Volume 43 — California Appellate Reports

<p>[1] Appeal—Review op Findings by Appellate Court — Evidence Considered.—In determining whether the findings of the trial court are supported, the appellate court is required only to look to the testimony presented by the prevailing party and, if sufficient, it may disregard any adverse showing made by the other party.</p> <p>[2] Joint Adventures—Partnership Distinguished.—While a partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint adventure relates to a single transaction, although the latter may comprehend a business to be continued for a period of years. In a partnership, each partner embraces the character of both principal and agent, being the former when he acts for himself in the partnership; while in a joint adventure, no one of the parties thereto can bind the joint adventure.</p> <p>[3] Id.—Rights op Adventurers—Rules Governed by.—In an action to secure the dissolution of an alleged partnership between the parties and for an accounting, it is immaterial whether the relation between the parties is that of a partnership or a joint adventure, or a limited partnership. The resemblance between a partnership arid a joint adventure is so close that the rights as between adventurers are governed practically by the same rules that govern partnerships.</p> <p>2. Partnership distinguished from joint adventure, note, 115 Am. St. Rep. 407.</p> <p>[4] Id.—Bight of Members to Sue at Law.—One party to a joint adventure may sue the other at law for a breach of the contract or a share of the profits or losses or a contribution for advances made in excess of his share, as where the adventure has been closed and a party thereto is entitled to a sum certain as his share of the adventure, but the right thus to sue at law does not preclude a suit in equity for an accounting.</p> <p>[5] lb.—Action fob Dissolution and Accounting — Partnership Pleaded—Belief Granted.—Where, in an action by a joint adventurer for a dissolution of an alleged partnership and for an accounting, the evidence is sufficient to warrant the trial court in finding and adjudging that the plaintiff is entitled to one-third of the profits realized from the joint enterprise which was the subject of the agreement between him and the defendant and to an accounting for the purposes of determining the extent or amount of such profits, such judgment and decree will be sustained on appeal notwithstanding the complaint alleges that the relation between the parties was a partnership whereas it was a joint adventure.</p> <p>[6] Id.—Effect of Contract Taking in New Party.—Where two persons enter into a partnership agreement for the purpose of carrying on a certain designated business, but subsequently a third person, with the consent of the two original members, is given a one-sixth interest in the partnership by each of such members, the purpose of the partnership not being changed, the taking of such third person into such partnership does not constitute the making of such an agreement as would operate to supersede and abrogate the original agreement between the parties thereto.</p> <p>[7] Appeal — Question not Considered Through Oversight — Be-hearing not Necessary.—Where the appellate court, through oversight, fails to consider the question of interest allowed by the trial court, such matter may be considered and disposed of on application for a rehearing without ordering a rehearing. (On petition for rehearing.)</p> <p>[8] Joint Adventures—Action for Dissolution and Accounting— .Bight of Plaintiff to Interest.—La an action by one party to a joint adventure for a dissolution of the relationship between the parties and for an accounting, it is not error to include in the judgment interest on the amount of money awarded to the plaintiff from the date of the sale of the subject matter of the adventure by the defendant, where the only question to be determined by the court is the extent of the plaintiff’s interest, that is, whether it is a one-half or a one-third interest, the facts governing which are known to the defendant. (On petition for rehearing.)</p> <p>4. Mutual rights and liabilities of parties to joint adventure, notes, 17 Ann. Cas. 1022; Ann. Cas. 19120, 202; Ann. Cas. 1914C, 691; Ann. Cas. 1916A, 1210.</p> <p>8. Settlement of accounts between joint adventurers, note, Ann, Cas, 1912C, 204,</p>

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

PROCEEDING in Mandamus to compel the auditor of the City and County of San Francisco to audit a claim for services as architect. Writ issued. The facts are stated in the opinion of the court.

<p>[1] Municipal Corporations—San Francisco—Erection' op Schoolhouse—Employment op Architect.—Under the charter of the city and county of San Francisco, the board of public works is not bound to engage architects exclusively as “employees,” at stated monthly salaries, or at a given per diem, but may engage an architect by special contract, to prepare plans and specifications for use in connection with the erection of a sehoolhouse at his own time and expense, for a stipulated fee based on the cost of the construction work to be planned and supervised by him.</p> <p>[2] Id.—Accomplishment op Given Result—Means not Prescribed —Adoption op Reasonable Means — Powers op Municipal Boards.—When the charter permits a certain result to be accomplished, but does not prescribe the means, any reasonable, or suitable, means may be adopted. A municipal board not only has the powers expressly enumerated in the organic act, but also those implied powers which are necessary to the exercise of the powers expressly granted, except in the instances where such implied power is expressly, or impliedly, prohibited.</p> <p>[3] Id.—Employment op Architect upon Prevailing Terms—Reasonable Means — Letting op Contract to Lowest Bidder — Charter not Violated.—The employment by the board of public works of the City and County of San Francisco of a duly authorized architect to prepare plans and specifications for use in connection with the erection of a sehoolhouse, upon the terms and conditions prevailing in the community, constitutes the adoption of a reasonable and suitable means of accomplishing the required result, and is not in violation of the provisions of the charter requiring the awarding of contracts to lowest bidders.</p> <p>[4] Id.—Receipt op Benefits by Municipality — Estoppel to Deny Liability.—Where the board of public works of the city and county of San Francisco, acting under the general power granted it to erect schoolhouses, hires an architect to prepare the necessary plans and specifications, such municipality, after it has received the benefit of his labor and expenditure of time and money, may not be heard to say that he should not be compensated as agreed.</p> <p>4. Estoppel as applied to governmental bodies, note, 137 Ain. St. Rep. 354.</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>[1] Waters and Water Bights—Running Water—Riparian Rights. Riparian rights do not mean ownership in any special portion of the water of a stream until such water is actually taken and used. In running water there can be no absolute ownership.</p> <p>[2] Id.—Deed—Riparian Land—Reservation op Water—Construction op.—Under a deed reserving to the grantors the amount of water “held, used and claimed” by the former owner of the property, such grantors are entitled to only sueh amounts of water as were used by sueh former owner, the rights in the remainder of the water, in the absence of other priorities, being governed by the law applicable to riparian owners.</p> <p>[3] lb .—Use op Water by Riparian Owners—Right to Irrigate.— A riparian owner may use the whole of the stream if it is necessary to satisfy his natural wants, and may consume all the water for his domestic purposes, including water for his stock, but if he desires to use it for irrigation or manufactures, and there be a lower proprietor to whom its use is essential to supply his natural wants, or for his stock, he must use the water so as to leave enough for sueh lower proprietor. Where the stream is small, and does not furnish more than sufficient to answer the natural wants of the different proprietors living on it, none of the proprietors can use the water for either irrigation or manufacture.</p> <p>[4] Id.—When Riparian Owner Entitled to Water—Right to Divert on Land op Upper Owner.—A riparian proprietor is entitled only to the water after it reaches his land in its natural flow, and if in the natural flow of the stream there is insufficient water conducted to defendant’s land for his uses, he has not, as a riparian owner merely, the right to go on the land of an upper proprietor and divert the water from there.</p> <p>[5] Id.—Division op Water in Proportion to Acreage — Proper Judgment.—As between the parties to the action, a judgment dividing the balance of the water, after the natural wants of the parties are satisfied, between them for irrigation purposes in the proportion that the acreage of each bears to the entire acreage of their riparian lands, is proper and reasonable.</p> <p>3. Riparian owner’s right to use and detain water and to the natural flow of the stream, note, 79 Am. Dec. 638.</p> <p>Meaning of phrase “domestic purposes” in relation to riparian rights, notes, Ann. Cas. 1912B, 621; Ann. Cas. 1914D, 563.</p> <p>Nature of riparian rights and lands to which they attach, notes, 9 Ann. Cas. 1235; Ann. Cas. 1913E, 709; Ann. Cas. 1917C, 1026.</p> <p>Correlative rights of upper and lower riparian proprietors generally, note, 41 L. R. A. 737.</p> <p>[6] Evidence—Construction of Written Instruments—Admissibility of Parol Testimony.—When written instruments are not ambiguous, they may not be varied by parol testimony; and even though, during the course of the trial, the court considers certain instruments ambiguous, it does not commit error in refusing to allow the introduction of evidence of the negotiations and understandings of the parties thereto at the time they were executed where, in arriving at its judgment, it does not treat the instruments as ambiguous, but construes them correctly without the aid of parol evidence.</p>

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

<p>[1] Divorce—Violation of Court Order by Wife — Dismissal of Appeal.—An appeal by the wife from a judgment granting the husband a divorce and awarding him the custody of the minor children will not be dismissed because of the violation by the wife of the terms of an order of the trial court regarding the custody of such children.</p> <p>[2] Id.—Findings — Evidence — Corroboration.—In this action for divorce, the findings of the trial court were responsive to the pleadings and were sufficiently supported by substantial evidence and, where necessary, were corroborated as required by section 130 of the Civil Code, and the trial judge was fully warranted in his view of the merits of the case.</p> <p>[3] Id.—Extreme Cruelty — What Constitutes — Conclusion of Trial Court—Appeal.—The question whether acts and conduct constitute such cruelty as, under all the circumstances shown, warrants the granting of a divorce, is of such a nature that the conclusion of the trial court is necessarily entitled to great weight, and it is only where it is clear that it is without any substantial support in the evidence that it will be disturbed on appeal.</p> <p>[4] Id.—Absence of One Spouse Without Knowledge or Consent of Other.—Whether or not any specific absence of one spouse from the family home without the knowledge or consent of the other constitutes extreme cruelty, depends entirely upon the facts and circumstances of each particular case.</p> <p>3. Cruelty without violence as ground for divorce, note, 65 Am. St. Rep. 75.</p> <p>Habits or course of conduct of spouse as cruelty warranting divorce, note, Ann. Cas. 1918B, 480, 500.</p> <p>[5] Id.—Extreme Cruelty is Question oe Fact.—Whether or not any particular acts or course of conduct constitutes extreme cruelty within the meaning of the law is a question of fact to be deduced from all the circumstances of each case.</p>

<p>[1] Negligence — Collision of Automobile With Pedestrian — Finding—Evidence.—In this action for damages for personal injuries received in a collision with an automobile, the defendant’s negligence was clearly established, he having approached the crossing where the accident occurred driving on the wrong side of the street and at an excessive rate of speed, without sounding any warning, notwithstanding his view thereof was obscured.</p> <p>[2] Id.—Failure to Look Both Directions.—In such an action the plaintiff is not precluded from recovering because, having seen the lights of automobiles coming from both his left and his right before starting to cross the street, he did not keep a lookout for both approaching machines, but waited until he reached the center of the street before again looking to the right to observe the approach of cars from that direction.</p> <p>[3] Id.—Use of Public Streets — Duties of Pedestrians and Drivers of Vehicles.—While pedestrians walking across busy public streets are required to use ordinary care to see that they do not collide with or are run over by vehicles, drivers of vehicles likewise must use ordinary care to prevent injury to pedestrians under such circumstances.</p> <p>[4] Id.—Objectionable Answer—Bbmedy.—Where the question asked by counsel for the plaintiff is proper but a portion of the answer given is hearsay, or otherwise objectionable, the remedy is for counsel for defendant to make a motion at that time to strike out the objectionable portion of the answer. Having failed to avail himself of such remedy, the defendant may not be heard on appeal to complain of the admission of such testimony.</p> <p>3. Bights and duties of pedestrians in highways with respect to automobiles, note, 4 Ann. Cas. 400.</p> <p>Bights and duties of automobile driver toward pedestrians in highway, notes, 13 Ann. Cas. 464; 21 Ann. Cas. 652; Ann. Cas. 1916E, 666; 24 L. B. A. (N. S.) 557.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying motions to stay and recall executions on a judgment and to discharge the judgment of record. James M. Troutt, Judge. Modified and affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Bankruptcy—Action by Creditor Against Trustee—Failure of Trustee to Commence Action on Behalf of Estate—Insufficient Complaint.—In an action by a creditor of a bankrupt on behalf of himself and other creditors against the trustee in bankruptcy for damages for refusal to commence an action against certain parties who áre alleged to have seized and sold certain property of said bankrupt, and for the value of which said parties are said to be liable to Ms estate, the complaint does not state a cause of action where it fails to allege an abuse of the discretion with which the trustee is invested with respect to the bringing of actions in the interest and for the benefit of the estate.</p> <p>[2] Id.—Bringing of Actions on Behalf of Bankrupt Estate— Discretion of Trustee—Rights of Creditors.—The trustee in bankruptcy and not a creditor or any number of creditors is the sole judge of the matter of when or whether to bring such actions; and in the absence of an abuse of the discretion with which he is invested he is not subject to the dictation or control of the creditors of the estate.</p> <p>[3] Id.—Jurisdiction of Federal Courts Exclusive — Remedy of Creditors.—While the proceedings in bankruptcy are pending in the federal court, the jurisdiction of that court over the assets of the bankrupt and the actions of the trustee in bankruptcy is exclusive. The remedy of a creditor is to apply to the federal court for relief from any negleet or refusal of the trustee to perform his duty, and that court upon a proper showing will compel the trustee to proceed or remove him for his disobedience or neglect of duty.</p> <p>1. Liability of trustee in bankruptcy for failure to collect assets, note, 16 L. R. A. (N. S.) 341.</p>

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

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

<p>[1] Street Law—Action to Foreclose Lien—Admission of Assessment, Diagram, and Warrant—Sufficiency of Foundation.—In an action to establish and foreclose the lien of a street assessment, the production of a witness who testified that he was one of the employees of the city clerk of the city in which said street improvement had been done, and who in that capacity produced and fully identified the records containing the assessment', warrant, and diagram .of the street superintendent of the city, and further testified that these were to his knowledge part of the official records of said street superintendent’s office, and that they were kept in the city clerk’s office, was sufficient to furnish the requisite foundation for the introduction in evidence of such records.</p> <p>[2] Id.—Allegation of Corporate Existence — Insufficient Denial— Proof Unnecessary.—In such action, the plaintiffs having alleged that they were corporations duly organized and existing under and by virtue of the laws of the state of California, the denial of such allegation based on the want of information and belief upon the subject was insufficient and amounted to an admission of the alleged fact; hence no evidence was required to prove such averment.</p> <p>[S] Id.—Befusal of Leave to Amend Answer — Discretion not Abused.—In such action, it was not an abuse of discretion to refuse the defendants leave to file an amended answer during the progress of the trial of the ease, and more than ten months after the filing of their answer, where no sufficient reason was given for the delay.</p> <p>[4] Id.—Appeal — Insufficient Becord.—Where leave to file an amended answer during the progress of the trial of a ease is refused, but the record on appeal does not contain a copy of the proposed amended answer, the appellate court has no means of knowing its contents, and hence cannot determine whether or not the trial court should in any event have permitted it to be filed, nor whether its refusal to do so was error.</p> <p>[5] Id .—Unfairness and Fraud in Doing Work — Pleading — Evidence.—Where, in an action to establish and foreclose the lien of a street assessment, the only unfairness or fraud alleged in the answer of the defendants related solely to the progress of the work and had reference to matters which were properly the subject of correction by appeal to the city council, whose decision, in the absence of fraud on the part of said council or its members in the hearing of said appeal or the rendition of such decision, is final and conclusive upon the parties entitled to take said appeal, the court did not commit error in sustaining the plaintiffs’ objection to questions or proofs offered by the defendants in an endeavor to show fraud in the doing of the public work upon which the assessment in question was predicated.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County setting aside a sheriff’s return of sale and directing a new order of sale to be issued. Pat R Parker, Judge Presiding. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Appeal—Alternative Method — Undertaking.—Under the new and alternative method of appeal provided by sections 941a, 941b, and 941c of the Code of Civil Procedure, enacted in 1907, an undertaking is not required.</p> <p>[2] Id.—Perfecting of Appeal—Preparation of Record.—Under the new and alternative method of appeal, the party aggrieved, in order to perfect an appeal, is only required to file the notice of appeal provided for by section 941b of the Code of Civil Procedure. Having thus properly taken an appeal, he is not required to have a reporter’s transcript of the proceedings made up and prepared as provided by section 953a of the same code, but may cause to be duly prepared and settled a bill of exceptions, containing the usual statement of the matters occurring at the trial, in accordance with section 650 thereof.</p> <p>[3] Corporations—Expiration of Term—Dissolution.—A corporation is dissolved at. the expiration of the term of its corporate existence.</p> <p>[4] Id.—Term of Corporate Existence—Power to Shorten.—A corporation has power to shorten the term of it's corporate existence by an amendment to its articles of incorporation, even if the practical result of such abbreviation amounts to almost an immediate dissolution.</p> <p>[5] Id.—Effect of Dissolution — Capacity to Sue or be Sued — Abatement of Pending Actions.—Except as otherwise provided by statute, the effect of the dissolution of a corporation is to terminate it's existence as a legal entity, and render it incapable of suing or being sued as a corporate body, or in its corporate name. It is dead, and can no more be proceeded against as an existing corporation than could a natural person after his death. There is no one who can appear or act for it, and all actions pending against it are abated, and any judgment attempted to be given against it is void.</p> <p>[6] Id.—Section 400, Civil Code, Construed—Necessity for Substitution of Successors or Representatives.—Section 400 of the Civil Code does not have the effect of continuing the existence of a corporation after dissolution so as to render it capable of defending actions in its corporate name. It is, therefore, necessary that, if the action continue at all, its successors or representatives, under section 400, be properly brought in on motion, as provided in section 385 of the Code of Civil Procedure.</p> <p>■[7] Id.—Dissolution After Service of Process — Inability to Appear—Power of Counsel to Continue to Act.—Where, after service of process but prior to appearance, a corporation defendant is dissolved, the subsequent filing of demurrers and answer in its name and purporting to be in its behalf are a nullity; and the action of counsel, who may have had authority to represent such defendant prior to the termination of the period of its legal existence, cannot, so far as that party is concerned, vitalize any proceedings taken in the abated action after the corporation ceases to exist.</p> <p>3. Period of existence of private corporation, note, 33 L. R. A. 577.</p> <p>5. Abatement of action by or against corporation in absence of a saving statute by expiration of charter, note, 32 L. R. A. (N. S.) 446.</p> <p>[8] Id.—Dissolution op Corporation Dependant—How Brought to Attention op Court—Remedy op Plaintipp.—The dissolution or death of a corporation defendant after service of process but prior to appearance, like the death of any other party to a pending action, can only be brought to the attention of the court on proper suggestion made by someone other than the defunct corporation. If the plaintiff intends to secure a judgment, enforceable against the persons who were the directors of the corporation prior to and at the time it ceased to exist, he should have them substituted under section 385 of the Code of Civil Procedure as parties in place of the corporation, after the latter has become functus officio.</p> <p>[9] Id.—Amendment op Pleadings — Substitution op Parties — Notice.—The substitution of one party for another by order of court is not "such an amendment of a pleading as is required to be made on notice or to be engrossed otherwise than to be entered in the minutes of the court.</p> <p>[10] Id.—Substitution op Dependants — Substantial Compliance With Code Requirements.—In this action for damages for personal injuries, the notice of motion served on counsel who had represented the corporation defendant prior to the termination of its existence as a legal entity and the order of the court directing that the proposed amended and supplemental complaint be filed and made of record in the ease, and further directing that the defendants named in said amended and supplemental complaint, who had been the directors of the corporation prior to and at the time it ceased to exist, have and were given twenty days from date of a service of a copy of such order in which to plead thereto, constituted a substantial compliance with section 385 of the Code of Civil Procedure, and operated to bring about a substitution of said directors as defendants in lieu of the defunct corporation. .</p> <p>[11] Id.—Substitution op Parties—Notice.—One substituted in a cause must be duly notified of the fact of his being made a party before he can be affected by notices or proceedings in the action.</p> <p>[12] Id.—Want op Notice op Appearance — Judgment Invalid.— Where, after the bringing of the action and the service of process, but prior to appearance, the corporation defendant ceased to exist as a legal entity, and the persons who were the directors of the corporation prior to and at the time it ceased to exist as a legal entity were substituted as defendants in lieu thereof, but there was no service upon or authorized appearance by or in behalf of such substituted defendants, the default entered in the action against them was unauthorized, and the judgment entered thereon void.</p>

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

<p>[1] Gifts—Intent of Donor—Finding—Evidence.—In this action to recover a sum of money alleged to be due from defendant to the estate of plaintiff’s testate, there was sufficient evidence to support the finding of the trial court to the effect that it was the testate's intent to make an absolute gift of the money to defendant.</p> <p>[2] Id.—Payment of Interest — Return of Part of Principal — Original Intent not Defeated.—Where such intent to make an absolute gift existed, it would not be defeated by the further fact that the donor required of the donee that he pay her interest on the sum given during her lifetime, nor even by the fact that he gave her back some of the principal at her request.</p> <p>[3] Id.—Admissibility of Declarations of Donor.—In determining the intent of the donor, declarations made by her both before and after the transaction are admissible as tending to show a gift.</p> <p>1. What constitutes good gift of debt of donee, note, Ann. Cas. 1915 A, 18.</p>

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

<p>HI Pleading—Action on Note and Contract—Admission of Execution and Default — Failure to Baise Material Issue.— "Where, in an action on a promissory note and contract which called for the payment by the defendant to the plaintiffs of a stated sum as the purchase price of certain shares of the capital stock, the answer of the defendant admitted all the allegations of the complaint with respect to the purchase of said stock, and the execution of the note and contract, but denied for want of information and belief an averment in the complaint to the effect that the trustee mentioned in the contract had assigned and transferred to the plaintiffs the note in question after the maker’s default according to the terms and requirements of said contract, which assignment and transfer it was the duty of the said trustee pro forma to make upon the plaintiffs’ demand after such default, according to the express agreement of the defendant in said contract, the default of the defendant not being denied, no material issue was presented.</p> <p>[2] Id.—Refusal of Leave to File Amended Answer — Discretion of Trial Court.—In such action the trial court committed no error or abuse of discretion in refusing defendant leave to file an amended answer at the time of trial, which was four months after- his original answer was filed, where the affidavit offered in support of such motion presented no sufficient reason as an excuse for the defendant’s delay in presenting his amended answer, and the proposed amended answer presented no sufficient averments of fraud in respect to the transaction in the course of which said note was executed by the defendant to constitute a defense thereto.</p> <p>[8] Id.—Frivolous Appeal — Penalty.—In this action, it being obvious that the whole procedure of the defendant had been marked with a deliberate design to delay the operations of justice in respect to the enforcement of his just and legal obligation, the judgment was affirmed with an added penalty of five hundred dollars imposed upon the appellant for the taking and prosecution of a frivolous appeal.</p>

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

APPEALS from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a motion for an order vacating and setting aside said judgment. George E. Crothers, 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>Ezra W. Decoto, District Attorney, James M. Koford, Assistant District Attorney, H. L. Hagan, City Attorney, and John J. Earle, Assistant City Attorney, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Albert A. Mollino, Percy S. King, Charles L. McEnerney and Leo J. McEnerney for Appellants.</p>

PROCEEDING in Mandamus to compel respondents to permit petitioner to exercise the duties of the office of superintendent of schools. Writ issued. The facts are stated in the opinion of the court.

<p>[1] Appeal—Law of Case—New Trial—Different Pacts.—The law of a case determined by an appeal does not apply to a new trial of the case in which substantially different facts are presented.</p> <p>[2] Deeds—Mistake in Name of Grantee — Remedy to Correct.— Where a mistake has occurred in the name of a grantee in a deed which is essential to a title and which appears both in the deed and the record thereof, a suit to quiet title against the claims of grantee named is essential to the perfecting of the record title; but where the deed contains no mistake, the only mistake being in the recording of it, the owner cannot in good faith swear that there is an outstanding claim and the necessity for maintaining such an action disappears.</p> <p>[3] Appeal—Law of Case—Sufficiency of Abstract of Title—Subsequent Trial—Admission of New Facts.—In an action involving the sufficiency of the record title to certain property as shown by the abstract furnished, the opinion of the district court' of appeal, declaring the necessity for the bringing of an action to quiet title in the vendor as against the grantee named in a certain deed as recorded to establish of record that the conveyance was made to such vendor’s predecessor instead of the grantee named, will not prevent such vendor on a subsequent trial from showing by evidence, which was not before the district court of appeal, that the deed in question was not important.</p> <p>[4] Id.—Finding not Questioned—Taken as True.—Where the sufficiency of the evidence to sustain a finding of the trial court is not questioned in any way the finding is to be taken as true on appeal.</p> <p>[5] Id.—Duty op Appellant — Objections Considered.— It is the duty of the appellant to point out the evidence or the lack of evidence showing a finding assailed is unsupported. The court on appeal will look only to the objections argued.</p> <p>[6] Names—Idem Sonans—Rebuttal op Prima Facie Case.—Names which have the same pronunciation do grima facie designate the same persons, but the grima facie case so shown is liable to be much shaken by the slightest proof of facts which produce a doubt of identity.</p> <p>[7] Id.—Admissibility op Parol Evidence.—Where the ease permits parol evidence, such testimony may show two names to be within the rule although there is considerable difference in spelling.</p> <p>[8] Id.—Similarity op Sound — Province op Court and Jury.—If two names spelled differently, necessarily sound alike, the court may as a matter of law pronounce them to be idem sonans; but if they do not necessarily sound alike, the question whether they are idem sonans is a question of fact for the jury.</p> <p>[9] Id.—Addition op Letter “S.”—Generally, the addition of a letter “s” to one of the two names considered takes them without the rule of idem sonans.</p> <p>[10] Id.—Relevancy op Facts in Regard to Title.—The facts in regard to the title of property as shown by the records would be quite as conclusive as an aid in determining the question of identity as would be the clearest kind of parol testimony introduced in those cases where the court is in doubt as to whether two names which are very similar, though somewhat' differently spelled, have substantially the same pronunciation and designate the same person.</p> <p>6. Idem sonans, note, 100 Am. St. Rep. 322.</p> <p>9. Addition or omission of final “s” as affecting application of doctrine of idem sonans, notes, Ann. Cas. 1918A, 351 j 52 L. R. A. (N. S.) 937.</p> <p>[11] Id.—Effect of Instrument of Record—Absence of Adverse Claims.—In judging whether a title is affected by an instrument of record purporting t'o show an interest outstanding in another it is permissible to show that no claim has ever been asserted by such other person.</p> <p>[12] lb.—Case at Bar—Similarity of Names—Same Individual—■ Binding.—In this action, although the two names, “B. W. Bobbins,” and “B. W. Bobben,” were not strictly within the rule of idem sonans, considering the great resemblance between them, the fact that they both appear in connection with the same title, and that during a period of thirty-eight years there had been no adverse claim to the property, the record would leave no reasonable doubt in regard to the title, and a finding that the two names represented different persons would not be sustained.</p> <p>[13] Quieting Title—Intervention by Lien Claimant.—In an action to quiet title, a person claiming a judgment lien on the property may be permitted to intervene.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a motion to vacate said judgment and enter a different judgment. Frank G. Finlayson, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

PROCEEDING in prohibition to prevent the setting aside of a decree settling a final account and distributing the estate. Writ denied. The facts are stated in the opinion of the court'.

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

W. B. Wallace, Judge. Appeal from order denying new trial dismissed. Judgment reversed. The facts are stated in the opinion of the court.

<p>[1] Negligence—Automobile Collision—Action for Damages—Evidence —■ Findings — Appeal.—This action for damages alleged t'o have been suffered through the negligence of the defendant in the operations of his automobile whereby it was caused to collide with an automobile operated by the plaintiff, on the evidence, was peculiarly one which called for the judgment of the trial court upon the question as to the negligent act of the defendant, and the trial court having solved the question in favor of the plaintiff, the appellate court could not say from the transcript of the evidence, that the findings of the trial court were in any way unsupported by the evidence.</p> <p>[2] Id.—Approach of Intersecting Wat—Operation and Control of Motor Vehicle—Construction of Law.—The intent of the Motor Vehicle Law, in requiring that the operator of a motor vehicle, upon approaching an intersecting way where the view is obstructed, must not travel at a greater rate of speed than ten miles an hour, is that it shall be brought to the speed indicated by the time it shall reach the intersecting way in order that it may be fully under control of the operator; and in this action it cannot be said that plaintiff violated the provisions of such statute, he having been traveling at the rate of about twenty miles per hour, his machine being under control, but having slowed down to about eight miles per hour at the time his machine was struck by the defendant’s machine, he not having yet entered upon the intersecting way.</p> <p>2. Effect of speed and application of speed regulations on liability for collision between automobiles at or near corner of streets or highways, note, L. R. A. 1916A, 747.</p> <p>[3] Id.—Last Clear Chance.—Under the facts of this ease there was nothing which would make the doctrine of the last clear chance applicable to either party.</p> <p>3. Origin, function, and mode of operation of the last clear chance, note, 55 L. R. A. 418.</p>

Fred H. Taft, Judge.’ Judgment reversed; appeal from order denying new trial dismissed. The facts are stated in the opinion of the court.

<p>[1] Statute of Frauds—Contracts not in Writing—Estoppel to Assert Statute—Unconscionable Injury.—The mere omission to insist that a writing be made, or reliance only upon the unfulfilled promise of the other to put the agreement in writing, is not sufficient to protect the party insisting upon the fulfillment of the alleged contractual obligation. He must be misled by the other to his prejudice; and not only must sufficient facts appear to show a representation (by words or conduct) on the part of the defendant that he did not intend to resort to a plea of the statute, but the other party must have so altered his position as that he would be made t'o suffer loss or unconscionable injury. If no such injury or loss is shown, the reason for the rule of estoppel fails and the excepted case is not established.</p> <p>[2] Id.—Term of Employment — Construction of Memorandum.— Where a memorandum with reference to one’s employment contains no words fixing the term of service, but the compensation is to be paid at a weekly rate, the term should be construed as being from week to week.</p> <p>[3] Id.—Promise to Execute Contract—Sufficiency of Parol.—A promise to execute “the usual theatrical contract” would be of no more potency when expressed in writing than by parol.</p> <p>[4] Id.—Contract for Personal Services—Action for Breach—Insufficient Allegations of Estoppel.—In this action for damages alleged to have been sustained by the plaintiff through the refusal of the defendant to use and pay for the services of the plaintiff after having employed him for a period of one year as an actor to appear in plays produced by the defendant, the complaint did not make out a case entitling the plaintiff to enforce his contract, which was not in writing and, therefore, admittedly within the statute of frauds.</p> <p>1. Estoppel to plead statute of frauds, note, 134 Am. St. Rep. 173.</p> <p>2. Right to discharge employee where contract of hiring specifies no term but fixes compensation at a certain amount per day, week, month or year, notes, 11 A. Ii. R. 469; 51 L. R. A. (N. S.) 629.</p>

<p>[1] Criminal Law—Burglary—Intent—Evidence.—The question of criminal intent is one to be determined by the jury from all the evidence; and where, as in this prosecution for burglary, the evidence produced by the state is believed by the jury and is sufficient to support the verdict, any conflict between the evidence of the defendant and that produced by the state must be resolved against the defendant.</p>

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

<p>[1] Vendor and Vendee — Failure to Maedb Payments as Agreed —■ Acceptance of Less Than Amount Due—Waiver and Revival of Right of Forfeiture.—Where the vendees do not make payments punctually, and the vendor for nearly two years indulges them in this and accepts payments from time to time of less than the whole amount due at the time of such payments, such conduct operates as a waiver of that clause of the agreement making time the essence thereof, and creates such a temporary suspension of the right of forfeiture as can only be restored by giving definite and specific notice of an intention to enforce it.</p> <p>[2] Id.—Revival of Right of Forfeiture — Burden of Proof — Evidence—Finding.—In this action by the vendor to quiet title to certain real property in which the defendants claimed an interest under a contract of purchase, the plaintiff having conceded the waiver of the right of forfeiture, the burden was on him to show a revival of the terms of the contract by proof of a definite and specific notice of the, intention to enforce it; and as the evidence on this issue was evasive, indefinite, and conflicting, the trial court was justified in its finding that such notice was not given.</p> <p>1. Vendor’s acceptance of payment tendered after time specified as waiver of provision making time of essence of contract, note, 9 A. L. R. 996.</p> <p>[3] Id.—Failure to Give Notice—Findings on Other Issues Immaterial.—In such action, the plaintiff having thus waived the right of forfeiture and having failed to prove the revival of that right, the trial court having found that notice of the intention to enforce the terms of the contract was not given, failure of the court to find on other issues became immaterial where a finding on each of those issues in favor of the plaintiff would not support a judgment in its favor.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County taxing costs. Grant Jackson, Judge. Modified and affirmed.</p> <p>The facts are stated in the opinion of the court'.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Charles 0. Busicb, Judge. Reversed in part; affirmed in part.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Guardian and Ward—Conflicting Evidence—Finding—Appeal. Where, in a proceeding for the appointment of a guardian, the evidence is conflicting, but enough appears to support the findings of the trial court that the person in question is not incompetent and that no fraud had been practiced upon her, the judgment will be affirmed on appeal.</p> <p>[2] Id.—Death of Alleged Incompetent—Dismissal of Appeal.— If, on such an appeal, the statement contained in a letter presented to the appellate court before which such appeal is pending to the effect that the alleged incompetent had died pending the appeal, and asking that the matter be submitted, is sufficient as a suggestion of death, the ordinary course would be to dismiss the appeal. The effect of such a dismissal would be the same as an affirmance of the judgment.</p> <p>1. Eight of applicant to appeal in proceedings to appoint guardian for incompetent person, note, 15 L. R. A. (N. S.) 436.</p>

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

<p>[1] Liability Insurance—Assumption op Control of Litigation— Waiver op Notice op Accident.—The conditions of a liability-insurance policy that “upon the occurrence of an accident, the assured shall give immediate written notice thereof with the fullest information obtainable at the time,” being intended primarily to afford opportunity to the insurer promptly to take charge of a defense, are waived where the insurer does assume control of the litigation growing out of the accident.</p> <p>[2] Id.—Assumption op Control by Insured—Affirmance op Judgment on Appeal—Violation op Policy.—It cannot be said that the insured violated a condition of the policy by taking complete control of the motion for a new trial in an action brought against it for damages, where counsel for the insurer was present at and participated in the trial and the judgment in such action was affirmed on appeal.</p> <p>[3] lb.—Partial Control by Insured — Want op Interference — Waiver of Breach.—In the absence of some complaint that the attorneys for the insured, who had been permitted to take part in the ease, interfered with the insurer’s conduct of the defense in the action for damages, the fact that the latter did not have full and exclusive control of the defense did not militate against the rule that by assuming such control they waived the prior breach of conditions by the insured.</p> <p>[4] Id.—Action upon Policy — Performance — Waiver op Performance—Construction of Findings.—Where, in an action upon a liability insurance policy, both the fact of performance of all the conditions of the policy by the insured and the fact of waiver of performance of the conditions of the policy by the insurer, with the facts and circumstances constituting such waiver, are alleged in the complaint, a finding that plaintiff “performed all the conditions of said policy” may be considered as surplusage, if the evidence justifies the further finding of waiver on the part of defendant. The findings of the trial court are to receive such a construction as will uphold rather than defeat its judgment.</p> <p>1. Construction and effect of condition in .employers’ liability insurance policy requiring insured to give insurer notice of accident, notes, 11 Aim. Gas. 258; Ann. Gas. 1914A, 271.</p> <p>Delay in giving notice of claim under employers’ indemnity policy, notes, 38 I». R. A. (N. S.) 62; 47 L. R. A. (N. S.) 1213; I». R. A. 1918D, 445; L. R. A. 1918E, 114.</p> <p>Waiver of provision in accident insurance policy requiring notice of injury or death to be given within certain time, note, Aim. Gas. .1917A, 114.</p> <p>2. Validity and construction of provision in employers’ liability-insurance contract giving insurer control of settlement, note, Ann. Cas. 1918C, 405.</p> <p>[5] to .—Accident During Life of Policy.—Where the accident in question happened during the period of the policy it was immaterial that the installation of the wires which caused the accident occurred two months prior to the issuance of the policy, or that the insurer may not have learned of the date of installation of the plant until after the trial of the action growing out of the accident.</p> <p>[6] Id.—Payment of Judgment.—The judgment against the insured having become final and a lien upon its property, the payment thereof partly by the insured personally and the balance by the purchaser of its property, who withheld the amount paid from the purchase price, constituted payment within the provision of the policy that “JSTo action shall lie against the company for any recovery under this policy, unless it shall be brought by the assured for loss or expense actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue.”</p> <p>[7] to.—Construction of Policy.—A contract of indemnity is to be strictly construed, and the contract of indemnity measures the rights of the parties thereto, and consequently, the liability of the indemnitor.</p> <p>[8] to.—Interest Accruing Pending Appeal—Recovery by Insurer. Interest on the judgment recovered against the insured from the date of its entry and pending an appeal therefrom does not constitute “expense” incurred in defending the action, or “costs,” within the meaning of the provision in a liability insurance policy that, in the event of any suit brought against the assured to enforce a claim for damages covered by the policy, the insurer “will defend such suit, whether groundless or not, in the name and on behalf of the insured,” and that “the expense incurred by the company in defending such suit, including costs, if any, taxed against the assured, will be borne by the company whether the judgment is for or against the assured.”</p> <p>[9] to.—Interest Recoverable.—An insured who pays a judgment for the full amount limited in a liability policy indemnifying against actual loss, or a judgment for a smaller amount than such limited sum, can recover the sum with interest only from the time of such payment.</p> <p>[10] Id.—Recovery of Attorneys’ Bees.—The insured is not entitled to recover attorneys’ fees paid to its counsel where the insurer notified the insured that it would defend the action, and did defend it, and the participation therein by the insured’s attorneys was by the insurer’s permission and was not required by the terms of the policy.</p> <p>[11] Id.—Venue of Action.—In this action upon a liability insurance policy, the court having found from the facts set forth in the affidavit filed by plaintiff that the contract was made in Tulare County and was to be performed therein, and the business of plaintiff having been conducted in that county and the liability of the defendant under the policy having arisen therein, the court properly denied the defendant’s motion for a change of venue to the county where it maintained its principal place of business.</p>

S. Sayre, Judge thereof, from proceeding to hear and determine a petition for an injunction. Writ denied. The facts are stated in the opinion of the court'. C. E. McLaughlin, C. P. McLaughlin, Arthur C. Huston, R. B. McMillan and Theodore A. Bell for Petitioner.

<p>[1] Foreign Corporations — Action on Assigned Contract — Be-pealed Code Section Inapplicable — Unsupported Judgment.— In this action in replevin by a foreign corporation on an assigned conditional lease contract covering a piano, the purchaser having defaulted in her payments, sections 405, 406, 408, and 410 of the Civil Code were clearly inapplicable, they having been repealed before the action was instituted and before the assignment of the contract of sale to plaintiff was made; therefore, the findings of the trial court based upon the noneomplianee with these repealed sections of the code do not support the judgment of dismissal.</p> <p>[2] Id.—Engaging in Interstate Business—Bight to Maintain or Depend Actions—Statute Inapplicable.—The statute relating to the right of foreign corporations to maintain or defend actions in this state is inapplicable to foreign corporations engaged wholly in interstate commerce and not doing any intrastate business.</p> <p>[3] Id.—Filling of Orders Sent to Other State—Interstate Commerce.—Sales, followed by the delivery of the articles in this state, upon orders sent from this state to the foreign corporation in another state, are transactions in interstate commerce and beyond the scope of the statute.</p> <p>■[4] Id.—Assignment Incidental to Interstate Commerce.—Where the ordinary business of the foreign corporation was to engage in such interstate transactions, the taking of a single assignment of a conditional sale contract in part liquidation of the indebtedness owing from a local firm to it was not an intrastate transaction, but was a transaction incidental to its interstate business.</p> <p>[5] Id.—Sales in Interstate Commerce—Bight of Foreign Corporation to Enforce Payment.—When a corporation goes into a state other than that of its origin to collect, according to the usual or prevailing methods, the purchase price of merchandise which it has lawfully sold therein in interstate commerce, it is there for a legitimate purpose of such commerce, and the state cannot, consistently with the limitation arising from the commerce clause, obstruct or hamper the attainment of that purpose.</p> <p>[6] Id.—Bar of Statute—Burden of Proof.—The burden is on the party pleading the bar of the statute to show that the case comes within its terms.</p>

<p>[1] Tax Sales — Construction op Section 3898, Political Code—> When Provisions Applicable.—The provision of section 3898 of the Political Code providing for the reimbursement of the purchaser at a tax sale whenever it shall be determined in an action at law that such sale and the conveyance are void merely affects the remedy of such purchaser and is intended to apply to all cases after its passage in which the invalidity of a tax title is judicially determined, notwithstanding the sale may have been held prior to the enactment of such law.</p> <p>[2] Id.—Void Tax Sale—Eight op Purchaser to Eeimbursement—* Code Provision Positive — Form op Pleading Immaterial.—In view of the positive provision of section 3898 of the Political Code that no decree shall be made until the purchaser of the tax title shall have been refunded the amount paid for taxes, such relief must be granted to such purchaser in an action by the owner to quiet title to the property, notwithstanding such purchaser, in his complaint in intervention, does not pray for a refund of the amount paid for taxes but, relying on his tax title, alleges that he is the owner in fee simple of the property.</p> <p>[3] Appeal — Evidence not Brought Up — Presumption.—Where an appeal is taken on the judgment-roll alone, the appellate court, not knowing what evidence was introduced, nor what objections were made thereto, must presume, in support of the judgment, that evidence supporting the findings of the trial court was properly admitted.</p> <p>M Trial—Evidence—Admission Without Objection—Finding.—If evidence, not otherwise admissible, is admitted without objection, u finding based thereon is proper.</p> <p>[5] Appeal—Waiver op Objections to Evidence—Presumption.—On appeal on the judgment-roll alone, it' will be assumed in support of the judgment that all objections to evidence sustaining the findings were waived.</p>

PROCEEDING in Mandamus to compel the city council of the city of Bakersfield to order and fix a day for the holding of a recall election. Writ issued. The facts are stated in the opinion of the court.

<p>[1] Vendor and Vendee—Representations by Read Estate Operator —Mortgagee Not Party—Nonliability.—Where the original mortgagee was not interested in the land purchased by the mortgagor and had no knowledge of the representations made by the real estate operator who conducted the transaction, and the latter was not its agent in the transaction, neither such mortgagee nor its assignee are chargeable with the fraud of such real estate operator.</p> <p>[2] Pleading—Action to Foreclose Mortgage—Affirmative Relief Based on Fraud—Election of Remedies.—In an action to foreclose a mortgage given as security for the payment of a promissory note executed by the defendants as part payment for the property, such defendants, in seeking affirmative relief by way of cross-complaint on account of alleged fraud .in connection with the transaction, are required to elect which one of two remedies they intend to seek—damages after rescission or damages after affirmance. They cannot seek both.</p> <p>[3] Id.—Delay in Discovering Fraud—Burden of Pleading and Proof.—Where such relief was not sought within three years of the making of the alleged fraudulent representations, it was necessary to allege and prove, not only that the fraud was not discovered within the three-year period, but that it could not have been discovered within that time by the exercise of reasonable diligence.</p> <p>[4] Id.—Presumption Against Fraud—Exercise of Due Diligence— Pleading.—The presumption is always against fraud, and one who seeks relief against the effects of fraud must allege it and prove it by clear proof and satisfactory evidence. He must clearly show that he did not discover the existence or commission of the alleged frauds within a reasonable time before the action was begun, that he proceeded promptly upon such discovery, and that his failure to make the discovery sooner was not due to his own lack of dili-' genee. All this must be shown, not merely by a bare statement of such conclusions, but by a detailed statement of the facts and circumstances which caused the ignorance, which prevented an earlier discovery, and which constitute the diligence in seeking an earlier discovery.</p> <p>[5] Id.—Want of Pleading and Proof—Denial of Belief.—Where the persons seeking relief on the ground of fraud alleged not to have been discovered until more than three years after it was committed not only fail to allege why they did not sooner discover the fraud or that they exercised diligence in seeking a discovery, but wholly fail to make any offer of proof upon either of these matters, the trial court is fully justified in .denying their relief upon this plea.</p> <p>[6] Guaranty—Consideration—Dismissal of Pending Action.—Dismissal of an action to foreclose a mortgage given as security for the payment of a promissory note constitutes a sufficient consideration for a written agreement by the title owner of the property about to be foreclosed guaranteeing the payment of that and another promissory note executed by the defendants to plaintiff’s assignor.</p> <p>[7] Id.—Consideration Implied from Writing.—Where such contract of guaranty was in writing, the writing itself imports a consideration.</p> <p>6. Forbearance as sufficient consideration for contract of guaranty, notes, Ann. Cas. 1916A, 970; 19 L. B. A. (N. S.) 842.</p>

PROCEEDING in Certiorari to review tbe action of the county superintendent of schools in reinstating a high school principal. Order for reinstatement set aside. The facts are stated in the opinion of the court.

<p>[i] School Law-—Employment of High School Principal—Mandamus to Compel Payment of Salary.—In this proceeding in mandamus to compel a county superintendent of schools to approve a requisition for the salary of the petitioner as principal of a given high school and to order the same paid to petitioner, the employment of petitioner’s predecessor as principal of said high school having terminated on June 30th of the year in question, the board had authority to employ someone to take his place, and, before July 1st of that year, the petitioner having been regularly employed as such principal and having entered upon and performed the duties thereof, was legally entitled to the relief asked.</p> <p>1. Mandamus to compel payment of salary of public officer or employee, note, 5 A. L. R. 572.</p> <p>PROCEEDING in Mandamus to compel the approval by a county superintendent of a requisition for salary and to order same paid. Writ granted.</p>

<p>[1] Mechanics’ Liens—Construction of Building—Execution of Bond in Favor of Owners Only—Property not Believed from Liability.—A building contractor’s bond not conditioned for the. payment in full of the claims of all persons performing labor upon or furnishing materials to be used iu the work, and which is not by its terms made to inure to the benefit of any and all persons who might perform labor upon or furnish materials to be used in the work described in the contract, as provided by section 1183 of the Code of Civil Procedure, but which, on the other hand, contains the express condition that no right of action shall accrue upon or by reason thereof to or for the use or benefit of any other person than the obligee therein named and that the obligation of the surety is and shall be construed strictly as one of suretyship only, is not such a bond as relieves the owner from liability of his property for liens under the statute.</p> <p>[2] Id.—Interpleader by Owners—Nonpayment of Claims—Sufficiency of Findings—Judgment.—In an action in the nature of suit in interpleader by the owners of real property upon which a building had been erected and against the building contractor, its surety, and numerous lien claimants, a conclusion of law “that said lien claimants are entitled to enforce liens upon the real property, described in plaintiffs complaint for the payment of the several amounts found due them respectively as hereinbefore set forth” amounts to a finding of fact that such sums are due, although included in the conclusions of law; and in such a case the judgment will not be reversed for want of a direct finding that such sums are owing and unpaid.</p> <p>[3] Findings—Construction of to Uphold Judgment.—The entire findings and conclusions of law are to be construed to uphold the judgment when, from the facts found, other facts may be inferred which will support the judgment.</p> <p>[4] lb.—Want of Findings—Reversal of Judgment.—A judgment will not be reversed for want of a finding unless it appears there was no evidence, or lack of evidence which required the court to make a finding in favor of the appellant.</p> <p>[5] Id .—Interpleader—Substantial Facts Admitted by Pleadings—• Finding Unnecessary.—Where the plaintiffs in a complaint in interpleader allege that they do not know the actual amounts due the various claimants, or whether or not their claims of lien are valid, and such lien claimants respectively in their cross-complaints allege that the labor and material furnished went into the plaintiffs’ building, and that there were due, owing, and unpaid, after deducting all just credits and offsets, the sums claimed by them, and the plaintiffs did not deny these allegations but stipulated that their complaint should stand as their answer to the cross-complaints respectively, the substantial facts were thus admitted by the pleadings, and no finding was necessary.</p> <p>'[6] Suretyship—Nonliability of Surety to Lien Claimants—Construction of Bond.—Where a building contractor’s bond expressly provides that neither such instrument nor any rights thereunder ehall be assignable unless by the written consent of the surety, executed as therein specified, and that no right of action shall accrue upon or by reason of such bond to or for the use or benefit of anyone other than the obligee therein named, and that the obligation of the surety is and shall be construed strictly as one of suretyship only, no right of action can accrue thereupon for the benefit of lien claimants, and the obligees therein cannot, either directly or by bringing a suit in interpleader against such surety, the contractor, and the lien claimants, work an assignment of the contract. Such surety cannot be held beyond the express terms of the contract.</p> <p>[7] Interpleader—When Maintainable—Status of Plaintiff.—The plaintiff in an interpleader suit cannot have a judgment in his favor nor urge the claims of certain interpleaded defendants against others, but must at all times maintain the position of a disinterested stakeholder, which alone gives him the right to maintain such a suit.</p>

PROCEEDING in Certiorari to review the action of the Industrial Accident Commission in denying an application for compensation. Application denied. The facts are stated in the opinion of the court.

<p>[1] School Lands—Grant to State by Consress—Locations and Patents—Act oe 1852 not Repealed.—The act of 1857 (Stats. 1857, p. 356), authorizing the location and patenting of school lands, did not repeal the act of 1852 (Stats. 1852, p. 41), which provided for the disposal of the five hundred thousand acres of land granted by Congress to the state of California, either expressly or necessarily from the general language thereof. To the contrary, the. act of 1857 made certain portions of the act of 1852 a part of its own. provisions, or, if it strictly cannot be said that this is true, it certainly and unquestionably recognized by express language the validity of the warrants issued under the prior act, the sale of such warrants and the rights acquired by purchasers of the same.</p> <p>[2] Id.—Purpose op Act op 1857.—The legislature by the act of 1857 merely intended to regulate the matter of locating warrants issued by the state and acquired by purchasers under the act of 1852, so that such locations would conform to the requirements of the United States statutes relative thereto.</p> <p>[3] Id.—Reservation Clause in Act op 1858—Rights op Purchasers Under Earlier Act.—While, the act of 1858 (Stats. 1858, p. 248) did expressly repeal, among others, the statute of 1852, it contained the express provision that "all school-land warrants, now in circulation, shall be received for school lands, and may be located as now provided by law.” The meaning of this language is that school-land warrants in circulation at the time of the passage of the act of 1858 may be located as provided by the law existing at the time of the passage of said act, or as provided by the law authorizing the issuing and sale of such warrants.</p> <p>[4] Id.—Construction op Act op 1868—Right to Locate Warrants.— The legislature did not intend by the act of 1868 (Stats. 1867-68, p. 507), providing a new and different procedure for obtaining patents to the unloeated portions of the five hundred thousand acres of land set apart as school land, to vest solely and exclusively in the surveyor-general the right to make school-land warrant selections. The sale of the warrant constituted a sale by the state of the number of acres of land specified in the warrant, a sale of the land so specified for all time and unconditionally, and there was nothing remaining for the purchaser to do but to locate the number of acres his warrant called for. Having bought and paid for the land, there was no reason why his warrant should be presented to the surveyor-general as in payment for something he had already paid for.</p> <p>[5] Id.—Right op Surveyor-general to Locate Lands.—The act of 1868 expressly limits the right of the surveyor-general to locate lands comprised within the grant by Congress to the unsold portions thereof, and it was not the intent of the legislature by such act to deprive owners of pre-existing land warrants of the right themselves to locate said warrants as agents of the state.</p> <p>[6] Id.—Ownership op Outstanding Warrants—Additional Permissive Right Under Act op 1868.—The provision of the act of 1868 that outstanding warrants shall be taken in payment of any part of the grant was intended only to be permissive—that is to say, that it was intended to confer upon owners of outstanding warrants the right, in addition to their pre-existing right to locate the warrants as agents of the state, to present the same as payment on applications to purchase lands embraced within the congressional grant.</p> <p>[7] Id.—Effect of Saving Clause of Act of 1868.—By the saving clause of the act of 1868, the legislature intended to preserve to the purchasers of warrants issued and sold under the act of 1852 all the rights acquired by them by virtue of such warrants.</p> <p>[8] Id.—Vested Bight of Purchaser.'—-The purchasers of school-land warrants issued and sold under the statutes of 1852 and 1853 acquired under such purchase a vested right to the amount of land specified in the warrants.</p> <p>[9] Id.—Sale of Warrants—Contract with State—Nature of.— The sale of school-land warrants by the state constituted a contract between the state and the purchasers of the warrants, although at the time of the sale the lands granted by Congress had not been listed to the state. The terms of the warrant were that the purchaser was entitled to locate the same in behalf of the state of California. The warrant constituted a contract of sale of the amount of land specified therein and which land was embraced within the grant to the state by Congress of five hundred thousand acres of land.</p> <p>[10] Id.—Bight to Locate Warrants—Power of Legislature to Amend Procedure.—While the legislature may amend the procedure or change the remedy whereby rights are judicially asserted, and such amendment or change may have a retroactive effect, except in those cases where the procedure or the remedy as amended or changed directly affects and impairs the right, the legislature is without the power to take away the right of the purchasers of school-land warrants to locate such warrants.</p> <p>[11] Id.—Delay in Locating Warrants.—As there was no time limit fixed by the statute of 1852 within which the locations were to be made, no rights could accrue to the state by reason of the delay in locating the warrants, it having been fully paid for the amount of land specified therein.</p>

<p>[1] Criminal Daw—Embezzlement—Instructions.—It is the duty of the court in charging the jury to state to them all matters of law necessary for their information; and in this prosecution an instruction that "If you find from the evidence beyond a reasonable doubt that the defendant did, on or about the date charged in the information, fraudulently appropriate the moneys of” the complaining witness “after said moneys had been intrusted to him and that said moneys were appropriated to a use or purpose other than that for which such property was intrusted to him, you should find the defendant guilty of embezzlement as charged in the information,” was a correct statement of the law, and clearly applicable to the theory of the prosecution as shown by the testimony of the complaining witness.</p> <p>[2] In.—Prosecution on Two Different Charges—Evidence Establishing Either Admissible.—Where a defendant is charged in one count with the embezzlement of a given sum of money and in a second count with larceny of a like sum, any testimony tending to establish the essentials of either offense is proper.</p>

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

<p>[1] Forcible Entry—Essential Elements.—Under section 1159 of the Code of Civil Procedure, a person is not guilty of forcible entry where his entry upon the premises is not accompanied by any kind of violence or circumstances of terror, and he does not turn out by force, threats, or menacing conduct the party in possession.</p> <p>[2] Forcible Detainer—Unlawful Entry—Necessity for Demand for Possession.—EVen though a person’s entry upon the premises is an unlawful entry made during the absence of the occupant, an action of forcible detainer cannot be maintained against him, under subdivision 2 of section 1160 of the Code of Civil Procedure, unless the former occupant has made demand for the surrender of the premises and he, for the period of five days, has refused to surrender the same.</p> <p>[3] Forcible Entry and Detainer—Possession not Recovered— Damages.—In an action in forcible entry or forcible detainer the plaintiff is not entitled to recover damages unless he recovers the possession of the premises in controversy.</p> <p>1. Threats and display of force without actual force as constituting forcible entry, note, 15 Ann. Cas. 804.</p> <p>2. Mere occupancy or personal presence as possession sufficient to warrant action for forcible entry and detainer, note, 21 Ann. Cas. 1226.</p>

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

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

<p>[1] Workmen’s Compensation Act—Scope of Employment—evidence—Finding.—In this action for damages for personal injuries sustained while attempting to replace a belt on the pulley of a bran-packing machine, while the plaintiff’s evidence as to the scope of his employment was too unsatisfactory, in view of the evidence of other witnesses to the effect that it was not unusual for a bran-packer to replace the belt when it slipped off, the jury was warranted in concluding that plaintiff was acting within the scope of Ms duties when he undertook to put the belt hack on to the pulley.</p> <p>[2] Id.—Remedy of Injured Employee—When Action for Damages Maintainable.—The remedy of compensation afforded by the Workmen’s Compensation, Insurance and Safety Act is exclusive of all other statutory or common-law remedies, except in the one case provided by subdivision “b” of section 12. By that subdivision it is provided that an injured employee, instead of presenting to the commission Ms claim for compensation as provided by the act, may, at Ms option, maintain in the courts an action at law against Ms employer to recover damages where all the three following elements coexist: (1) When the injury is caused by the employer’s gross negligence or willful misconduct; (2) when the act or failure to act wMch is the cause of the injury is the personal act or failure to act on the part of the employer himself, or, if the employer be a corporation, on the part of an elective officer or officers thereof; and (3) when the act or failure to act wMch is the cause of the injury indicates a willful disregard of the life, limb, or bodily safety of the employees.</p> <p>[3] Id.—Failure of Employer to Inclose Gears—Action for Damages—Essentials to Recovery—Pleading and Proof.—Where the failure to act, wMch is charged as the cause of the injury, was the failure to inclose certain gears in a housing, or otherwise to keep them from being exposed, to entitle the plaintiff in an action at law against the employer to recover he must allege, and, by a preponderance of the evidence, prove: (1) That defendant’s failure to house the gears was of itself “gross negligence” or “willful misconduct”; (2) that the failure to house the gears was the personal failure to act on the part of an elective officer or officers of the defendant corporation as, for example, a director or directors; and (3) that such failure to house the gears indicates a willful disregard of the life, limb, and bodily safety of defendant’s employees.</p> <p>1. What is accident arising out of, and in course of, employment within meaning of Workmen’s Compensation Act, notes, Ann. Cas. 1913C, 4; Ann. Cas. 1914B, 498; Ann. Cas. 1916B, 1293; Ann. Cas. 1918B, 362; 1>. R. A. 1916A, 40, 232; L. R. A. 1917D, 114; L. R. A. 1918E, 896.</p> <p>3, Negligence precluding recovery under Workmen’s Compensation Act, note, Ann. Cas. 1913C, 17.</p> <p>“Serious and willful misconduct” as affecting recovery under Workmen’s Compensation Act, notes, Ann. Cas. 1916A, 790; L. R. A. 1916A, 75, 243, 355; L. R. A. 1917D, 133.</p> <p>[4] Id.—Failure to Comply With Commission’s Orders—Gross Negligence—Willful Misconduct.—Unless, by failing to house such gears, one of the elective officers of defendant thereby failed to comply with a general or special order of the Industrial Accident Commission, or with some safety requirement expressly defined and provided for by the act itself, it cannot successfully be claimed that defendant was guilty of either “gross negligence” or “willful misconduct.”</p> <p>[5] Id.—Gross Negligence Defined.—Gross negligence is the entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there is an entire indifference to the interest and welfare of others. It is that entire want of care that raises a presumption of conscious indifference to consequences. It implies a total disregard of consequences, without the exertion of effort to avoid it.</p> <p>[6] Id.—Willful Misconduct Defined.—Willful misconduct means something different from and more than negligence, however gross. The mere failure to perform a statutory duty is not, alone, willful misconduct. To constitute willful misconduct there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with conscious failure to act to the end of averting injury.</p> <p>[7] Id.—Recommendations of Engineer not Safety Orders.—Recommendations by a safety engineer representing the Industrial Accident Commission that certain changes be made in a given plant cannot be deemed the equivalent of an order made and entered by the commission itself and served on the employer, as contemplated by the Workmen’s Compensation, Insurance and Safety Act.</p> <p>[8] Id.—Use of Safety Devices—Absence of Orders—General Requirements of Act.—In the absence of any general or special order given and made by the commission in the mode and manner provided by the act, an employer’s statutory duty, under the general requirements of the act itself, is to use such devices and safeguards as are “reasonably adequate” to render the place of employment safe, and to have its place of employment as free from danger to the life or safety of its employees “as the nature of the employment will reasonably permit.”-</p> <p>[9] Id.—Degree oe Care Required—Erroneous Instruction.—In an action for damages for personal injuries sustained while attempting to replace a belt on the pulley of a bran-packing machine, the plaintiff’s arm having been caught in certain gears, an instruction that “if you find from a preponderance of the evidence in this case that the plaintiff at the time of the injury was acting in the course of his employment, then, if such gears constituted a source of danger to the life or safety of the plaintiff, the defendant owed to the plaintiff the duty of providing and maintaining over the gears in question such safety devices or appliances as would tend to mitigate or prevent the danger to plaintiff from contact thereof,” exacts from the defendant a greater degree of care than is required by the Workmen’s Compensation, Insurance and Safety Act.</p>

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

<p>[1] Landlord and Tenant—Assignment op Lease—Liability of Assignees.—Where tenants hold under a mere naked assignment of the lease, their liability is, as to the landlord, limited to their occupancy of the premises and terminates with their abandonment of possession.</p> <p>[2] Id.—Express Covenant to Pay Bent—Obligations of Assignees. Where, however, the assignees by express terms in writing covenant and agree to pay the rent reserved in the lease, it presents two sets of obligations and rights: one comprising those due to the relation oí landlord and tenant based upon privity of estate, and the other due to privity of contract by the terms of which the obligation of assignees of the lease is to be measured.</p> <p>1. Assignment of lease, notes, 10 Am. St. Rep. 557; 15 L. R. A. 754.</p> <p>[3] Id.—Repudiation op Lease bt Assignees—Right op Lessor to Sue—Parties.'—Where the assignees of a lease have upon sufficient consideration assumed and agreed to pay the rent, their obligation is identical with that of the original lessee upon his express covenant so to do, and.when they repudiate the lease and abandon the premises, the lessor is entitled to stand upon the terms of the contract made with the lessee and his assigns for the lessor’s benefit and sue thereon to recover the rent which they agreed to pay, in the same manner and to the same extent as though they had been the original obligors under the terms of the lease, regardless of whether or not the lessor was a party to the assignment contract.</p> <p>[4] Id.-—Abandonment op Premises by Tenant—Release prom Further Liability.—The rule that where a tenant abandons leased property and repudiates the lease, if the landlord takes unqualified possession thereof, the tenant, upon the theory of a 'rescission, is released from further liability, is not applicable where the tenant repudiates the lease and abandons the demised premises and the landlord, without taking unqualified possession of the premises, endeavors, without success, to obtain a new tenant.</p> <p>4. Remedy of landlord upon abandonment of premises by tenant, note, 13 Ii. R. A. (N. S.) 398.</p>

<p>[l] Criminal Law—Robbery—Instructions—Evidence—Prejudicial E'rror.—In this prosecution for the crime of robbery, the law pertinent to the ease, as made by the evidence, was correctly stated to the jury, the court’s rulings on the evidence were fairly correct, no prejudicial error in that respect being shown by the record, the defendant was given a perfectly fair trial according to law, and the evidence produced at the trial, having been accepted by the jury, was amply sufficient to justify the verdict.</p>

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

<p>[1] Corporations—Contract Made by Official—Admissibility of Parol Evidence to Hold Corporation.—Parol evidence may be invoked to hold a corporation upon a contract entered into by its president or manager in his own name, if it was intended for and inured to the benefit of the corporation and there is anything on the face of the instrument suggesting that it was made for an undisclosed principal.</p> <p>[2] Id.—One Man Corporations — Manner of Executing Contracts Immaterial.—The law is not scrupulously particular in discriminating between the contracts of one who owns practically all the stock of a corporation and controls its affairs, as to whether he executes a contract relating to the corporate business in his individual or in the corporate capacity.</p> <p>[3] Id.—Execution of Contract by Corporate Official—Effect on Corporation—Knowledge of Facts—Action to Enforce—Evidence—Inference.—In this action against a corporation and its president and general manager to recover a given sum of money and to cancel a certain promissory note, in pursuance of the terms of a written agreement entered into between the plaintiff and such president and general manager, it may reasonably be inferred from the evidence that both parties entered into the contract on the understanding that such president and general manager was the voice -of the corporation and that whatever he agreed to would bind the corporation; and it may also be found, as a legal inference from the relations of such president and general manager to the corporation, as shown by the evidence, that the latter is presumed to know of the execution of the contract, and its terms, and that it was the recipient of the consideration.</p> <p>[4] Id.—Executory Contract—Sale upon Condition Precedent— Eight of Ejection by Plaintiff—Liability of Corporation.— Where the contract between the plaintiff and such president and general manager with reference to the sale of stock in the defendant corporation was executory, its consummation dependent on the condition precedent that at the expiration of one year plaintiff elect to retain the stock, the corporation, which received the money and the note given in payment with knowledge -of the contract, held them subject to the exercise of plaintiff’s option, and was bound to repay the money and surrender the note for cancellation upon the plaintiff’s decision not to retain the stock. It could not accept the benefits and repudiate the obligations.</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] Negligence—Ownership of Premises—Duty to Repair.—While an owner is primarily responsible for the repair of all portions of his premises, he is not an insurer with reference to the condition thereof generally, but must have notice of defects before he can be held Rabie in damages for failure t'o repair.</p> <p>[2] Id.—Defective Condition of Leased Premises—Injury to Third Persons—When Owner Responsible.—Ordinarily, the owner of a building which is in the possession of a tenant is not liable to third persons for injuries resulting from a defective condition of any portion of the premises unless the building was defectively constructed or he had notice of such defective condition.</p> <p>[3] Id.—Duty of Owner to Repair Sidewalk—Construction of San Francisco Charter.—The provision of section 16 of chapter 2 of article VI of the charter of the city and county of San Francisco that “until the sidewalk or roadway of any improved street in the city and county of San Francisco is finally accepted . . . the obligation to repair, reconstruct or improve the same is imposed upon the owner or owners of the lots fronting thereon,” does not make the owner of property an insurer of the safety of persons using the sidewalk in front thereof, nor a guarantor that the sidewalk contains no openings.</p> <p>1. Necessity of notice by tenant to landlord of need of repair during term, note, Ann. Cas. 1912B, 353.</p>

<p>[1] Attorn et at Law — Disbarment — Evidence — Findings — Judgment.—In this proceeding for the permanent disbarment of an attorney at law, although there was a conflict in the evidence relating to the several charges against the accused, there was evidence of a substantial nature supporting the material allegations on each of the three counts on which the judgment of disbarment was founded, and the facts found established that the accused was guilty of professional misconduct and showed that he was wanting in that integrity of character and conduct which the law rightfully requires from an attorney at law.</p>

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

<p>[U Deceivers—Action in Unlawful Detainer—Riohts of Parties— Prohibition.—In a proceeding in prohibition brought for the purpose of determining the right of the superior court to appoint a receiver in an action in unlawful detainer, the appellate court cannot decide the controversy between the parties as to the ownership of the fruit grown on the land in question.</p> <p>[2] Id.—Appointment op in Unlawful Detainer Actions—Code Amendment not Retroactive.—The 1919 amendment to section 564 of the Code of Civil Procedure, authorizing the appointment of a receiver in an action in unlawful detainer in which the superior court has exclusive original jurisdiction, deals with the substantive rights of the parties as well as in the matter of a remedy and, therefore, is not applicable to actions instituted prior to the date it went into effect.</p> <p>[3] Id.'—Litigation as to Title to Property—Danger of Loss— Power to Appoint Receiver.—Where the dispute in litigation is as to the title to the property involved therein and it is made satisfactorily to appear that the property is of such a character or is in such a situation that it is likely to be lost or destroyed or greatly deteriorated in value in the hands of the party in possession before the merits of the controversy can be adjudicated, and a satisfactory showing is made that the plaintiff has some interest in the property, or that the plaintiff’s right thereto or some portion thereof is reasonably certain, the court may, in the exercise of its discretion, appoint a receiver to take custody of the property pending the litigation and the determination of the rights of the parties.</p> <p>[4] Id.—¡Sufficiency of Application for Appointment—Review on Prohibition.—Where the order appointing a receiver in a given case is within the jurisdiction of the court, whether the facts disclosed to the court on the application for the appointment are such as legally to warrant it in putting in operation or applying its jurisdiction in that regard cannot be inquired into or reviewed on an application for a writ of prohibition.</p> <p>[5] Id.—Persons Interested not Made Parties—Jurisdiction of Court not Affected.—The power of the court to appoint a receiver in a given case is not affected by the fact that certain persons who claim an interest in the property of which the receiver is to take possession are not made parties to the action and, therefore, are without opportunity to protest in court against the appointment of the receiver.</p> <p>3. Appointment of receivers generally, note, 72 Am. St. Rep. 29. Power of court to appoint receiver for purpose of development or preservation of realty, note, Ann. Cas. 1915D, 1034.</p>

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

<p>[1] Workmen’s Compensation Act—Employment as Maid in Sanitarium:—Right to Benefits of Act.—Under the Workmen’s Compensation Act a person employed at a sanitarium as a maid, her duties consisting of what is known as general housework, in addition to which she attends upon patients in the sanitarium, is not engaged in a service falling within the exception of the Workmen’s Compensation Act which excludes from the benefits of the act “any employee engaged in household domestic service.”</p> <p>[2] Id.—Injury While Performing Own Work—Bight to Compensation.-—-Sueh an employee is not entitled to compensation for injuries received in slipping upon a wet floor on the premises of her employer, where at the time she was engaged only in the performance of work of her own, which was wholly disassociated from any duty having reference to her employment, she not being required to perform any service until one hour later.</p> <p>1. Occupations or employments within purview of Workmen’s Compensation Acts, notes, Ann. Cas. 1917D, 4; L. B. A. 1916A, 192, 216; I>. B. A. 1917D, 150.</p>

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

<p>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] Corporations—Stock Subscriptions—Necessity for Permit.— Under the Investment Companies Act, prior to the permit from the commissioner of corporations no valid subscription for the corporate stock can be made; and regardless of any attempt on the part of the incorporators to subscribe for stock in excess of the original qualifying shares, there can be no subscription for stock of the corporation.</p> <p>[2] Id.—Dissolution of Partnership—Merger into Corporation— Issuance of Permit by Corporation Commissioner—Validity of Agreement Between Partners.—An agreement between partners that the partnership should be dissolved and its property merged with that of other partnerships engaged in the same line of business, in a consolidation under a corporation to be formed, and that the partners should receive respectively stock in the corporation at par, equivalent to their respective interests in the partnership, the members of each partnership as a group to receive such stock of equivalent value to the respective partnership contributions of property to the corporation assets, is a promoters’ agreement, binding upon them and good as an offer to the corporation, to become binding on the corporation upon its lawful acceptance of its benefits; and the fact that the commissioner of corporations might never grant his permission to the issuance of the corporate stock has no effect upon the validity of the partnership agreement for dissolution.</p> <p>[3] Contracts—Subsequent Inability of Performance—Effect of.— A contract valid in its inception may become voidable or impossible of performance by the failure of a subsequent contingency, but if the contingency is one which may happen, the parties are bound by their contract until it can be determined it cannot be enforced.</p> <p>M Partnership—Agreement for Dissolution—Binding Effect of. In a suit to decree the dissolution of a partnership, in the absence of its inherent invalidity or facts which might enable one of the contracting parties to rescind it, the court cannot disregard the agreement for dissolution, but by its decree must enforce it; and in such a suit none of the partners can have the benefit of the agreement for dissolution and evade those of its provisions by which their respective rights in the partnership assets are determined.</p> <p>3. Effect of intervening impossibility to perform contract, notes, 14 Ir. R. A. 215; L. R. A. 1916F, 10.</p>

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

<p>[1] Landlord and Tenant—Expiration op Term—Right op Landlord to Fixtures not Removed—Waiver.—The right of a landlord to claim fixtures put in the leased building by the tenant but not removed during the term of the original lease may be waived and the tenant by contract granted the right to remove the fixtures during the term of the new lease.</p> <p>[2] Id.-—Extension op Time por Removal—Evidence—Finding.—In this action to recover possession of certain property alleged to have been wrongfully removed by the tenant after the expiration of the time within which such removal might legally have been effected, the testimony of the defendant covering his conversations and dealings with the plaintiff, though 'denied in part by the latter, was sufficient to support the finding of the trial court that plaintiff agreed that defendant should have thirty days in addition to the time given by bis prior lease and notice within which he might-remove the property, and that defendant did remove the property prior to the agreed date.</p> <p>[3] Id.—Admissibility op Parol Evidence—Waiver op Objection.— Where in such action the defendant was permitted, without objection from the plaintiff, to offer parol evidence in support of his claim that the plaintiff by oral agreement extended the time within which the property might be removed from the leased premises, the written lease covering the further term having contained no such provision, the admissibility of such testimony cannot be questioned for the first time on appeal.</p> <p>1. New lease as affecting right to remove fixtures, notes, 3 Ann. Gas. 331; 20 Ann. Cas. 769.</p>

<p>[1] Defaults—Motion to Set Aside—Discretion of Trial Court-Action'Against Corporation—Service of Summons on Secretary —Extension of Time to Plead.—The granting of motions to set aside defaults is largely in the discretion of the trial court, and its action will not be disturbed unless there has been an abuse of such discretion; and in this action to foreclose a mortgage it would have been an abuse of discretion to have granted the motion of the defendant corporation to set aside a default entered by the clerk of the court against it after its time to appear in the action had fully expired, no order having been made extending its time to plead, notwithstanding an order was made giving the secretary of the corporation personally, he being the individual upon whom service of summons on the corporation was made, an extension of time to plead.</p>

<p>[1] Alienation of Affections—Action fob Damages—State of Husband’s Feelings—Evidence—Heabsay Declarations.—In an action for damages by a wife against her husband’s parents for the alienation of the husband’s affections, testimony of the plaintiff, supplemented by that of her witnesses, as to declarations which they claimed the husband made in their presence, of criticism and unkind remarks, and attempts to influence him against his wife, made by his parents, chiefly his mother, is admissible for the purpose of showing the state of the husband’s feelings during the period in question; and its admission over the objections of defendants’ counsel that it is incompetent and hearsay is not error, where the jury are expressly instructed that they are to receive it for no other purpose, and that it is not competent evidence to prove any of the conduct or statements therein attributed to the defendants.</p> <p>[2] Id.—Evidence Competent fob Single Purpose—Admissibility of. Where evidence is competent and material for any purpose under the issues on trial, it is admissible for that purpose, although it may he inadmissible and prejudicial when applied to other issues to which it is pertinent.</p> <p>[3] Id.—Determination of Husband to Abandon Wife—Assistance by Parents—Liability—Presumption of Bad Motive.—Where the determination of the husband to abandon his wife was the result of his own volition and not influenced by any willful or malicious act of his parents, the latter cannot he held responsible because they assisted him in carrying out his purpose; and no presumption of a bad motive arises from the mere fact that they gave him such assistance.'</p> <p>[4] Id.—Marriage of Child—Bight of Parents to Further Consider Welfare of.—The marriage of a child does not terminate the right of the parents to interest themselves in his or her happiness and welfare; and so long as they in good faith act for what they believed is their child’s welfare, no matter how mistakenly, and are not moved by malice or ill will toward the partner to the marriage, there is no liability, even where they use their influence to bring about a separation.</p> <p>3. Liability of parent or guardian for causing separation of husband and wife, notes, 8 Ann. Cas. 813; Ann. Cas. 1917E, 1017; 9 Ii. B. A. (N. S.) 322.</p> <p>Malice as essential to action for alienation of affections by parent, note, 46 L. B. A. (N. S.) 779.</p> <p>Admissibility of evidence of defendants’ financial circumstances in action for alienation of affections, note, Ann, Cas. 1914B, 803.</p> <p>[5] Id.—Relationship of Parent and Child—Right to Side With Child in Case op Marital Infelicity—Malicious Interference-Presumption.—The relations of a parent, particularly of a mothei toward her son, are scarcely less sacred than the relationship between husband and wife; and in cases of marital infelicity, no presumption of malicious interference arises because the parents take sides with their child, unless it affirmatively appears that it is done in bad faith and from ill will toward the other party.</p> <p>[6] Id.—Saying of Harsh and Unbind Things—Inferences.—The fact alone that in moments of resentment of their daughter-in-law’s actions and refusal to accept their attempts at reconciliation the husband’s parents said harsh and unkind things about her will not justify an inference that they violated the laws of God and society by trying to break up the marriage relation of their son and his wife.</p> <p>[7] Id.—Separation by Son—Failure to Assist Daughter-in-law-Inferences.—The fact that the parents permitted the separation of their son "without offering any aid or comfort to the deserted wife constituted the violation of no legal duty, and in itself raised no inference that they instigated his desertion.</p> <p>[8] Id.—Consideration of Evidence—Province of Jury.—While the jurors are the sole judges of the weight and sufficiency of evidence, their province in receiving or rejecting evidence, as they are by the court instructed, is not arbitrary, but is to be exercised with legal discretion and in subordination to the rules of evidence.</p> <p>[9] Id.—Action for Damages—Essentials to Recovery.—In an action for damages by a wife against her husband’s parents for the alienation of the husband’s affections, the plaintiff, to support a verdict against the defendants, must establish that the defendants knowingly and willfully influenced their son to withdraw his affection and companionship from her, and that this was done in a spirit of malice and ill will toward her.</p> <p>[10] Id.—Presence of Motive for Alienating Son’s Affections— Loss of Love for Wife—Evidence of Cause.—The fact that the parents may have had a grudge against their daughter-in-law, or a motive for alienating their son’s affections, would not suffice to prove that his love for his wife waned and flickered out as the result of his parents’ conscious and willful influence or persuasion, and not as the result of some innate cause born within his breast unassisted by any acts on the part of Ms parents, done for the purpose and with the intent of bringing about that condition of heart witMn Mm.</p> <p>[11] Id.—Absence of Evidence of III Will or Malign Influence— Unsupported Verdict.—In this action for damages by a wife against her husband’s parents for the alienation- of the husband’s affections, in view of the absence of any direct evidence of ill will or malign influence on the part of the defendants, the evidence was wholly insufficient to justify a verdict against strangers, much less as against the parents.</p> <p>[12] Id. — Preferential Eights of Parents — Presumptions as to Acts.—In actions for damages for alienation of affections the law places the parents of a married child on a much more favorable basis than that of a stranger to the family relations; and in such actions all presumptions must be that the parents acted only for the best interests of their child.</p> <p>[13] Id.—Wealth of Parents—Hearsay Declarations,—In an action for damages by a wife against her husband’s parents for the alienation of the husband’s affections, it is error to admit, over the objections of defendants’ counsel, plaintiff’s testimony of declarations by her husband as to Ms father’s wealth.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank G. Finlayson, Judge. Appeal from order dismissed; judgment affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Undue Influence—Disposition of Property—Inadequate Consideration—Remedy.—Where a person through undue influence has been induced to part with his property for an inadequate consideration, his remedy is rescission and not damages; and prompt rescission and offer of restitution are essential to a recovery.</p> <p>[2] Fraudulent Representations—Untruth of Statements—Pleading.—In an action for damages for fraudulent representations, it is essential that the statements made by the defendant be alleged to be untrue. An inference is not a sufficient allegation of falsity.</p> <p>[3] Id.—Attorney and Client—Advice to Dispose of Property— Expression of Opinion.—A statement by an attorney to a client, who is not capable physically or mentally of giving his business ordinary care and attention due to cares and worries of a vexing and harassing nature growing out of certain litigation, that it is for the best interest of the latter that he at once dispose of all his property, is insufficient to constitute a misrepresentation as distinguished from a mere opinion.</p> <p>3. What statements are fact and what opinion, note, 35 L. R. A. 435.</p> <p>[4] Id.—Indictment of Plaintiff—Influence of Defendants to Prevent—Want of Allegation op Falsity.—Allegations that the defendants represented to plaintiff that he was about to be in-dieted by the grand jury and that they had great influence with the United States district attorney, and could, through him, either cause or prevent an indictment being found against plaintiff, are insufficient to state a cause of action for fraud where it is not alleged that such statements were untrue.</p>

<p>[1] Promissory Note—Provision for Attorney’s Fees—Negotiability of Instrument.—A provision in a promissory note that “should an attorney be employed to enforce the payment of this note, we agree to pay an additional sum of one per cent on principal and accrued interest as attorney’s fees,” does not render the note non-negotiable.</p> <p>[2] Id.—Provision for Increased Interest After Maturity—Negotiability of Instrument.—A provision in a promissory note payable one year after date that the interest thereon is to be “payable annually, and if not so paid to be compounded and bear the same rate of interest as the principal; and should the interest not be paid when due then the whole sum of the principal and interest shall become immediately due and payable at the option of the holder,” does not render the note non-negotiable.</p> <p>[3] Id.—Receipt of Note in Payment of Property—Acquisition in Ordinary Course of Business.—Promissory notes received before maturity, without notice or knowledge of any claim of the makers that they have a defense thereto, in part payment for certain real property, are acquired in the ordinary course of business and for a valuable consideration.</p> <p>[4] Id.—“Usual Course of Business”—Meaning of Term.—As applied to commercial paper, the term “in the usual course of business” means the delivery for value under such circumstances that a business man of ordinary intelligence and capacity would give his money, goods, or credit for it when offered for the purpose for which it was transferred.</p> <p>1. Negotiability of note containing stipulation for attorneys’ fees, note, Ann. Cas. 1912D, 165.</p> <p>2. Negotiability as affected by provision in relation to interest or discount, note, 2 A. L. R. 139.</p>

PROCEEDING on Habeas Corpus to test the sufficiency of a complaint to charge an offense. Writ discharged and petitioner remanded to custody. The facts are stated in the opinion of the court.

<p>[1] Appeal—Time—Extension op.—Under section 939 of the Code • of Civil Procedure, the sixty-day limit of time for appealing from a judgment cannot be extended, except by the pendency of proceedings on motion for a new trial.</p> <p>[2] New Trial—Notice op Intention—Signature by Attorney not op Record—Waiver op Objection.—Where the attorneys for the plaintiffs are served with copies of a notice of intention to move for a new trial, and an acknowledgment of receipt thereof is given on the original, without seasonable objection, they cannot later be beard to deny the validity of such notice because it is not signed by the attorney of record, hut by another attorney who has been requested by the attorney of record and the defendants to become an attorney of record, but who, through inadvertence in signing the notice, signed his own name alone.</p> <p>[3] Id.—Failure to Sign Notice op Intention—Defect not Jurisdictional.-—While the law requires that notices of intention to move for a new trial be signed, failure to observe this requirement d-oes not establish a defect of jurisdiction.</p>

<p>[1] Trade Name—Use of to Promote Unfair Competition—Injunction.—A name or mark of such a nature that no one may acquire an exclusive right to its use, and which cannot become a trademark, may become a trade name and the use of it to promote unfair competition may be prevented or redressed; and as against a particular defendant using the name upon a similar product, it is only necessary to show such facts as to put in operation the rules governing unfair competition. It is not necessary that the defendant should have duplicated the label used by the plaintiff before relief may be had.</p> <p>1. Use of personal or corporate trade name as unfair competition, notes, 2 Ann. Cas. 415; 16 Ann. Cas. 596.</p> <p>[2] Id.—Use of Words "German Toast” on Bread Wrappers—Unfair Competition—Injunction.—In this action brought to enjoin the defendant from using the words “German Toast” upon wrappers used on bread manufactured by the defendant, the court should have found from the admitted facts and the exhibits in evidence that the plaintiff had acquired the right to the use of the term as a trade name for its bread as against the defendant, and that the defendant was guilty of unfair competition in the use of its said label upon its bread; and an injunction should have been granted restraining the defendant from using the said wrappers on the bread manufactured and sold by it.</p> <p>[3] Id.—Voluntary Abandonment of Use of Name—Bight to Injunction.—In such an action the plaintiff is entitled to an injunction notwithstanding the defendant has voluntarily abandoned the use of the label in question.</p>

<p>[1] Partition—Waiver op Bight by Contract—Breach of Contract by Joint Tenant—Bevival of Bight.—While the right to partition conferred by section 752 of the Code of Civil Procedure may be waived by agreement, a joint tenant who enters into such an agreement, in consideration of a covenant and agreement on the part of the other joint tenant to farm the land and to keep an accurate and intelligible account accessible to tbe former of all receipts and expenditures, is released from any legal or moral obligation to carry out his promise or covenant upon the failure of the other joint tenant to keep his agreement.</p> <p>1. Validity of agreement against right to partition, note, 16 D. B, A, 220,</p>

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

<p>[1] Mortgages—Partial Release—Deduction op Market Value.— Generally, a mortgagee, with notice of several successive alienations of parts of the mortgaged premises primarily liable for the payment of the debt, cannot release a portion of the mortgaged premises for less than the market value of the property so released and charge the remaining portion of the premises with the payment of the balance of the mortgage debt without deducting therefrom the market value of the part released.</p> <p>[2] Id.—Agreement That Mortgagee May Grant Partial Release —Public Policy.—Where, however, a mortgage contains a provision that “the mortgagor agrees that the mortgagee may at any time without notice release portions of said mortgaged premises from the lien of this mortgage without affecting the personal liability of any person for the payment of said indebtedness, or the lien of this mortgage upon the remainder of the mortgaged premises, for the full amount of said indebtedness then remaining unpaid,” the mortgagee has a right to grant a release of a portion of the mortgaged premises for less than the market value of the property so released and to hold the remainder of the property for the balance of the mortgage debt, and such a provision is not contrary to public policy.</p>

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

<p>[1] Fraud—Defense—Pleading.—Fraud is not available as a defense where such an issue is not tendered by the pleadings.</p> <p>[2] Promissory Note — Negotiability — Indorsement Without Recourse.—The indorsement of a promissory note without recourse by the original payee does not destroy its negotiability.</p> <p>[3] Id.-—Guarantee of Payment by Indorsee.—The guarantee of the payment of a promissory note by the indorsee does not affect its negotiability.</p> <p>[4] Id.—Sale of Note—Giving of Lumber Credit in Payment— Transfer of Credit to Third Party—Liability on Credit.— Where a lumber company, in consideration for a certain promissory note purchased by it in good faith and in due course of business before maturity, gives its indorser a credit on its books for the agreed purchase price of the note, the same to be paid in lumber, and thereafter such credit is transferred to a third person in settlement on an indebtedness to the latter, the lumber company is liable to such third person on the credit.</p> <p>[5] Id.—Exchange of Notes—Sufficiency of Consideration.—The delivery by a company to an individual of certain promissory notes executed by it constitutes sufficient consideration for the execution and delivery by such individual to the company of his promissory note for the aggregate amount thereof.</p> <p>2. Indorsement of note without recourse as affecting negotiability, notes, 134 Am, St. Rep. 998 5 L. R* A, 1918F, 1152.</p>

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

<p>[1] Negligence—Violation op Statute—When Actionable Negligence.—The violation of a statute or municipal ordinance is actionable negligence only as to a person for whose benefit or protection it was enacted, and where the plaintiff does not belong to the class that the law was designed to protect, the violation thereof will not avail to supply the element of duty owing.</p> <p>[2] Id.—Violation op Section 273f, Penal Code—Employment op Minor Son in Saloon—Killing of Patron—Liability op Father. A father who violates the provisions of section 273f of the Penal Code by sending his son under the age of eighteen years into a saloon conducted by him to assist in the work there, violates a duty owing to his son, but not to third parties, and, therefore, such violation will not furnish a basis for a recovery in an action against such father by the parents of another boy who is killed by the minor son while thus employed.</p> <p>[3] Id.—Responsibility of Master for Torts of Servant—Access to Dangerous Instrumentality.—A master is responsible for the torts of his servant only when they are committed within the scope of the employment, and not when they arise out of a private quarrel having nothing to do with the master’s business. The' fact that the injury involved the use of a dangerous instrumentality, and that it was by reason of his employment that the servant was enabled to get possession thereof, does not alter the rule.</p> <p>[4] Id.—Tort of Minor Son—Liability of Father.—A father is not liable for the tort of his minor son because he negligently placed him within reach of a loaded revolver which the son used to the injury of another.</p> <p>[5] Id.—Nonsuit—When Justified.—A court is justified in granting defendant’s motion for a nonsuit after the evidence on both sides has been heard in a case, where, if the motion had been denied and a verdict found for plaintiff, it would have been set aside as not supported by the evidence.</p> <p>3. Parent’s liability for tort of minor son where relation of master and servant exists, note, 10 L. R. A. (N. S.) 938.</p> <p>4. Liability of parent for torts of minor child, notes, 11 Ann. Cas. 367; Ann. Cas. 1912A, 585.</p>

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

<p>[1] Mechanics’ Liens—Time fob Filing—Cessation of Work.—A claim of lien by a subcontractor not filed until more than nine months after the constructive completion of the contract, there having been a complete cessation and abandonment of the work by the contractor, is not filed in time.</p> <p>[2] Id.—Failure to File Notice in Time—Action to Foreclose— Defenses.—In an action to foreclose a mechanic’s lien, the defendants are not estopped from setting up as a defense the plaintiff’s failure to file the notice of claim of lien within the statutory period, where there is no showing that they had by act or representation willfully and fraudulently led him to forego his rights of lien.</p>

<p>[1] Promissory Note—Consideration—Evidence.—In this action to recover on a promissory note, which the plaintiff claimed was indorsed and delivered to Mm prior to maturity, in due course of trade and for a valuable consideration, the evidence was sufficient to sustain the finding of the trial court that there was no consideration for the execution of the note.</p> <p>[2] Id.—Intent of Parties—Contemporaneous Contract.—Where a promissory note is given as part payment for a contract, found to be without value, not only is it necessary for the court to look to the provisions of the contract other than the provision containing the recital as to the consideration therefor in order to ascertain the true intent of the parties as expressed in the terms of their contract, but it is proper to look beyond the instrument itself in order to determine the real consideration for the payment made by the defendant, even though a consideration different than that stated in the written agreement might be discovered.</p> <p>[3] Id.—Purchase in Good Faith—Evidence—Jurisdiction of Appellate Court.—In this action to recover on a promissory note which the plaintiff claimed was indorsed and delivered to him prior to maturity, in due course of trade and for a valuable consideration, the findings of the trial court to the effect that the plaintiff did not purchase the note sued upon in good faith and in the ordinary course of business find ample support in the evidence. It is not for the appellate court to determine where the preponderance of the proof is; it need look no further into the record than to discover evidence of a substantial nature which, to a rational mind, may be deemed to support the findings in the behalf stated.</p> <p>[4] Id.—Credibility of Witnesses—Province of Trial Court—Consideration of Indirect Evidence.—In such action the trial court was the exclusive judge of the credibility of the witnesses at the trial of the action, and while the plaintiff disclaimed any knowledge impeaching the integrity of the note in suit at the time it was indorsed and delivered to him, and his testimony was corroborated by the indorser of the note, the court was not bound, under the circumstances shown by the evidence, to accept as true the testimony of the plaintiff merely because it was direct and was not directly contradicted, but was duty-bound to consider both the direct and indirect evidence bearing upon the nature of the transfer and what was in the plaintiff’s mind at the time.</p> <p>[5] Id.—Prima Facie Case—Burden of Proof.—After the plaintiff in such action had established a grima facie case, the burden was cast upon the defendant to show that the note in suit was not founded upon a sufficient consideration. Such proof having been adduced by the defendant, the burden of showing that he was an innocent holder passed to the plaintiff.</p> <p>[6] Id.—Innocent Holder—Evidence.—The indorsee of a promissory note may show that he is an innocent holder by proof that he purchased the note before maturity for value and in the usual course of business, unless the evidence shows that the note was taken under circumstances creating the presumption that he knew or should have known the facts impeaching its validity.</p>

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

PROCEEDING in Prohibition to prevent the Superior Court of Mendocino County and J. Q. White, Judge thereof, from hearing a contempt proceeding. Writ discharged. The facts are stated in the opinion of the court.

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

<p>[1] Appeal—Review of Conflicting Evidence.-—-The appellate court may not review conflicting evidence on which a given finding is based.</p> <p>[2] Findings—Agreement to Accept and Pat for Wine—-What Implied.—A finding that the purchaser, which was a company, agreed to accept certain wine and to make payment therefor at a given price per gallon implies a valid and binding agreement by the company to so purchase the wine, made by an agent authorized to act for the company.</p> <p>[3] Id.—Appeal—Facts Inferred to Support Judgment.—Whenever from the facts found by the trial court other facts may be inferred which will support the judgment, such inference will be deemed to have been made by the trial court, and upon an appeal from that judgment an appellate court will not draw from those facts any inference of fact contrary to that which may have been drawn by the trial court for the purpose of rendering its judgment.</p> <p>[4] Corporation Law—Limitation of Powers of Manager—Effect of Putting Under Direction of President.—A general limitation in the resolution passed by the directors of a company that the powers of the manager should be exercised “under the direction of the president” is not to be construed to mean that the sanction of the president to every detail of every transaction is a condition precedent to the authority of the manager to contract.</p> <p>[5] Appeal—Presumption.—The appellate court will indulge in every presumption with regard to the evidence which will support the findings of the trial court upon which the judgment is based.</p>

<p>APPEAL from a judgment of the Superior Court of Sutter County. John F. Ellison, Judge Presiding. Reversed in part; affirmed in part.</p> <p>The facts are stated in the opinion of the court.</p>

<p>HI Sales—Delivery F. O. B. Boat—Action for Breach of Contract—Evidence of Custom and Usage.—Where the contract for the sale and purchase of certain potatoes provides that said product is to be delivered f. o. b. boat, at a designated landing, but is silent concerning who is to provide the boat, in an action for breach of contract on the part of the purchaser, evidence of custom and usage is admissible to determine upon whom the burden is imposed of providing a boat upon which the produce can be loaded and to prove that f. o. b. means on the wharf ready for the boat.</p> <p>[2] Id.—Orders by Third Parties to Barge Captain—Hearsay.—In such action, orders given by a third party to the captain of a certain barge which had called at the landing on which plaintiff had delivered the potatoes were not competent to prove either what he said or did at the landing.</p>

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

<p>[1] Contracts—“Dissatisfaction Clauses”—Exercise of Bight.— The distinction is well recognized—though the line cannot always be very clearly drawn—in actions arising on “dissatisfaction clauses” of contracts that where the right involved is one which is submitted to the taste or fancy, feeling, or judgment of the party in whose favor the option is given, it may be exercised without any practical or utilitarian reason; but when it is apparent that the question of satisfaction relates to the commercial value or quality of the subject matter of the contract, it must be shown that it is deficient or defective in these respects, and that the dissatisfaction is reasonable and well founded.</p> <p>[2] Id.—General Bule—Party to be Judge—Good Faith.—Where there is nothing to justify the contrary construction, the general rule is that the party to be satisfied is the judge of his own satisfaction, subject only to the limitation in most jurisdictions that he must act in good faith; and if he does so act and is really dissatisfied, he may reject the work or the article on the ground that it is not satisfactory to him.</p> <p>[3] Id.—Personal Dissatisfaction of Buyer—Element of Values or Quality Immaterial.—Where it is clear that the purpose of an agreement to repurchase in the event the buyer should become “dissatisfied with the investment” is to submit the matter to the personal option and judgment of the purchaser, the exercise of this right is not dependent upon a failure in value of the property, or a breach of any condition of the contract. It is made a question alone of the buyer’s dissatisfaction with the “investment”—a matter which might develop into a condition of personal dissatisfaction entirely independent of values or quality.</p> <p>[4] Id.—Effect of Fulfillment of Agreement.—The fulfillment of the terms of such an agreement does not involve the loss of the vendor’s property, but amounts only to a rescission. He gets his property back and refunds the purchase money with interest.</p> <p>[5] Id.—Dissatisfaction With Investment—Pleading.—In an action by the buyer' under such a contract it is suifieient to allege that he became dissatisfied with the investment, without alleging any facts as reasons or grounds for such dissatisfaction.</p> <p>[6] Id.—Limit of Obligation to Repurchase—Time—Construction of Agreement.—An agreement to repurchase “at any time between the fifth and sixth year from the date of planting” does not limit the obligation to repurchase to the infinitesimal period between the close of the last day of the fifth year and the beginning of the first day of the sixth year, but to the period between the last of the fifth and the last • of the sixth year—or during the sixth year.</p> <p>[7] Id.—Reasonable -Construction.—It is a well-settled principle applicable to the construction of contracts that where one construction would make the contract unreasonable, unfair, unusual, and extraordinary, and another construction equally consistent with the language would make it reasonable, fair, and just, the latter construction is the one which must be adopted.</p> <p>[8] Id.—-Construction of—Surrounding Circumstances.—Where contracts are ambiguous, the circumstances surrounding and known to both parties at the time of the execution of the contract may be taken into consideration in determining the meaning intended to be conveyed.</p>

<p>[1] Negligence—Action for Damages fob Burning of Warehouse— Origin of Fire—Preponderance of Evidence—Erroneous Instruction.—In an action for damages for the burning of a "warehouse and its contents by reason of the alleged negligent act of defendant’s janitor in placing and leaving a can of hot ashes and coals against the rear end of the building, it is prejudicial error to instruct the jury that “if a preponderance of the evidence fails to satisfy you that the fire was so caused, or leaves in your mind any doubt, confusion, or uncertainty as to the origin of the fire, your verdict should be for the defendant.”</p> <p>[2] Id.—Evidence—Custom of Janitor—Rebuttal.—Where in such action the janitor had testified that he knew that he had poured water on the ashes taken up on the evening preceding the fire, and gave as a reason for his certainty that he had wet them down on this particular night, that he did it every night—in other words, that it was his invariable custom, the court committed error in excluding evidence offered to rebut the janitor’s statement that it was his invariable custom to pour water on them before depositing them in the container.</p> <p>2. Admissibility of evidence of custom on question of negligence, notes, 10 L. R. A. 366; 41 L. R. A. (N. S.) 683.</p> <p>[3] Id.—Contradiction of Own Witness—Foundation Necessary.— While, in order to discredit his own witness by showing that he had on other occasions made inconsistent statements, it is necessary that the party calling him show that he has been taken by surprise, it is not necessary that the element of surprise be shown as a condition of contradicting the witness by independent evidence as to the facts.</p> <p>3. Impeachment of own witness, notes, Ann. Cas» 1914B, 1120; 21 I>. B. A. 426.</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, except as to the one count.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Action in Quantum Meruit—Personal Services—Use op Automobile—Want op Legal Claim.—In this action to recover a given sum as the reasonable value of work and labor and compensation for the use of plaintiff’s automobile in the service of the defendant, which sum the complaint alleged was the balance due upon an open and current account between the plaintiff and the defendant, although the claim of plaintiff for back pay was one that might well have been addressed to the generosity of the defendant, plaintiff failed to show any legal claim upon the defendant either for salary or for the use of his automobile.</p> <p>[2] Id.—Use op Automobile in Dependant’s Business—Furnishing op Supplies by Defendant—Compensation.—Where the use of plaintiff’s automobile in the defendant’s business was made by plaintiff without any intention of making any charge therefor, other than the value of the gasoline, oil, and tires used in its operation which he drew from the defendant, and was therefore gratuitously given, except to the extent it might be compensated by the value of such supplies, such use cannot form a legal basis for a demand for compensation therefor.</p>

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

PROCEEDING- in Mandamus to compel the Superior Court of San Diego County, and C. N. Andrews, Judge thereof, to render judgment against a defendant who had been released from liability, other defendants having been substituted. Writ discharged. The facts are stated in the opinion of the court.

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

<p>[1] Mechanics’ Liens—Notice op Nonresponsibility—Acknowledgment op not Stjppicient.—The acknowledgment and filing for record of a copy of notice of nonresponsibility does not constitute a sufficient compliance with the requirements of section 1192 of the Code of Civil Procedure, which requires the owner to "file for record a verified copy of said notice.”</p> <p>[2] Id.—Construction op Section 1192, Code op Civil Procedure— Strict Compliance Essential.—Section 1192 of the Code of Civil Procedure, as amended in 1911, was intended to require a strict compliance with its provisions on the part of owners of property upon which work or labor was to be done or materials furnished in order to relieve themselves from responsibility for the value of the same under the provisions of chapter 2 of title TV of the Code of 'Civil Procedure, relating to the liens of mechanics, materialmen, and laborers.</p> <p>[3] Id.—“Verification”—Meaning op Term.—The term "verified” wherever used in the Code of Civil Procedure requires the oath or affidavit of the party executing the instrument in order to amount to a sufficient verification thereof.</p> <p>[4] Id.—Actual Notice op Claim op Nonresponsibility—Compliance With Statute not Waiver.—The facts that notice of nonresponsibility was posted upon the property upon which labor was performed and materials furnished and that the lien claimant had actual notice of such claim do not render the filing of such notice in the form required by the statute immaterial.</p>

<p>[1] Pleading—Sale of Sawmill and Timber—Failure to Pay—Sufficiency of Complaint.—In this action arising out of an agreement for the sale and purchase of a sawmill and certain logs and timber, for which the vendee agreed to pay within a reasonable time, the possession of which it was alleged the defendant was wrongfully and unlawfully withholding from the plaintiff, the defendant having been let into possession but not having paid any part of the purchase price, although over six months had elapsed and he had used over one hundred and fifty thousand feet of logs and timber in running the sawmill and applied the sums realized from the lumber produced for his own uses and purposes, the complaint, though somewhat inartifieially drawn, stated a cause of action, and the general demurrer was properly overruled.</p> <p>[2] Id. — Reasonable Time — Question of Fact—■ Special Circumstances—Necessity to Set Up in Answer.—The question of “reasonable time” is generally a question of fact and depends upon the circumstances of each particular case. If there are any special considerations that would tend to rebut or to controvert plaintiff’s theory that a reasonable time has elapsed, it is incumbent upon the defendant to set them up in his answer.</p>

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

<p>[1] Deposition—Insufficient Complaint—Demurrer Sustained—Refusal of Defendant to Answer Interrogatories—Power to Punish for Contempt.—The superior court has jurisdiction to adjudge a defendant guilty of contempt for his refusal to answer interrogatories in a proceeding regularly instituted by the plaintiff to take his deposition under the provisions of section 2021 of the Code of Civil Procedure, after the sustaining of a general demurrer to the complaint with leave to file an amended complaint, the time within which to file the same not having expired, and prior to the exercise by plaintiff of such right.</p> <p>[2] Id .—Bringing of Suit—What Constitutes—Right to Take Defendant’s Deposition.—The filing of the complaint constitutes the bringing of the action, and the plaintiff’s right to have the defendant’s deposition taken depends not alone upon whether it is material to issues tendered thereby, but the right thereto is equally clear if it would be material to any possible issue raised by new allegations contained in an amended complaint which the court might properly permit plaintiff to file.</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] Landlord and Tenant — Betaking of Possession by Lessor — Lease not Terminated.—Where the original lessor takes possession o£ the leased premises and relets the same under an express agreement that he is doing so for the benefit of the original lessee and his assignees and that his act in so doing and the re-letting of the premises hy him is not in any manner to relieve the lessees or any of them of liability for the rent of the premises as provided in the lease, the original lease is not thereby terminated.</p> <p>[2] Id.—Assignment of Lease—Agreement With Assignee as to Betaking—Original Lessee not Believed from Liability.—The fact that the agreement as to the terms and conditions of the lessor’s retaking of the possession of the leased premises and attempt to relet the same was made with the assignees of the lease, who were then in possession of the premises, and not with the original lessee, did not relieve the original lessee from further liability for the rent provided in the lease where under the terms of the original lease and of the assignments thereof the original lessee was expressly made liable for the whole unpaid portion of the rentals due under the original lease.</p> <p>[3] Id.—Acceptance of Possession by Lessor—Subsequent Beletting—Bight to Beooveb Loss from Original Lessee.—Where a landlord accepts the possession of rented premises from his tenant upon the understanding and agreement that he does so for the latter’s benefit and in order to relet the premises on the latter’s behalf, he has a right to recover from the tenant and from whomever else has made himself liable therefor the difference between what he has been able, in good faith, to let the property for and the amount agreed to be paid under the terms of the original lease.</p> <p>[4] Id.—Pleading—Becovery of “Bent” or “Damages.”—Where the original lessee, in an action to recover such difference, states the facts upon which he relies for a recovery, his right of recovery is not affected by the fact that he does not denominate the amount he claims to he due in the body or prayer of said complaint as rent or damages.</p>

<p>[1] Findings—Facts in Issue.—Findings should be confined to the facts in issue, the province of the court being to determine but not to raise issues.</p> <p>[2] Appeal — Unsupported Statements in Briefs. — An appellate court will not consider statements in briefs which find no support in the record on appeal.</p> <p>[3] Id.—Action fob Commissions—Conflicting Findings—Miscarriage of Justice.—In an action for the balance due on an open book account for commissions claimed by the plaintiff for making sales of land owned by the defendant a finding that the plaintiff had a written contract entitling him to thirty-five per cent of the selling price of lots conflicts with a finding that the reasonable value of the plaintiff’s services was twenty-five per cent of the selling price of the lots, but in no case in excess of the amount paid by the purchasers, and on appeal on the judgment-roll alone from a judgment based on the latter finding the appellate court cannot disregard either of these findings or say that the plaintiff is entitled to a judgment in accordance with the first of the two findings, but if the first finding is correct, judgment in accordance with the second finding constituted a miscarriage of justice.</p>

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

<p>[1] Agency—Authorization to Sell Beal Estate—Power to Bind Principal.—An instrument in writing headed “Authority to sell” and providing that a firm of real estate agents is “exclusively authorized to sell and receipt for a deposit on sale” of certain real property is not sufficient to empower the said firm to execute a contract for the sale of the property which would be binding upon the principal</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Plumas County. J. 0. Moncur, Judge. Affirmed.</p> <p>The facts are stated in People v. Peeh, ante, p. 638.</p>

<p>[1] Liens—Mortgages—Owner as Mortgagee.—A party cannot hold a mortgage on and the legal title to the same property at the same time.</p> <p>[2] Id.—Hypothecation — Title in Another.—A person cannot hypothecate property where the title is in another.</p> <p>[3] Id.—Delivery op Automobile to Vendee—Lien por Purchase Price.—Where the vendor of an automobile retains title in himself, the possession of the machine being delivered to the vendee, he does not have a lien thereon for the unpaid balance of the purchase price.</p> <p>[4] Id.—Pledge—Vendor not in Possession.—Such vendor was not secured by a pledge of said property. In order to have such security he must have been the pledgee and in possession of the property.</p> <p>[5] Attachments—Sale op Automobile—Detention op Title—Action for Purchase Price—Eight to Attachment.—The vendor of an automobile under an installment contract, the possession of the machine being delivered to the vendee, in an action for the unpaid balance of the purchase price, is entitled to a writ of attachment under subdivision 1 of section 537 of the Code of Civil Procedure, where possession of the machine is not retaken, notwithstanding that the title to the machine is retained in himself.</p> <p>[6] Id.—Construction of Attachment Statutes.—Statutes permitting and providing for the levying of attachments must be strictly construed and followed. When the law designates and specifies in what instances an attachment may issue and in what cases it is not a legal remedy, the express will of the legislature must control.</p>

<p>[1] Divorce—Granting of Alimony, Counsel Fees, and Costs— Discretion of Trial Court.—The granting of alimony, counsel fees, and costs in actions for divorce is a matter which lies largely in the discretion of the trial court, and it must be made to clearly and affirmatively appear upon the face of the entire record in the case that this discretion has been abused before the appellate tribunal will be moved to interfere.</p> <p>[2] Id.—Denial of Alimony—Appeal—Abuse of Discretion.—Upon this appeal from the portion of a judgment of divorce, on the grounds of extreme cruelty and failure to .provide, refusing to allow the plaintiff alimony, the appeal having been taken on the judgment-roll alone, the appellate court could not say from the record before it that the trial court abused its discretion.</p>

<p>[1] Mutual Benefit Society—Change of Beneficiary—Compliance With Laws.—Where the by-laws or constitution of a mutual benefit society provide a method for making a change of beneficiary, a member in making a change must follow substantially the method prescribed; and he may change his beneficiary and name a new beneficiary whenever and as often as he pleases, provided he follows the steps required by the society’s rules on the subject.</p> <p>[2] Id.—Exceptions to Bule.—The rule that a member of a mutual benefit society must follow substantially the method prescribed in the by-laws or constitution in order to make a change of beneficiary has three recognized exceptions, namely: (1) If the society has waived a strict compliance with its own rules, and in pursuance of a request of an insured to change his beneficiary, has issued a new certificate to him, the original beneficiary will not be heard to complain that the course laid down in the society’s rules was not pursued; (2) If it is beyond the power of the insured to comply literally with the regulations, a competent court will treat the change as having been legally made; (3) If the insured has pursued the course pointed out by the laws of the association, and has thus done everything devolving npon him to' change the beneficiary, but before the new certificate issues he dies, a court of equity will decree that to he done which ought to have been done, and act as though the certificate had been issued.</p> <p>[3] Id.—Loss of Policy—Noncompliance With Laws.—Where the laws of a mutual benefit society provide that a member may change beneficiaries “by making the change on the hack of the policy or a duplicate thereof,” and if the policy has been lost or destroyed, in order to obtain a duplicate he must make an affidavit for that purpose, and* that before a duplicate policy can be issued the supreme directors “must give their permission and approval to the supreme secretary to issue a duplicate policy,” and further provide that when the change of beneficiaries has been properly indorsed npon the back of the original policy the same must be filed with a designated body for approval or rejection, the filing of an affidavit showing the loss of the original policy and the making of an order that a duplicate issue does not constitute sufficient compliance with the laws of the society to entitle the desired changed ■beneficiary to recover the amount of the policy.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County revoking prohate of will. P. F. Gosbey, 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>Winfield Dorn, J. E. Rodgers, R. E. Fitzgerald and Morrison, Dunne & Brobeck for Appellants.</p>

<p>APPEAL from a judgment of the Superior Court of Imperial County. W. H. Thomas, Judge Presiding. Affirmed.</p> <p>The facts are the same as those stated in Rogers Brothers Co. et al. v. Beck et al., cmte, p. 110, [184 Pac. 515].</p>

<p>[1] Street Law—Action to Foreclose Lien—Pleading—Evidence. Judgment affirmed on the authority of Sogers Brothers Co. et al. v. Beck et al., ante, p. 110, [184 Pac. 515].</p>

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

<p>[1] Street Law—Action to Foreclose Lien—Pleading—Evidence. Judgment affirmed on the authority of Sogers Brothers Co. et al. v. Beck et al., ante, p. 110, [181 Pac. 515].</p>