Owner Injured.—The owner of a business block of buildings fronting on a city street over which a railway company operates its cars may maintain an action to enjoin such railway company from so using the street as to constitute an unwarranted interference with the free, unobstructed, and comfortable use and enjoyment of his property.</p>

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

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

<p>[1] Accounting — Equity — Jurisdiction — Relief.—While courts of law and equity are possessed of concurrent jurisdiction in matters of account and accounting, when a court of equity once acquires jurisdiction upon equitable grounds it will proceed to do complete justice and administer full relief to this end, will order an accounting, and will settle the whole controversy, even to the extent of adjudicating matters of purely legal cognizance. ,</p> <p>[2] Id. — Retention of Personal Property — Item of Account — Pleading.—In this action in equity for an accounting in connection with the completion of a contract for the construction of a flume, the allegations in the complaint charging the retention by the defendant of certain horses, harness, and wagon delivered by the plaintiffs to the defendant to b.e used by it in fulfilling the terms of the contract, merely involved the statement or setting forth of certain items in the account between the parties as to which an accounting was asked.</p> <p>[3] Id.—Damages for Property not Accounted for.—In such an action, the horses, wagon, and harness constitute a part off the account between the parties as to which an accounting is sought, and, it being a suit in equity for an accounting, it is proper to allow damages as an essential element of the accounting, if' it is ¿nade to appear that the property itself cannot be accounted for.</p> <p>[4] Id. — Sufficiency of Pleading — 'Conversion.—While property which is a part of the account between the parties may have been converted by one of the parties, it is not necessary in such case in an equitable action for an accounting to aver facts essential to the statement of a cause of action in conversion.</p> <p>[5] Id. — Sufficiency of Evidence — Damages — Findings.—In this action for an accounting, wherein the plaintiffs alleged that the defendant had converted to its own use certain horses, harness, and wagon, which constituted items in the account, the evidence was sufficient to warrant the findings of the trial court as to the conversion of the property and the damages suffered by the plaintiffs for the detention and conversion thereof.</p> <p>[6] Id.—Duty to Return Property—Failure—Conversion—Damages.—Where the defendant in such action in accounting was under the duty, upon completion of the contract, to return the horses, harness, and wagon to plaintiffs, its failure to do so, whether the cause of such failure was that it had sold the property or itself wrongfully retained possession of it, amounted in legal effect to a conversion; and it having failed to account for the same, it was within the right and power of the court to make an allowance for their reasonable value as damages.</p>

<p>[1] Negligence —. Contributory Negligence — Determination by Appellate Court—Effect of Law in Similar Case.—While the determination of each case involving contributory negligence on the part of the plaintiff is dependent upon the particular set of circumstances presented by the record, the appellate court is bound to follow the law of this state as established by the supreme court in a similar case. ></p> <p>[2] Id.—Personal Injuries—Evidence—Opportunity to have Avoided Collision.—In this action to recover damages for personal injuries suffered by plaintiff, arising out of a collision between an automobile driven -by him and a .train operated by the defendants, the evidence, particularly with reference to the opportunity afforded plaintiff for observation of the train, showed the plaintiff to have been guilty of contributory negligence, which should have prevented his recovery.</p>

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

<p>[1] Negligence — Moving and Installation of Printing-press — Death of Helper—Party Liable.—A drayman employed under a written contract with the seller of a printing-press to deliver the press “from the steamer to the pressroom” of the buyer, and to furnish at a given price per hour per man any labor desired by the seller to assist its employee in setting up the press, the seller having agreed with the purchaser to erect and put said press in first-class running order, is not liable for damages for the death of one of the persons employed by him to assist in the delivery of the press, and also to assist the employee of the seller in erecting the same, where the accident occurred after the press had .been laid upon the pressroom floor of the buyer, and while the : employee of the seller was engaged in the task of moving it to the particular place upon said floor where the work of its installation was to be performed.</p> <p>[2] Id.—Liability of Employer for Act§ of Employee.—The seller of a printing-press -is liable for the acts or omissions of its' employee engaged in the installation thereof where the latter, who bad been in the employ of the seller in that capacity for several years, had full charge of the work and the power of selection and control of those who were to assist him.</p> <p>1. Imputing servant’s negligence to master, notes, L. B. A. 1915A, 763 j S L. E. A. (N. S.) 635.</p> <p>[3] Id.—Erroneous Admission or Prejudicial Evidence—Instructions.—Where such employee of the defendant volunteered the statement that his expenses were being paid by “an insurance company,” but this portion of his answer was stricken out by the court, and the subject thus opened being later adverted to, the court ruled out all evidence on the subject as improper, and instructed the jury to disregard all questions and answers touching the subject, the error, if any, growing out of the witness’ volunteered remark was sufficiently cured.</p>

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

<p>[1] Judgments—Conflicting Evidence—Reversal.—The. reversal of a judgment of a trial court cannot be predicated upon a conflict of evidence.</p> <p>[2] Vendor and Vendee—False Representations—Findings—Evidence.—In this action for damages alleged by plaintiff to have been sustained by her by reason of having entered into a contract with one of the defendants for the purchase of certain real . property induced by the false representations of the agents of such defendant, the finding of the trial court that the representation complained of was not made is amply sustained by the evidence.</p>

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

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

<p>[1] Waters and Water Eights—Eight to Waters of Creek—Appropriation-—Finding—Evidence.—In this action to enjoin the defendant from maintaining on certain of the plaintiff’s lands a dam and a ditch, whereby water was diverted from a given creek to the lands of the defendant, the finding of the trial court that the plaintiff for more than twenty years prior to the commencement of this action had continuously and uninterruptedly used, by virtue of rights acquired as an appropriator, until interfered with by defendant, all the waters of such creek for a stated beneficial purpose and that all of said waters were necessary1 for that purpose, is supported by the evidence. ,</p> <p>[2] Id.—Eights of Biparian Owners.—If a person be a riparian owner or Ms lands are riparian to a flowing or any stream, he is, ex necessitate, entitled to exercise riparian rights, unless he has by Ms own acts divested Mmself of such rights or otherwise suffered the loss of them.</p> <p>[3] Id.—Effect of Change of Channel.—When, solely by an- act of Providence, the channel of riparian waters has been so changed as that such waters cease to flow over and across the lands of a riparian owner, the owner of such lands loses the role of a riparian owner. ;</p> <p>[4] Id.—Loss of Biparian Eights by Avulsion—Eight to Eestore Waters to Original Channel.—While a riparian owner, having lost his rights as such by avulsion, may ditch the water back to its original channel if he does not delay doing so 'beyond a reasonable time, in restoring the water to its original channel, he will not be permitted to disturb the rights of appropriators, nor has he the right to go upon the lands of others, without their consent or acquiescence, and build thereon dams and- ditches, or either, whereby he may restore the lost waters to their original bed.</p> <p>4. Eight of riparian owner to restore stream which has changed its course by natural causes to old chaimel, notes, L. R. A. 19Í6F, 407 ; 33 L. R. A. (N. S.) 804.</p>

<p>[l] ■Criminal Law—Assault With Intent to Commit Rape—Identity of Accused.-—In this prosecution for assault with intent to commit rape, the testimony of the victim, a young girl of the age of about thirteen years, although her answers were qualified, coupled with the admissions of the defendant made after he had been arrested and taken to the jail, was sufficient to warrant the verdict of the jury that the accused was the person who committed the assault.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Frank R. Willis, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law—Passing Fictitious Check—Damage to Payee-Fraudulent Intent.—In a prosecution for passing a check without having sufficient funds on deposit in the drawee bank to pay the same, it is not necessary to show the probability that damage may result to the person to whom the cheek was delivered, in order to establish an intent to defraud within the meaning of section1476a of the Penal Code.</p> <p>[2] Id.—Fraudulent Intent—Issuance op Check—Extinguishment op Debt.—In such prosecution, the fraudulent intent is shown when it is made to appear that the defendant gave the cheek, representing thereby that it was good and valid, and that it was given and received with the intent that it should pay defendant’s debt. It is immaterial as to whether the acceptance of the worthless check actually had the effect of extinguishing the debt.</p> <p>2. Giving of worthless cheek as false pretense, notes, Ann. Gas. 1916E, 736; 52 L. B. A. (N." S.) 919; 27 L. B. A. (N. S.) 1032; 17 L. B. A. (N. S.) 244.</p> <p>[3] Id.—Credit in Bank—What Constitutes Under Code Section.— A person who, having money in a bank, instructs such bank to honor certain checks only and stops payment on all other checks has no credit with such bank, within the meaning of section' 476a of the P’enal Code, to meet a check which is not of the class which the bank is instructed to pay.</p> <p>[4] Id.—Remarks op Drawer Apter Dishonor op Check—Admissibility.—In «¡uch prosecution, the court properly admitted the testimony of the prosecuting witness who told how, after the cheek had been dishonored at the bank, he accosted the defendant and informed him of the situation, and the latter laughed and responded, “Some time I pay him,” for the purpose of showing the guilty knowledge of defendant and as affecting the question of his good intent in passing the check. • \</p> <p>[5] Id.—Instructions—Omission op Word “Not.”—The court does not commit prejudicial error in unintentionally omitting the word “not” in an instruction where, upon the whole instruction, the jury is not misled.</p>

<p>[1] Jurisdiction — Insufficient Service of Summons — Appeal.— Where the service of summons is insufficient to vest a justice’s court with jurisdiction, but the defendant’s motion to quash the service of summons is denied, the right of appeal from an adverse judgment thereafter rendered affords a plain, speedy and adequate remedy, by means whereof it may have the erroneous ruling of the justice reviewed.</p> <p>[2] Id.—Want of Jurisdiction—Prohibition.—Mere want of jurisdiction will not justify the issuance of a writ of prohibition, as the defendant has a plain, speedy and adequate remedy in the ordinary course of the law.</p>

<p>[1] Deeds—Valid Delivery—Intent—Question of Fact.—In order to constitute a valid delivery of a deed it is essential that the grantor have intended to finally part with the title, and this is a question of fact to be determined from all the evidence and circumstances of the transaction, together with reasonable infer- - ence which the court is entitled to deduce therefrom.</p> <p>[2] Id.—Case at Bar—Acts of Grantor and Grantee—Intent of Grantor.—In this action by a widow against the heirs of her deceased husband ,and the administrator of his estate to quiet title to certain real property standing of record in the name of the deceased, what transpired at the time the deed under which the plaintiff claimed title was executed by her husband before the notary public and by the latter, without any express authority so to do from the grantor, but of his own volition, handed it to plaintiff, coupled with the acts of plaintiff in regard to the property while she was the administratrix of the estate of the deceased, which acts were wholly inconsistent with her subsequent claim of ownership of the property, fully supports the theory that the deed in question was not intended as a present transfer of title, but rather in the nature of testamentary disposition of the property. ¡</p> <p>1. Delivery of deed as question of law or fact, note, Ann. Cas. 1914D, 108.</p>

<p>[1] Municipal Corporations—Acquiring op Property por Parks and Playgrounds—Delinquent ' Assessments—Sale—Service op Notice to Redeem—Sufficiency op Affidavit.—In this action by the record owner of a certain lot to quiet title against one asserting title to the property under and by virtue of a deed made and delivered to him by the board of public works of the city of Los Angeles, in pursuance of proceedings had and taken under the provisions of the Park and Playground Act (Stats. 1909, p. 1066), to condemn certain property, the assessment for the cost of acquiring which was levied upon lots and parcels of land which included that in controversy, the affidavit of service of notice to redeem, in which was set forth the acts of the defendant in his efforts to discover the whereabouts of the 'owner of the property, was sufficient to show due diligence on the part of the defendant in his effort to ascertain the whereabouts of • plaintiff and serve upon her the notice to redeem required by the statute.</p>

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

<p>[1] Trusts — Quieting Title — Burden of Proof. — In an action against the administrator of the estate of the husband of the plaintiff to declare a trust in certain real property claimed to have been purchased- by the husband with plaintiff’s separate moneys and the title taken in the husband’s own name, and to quiet title to the property, the plaintiff must establish her position, if at all, upon the strength of her own ease rather than the weakness of the defense.</p> <p>[2] Id.—Insufficiency of Evidence.—In this action to declare a trust in certain real property claimed to have been purchased with the separate moneys of the plaintiff, and to quiet her title to the property, the plaintiff failed to trace any specific sum of money from her separate estate into the property in question.</p> <p>1. Besulting trust as arising from purchase by husband in his own name with wife’s money, note, Ann. Cas. 1915D, 525.</p>

<p>[-] Basements — Right to U"sb Stairway — Effect of Destruction of Stairway.—A grant of the right to use the stairway of a building gives' no interest in the soil which will jurvive the- destruction of the building, and the right ceases whenever the building is destroyed without the fault of the owner of the servient tenement, and the owner of the right to use the stairway will not acquire any right in any new building which may be erected in the place of the one destroyed.</p> <p>[2] Id.—Insufficient Language to Create Easement.—A provision in a deed that “there shall be perpetually kept open a stairway leading from Monterey Street, at the southern corner of the above-described lot, over the lands of the party of the first part [the grantor]; said stairway to be kept as the same now is . . . ; said stairway to be used in common by the parties hereto,” is wholly insufficient to create an easement in the. soil over which such stairway is built. An easement can be created only by grant, either express or implied from necessity, estoppel, or long enjoyment amounting to prescription presupposing a grant.</p> <p>2. Mode of creation of easements, note, 136 Am. St. Rep. 689.</p> <p>[3] Id.—Agreement to Kísep Stairway Open—Duty to Rebuild Upon Destruction.—The provision in such deed that the stairway “shall be perpetually kept open” does not constitute an agreement by the grantor to rebuild in case of the destruction of the stairway.</p> <p>[4] Id—Pleading—Material Issue—Judgment—Costs.—Where, in an action to quiet title to certain land and an easement in the adjoining land, the complaint, which is not verified, does not present, as separate and distinct issues,, the title to the property and the title to the easement in the adjoining land, the defendants deny that plaintiffs are the owners of the land with the easement, and deny that they claim any interest in the land with the easement, the only material issue raised is as to the existence of the alleged easement, and the court having found in favor of the defendants on this issue, they are entitled to judgment for their costs.</p>

<p>[1] Juries and- Jurors—Vont Dire Examination—Questions 'Calculated to Bias Verdict—Presumptions.—-Where in an action for damages for personal injuries, the evidence supporting plaintiff’s case is very weak, any improper questions propounded to the jurors upon their vow dire, calculated to bias them in favor of plaintiff, must, on appeal, be deemed to have been prejudicial to defendant.</p> <p>[2] Id.—Action for Damages—Insurance of Defendant Against Financial Loss—Examination of Jurors—Prejudicial Eírror.— In an action for damages for personal ^injuries sustained by plaintiff while in the employ of defendant, it is highly prejudicial to defendant to permit counsel for plaintiff, over defendant’s objections, to question the jury upon their voir dire as to whether their verdict would be influenced or affected by the fact that the defendant was insured by a casualty insurance company against any financial loss it might sustain by reason of the injury to plaintiff.</p> <p>[3] Id—Interest of Juror in Casualty Company—Proper Examination.—It is entirely proper for counsel to ask the jurors such questions as may reasonably be necessary to ascertain whether they are free from a bias or interest that may affect their verdict, and to that end it is proper for counsel, in good faith, to ask of each juror whether he is interested as agent or stockholder or otherwise in a specified casualty company, or counsel may ask the broad question whether the juror is interested in any insurance company insuring against liability for negligence; but counsel must take pains to propound the questions in such a manner as not unnecessarily to convey the impression that the defendant is in fact so insured.</p> <p>3. Bias or interest disqualifying juror, note, 9 Am. St. Rep. 744.</p>

<p>[1] Building Contracts—Authority to Make Changes—Estoppel.— The very purpose of a provision in a building contract requiring written authority of the owner to make changes is to -avoid controversies as to what changes have been authorized by the owner; and in the absence of very clear and convincing evidence of •waiver or estoppel against the owner with reference to changes made without such written authority, the terms of the contract should control.</p> <p>[2] Id.-—Substitution op Materials—Violation op Contract—Damages.—Under such a contract, where artificial stone construction on the front of the building is called for, the substitution- of brick construction, without the consent of the owner, constitutes a violation of the contract for which the owner may recover damages, notwithstanding the value of the building may not have been reduced thereby.</p> <p>[3] Id.—Knowledge op Changes—Estoppel.—Where the owner was absent when such substitution was made, he is not estopped from relying upon the provision of his contract that no changes should be made without his consent in writing because he made no particular protest upon learning such fact.</p> <p>[4] Id.—Action to Recover Balance—Counterclaim—Evidence— Findings.—In this action to recover an alleged balance due on a building contract, together with the value of extras alleged to have been furnished at the request of the defendant, and a bonus claimed under the contract, wherein the defendant by counterclaim claimed damages for delay in completing the contract, for material and labor not furnished as called for by the contract and for defective work and materials, the evidence, though conflicting, was sufficient to support the findings of the trial court as to the various items of claim and counterclaim.</p>

<p>[1] Appeal—Introduction oe Evidence—Erroneous Ruling of Trial Court—Review by Appellate Court.—On appeal, specifications of the insufficiency of the evidence to sustain the findings and judgment of the trial court are not necessary to enable the appellate court to consider errors of law in the rulings of the trial court on objections to the introduction of particular evidence, or on a motion to strike such evidence from the record, or on a motion for nonsuit on the ground of irrelevancy and immateriality of such evidence in the absence of proper foundation.</p> <p>[2] Title—Possession—Presumption.—Actual possession establishes presumption of title and right to possession, which can only be overcome by proof of anterior possession or title from a paramount source.</p> <p>[3] Ejectment—Title—Insufficient Proof.—In an action in ejectment, evidence of a conveyance to plaintiff is irrelevant and immaterial in the absence of a showing that plaintiff’s grantor had title to convey.</p> <p>[4] Id.—Defect Cured by Defendant—Insufficient Appellate Record—Presumptions.—Where, in such action, the defendants introduced in evidence a prior deed from a third party to plaintiff’s grantor, but the deed is not made a part of the record on appeal from a judgment in favor of plaintiff, the appellate court must assume that such deed contained sufficient recitals as to the ' grantor’s source of title to support the judgment of the trial 'court.</p> <p>[5] Id.—Want of Foundation for Evidence—Erroneous Rulings of Trial Court.—Where the plaintiff failed in such action to lay the proper foundation for the admission in evidence of the deed to it, but the court ruled adversely on defendants’ objections to such evidence and to their motion for a nonsuit, and thereafter the defendants proceeded with the case and introduced the evidence which supplied the defects in plaintiff’s proof, the erroneous rulings of the court were cured.</p>

<p>[1] Fidelity Insurance—Notice of Acts Constituting Basis of Claim—Failure to Comply With Policy.—A condition in a policy of fidelity insurance “that the employer shall give notice by registered letter addressed to the president of the surety company at its office in Baltimore, Maryland, promptly after becoming aware of any act which may be made the basis of a claim,” is not complied with where there is an entire failure to give the required notice to the president of the company, and a delay of about sixty days from the time the employer became aware of the employee’s alleged defalcations, and of from ninety days upward from the time when they should have been, and probably were, sufficiently aware of these facts, before the matter was called to the attention of even the local agents of the insurance company.</p> <p>[2] Id—Materiality of Notice Provision—Strict Compliance.—A condition in a policy of fidelity insurance requiring the giving of notice promptly of any act which may be made the basis of a claim is a material provision of the policy, and must be strictly complied with in order to enable the employer to recover.</p> <p>[3] Id.—Amount of Misappropriations—Method of Estimating.—In an action based on a policy of fidelity insurance, the court may arrive at an estimate of the amount of the employee’s total misappropriations by the method of approximation from the daily average of articles consumed.</p> <p>[4] Id.—Nonpayment for Articles—Burden of Proof.—In such an action against the fidelity insurance company to recover on a bond given to protect the employer against any loss that might be sustained by reason of the fraud or dishonesty of the employee, the burden is upon the employer to prove that the articles taken or consumed by the employee were not paid for.</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 Los Angeles County. Stanley A. Smith and Grant Jackson, Judges. Affirmed in part; reversed in part.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] , Landlord and Tenant—Part op Leased Premises Unutilized—■ Trespass by Landlord.—A trespassing landlord cannot be permitted to apportion Ms own wrong; nor can it be assumed that because a tenant leaves a part of the leased premises unutilized, it constitutes an implied license to his landlord to build a house on it and come and live with Mm.</p> <p>[2] Id.—Covenant op Quiet Possession—Violation by Landlord— Eight op Tenant.—"When the landlord, in violation of the covenant of quiet possession under the lease, moves in, the tenant is justified in moving out, and suing for damages, if he so elects.</p> <p>[3] Id.—Deprivation op Use op Part op Premises—Constructive Eviction prom "Whole.—Any act of a permanent character done by the landlord or by Ms procurement with the intention and effect of depriving the tenant of the enjoyment of the premises demised, or a part thereof, to which he yields, and abandons possession, may be treated as an eviction from the whole.</p> <p>[4] Id.—Invasion of Rights of Tenant—Damages.—Where the landlord during the absence of the tenant, and while the lease has still some three years to run, the tenant still being rightfully in the possession of the whole of the premises and no wise in default, enters upon the demised premises, and, without right and without the consent of the tenant, takes possession of a portion thereof and erects a dwelling-house thereon, there is such an] invasion by the landlord of the rights of the tenant under' the lease as to constitute a constructive eviction from the entire leased .premises, and to justify its abandonment by the lessee and the recovery of all proximate damages resulting from the eviction.</p> <p>[5] Id.—Lack of Damage—Conclusion of Law.—In an action for damages for eviction from leased premises, a finding that plaintiff “has not been damaged in any sum by reason of the entailed expense incident to enforced, or any, removal of plaintiff from said premises” must be construed as a conclusion of law, and an erroneous one, where it is expressly found “that plaintiff necessarily expended about $868 in removing from said premises.”</p> <p>[6] Id.—Expenses of Tenant in Removing from Premises—Damages.-—The expenses necessarily incurred by a tenant in removing from premises upon an eviction may be recovered as damages.</p> <p>4. Right of tenant to treat interference with his possession as an eviction and abandon, the premises and recover damages for loss of unexpired term, note, 7 A. ID R. 1103.</p>

<p>[1] New Trial—Appeal—Sufficiency of Evidence.—An order granting a motion for a new trial upon the grounds specified in the notice of intention, except upon (he grounds -of insufficiency ¡of evidence, as to which grounds said motion is denied, eliminates, on appeal from said order, ■ the question of the sufficiency or insufficiency of the evidence to justify the verdict. ¡</p> <p>[2] Motor Vehicle Act—Duty of -Compliance With.—The Motor Vehicle Act imposes the duty of complying with the requirements of the act upon the owner only when he is in control of the motor vehicle, personally or through his servant, and imposes that duty upon some other person when such other person is operating the vehicle and it is “under his control.” X :</p> <p>[3] Id.—Operation of Truck by Independent -Contractor—Violation of Act.—Where a truck is in the possession of a given person as lessee, and such person, while using the truck as an independent contractor and not as a servant of the owner thereof, fails to comply with some provision of the Motor Vehicle Act, no knowledge, actual or imputed, of such noneomplianee with the act can be attributed to the owner, and, therefore, it cannot be said- that the latter “allowed” such violation of the requirements of the act. ,</p> <p>[4] Master and Servant—Automobile Accident—Action for Damages—Relation Between Defendant and Operator—Evidence.— In an action for damages for personal injuries sustained in an automobile accident, alleged to have resulted from the negligence of defendant’s servants, the nature of the relation between the defendant andi the person who was in possession and control of the truck at the time of the accident must be determined not alone from the terms of the contract of employment, but from the subsequent conduct of each, known to and acquiesced in by the other.</p> <p>3. Person employed in connection with automobile as independent contractor, note, Ann. Cas. 1918C, 653. 1</p> <p>[5] Contracts—Variation of Terms—Admissibility of Parol Evidence.—In an action between a party to a contract and a third party, the rule that parol evidence cannot be received to contradict or vary a written contract does not apply.</p> <p>16] Master and Servant—Contractual Relationship—Construction by Parties.—It is competent for one sued as a master for the negligence of his alleged servant, where a written contract between them bears evidence of that relation, to show that, as a matter of fact, he and his alleged servant, by their conduct, put a different construction upon their contract and treated each other as contractee and independent contractor.</p> <p>[7] Id.—Status of Parties—Object of Employment.—Where the essential object of the employment is the performance of the work, the relation of master and servant does not exist unless the employer retains the right to direct the mode and manner in which the job shall be done.</p> <p>[8] Id.—Action for Damages for Personal Injuries—Relationship of Parties.—In this action for damages for personal injuries sustained in an automobile accident, alleged to have resulted from the negligence of defendant's servants, the person in possession and having control of the automobile was not the servant of the defendant, but an independent contractor, for whose negligence defendant was not responsible.</p> <p>[9] Id.—Right of Employer to Terminate Employment—Effect of. Because the contract of employment between the owner of a truck and the driver thereof, who was buying the truck under a conditional sale contract, gives the former the right to terminate it at any time it might choose to do so, it does not necessarily follow that the relation between them is that of master and servant.</p> <p>8. Liability of master for negligence of independent contractors, note, 76 Am. St. Rep. 382.</p> <p>8. Liability of owner of automobile for acts of his chauffeur or agent, notes, Ann. Cas. 1917D, 1001, Ann. Cas. 1916A, 659; Ann. Cas. 1914C, 1087; 12 Ann. Cas. 972; 10 Ann. Cas. 732.</p> <p>8. Responsibility of owner of automobile when operated by servant or another for his own pleasure or business, notes, L. R. A, 1916A, 957; 47 L. R. A. (N. S.) 662; 37 L. R. A. (N. S.) 834; 33 L. R. A. (N. S.) 79; 26 L. R. A. (NT. S.) 382; 21 L. R. A. (N. S.) 93; 14 L. R. A. (N. S.) 216; 9 L. R. A. (N. S.) 1033; 1 L. R. A. (IT. S.) 235.</p> <p>[10] Id. — Respondeat Superior ■—• Application op Doctrine. — The doctrine of respondeat superior applies only where the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged with the result of the wrong, at the time and in respect to the very transaction out of which the injury arises.</p>

<p>APPEAL from a judgment of the Superior Court of Contra Costa County entered upon a directed verdict, and from an order denying a new trial. J. E. Barber, Judge Presiding. Affirmed. ,</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order vacating a decree of foreclosure, annulling the sale made under it, and permitting the filing of an amended complaint to reform the mortgage for mistake. T. W. Harris, Judge. Reversed.</p> <p>The facts are stated -in the opinion of the court.</p>

PROCEEDING in Mandamus to compel the treasurer of a city of the sixth class to pay a warrant. Petition • denied. The facts are stated in the opinion of the court.

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

<p>[1] Negligence — Injury by Automobile — Driving at Dangerous Speed—Evidence—Conclusions.—In this action for damages for personal injuries received by plaintiff while crossing a street, through being struck by defendant’s automobile, there was substantial evidence before the'1 court tending to show that the defendant, in driving down the street, was traveling at a dangerous and unlawful rate of speed, and the court was justified in concluding therefrom that had defendant’s machine been traveling at a reasonable and safe rate, it would have been more easily controlled and plaintiff would have advanced beyond its course before he found: the machine upon him.</p> <p>1. Speed of automobile as negligence, notes, 25 L. R. A. (N. S.) 40; 38 L. R. A. (N. S.) 488; 51 I>. R. A. (N. S.) 993.</p> <p>Evidence as to speed of automobile, note, 34 L. R. A. (N. S.) 778. Opinion evidence, notes, Ann. Cas. 1917D, 613; L. R. A. 1918A, 705.</p> <p>Experimental evidence, note, 8 A. L. R. 33.</p> <p>[2] Id.-—Endeavor to Save Self—Aggravation of Injury—Contributory Negligence.—That the plaintiff endeavored to save himself by grasping the machine and that in so doing he may have aggravated his injury does not show contributory negligence on his part.</p>

<p>[1] Vendor and Vendee—Rescission of Contract—False Representations—Conflict of Evidence—Appeal.—In an action to rescind a contract for the purchase of certain residence property, to cancel a note and mortgage given as part payment and to recover fhe money paid thereon, on the ground of alleged false representations on the part of the vendor, if the evidence with reference to the alleged representations is conflicting, the finding of the trial court is conclusive on appeal.</p> <p>[2] Id.—Use of Word “Grant”—Implied Covenants—Encumbrances Prior to Acquisition of Title by Vendor.—The provision of section 1113 of the Civil Code insuring to the purchaser an implied covenant, where the word “grant” is used in the conveyance, that the property is free from encumbrances done, made, or suffered by the grantor does not apply to encumbrances which were on the property at the time the grantor acquired title.</p>

<p>I</p> <p>The facts are stated in the opinion of the court. i</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>PETITION for a Writ of Prohibition to review the action of the Superior Court of Imperial County and Franklin J. Cole, Judge thereof, in repudiating the verdict of a jury. Proceeding dismissed.</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>PROCEEDING on Certiorari to review an award of the Industrial Accident Commission. Award affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Leases—Breach—Measure op Damages—Proof.—In an action to recover damages for breach of an express covenant of a lease and of claimed implied covenants, the plaintiff may recover nominal damages only where he fails to prove the amount of damage suffered. '</p> <p>[2] Id.—Insufficiency of Proof—Unnecessary Findings.—In this action, in view of the entire lack of evidence of the amount of damages resulting naturally and proximately from the claimed breaches of the lease, the conclusion of the court that the plaintiff was entitled to damages in the sum of one dollar, based on findings in favor of the plaintiff, rendered unnecessary an express finding on the adequacy of the heating plant on the leased premises.</p> <p>[3] Id.—Failure to Find on Material Issue—Appeal—Reversal.— Even though the trial court fails to find upon a material issue, unless a finding in favor of the appellant upon that issue would work a reversal, the judgment will be sustained on appeal.</p>

<p>[1] Executors and Administrators—Insufficiency of Oath—Issuance of Letters—Collateral Attack.—The right of a person to act as administrator may not be collaterally attacked where letters of administration were issued in due form by the clerk to, such person, and the court had jurisdiction to make the order directing the clerk to issue them, notwithstanding that the oath of such person was not sufficient in form.</p> <p>[2] Id.—Regularity of Appointment—Letters Conclusive Evidence. If the court has acquired jurisdiction to make the order appointing the executor or administrator, the issuance of the letters testamentary or of administration, as against any collateral attack, should be deemed conclusive of the regularity of the appointment.</p> <p>1. Collateral attack on decree granting letters testamentary of of administration, notes, 4 Ann, Cas. 1117; Ann. Cas. 1912A, 9S3.</p>

<p>[1] Broker’s Commissions—Exchange of Property—Misrepresentations as to Value—Proof of Damage.—In an action by a real estate broker to recover the commission agreed to be paid for effecting an exchange of certain property of the defendants for that of another, the defendants, in seeking to avoid liability by setting up the defense that the plaintiff, as their agent, had been guilty of fraud in that he had misrepresented the value of the property which was received by them in exchange, must allege and prove that the property received by them in exchange for their own land was at the time of the transaction of a less market value than the latter property.</p>

<p>,[l] Employer and Employer—Inducing Employee to Break Contract—Liability op Third Person.—It is actionable for a third person having knowledge that an employee is working under contract, to induce such employee to break his contract.</p> <p>i£2] Id.—Agreement op Employee to Give Notice op Quitting—Bight op Labor Organization to Cause Employees to Break.—A labor organization has no right, by peaceable or other means, to cause employees who have agreed not to quit their employment without first having given seven days’ notice of their intention so to do, to break such agreement.</p> <p>i[3] Id.—Bight op Employee to Quit.—An employee may, with or without reason, stop work, if by so doing he does not violate his contract; and where there are no contractual relations, employees may strike without notice.</p> <p>1. Liability of third person for inducing employee to break contract, notes, 21 L. B. A. 233; 16 L. B. A. (N. S.) 746; 28'L. R. A. (N. S) 615; L. B. A. 1915E, 1076.</p> <p>Injunction against inducing or aiding breach of contract, notes, U L. B. A. (N. S.) 202; L. B. A. 19170, 782.</p> <p>3. Bight in aid of strike to employ peaceable persuasion to induce persons not under contract to quit or not accept employment, note, 41 L. B. A. (N. S.) 453.</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>George Lull, City Attorney, R. T. Ainsworth, and Chas. S. Peery, Assistant City Attorneys, for Appellants.</p>

<p>[1] Action on Foreign Judgment—Sufficiency of Certificate of Clerk of Foreign Court.—In an action on a foreign judgment, the certificate of the clerk of the foreign court to the record supporting the original judgment is not subject to the objection that it fails to certify “that the papers are copies of the originals on file in this office,” where such clerk does certify that the papers therein enumerated “are true and correct copies” of certain enumerated records, “as full and complete as the^same remains on file and of record in my office,” and such enumerated copies include all that is necessary to prove the judgment.</p> <p>[2] Id.—Description of Certifying Officer.—The certificate of the clerk to the judicial record of a sister state is sufficient whether such official is described as clerk of the court or as county clerk and ex-officio clerk of the court.</p> <p>[3] Id.—Proof of Lost Assignment—Admissibility of Certified Copy.—Where the assignment of a foreign judgment has been lost, the assignee, in an action on such judgment, may prove the assignment by a copy thereof certified to by the clerk of the foreign court as being a true copy of an assignment of said judgment “as the same remains of record and on file” in his office.</p>

PROCEEDING- in Certiorari to review an order of the Superior Court of Modoc County, and Clarence A. Raker, Judge thereof, directing the issuance of a writ of attachment for contempt. ¡Writ dismissed. The facts are stated in the opinion of the court.

<p>[1] Broker’s Commissions—Action to Recover — Consideration Disputed—Admissibility of Parol Evidence.—In an action to recover an agreed commission for the sale of certain real property, if the consideration for the agreement is disputed, !parol evidence is admissible to show the services performed.</p> <p>[2] Id.—Commission Dependent upon Consummation of Sale— Disposition of Property by Vendor—Admissibility of Parol Evidence to -Show Status of Contracts to Purchase.—Where ' the contract provides that the broker’s commission is to be paid pro rata as the purchase price for the land is paid, and the vendor parts with the title to the land before such purchase price is paid, in an action to recover the agreed commission, parol evidence is admissible to show that at the time such vendor parted with all interest in the property the contracts between it and the purchasers secured by the plaintiff were in full force and effect.</p> <p>[3] Id.—Effect of Disposition of Property on Commission Contract.—Where a vendor, after entering into a contract for the sale of its property, conveys its title to the property, and assigns its agreement to sell to another, it immediately becomes liable to the agent who effected such sale for the agreed commission, although such commission was made dependent upon the consummation of the contract of purchase.</p> <p>[4] Id.—Interest on. Deferred Commissions—Prom What Date Computed.—Where a commission contract provides that the commissions are to bear interest “payable as received” but do not specify the date from which interest is to be computed, interest will be allowed from the real date that the instrument was executed rather than the date that it bears.</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>[1] Appeal—Statement of Facts in Opinion—Law of the Case.— A statement of faets set forth in an opinion as the ground- upon which an appellate court bases its decision of a point of law does not constitute the law of the case.</p> <p>[2] Conversion—Action Against Constable—Verified Claim of Ownership—Allegation in Separate Defense—-Proof.—In an action against a constable for the conversion of certain personal</p> <p>s . property sold under a writ of execution, the allegations in a separate defense that a verified claim of ownership had been served upon him did not relieve the plaintiff of the necessity of proving that fact in order to establish its case.</p> <p>[3] Id.—Allegation of Answer—-Consideration as Proof—Motion for New Trial.-—Where such allegation in the separate defense that a verified claim of ownership had been served- was regarded as evidence in favor of plaintiff, the defendant, upon a motion by plaintiff for a new trial, is not entitled to have such evidence disregarded.</p> <p>[4] Appeal—Order Granting New Trial—Objection That Evidence Improperly Admitted.—On an appeal by defendant from an order granting a new trial, he cannot be heard to complain that evidence was improperly admitted in favor of plaintiff.</p>

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

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

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

<p>[l] Mechanics’ Liens—Action by Materialmen and Laborers to Foreclose—Parties—Bonding Company.—In these consolidated actions brought against the owners of a building, who had paid to the contractor the full amount of the contract price, to recover payment for materials used and labor done in the eonstrue- • tion thereof, the bonding company, which had executed to such owners an undertaking conditioned for the performance of the contract by the contractor and the payment of all claims of any person performing labor or furnishing materials to be used in the work, but which was not joined as a party defendant by plaintiffs, was by order of court, at the request of the defendant owners of the building, properly made a party defendant.</p> <p>[2] Id.—Judgment in Favor of Owners and Against Bonding ‘Company—Bight to Belief in Foreclosure Action.—In such actions, the court having rendered judgment in favor of the plaintiffs and against the defendant owners of the building for a sum in excess of the amount of the bond, and for the foreclosure of their liens against the' property of such defendants, properly rendered judgments in favor of the defendant owners and against the defendant bonding company for the amount of the bond, with costs, notwithstanding at that time the owners had not been required to pay out any moneys on account of the default of the contractor.</p>

■ APPEAL from, a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frederick W. Houser, Judge. Affirmed. The facts are stated in the opinion of the court.

<p>[1] Contracts—Agreements in Writing—Evidence op Other Negotiations.—When the terms of an agreement have been reduced to writing, no evidence of other negotiations or terms is admissible.</p> <p>[2] Id.—Incomplete Agreements — Admissibility op Parol Evidence.—Where a writing, though embodying an agreement, is manifestly incomplete, and is not intended by the parties - to exhibit the whole agreement, such parts of the actual contract as are not embraced within its scope may be established by parol.</p> <p>[3] Id.—Architect’s Agreement—Limitation op Cost op Buildings —Admissibility op Parol Evidence to Show.—An offer, in the form of a letter confirming a previous conversation in regard to the architectural work- on a proposed residence and a garage, to prepare all plans, specifications, and" details and to superintend the erection of the buildings for a given per cent of the entire cost of the same, accepted by a letter confirming the same, does not constitute a complete contract so as to bind the owner to pay the agreed percentage upon whatever might be the cost of the buildings which the architects might plan; and in an action to recover such commission, parol evidence is admissible to show that the owner limited the cost of the building to a specific sum, and that he refused to proceed with the buildings when the estimated cost exceeded that sum.</p> <p>2. Supplementing written contract by proof of collateral oral agreement, notes, 2 Ann. Cas. 146; Ann. Cas. 1914A, 454.</p>

<p>[1] Sales—Warranty—Use op Term Unnecessary.—The use of the word “warrant” is not necessary to the creation and. existence of an express warranty of goods sold where the terms of the agreement of sale designate the particular quality of the article to be delivered in phrases which are well known to the trade in respect to the particular article purchased and sold. ;</p> <p>[2] Id.—Acceptance of Order for “Export-cured” Codfish.—The acceptance of a written order for a certain quantity of “export-cured” codfish amounts to a warranty that the goods when packed for shipment should measure up in point of quality to the full meaning of the term “export-cured.”</p> <p>[3] Id.—Action for Breach of Warranty—Evidence—Finding.— In an action for breach of warranty in connection with the purchase of “export-cured” codfish, testimony of an experienced exporter that every can to the number of eighty or a hundred selected at random from the general lot when opened at a foreign port contained a quantity of foul liquid, the codfish therein being entirely decomposed, and that the codfish thus found to be in that condition was not “export-dried codfish,” if believed by the court, is sufficient to sustain a finding that the codfish were not as warranted.</p> <p>[4] Id. — Wrongful Admission of Cumulative Evidence. — The wrongful admission of evidence which is merely cumulative of the uncontradicted testimony of a witness whose testimony is properly admissible does not constitute reversible error. ,</p> <p>[5] Id.—Directions to Carrier—Modification of Contract of ¡Purchase—Liability fob Breach.—Where the contract of sale called for “export-cured” codfish, the seller could not, without the knowledge and concurrence or consent of the purchaser, modify such contract by stamping upon each package of codfish" the words, “Perishable. Store away from boilers.” If the carrier disobeyed the instructions evidently intended for its guidance, its breach of duty in that regard cannot be charged to the purchaser.</p> <p>[6] Id.—Inspection of Codfish During Preparation—Waiver of Warranty.—The buyer of “export-cured” codfish is entitled to rely upon the assurances of the packer that the goods shipped will be of the quality warranted by the terms of the written agreement with it, and the mere fact that an agent of the buyer sees such goods in the process of preparation and expresses a doubt as to their being sufficiently dried cannot be held to either constitute a waiver of such warranty or to have required a ; further inspection of the goods after they have been sealed and packed and delivered on shipboard at the point of shipment for the place of their destination.</p>

<p>[1] Pleading—Action on Performance Bond—Sufficiency of Complaint.—In an action by the owner against the surety upon an indemnity bond given by the latter to the former to secure the performance by the contractor of a contract for the construction of a building, the complaint is insufficient where it fails to allege that plaintiff performed all the conditions and covenants required to be performed by her under her contract with the contractor.</p>

<p>[1] Appeal—Bill op Exceptions—Delay in Preparation and Service—Consideration upon Appeal.—Where the date upon which a bill of exceptions was settled was beyond the time allowed by law, and the appellant has failed to incorporate in the bill any matter which plight excuse such delay, the appellate court is compelled to hold that the bill of exceptions, although settled by the trial court, cannot be considered upon appeal.</p> <p>[2] Id.—Denial op Motion to Dismiss Appeal—Right op Appellate Court to Consider Bill op Exceptions.—An order of the supreme court denying respondent’s motion for dismissal of1 an appeal on the ground that the transcript on appeal was not filed within the time prescribed by rule II of the supreme court cannot be considered as determinative of the right of the appellate court to consider the bill of exceptions upon final hearing of the appeal..</p>

<p>[1] Statute of Limitations—Annulment of Award of Industrial Accident Commission—Time for Commencing Action.—The annulment by the supreme court of an award of the Industrial Accident 'Commission does not constitute the reversal of a judgment upon appeal within the provisions of section 355 of the Code of Civil Procedure, which allows a new action to be commenced within one year after the reversal, and does not operate to extend the time for commencing an action.</p>

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

<p>[1] Negligence—Bight of Atjtomobilist to Travel Along Busy Street.—While a person may have a right to travel in a particular direction on a given side of a busy street, along the center of which automobiles are parked in accordance with a traffic ordinance, such right must be exercised with due regard to the facts that it is a busy street and that persons parking their cars in the center of the street shall be entitled to cross it at any point from the place of parking their machines to the sidewalk, and are likely to be exercising that privilege at any moment.</p> <p>[2] Id.—Driving Between Parked Cars and Sidewalk—Course of Driver—Speed—Finding.—Where such person has a space of almost eighteen feet within which to operate his machine, for him to drive within two and one-half or three feet from the rear ends of the cars parked in the center of the street, from which pedestrians are liable to emerge at any moment and at any place along his route is a fact from which of itself the court might fairly infer negligence on the part of the driver, which, taken with the court’s conclusion that such driver was traveling at a speed of about twenty-five miles, sounding no warning, is amply sufficient to sustain the court’s finding of negligence to be imputed to the employer of such driver.</p> <p>[3] Id.—Sufficiency of Finding of Negligence.-—Findings that the plaintiff’s injuries to her person and property were “caused solely by the negligence of the defendant,” and that plaintiff “was walking in a westerly direction from her automobile and had proceeded approximately three feet from the westerly end of her automobile when an automobile operated by the defendant, by its servant . . . , did carelessly and negligently collide with plaintiff with great force and violence,” constitute a sufficient finding of negligence on the part of the defendant to sustain a judgment in favor of the plaintiff.</p> <p>[4] Id.—Conduct of Plaintiff—Contributory Negligence—Finding. Where the plaintiff, after having parked her automobile in the center of the street in accordance with a traffic ordinance, stepped to the back of her car with the intention of looking northerly past the rear end of another car parked next to her own to see what, if anything, was coming before crossing the street in a northwesterly direction to the store to which she was going,' and as she was taking a step or two ont which she had to take in order to see around the adjoining car she was struck down by the defendant’s automobile, which approached rapidly and without warning, the trial court was justified in finding , that she was not guilty of contributory negligence.</p> <p>2. Speed of automobile as negligence, notes, 25 L. R. A. (N. S.) 40; 38 L. R. A. (N. S.) 488; 51 L. R. A. (N. S.) 993.</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>

PROCEEDING in Mandamus to compel the inclusion within a municipal budget of the amount due upon a judgment for a tort, and to compel the levy of a tax for the payment of, the same. Writ issued. The facts are stated in the opinion of the court.

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

<p>[1] Judgments—Action to Stay Execution and to Set Aside— Fraud and Collusion—Subsequent Transactions—Evidence.— In an action in equity to enjoin execution and set aside a judgment against a corporation on the ground of fraud and collusion, evidence of transaction occurring subsequent to the judgment in controversy, and having no connection with the judgment or the claim on which it was obtained, is inadmissible for the purpose of proving the fraud and collusion.</p> <p>[2] Id.—Evidence of Fraud—Subsequent Conduct and Declarations.—While the surrounding facts and circumstances may be liberally used in determining fraud, and subsequent conduct and declarations of the parties may be shown in evidence of antecedent fraud, the circumstances must be such as are related to the principal transaction, and from which a logical and legal inference may be drawn as to the nature and quality of the act under investigation.</p> <p>[3] Appeal—Alternative Method—Insufficient Record.—Where an appeal from a judgment on the ground that the finding of the trial court that the transaction in question was regular and free from fraud or collusion is contrary to the evidence is taken under the alternative method, • the typewritten transcript consisting of 289 pages, and there is no record in the printed briefs to show what, if any, evidence was before the court to raise even a presumption of fraud, the appellate court cannot be expected to explore, unaided by counsel, such a volume of evidence for the material necessary for a decision.</p> <p>1. Injunction against execution sale, note, Ann. Cas. 19180, 152.</p>

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

<p>APPEAL from an order of the Superior Court of Monterey County denying a motion to amend notice of -appeal. J. A. Bardin, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Street Law—San Francisco—Pleading of Ordinance—How Objection Raised.—In an action to foreclose a lien for the improvement • of a street intersection in the city and county of San Francisco under the provisions of the street improvement ordinance, the objection that such ordinance is pleaded by recital instead of directly should be made by special demurrer, and where not so made the objection must be held to have been waived.</p> <p>[2] Id.—Record on Appeal—Want of Findings—Presumption.— When the record on appeal presents a judgment without findings, the presumption is that findings were waived. This presumption the appellant must overthrow by embracing in his record on appeal, an affirmative showing by bill of exceptions, statement, or other appropriate method,, that findings were not waived.</p> <p>[3] Id.—Action to Foreclose Lien—Implied Findings—Sufficiency of Evidence.—In this action to foreclose a lien for the improvement of a street intersection in the city and county of San Francisco under the provisions of the street improvement ordinance, the evidence, which was wholly documentary, was sufficient to justify the implied findings of the trial court.</p> <p>[4] Id.—Sufficiency of Notice of Improvements.—Under the street improvement ordinance of the city and county of San Francisco, the posted notice of improvements need only state briefly the 1 improvement proposed, and refer to the resolution of intention for further particulars.</p> <p>[5] Id.—Payment of Assessments—Installment Privilege—Election—Eight to Foreclose Lien.—While the street improvement ordinance of the city and county of San Francisco makes provision for the payment of assessments in installments by such property owners as elect to bring themselves and their property within the terms of this privilege by indicating such election in the manner, and by executing a bond in the form, fully set out in the ordinance, in which event the payment of the assessment is postponed according to the terms of t'he ordinance permitting such installment payments, and providing for such bond, property owners who do not avail themselves of the privilege of paying the assessment in installments, or execute the required bond, are subject to suit for the foreclosure of t'he lien upon their property at any time' after such lien has become perfected and within two years after the proper recordation thereof.</p>

<p>APPEAL from an order granting a motion to correct the record of filing notice of appeal. George H. Cabaniss, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of 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>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 Organizations—Dissolution of Subsidiary Court—Construction of Constitution and By-laws.—A court of a 1 fraternal organization' is “dissolved” within the meaning of a provision of the constitution and by-laws of the order that, “No court shall voluntarily surrender its charter so long as nine members in good standing object to its surrender, nor shall the funds of said court ever bfe divided among its members, but on its dissolution all funds, books and other property shall be immediately delivered to the Permanent Secretary and applied to; the High Court Sick and Funeral Fund,” where its existence is terminated by unanimous vote of its members, its charter surrendered, and its books, regalia, and paraphernalia returned.</p> <p>[2] Id.—Nature of Constitution and By-laws.—The constitution and by-laws of a fraternal order constitute a contract between the parent order and the subsidiary court and the members thereof.</p> <p>[3] Id.—Adoption of New Section—Effect as to Subsidiary Court and Members.—When a given section of the constitution and bylaws of a fraternal order is subscribed to by a subsidiary court through its duly authorized representatives at the session of the high court when such section is adopted, it becomes binding upon the subsidiary court and all of its members. Those who become members subsequent to its adoption become -bound by such provision by subscribing to the by-laws.</p>

<p>[1] Master and Servant—Tort op Servant While Engaged in Individual Business—Liability op Master.—If a servant abandons or departs from the business of his master and engages ih some matter suggested solely by Ms own pleasure or convenience, or pursues some object which relates to an end or purpose wMeh ¡may be said to be the servant’s individual and exclusive business, and, while so engaged, commits a tort, the master is not answerable, although he is using Ms master’s property, and although the injury could not have been caused without the facilities afforded to the servant by reason of his relations to his master.</p> <p>[2] Id.—Taking Master’s Machine on Personal Trip—When Trip Complete.-—Where a servant takes his master’s macMne for a junketing or a business trip of his own, the trip is not complete until his return to the point of departure, or to a point where in the performance of his duty he should be.</p> <p>[3] Id.—Scope of Employment—Question for Jury—When Directed Verdict Proper.—While ordinarily the question of whether or not the act was witMn the scope of the servant’s employment should be submitted to the jury, where the only evidence is that at the time of the injury the servant was upon a trip for his own purposes contrary to his master’s orders, a motion for a directed verdict should be granted. It is only where reasonable men may differ in regard to the facts that a case should go to the jury. If the facts are admitted, or are susceptible of but one meaning, it becomes the duty of the judge to declare the law upon the admitted facts.</p> <p>1. Responsibility of owner when automobile is being used by servant or another for his own pleasure or business, notes, 1 L. B. A. (N. S.) 235; 9 L. B. A. (N. S.) 1033; 14 L. B. A. (N. S.) 216; 21 L. B. A. (N. S.) 93; 26 L. B. A. (N. S.) 382; 33 I». B. A. (N. S.) 79; 37 L. B. A. (N. S.) 834; 47 L. B. A. (N. S.) 662; L. B. A. 1916A, 957.</p>

<p>[1] Husband and Wife—Deeds—Attack on Ground of Fraud— Burden of Proof.—Where a deed from husband to wife is attacked by the former on the ground of fraud in its procurement, the burden is upon the wife to show not only the execution of the grant, but also to produce evidence showing a sufficient consideration and that it was not' obtained by undue influence.</p> <p>[2] Id.—Voluntary Conveyance to Wife—Consideration—Validity. Where the husband, uninfluenced other than by a situation due to his own wrongful acts, and prompted by a desire to secure a dismissal of an action wherein his wife has been declared entitled to a divorce and have her return to him,' and being fully cognizant of the effect thereof, conveys property to her as her sole and separate estate, the transfer, whether deemed a gift or for a good consideration, is valid, and the transaction unaccompanied ^ by undue influence exerted by the grantee.</p> <p>[3] Id.—Action to Quiet Title—Insufficiency of Evidence—Non-, suit—Statement of Grounds.—Where, in an action by the wife to quiet her title to the property covered by such deed, the husband upon a motion for a nonsuit, relies upon the insufficiency of the evidence to make out a prima facie ease, he must indicate wherein the evidence is insufficient that the wife and the court may understand the ground thereof and the former be given an opportunity to introduce evidence to meet the same, subject to the ruling of the court upon an application so to do.</p> <p>[4] Judgments-—-Evidence.—A judgment which has not become final is properly excluded as incompetent evidence.</p>

<p>APPEAL from a, judgment of the Superior Court of the City and County of San Erancisco. James M. Troutt, 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. James M. Troutt, Judge. Reversed.</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] Appeal—Alternative Method—Insufficient Certificate.—Upon an appeal from a judgment prosecuted under the method prescribed by section 953a of • the Code of Civil Procedure, a certificate of the trial judge to the effect that certain notices, stipulation, and affidavits set forth in said transcript “are correct and were before me and considered by me in connection with other testimony” upon the various rulings of which appellant complains, is manifestly insufficient.</p> <p>[2] lb.—Insufficient Record—Presumptions.—In such case, the “other testimony” considered by the trial court in making the rulings complained of not being presented to the appellate court for consideration, the action of the trial court cannot be disturbed.</p> <p>[3] Id.—Motion to Vacate Judoment—Conflicting Evidence.— Where the evidence submitted in support of, and in opposition to, a motion to vacate and set aside a judgment upon the ground of mistake, inadvertence, surprise, or excusable neglect, is conflicting, the action of the judge of the lower court cannot be disturbed on appeal.</p> <p>[4] New Trial—Discretion of Trial Court.—The matter of granting or denying a motion for a new trial on the ground of newly discovered evidence is left largely to the discretion of the judge who passes upon the motion, and the exercise of his discretion is rarely interfered with by an appellate tribunal.</p>

<p>[1] Place of Trial—Convenience of Witnesses—Balanced Equities —Denial of Motion.—Where it appears from the affidavits Sled in connection with a motion for a change of venue on the ground of the convenience of witnesses that the equities of the parties in regard to the convenience of witnesses are rather closely balanced, it cannot be said that the trial court, in denying the motion, exceeded the bounds of reason.</p> <p>[2] Id.—Discretion of Trial Court.—The granting of a motion for a change of venue upon the ground of the convenience of witnesses rests largely in the discretion of the trial judge, and orders upon such motions will only be disturbed when the abuse of discretion is clear.</p> <p>2. Power of court to order change of venue in absence of statute, note, 21 Ann. Cas, 1068.</p>

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

<p>APPEAL from an order of the Superior Court of Santa Clara County denying a motion for a change of venue. J. R. Welch, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Claim and Delivery—Pleading—Unsupported Finding—Error Cured by Admission on Appeal.—Where the defendants -in an action in claim and delivery to recover three mules, expressly concede in their brief on appeal that the complaint contains sufficient, in addition to the allegation to the effect that they had, without the consent of the plaintiff, taken the mules from Ms possession, to sustain a judgment if there was sufficient evidence of the right of possession in plaintiff at the • time the ease was commenced, the error of the trial court in making a finding based upon said averment not supported by the evidence is cqred.</p> <p>[2] Id.—Bight of Possession in Plaintiff — Sufficiency of Evidence.—In this action in claim and delivery to recover three mules, the evidence was sufficient to sustain the averment in the complaint and the finding of the trial court that at the time of the institution of the action plaintiff was entitled to the possession of the animals in question.</p>

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

<p>[1] Animals—Dogs—Value—Question for Jury.—Dogs constitute property of their owners and have pecuniary value. It may be the market value, or some special or peculiar value to its owner to be ascertained by reference to its usefulness or other qualities. Its amount is a question for the jury, after hearing evidence directed to those points.</p> <p>[2] Id.—Injuries by Dogs—Liability of Owner.—The owner of a dog is not liable for the injuries caused by it unless it is vicious and the owner has notice of that fact.</p> <p>[3] lb.—Notice of Vicious Propensity—Knowledge of Servant.— The knowledge of a servant or agent of an animal’s vicious propensity will be imputed to the master when such agent or servant has charge of or control over the animal.</p> <p>[4] Id.—Noncompliance With Ordinance — Death of Dog — Contributory Negligence of Owner.—In' an action for damages alleged to have been sustained by plaintiff by reason of the killing of her dog, the plaintiff may not be charged with contributory negligence because of the fact that her dog was upon the public streets without being licensed, where her omission to comply with the ordinance requiring dogs to be licensed did not contribute to the incident which caused the death of the dog.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Louis W. Myers, Judge. Affirmed.</p> <p>The facts are similar to those stated in McClure v. South* ern Pacific Co., ante, p. 652.</p>