Volume 42 — California Appellate Reports

<p>[1] Reformation of Contract—Discovert of Fraud and Mistake— Insufficiency of Complaint.—-Where the complaint in an action for the reformation of a contract on account of alleged mistake and fraudulent representations made by defendant is silent as to when the fraud and mistake, on account of which it is sought to reform the contract, was discovered, it is subject to demurrer.</p> <p>[2] Id.—Delay of Five Tears—Statute of Limitations.—Where the plaintiffs in such action had discovered the fraud and mistake more than five years prior to the commencement of the action for the reformation of the contract, the action was barred by the statute of limitations, and the court, on the trial thereof, erred in receiving parol evidence introduced touching the question of the reformation of the contract.</p> <p>[S] Partition—Property Held Under Joint Sale Agreement — Equity.—In an action in partition by the owners of an undivided three-fourths interest in a tract of land, if a partition cannot be made without great prejudice to the joint owners, a court of equity may decree a sale of the property, notwithstanding the property is held under an agreement that a sale and conveyance shall only he made by all the parties uniting in a joint transfer thereof and the defendant, the owner of the other one-fourth interest, refuses to join therein.</p>

<p>HI Statute of Limitations—Action on Book Account—-Date of Entry—Binding—Evidence.-—In this action by an executrix on an open book account for legal services rendered, the court was justified in finding that the item was entered in the books of the deceased on a given date, which was more than four years and six months before commencement of suit.</p> <p>[2] lb.—Amendment of Complaint—Sufficiency of Answer.—In such action, an answer alleging that the amended complaint was filed more than four years and six months after the entry, if any, upon the book of accounts of the deceased, and more than four years and six months after the last service rendered, “and that therefore plaintiff’s first cause of action is also barred under the provisions of subdivision 2 of section 337, and section 353, of the Code of Civil Procedure, in that the said action, purporting to be upon an open book account, was not commenced within a period of four years and six months from the time that the said open book account, if any, was created, and from the time that the said last services of . . . deceased, were rendered to the defendant in said action,” sufficiently presented the plea of the statute of limitations.</p>

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

<p>[1] Judgments—Lien on Property in Other County—Satisfaction of Judgment—Recordation of Clerk’s Docket.—When a ' transcript of judgment has been filed in another county under section 674 of the Code of Civil Procedure, the lien thereby placed is not discharged by the recordation in such county of a copy of the clerk’s docket showing satisfaction. The lien is discharged by the satisfaction itself.</p> <p>[2] Id.—Satisfaction by Ward—Duty of Persons Dealing With Property of Judgment Debtor.—Where a judgment has been obtained by a guardian ad litem, of a minor and the latter, after becoming of age, satisfies the judgment of record, persons dealing with property of the judgment debtor in another county in which a transcript of the judgment has been filed are not charged to look further than the fact that the judgment from which the lien' arose had been satisfied by the actual plaintiff in a manner and form fully meeting all the legal requirements.</p> <p>[3] Id.—Setting Aside Satisfaction — Restoration of Lien in Other County.—Although such satisfaction is afterward set aside, the lien upon the property of the judgment debtor having been discharged by the satisfaction of the judgment, it cannot be restored except by the recordation anew of a transcript of the judgment as required by section 674 of the Code of Civil Procedure.</p> <p>[4] Id.—Action to Set Aside Satisfaction—Lis Pendens.—Where, subsequent to the satisfaction of the original judgment, the defendant in the original action transferred the property in the other county in which a transcript of such judgment had been filed to others, the filing thereafter of notice of the pendency of a new action to set aside the satisfaction as fraudulent to the creditors of the ward was not sufficient to put such grantees on notice.</p>

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

<p>[1] Pledge—Personal Evidences op Indebtedness as Collateral Security—Bight op Pledgee to Sell.—Where personal evidences of indebtedness are pledged as collateral security, no right is created in the pledgee, in the absence of express agreement, to personally cause a sale of the securities; and he is only entitled to equitable relief and an order for judicial sale when there are special conditions shown which were not in the contemplation of the parties when the contract was made, and which would impose additional hardships on the pledgee if he was required to rely upon the collection of the collateral debts at their maturity.</p> <p>[2] Id.—Delay in Collecting Principal Obligation—Equity.—The fact that the collateral note is payable in monthly installments, and that it will take twenty-eight months to collect the balance due on the principal obligation, is not sufficient to entitle the pledgee to equitable relief and an order for judicial sale.</p> <p>[3] lb.—Eight oí Pledgee to Maintain Independent Suit.—A pledgee may bring an action at law and recover the amount of his debt from his debtor by "an independent suit for a personal judgment without selling or foreclosing the pledge.</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>Lon Bond and Deirup & Deirup fpr Appellants.</p>

<p>APPLICATION for an order recalling the remittitur, and to correct the judgment of the District Court of Appeal. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>CM Divorce — Denial of — Exclusion of Wife from Dwelling of Husband—Loss of Jurisdiction.—Where a divorce is denied, the parties are left in the same condition as when the action was commenced, and the court loses its jurisdiction to thereafter make an order excluding the wife from the dwelling-house of the husband, which the court found was his separate property, but on which, she had theretofore filed a declaration of homestead.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Fred H. Taft, -Judge. Judgment affirmed; appeal from order dismissed.</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. Curtis D. Wilbur, Judge. Judgment affirmed; appeal from order 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>

Charles Wellborn, Judge. Judgment reversed; appeal from order dismissed. The facts are stated in the opinion of the court.

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

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

<p>[1] Appeal—Alternative Method—Insufficient Briefs.—Where an appeal is taken under the alternative method, the appellate court will not refer to any portions of the record which are merely indicated as by page of the transcript.</p> <p>[2] Mechanics’ Liens — Failure to Comply With Law — Liability of Owner.—The owner of a building who has failed to comply with the provisions of the mechanic’s lien law may be required to respond to a lien claim which, when added to the other payments made, will exceed the total contract price.</p> <p>[3] Id.—Notice of Lien—Terms of Payment—Variance.—A notice of lien of a materialman stating “that payment shall be made on or before thirty days from deliveries” is insufficient where the statement in the proposal which resulted in the contract was that the materials were “subject to two per cent cash discount, payments to be made on or before the 10th of the month following deliveries.”</p>

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

<p>[1] Joint Adventurers—Belationship of Parties—Concealment of Profits.—The relation between joint adventurers is fiduciary in its character, and the utmost good faith is required of each in his dealings with the others. Bach will be held strictly to account to his eoadventurers, and he will not be permitted to enjoy any unfair advantage, or any greater rights than he and his eoadventurers are entitled to under the terms of their agreement or understanding. A coadventurer may not conceal his interest or his profits from his associates in the enterprise.</p> <p>[2] Id.—Purchase of Property—Secret Advantage—Constructive Fraud—Bights of Co ad venturers.—The failure of one of several joint adventurers, in an enterprise looking to the purchase of property, to share with his eoadventurers any secret advantage given by their vendor for inducing the purchase by the other co-adventurers is such a breach of confidence as amounts to constructive fraud, and will entitle his eoadventurers either to rescind the contract, or to maintain an action for damages for fraud and deceit against either or both parties to the secret understanding, or to have the coadventurer receiving the benefit account to his associates in the enterprise.</p> <p>[3] Id.—Sale of Interest in Mine—Secret Agreement Between Vendor and One Joint Adventurer — Conditional Purchase — Discovery of Fraud—Bescission.—Where, in connection with the sale of an undivided interest in a mine which was to be worked by the purchasers as active partners, one of the joint adventurers, to whom the other joint adventurers, in reliance upon his honesty and upon his becoming interested financially with them in the purchase, had left all the details leading up to the contract of purchase, entered into a secret side agreement with the vendor, whereby the latter agreed that should the mine not produce sufficient profits to pay such joint adventurer’s part as provided in the contract of purchase, he should have the right to reconvey his interest to the vendor and be released from payment therefor, the other joint adventurers, upon discovering such fraud upon them, were entitled to rescind their contract with the vendor as an aider and abetter in the consummation of the fraud.</p> <p>1. Mutual rights and liabilities of parties to joint adventure, notes, 17 Ann. Cas. 1022; Ann. Cas. 1912C, 202; Ann. Cas. 1916A, 1210.</p> <p>■ Effect of secret advantage to one member of a joint adventure, note, 50 L. E. A. (N. S.) 1046.</p> <p>[4] Id.—Breach of Faith—Action to Rescind—Injury—Pleading and Proof.-—While it is a general rule that fraud without injury is not ground for relief, either in law or equity, in actions of this character it is not necessary that the parties complaining of the breach of faith on the part of their eoadventurer should allege or prove that they have actually been injured by his breach of their confidence.</p> <p>[5] Id.—Endeavor to Compromise Claim — Notice of Rescission — Service Within Reasonable Time.—Where such eoadventurers, after learning of the fraud practiced on them by their coadventurer and the vendor, entered into negotiations, extending over a period of about seven weeks, with the executrix of the will of said vendor and her legal advisers, in an endeavor to effect a settlement or compromise of their claim before serving notice of rescission of the contract, such notice was within a reasonable time.</p> <p>[6] Id.—Inability of Vendees to Return Specific Property—Monetary Compensation—When Offer to Return Unnecessary.— Where, in an action of this character, a return in specie of all the property received by the plaintiffs is rendered impossible by reason of their having parted with a portion of it before discovery of the fraud, the requirements of justice are satisfied by a return of the property on hand with compensation in money for the remainder. If, after allowing defendant’s claim for the reasonable market value of all ore and bullion that plaintiffs may have sold, if any, there is still a balance due plaintiff, no express offer to return, in money, the actual value of such ore or bullion is necessary. The equities of the parties may be fully adjudged without such unnecessary circumlocution.</p> <p>[73 Pleading — Construction of — Common-law Rule Abrogated.— The common-law rule that a pleading must be construed most strongly against the pleader has been abrogated and superseded by the more liberal rule of the statute. The code requires not only a liberal construction, with a view to substantial justice between the parties, but also that the court shall disregard any defect in the pleadings which does not affect the substantial right's of the parties.</p> <p>[83 Id.—Facts Within Knowledge of Defendant—Uncertainty of Complaint.—As to those matters that lie peculiarly within the defendant’s or her testator’s knowledge, the defendant cannot be heard to complain that plaintiff has not alleged them with sufficient certainty.</p>

<p>[1] Contracts — Performance to Satisfaction of Promisee — Refusal to Accept—Good Faith.—Where a contract requires certain work to be done to the satisfaction of the person contracting for it, and the work is of a kind that involves fancy, taste, sensibility or judgment, and no benefit passes under the contract unless the work be accepted, the promisee’s refusal to pay for the work cannot be called in question, provided only that his refusal is in good faith and not from mere caprice. In eases of that character, the question is not whether the one complaining of the work ought to be satisfied, but solely as to the good faith of the dissatisfaction alleged.</p> <p>[2] Id.—Performance of Work Going into Building-Retention of Benefits—Measure of Satisfaction.—Where the work contracted for goes into a building, the fruits of the labor of the contractor being retained by the owner, a stipulation in the contract to perform to the satisfaction of the owner calls for only such performance as is satisfactory to a reasonable person. It is sufficient if the contractor completes his work in accordance with the contract in such a manner that the owner, as a reasonable man, ought to be satisfied with it.</p> <p>[3] Id.—Modification by Parol.—The terms of a written agreement may not be varied or modified by proof of a prior oral agreement.</p> <p>3. General rule that parol evidence is not admissible to vary, add to, or alter a written contract, notes, 6 L. R. A. 38; 17 L. R. A. 270.</p>

<p>[1] Deeds—Delivery—Inferences- -Finding.—In an action to quiet title to certain real property claimed by the defendants under deeds alleged by plaintiff not to have been delivered, if the evidence upon the question of delivery is such that different inferences might reasonably be drawn therefrom, the finding of the trial court is conclusive.</p> <p>[2] Id.—Recordation Delayed—Delivery not Affected.—The fact that a grantor requests that the deeds should not be recorded until the happening of some future event will have no effect upon their delivery.</p> <p>[3] Id.—Judgment of Insanity—Evidence.—A judgment that a given person is insane establishes the mental condition of such person only as of the date of the judgment, and is not proof of insanity at a time prior to the date stated therein.</p> <p>[4] Id.—Certificate of Medical Examiners—Evidence.—A certificate of the medical examiners attached to such judgment stating, among other things, that the “present attack began one and one-half months ago,” is not conclusive of the fact as against persons not parties to the proceeding.</p> <p>[5] Id.—Disposition of Property — Test of Capacity.—It is not every symptom or indication of insanity which will render one incompetent to dispose of his property. If one is able to understand and carry in mind the nature and situation of his property, and his relations to his relatives and those around him, with clear remembrance as to those in whom and those things in which he has been mostly interested, and is capable of understanding the act he is doing and the relation in which he stands to the objects of his bounty, free from any delusion, the effect of disease, which might lead him to dispose of his property otherwise than he would if he knew and understood what he was doing, he has the capacity to dispose of his property.</p> <p>5. Capacity to make contract as affected by mental condition, note, 3 L. R. A. (N. S.) 174; to make deed, note, 19 L. R. A. 489.</p>

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

<p>APPEAL from an order of the Superior Court of Colusa County denying a motion for a change of venue. Ernest Weyand, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[U Reformation of Instruments — Intent of Parties — Admissibility of Parol Evidence.—In revising a written instrument, the court may inquire what the instrument was intended to mean and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be; and evidence of the purpose of the agreement, and of the negotiations leading up to its execution, is admissible for the purpose of showing what the parties intended.</p> <p>[2] Id.—Contradictory Evidence — Appeal — Reversal.—While the evidence making out the mistake in an action to reform a contract on the ground of mutual mistake must be clear and convincing, where the evidence which tends to prove the mistake, standing alone, uneontradieted, is sufficiently clear and convincing, the appellate court cannot reverse the judgment of the trial court on the ground that such evidence is contradicted by other evidence.</p> <p>[3] Id.—Action on Note—Reformation of Contemporaneous Contract—Payment by Agent—Evidence—Judgment.—In this action on a promissory note by an alleged assignee, the defendants having by cross-complaint set up a cause of action for the reformation of a contract made contemporaneously with the execution of the note, and having alleged payment of the note in accordance therewith by the parties named as cross-defendants, the court, having found that the money paid by the plaintiff to his assignee for the note was paid by him as the agent of one of the cross-defendants, who was jointly liable on the note as guarantor, was correct in holding that the transaction amounted to payment under, and in accordance with, the terms of the reformed contract.</p>

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

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

<p>[1] Parent and Child—Obligation to Support—Statute of Limitations.—The obligation of a father to support his child, whether legitimate or illegitimate, is a continuing duty, against which the statute of limitations will not run during the time that the child needs such care and support.</p> <p>[2] lb.—Bights of Minor—Contracts of Parents.—A minor’s right t'o support and maintenance by his father may not be limited or contracted away by his parents.</p> <p>[3] Id.—Action by Mother for Support of Illegitimate Child— Party Plaintiff.—Under section 196a of the Civil Code, the mother of an illegitimate child may bring an action in her own name on behalf of the child against the father thereof for its support.</p> <p>[4] Id.—Waiver of Objection to Party Plaintiff.—Even though the statute did not expressly authorize such an action by the mother in her own name on behalf of the illegitimate child, where suit is thus brought and the defendant fails to take advantage of the point, either by demurrer or answer, the objection will be deemed waived.</p>

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

<p>[1] Vendor and Vendee—Delinquent Street Assessments — Sufficiency of Affidavits—Representations of Vendor.—A statement made by a vendor upon the sale of certain lots which had been purchased by his assignor at a sale for delinquent assessments made under the Street Opening and Widening Act of 1903 that he knew certain affidavits required by section 28 of the act were correct, because he had obtained advice on the subject, constituted merely an expression of opinion and not a representation of fact.</p> <p>[2] Id.—Tax Deeds Void — Title of Grantee — Action for Money Had and Received.—EVen though the tax deeds under which such vendor claimed title were void, he had an interest in the property by virtue of the valid tax sale to his assignor which passed to his grantee. Therefore, there not having been a total failure of consideration for the deeds t'o such grantee, the latter was not entitled to recover, as upon an action for money had and received, the consideration paid by him for such lots.</p>

<p>[1] Deeds—Defeat of Estate Conveyed—Condition Subsequent.— Where it clearly appears by a deed that it was the intention of the parties that, upon a breach of the restriction, the estate conveyed to the grantee should be defeated and should return to the grantor, the restriction is a condition subsequent and not a covenant.</p> <p>[2] Id.—Inhibition of Conveyance to Certain Nationalities—Unlawful Restraint on Alienation.—A condition in a deed providing for a forfeiture of the title conveyed in the event that the vendee, or her assignees, should lease or sell the property to any person of African, Chinese, or Japanese descent, prior to a given date, violates the common-law rule, of which section 711 of the Civil Code is declaratory, that “conditions restraining alienation, when repugnant t'o the interest created, are void.”</p> <p>[3] Id.—Any Restraint on Alienation Void.—Any restraint on alienation, either as to persons or time, is invalid.</p> <p>[4] Id.—Form of Restraining Provision Immaterial.—A provision in a deed restraining alienation, either as to persons or time, is void, whether it be regarded as a condition subsequent or as a limitation over—a limitation conditioned upon the lease or sale of the premises to persons of the proscribed class—or as a covenant running with the land.</p> <p>1. Validity of conditions and restrictions in deeds, note, 95 Am. St. Rep. 215.</p> <p>3. Validity of partial or limited restraint on alienation of fee-simple estate, notes, 7 Ann. Cas. 319; Ann. Cas. 1916D, 1254.</p>

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

<p>[l] Summons—Resident op Another State—Privilege prom Service in This State.—A person living in a foreign state, where he is a party to litigation there pending, is not privileged from the service of process upon him in an action brought in this state when he comes into the state of his own volition and for his own interest as an attendant at the taking of a deposition to he used in the trial of the action in the foreign state.</p>

<p>[l] Criminal Law — Sufficiency of Complaint.—In determining whether a criminal complaint states a cause of action, courts are limited to the contents of the complaint. It is not a question as to what the evidence on the trial may disclose.</p> <p>[2] Id.—Issuance of Warrant and Arrest—When Legal.—Where a criminal complaint measures up t'o the statutory requirements, the justice issuing a warrant for the arrest of the accused acts legally in issuing the warrant, and the arrest of the accused under and by virtue thereof is legal.</p> <p>[3] Id.—Larceny of Executed Deed — Sufficiency of Complaint — Averment of Ownership.—A criminal complaint which charges the defendant with stealing, taking, and carrying away a certain executed bargain and sale deed of a stated value, states a public offense within the provisions of section 49-2 of the Penal Code. The fact that the deed is averred to be the property of the person therein named as grantor does not change the nature of the transaction.</p> <p>[4] Id.—Loss of Property Through Fraud—Arrest of Guilty Person—Insufficient Complaint—Liability for Damages.-—Where a person who has been caused to lose her property through the fraud and duplicity of another, in good faith and without malice, places her complaint before the district attorney of that county, the fact that the criminal complaint under which the person who committed the fraud is arrested fails to state a public offense will not render her liable to such person for damages.</p>

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

<p>[1] Negligence—Attempt to Avoid Danger—Injury—Contributory Negligence.—A foreman may not be charged with contributory negligence because, in seeking to escape the danger from a heavy timber caused to fall toward him through the negligence of the employees under him, he changes his position and brings himself in contact with such timber and consequently loses his life.</p> <p>[2] Id.—Action for Death—Evidence—Verdict.-—In this action for damages for the death of the husband of the plaintiff through having been struck by a falling timber while engaged in tearing down and removing certain snowsheds along the line of the defendant railroad company, the jury was justified in concluding that death was due to the negligence of the defendant through its servants in violating the orders given by the deceased.</p> <p>[3] Id.—Allegations of Loss—Sufficiency of Complaint.—In an action for damages for the death of the husband of the plaintiff, an allegation that the plaintiff “has been damaged through the negligence of said defendant and by the death of her husband” in a stated sum is a sufficient allegation of pecuniary loss on the part of plaintiff in the absence of objection thereto in the trial court.</p> <p>[4] Id.—Negligence of Workmen—Duty of Foreman to Anticipate. A foreman is not required, as a matter of law, t'o anticipate that workmen employed under him will act negligently, and his right of recovery for injuries received will not be barred by their negligent acts. (Opinion of district court of appeal on denying rehearing.)</p>

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

<p>[ll Gifts—Action to Recover—Insufficient Proof.—In this action to recover certain money on deposit in a bank in the name of defendant’s intestate, the plaintiffs failed to prove either a gift inter vivos or a gift causa mortis by decedent to them.</p> <p>[2] Id.—Appointment of Agent to Make Delivery—Death of Principal Before Delivery — Effect.—Where a person constitutes another his agent for the purpose of making delivery of certain property to a third party, but dies before such delivery is made, the agency is revoked, and no title passes.</p> <p>[3] Parties — Action Against Public Administrator — Pleading — ' Estoppel.—In an action against a public administrator in his official capacity to recover certain property which it is alleged he, as such administrator, obtained possession of and, on demand, refused, and still refuses, to deliver to plaintiffs, if no demurrer is interposed to the complaint, and the answer of said defendant specifically admits such allegations, the latter, on appeal, will not be permitted to urge that such action cannot be maintained against him in his official capacity.</p> <p>2. Effect of death on contract of agency, notes, Ann. Cas. 1917E, 380: 23 L. R. A. 709: 45 L. R. A. (N. S.) 349.</p>

<p>[1] Pledges—Collateral Security for Past and Future Indebtedness—Action on Pledged Note—Evidence.—Where a promissory note of a third party is pledged as collateral security for the payment of money presently borrowed from the pledgee, as evidenced by the promissory note of the borrower, and also for the repayment of whatever prior amount the borrower owed such pledgee and all subsequent advances, it is not error in an action by such pledgee to recover on the pledged note to refuse to permit the maker of such pledged note to show the balance due on the original note of the borrower, there being no attempt to prove that the total indebtedness of such borrower to the pledgee is less than the amount for which the maker of the pledged note is sued.</p> <p>[2] Promissory Note—Acceptance of—Extinguishment of Obligation.—The acceptance of a promissory note does not extinguish the old obligation in the absence of an agreement to that effect.</p> <p>[3] Pledges-—Promissory Note as Collateral Security—Bona Fide Holder.—Where a note is taken as collateral security for future advances, the holder can assume a bona fide character only as t'o advances made previously to the maturity of the instrument.</p> <p>2. Promissory note or bill of exchange as “security,” note, Ann. Cas. 1914D, 626.</p> <p>3. Holder of bill or note as collateral security as bona fide holder, note, 31 Ii. B. A. (N. S.) 287.</p>

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

<p>[1] Negligence — Ownership of Automobile — Liability fob Tobts of Driver.—The test of an owner’s liability for the tortious act of his employee, while driving the former’s automobile, is the nature of its use at the time of the accident. The very basis of the rule of respondeat superior, as applied to automobile accidents, is that the driver of the machine is acting for the owner and not for himself personally at the time of the accident. As soon as the driver steps aside from the owner’s business and enters upon the performance of some independent purpose of his own, he ceases to act as the agent of the owner, and the latter’s responsibility for his acts terminates.</p> <p>[2] Id.—Use by Driver for Personal Purposes.—The owner of an automobile is relieved from liability for damages resulting from accidents where at the time of the accident the automobile is in use for a pleasure ride or other personal purpose of the driver.</p> <p>[3] Id.—Use by Driver Under Koving Commission.—Neither the ownership of the automobile nor the fact that the use and care of the same are intrusted by the owner entirely to the employee, renders the owner liable for injuries inflicted by the automobile while in use for a purpose entirely unconnected with the owner or his business.</p> <p>[4] Id.—Scope of Employment—Burden of Proof.—While it is not necessary t'o show that an employee who is intrusted with an automobile, with permission to use it at his discretion in the business of his employer, was engaged in any particular business of the owner at the time the injuries were received in order to establish the owner’s liability, it is necessary to show that, at the time of the commission of the tort, the employee was acting within the general scope of his employment.</p> <p>1. Liability of owner of automobile for acts of his chauffeur or agent, notes, 10 Ann. Cas. 732; 12 Ann. Cas. 972; Ann. Cas. 1914C, 1087; Ann. Cas. 1916A, 659; Ann- Cas. 1917D, 1001.</p> <p>Liability of owner when ear 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 L. 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>[5] Id.—Prima Facie Case — Overcoming Presumption. — Where there is no conflict in the evidence as to the fact that, at the time of the accident, the automobile was in use by the employee for his personal pleasure, the presumption of liability of t'he defendant arising from the proof of his ownership of the automobile, and the fact' that the driver was his employee, is overcome.</p>

<p>The facts are stated in Martinelli v. Bond, ante, p. £09, and in the opinion of the court.</p>

<p>[1] Vendor and Vendee — Exchange of Interests in Property — Fraud—Insufficiency of Pleading and Proof.—In this action involving the rights of the plaintiff under an agreement whereby she exchanged her equity in certain property for the rights of the defendant to certain lots in an unsurveyed tract of land as evidenced by a receipt for the payment therefor, the plaintiff alleging fraud and collusion on the part of the defendant and the owner of the legal title to such unsurveyed tract, the pleading and the proof showed that while the plaintiff had a right to have conveyed to her by the owner of such unsurveyed tract of land a good title to the specified number of lots, or an equivalent amount of the same property, it failed to show any cause of action against the defendant, who was not shown to be a guarantor of the responsibility of the owner of the legal title to such property, or of his title thereto.</p>

<p>The facts are stated in the opinion of the court.</p> <p>A. W. Ashburn, W. I. Gilbert, J. W. McKinley and J. W. McKinley, Jr., for Appellant.</p> <p>J. Wiseman Macdonald, O’Melveny, Stevens & Millikin, Hunsaker & Britt, Joseph L. Lewinsohn and Henry J. Angell for Respondents.</p>

<p>[1] Criminal Law—Infamous Crime Against Nature—Sufficiency of Information.—An information charging the commission of “the infamous crime against nature” in the words of the statute, or their equivalent is sufficient.</p>

<p>[l] Contracts—Endeavor to Sell Encumbered Property—Agreement to Divide Profits—Redemption from Foreclosure Sale— Rights of Parties—Intent—Evidence.—Where the owner of a tract of land, after his default had been entered in an action to foreclose a mortgage thereon, but prior to sale therein, executed a quitclaim deed of the property to the trustee under a deed of trust given as security for the payment of an indebtedness to the wife of such trustee under an agreement wherein it was provided that in consideration of such trustee’s not selling under the deed of trust, the owner would deed the property to him and he would endeavor to sell the land and divide the profits with such owner, and no time was provided in which such trustee was to make such endeavor, and an endeavor was attempted but without success up to the time of the sale in the mortgage foreclosure proceeding, such owner was not entitled to a division of the profits made by such trustee through sales of the property made by him following his redemption of the property from the sale under the foreclosure proceeding; and in an action to recover such division of the profits, parol evidence was admissible to show the real intentions of the parties under the original agreement pursuant to which the quitclaim deed was executed to such trustee.</p>

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

<p>[1] Street Law—San Francisco—Improvement op Accepted Street. The city and county of San Francisco has authority, under its charter, to improve an accepted street under the direction and control of its board of public works.</p> <p>[2] Id.—Duty to Keep in Repair and Improve.—The duty to keep in repair and improve its duly accepted streets, or portions thereof, is imposed upon the city and county of San Francisco by its charter.</p> <p>[3] lb.—Ordering op Work by Supervisors—Written Recommendation by Board op Public Works.—Application for the doing of any street work, or improvement, must, in the first instance, except as otherwise provided in the charter, be made by the proper parties to the board of public works, which may in turn recommend that the work be done. No street work, or improvement of any kind, can be ordered by the supervisors to be done unless a written recommendation to do the same has been made to them by the board of public works, except that in ease an application is made for any work or improvement the expense of which is to be paid by the city and county, and the board of public works shall not approve of the application, and it shall report to the supervisors its reasons for such disapproval, the supervisors may then, after having obtained from the board of public works an estimate of the expense of the work or improvement, by ordinance passed by the affirmative vote of not less than fourteen members of the board, order that the work be done.</p> <p>[4] Id.—When Board op Public Works may Recommend—Estimate op Expense.—Under the charter of the city and county of San Francisco, the board of public works may recommend any improvement the expense of which is to be paid by the city and county, though no application may have been made therefor, but must make, with such recommendation to the supervisors, an estimate of the expense.</p> <p>[5] Id.—Improvement op Streets—Payment op Expenses.—Under the charter of the city and county of San Francisco, the expense of all work, or improvement, done on streets, crossings, and intersections of streets, that have been accepted by the city and county, after the acceptance of the same, and all repairs and improvements deemed of urgent necessity that may be made upon the public streets, shall be borne and paid for out of the general fund of the city and county. The expense of all other street work and improvement, except certain emergency repairs done at the expense of the owner of the property, shall be assessed upon the lots and lands fronting on the street improved, according to the nature and character of the work.</p> <p>[6] Id.—Manner of Having Work Done—Purchase of Materials— Discretion of Board of Public Works.—The board of public works of the city and county of San Praneisco, after having made its recommendation to the board of supervisors that' a certain accepted public street be reconstructed and improved in a given manner and the latter board has ordered that the work be done, may do such work under contract, or by and through its own organization, purchasing the materials therefor.</p> <p>[7] Id.—Appropriation of Monet to Defray Expense—Insufficient Order That Work be Done.—Neither the action of the board of supervisors in carrying an item into the annual budget for the estimated cost of certain work, nor its later action in making direct appropriation of the sums of money needed to defray the expense thereof, constitutes an order that the work be done.</p> <p>[8] lb.—Bight to Use Patented Materials.-—Patented composition, or mixture, may be used in the improvement of accepted streets in the city and county of San Francisco, if called for by proper jurisdictional procedure.</p> <p>[9] Id.—Charter Provisions Applicable to All Work.—The provisions of section 26, chapter 2, article VI, of the charter of the city and county of San Francisco, relating to the use of patented pavements in the improvements of streets, is not confined to street work o-n unaccepted streets.</p> <p>[10] Id.—Effect of Ordinance of Batification.—An ordinance passed by the board of supervisors of the city and county of San Francisco ratifying, approving, and confirming the purchase by the board of public works of certain patented paving material used in the improvement of an accepted public street, has the effect to cure the omission of the board of supervisors, in the first instance, to order t'he work of improving the street, and the laying thereon of such patented material.</p> <p>[11] Id.—Use of Materials-—Failure to Comply With Charter Provisions—Liability—Estoppel.—Where a municipal corporation, through its duly authorized representatives, enters into a contract with t'he owner of a patented paving material for the purchase and use of a quantity of such material in the improvement of an accepted street, and such material is so furnished and used, such municipality, having received the benefit, will bo es-topped from relying on the plea that in making the contract it has not proceeded in strict conformity with some part of the complicated internal machinery of its complex corporate organization.</p> <p>8. Bight of municipality to contract for patented or monopolized article under contracts required by law to be let at public bidding, notes, 3 Ann. Gas. 745; 7 Ann. Gas. 107; 8 Ann. Gas. 396; 10 Ann. Gas. 709; Ann, Cas. 1915B, 460; Ann. Cas. 1916D, 245; 46 L. E. A. (N. S.) 990; L. B. A, 1917A, 442.</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] Reclamation Districts'—Collection and Payment of Assessments in Installments—Code Provision Mandatory.—The provision of section 3466 of the Political Code requiring assessments of reclamation districts to be collected and paid in separate installments is mandatory, and boards of trustees of reclamation districts have no discretion to determine whether an entire assessment shall be made collectible and payable at one time or in separate installments. The only discretionary power vested by the section in that connection relates to the amounts of the installments and the times of their payment.</p> <p>[2] Id.—Assessment Laws in Invitum — Substantial Compliance Necessary.—The assessment of lands for reclamation purposes is a species of taxation, and the rule that all laws authorizing the taxation of the property for public purposes are in invitum, and their provisions, therefore, to be strictly construed and pursued, or at least substantially so, is no less applicable to a case of an assessment of lands in reclamation districts for reclamation purposes than to laws authorizing the taxation of property for general governmental purposes.</p> <p>[3] Id.—Specification of Manner or Method of Collection-—Substantial Departure—Assessment Abortive.—Where the provisions of law by authority of which districts are formed for thq purpose of reclaiming lands situated therein specify the manner or the method of assessing such lands for the purposes of raising funds with which to carry out t'he purposes of the district, such manner or method of proceeding must be observed with substantial strictness. A substantial departure from the method specifically pointed out by the statute for raising the money for the purposes of the district will render the assessment abortive.</p> <p>[4] Id.—Installment Requirement — Substantial Provision.—The right of the owners of lands within reclamation district's to have assessments levied against such lands for the purposes of such districts made collectible and payable in separate installments is a substantial one expressly given to them by the legislature for their benefit and convenience.</p> <p>[6] Id.—Action to Foreclose Lien—Insufficient Complaint—Demurrer—Trial—Evidence—Nonsuit.—The complaint in an action to foreclose the lien of an assessment levied for reclamation purposes fails to state a cause of action where it shows tha-t the trustees attempted to call in the entire assessment at one time, instead of calling the assessment in separate installments. Where a demurrer to such complaint is overruled and the cause tried, and the evidence at the trial shows that the trustees failed t'o order the assessment to be collected and paid in separate installments, a motion for nonsuit should be granted.</p> <p>[6] Id.—Action to Validate Assessment—Lis Pendens.—In an action under section 3493%' of the Political Code to determine the validity of an assessment levied for reclamation purposes, it is not necessary to file a notice of the pendency of the action.</p> <p>[7] Id.—Summons'—Compliance With Code -Section—Jurisdiction.— In an action under section 3493%' of the Political Code to determine the validity of an assessment levied for reclamation purposes, the omission to direct in the summons, as required by said section, that the defendant “answer the complaint within ten days after the service of summons, if served within the state,” does not deprive the court of jurisdiction where the summons issued and served directs the defendants to answer the complaint within ten days “if served within the county—if served elsewhere within thirty days.”</p> <p>[8] Id.-—Nature of Judgment—Subsequent Purchasers.—The action in a validation suit being in rem, the judgment is binding upon the lands assessed and concludes all subsequent purchasers.</p> <p>[9] Id.—Judgment in Validation Suit — Evidence — Waiver op Estoppel.—In an action to enforce the payment of an assessment levied for reclamation purposes, the plaintiff does not waive the estoppel created by the judgment in a previous validation suit by introducing evidence in support of the issue raised in that suit.</p> <p>[10] Id.—Price op Work—Estimate and Price Paid—Determination op Price and Confirmation in Validation Suit—Bes Adjudicara.—Where a land owner, although duly notified of an action to determine the validity of an assessment levied for reclamation purposes, defaults or makes no appearance therein, he cannot, in a subsequent action to enforce the assessment against his property, show that the price paid for certain work was in excess of the estimated cost thereof, t'he question of the price of such work having been determined by the trustees of the district and the supervisors of the county and their determination confirmed by the validation suit.</p> <p>[11] Id.—Validation Suit—Judgment Bes Adjudicata.—The judgment in an action under 3493%' of the Political Code to determine the validity of an assessment levied for reclamation purposes is res adjudicata as to all matters contained in the statement' or report to the supervisors by the trustees showing the plan of the proposed reclamation work and estimates of the cost' thereof, and is not subject to collateral attack.</p> <p>[12] Id.—Improper Use op Funds — Validity op Assessment.—An assessment for reclamation purposes cannot be declared invalid because the trustees of the reclamation district have misused a part of the money in payment of a judgment obtained against them individually.</p>

<p>[1] Executors and Administrators — Vacation of Order Discharging Administratrix—Lack of Jurisdiction.—Where the orders settling the final account' of the administratrix of an estate, decreeing distribution of the estate, and discharging the administratrix are all duly and regularly made after due notice to all parties interested of the time fixed for the hearing of the application for the orders, the court is without jurisdiction to make an order vacating the order discharging the administratrix upon the mere request of attorneys who had originally represented the administratrix but who had not been compensated for the services rendered, no ground or reasons being assigned in support of the motion.</p> <p>[2] Id.—Insufficiency of Evidence—Power of Court to Vacate Orders.—The fact that the court, after regularly acting upon evidence which at the time it deems sufficient, concludes that the proof made was not sufficient to justify the orders settling the final account, decreeing distribution of the estate and discharging the administratrix, does not give the court authority to vacate such orders.</p> <p>[3] Id. — False Representations oe Administratrix. — The fact that the original orders are based upon' false representations or testimony of the administratrix, who furnishes the evidence upon which the court acts, constitutes no ground for vacating the orders so regularly made.</p> <p>[4] Id.—When Orders mat be Vacated.—Upon a proper showing, a court has power, under section 473 of the Code of Civil Procedure, to set aside and vacate orders settling a final account, decreeing distribution of the estate, and discharging the administratrix, where such orders are made through a party’s mistake, inadvertence, surprise, or excusable neglect.</p> <p>3. Collateral impeachability of findings as to jurisdictional fact's on which administration of a decedent’s estate is based, note, 18 L. R. A. 242.</p> <p>Collateral attack on probate for fraud not affecting the jurisdiction, note, 36 L. R. A. (N. S.) 986.</p> <p>4. Conclusiveness of probate as res jucbieat'i, note, 21 L. R. A. 680.</p>

<p>[1] Contracts—Planting and Caring for Fig Cuttings—Delivery of Developed Cuttings—Title.—Under a contract between a nursery company and the owner of certain land which provides that the former will deliver to the latter certain fig cuttings of assorted varieties, free of charge, which the latter is to plant and raise upon his land, and during the two winters next succeeding deliver to the former such thereof as shall have developed into young fig trees, three feet in height, free from pest or injury of any kind, at a given price per thousand f. o. b. at designated point, the title to t'he cuttings, and to the nursery stock into which they develop, remains in the nursery company.</p> <p>[2] Id.—Sale of Land—Liability of Successor—Claim and Delivery.—A person taking a conveyance of the land from such owner with notice of the rights of the nursery company stands in the same position as his predecessor; and whore he refuses to make deliveries of the nursery stock to the nursery company as in the agreement provided, the latter may maintain an action in claim and delivery against him.</p>

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

<p>[1] Trusts—Independent Contract op Guaranty—Enforcement op —Validity op Trust not Subject to Attack.—Where strangers to a trust created to secure payment of the purchase price of a certain tract of land enter into an independent contract of guaranty of such purchase price, they cannot, in an action to enforce such guaranty, attack the validity of the trust to which they are not parties, but become liable on default of the purchaser to the extent of their contract.</p> <p>[2] ID. — Security por Payment op Debt — Power to Convey Separable.—Where the main and ultimate purpose of a trust is to convert t'he trust property by sale, so far as necessary, into money wherewith to discharge the indebtedness secured thereby, the power to convey on completion of the trust, the occasion for which might never arise, is not essential thereto; and, being separable, if the trustees cannot legally be authorized to convey the property as therein directed, such power to convey can be disregarded without changing the main purpose of the parties.</p> <p>1. For monographic note on guaranty, note, 105 Am. St. Rep>. 502.</p> <p>[3] Id.—Trust Intended as Security for Indebtedness—Resultant Trust Invalid—Equitable Mortgage.—Where, primarily, the trust expressed is intended solely by way of security for the indebtedness of the purchaser of the property, with interest', expenses of protecting the property, and compensation of the trustees, and the resultant trust is invalid, as being for some purpose not authorized by section 857 of the Civil Code, the rights of the parties can be preserved by holding the instruments to constitute an equitable mortgage, with power of sale as part of the security and an incident or appurtenance of the mortgage lien.</p> <p>[4] Id. — Creation of Active Trust. — Where the agreement between the parties declares that it is intended to secure, and shall secure, the payment by the purchaser to the seller of his selling price of the property, with interest, and all other moneys which may become due or payable under the contract, and the trustees are given various active duties to perform in the execution of the trust, the trust created is not a passive trust.</p> <p>[5] Id.—Suspension of Power of Alienation—Right of Purchaser to Convey or Secure Conveyance.-—Where, under a trust created to secure the payment of the purchase price of certain property, the purchaser can at any time, by paying the indebtedness to the vendor, receive a reconveyance of the property, or, by uniting with the trustees and its vendor, execute a conveyance to its vendee, the power of alienation is not suspended beyond the period of lives in being.</p> <p>[6] Id.—Amendment of Code Authorizing Trusts to Convey—Subsequent Re-execution of Invalid Agreement.—Where an agreement creating a trust to convey was entered into prior to the amendment of section 857 of the Civil Code in 1913 t'o authorize such trusts in real property, but subsequent t'o such amendment the parties enter into a new contract re-executing the original transaction, the latter contract is valid and enforceable.</p> <p>[7] Id.-—- Guaranty — Enforcement-—Demand. — A guaranty is a promise to answer for the debt of another person, and it may be enforced, upon default of the principal, without any previous demand or notice.</p> <p>4. What constitutes a directory or an active trust, note, 11 B. R. A. (N. S.) 331.</p> <p>7. Necessity of demand for payment on maker of promise to pay debt or answer for default of another, note, 21 Ann. Cas. 545.</p> <p>[8] Id.—Liability of Indorser or Guarantor—Enforcement of Liability of Principal Debtor.-—Regardless of the necessity for exhausting the security given before resorting to the personal liability of the maker of a note, an indorser, or guarantor, may be sued upon his personal liability before, and without, such action having been taken.</p> <p>[9] Id.—Action on Contract of Guaranty—Attorney’s Pees.—In this suit brought" upon a contract guaranteering the payment of a certain promissory note executed as evidence of and for the purchase price of a given tract" of land, it was proper for the court to allow the attorney fee included in the judgment.</p>

<p>[1] Evidence — Competency op Child Under Ten — Discretion op Trial Court,.—The competency of a child under the age of ten years to testify is a matter which is left largely to the discretion of the court.</p> <p>[2] Id.—Suggestion by Court That Child be Withdrawn—Failure to Object—Presumption.—Where the trial court suggests that a child under the age of ten years should be withdrawn as a witness because she is too young, and no objection is interposed by the party offering such witness to the action of the trial court, t'he witness being withdrawn, acquiescence will be presumed.</p> <p>[S] Negligence — Action for Damages — Injury While Alighting from Street-car—Nonoccurrenob of Accident—Evidence.—In an action for damages for personal injuries alleged to have been sustained by plaintiff while attempting to alight from a street-ear of the defendant company, testimony of the crews of the various ears which were scheduled to pass over the line on which the plaintiff claims to have been traveling prior to and immediately following the time of day when the plaintiff claims the accident occurred, that no accident such as described by the plaintiff occurred upon the ears which they were operating, is admissible to establish the defense that the accident never in fact occurred at all, notwithstanding the crew of one ear upon which the accident could have occurred is not produced. The negative character of such evidence only affects its weight and sufficiency.</p> <p>1. Competency of child as witness, notes, 124 Am. St. Rep. 296; 14 Ann. Cas. 3; Ann. Cas. 19160, 424; 19 L. R. A. 65.</p>

<p>[1] Criminal Law—Determination of Degree of Crime—Code Provision Mandatory.-—The requirement of section 1192 of the Penal Code that “upon a plea of guilty of a crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree,” is mandatory.</p> <p>[2] Id.—Plea op Guilty—Determination of Degree Essential.—It is essential in every case where the crime charged is divided into degrees, and a plea of guilty has been interposed to such charge by the accused, that the court, as a prerequisite to the pronouncement of judgment of sentence, should first determine the degree, and in the absence of such determination any attempted sentence is illegal and invalid.</p> <p>[3] Id. — Degree of Crime — Question of Pact. — While, where the facts and circumstances justify it, an indictment or an information may charge manslaughter only, it must, when charging murder, do so without any specification of the degree thereof. The degree of the crime, whatever it may be, is necessarily included within the mere charge of murder, and it is a question of fact for the jury, where the case is tried, to find upon and determine the degree, and necessarily for the court to do likewise where a plea of guilty is entered by the accused.</p> <p>[4] Id.—Plea of Accused—Evidence of Degree—Waiver of Right to Determination.—While a voluntary statement or plea by the accused will constitute a sufficient evidentiary predicate for the determination by the court of the question of degree, the making of a statement or plea by the accused that he is guilty in a particular degree does not constitute a waiver of the right to have the degree determined by the court.</p> <p>[5] Id.—Murder—Duty of Court to Take Evidence.'—In cases of murder the proper course t'o pursue, where an accused has pleaded guilty to a charge of murder, is to take evidence upon the question of the degree of said crime of which he is guilty, not only for the purpose of determining the degree, but also, where on such plea it is found that the murder is of the first degree, for the purpose of a sound and just exercise of the power of determining whether the punishment shall be death or only life imprisonment.</p> <p>1. Statutory division of murder into degrees, note, 18 Am. Dec. 774.</p> <p>3. Effect of statutory declaration as to murder in first degree upon right of jury to pass up’on the degree, notes, 12 L. R. A. (N. S.) 935; L. R. A. 1916D, 610.</p>

<p>[1] Execution Sales—Title of Purchaser—Effect of Deed.—Under section 700 of the Code of Civil Procedure, the purchaser under execution sale acquires the legal title of the judgment debtor, defeasible upon condition subsequent. The effect of the sheriff’s deed is not to create a new title, but is merely evidence that the title of the purchaser has become absolute.</p> <p>[2] Quieting Title—Setting Aside Conveyance in Fraud of Creditors—Admissibility of Evidence of Fraud.—In an action for partition of certain real property, one of the defendants having filed a cross-complaint to quiet' title to a certain interest in the property acquired at execution sale which another of the defendants, by answer thereto, claimed under a certain conveyance from the judgment debtor executed prior to the date from which such cross-complainant deraigned title, the latter was properly permitted to introduce evidence that the latter conveyance was executed for the purpose of preventing him from recovering the amount owed to him. Such fact constituted but a matter of avoidance of the defense set up in the answer to his cross-complaint.</p> <p>[3] Id.—Status of Plaintiff—Burden of Proof.—In an action to set aside a conveyance as being fraudulent as to creditors, the plaintiff must prove that' he was a creditor of the grantor therein at the time such conveyance was executed.</p> <p>1. Title acquired by creditor purchasing at execution sale, notes, 79 Am. St. Bep. 947; 21 L. B. A. 33.</p> <p>[4] Id. — Appeal — Record — Acquiescence in Respondent’s Statements—Stipulation Implied.—Where the record on appeal from the judgment in such an action fails to show that the respondent was a creditor at the dat'e of execution of the alleged fraudulent conveyance, but the appellant, relying on the fact that the record does not show sufficient evidence of such fact, admits that the respondent was actually a creditor of the grantor, his acquiescence in respondent’s statements that the fact was never questioned in the court below, that appellant made no such claim therein, and that if there had been any controversy about it, abundant evidence could have been furnished to prove it, will be deemed a stipulation that the respondent was such a creditor.</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] Highways — Action to Determine Existence — Resolution by Supervisors Declaring Strip Public Highway—Variance op Descriptions—Admissibility as Evidence.—In this action involving the question of the dedication and acceptance of a certain road as a public highway, the trial court committed error in admitting in evidence, over the objections of the plaintiffs, an ordinance passed by the board of supervisors of the county three days before the trial of the action purporting to describe in detail, by metes and courses, a strip of land, which defendants claimed was the road in question, and declaring t'he same a public highway where no evidence was offered to tie such resolution up to the road described in the pleadings.</p> <p>[2] Id.—Variance With Pleadings—Erroneous Judgment.—In such action, the amended pleadings not having been filed after the passage of such resolution declaring the strip of land described therein a public highway, and such description having been at variance with the description contained in the pleadings, a judgment in favor of the defendants, following the description found in said resolution, was erroneous.</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>HI Pleading—■ Action to Foreclose Lien — Reversal of Judgment on Appeal—Amendment of Complaint—Different Cause of Action—Discretion of Court.—After a judgment in favor of the •plaintiff in an action by a surety on a contractor’s bond for the foreclosure of a lien for labor and materials furnished by him in the completion of a contract after abandonment of the work by the contractor is reversed on appeal on the ground that the plaintiff is not entitled to a lien, it is not an abuse of discretion to refuse to permit the filing of an amended complaint for labor and materials furnished at the special instance and request of the defendant.</p>

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

<p>[1] ¡Sales—Cash Transaction—Passing of Title.—Where a sale is for cash, delivery of the goods and payment of the purchase money are concurrent acts, and the vendor, though he has made delivery, supposing that he would immediately receive the purchase price, may reclaim the property from the purchaser if the purchase money be not paid according to the terms of the sale, provided he has not waived the cash payment or been guilty of laches or such conduct as would estop him. If the condition of cash payment is not waived, the title does not pass until the price is paid.</p> <p>[2] Id.—Delivery of Goods—Waiver of Condition—Intent.—If the seller delivers the goods notwithstanding the failure to fulfill the condition of payment, the question whether the delivery is to be considered a waiver of the condition that payment shall be made before the title passes may depend upon the attendant circumstances; for, whether the condition has been waived or not, is a question of intention.</p> <p>[3] Id.—Absolute Delivery—Presumption—Rebuttal.—An absolute delivery of property to the buyer without a demand of the purchase price is presumptive evidence of a waiver of the condition of present payment and of a willingness to give credit to the buyer. This presumption, however, may be rebutted by the acts and declarations of the parties, or by the circumstances of the case.</p> <p>[4] Id.—Intent—Question fob Jury—Evidence.—Whether the delivery without payment is absolute, so as to pass title, or conditional, so that the title does not pass, depending as it does upon the in< tention of the parties, the intent that the delivery before payment shall be conditional and not absolute may be inferred from the acts of the parties and the circumstances of the case, and is a question of fact for the jury. An express declaration of an intention to insist' upon the performance of the condition is not necessary, but such intention may be inferred from acts and attendant circumstances.</p> <p>1. When title does not pass though sale is not expressly conditional, note, 120 Am. St. Rep. 869.</p> <p>Right of purchasers of goods sold for cash but delivered without payment, notes, 13 L. R. A. (N. S.) 697; 29 L. R. A. (N. S.) 709; 47 L. R. A. (N. S.) 173.</p> <p>[5] Criminal Law—Larceny—Evidence—Inferences.—In this prosecution for feloniously stealing, taking, and hauling away a given quantity of sweet potatoes, the jury was warranted in inferring that the vendors did not intend to waive payment as a condition to the passing of title to the potatoes, that the vendors had no intention to part with title until the cash payment should be made, and that defendant' and his associate, by fraud and deception, induced the vendors to believe that an immediate cash payment would be made, and harboring the preconceived intention feloniously to appropriate the potatoes to their own use, obtained the possession fraudulently.</p> <p>[6] Id.—Obtaining Goods by Fraud or Trickery.—If a person, with a preconceived design to appropriate the property to his own use, obtains possession of it by means of fraud or trickery, the taking is larceny,</p> <p>[7] Id. — Larceny and False Pretenses Distinguished. .— In larceny the owner of the thing has no intention to part with his title to the person taking the thing, although he may intend to part with possession, while in false pretenses the owner does intend to part with Ms title to the thing but it is obtained from Mm by fraud.</p> <p>[8] Id. — Larceny .and Embezzlement Distinguished. — In embezzlement there is no intent, at the time of the taking, to steal or wrongfully appropriate the property, but the accused, having rightfully come into possession, thereafter forms the intent to fraudulently convert it to his own use, while in larceny the person taking the property has, at the time of the taking, an intent to steal the property or to feloniously appropriate it to his own use.</p> <p>[9] Id. — Taking Goods to Another County — Jurisdiction of Offense.—-If, after one has committed the acts which complete the theft, he continues traveling with the goods, still intending to appropriate them to Ms own use, each step is a new trespass and a fresh larceny, and the possession of the stolen goods by the thief is a larceny in each county into which he carries them; and, under section 786 of the Penal Code, the jurisdiction of the offense is either in the county where the theft was committed, or in any county into which he carries the goods.</p> <p>6. Obtaining possession of property by trick or fraud with intent to steal as larceny, notes, 8 Ann. Gas. 287; L. B. A. 1916E, 769.</p> <p>7. Distinction between larceny and obtaining property .by false pretenses, note, 2 Ann. Cas. 1010.</p> <p>8. Distinction between larceny and embezzlement, notes, 13 Ann. Cas. 882; 11 A. I». B. 801.</p> <p>9. Bringing stolen goods from another jurisdiction as larceny in the forum, note, Ann, Oas, 1912A, 392.</p> <p>[10] Id. — Ownership of Goods Stolen — Allegation of in Information.—In larceny the name of the owner of the property stolen is not a material part of the offense charged, but is only required to identify the transaction so that the defendant, by proper plea, may protect himself against another prosecution for the same offense. The essential thing is an averment which shall show conclusively that the property does not belong to the defendant.</p> <p>[11] Id.—Different Asportations—Single Act.—The fact that the potatoes were taken and hauled away from the ranch of the vendor on three different days did not constitute three different offenses. If different asportations from the same owner are prompted by one design, one purpose, one impulse, they are a single act, without regard to time.</p> <p>[12] Id.—Duty to Acquit—Instructions—Error.—In this prosecution for the crime of larceny, in view of the fact that the court fully instructed the jury on the questions of burden of proof and presumption of innocence, and the further fact that the defendant neither developed, by evidence on his behalf, nor put forth or suggested any particular or special theory or hypothesis consistent with his innocence, the refusal to give an instruction that “if there be any reasonable theory or hypothesis deducible from the evidence consistent with the innocence of the accused, your sworn duty compels you to accept such theory or hypothesis and acquit him,” did not constitute prejudicial error.</p> <p>[13] Id.—Price “Agreed” to be Paid—Question not Objectionable.— In such prosecution a question as to the price the defendant and his associate had “agreed” to pay for the potatoes was unobjectionable where the witness had previously testified to the particulars of the negotiations between himself and the defendant and the latter’s associate.</p> <p>[14] Id.—Conspiracy—Statements of Associate Admissible.—Where the defendant and his associate were conspirators from the moment they first visited the ranch from which they secured the potatoes to the time when the last potatoes were sold or otherwise disposed of by them, the evidence of the declarations by, and acts of, the associate were admissible on the prosecution of the defendant.</p> <p>[15] Id.—Prima Facie Proof of Conspiracy not Essential.—Where the facts from which the conspiracy is to be inferred are so intimately blended with other facts going to constitute the crime that it is difficult to separate them, it is not essential to the introduction of evidence of the acts and declarations of one of the conspirators that evidence should first be introduced to establish ;prima facie, in the opinion of the court, the fact of conspiracy.</p> <p>15. Evidence of conspiracy to commit crime as admissible where conspiracy is not charged in indictment, note, 5 Ann. Cas. 984.</p>

1. Right to bring equitable action to quiet title to personalty, note, Ann. Cas. 1914B, 344. APPEAL from an order of the Superior Court of Los Angeles County denying a new trial. John W. Shenk, Judge. Affirmed. The facts are stated in the opinion of the court.

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

<p>[1] Physicians and Surgeons — Action for Damages for Malpractice—Statute of Limitations.—An action to recover damages for alleged losses of time and wages and expenses incurred and for pain in body and mind suffered by reason of the alleged want of knowledge and unskillfulness of the defendant as a physician and surgeon in the treatment of the plaintiff for certain bodily injuries, is barred by the provisions of subdivision 3 of section 340 of the Code of Civil Procedure where it is commenced one year and six months after said treatment had ceased.</p>

<p>[1] Statutes—Impeachment of Validity.—The validity oí a statute, which had been duly certified, enrolled, and approved, and deposited in the office of the Secretary of State, cannot be impeached by a resort to the journals of the legislature, or by extrinsic evidence of any character.</p> <p>[2] Id.—Validity of Section 288, Penal Code—Failure to Bead at Length After Amendment.—Section 288 of the Penal Code which provides that “any person who shall willfully and lewdly commit any lewd or lascivious act other than the acts constituting other crimes provided for in part two of this code upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison not less than one year,” is not subject to attack on the ground that the same, after being amended in the Senate, was not read at length in the assembly.</p> <p>[3] Id.—Constitutional Law—Sufficiency of Title.—The title to section 288 of the Penal Code, as it was enacted by the legislature of 1901, reading “An act to amend the Penal Code by adding a new section thereto, to be numbered section two hundred and eightvtwo, relating to crime against children,” sufficiently expresses the subject of the act as required by section 24 of article IV of the constitution.</p> <p>[4] Id.—Title and Act not Conflicting.'—The title of said act, declaring in general terms that the subject of the act involves crimes against children, is not inconsistent with the act itself, which specifically sets forth the acts constituting the crimes to which the title refers; nor is such title misleading or calculated to deceive or convey an erroneous impression as to the subject of the legislation involved in the act.</p> <p>[5] Id.—Special Legislation—Act not Unconstitutional.—Section 288 of the Penal Code does not involve special legislation within the meaning or contemplation of subdivision 2 of section 25, article IV, of the state constitution, since it applies to all children under fourteen years of age.</p> <p>1. Admissibility of extrinsic evidence to impeach statutes, notes, 13 Am. Rep. 648; 51 Am. Rep. 616; 9 Ann. Cas. 582; 20 Ann. Cas. 350; Ann. Cas. 1918D, 253; 40 L. R. A. (H. S.) 30.</p> <p>3. When title of statute is sufficient, note, 64 Am. St. Rep. 70. Construction of constitutional provisions relative to titles of statutes, notes, 1 Ann. Oas. 584; Ann. Cas. 1915A, 79.</p> <p>[6] Id.—Equal Protection of Law—Unusual Punishment—Legislative Authority to Prescribe Punishment.—Section 288 of the Penal Code is not subject to the objection that it denies to persons prosecuted under its provisions the equal protection of the law contrary to the mandates of the first section of the fourteenth amendment of the federal constitution, upon the theory that, while said section makes the acts therein denounced as criminal a felony, other sections of the Penal Code relating to crimes against children make the acts specified therein misdemeanors only; nor does said section authorize the infliction of unusual punishment within the inhibition in that respect of section 6 of article I of the state constitution. The legislature has authority to fix different penalties to suit different crimes, the penalty in each case being measured or fixed according to the nature of the particular crime and its effect upon society.</p> <p>[7] Id.—Reference to “Part Two” of Code—Meaning not Uncertain.'—There is not imparted t'o section 288 of the Penal Code uncertainty or ambiguity or unintelligibleness as to its meaning or intent by reason of the fact that “part two” instead of “part one” of the Penal Code is therein erroneously referred to as defining crimes involving in their composition, among other elements, that of lewd or lascivious conduct, which specific conduct is by said section excepted from the operation thereof.</p> <p>[8] Id.—Interpretation of Statutes.—If, by giving to a word or a phrase in a statute its literal meaning, absurd consequences would be the inevitable result, then the literal meaning thereof must be disregarded and such a meaning ascribed thereto, consistent with the general context and the evident object of the act, as will render the act not only consistent in all its parts, but reasonable in its effect, and, therefore, effectual for the purposes for which it was intended.</p> <p>[9] Id.—Omission in Verdict and Judgment—Reference to Indictment—Jurisdiction to Sentence Defendant.—-The fact that the verdict and judgment in a prosecution for a violation of section 288 of the Penal Code fails to state or declare that the crime of which the defendant is convicted was committed upon and with the body of the child does not deprive the court of jurisdiction to sentence the defendant to the state prison, where the indictment sufficiently states the offense defined by the statute.</p> <p>[10] Id.—Indictment not Included in Record on Appeal—Presumption as to Sufficiency.—Where the verdict recites that the defendant is guilty “of the crime of lewd and lascivious conduct with a male child under the age of fourteen years, a felony, as charged in the indictment,” and the judgment is in similar phraseology, but the indictment is not included in the record on appeal, the appellate tribunal will presume that the indictment sufficiently stated the offense defined by section 288 of the Penal Code by following substantially and in all essential particulars the language thereof.</p> <p>7. Effect of mistake in reference in statute to another statute, note, 5 A. L. R, 996.</p> <p>[11] Id.— Section 288, Penal Code — Juvenile Court Law. — Section 288 of the Penal Code has not been repealed by section 28 of the juvenile court law of 1913.</p> <p>[12] Id. — Violation of Section 288, Penal Code — Maximum and Minimum Punishment..—Section 288 of the Penal Code, fixing the penalty for the offense therein defined as imprisonment “in the state prison not less than one year,” and section 6-71 of said code, providing that “whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than that prescribed,” must be read together to ascertain the maximum and the minimum penalties in cases arising under the first-named section.</p> <p>12. Indeterminate sentence as cruel and unusual punishment, note, L. K. A. 19150, 560.</p>

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

<p>[1] Hew Trial—Excessive Verdict—Basis oe Motion.—A motion for a new trial upon the ground that the verdict is excessive does not necessarily imply misconduct "on the part of the jury, but it does presuppose that the result has been induced through excited feelings or prejudice of which the jury may not, perhaps, have been aware, but which has, nevertheless, precluded an impartial consideration of the evidence. The essence of the contention is that a fair view of the evidence would not lead an impartial mind to the approval of such a verdict.</p> <p>[2] Id.—Trespassing Cattle—Action for Damages—Order Granting Hew Trial—Discretion not Abused.—In this action for damages alleged to have been caused by defendant’s cattle to plaintiff’s fruit trees and crops, the trial court did not abuse its discretion in granting a new trial, either upon the ground of newly discovered evidence, or that the verdict was excessive, appearing to have been given under the influence of passion or prejudice.</p> <p>[3] Id— Hewly Discovered Cumulative Evidence — Question for Trial Court—Review on Appeal.—On a motion for a new trial on the ground of newly discovered evidence, which is merely cumulative, the question for the trial court to determine is whether the evidence is of character probably to affect the result on a new trial; and unless the evidence be of such a character as to make it manifest and certain to the appellate court that in one case it would, or in the other that it would not, result differently on retrial, the order of the trial court granting or denying the motion for a mew trial will not be disturbed.</p> <p>[4] Id.—Exercise of Diligence—Province of Trial Court.—Whether in a given ease the evidence could with reasonable diligence have been discovered and produced at the trial is a question upon which the judgment of the trial court must be regarded as conclusive, unless it appear that its discretion has been abused.</p> <p>[5] Id.—Province of Trial Court—Review of Evidence—Discretion— Appeal.—In deciding a motion for a new trial, the trial court has large discretionary power, and its order denying or granting such motion will not be reversed on appeal unless an abuse of discretion appear. In considering the evidence upon such motion, the trial court has power to draw inferences from the evidence opposed to those which were drawn by it upon the trial, provided they are not unreasonable; and where the order granting the motion for a new trial is general in its terms, the appellate court must uphold it if any ground upon which it might have been granted is supported by the record.</p> <p>3. Cumulative evidence as ground for new trial in civil cases, note, L. R. A.1916C, 1162.</p>

1. Damages recoverable on breach of contract to pay sum of money in specified articles or commodity, note, Ann. Cas. 1916A, 965. APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Thos. F. Graham, Judge. Affirmed. The facts are stated in the opinion of the court.

<p>[1] Criminal Daw—Murder—Degree oe Grime—Evidence—Province op Appellate Court.—The appellate court, though it may conclude ' after examining the testimony introduced at the trial in a prosecution for murder that had it the duty to try the question anew upon the evidence, it would be most apt to conclude that the defendant’s crime, considering the extreme provocation under which he acted, was not greater than that of manslaughter, it has no function to perform in the way of re-examining the facts, except in so far as it may be necessary to consider them in determining the matters of law which are the only subjects entitled to be reviewed on appeal.</p> <p>£21 Id.—'Self-defense—Instructions.—In this prosecution for murder, the court having fully instructed the jury that if the defendant believed as a reasonable man that he was about to suffer great bodily injury at the hands of the man whom he killed, he was justified in using his deadly weapon and killing his antagonist, did not commit error in refusing to give the instructions on the law of self-defense as requested by the defendant.</p>

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

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

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

<p>[1] Criminal Law—Assault—Sufficiency of Indictment.—An indictment charging the defendant with the crime of assault by means and force likely to produce great bodily injury is sufficient where it shows the object with which the crime was committed, and states how or in what manner such object was used upon the person assaulted, which acts are charged to have been willfully, unlawfully, feloniously, and forcibly committed.</p> <p>[2] Id. — Dismissal of Misdemeanor Charge — Not Bar to Prosecution of Felony Charge.—The dismissal of a charge of battery in a justice’s court on motion of the district attorney, after the return of an indictment against the defendant for battery accompanied by means and force likely to produce great bodily injury, does not constitute a bar to the later felony charge upon the indictment, although both charges were based upon the same acts.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Prank R. Willis, 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 Kings County, and from an order denying a new trial. M. L. Short, Judge. Judgment affirmed; appeal from order dismissed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>HI Municipal Corporations — Annexation op Territory — Legality op Proceedings—Quo Warranto.—A citizen and taxpayer within the territory annexed to a municipal corporation pursuant to proceedings taken under the provisions of the Municipal Annexation Act of 1913 (Stats. 1913, p. 577) cannot attack the legality of the proceedings, even though illegal ballots were cast and counted at the annexation election without which the annexation would not have been effected. Any attack upon the exercise of the franchise as to the annexed territory must be by quo warranto proceedings at the instance of the state.</p>

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

<p>APPEAL from a judgment of the Superior Court of Ventura County, and from an order denying a new trial. Merle ff. Rogers, Judge. Judgment and order 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] Contracts—Action for Breach—Conflicting Evidence—Judgment—Appeal.—In an action for damages for breach of a contract for the sale and delivery of the plaintiff's crops of fruit covering a series of years, if the evidence is in substantial conflict as to the material facts the decision of the trial court will not be disturbed upon appeal.</p>

<p>[1] Criminal Law — Murder — Misconduct of District Attorney — Waiver of Objections.—Objection to the misconduct of the district attorney in making a certain statement in his argument to the jury in a prosecution for murder will not be considered by the appellate court where no assignment of such misconduct was made by the defendant at the time the statement was made to the jury.</p> <p>[2] Id.—Good Reputation of Defendant — Presumption — Instructions.—A requested instruction “that the law presumes that the defendant has a good reputation for truth, honesty, and integrity” does not conform to section 1847 of the Code of Civil Procedure.</p> <p>[3] id.—Right of Self-defense—Instructions.—The defendant in a prosecution for murder is not prejudiced by the failure or refusal of the court to give an instruction on the right of self-defense in the language requested by him, where the court does give an instruction on that subject that is free from any error of which the defendant can complain.</p> <p>[4] Id.—Burden of Proof—Murder in First Degree—Verdict—Instructions.—In a prosecution for murder, the court having instructed the jury “that it is the duty of the prosecution to prove every material fact necessary to constitute the charge against the defendant beyond all reasonable doubt and to a moral certainty, and in this ease, among the material facts to be proven, are,— First: That the deceased was killed by the defendant. Second: That the killing was done with malice aforethought and with premeditation,” the defendant, having been convicted of manslaughter only, may not predicate error on the failure of the court to further instruct the jury in that connection, as requested by him, “if you have a reasonable doubt upon any one of these material facts, it is your duty to acquit the defendant of murder in the first degree.”</p> <p>[5] Id.—Evidence of Drunkenness—Consideration by Jury—Degree of Crime—Instructions.—An instruction that “evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of crime, and the weight to be given it is a matter for the jury to determine in connection with all the other evidence and circumstances in proof in the case,” contains a correct statement of the law.</p> <p>[6] Id.—Intention of Defendant—Consideration of Means Used— Instructions.—In a prosecution for murder, it is proper to instruct the jury that “in determining the intention of the defendant at the time of the transaction complained of it is important to consider the means used to accomplish the killing.”</p> <p>[7] Id. — Burden of Proof — Mitigating Circumstances — Instruction's.—Where in other instructions given the jury was fully instructed that the burden was upon the prosecution to prove defendant’s guilt beyond a reasonable doubt, it was not error to instruct the jury that “upon a trial for murder if the commission of the homicide by the defendant is proved to a moral certainty and beyond a reasonable doubt, then it devolves upon the defendant to prove circumstances of mitigation or that justify or excuse the act, unless the proof on the part of the prosecution tends to show that the crime only amounts to manslaughter, or that the defendant was justifiable or excusable.”</p>

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

<p>[1] Vendor and Vendee — Contract of Sale—Time Made of Essence—Waiver of Forfeiture.—Where time is made of the essence of a contract for the sale of land, terminating it upon a failure to comply strictly and punctually with it's conditions, its effect is to entail a forfeiture by sheer force of the contract itself, upon the mere default of the purchaser by his failure to make payments at the times and in the manner that he obligated himself to, provided, however, that the vendor has not waived the default or consequent forfeiture, which he has the right to do. This he may do by express agreement to that effect, or by unequivocal act's or demeanor affording reasonable inducement for the purchaser, in reliance thereon, to alter his course as to strict and punctual compliance with his contract, either in advance of or after the prescribed time.</p> <p>[2] Id.—Suspension of Right of Forfeiture — How Revived.—The stipulation in a contract of sale that time shall be of the essence of the contract is made solely for the benefit of the vendor, and where the conduct of the vendor, or the entire course of business between the parties, amounts to a waiver of such clause, such waiver creates a temporary suspension of the right of forfeiture, which can only be revived by giving definite and specific notice of an intention to revive and enforce it.</p> <p>[3] lb.—Oral Statements of Vendor—Use of Installment Monet on Property—Suspension and Revival of Right of Forfeiture. Where the vendor, under a contract which made time of the essence of the contract, prior to the maturity of the first annual installment thereunder, told the vendees that he did not need the money, but that “it would be better for them to use the money in working and improving the land . . . and that after they had improved the land it could be sold and . . . [he] receive from the purchase price the amount due him,” the right of forfeiture was temporarily suspended and could only be restored by a definite and specific notice of an intention to restore the same, by giving notice to make the payments as provided by the contract and a reasonable time thereafter within which to comply therewith.</p> <p>1. Time as essence of contract between vendor and purchaser of land, note, 104 Am. St. Rep. 266.</p> <p>Time for performance of contract for sale of land where time fixed by contract has been waived, note, 4 A. L. R. 815.</p> <p>[4] Id.—Bight to Maintain Action in Ejectment.—Where a vendor, prior to the maturity of the first annual installment, advises the vendees who, under the contract of sale, are let into possession, that after they have improved the land, it may be sold, and then the sums due him, whatever they might be, can be paid, he may not thereafter maintain an action in ejectment against them, without first having given them definite and specific notice of his intention to restore the right of forfeiture and a reasonable time within which to comply with the provisions of the contract.</p> <p>[5] Id.—Demand fob Possession—Insufficient Notice.—A demand for possession is not the equivalent of a notice to the vendee to perform the covenants stipulated in his contract of purchase.</p> <p>4. Bight of vendor to recover possession on default of purchaser, note, 107 Am. St. Bep. 722.</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. Curtis D. Wilbur, 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>APPEAL from a judgment of the Superior Court of Sacramento County, and from an order denying a new trial. Malcolm C. Glenn, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] , Pleading—Multitude of Actions in Justice’s Court—Consolidation and Trial in Superior Court — Equity.—An action in equity in the superior court will lie to enjoin the plaintiff in 648 separate actions brought in a justice’s court, all against' the same defendant, all arising out of the same general state of facts, and all dependent upon the determination of the same disputed issues of law, from further prosecuting such actions in the justice’s court, and to require that such actions be consolidated and tried in such equity proceeding as one action.</p> <p>[2] Id.—Numerous Claimants — Actions Brought to Oppress — Equity.—Even where the right of action exists in numerous claimants, if the object of bringing a multitude of actions is to harass and oppress, equity will interfere.</p> <p>1. Bills of peace to prevent multiplicity of suits, note, 131 Am. St. Eep. 30.</p>

3. How and within what time right of rescission of contract must be exercised, note, 74 Am. Dec. 657. The facts are stated in the opinion of the court.

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

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

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

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

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

<p>[1] Criminal Law — Obtaining Money Under False Pretenses — Pleading and Proof—Necessary Elements.—In a prosecution for the crime of obtaining money under false pretenses, the fraudulent representations must clearly appear; it must be shown that they were known, by the defendant to be false or were made under circumstances not warranted by the knowledge of the defendant; that they were made with intent to deceive the innocent party; that the person injured relied upon the representation and that otherwise he would not have parted with his money.</p> <p>1. Beliance on false pretenses as an element of the offense, note, 6 L. R. A. (N. S.) 3G5.</p> <p>[2] Id.—Conformity of Proof With Pleading.—In such a prosecution the proof should correspond essentially with the allegations of the pleading.</p> <p>[3] Id.—Oral False Eepresentations—Insufficient Corroboration. In this prosecution for the crime of obtaining money under false pretenses, the so-called false representation having been entirely oral, there was no corroborative evidence as required by section 1110 of the Penal Code.</p> <p>[4] Id.—Drunkenness as Defense—Improper Instruction.—In such a prosecution, there being no degrees of the crime, it is erroneous to instruct the jury that “It is a well-settled rule that drunkenness is no excuse for the commission of a crime. Drunkenness forms no defense whatever to the fact of guilt, for when a crime is committed by a party while in a fit of intoxication the law will not allow him to avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. Evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of the crime.”</p> <p>[5] Id.—Giving of Correct Instruction—Error not Cured.—Where such an instruction, which is .plainly erroneous, is given, such error is not cured by the giving in some other part of the charge of a correct instruction, based on section 22 of the Penal Cods, with reference to drunkenness as an excuse for crime.</p> <p>[6] Id.—Evidence of Use of Liquor—Proper Instruction Material. Where there is evidence that the defendant at the time of the commission of the alleged offense was under the influence of liquor, it is important that the jury be correctly instructed with reference to the materiality of that fact.</p>

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

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

<p>[1] Divorce—-Desertion—Res Adjudicata—Reconciliation.—A decree determining the fact of the husband’s desertion of the wife and denying him a divorce does not estop him from thereafter seeking a reconciliation and restoration; nor, in a subsequent action, does such decree constitute an adjudication of his desertion.</p> <p>[2] Id.—Recrimination—Implied Negative Findings.—In an action for divorce by the husband, in which the wife pleads certain recriminatory matters but does not seek a divorce, and no findings are made as to such matters, the court’s finding of her desertion of the husband does not imply negative findings in regard to the recriminatory matters.</p> <p>[3] Id.—Recriminatory Facts — Purpose op Pleading — Necessity por Findings.—Recriminatory facts should be pleaded, but they are pleaded and proved as a defense simply and in bar of the plaintiff’s canse. If evidence in support of the recriminatory matters pleaded is introduced or properly tendered on behalf of the defendant, she is entitled to a finding on the issues raised by the pleadings, but if no evidence is introduced or offered in support of the recriminatory pleas, or if the evidence is of so weak a character as not to amount to a showing that the defendant at the time of the divorce suit had a subsisting cause of divorce, failure to find upon them may be excused.</p> <p>1. Decree against plaintiff in suit for divorce as bar to subsequent divorce action, note, 26 L. R. A. (N. S.) 577.</p> <p>■ Prior action for divorce in which claim for divorce might have been asserted by counterclaim, setoff, or cross-petition as bar to subsequent action for divorce, note, 8 A. L. R. 721.</p> <p>3. Recriminatory defenses in suits for divorce, notes, 15 Am. Dec. 211; 86 Am. St. Rep. 333.</p> <p>Right of recrimination as affected by comparative gravity of offenses, notes, 6 Ann. Cas. 171; .Ann. Cas. 1917A, 177.</p> <p>[4] Id.—Adultery—Failure to Comply With Section 1019, Code op Civil Procedure—Evidence Inadmissible.—Where the defendant in an action for divorce charged the plaintiff with adultery, referring to the person with whom the acts of adultery are alleged to have been committed as Jane Doe, but, though having ampio time without substantial excuse failed to cause the statutory notice to be given to her, upon objection being taken to the admission in evidence of the deposition of one E- M-, offered in support of such ground of adultery on the ground that the defendant had failed to comply with the provisions of section 1019 of the Code of Civil Procedure, the trial court properly excluded such evidence; and its refusal in the middle of the trial to grant a continuance that such person might be served did not constitute an abuse of discretion.</p> <p>[5] Id.—Adultery as Becrimination—Want op Finding—Error.—In such case, there having been no showing of the existence of a cause of action for divorce subsisting in the defendant upon the ground of adultery, failure to find upon such issue did not constitute reversible error.</p> <p>[6] Id.—Extreme Cruelty—Belations With Another Woman — Declaration in Her Will — Admissibility op Petition.—Where the defendant in. an action for divorce pleaded, by way of recrimination, extreme cruelty on the part of the plaintiff, based upon the latter’s conduct and relations with another woman, but there was neither allegation nor offer of evidence charging such other woman with adulterous conduct, the court committed error in excluding as evidence a verified petition of the plaintiff filed in an estate in which such other woman was a beneficiary, and where he alleged the death of such woman and set forth her will in which he was named as a beneficiary, and therein referred to as her “fiance” and she as his “betrothed wife.”</p> <p>[7] Id.—Belationship With Other Woman—Admissibility op Evidence.—In such action, there being no charge of adulterous conduct between the parties, evidence regarding the plaintiff’s relationship with such other woman was admissible, not alone in support of the defendant’s recriminatory charges, but upon the issue of good faith on the part of the plaintiff in his offer of reconciliation.</p> <p>6. Belations or associations of spouse with persons of opposite sex as cruelty or abusive treatment within statute defining grounds of divorce, note, L. R. A. 1918D, 427.</p> <p>[8] Id.—Offer of Reconciliation—Good Faith—Presumption—Evidence.—The presumption of good faith attends upon every act, unless the surrounding circumstances are such as to overcome the presumption; and in this action for divorce, the letters and conduct of the plaintiff, Ms relations with the other woman, and the latter’s naming him in her will as a beneficiary thereunder, she referring to him as her betrothed husband, his claim to her estate under such will, his successive and unsuccessful suits for divorce, and his long-continued failure t'o provide support for his wife and child, showed that the element of good faith in connection with his offer of reconciliation was entirely lacking.</p> <p>8. Necessity of good faith in seeking reconciliation after desertion, note, 138 Am. St. Rep. 155.</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] Husband and Wipe—Collusive Agreement to Procure Divorce. An agreement between a husband ancl wife for the settlement of their property rights and for the wife to institute a divorce suit which he should refrain from contesting is contrary to public policy.</p> <p>1. Validity of contract intended to facilitate procuring of divorce, notes, 11 Ann. Cas. 377; Ann. Cas. 1915A, 811; Ann. Cas. 1918E, 902.</p> <p>[2] Id.—Decree Obtained Through Collusion—Power of Court to Set Aside.—Where such collusion appears, the divorce should be denied; and if the court has not lost jurisdiction, a decree procured pursuant to such collusive agreement should be set aside on suggestion, and may be set aside by the court of its own motion.</p> <p>[3] Id.—Collusive Decree Final — Equity — When Interference Warranted.—Where a collusive decree has become final, courts of equity will not ordinarily interfere at the instance of either party. To warrant such action there must be a showing of coercion, imposition, or fraud upon the party complaining.</p> <p>[4] Id.—Cruelty—Coercion.—Even though the cruelty of the husband was such as to amount to coercion by which the wife was induced to enter into the oral agreement to procure a collusive divorce, that coercion could not have acted upon her when she was represented by counsel.</p> <p>[5] Id.—Action to Set Aside Decree—Plaintiff Party to Fraud— Equity.—Where, in an action in equity to set aside a decree of divorce alleged to have been eollusively procured, the complaint shows that the plaintiff herself commenced the collusive suit and fraudulently procured the interlocutory decree, that she was willing to take the benefits of the decree, and rested under it until it became final, the ease is not one of equitable cognizance.</p> <p>[6] Id.—Plaintiff’s Hands not Clean—Equity.—Where it appears by plaintiff’s own statements in an action to set aside a decree of divorce alleged to have been eollusively procured that her hands are not clean, equity will leave the parties to the transaction where it found them.</p>

1. What are, and construction and effect of, codicils to wills, note, 55 Am. Dec. 126. APPEAL from an order and judgment of the Superior Court of Alameda County admitting two certain documents to probate as a will. William S. Wells, Judge. Affirmed. The facts are stated in the opinion of the court.

<p>APPEAL from an order and decree of the Superior Court of the City and County of San Francisco admitting an olographic will to probate. Thomas F. Graham, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Appeal—Judgment-roll as Becord—Authentication by Clerk.— Where the issue presented on appeal depends upon the judgment-roll alone, the clerk’s certificate is sufficient to authenticate the record.</p> <p>[2] Id.—Order Subsequent to Judgment — Certification by Judge Necessary.—Where the order appealed from is subsequent to the judgment and arises on a record outside the judgment-roll, it is not for the clerk, but for the judge who determined the motion, to certify the papers and proceedings on which the order appealed from was made.</p> <p>[3] Id.—Insufficient Authentication of Becord — Affirmance of Order.—Where the record presented on an appeal from an order denying a motion to vacate a judgment is not properly authenticated, the proper procedure is t'o affirm the order appealed from.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal. Denied.</p>

<p>[1] Constitutional Law—Dub Process Clause—Purpose and. Scope. The purpose of the constitutional guaranty that property shall not be taken without due process of law is to exclude arbitrary power from every branch of the government. It is a restraint upon the legislative, executive, and judicial departments.</p> <p>[2] Judgments—Finality op Decisions-—Fraud—-Equity.—After the court acquires jurisdiction of the defendant and subject matter of a particular case, it may proceed to judgment; and so long as the judgment rendered is one within the general power of the court extending over all similar cases, and within the issues of the particular ease, that judgment, when it shall have become final, is conclusive upon the parties and in regard to all matters adjudged, regardless of any error on the part of the court. It may be attached for fraud by a suit in equity, in which the burden of both pleading and proving the fraud rests upon the complainant.</p> <p>13] Street Law—Assessment Proceedings—Finalty op Decisions.— Such rule and the rule that if there is fraud, or arbitrary action in excess of the jurisdiction of the court, either may be shown in a proper proceeding, unless the injured party has .waived his rights by consent to the act or in some other way, apply as well to assessment proceedings as to judgments of court.</p> <p>[4] Id.—Opportunity to be Heard—Finality op Judgment op Local Governing Body—Constitutional Law.—Where an individual has been given an opportunity to present to the local governing body his objections to an assessment levied for local public improvements, its decision, in the absence of fraud, or arbitrary action amounting to fraud, may be as conclusive as the judgment of a court in a civil action. The constitutional guaranty of the right to be heard does not necessarily require a determination in a court proceeding. .</p> <p>[5] Id.—Fraud—Presumption—Failure to Appeal—Bad Faith not to be Assumed.—Fraud is never to be presumed, and where a person complaining of a local assessment did not appeal from the action of the superintendent of streets, who levied the assessment, to the city council, it cannot be assumed that if such person had just cause of complaint, the council would not upon appeal have ordered the assessment corrected.</p> <p>1. What is due process of law, notes, 24 Am. Dec. 538; 20 Am. St. Rep. 554.</p> <p>[6] Id.—District Assessment—Determination of Benefits—Nature of Proceedings — Right to Appeal — Finalty of Decision of Council.—Under the Street Improvement Act of 1911, where the expense of the improvement is chargeable upon a district, the examination and determination of the comparative benefits by the superintendent of streets is essentially judicial in its nature. If his methods or his conclusions are erroneous, the property owners aggrieved have an opportunity to protect themselves by an appeal to, the city council; and all decisions and determinations of the council upon notice and hearing in this regard are final and conclusive as to all errors and irregularities which the council might have avoided or remedied or which it could then remedy.</p> <p>[7] Id.—Erroneous Assessment Affirmed—Hearing Denied—Remedies of Property Owner.—If an appeal to the city council is made and that body fraudulently or arbitrarily affirms an erroneous assessment or refuses the property owner a hearing, the courts are open for a direct attack on the action of the council, or on suit being brought to enforce the assessment, such matter may be interposed in defense.</p> <p>[8] Id.—Failure to Appeal—Estoppel to Attack Validity.—If a property owner, having a right to defend against an erroneous assessment for work ordered after jurisdiction has been established, fails to assert that right in an administrative tribunal which is vested with power to correct the error, he may not be heard, either as a plaintiff or defendant, in any litigation involving the assessment, to assert its invalidity, without showing either fraud or the exercise of arbitrary and harmful power on the part of the administrative tribunal.</p> <p>[9] Id.—Approval of Erroneous Assessment by Council — Effect of.—An erroneous, arbitrary, or even a fraudulent assessment will not render it void after the council has approved it, either actually upon hearing or impliedly because no protests are made.</p> <p>[10] Id.—Confiscation of Property—Assessed Valuation Immaterial.—The mere fact that the amount assessed against certain lots for street improvements exceeds the amount at which they have theretofore been appraised for taxation does not necessarily lead to the conclusion that the assessment is confiscatory.</p> <p>8. Estoppel of property owner to attack validity of special assessment, notes, Ann. Cas. 1915B, 753; 9 A. L. R. 634.</p>

<p>[1] Street Law—Failure to Acquire Jurisdiction—Constitutional Guaranty of Due Process—Assertion of Equities by Contractor.-—When a street assessment is attacked on the ground that the local board failed to acquire original jurisdiction, the owner may rest on the constitutional guaranty that his property may not be taken without due process of law. If jurisdiction is lacking, no equities asserted by the contractor can prevail.</p> <p>[2] Id.—Invalidity Apparent on Face — Appeal to Council not Necessary.—If the invalidity of the initial resolution of intention is apparent on its face, the owner is not required to seek its correction by appeal to the council. He may stand upon his rights whenever an attempt is made to assert any claim based on an assessment void on its face.</p> <p>[3] Id.—Definition of Due Process of Law.—While it is impossible t'o define with precision “due process of law,” it is the exact equivalent of the law of the land as used in the Magna Carta, and, broadly speaking, it means that before a man’s life or liberty or property may be taken by the state, he must be given notice of the proceedings which may terminate in the taking, and be given an opportunity to be heard in his own defense. It means further that the notice shall be a real and reasonable one, and the hearing, such as ordinarily or at least reasonably, is given in similar cases.</p> <p>1. Validity of special assessment as affected by unlawful invasion of property rights, note, L. R. A. 19.15D, 772.</p> <p>3. Definition of due process of law, note, 122 Am. St. Rep. 904.</p> <p>[4] Id.—Sufficiency of Compliance With Statute.—The law of the land does not necessarily mean simply statutory law, for no state can make everything due process of law, which by its own legislation it declares to be such. On the other hand, if the statute requires as the initial step in the process of depriving a man of his property the performance of a specifically defined act, unless the act be performed substantially, no jurisdiction—power—exists for further action in that proceeding against him.</p> <p>[5] Id.—Improvements Under Vrooman Act — Notice to Property Owners.—In proceedings under the Vrooman Act there is no provision for personal service. Notice, as distinguished from knowledge, is the essential thing and is implied from publication. It must be the notice required by the statute, not some other publication, and it must be substantially the same in all similar cases.</p> <p>[6] Id.—Burden of Proof.—In the matter of jurisdiction with respect to proceedings under the Vrooman Act the individual is not required to show that he has not had knowledge, but the burden is on the state and those claiming under it adversely to the individual to show that he has had notice.</p> <p>[7] Id.—Contents of Resolution of Intention—Provisions of Statute Mandatory.—The requirements of the Vrooman Act that when the council, under the circumstances therein prescribed, desires to make the expense of the improvement chargeable upon a district, the resolution of intention shall “describe the said district and refer to a plat or map approved by the city council, which shall indicate by a boundary line the extent of the territory to be included in said assessment district, which plat or map shall be on file in the office of the city engineer, before said superintendent of streets shall proceed with the publication and posting of notices of street work,” are mandatory and jurisdictional.</p> <p>[8] Id.—Omission of Statutory Requirement — Substantial Compliance—Question for Court.—Where a clear statutory requirement is omitted from the initial resolution or process which is the means of imparting notice of adverse proceedings, the rule of liberal construction must yield to the constitutional guaranty of due process of law; but if there is not an entire omission of a statutory requirement, but merely a defect, a court may properly determine there has or has not been a substantial compliance dependent upon the facts of the particular case.</p> <p>[9] Id.—Determination of Trial Court Controlling.—The judgment of what is a substantial compliance with the statute is to be exercised in the first instance by the trial court, and if the case is one where a requirement of the statute has not been entirely disregarded, its determination of the question of substantial compliance ought to be controlling in the absence of an abuse of discretion.</p> <p>5. Land owner’s right to notice and hearing of assessment for public improvements, note, 28 L. R. A. (N. S.) 1201.</p> <p>[10] Id.—Scope of Section 5Yz of Vrooman Act—Jurisdictional Requirements not Waived.—The provision of section 5Yi of the Vrooman Act that all objections to any act or proceeding prior to t'he date of the notice of award not made in writing within ten days from the date of the first publication of notice of award of contract shall be deemed to have been waived does not refer to matters which directly affect the jurisdiction of the council to order the work, such matters being by the last clause of said section expressly excepted from its provisions.</p>

<p>HI Estates of Deceased Persons—Bight ot Heirship—Statute, of Succession.—The right of heirship in an intestate’s estate is founded upon the statute of succession, and that statute measures the right's and obligations of a given person as an heir.</p> <p>[2] Id.—Death of Widower Intestate—Stepchild as Heir.—Where a widower dies intestate, leaving no issue, and the estate consists of community property of. his predeceased spouse and himself, or of separate property which he had inherited from such predeceased spouse, but such predeceased spouse left an only child, such estate will, under the provisions of subdivision 8 of section 1386 of the Civil Code, go to such child.</p> <p>[3] Id.—Source of Title of Stepchild.—In such case, notwithstanding the deceased never adopted the child of his predeceased spouse and never stood in the mutually acknowledged relation of a parent to such child, the latter’s title to the property is derived from the estate of the deceased stepfather and not from the estate of the predeceased mother.</p> <p>[4] Id.—Death of Wife — Effect on Community Property.—Under section 1401 of the Civil Code, upon the death of the wife, the husband becomes the absolute owner of the community property without administration. It never becomes any part of her estate.</p> <p>[5] Id.—Identity of Stepchild as Heir—Material Factors.-—While the source of such deceased husband’s title t'o the property is immaterial so far as the extent of his estate in the property is concerned, the source of the title of such deceased and the relationship of the child to the predeceased wife are material in establishing the identity of such child as an heir under subdivision 8 of section 1386 of the Civil Code.</p> <p>[6] Id.—Liability for Inheritance Tax—Amount of Exemption.— In such case, while the stepchild, under subdivision 8 of section 1386 of the Civil Code, takes as an heir, she takes as a stranger to the stepfather, and as such is entitled to an exemption of five hundred dollars only, and must pay a tax of five per cent on the balance of her inheritance.</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—Taking After Expiration of Time—Dismissal.—An appeal taken from a judgment after the time limited by the statute to appeal cannot be considered, but must be dismissed.</p> <p>[2] Id.—Amendment of Code — Notice of Entry of Judgment — Eights Dependent upon.—Under the provisions of the Code of Civil Procedure relating to appeals, as amended in 1915, the time of serving notice of motion for a new trial and to propose a bill of exceptions is made dependent upon the service of notice of the entry of the judgment, while the time to appeal begins to run from the time of entry of judgment.</p> <p>[3] Id.—Election by Aggrieved Party—Motions After Judgment— Extension of Time to Appeal.—Under such amended sections the party aggrieved by a judgment is given the election of appealing directly within sixty days from the entry of the judgment, or, if he desires to move either for a new trial or to vacate the judgment in the trial court, he may do so. If he does so within the sixty days allowed for an appeal, the time within which he may appeal is extended automatically until thirty days after the determination of the new trial proceedings, but no such extension of time is made in the statute because of the pendency of proceedings to vacate the judgment on the ground that the conclusions of law are not supported by the findings.</p> <p>[4] Id.—Time to Move for New Trial.—The losing party is not required to move for a new trial until he receives notice of the entry of judgment unless he waives such notice; but he is not required to wait until he receives the notice of entry, but may give notice of his intention to move for a new trial at any time after judgment. Of his own motion, therefore, he may extend the time within which to appeal by serving notice of motion for a new trial at any time within the sixty-day limitation for appeal, even though he has not received notice of the entry of judgment.</p> <p>[5] Id.—Expiration of Appeal Period—Privilege of Appealing Terminated.—If, at the expiration of the sixty-day period within which an appeal might have been taken, no notice of intention to movo for a new trial has been given, the time to appeal from the judgment elapses, and the privilege of appealing from the judgment or of having a new trial order reviewed on appeal terminates.</p> <p>[6] Id.—Notice of Entry of Judgment not Required.—There is no statutory requirement by which the prevailing party in a suit is required to give notice of the entry of the judgment.</p> <p>[7] to.—Limitation of Time to Appeal—Constitutional Law—Province of Legislature.—Section 939 of the Code of Civil Procedure, as thus construed to limit the right of appeal to the sixt'y-day period if new trial proceedings are not instituted within that period, is not unconstitutional as in violation of section 1 of article XIV of the constitution of the United States. The matters of motions for new trial and appeal are entirely within the control of the legislature. It might altogether abolish the right to move for a new trial, as it has abolished the privilege of appealing from an order made upon a motion for a now trial.</p> <p>[8] Id.—Failure to Appeal Within Time—Finality of Judgment— Res Adjudicata—Jurisdiction.—When the party aggrieved fails within sixty days after the entry of judgment either to appeal or to commence proceedings for a new trial, the judgment becomes final for all purposes at the expiration of the sixty-day period. The matters determined are res ad judicata-, and an appeal from such a judgment is not within the provisions of the statute, and vests no jurisdiction in the appellate court.</p>

<p>APPEAL from a judgment" of the Superior Court of Los Angeles County. H. D. Gregory, Judge. Modified and affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[i] Railroads—Construction of Bridge Across Stream—Duty Toward Neighboring Land Owners.—In constructing a bridge across a stream, it is the duty of a railroad company, in the exercise of ordinary care to avoid injury to neighboring lands, to guard against such floods or freshets as men of ordinary prudence can foresee, but not against such extraordinary floods and accidental casualties as cannot reasonably be anticipated. It not only should employ engineers of at least ordinary ability, who will bring to bear such engineering skill as is ordinarily applied to works of that kind, but it is its duty t’o exercise a reasonable degree of care and prudence in the construction of the bridge, taking into account the laws of hydraulics, the natural formation of the country, and the character of the stream, its habits and history, to the extent of learning its probable behavior under conditions which experience has shown are likely t'o recur, so as to guard against injuries which may reasonably be anticipated, not only from the usual state of the stream, but also from such extraordinary floods and freshets as may reasonably be anticipated, in view of the stream’s past history and known behavior, even though such floods or freshet's have occurred but infrequently.</p> <p>1. Duty of one obstructing natural watercourse to anticipate extraordinary freshets or floods, notes, 8 Ann. Cas. 777; Ann. Cas. 1918A, 1114.</p> <p>[2] Id.—Duty to Anticipate Extraordinary Floods — Exercise of Ordinary Care.—A railroad company is not bound to provide against such extraordinary floods as have never been known to occur, and which competent and skilled engineers could not reasonably anticipate. If the company has employed engineers of at least ordinary ability and skill, and has used all ordinary precautions in the construction to have the work done properly, it will not be liable to others for injury to land caused by an extraordinary and unprecedented storm and flood, unknown to common experience, and which could not reasonably have been anticipated.</p> <p>[3] Id.—Action for Damages Caused by Overflow—Extraordinary Flood as Defense—Evidence of Inundation at Other Points— Necessary Foundation.—In an action against a railroad company to recover damages occasioned by an overflow of plaintiff's land, resulting from the railroad’s negligence in the construction of its bridge, evidence that other lands upon the stream were inundated by the same flood is inadmissible to support the defense that the flood was extraordinary and unprecedented, unless it be shown that there is a similarity of location, surroundings, and conditions as between the respective lands.</p> <p>[4] Id.—Cause of Injury—Burden of Proof.—In such an action, the burden rests upon plaintiff to show, by a preponderance of the evidence, not only that defendant was guilty of negligence as alleged in the complaint, but that such negligence was the proximate, or a concurring proximate, cause of the injury. For if, notwithstanding any negligence in reinforcing and sway-bracing the bridge, the injury to plaintiff’s land would have occurred, nevertheless, even had there been no such structure, then its existence could not have caused the damages and defendant would not be liable.</p> <p>[5] Id.—Changing Direction of Stream During Floods—Duty to Foresee—Failure to Place Bents at Proper Angle.—If the direction of the flow of the flood waters during these excessive rainfalls constantly changes so that no engineer, however familiar with the known habits of the stream, could foresee at what angle the waters of any flood might strike the bents and sway-braces, it cannot be claimed that defendant was negligent simply because it did not place the bents or sway-braces at' some particular angle with the longitudinal direction of the bridge or with the ever-changing “axis” of the flood waters, if such waters can be said to have any particular axis of flow.</p> <p>[6] Id.—Theory of Plaintiff’s Case—Definite Axis of Stream—■ Evidence of Behavior at Other Points Admissible.—Where the plaintiff’s case rests upon the theory that the river had a definite “axis” at the place where the railroad company’s bridge crossed the wash, that in that section of its course the axis of the stream was at an angle of about forty-five degrees with the sway-braces that had been placed across the bents for reinforcing the bridge, and that thus the flood waters, impinging upon these sway-braces at such angle of forty-five degrees, were deflected toward and through plaintiff's land, instead of passing on under the bridge as, in the opinion of plaintiff’s witnesses, they would have done had there been no sway-braces present, evidence respecting the actions and behavior of the stream, both above and below plaintiff’s land and defendant’s bridge during the flood in question, and during other floods, is admissible, as tending in the most practicable, if ' not the only available, manner to rebut plaintiff’s theory of a definite axis of the flood waters in that vicinity.</p> <p>2. Extraordinary floods which one obstructing watercourse need not anticipate, note, 6 L. B. A. (N. S.) 252.</p> <p>[7] Id.—Nature of Defendant’s Negligence—Theory of Plaintiff’s Complaint—Proper Instruction.—Where the plaintiff’s complaint did not charge defendant with negligence in the original construction of the bridge, but only with negligence in reinforcing and rebraeing it, the court properly instructed the jury that “there is no charge in this ease that defendant was negligent in respect to the condition of the channel of the wash during the years succeeding the building of this bridge, nor that the bridge as built originally was not of proper length, type, construction, or location. You must, therefore, assume conclusively, in considering this case, that the bridge was not as originally built of improper length, type, construction, or location. The charge is made that the said bridge several years after its original construction was negligently reconstructed, retied, rebraced, and reinforced. In determining whether the defendant was negligent in this matter, you should be guided ... in the light of the circumstances and surroundings ... at the time of such reconstruction.”</p>

<p>[1] Water and Water Bights—Proceeding to Enjoin Diversion of Water—Use of Word "They"—Sufficient Designation of Defendants.—In this action to enjoin the defendants from diverting into a certain ditch more than a specified amount of water, the testimony of the plaintiff that “they" did the acts complained of was sufficient to justify the finding of the trial court that the “defendants” did such acts where no objection to the uncertainty of such testimony was made at the trial.</p> <p>[2] Id.—Amount of Water Used by Defendants—Testimony of County Surveyor — Finding.—Testimony of the county surveyor that he made surveys and measurements of the ditch on certain given dates and that the amount of water flowing in the ditch on the date in question was 121.3 inches, was sufficient to support the finding of the trial court that 121.3 inches of water was all that had been used by the defendants for the irrigation of their lands.</p> <p>[3] Id.—Amount of Land Cultivated—Conflicting Evidence—Finding.—Where the testimony as to the amount of land cultivated and irrigated by the defendants was conflicting, the trial court’s finding in that regard must control.</p> <p>[4] Id.—Award of Prior Bight to Defendants—Award to Plaintiff not Injurious.—The defendants could not have been prejudiced by a finding that plaintiff was the owner of and entitled to a given quantity of water where the court gave them the prior right to 121.3 inches of water, the amount plaintiff was awarded being subject to that right.</p> <p>[5] Id.—Carrying Capacity of Ditch Immaterial.-—In such action, the court having found that the defendants were entitled to 121.3 inches of water only, that having been the amount used by them in the irrigation of their lands, the carrying capacity of the ditch in question was immaterial.</p> <p>[6] Id.—Turning in of Additional Water — Overflow on Lower Lands—Evidence of Admissible.-—-In order t'o show that the defendants turned into the ditch more water than they had in previous years, the court properly permitted plaintiff to introduce testimony that subsequent to the alleged enlargement of the ditch across plaintiff’s land, the ditch overflowed on the farm next below that of plaintiff and that defendants then had to widen the ditch across that farm, there having been other testimony showing that in former years the ditch across such lower farm had always carried the water that was turned into it and there had never been an overflow.</p> <p>[7] Id.—Application to State Water Commission to Divert Water —not Admissible as Evidence.—An application by plaintiff to the state water commission to divert a given number of inches of water from the creek in question could not affect his title to a lesser amount to which he was theretofore entitled; nor did such application constitute an admission that he had no right to any of the water.</p> <p>[8] Id.—Destruction of Crops—Measure of Damages.—The measure of damages for the destruction of growing crops is that laid down by section 3333 of the Civil Code, namely, “the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”</p> <p>[9] Id .—Measure of Water Under Pour-inch Head — Award Controlling—Definition of Miner’s Inch.—Where plaintiff’s surveyor (whose figures were accepted as correct by the court) made all his measurements “under a four-inch pressure,” the court's award of a specified amount of water measured under that pressure must control, though it would be advisable, in such cases as this, that any reference to a miner’s inch of water should be “one and one-half cubic feet of water per minute,” as 'a miner’s inch is defined by the law, without specifying any particular pressure under which it should be measured.</p> <p>9. Meaning of “miner’s inch” as used with respect to measurement of water, note, Ann. Cas. 1916B, 1235.</p> <p>[10] Id.—Material Enlargements — Sufficiency of — Complaint.—• Where plaintiff alleged that the defendants threaten “to make enlargement's of said ditch” followed by statements as to the damage that would result to him in ease the enlargements were made, the omission of the word “material” as qualifying the “enlargements” did not render the complaint insufficient.</p> <p>[11] Id.—Irreparable Injury—Sufficiency of Allegations.—In an action to enjoin the defendants from diverting into a ditch more than a specified amount of water, allegations that the overflowing of plaintiff’s land as a result thereof will render the same unfit for cultivation and for raising crops because thereby they will be made too wet for cultivation, that said land is agricultural land, that plaintiff for ten years has cultivated said land and raised crops of hay, fruit, and vegetables thereon, and that the land is valuable for such purposes, are sufficient to show that the damage which would probably result to plaintiff from the threatened acts of the defendants would cause him irreparable injury.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. E. P. Shortall, 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] Basements—Ownership of Bight of Way—Bight to BemovePart of Soil.—While the owners of an easement for a toll road over the land of another have the right to grade their road in such manner as is reasonably necessary or appropriate for its use, and, perhaps, the further right to use the material so separated from the land for filling or surfacing other portions of their road, they have no right to take material from the soil of the owner of the land, even within the boundaries of the right of way, without regard to grading operations on such land, but to be hauled to points on the road miles away or to points on other roads, public and private.</p> <p>1. Abutting owner’s rights as to stone in highways, notes, 2 Ann. Cas. 596; 11 Ann. Cas. 445.</p> <p>Bight to stone upon railroad right of way as between company and fee owner, note, 45 L. B. A. (N. S.) 800.</p> <p>[2] Id.—Powers and Privileges Incidental to Ownership of.—The easement for highway purposes is for passage only over the land with necessary incidental powers and privileges to grade the way and to repair and maintain it upon or adjacent to the lands of the respective abutting owners, but these incidental powers and privileges give the holders of the easement no right of ownership in the soil.</p> <p>[3] Id.—Action to Recover Book Taken—Conflicting Evidence-Verdict of Jury — Judgment •—• Presumption.—Where, in an action by the owner of the land against the owners of the easement for the value of rock taken from plaintiff’s land, and for damages for the injury to the land by reason of such taking, there is some evidence on the part of the defendants that a part of the rock taken was from the ends of the quarry for the purpose of widening and straightening their road, while the plaintiff’s evidence is that a greater portion of the rock was taken from the main quarry face, which was outside the right of way claimed by defendants, the verdict of the jury being for much less than plaintiff claimed, it must be presumed in favor of the judgment that the jury made proper allowance for any grading operations.</p> <p>M Id .—Location of Boundary Immaterial — Rejection of Evidence.—In such action, the actual location of the inner boundary of the right of way was immaterial, and, therefore, the court properly rejected the proffered evidence of proceedings of the supervisors of the county in establishing and abandoning an old road.</p> <p>[5] Id.—Width of Road at Different Place not Relevant.—Where such old county road never ran across the plaintiff’s land, and did not pass the quarry from which the defendants took the rock, the proceedings affecting such road at a different place would have no tendency to prove the width of defendant’s right of way past plaintiff’s quarry; therefore, evidence of such proceedings was properly rejected. ■</p> <p>[6] Id.—Technical Error—Want of Injury.—Even though it could be held that the rejection of such evidence concerning the proceedings affecting such old county road was technical error, witnesses of the defendant having been permitted to testify in regard to their claim to a right of way of the same width as such old county road, the defendants were not injured thereby. In such a ease, the judgment will not be disturbed on appeal.</p> <p>[7] Id.—Value of Rock Taken—Assessment-rolls not Evidence.— In such an action, assessment-rolls are not admissible as original evidence of value, and will not contradict the plaintiff’s evidence of the value of the rock taken, and their offer in evidence is properly rejected.</p>

<p>[1] Corporations—Office of Directors—Nature and Incidents of Trust.—The directors of a corporation hold a fiduciary relation to the stockholders, and have been intrusted by them with the management of the corporate property for the common benefit and advantage of each and every stockholder, and by their acceptance of this office they preclude themselves from doing any act or engaging in any transaction in which their private interest will conflict with the duty they owe to the stockholders, and from making any use of their power or of the corporate property for their own advantage.</p> <p>[2] Id.—Bight to Deal in Trust Property—Fairness of Transaction Immaterial.—A trustee shall not, under any circumstances, be allowed to have any dealings in the trust' property with himself, or acquire any interest therein. Courts will not permit any investigation into the fairness or unfairness of the transaction, or allow the trustee to show that the dealing was for the best interest of the beneficiary, but will set the transaction aside, at the mere option of the cestui que trust.</p> <p>[3] Id.—Secret Profits — Bight to Betain — Bight to Contract With Self.—Any secret profit' obtained by the president or a director of a corporation by reason of any violation or disregard by him of any obligations incident to the fiduciary or quasi-trust relations that he occupies toward the corporation and its stockholders cannot be retained by him but must be accounted for to the corporation. He may not on behalf of the corporation contract with himself as an individual, which of course includes contracting with others with whom he has an interest, without the full knowledge and approval of the corporation.</p> <p>[4] Id.—Action to Becover Secret Profit—Purchase of Lots by Defendant—Knowledge of Plaintiff’s Intention to Purchase ■—Finding—Evidence.—In this action to recover a sum of money alleged to have been secured by defendant as a secret profit upon a sale of certain lots of land to plaintiff corporation, the finding of the trial court that prior to the date on which the defendant purchased the lots the defendant had knowledge that the plaintiff desired and intended to purchase them, is fully supported by the evidence.</p> <p>[5] Id.—Discovery of Fraud—Finding—Evidence—Duty to Search Public Becords.—In this action to recover a sum of money alleged to have been secured by defendant as a secret profit upon a sale of certain lots of land to plaintiff corporation, there was ample evidence to support the finding of the trial court that the fraud practiced by the defendant on the plaintiff corporation was not discovered by its officers or directors until a given date. The recording of the deed to the defendant did not give notice to the corporation of the fraud. There was no duty resting upon the corporation, or any of its members, to examine the public records of the county, nor to anticipate nor to suspect that the defendant would, or even that he was intending to, perpetrate fraud upon the corporation.</p> <p>[6] Id.—Duty to Make Inquiry—Failure to Take Advantage of Means of Knowledge—Negligence.—Where no duty is imposed by law upon a person to make inquiry, and where under the circumstances a prudent man would not be put' upon inquiry, the mere fact that the means of knowledge are open to a plaintiff and he has not availed himself of them does not debar him from relief when thereafter he shall make actual discovery. The circumstances must be such that the inquiry becomes a duty and the failure to make it a negligent omission.</p> <p>3. Liability of corporate director to corporation or stockholder for secret profits, note, Ann. Cas. 1917A, 238.</p> <p>[7] Id.—When Fraud Consummated—Date of Bringing Action— Statute of Limitations.—In this case, the fraud was consummated by the execution and delivery of the deed by the defendant and Ms wife to the plaintiff corporation on the thirty-first day of August, 1908, assuming that it was delivered on the date of its execution and acknowledgment, and as the action to recover the secret profit was commenced on August 31, 1911, it was brought within the statutory time of three years, even though the corporation had knowledge from the date of the consummation of the fraud.</p>

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

<p>[1] Negligence — Contributory Negligence as Defense — Instructions—Conflicting Evidence—Verdict—Appeal.—Where, in an action to recover damages for the death of a person by the alleged negligence of the defendant, the latter pleads contributory negligence on the part of the deceased, and the court gives certain instructions based on such defense which will warrant the jury in awarding a verdict for the defendant should they find the facts upon which such instructions are predicated to be as claimed by the defendant, but there is a decided conflict on every fact upon which such instructions are predicated, and the jury settles the conflict in favor of the plaintiff, the judgment based thereon cannot be disturbed by the appellate court; and in view of such conflict, it cannot be said that the jury disregarded the instructions of the court.</p> <p>[2] Id.—Knowledge of Presence of Plank Across Shaft—Defendant Put on Inquiry.—Under the circumstances of this case involving the death of a person engaged in painting a building, he at the time having been standing on the outer end of a plank which was extended across the open hatchway of one of several elevator shafts in which the defendant was installing elevators and having been caused to fall from such plank through its being struck by the counter-weight of an elevator operated by the defendant without warning to him, the very fact of the known presence of the plank across the shaft was notice to defendant for further investigation of that fact, although the presence of the plaintiff on the outer end thereof was not known.</p> <p>[3] Id.—Agreement Between Employers—Want of Notice to Employee.—In such case, an agreement between the different employers -engaged in the construction of the building that workmen should not use the elevator shaft without notifying the foreman of defendant was not binding upon the deceased where notice of such arrangement was not given to him.</p> <p>[4] Id.—Contributory Negligence of Deceased — Question for Jury.—The question as to whether or not the deceased was guilty of contributory negligence in this case in being on the outer end of the plank where he could not be seen by defendant’s employees, and as to whether or not his being there was such as to endanger his safety, was one for the jury.</p> <p>[6] Id.- Construction of Building — Employment of Different Classes of Artisans at Same Time—■ Relation of Each to Others.—Where several different classes of artisans are engaged in the construction of a building at one time, all of whom have necessary work to do, and which they are under contract to do, it cannot be said that the employees of the contractor who is engaged in the installation of the elevators are doing a more necessary work and a work of such importance that the other contractors and their employees can be treated as trespassers.</p> <p>[6] Id.—Operation of Elevator Without Warning—Duty of Employee to Anticipate—Assumption of Bisk.—Where, notwithstanding the fact that at the time, to defendant’s knowledge, other men than deceased were actually working in the hatchway across which was extended the plank on which the deceased was standing, no warning of the operation of the elevator was given, this in itself constituted negligence which deceased could not anticipate and which he did not assume.</p> <p>[7] Id.—Subrogation Under Workmen’s Compensation Act.—The mere fact that the Workmen’s Compensation and Safety Act does not specifically mention the matter of the subrogation of t'he employer, or his insurance carrier, to the rights of the injured employee, or, in the case of his death, to the rights of the heirs or personal representatives, is immaterial. This is a mere incident to the liability, or to the payment of the compensation, and is included in the general language of the title of the act, and especially that portion of t'he title providing for the creation of the liability; while the act itself provides that the payment of compensation shall be contingent upon the subrogation of the employer, or his insurance carrier, to the rights of the injured employee.</p>

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

<p>[1] Guaranty — Action upon by Payee op Note — Oral Agreement With Guarantors to Stand Pro Bata—Evidence op Inadmissible.—In an action by the payee of a promissory note on a contract of guaranty, the maker of the note having defaulted in the payment thereof, testimony whereby the defendants attempt to prove an oral agreement between plaintiff and themselves that the former would stand his pro rata share of any loss suffered by reason of - said guaranty is inadmissible where such contract of guaranty sued upon is in writing, is complete in itself, and, therefore, superseded all negotiations or conversations which preceded or accompanied its execution.</p> <p>[2] Id.—Oral Agreement Made Without Intention op Fulfillment—Fraud—Pleading—Proof.—A contention by such defendants that plaintiff is estopped from enforcing his contract of guaranty because of the oral agreement which they claim he entered into, that if he made such oral agreement without the intention of fulfilling it, this constituted fraud in the procurement of the contract of guaranty, which would preclude it's enforcement, is without merit where fraud is not pleaded. Fraud as a defense must be pleaded and proved.</p> <p>[3] Id.—Contract to Answer for Debt op Another — When not Enforceable.—A collateral agreement' between the payee and the guarantors of a promissory note, executed as a part of the consideration for the contract of guaranty, whereby the payee agrees to stand his pro rata share of any loss suffered by reason of said guaranty, is but a contract of guaranty of the debt of another, which is not enforceable unless in writing,</p> <p>2. Fraud as defense in action on guaranty, note, Ann. Cas. 1916A, 501.</p> <p>[4] Id.—Agreement to Stand Pro Bata of Loss—Not Ground of Counterclaim—Payment Necessary.—In an action by the payee of a promissory note on a contract of guaranty, the maker of the note having defaulted in the payment thereof, an agreement between such payee and the guarantors whereby the former agreed to stand his pro rata share of any loss that might be occasioned said defendants by reason of their becoming the guarantors of said note would not' constitute a counterclaim against plaintiff's cause of action. No loss would be occasioned to defendants ■within the meaning of such an agreement until actual payment was made by them. Even recovery of judgment against them would not give rise to a matured right of action in their favor against the plaintiff based on such agreement.</p> <p>[5] Id.—Consent to Transfer Assets of Maker—Guarantors not Exonerated.—Where such promissory note was unsecured, the consent of plaintiff, payee thereof, as a director of the corporation maker of the note, to the transfer of the assets of said corporation for the benefit of creditors, would not constitute an act impairing or suspending the remedies or rights of plaintiff against the corporation, and, therefore, would not' exonerate the guarantors thereon.</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] Malicious Prosecution •— Essential Elements — Malice and Want op Probable Cause.—In an action for malicious prosecution the plaintiff must, in order to recover, establish, not only malice, but want of probable cause.</p> <p>[2] Id.—Want op Probable Cause—When Question por Court— Want op Proof—Submission to Jury Error.—Where, in such an action, there is no conflict' in the testimony, the question whether or not the evidence introduced shows a want of probable cause is for the court to decide. It is error in such cases, where there is no proof of want of probable cause, to submit any question to the jury.</p> <p>2. Probable cause as question for court or jury, notes, 26 Am. St. Rep. 141; L. R. A. 1915D, 1, 85.</p> <p>[3] Id.—Advice op Counsel—Prosecution in Good Faith—Probable Cause.—Where one, before instituting such a prosecution, has, in good faith, consulted an attorney at law in good standing, particularly if such attorney be one charged with the prosecution of public offenses, and has stated to him all the facts in the case, and has been thereupon advised by such attorney that a prosecution will lie, and such person has acted honestly on that advice, this, of itself, constitutes probable cause.</p> <p>[4] Id.—Issuance op Circular by Plaintipp—Probable Cause.—In this action for malicious prosecution, the evidence of the defendant, consisting in part of a statement in the Bohemian language published and circulated by plaintiff in which he charged, among other things, that defendant did not speak the truth, was of itself sufficient to constitute probable cause for the prosecution.</p> <p>3. Probable cause as defense in action for malicious prosecution, note, 26 Am. St. Rep. 138.</p> <p>Advice of counsel as defense to action for malicious prosecution, notes, 1 Ann. Cas. 932; 11 Ann. Cas. 954; Ann. Cas. 1912D, 423; 18 L. R. A. (N. S.) 49; 39 L. R. A. (N. S.) 207.</p>

<p>[1] Negligence—Automobile Collision—Pleading—Evidence—Damages.—The judgment is affirmed on the authority of Saylor v. Taylor, ante, p. 474.</p>