Volume 44 — California Appellate Reports

<p>[l] Supersedeas—Application for Writ—Proper Forum.—An application by the defendants for a writ of supersedeas to prevent the plaintiff from taking any proceeding in execution of a certain judgment rendered in favor of the plaintiff and against the defendants, but from which the latter have taken an appeal, should be made to the court wherein the appeal is pending.</p>

<p>APPEAL from a judgment of the Superior Court of Tehama County. John P. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contracts—Rescission of Conditional Sale—Mispresentations —Conflicting ^Evidence—Finding—Appeal.—Where in an action to rescind a lease and conditional sale of an automobile, and to recover payments made, on the ground that the automobile was not new, as represented prior to the making of the contract, the evidence is conflicting, the credibility of the witnesses and the weight to be given their testimony being ,a matter resting in the discretion of the trial judge, the finding of the trial court is conclusive on appeal.</p> <p>[2] Id.—Representations bt Unauthorized Persons.—In such action it is reversible error to admit testimony relative to the statements as to the condition of the car made by persons not shown to be the agents of the defendant.</p> <p>[3] Id.—What Representations Binding on Principal.—Only those representations, declarations and admissions of an agent, respecting the subject matter of a transaction, will bind the principal which are made at the same time and constitute a part of the res gestae.</p> <p>[4] Id.—When Unauthorized Beclarations Admissible.—The unauthorized declarations or admissions of an agent, not made contemporaneously with the occurrence, or transaction to which they relate, are not competent evidence against the principal, unless they are so immediately connected with the transaction as to constitute a part thereof.</p>

<p>[1] Supersedeas—Satisfaction of Judgment—Order Setting Aside —Appeal—Stay of Proceedings.—On an appeal from an order setting aside a satisfaction of judgment, the remedy of supersedeas cannot be invoked to stay proceedings upon the judgment.</p> <p>[2] Id.—Power of Appellate Court to Stay Levy.—The appellate court is without power to stay the levy of an execution upon a judgment where there is no appeal from the judgment before them.</p> <p>[3] Id.—Proper Procedure to Stay Levy.—Where on an appeal from an order setting aside a satisfaction of judgment it is desired to stay proceedings upon the judgment, the appellants should either make an application to the court in which the action is pending for a stay of proceedings upon the judgment on the ground that the effect of the appeal is of itself to stay the operation of the order, or, if the court refuses to grant that relief, then to begin some appropriate action to enjoin the execution of the judgment upon the ground that as a matter of law the execution of the judgment has been stayed by virtue of section 949 of the Code of Civil Procedure.</p>

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

<p>PROCEEDING in Mandamus to compel the Superior Court of Sacramento County and Charles 0. Busiek, Judge thereof, to act upon and determine a motion for counsel fees and costs.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PROCEEDING in Mandamus to compel R. Y. Williams, as the Judge of the Superior Court of Orange County, to adjudge a certain person guilty of contempt for violation of an injunction.</p> <p>The facts are stated in the opinion of the court,</p>

PROCEEDING in Prohibition to prevent the entry of a final decree of divorce. The facts are stated in the opinion of the court.

<p>[1] Criminal Law—Robbery—Gist of Offense—Instructions.—In a prosecution for the crime of robbery, the giving of an instruction containing a definition of the crime constitutes a sufficient explanation of the gist of the offense.</p> <p>[2] Id.—Failure to Request Instructions.—The failure of the court to instruct the jury upon any proposition deemed essential by the defendant is not to be regarded as error, unless he made a request for such instruction.</p> <p>[3] Id.—Right to Waive Opening Argument—Refusal of Privilege of Closing.—A district attorney has the right to waive an opening argument in a criminal case; and where he does so, the court does not commit error in denying the defendant the privilege of closing the ease.</p>

<p>[1] Life Insurance—Conflicting Provisions—Construction of Policy.—Conflicting provisions in a contract of life insurance are to be strictly construed against the insurance company and in favor' of the insured.</p> <p>[2] Id.—Conflicting Provisions as to Earned Premium—Collection of Note After Maturity—Waiver of Forfeiture.—Where a note payable sixty days after date given for the first annual premium of a life insurance policy provides that if the note is not paid at maturity, the -policy and all rights secured thereby shall terminate and said policy shall become null and void, but the full amount of the premium on said policy shall be considered as the earned premium thereon, while said policy is in force, and the application for the policy provides that such part of the premium as may have been paid in cash shall be retained by the company as earned premium for the term ending with the maturity of the note—and there is paid in cash $28.03, whereas the full amount of the premium is $84.09—the two provisions are hopelessly in conflict, and if the note is not paid at maturity, the collection of the note thereafter by the insurance company waives the forfeiture.</p> <p>[3] Id.—Forfeiture Clause—Bight of Waiver.—A forfeiture provision of a contract which is solely for the benefit of the insurer may be waived by the company if it chooses to do so.</p> <p>[4] Id.—Becognition of Continued Validity of Policy—Waiver of Forfeiture Provision.—A provision in a life insurance policy that the insurance shall ipso facto cease and determine upon the default of the insured is waived if the insurance company, after knowledge of default, enters into negotiations or transactions with the assured which recognize the continued validity of the policy, and treats it as still in force.</p> <p>[5] Id.—Action on Policy—Evidence,—In this action to recover the amount of a life insurance policy, the correspondence between the insurance company and the insured, with reference to the payment of a past-due promissory note given for the first annual premium, was intended and amounted to the recognition by the insurance company of the continued force and effect of the policy, and an express waiver on the part of the insurance company of its right to treat the policy as null and void on the insured’s failure to pay the premium note when it fell due as provided therein.</p> <p>1. Buie that doubtful terms in insurance policy must be construed favorably to insured as applied to standard policy, note, Ann. Cas. 1913E, 287.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Industrial Accident Commission refusing to relieve an employer from liability.</p> <p>The facts are stated in the opinion of the court.</p>

PROCEEDING in Prohibition to restrain and prohibit the Superior Court of Glenn County and William M. Finch, Judge thereof, from hearing, proceeding with and deciding any matter in connection with a certain indictment. The facts are stated in the opinion of the court.

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

<p>[1] Negligence—Death or Member or Switching Crew—Action roR Damages—Evidence—Findings.—In this action for damages for the death of a member of a freight switching crew of the defendant railroad- company, who was killed while engaged in switching freight-cars by the method known as a running-switch or “high-hall,” the jury was clearly justified in finding that the collision between the freight-ears and the engine resulted from the negligence either of the brakeman in failing to use the brake to retard the speed of the ears or the engineer in slowing down the engine as it turned on to the side-track, or both.</p> <p>[2] Id.—Assumption or Eisk—Instructions.—In such action the jury was correctly instructed that the decedent, in assuming the ordinary risks of his employment, “only assumed the ordinary risks and dangers that might be expected by an ordinarily prudent man, without being increased or any additional hazard added thereto by reason of the negligence of the defendant or any of its employees working with him on the switch crew.”</p> <p>[3] Id.—Denial or Nonsuit—Subsequent Introduction or Omitted Evidence.—Where at the close of plaintiff’s case the evidence on a given point was so weak that a motion for nonsuit might have been well taken, but there was additional evidence from defendant’s witnesses at subsequent stages of the trial tending to strengthen plaintiff’s case in that particular, if, on the whole showing, the issue may be resolved in plaintiff’s favor, there was no error in the denial of the motion.</p> <p>2. Assumption of risk under federal Employers’ Liability Act, notes, Aim. Cas. 1915B, 481; Ann. Gas. 1917D, 922.</p> <p>Applicability of state statutes and rules of law as to assumption of risk to actions under federal Employers’ Liability Act, note, 12 A. L. E,. 701.</p> <p>[4] Id.—Evidence—Contrary Statements—Foundation for Discrediting Own Witness.—Evidence may be offered to lay the foundation to show contrary statements of one’s own witness for the purpose of discrediting his testimony, but is not admissible as evidence of the facts testified to.</p> <p>[5] Id.—Sufficiency of Foundation—Introduction of Record.—In this action for damages for the death of plaintiff’s intestate, the foundation for the admission of evidence impeaching or discrediting plaintiff’s own witness was sufficiently shown by counsel’s statement that he was taken by surprise by the testimony given by the witness on the trial, and that the former testimony as given in a purported copy of the transcript at a coroner’s inquest was all that he had to rely on. The fact that this record was not afterward offered in evidence is immaterial.</p> <p>[6] Id. — Action Under Federal Employer’s Liability Act — Contributory Negligence—Reduction of Damages.—In an action for damages for personal injuries for the death of plaintiff’s intestate brought under the federal Employers’ Liability Act of April 22, 1908, an instruction, substantially in the language of the act, directing the jury that if the decedent was guilty of contributory negligence then “such contributory negligence shall not bar a recovery herein, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee,” even though erroneous, is without prejudice where the jury finds that there was no contributory negligence.</p> <p>[7] Id.—Responsibility of Employer for Acts of Employee.—In actions in the state courts under the federal Employers’ Liability Act, those courts are bound by the rule imposing upon the employer responsibility for an injury to one employee resulting from the negligence of a fellow-employee.</p> <p>[8] Id.—Cause of Injury—Acts of Decedent—Instructions.—In this action for damages for the death of a member of a freight switching crew killed while engaged in switching cars by the method known as a running-switch or “high-ball,” the decedent himself having directed the running-switch to be made, the instruction to the jury that if they find from the evidence “that all of said acts of negligence, or any of them, have been proven and that all or either was the sole proximate cause of the accident, then you will find for the plaintiff,” would have been erroneous had there been any evidence tending to support a finding that the attempt to make the running-switch was in itself a negligent act which contributed to the injury resulting in the death.</p> <p>4. Impeachment of own witness by proof of contradictory or inconsistent statements, notes, Ann. Cas. 1914B, 1120; 21 L. R. A. 426.</p>

<p>[1] Deeds—Action to Set Aside—Weakness of Mind of Grantok— Finding—Evidence.-—In this action to set aside a deed on the ground that it was made as the result of fraud and undue influence exerted upon the grantor, and because her mind was in a weakened condition, the finding of the trial court that the mind of the grantor was in a sound, strong, and normal condition was supported by the plaintiff’s as well as the defendants’ evidence.</p>

<p>APPEAL from a judgment of the Superior Court of Kern County. Milton T. Farmer, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] 'Corporations—Tort op Corporation—Stockholders’ Liability— Statute of Limitations.—A cause of action against the stockholders of a corporation on their liability as such for a tort committed by the corporation accrues at the time of the commission of the tort, and not at the time of securing judgment against the corporation, and the time from the filing of an appeal from a judgment against the corporation to the affirmance of such judgment is not to be excluded from the time transpiring between the date of the commission of the tort and the date of said affirmance in determining whether the cause of action against the stockholders is barred by the provisions of sections 338 and 359 of the Code of Civil Procedure.</p> <p>1. Statutory liability of stockholders for debts of corporation as including liability for torts, note, 22 L. B. A. (N. S.) 256.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a motion for a change of venue. Chas. Wellborn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. J. A. Allen, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law—Offering Forged Instrument for Becokd—-Defective Certificate of Acknowledgment—Sufficiency of Indictment.—An indictment charging a defendant with offering and procuring a certain false and forged instrument which is set out in haeo verba to be recorded in the office of a county recorder of a given county states a public offense under section 115 of the Penal Code, notwithstanding the certificate of acknowledgment on the instrument omits the names of the persons appearing before the notary, where the certificate does identify the persons who made the acknowledgment as being the persons whose names are subscribed to the instrument.</p> <p>[2] Id.—Amendment of Indictment.—The trial court may allow an indictment to be amended where it can be done without prejudice to the substantial rights of the defendant.</p> <p>|3] Id.—Forgery of Certificate of Acknowledgment—Indictable Offense—Amendment of Indictment.—An indictment charging the defendant with making and forging a certain certificate of acknowledgment purporting to have been issued by a given notary public charges an indictable offense; and it is not prejudicial error to permit such an indictment to be amended to charge that the defendant made and forged the handwriting of the notary on such certificate of acknowledgment.</p> <p>[4] Id.—Ratification of Forgeries—Authority to Sign Names—Instructions.—In a prosecution for offering and procuring a certain false and forged instrument to be recorded in the office of a county recorder, an instruction that “Certain evidence has been introduced in this case from which you might infer, if you find that the defendant is guilty of the forgeries charged against her, such forgeries have been ratified. You are instructed that ratification or confirmation of such forgeries, if you find they were committed, is no defense to the charges, but such ratification and confirmation may be considered by you as a circumstance in determining whether at the time of the alleged forgeries, if you find that such forgeries were committed, the defendant had the authority to sign the names of the persons whose signatures she is accused of forging,” contains no comment on the weight of the evidence, but the condition imposed by the phrase “if you find that such forgeries were committed,” if taken literally by the jury, subjects the last sentence to contradictory interpretations.</p> <p>[6] Id.—Want of Injury—Instructions.—In such a prosecution, an instruction, “that the fact, if it be a fact, that no person suffered any injury by reason of any of the acts charged against defendant herein is not to be considered by you in arriving at your verdict as to her guilt or innocence. If you believe to a moral certainty and beyond a reasonable doubt that the prosecution in this case has proven the truth of the allegations of the indictments, you should find the defendant guilty regardless of the question whether or not any injury resulted to anyone as a consequence of her act. Therefore the question whether or not any third party suffered any pecuniary loss as a result of the defendant’s conduct is a question which should not be considered by you in your deliberations in determining her guilt or innocence,” is not a comment on the weight of evidence; neither is it contradictory or misleading.</p> <p>2. Power of court to amend indictment, note, 7 A. L. R. 1516. Constitutionality of statutes permitting the amendment of indictments, notes, 3 Ann. Cas. 558; Ann. Cas. 1913A, 402.</p> <p>[6] Id.—Demand That Defendant Produce Instruments—Misconduct of District Attorney — Admonition to Jury — Lack of Prejudice.—In such a prosecution the defendant is not prejudiced by the misconduct of the district attorney in demanding of counsel for defendant, in the presence of the jury, the production of the contracts and deeds included in the indictments and stating that apparently the contract had been returned from the recorder’s office to the defendant, where the court, after ruling that the defendant is not required to produce evidence against herself, instructs the jury to disregard the demand, and not consider the circumstance at all against the defendant as a demand not complied with, or for any other purpose.</p> <p>[7] Acknowledgment—• Defective Certificate.—-A certificate of acknowledgment which omits the names of the persons appearing before the notary is fatally defective. (Opinion of supreme court on denial of hearing.)</p> <p>[8] Criminal Law—Construction of Section 115, Penal Code.— Section 115 of the Penal Code, in providing that every person knowingly procuring or offering any false or forged instrument to be filed, etc., “which instrument, if genuine, might be filed or registered,” etc., simply seeks to cover as coming within its terms the various classes of instruments entitled under our law to be recorded without any regard whatever whether the particular instrument is defective in form or certification. (Opinion of supreme court on denial of hearing.)</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from orders denying motions for á new trial and to tax costs. Chas. Wellborn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Principal and Agent—Authority to Purchase Merchandise— Bight to Make Incidental Terms.—Where the general authority of an agent to purchase merchandise exists, the right to make all incidental terms of the purchase must be implied; otherwise the authority would not be authority to purchase at all, but merely an authorization to procure offers.</p> <p>[2] Sales—Meaning op Term “F. O. B.”—The meaning of the term “£. o. b.” is, that the seller is to put the goods on board at Ms own expense on account of the person for whom they are shipped, and the goods are at the risk of the buyer from the time they are put on board.</p> <p>[3] Id.—Delivery “F. O. B.”—Passing of Title—Presumption.— Where the contract provides that' goods are to be delivered “f. o. b.” at point of shipment, the presumption that the property is to pass then is applicable.</p> <p>[4] Id.—Implied Warranty as to Marketable Condition—Right of Rescission After Passage of Title.—Notwithstanding that title to hay sold “f. o. b.” point of shipment passes at the time the loading on the cars is completed, -the transaction might still be subject to rescission by a showing that after inspection at the point of destination the hay is determined not to have been in a marketable condition at the time of shipment.</p> <p>[5] Id.—Opportunity to Inspect—Implied Warranty Doctrine not Applicable.—Such doctrine of implied warranty as to the marketable condition of the hay is not applicable where not only was the delivery and passing of title complete at the point of shipment, but full opportunity was given for inspection at that point by the buyer and its agent, who was experienced in the matter of the handling of hay and was familiar with the hay in ques- - tion, having observed it from a time while it was growing until it was loaded at the railway station.</p> <p>3. Passing of title by delivery f. o. b., notes, 62 L. R. A. 802; - 33 L. R. A. (N. S.) 54.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a motion to vacate a default judgment. Grant Jackson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. George E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Mortgages—Foreclosure—Liability for Surplus.—A mortgagee who has purchased the mortgaged property under the decree of foreclosure is not liable for the surplus unless such surplus remains in his hands or possession.</p> <p>[2] Deeds of Trust—Sale Under—Liability of Trustees for Surplus.—Even though a trust deed may contain no provision expressly imposing upon the trustees the duty of obtaining and turning over to the trustor any surplus remaining after payment of the debt, to secure which the deed was given, and the costs and expenses of sale, it would nevertheless be their duty to do so. The trustees in such a case are trustees for the trustor as well as for the beneficiary of the trust or lender of the money.</p> <p>[3] Evidence—Indebtedness—Presumption.—There is no presumption that one party is indebted to another; and if one claims that he has loaned money to another, he must prove his claim or Remand in an action to recover the money.</p> <p>[4] Deeds of Trust—Action for Surplus—Becitals in Deed Conclusive.—In an action against the trustees under a deed of trust to recover the surplus on a sale of the trust property, the trustees are concluded by the statement in their deed to the purchaser that they received gold coin in payment, and they will not be permitted to contradict such recital by the claim that they received no cash or actual money from the sale of the property.</p> <p>1. Bight of mortgagor or owner of equity of redemption to maintain action for money had and received for surplus received by mortgagee on sale of property, note, 44 L. B. A. (N. S.) 1041.</p> <p>Bight of junior mortgagee as to surplus upon a foreclosure sale under a senior mortgage, in a proceeding to which he was not a party, note, 20 L. E. A, (N. S.) 47.</p> <p>[5] Id.—Rule as to Future Advances.—The rule with reference to future advances applicable to mortgages is applicable to trust deeds given entirely for the purpose of securing the payment of a debt or for the performance of any other act capable of being so secured.</p> <p>[6] Mortgages—Future Advances—Notice of Intervening Encumbrance.—The mortgage lien of a superior or prior mortgagee will not operate to secure optional advances made under such mortgage after such mortgagee has acquired actual notice o of an encumbrance subsequent in point of time to his mortgage so as to defeat or impair the rights of the second encumbrancer.</p> <p>[7] Id.—Rule Where Future Advances Obligatory.—If the provision in the first or prior mortgage as to future advances is mandatory in its nature and it thus becomes obligatory upon the mortgagee to make such advances, actual notice or knowledge by the senior mortgagee of a subsequent encumbrance will not have the effect of taking from him the security of his lien for advances he is compelled by his contract t'o make.</p> <p>[8] Id.—Want of Notice of Junior Mortgage—Right of Senior Mortgagee to Make Future Advances.—When a second encumbrance is put upon property already hypothecated by mortgage to secure a debt, the senior mortgagee, under a clause in his mortgage providing for optional advances, may make such advances on the security of his mortgage if he has no ^actual notice of the second encumbrance. When additional advances are so made they extend the scope of the lien, and in doing so the mortgage as to such advances constitutes a new lien or encumbrance.</p> <p>[9] Deeds of Trust—Notice of Sale Under Junior Deed of Trust —Future Advances Under Senior Deed of Trust not Secured. The assignee of a senior deed of trust which provides for future advances who takes the assignment and makes future advances after the sale_ of the trust property under a junior»deed of trust and the recordation of the trustees’ deed to the purchaser, and after her attorney has actual knowledge of such sale, cannot claim that such advances are secured by the senior deed of trust'.</p> <p>[10] Attorney and Client—Agency—Notice.—An attorney at law, when acting as such for his client, is an agent, and the rule that notice to an agent is constructive notice t'o the principal is applicable to an attorney or counsel when acting for another in a particular matter or generally in the affairs of the latter.</p> <p>5. What amounts to a mortgage for future advances, note, 1 A. L. R. 1586.</p> <p>Priority of mortgage to secure future advances over subsequent encumbrance, note, Ann. Cas. 1913C, 555; over mechanics’ liens, note, 5 A. L. 35. 398.</p>

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

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

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

<p>APPEAL from a judgment of the Superior Court of Lassen County. J. 0. Honour, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Merced County. E. N. Rector, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Defenses—Evidence—Finding—Verdict.—In an action for damages for death based on negligence, if there is substantial evidence sustaining the defendant’s plea of contributory negligence, or its denial of any negligence on its part proximately causing the injury, the judgment in its favor must be affirmed, as a finding by the jury in favor of the defendant on either would necessarily result in a verdict for it.</p> <p>[2] Id.—Automobile Accident—Negligence of Driver—Evidence— Finding.—In this action for damages for the death of an automobile passenger as the result of coming in contact with a power wire of the defendant company, following a collision between the automobile and one of the poles supporting such wire, from the evidence the jury might well have drawn the conclusion that the driver of the automobile was driving in a very careless and reckless manner, and that it was negligence to drive a car over a wet and oil-surfaced road that he had not traveled before, when it was dark, and had been raining to some extent, part of the time with insufficient lights and, at the time of the accident, without any lights whatever.</p> <p>[3] Id.—Responsibility op Passenger.—While an. automobile passenger cannot be held responsible for the negligence of the driver, unless he has some control over him and his conduct, he is responsible for his own negligence and is bound to use due care to keep himself free from injury,</p> <p>[4] Id.—Failure op Passenger to Take Precautions.—Where there was evidence that the deceased knew that the driver of the automobile was driving the car over an unknown road, in the dark, at a rate of speed of eighteen to twenty miles per hour, and without adequate and, at some points, without any lights, the jury might well have concluded that it was negligence for the deceased to have not taken some precaution for his own safety in requesting the driver to lessen his speed, or to stop and permit him to remove himself from the car, and having so concluded, they would have been justified in concluding that the accident was the result of negligence properly attributable to the deceased.</p> <p>[5] Id.—Erection op Poles Along Highway—Duty op Power Company.—A power company, in building its power line along the edge of a public highway, owes a duty to the public to build it of such construction and in such manner that it will not be a menace to those who have occasion to travel the highway. It is its duty to anticipate such uses of the road as will probably occur, and to provide against accidents from its poles from such causes as might reasonably be anticipated.</p> <p>3. Negligence of driver of automobile as imputable to occupant or guest, notes, 19 Ann. Cas. 1225; Ann. Cas. 1913B, 684; Ann. Gas. 1915B, 769; Ann. Cas. 1916E, 268; Ann. Cas. 191SB, 841; Ann. Cas. 19180, 961; L. R. A. 1915B, 953.</p> <p>5. Liability of electric company for injury or death of traveler coming in contact with electric wire in highway, notes, 4 Ann. Cas. 709; Ann. Cas. 1913D, 912; 31 L. R. A. 566; 22 L. R. A. (N. S.) 1169.</p>

<p>MOTION to dismiss an appeal because of delay in filing transcript.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Appeal—Denial op Motion por Change op Venue—Order not Beviewable on Appeal prom Judgment.—Alleged error of the trial court in denying a motion for. a change of place of trial cannot be considered on an appeal from the judgment alone. Section 963 of the Code of Civil Procedure makes such an order separately appealable.</p> <p>[2] Id.—Alternative Method — Matters Beviewable — Notice op Appeal.—Under the alternative method a party may appeal from a judgment or an order, but the provisions of the sections do not dispense with the necessity for the notice of appeal to separately state whether the appeal is taken from the judgment, or some order, or both.</p> <p>[3] Contracts—Farming op Land—Breach op Agreement to Install Pumping Plant—Time por Installation—Evidence.— In this action for damages for breach of a contract by the terms of which the plaintiff was to farm certain lands and the defendant, among other things, was to install a pumping plant to furnish water to be used on the land within a reasonable time, it was not prejudicial error to admit testimony of an oral agreement that the plant was to be in a condition to furnish water by a given date, where the evidence showed that the defendant did take a reasonable time in exerting himself to procure a supply of water and failed in the attempt, and, when the crops were drying up for the want of water, advised plaintiff that because of “bad luck” he would be unable to prosecute further work in that direction.</p> <p>[4] Id.—Notice of Inability to Perform—Right to Make Immediate Claim for Damage Suffered.—When defendant notified plaintiff that the pumping plant and well had failed to be successful and that for lack of money he would be unable to do anything more toward fidfilling his obligation to procure water with which plaintiff might irrigate the crops, plaintiff was relieved from the necessity of making further demand upon him or of allowing any further time to elapse before exercising his right t'o make claim for damages suffered.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order refusing to vacate and set aside the judgment and enter a judgment in favor of the defendant. Leslie R Hewitt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. Everett J. Brown, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County. W. A. Sloane, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Orange County, denying a motion to set aside a judgment. W. H. Thomas, Judge.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Appeal—Conflicting Testimony—When Important.—While the appellate court has no concern with any attempt to reconcile conflicting testimony, such a condition of the case becomes important' in considering objections urged to the introduction of testimony, rulings as to which are assigned as errors of the court arising during the course of the trial.</p> <p>[2] Criminal Law—Uttering Fictitious Check—Evidence of Like Transactions.—In a prosecution for feloniously and fraudulently making and passing a check drawn upon a certain bank without having money or credit at that bank with which to meet the demandj testimony of like fraudulent transactions may be shown against the defendant so aeensed in order to illustrate the intent with which the particular act was committed.</p> <p>[3] Id.—Reason for Refusal to Pay Checks—Insufficient Proof ■—Testimony Inadmissible.—In such a prosecution, testimony of prior transactions involving cheeks of the defendant which were not paid by the bank drawn upon if not completed by a showing as t'o why the cheeks were not paid by the bank, should be withdrawn from the consideration of the jury and stricken from the record.</p> <p>3. Admissibility in criminal prosecution of evidence to prove other crime as affected by degree or sufficiency of the evidence, note, 3 A. It. B. 784.</p>

PROCEEDING in Habeas Corpus to secure the release of persons imprisoned in the city jail pending examination as to their being afflicted with a quarantinable disease. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.</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. Frank J. Murasky, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County. T. A. Norton, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Attorney at Law—Disbarment Proceedings—Findings.—Conceding that findings are not necessary in a proceeding for the disbarment of an attorney at law, nevertheless it is a practice not to be commended.</p> <p>[2] Id.—Assignment op Claim—Bight op Debtor to Deal With Assignor.—An assignment of a claim, though made for collection only, passes the legal title to the assignee, and after notice thereof the debtors deal with the assignor at their peril.</p> <p>[3] Id.—Compromise op Claim by Assignor—Bight op Attorney por Assignee to Bepudiate.—Where the assignor of a claim, after the assignee has recovered judgment thereon, compromises the same without the knowledge or consent of the assignee, the attorney for the latter can repudiate thé act of the assignor in giving a receipt in full to the judgment debtor upon the payment by him of a sum less than the amount of t'he judgment, and thereafter proceed to collect the full amount of the judgment.</p> <p>[4] Id.—Unwarranted Disbarment—Moral Turpitude—Errors op Judgment.—In this proceeding for the disbarment of an attorney at law, the record fails to disclose any deception on the part of the attorney, or that he acted through corrupt motives or otherwise violated the provisions of section 282 of the Code of Civil Procedure. Moral turpitude cannot be predicated upon errors of judgment as to the law, or action had and taken in good faith by an attorney, openly and with notice to the adverse party under an honest assertion of legal right, where there is no deception or unfair advantage sought.</p> <p>4. Necessity for bad faith or fraudulent motive to justify disbarment of attorney, note, 18 L. B. A. 401.</p>

<p>[1] Mandamus—Application Pending in Lower Court—Dismissal op Application to Appellate Court.—An application to the district court of appeal for a writ of mandate will be dismissed where a similar application for the same purpose has been made previously in the superior court, and is still pending.</p> <p>[2] Id.—Identity op Subject Matter—Change op Nominal Petitioner Immaterial.—In such proceeding it is of no consequence that in the district court of appeal one party is made a petitioner who does not expressly appear in the superior court, where the application is made for the same purpose and involves exactly the same remedy, the subject matter being essentially the same.</p>

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

<p>[1] Juvenile Court Law—Violation of Section 21—Evidence.— In this prosecution for a violation of section 21 of the juvenile court law, the testimony of the complaining witness, while such as might be expected to have been given by a person of immature and feeble intellect, was not so inherently improbable as to justify the reversal of the ease upon that ground by the appellate court, the jury who saw her and heard her story having believed her and rendered their verdict accordingly.</p> <p>[2] Id.—Sufficiency of Instruction.—In a prosecution for a violation of section 21 of the juvenile court law, an instruction which, after stating that the defendant is charged with a violation of said section, quotes such section in full, and also quotes the portion of section 1 of that law contained in subdivision 11 thereof, which provides that the law shall be given application to any person under the age of twenty-one years “who is leading, or from any cause is in danger of leading, an idle, dissolute or immoral life,” is sufficient to inform the jury that if they find the defendant committed the acts with which he stands charged in the information, he should be found guilty of a violation of said provisions of the law.</p>

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

PROCEEDING in Mandamus to compel the Superior Court of Los Angeles County, and Charles Wellborn, Judge thereof, to enter judgment that defendant be committed to jail. The facts are stated in the opinion of the court.

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

<p>HI Corporations—Legality as Formation—Effect of Failure to Issue Stock Certificates.—Where persons desiring to organize a corporation execute articles of incorporation in proper form and file the same with the county clerk and with the Secretary of State, and, upon the issuance of the certificate by the Secretary of State, meet and elect themselves a board of directors and proceed to organize and do business, a corporation is regularly and legally formed, notwithstanding certificates of stock are not issued and no officers or directors are ever elected by stock representation.</p> <p>[2] Id.—Contents of Articles—Notice.—Persons dealing with corporations are bound to take notice of the contents of the articles of incorporation which are regularly filed.</p> <p>[3] Id. — Unsatisfied Judgment Against Corporation — Several Liability of Incorporations.—The mere fact that after obtaining judgment against the corporation the plaintiff, who had sold-goods to the corporation, failed to discover assets sufficient to satisfy it's claim, is not sufficient reason why a personal and several liability for the full amount of the debt should be enforced against the individual incorporators.</p> <p>1. At what stage in proceedings corporation is deemed to be organized, note, 18 L. E. A. (N. S.) 748.</p> <p>3. Personal liability of stockholders for corporate obligations under statute, note, 2 Ann. Cas. 30.</p>

<p>[1] Pleading—Action fob Damages fob Personal Injuries— Amendment of Complaint—Correction of Name of Plaintiff.— In an action for damages for personal injuries there is no abuse of discretion on the part of the court in permitting the plaintiff to file an amendment to her complaint, substituting for the name “Mary Neff,” as plaintiff in the title of the original complaint, that of “Mary Marton,” which is her true name.</p> <p>[2] Id.—Married Woman Living Separate from Husband—Eight to Sue Alone — Immaterial Finding. — In such action a finding that plaintiff was the wife of a given person, from whom, by reason of his deserting her, she was living separate and apart, though not within the issues and without support of evidence, is immaterial and without prejudice. Under the provisions of section 370 of the Code of Civil Procedure, a married woman, though living with her husband, is entitled to sue for damages due to personal injuries sustained, without joining her husband as plaintiff.</p> <p>[3] Negligence—Maintenance of Fence Contrary to Ordinance— Injury to Pedestrian—Fall Caused by Pebble on Sidewalk— Proximate Cause of Injury.—The fact that plaintiff would not have been injured but for the existence upon the sidewalk of a pebble which caused her to fall, striking a sharp-pointed projection of a barbed-wire fence constructed by defendant around his premises, contrary to a city ordinance, would not relieve defendant from liability where the consequence ought to have been anticipated as a probable result of his negligent act.</p> <p>3. Proximate cause and intervening condition, note, 1 Ann. Cas. 230.</p> <p>[4] Id.—Presence of Foreign Substances upon Sidewalk — Duty ■ of Defendant to Anticipate Consequences.—To find fruit peel, leaves and twigs from overhanging trees, pebbles, and other foreign substances upon sidewalks is a matter of common experience, and that such a condition might cause a pedestrian, to slip or fall, in which event he probably would be injured by the barbed-wire fence constructed adjoining the sidewalk, contrary to the city ordinance, was a consequence which defendant should have anticipated as likely to result from his negligent act.</p>

<p>[1] Appeal—Absence of Bill of Exceptions—Evidence—Presumptions.—Where an appeal is taken on the judgment-roll alone, the appellate court must assume that the evidence presented in support of the findings of the trial court was competent to establish the facts alleged, that it was received without objection, and that it was sufficient to sustain each of the fact's found.</p> <p>[2] Waters and Water Bights—Natural Flow of Surface Waters -—Easement.—Where two parcels of land belonging to different owners are adjacent to each other, and one is lower than the other, and the surface water from the higher tract has been accustomed by a natural flow to pass over the lower tract, the owner of such upper tract of land has an easement to have the water flow over the land below, and the lower tract is charged with a corresponding servitude.</p> <p>[3] Id.—Burden of Beceiving Surface Waters.—Every land owner must bear the burden of receiving on his land the surface water naturally falling upon land above it, and naturally flowing t'o it therefrom.</p> <p>[4] Id.—Diversion of Surface Waters—Bight of Upper Owner Limited.—The owner of the higher land has no right, for his own relief, either to divert surface or storm waters from his lands on to the lands of another, over which they would not naturally have flowed, nor has he the right by accumulating the surface waters upon his own lands, in ditches, or other like artificial channels, to precipitate them upon his neighbor’s land in larger quantities, or in a different form from that which they would have taken in the course of nature.</p> <p>[5] Id.—Confining Water to One Channel—Bights of Lower Owner not Invaded.—When the owners of the upper tract, in a reasonable manner, and for the purpose of cultivation, and improvement of their own land, confine the surface, or flood waters, flowing down upon their tract, through natural courses, into one channel, and carry the same in substantially the same channel in which the water flowed naturally across their land, without increasing the volume of water therein, they work no invasion of the rights of the lower owner. The burden on his property is not increased thereby.</p> <p>2. Prescriptive rights as to flow of surface water, note, 21 L. B. A. 607.</p> <p>[6] Id.—Method Employed in Discharging Water Immaterial.— The right to discharge surface, or. flood waters, upon the land of the lower owner has nothing to do with the particular method employed by the owner of the upper tract in discharging the water, so long as it in no way imposes an additional burden on the lower owner.</p>

<p>APPEAL from a judgment of the Superior Court of Placer County. J. E. Prewett, Judge.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Deeds of Trust—Execution by Husband and Wife on Homestead Property—Sale by Trustee—Title Conveyed.—A deed made by a trustee in pursuance of the power of sale contained in a deed of trust executed by both husband and wife conveys the absolute title to the property as against a homestead declared upon the property by the wife prior to the execution of the deed of trust.</p> <p>1. Sales and conveyances by trustees, note, 19 Am. St. Eep. 266.</p> <p>[2] Id.—Title Conveyed by Trust Deed—Termination of Trust.— A deed of trust transfers for the purpose of the trust all possible claims of the trustors in the property conveyed, including a claim of homestead, and vests in the trustee the absolute legal title to the entire estate held by the trustors at the time of the execution of the trust deed, and that title must remain in the trustee for. that purpose until the trust is either expressly executed through a sale upon default in the payment of the debt secured by the deed of trust, or is terminated by the payment of such debt or other method provided by law.</p> <p>[3] Id.—Time of Declaration of Homestead Immaterial.—In such a case it is immaterial whether the declaration of homestead was made prior or subsequent to the execution of the deed of trust by the husband and wife.</p> <p>[4] Pleading—Reopening of Case After Judgment Ordered—-Piling of Supplemental Answer — Discretion — Appeal.—In the absence of a showing of an abuse of discretion, the action of the trial court in allowing a ease to be reopened in order to permit the defendants to file a supplemental answer after the court had ordered judgment for the defendants will not be disturbed on appeal.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County. S. E. Crow, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[l] Action for Reasonable Value of Work and Materials—Amount Due—Evidence—Finding.—In this action to recover the reasonable value of work and labor done and materials furnished at.the defendant’s special instance and request, the evidence was insufficient to support the finding of the trial court as to the amount of defendant’s indebtedness to plaintiff.</p>

<p>HI Public Utility District—Election of Directors—-Injunction to Restrain.—An injunction will not lie to restrain a board of supervisors from calling an election to elect directors of a proposed public utility district organized pursuant to the provisions of the act of May 27, 1915 (Stats. 1915, p. 866), the creation of which district has already been declared by the board of supervisors and by the Secretary of State.</p> <p>[2] Id.—Irrigation District not Municipal Corporation—Division of Permissible.—An irrigation district organized under the laws of the state of California is not a municipal corporation; and the fact that all of such a district is not included within a proposed public utility district does not affect the legality of the organization of the latter district,</p> <p>[3] Id.—Boundaries of District—Description bt Reference.— Under the act of the legislature, approved May 27, 1915, providing for the incorporation of public utility districts by municipalities and unincorporated territory, it is sufficient to describe the district as comprising all the territory embraced within the boundaries of certain existing irrigation districts theretofore organized under other similar acts, including the municipalities therein contained, without describing the boundaries of the proposed public utility district by metes and bounds.</p> <p>[4] Id.—Contiguity of Territory—Severance by River.—The fact that two described pieces of unincorporated territory are severed by a river and that the river-bed is not included in the district does not affect the legality of the formation of a public utility district organized pursuant to the provisions of the act of the legislature approved May 27, 1915. It may consist of different and separate pieces of unincorporated territory.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. William H. Waste, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial. A. F. St. Sure, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Certiorari to review the judgment and order of the Superior Court of Trinity County removing the district attorney from office for willful misconduct. W. M. Finch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Bernardino County. H. T. Dewhirst, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Estates op Deceased Persons—Agreement to Devise Beal Property—Action on Bejected Claim—Evidence op Oral Agreement Inadmissible.—In an action on a rejected claim for services rendered by the claimant under and by virtue of an agreement with deceased, whereby the latter agreed to make a ■ will devising certain real property to the former, evidence tending to prove that deceased in her lifetime orally agreed with plaintiff, for the consideration named, to make a will devising to her the real property is properly rejected. Under subdivision 7 of section 1624 of the Civil Code, such an agreement is invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by deceased.</p> <p>[2] Id.—Seasonable Value op Services—Evidence not Admissible. In such action, the claim as presented and rejected having stated that the services were rendered under and by virtue of an agreement with deceased, whereby the latter agreed to devise certain real property, the court did not err in rejecting evidence tending to show the reasonable value of the services rendered.</p> <p>1. Validity of oral agreement to devise land, notes, 5 Ann. Cas. 495; 20 Ann. Cas. 1137; Ann. Cas. 1915A, 463; Ann. Cas. 1918A, 1191.</p> <p>[3] Id.—Action on Bejected Claim—Bestricted Bight op Becovery.—The holder of a claim against an estate cannot bring action therefor until it has been presented and rejected, and then in such action his right to recover is restricted to the cause of action stated in the claim which has been so presented and rejected.</p> <p>[4] Nonsuit—Grounds—Necessity por Statement op.—A party-moving for a nonsuit should state in his motion the precise grounds upon which he relies, so that the attention of the court and the opposite counsel may be particularly directed to the supposed defects in plaintiff’s ease.</p> <p>[6] Id.—Omission to State Grounds op Motion—When not Beversible Error.—Omission to state the grounds upon which a motion for a nonsuit is predicated is not sufficient ground for the reversal of the judgment rendered upon the granting of the motion, where the complaint is silent as to facts under which any evidence was admissible and not susceptible of an amendment which could warrant a recovery by plaintiff.</p>

<p>[1] Mechanics’ Liens—Action for Foreclosure—Fatal Variance Between Claim and Proof—Finding—Evidence—Appeal.—On an appeal from a judgment in favor of the defendant in an action for the foreclosure of mechanics’ liens, where neither the claims of liens nor the evidence offered in support thereof are before the appellate court, the finding of the trial court that there is a fatal variance between the statements in the claims and the proof is conclusive.</p> <p>[2] Id.—Untrue Statement of Contract.—A variance between the notice of lien and the proof, showing that the statement of the contract set forth in the notice is untrue, is fatal to the lien.</p> <p>[3] Id.—Notice of Nonresponsibility — Time for Filing.—Under section 1192 of the Code of Civil Procedure, as amended in 1911, the owner is relieved of personal responsibility for improvements by filing a notice of nonresponsibility within the time limited after knowledge of the actual improvements.</p>

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

<p>[1] Appeal—Order Denying New Trial.—As an order denying a motion for a new trial is not the subject of a separate appeal, an appeal from such an order will be dismissed.</p> <p>[2] Negligence — Collision at Street Intersection — Violation op Traffic Bule—Pleading.—In this action for damages for personal injuries sustained by the plaintiff as the result of a collision at a street intersection of a motorcycle upon which he was riding with an automobile driven by the defendant, the principal negligence complained of having been that defendant failed to observe the requirement of the law that he should yield the right of way to the plaintiff, who was in the act of crossing the intersection from the right of the defendant, as required by subdivision (e) of section 20 of the Motor Vehicle Act, the complaint was sufficient in that it did in fairly appropriate language show the fact that both parties were at the point of intersection of the streets and about to cross the same, and contained a general allegation that the defendant, “disregarding the rights of the plaintiff and his right of way at said crossing, did wrongfully, carelessly, and willfully drive his said automobile on to and over the said crossing while plaintiff was crossing the same.”</p> <p>[3] Id.—Belative Position op Parties — Conflicting Testimony — Finding—Appeal.—In such an action, even though there is much evidence, amply corroborated, tending to show that the relative position of plaintiff’s motorcycle and defendant’s automobile immediately before the accident was not as testified to by plaintiff, and the plaintiff’s testimony in that regard stands practically alone, unless the admitted and uneontradicted facts are sufficient to show that the plaintiff’s testimony could not be true, the decision of the trial judge upon the disputed point is final and conclusive.</p> <p>[4] Id.—Conflicting Testimony—Credibility of Witnesses—Finding of Trial Court—Appellate Beview.—In considering the sufficiency of the testimony wherever a conflict is shown, it is the appellate court’s duty to accept the finding of the trial court upon disputed points.</p> <p>2. Bights and duties of automobile drivers with reference to motorcycles, note, Ann. Cas. 1916E, 676.</p> <p>Liability for collision between automobile and another vehicle at or near corner of streets or highways, notes, Ann. Cas. 1917A, 221; L. E. A. 1916A, 745.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County; also appeal from an order denying a motion to set aside an order striking out a cost bill. Fred H. Taft, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Parent and Child—Liability or Father to Support Illegitimate Child.—An action may be brought to compel the father of an illegitimate child to contribute to its support, notwithstanding the child was conceived and born before the enactment of section 196a of the Civil Code.</p> <p>[2] Id.—Pleading—Parties—Eight or Action by Mother in Own Name.—Under section 196a of the Civil Code, the mother of an illegitimate child may bring an action in her own name on behalf of the child to compel the father to contribute to its support.</p> <p>[3] Id.—Minority or Father Immaterial.—The fact that the father of an illegitimate child is a minor does not relieve him from liability for the child’s support.</p>

<p>[1] Appeal—Notice of Denial of Motion for New Trial—Presence in Court not Sufficient.—The mere presence of a party-in court on the hearing at which a motion for a new trial is denied is not sufficient to constitute notice of decision so as to start the time running for the filing with the clerk of a notice requesting a transcript, to be used on appeal, as required by section 953a of the Code of Civil Procedure.</p> <p>[2] Default—Motion to Vacate—Hearing After One Tear—Presumption of Regularity.—Where a motion under section 473 of the Code of Civil Procedure to set aside a default judgment, after service by publication, is noticed and presented to the court within one year, the fact that it is continued to a date after the expiration of one year does not deprive the court of jurisdiction to act; and the presumption of regularity in the court’s proceeding is not overcome by the mere fact that the minutes recite that a motion to set aside the default was made on the latter date.</p> <p>[3] Parties—-Want of Appearance — Jurisdiction to Give Judgment.—Where, in an action to quiet title to certain real property, no pleading is filed on behalf of a given defendant, the court is without jurisdiction to give a judgment establishing her title to the property.</p> <p>[4] Tax Sales—Omission of Amount of Assessment—Certificate of Sale and Deed Void.—A certificate of sale and deed to the state under a sale for delinquent taxes are fatally defective where neither contains a statement of the amount of the assessment under which the sale was made, as required by sections 3776 and 3785, respectively, of the Political Code.</p>

<p>[1] Promissory Notes—Possession by Agents—Ownership—Evidence.—Where a note made payable to the maker and by him indorsed in blank comes into the possession of certain persons in their capacity as agents, their possession of it is the possession of their principal, and in a subsequent action by them to recover thereon, their ownership thereof being denied, it is incumbent upon them to make further showing of a transfer of title to themselves than their mere possession.</p> <p>[2] Id. — Presumption oe Ownership — Bebuttal.—'Possession of property alone without explanation is evidence of ownership; but it is the lowest species of evidence. It is merely presumptive, and liable to be overcome by any evidence showing the character of the possession, and that it is not necessarily as owner. If the custody and possession is shown to be equally consistent with an outstanding ownership in a third person as with a title in the one having possession, no presumption of ownership arises solely from such possession.</p> <p>[3] Id.—Action to Cancel—Parties—Erroneous Judgment.—In an action involving the validity of a promissory note, if the owner of the note is not made a party to the action, a judgment direct-' ing the cancellation of the note cannot be sustained.</p> <p>2. Possession as evidence of title, note, 60 Am. Dec. 602.</p>

<p>[1] Quieting Title—Action by Wife Against Husband—Conditions on Which Defendant Acquired Interest—Conflicting Evidence—Findings—Appeal.—Where, in an action by a wife against her husband to establish her title to certain real property purchased with her separate funds, there is a direct conflict in the evidence as to the conditions on which the defendant acquired his apparent interest as a cotenant with plaintiff, the appellate court will not disturb the findings of the trial court.</p> <p>[2] Id.—Credibility of Witnesses—Rule of Evidence Directed to Trial ‘Court—Appeal—Píresumption.—In such a ease, it must be presumed that in reaching its conclusion the trial court was governed by the rule that in order to establish fraud and undue influence to defeat conveyances of title the evidence must be clear and convincing; and where the conclusion of the trial court is supported by testimony that is clear and convincing in itself, the fact that it is disputed by rebutting testimony does not entitle the appellate court to substitute its judgment for that of the trial court in determining the credibility of the conflicting witnesses.</p> <p>[3] Trusts—Conveyance by Wife to Husband—Promise of Reconveyance.—A trust estate is created in behalf of a wife where she deeds an interest in her separate property to her husband or permits him to take in his name an interest in property when it is purchased with her separate funds, and the transaction is had without consideration to the wife, at his solicitation, on his representation that he only desires to hold an interest of record for the sake of his business and social credit, and that he will reconvey to her at any time .she desires, and where the consent of the wife is induced by these representations and she parts with her title in reliance upon them, and they are made to her in bad faith and with intent to withhold the property from her.</p> <p>[4] Pleading—Complaint to Quiet Title—Amendment to Enforce Trust.—In an action begun under an ordinary complaint to quiet title it is not error to permit the plaintiff, pending the trial, to file an amended complaint setting up the facts relied upon to defeat the defendant’s claim of title and establishing the trust in plaintiff’s behalf, and praying that such trust be declared and a reconveyance of the premises to plaintiff decreed.</p> <p>3. Resulting trust as arising where wife’s money is used by husband for purchase in his name, notes, Ann. Cas. 1915D, 625, 643; Ann. Cas. 1918E, 900; 6 D. R. A. (H. ¡3.) 381; 26 L. R. A. (N. S.) 161.</p> <p>[5] Id.—When Amendment Proper—Discretion op Trial Court.— So long as the action as set out in the amendment is not entirely foreign to the original form of the action, and the relief sought arises on the same general state of facts, such amendment is proper and within the discretion of the trial court.</p>

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

<p>[1] Leases—-Bight of Purchaser to Demand Possession—Seasonable Exercise of Option.—In this action to recover possession of certain farming land held by defendant under a lease which provided, in effect, that if the land was sold before expiration of the lease, the purchaser should have the option to take possession within a reasonable time after his purchase, the property having been purchased by plaintiff during the latter part of January, a demand by him for possession made during the early part of April was, in view of the knowledge of defendant with reference to the purchase by plaintiff and the small amount of work done by defendant in preparation for the coming season, within a reasonable time.</p>

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

<p>[i] Actions fob Services Bendered and Moneys Advanced—Findings—Judgment—Evidence.—In these actions, one for the reasonable value of services rendered and for moneys advanced and the other for the reasonable value of services rendered, the evidence was sufficient to support the findings and judgments in favor of the plaintiffs.</p>

<p>APPEAL from a judgment of the Superior Court of Riverside County. Hugh H. Craig, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence — Sudden Peril — Erroneous Judgment—Liability fob Damage.—Where appalling circumstances of imminent danger or peril so suddenly and unexpectedly confront a person of ordinarily cool and calm temperament and judgment that he for the time loses his presence of mind or so finds himself in a position in which he is required to make up his mind as to the best or safest course to adopt to avoid the disaster which such circumstances threaten commensurately with the suddenness with which they arise, and damage or injury directly results from the exercise of an erroneous judgment in attempting to meet or overcome the peril of such circumstances, such person will not be held actionably responsible or liable for any injury or damage so caused.</p> <p>[2] Id.—Violation of Bule of Bo ad—BeqUirement That Due Cabe be Exercised.—While one who violates the law of .the road by driving on the wrong side thereof assumes the risk of such an experiment and is required to use greater care than if he had kept on the right side of the road, the rule requiring drivers on highways to keep to the right when meeting other vehicles, or in overtaking another vehicle, whether statutory, of common-law origin, or contained in a municipal ordinance, is not a hard-and-fast rule to be adhered to under all circumstances. Circumstances may confront a person,- and often do, when care would require him to avoid or relinquish the side of the highway to which he would otherwise be entitled. In such ease he would be required to exercise such due care, and, if he failed to do so, he would be liable for negligence, even though he had placed himself upon the side to which he would ordinarily be entitled.</p> <p>[3] Ib.—Prima Facie Evidence of Negligence—Bebuttal.—The fact that the driver of a vehicle has taken the wrong side of the highway when meeting or in overtaking another where damage occurs is not conclusive, but only prima facie evidence of negligence, which may either stand as proof of the fact or be overcome or rebutted by the circumstances of the particular case.</p> <p>[4] Ib.—Automobile Collision — Determination of Jury Conclusive.—In this action for damages for personal injuries sustained as the result of a collision between two automobiles on the state highway, the question whether the defendant was negligent in entering upon the state highway and in turning to his left upon said highway on observing the approach of the plaintiff’s machine toward the point at which he entered upon the highway was peculiarly one for the determination of the jury, and its verdict, so far as that question was concerned, was conclusive upon the appellate court.</p> <p>1. “Emergency rule’’ as applied to automobile drivers, note, 6 A. L. B. 680.</p> <p>2. Violation of statute or ordinance regulating movement of vehicles as affecting violator’s right to recover for negligence, note, 12 A. L. B. 458.</p> <p>[5] to.—Last Olear Opportunity — Question tor Jury.—The doctrine of the “last clear opportunity” proceeds upon the assumption or the concession that the party invoking it was himself guilty of negligence, but that the negligence of the other party was the proximate and efficient cause of the damage, because, having a clear opportunity of avoiding the accident or collision by the exercise of reasonable or ordinary care, his conduct, therefore, amounts to a willful, reckless, and wanton disregard of the duty which the circumstances of this ease cast upon him; and whether it did in fact apply in this ease and whether the defendant did or did not do all that he could reasonably have been expected to do to avoid the collision were solely for the jury’s determination.</p> <p>[6] Id.—Preponderance ot Evidence — Incorrect Instruction.—In this action, an instruction, reading in part: “By the preponderance of evidence is meant greater and superior weight of evidence which satisfies your mind. By a preponderance of evidence is not necessarily meant a greater number of witnesses, but if the plaintiff has proven the material allegations of Ms complaint by such evidence as satisfies and produces conviction in the minds of the jury, then he may be said to have proven his case by a preponderance of evidence. When you are satisfied that the truth lies with a single witness or with any number, you are justified in returMng a verdict in accordance therewith. TMs is what is meant by a preponderance of proof. It is that character or measure of evidence which carries conviction to your minds,” fell short of stating correctly the rule as to the preponderance of evidence which applies in civil cases, as that rule does not mean that the evidence shall be such as to satisfy and produce conviction in the minds of the jury, but means such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests, but a review of the entire record, including the evidence, precluded the appellate court from declaring that a miscarriage of justice resulted therefrom.</p> <p>[7] Id.—Traveling at Excessive Speed — Instructed Verdict not Error.'—In such action it was not erroneous to instruct the jury ■that if they found that the plaintiff was driving Ms macMne as he was approaching the intersection at a greater rate oí speed than ten miles per hour, and that a collision occurred between the plaintiff’s and the defendant’s machines, and that the defendant was not guilty of contributory negligence at the time of the collision, it would be their duty to find for the defendant, not only on the complaint of the plaintiff, but also upon the cross-complaint of the defendant, for such damages as the evidence might show that the defendant had sustained by reason of such collision.</p> <p>6. Preponderance of evidence as determined by mere number of witnesses, note, Ann. Cas. 1913D, 676.</p> <p>[8] Id.—Construction of Instructions — Isolated Passages not Severable.—A court, in charging a jury, is not required to state the case hypothetically in any one instruction or embrace therein all the conditions or qualifications necessary to a correct statement of the law governing all the evidential features of the case. The instructions must be considered in their entirety, and if, as so considered, they state the law of the ease fairly and clearly, then they are, as a whole, unobjectionable, even though, by selecting isolated passages from single instructions, they may in some respects be amenable to just criticism.</p> <p>[9] Id.—Eight of Wat to Operator on Eight—Proper Instruction. An instruction that “While the law gives to the operators of vehicles on the right what is generally termed the ‘right of way,’ still it does not follow as a matter of law that upon the happening of a collision between two vehicles at the intersection of two public highways that the operator of the vehicle on the left is necessarily guilty of negligence. All the facts and circumstances surrounding the happening of the accident must be considered in determining whether such operator was in fact negligent. In other words, the law governing the operation of vehicles must be applied to the facts and circumstances of the ease, and the law which gives to the operator of a vehicle on the right the so-called ‘right of way’ also contemplates that such operator of such vehicle is himself operating his vehicle in a careful and prudent manner, and with due regard to the safety of others,” is a correct statement of the rule.</p> <p>[10] Id.—Intersecting Wat — Proper Definition.—An instruction that “By the -term ‘intersection of public highway’ is meant all space made by the junction of highways, and the space where one highway comes into another, although the highways do not cross,” contains a proper definition of an intersection of two highways or an intersecting way and conforms to that given by section 1, subdivision 14, of of the Motor Vehicle Act.</p> <p>9. Buie of road governing vehicles proceeding in opposite directions, note, 41 L. B. A. (N. S.) 332.</p> <p>Buie of road governing vehicles at intersection of streets and when turning a cross-street, note, 41 L. B. A. 336.</p> <p>Liability for collision between automobiles at or near comer of streets or highways, note, L. B. A. 1916A, 745.</p> <p>[U] In.—Unlawful Bate of Speed—Presumption of Negligence— Instructions.—An instruction that if the jury should find that the plaintiff, at or immediately before the collision in question, was approaching the intersection of ways, and that Ms view of the traffic on the intersecting way was obscured, and that he was traveling at a rate of speed in excess of ten miles per hour, then, and in that event, the plaintiff is conclusively presumed to have been guilty of negligence at the time of the collision, is not subject to the objection that it omits to state the qualification that such negligence is not the determining factor unless it proximately caused or contributed to the accident in question, where in other parts of the instructions the court did submit that question to the jury.</p> <p>[12] Id.—Approaching Intersection — Assumption of Compliance With Law—Bight to Exceed Speed Limit.—The fact that the plaintiff who was driving westerly had the right to assume that any person approaching the state highway from the intersecting road to the north would, upon entering upon the highway, proceed beyond the center' of the intersection with the state highway before turmng to the left to travel easterly did not give him the right to proceed in approaching the intersection when as near as fifty or sixty feet therefrom at the rate of thirty or even twenty-two miles per hour.</p>

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

<p>APPEAL from an order of the Superior Court of Sacramento County appointing a guardian of the person and estate of an incompetent person. Malcolm C. Glenn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Contracts — Assignment of Sundry Claims — One Bight of Action Against Assignor.—Where one of the considerations passing between certain parties under a contract settling disputed matters was an assignment of claims, against sundry individuals, ranging from thirteen cents to $281 each and aggregating several thousand dollars, and the assignee failed to secure payment from the individual debtors because some of the claims were worthless and did not in fact exist at the time of -the assignment, and others were prevented from being collected by failure of the assignor to furnish necessary data by which the verity thereof might be established, the assignee had but one right of action for the whole amount of his claim, and he cannot so divide and split up his demand as to avoid the defense that the first action brought to judgment would debar him from any further prosecution of the alleged claim.</p> <p>[2] Id.—Splitting Up Demand—Several Actions Brought—Injunction to Stop Proceedings.—Where such assignee divided his demand and brought several actions in the justice’s court against the assignor, one of which was brought to trial, an injunction would not lie to stop the proceedings in the justice’s court in the absence of a showing that the defendant would be unnecessarily vexed and annoyed or put to unnecessary expense by reason of being compelled to interpose the plain legal defenses available to it in that court.</p> <p>[3] Id.—Determination op First Action — Waiver op Eight to Prosecute Subsequent Actions.—Such assignee by bringing different actions on the same claim, upon securing a determination of the first action, waived or lost his right to prosecute any of the others subsequently commenced, upon a proper plea being properly interposed by the assignor.</p>

<p>[l] Mortgages — Assumption or Indebtedness by Grantee — Pay ment by Grantor—Bight or Reimbursement—Statute op Limitations.—The relation between a grantor of mortgaged premises and a grantee who assumes to pay the amount of the indebtedness secured by the mortgage is that of surety and principal, and where such grantor pays a deficiency judgment after foreclosure and sale of the mortgaged premises, a cause of action for reimbursement arises in his favor against such grantee, and against subsequent grantees who have agreed to pay the amount of the indebtedness, which is not barred by the statute of limitations if commenced within two years after such payment.</p>

<p>[1] Contracts—Action for Services—Right to -Compensation During Vacation—Evidence.—In this action to recover, along with disbursements made by plaintiff for and on behalf of defendant at its special instance and request, a balance alleged to be due plaintiff from defendant under the terms of a written contract of employment, plaintiff was entitled, under the evidence, to compensation for periods of time in each year covered by his service during which he was on vacation.</p>

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

<p>[1] Contracts—Conduct of Business for Part of Net Profits— Bemedy for Breach.—Where the contract between plaintiff and defendant provided that plaintiff was to conduct the business owned by defendant and “was to accept as full compensation for his services one-half of the net proceeds,” but that he was “not to be considered as a partner in said business,” his remedy to recover for his services was an action at law for breach of contract and not an equitable action for an accounting.</p> <p>[2] Id.—Pleading—Belief Permissible.—As there is but one form of action in this state, the court can grant any relief embraced within the issues.</p> <p>[3] Id.—Interpretation of by Court.—Where the contract between the parties is set out in the complaint and admitted in the answer, its interpretation is to be made by the trial court.</p> <p>[4] Id.—Interpretation—Pleading—Appeal.—The appellant cannot complain on appeal of an interpretation which it placed on the contract in its answer.</p> <p>[5] Id.—Judgment Less Than Computed—Appeal.—On appeal the defendant cannot complain that the judgment of the trial court in favor of the plaintiff was for less than on its computation it might have been.</p> <p>[6] Id.—Summary of Books — Proof of Correctness — Evidence.— The trial court properly admitted in evidence, over defendant’s objection that it was not shown that the records on which the data were based were correct, a financial statement prepared by an auditor from data taken from defendant’s books. Such books being in the defendant’s possession, it had it within its power to show that the statement was not correct as a summary of what the books showed, or that the books themselves were not correct.</p>

PROCEEDING on Habeas Corpus to secure the release of a prisoner confined in the state prison. The facts are stated in the opinion of the court.

<p>[1] Habeas Corpus — Insufficient Application.—Where it does not sufficiently appear from an application for a writ of habeas corpus, aside from certain legal conclusions, how, or in what manner, it is claimed the imprisonment of the person in whose behalf the writ applied for is illegal, the application will be denied.</p>

<p>[1] Evidence — Contradictory Statements — Findings — Appeal.— The presumption on appeal is that, where a witness’ testimony at the trial is itself contradictory and inconsistent, and the verdict or a vital finding is in accord with facts testified to by him, and his is the only testimony from which facts supporting such verdict or finding are derived, the trier of the facts has found some reasonable or legal excuse for the inconsistency and has justification for concluding that, upon the whole, such witness has told the truth about the matter; and where in such a case the story of the witness, viewed as a whole, is not of a character to justify a reviewing court in declaring that it should have been rejected in its entirety because it was unworthy of belief, the conclusion of the trial court or jury as to its probative value is conclusive.</p> <p>[2] Id.—Effect of—Existence of Ground for Honest Difference of Opinion—Question of Fact for Court or Jury.—Where an honest difference of opinion between men of average intelligence can arise as to the effect of the evidence—that is, if the evidence is such that different conclusions upon the matter can rationally be drawn therefrom—the case presented is one for the jury, or the court, if the questions of fact be submitted to its arbitrament.</p>

<p>[1] Broker’s Commissions—Offer to Exchange Community Property—Contract not Signed by Wife—Right to Commissions.— A broker who has secured an acceptance of an offer to make an exchange of real property is entitled to recover the agreed commission even though the property offered for exchange was community property and the agreement authorizing the exchange and to pay the commission was signed by the husband only.</p> <p>[2] Id.—Refusal to Go on With Trade—Liability for Commissions. Where it is agreed that the broker is to be paid the stipulated compensation for his services when he has secured a particular agreement of exchange, his contract is fulfilled and his commission earned when he has secured that agreement, notwithstanding the arbitrary refusal of the person agreeing to pay the commission to go on with the trade.</p> <p>[3] Id.—Insufficient Description of Property in Agreement of Exchange—Defect Gured by Actual Knowledge.—In an action to recover a broker’s commission for the exchange of real properties, the fact that the description of the property in the agreement of exchange was indefinite and uncertain would not relieve the defendant from liability where he and his wife viewed the property before accepting the offer to exchange, learned and knew generally of what the properties consisted and where they were situated, and the other parties to the exchange, upon accepting the offer to exchange, tendered their deeds to their properties, in which the same were fully described.</p> <p>[4] Id.—Misdescription of Property in Broker’s Contract—Correction by Parol Evidence.—In such an action by a broker for his commissions on a contract of employment to effect a sale or transfer or exchange of real property, it is proper to correct a misdescription in the contract of the land which he was authorized to sell or exchange by parol evidence.</p> <p>[5] Id.—Statute of Frauds — Signature of Contract by Broker Unnecessary.—The fact that the instrument authorizing the broker to effect an exchange of real property also contains the agreement to pay such broker for his services does not make it necessary that such instrument be signed by him. The statute of frauds only requires that such an agreement be signed by the party to be charged, or by his agent.</p> <p>2. Right of broker to compensation where sale is defeated by act of owner, notes, 2 Ann, Cas. 184; 20 Ann. Cas. 1024; 43 L. B. A. 593.</p>

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

<p>[1] Basements—Sale of Lot—Representation as to Adjoining Public Wat—Estoppel in Pais.—Where before and- at the time of the sale of a city lot the grantor expressly represents to the grantee that a certain avenue which forms one of the boundaries of the lot is a public way, and the grantee purchases the lot in reliance upon that representation, and the deed conveying the property describes the same with reference to its relation to that avenue, an estoppel in pais is created by which the grantor cannot be heard thereafter to say that such avenue is not a public way or street.</p> <p>[2] lb.—Action to Quiet Title—Enjoyment of Easement by Plaintiff Within Five Years—Contradictory Evidence—Finding— Appeal.—In an action to quiet title to a special easement of right of way, the trial court having concluded, upon contradictory testimony, that the plaintiff was in the enjoyment of his easement within five years before the commencement of the action, that determination will not be interfered with by the appellate court.</p> <p>[3] Id.—Restraint from Interfering With Plaintiff’s Free Use of Avenue—Construction of Judgment.—A judgment in such action restraining the defendant from maintaining any structures or obstructions over said avenue or “in any way interfering with plaintiff’s free use thereof” must be construed in relation to the issues before the court and the finding of the court that the plaintiff is the "owner in fee of a special easement of right of way or passage over and upon” the avenue, and under such judgment the defendant held to be only restrained from interfering with the plaintiff in his enjoyment of the special easement of right of way over the avenue.</p> <p>1. Actions or suits in which equitable estoppel involving title or interest in real property is available, note, 49 L. B. A. (N. S.) 775.</p>

<p>[1] Jurisdiction—Voluntary Submission to—Waiver or Objection. Where a resident of another state, defendant in an action to compel an accounting for certain moneys alleged to constitute a part of the assets of a given estate, voluntarily submits to the jurisdiction of a court of this state and answers to the merits and, without objection, goes to trial, he may not thereafter on appeal, following an adverse judgment, claim that he is a resident of another state and that the court of this state is without jurisdiction.</p> <p>1. Estoppel of litigant to deny jurisdiction of court by previous acts or conduct admitting jurisdiction, note, 14 Ann. Cas. 1044.</p> <p>[2] Id.—Location of Subject Matter in Foreign State—Effect on Jurisdiction.—The fact that the funds or credits for which such accounting is sought are beyond the territorial jurisdiction of the courts of this state would not necessarily affect their jurisdiction; but, if ancillary letters of administration upon the estate have been issued in the state in which the funds or credits are located, the courts of this state would decline to take jurisdiction over funds properly payable to such foreign administrator.</p> <p>[3] Wills—Ineffective Power of Appointment—Estoppel of Attorney to Set Up Claim.—Where money is bequeathed to a trust company to hold and invest and to pay the income thereof to a certain beneficiary, and upon her death to such person or persons as she may direct by her last will and testament, and she executes a will prepared by her attorney, which they both understand is an execution of the power of appointment, and in which such attorney is named as the residuary legatee, he will be estopped to claim that the provision of the will is ineffective for the purpose for which it was intended and that he, as residuary legatee, is entitled to the property intended thereby to be disposed of.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of San 'Joaquin County. J. A. Plummer, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Pleading—Filing of Demurrer—Appearance.—The filing of a demurrer by given defendants constitutes an appearance by them.</p> <p>[2] Id.—Action to Foreclose Mortgage—Eight of Owners to Service of Sufficient Complaint.—In an action to foreclose a mortgage on real property, the owners of the land are entitled, if the land is to be sold under foreclosure decree, to have that done in the manner provided by law, and, accordingly, are entitled to the service upon them of a complaint which is at least invulnerable to general demurrer.</p> <p>[3] Id.—Nonpayment—Sufficiency of Allegation.—la an action to foreclose a mortgage given to secure the payment of a certain promissory note, an allegation “That no payments have been made on the principal, and no payments on the interest since the twentieth day of April, 1916, as provided for in said note and mortgage; and the principal mentioned in said mortgage and note, together with the interest thereon at the rate of seven per cent per annum from the sixteenth day of February, 1916, still remains due and unpaid from . . . [the makers of the note] to the plaintiff,” is sufficient as against a general, demurrer. It is not necessary to negative payment by a stranger, or to some person other than plaintiff.</p> <p>[4] Id.—Erroneous Overruling of Special Demurrer—Not Prejudicial Error.—The allegation of nonpayment in such an action having been sufficient as against a general demurrer, the judgment should not be reversed merely because the trial court may have erred in overruling a special demurrer.</p>

<p>[1] Fire Insurance—Lease or Insured Premises—Not Change in Title.—A lease of premises covered by fire insurance is not a change in the title of the property within the meaning of a clause in the policy which provides that unless otherwise provided by agreement, the company shall not be liable for loss or damage occurring “while the interest in, title to, or possession of the subject of insurance is changed, except ... a change of occupancy of the building without material increase of hazard.”</p> <p>[2] Id.—Construction ot Mortgage Clause—When Company Subrogated.—The standard mortgage clause in insurance policies that when the insurance company shall pay to the mortgagee any sum under the policy and shall claim, as to the owner, that no liability therefor existed, the company shall be subrogated to the rights of the mortgagee under all securities held as collateral to the mortgage debt, and shall receive full assignment and transfer of the mortgage, etc., applies only when the claim that no liability existed is supported by legal right.</p>

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

<p>[1] Quieting Title—Adverse Possession—Void Tax Deed as Color op Title.—In an action to quiet title based upon adverse possession, a void tax deed, though not admissible to prove title, is admissible for the purpose of showing color of title and possession in good faith.</p> <p>[2] Id.—Purchase of Property for Building Purposes—Abandonment of Intention—Possession not Destroyed.—-Where a person always claimed to own as good title to certain real property as could be secured by a tax deed, the property having been purchased from the grantee in the tax collector’s deed as a site for buildings to be erected thereon, which was the ordinary and eventual use to which the property would be put, and the entry thereon was in good faith and for the purpose of carrying out the building plans, the abandonment of the intention in ,that regard did not have the result of destroying the possession of and claim to the property.</p> <p>1. Effect of invalid tax deed as color of title within general statutes of limitations, note, 11 L. B. A. (N. S.) 772.</p> <p>[3] Id.—Actual Possession—Inclosure not Necessary.—To constitute actual possession the inclosure of the lot by a fence, or other structure, is not necessary, the entry being under color of title.</p> <p>[4] Id.—Payment of Taxes—Evidence of Claim of Ownership.— In an action to quiet title based upon adverse possession, evidence that the plaintiff, by himself and his predecessors, paid all the taxes levied on the property for twenty-six years tends to show the nature and character of the claim under which plaintiff held, and is further evidence that it has not been abandoned.</p> <p>[5] Id.—Knowledge of Defects—Adverse Character of Possession not Destroyed.—Knowledge of a defect in title is not sufficient to destroy the adverse character of the possession or rights acquired thereunder.</p> <p>[6] Id.—Conveyance of Legal Title to Another—Continuity of Adverse Possession not Broken.—Where a person claiming title by adverse possession under a void tax deed, by a deed absolute on its face, duly recorded, conveys the property to a relative in order “to discourage” a party who is pressing a claim against her, she does not thereby divest herself of her color of title or break the continuity of her adverse possession and restore the seizin to the original owner, if she never quits, but retains and at all times maintains, her possession, and asserts her claim and color of title under the tax deed.</p> <p>[7] Id.—Abandonment of Land—Leaving With Intention to Return.—If the person in possession of land leaves it, with the intention of returning, he does not abandon it. Abandonment is» a question of intention.</p> <p>3. Inelosure of land as essential to adverse possession, note, Ann. Cas. 1913A, 750.</p> <p>6. Unbroken continuity as essential element of adverse possession, note, 15 L. R. A. (N. S.) 1202; what temporary break will amount to abandonment, note, Ann. Cas. 1916A, 606.</p>

<p>[1] Landlord and Tenant—Breach of Covenant by Tenant—Bight to Evict.—In the absence of statutory provision, the breach of an independent covenant made by the tenant will not justify the eviction of the latter, unless the lease contains a stipulation to that effect.</p> <p>[2] Id.—Breach by Landlord—Bight of Tenant to Terminate Lease.—Where there is no statutory regulation on the subject, the breach of a like covenant on the part of the landlord will not warrant the tenant in terminating the lease and refusing to pay the rent called for thereby, in the absence of a stipulation in the lease to that effect.</p> <p>[3] Id.—Option to Purchase—Breach by Lessor—Bight of Lessee to Abandon Premises.—A covenant in a lease, whereby the lessor agrees that if, during the term of the lease, she should receive a tona fide offer for the purchase of the property and desire to accept such offer and sell the property, such facts should be communicated to the lessees, who are, for a period of ten days from the service of such notice, given the option to purchase the leased property at the price and upon the terms contained in the offer so received by the lessor, is in its nature independent and not a condition precedent to the payment of the rent by the lessees; and where the lease contains no stipulation that upon a breach . thereof the tenants may at their option abandon the premises and terminate the lease, they are not absolved from the obligation to pay the rent reserved therein upon a breach thereof by the lessor.</p> <p>2. Becovery of rent by landlord upon abandonment of premises by tenant, note, 14 Ann. Cas. 1089.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco- appointing a receiver. George H. Cabaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Personal Injuries—Subsequent Development of Bladder Trouble—Action for Damages—Pleading—Exúdenos.— In an action for damages for personal injuries alleged to have been caused by the negligence of the defendant in the operation of his automobile whereby he came into collision with the plaintiff, where the complaint, after setting forth a certain specific injury, alleged that by reason of the accident the .plaintiff was made sick, sore, and lame, and that she was physically impaired, and had also received and was suffering from a serious nervous shock, evidence that a few weeks after the accident the plaintiff developed serious bladder trouble was admissible.</p> <p>[2] Id.—Physical Injuries Sustained—Proximate Besult of Accident—Pleading.—A plaintiff is not required to allege specifically each physical injury sustained or which may have resulted from the accident. It is sufficient if such injuries can be traced to the occurrence complained of and are such as might naturally result from the injury.</p> <p>[3] Id.—Nervousness as Element op Damage—Testimony op Plaintipp Admissible.—Nervousness, when the reasonable outcome of physical injuries, is always an element of damage, and in an action for damages for personal injuries alleged to have been caused by the negligence of the defendant, the plaintiff's testimony as to the extent and nature of her nervousness is admissible.</p> <p>3. Necessity and competency of evidence of mental suffering in action for damages, notes, 2 Ann. Cas. 55; Atm. Cas. 1912B, 538.</p>

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

<p>[1] Leases—Oral Agreement—Subsequent Execution of Written Instrument—Validity—Date Effective.—Where an oral lease of a steam shovel for one year from date is agreed upon, and thereafter on the same day a written instrument, embodying the terms of the oral lease as well as an option to purchase, is executed by the lessor, but such instrument is not executed by the lessee until more than two months later, such instrument is valid and enforceable as a lease made on the date of the original oral agreement.</p> <p>[2] Id.—Retrospective Operation.—A lease, as to its commencement, may operate retrospectively from the date of its execution, as well as prospectively, and render the lessee liable for the agreed rent from ,the date therein specified.</p> <p>[3] Id.—Delivery “F. O. B.”—Compliance With Agreement.—Where the lease of a steam shovel provides that such shovel shall be delivered to the lessee at the commencement of the term “f. o. b.” ears at a designated railroad station, and the shovel at that time is at the designated station standing upon its own trucks on a siding ready to be coupled to a train, delivery by the lessor is complete.</p> <p>[4] Id.—When Notice of Delivery Unnecessary.—Where the lessee knew that the shovel was at the point designated, resting on its trucks, in a condition to be hauled by the railroad company to any point of destination that it might desire, and without any expense whatever to it other than the freight which it had agreed to pay, it was not necessary for the lessor to give it any special notice of delivery.</p> <p>3. What amounts to delivery of, or assumption of control over, property essential to a bailment, note, 1 A. L. R. 394.</p>

<p>[1] Negligence—Collision of Pedestrian With Jitney Bus—Action fob Damages fob Pebsonal Injuries—Interest of Jurors in Accident Insurance Companies.-—In an action for damages sustained by a pedestrian while crossing a city street through having been struck by an automobile, driven as a jitney bus, the plaintiff is entitled to know if any of the prospective jurors are interested as stockholders or otherwise in corporations engaged in accident indemnity insurance.</p> <p>[2] Id. — Improper Suggestion That Defendant was Insured— Curing and Waiver of Ebrob.—The action of counsel for plaintiffs in calling the prospective juror’s attention to the fact that the defendant was insured against liability for such an accident did not constitute reversible error where the court, in calling attention to its prejudicial character, secured a statement from the jurors that they could and would disregard the information, and the defendant consented to proceed to empanel the jury from the talesmen then in attendance.</p> <p>[3] Id.—Declarations of Bystander-—Silence of Defendant—Evidence.—The admission in evidence in such an action of the statement of a witness to the accident, made to the defendant at the time and not denied by him, that he “had ought to be strung up by the heels for running into a woman in that fashion,” is not error. It is for the jury to say, under proper instructions, whether or not the defendant's silence amounted to an admission of negligence.</p> <p>1. Connection with casualty or indemnity company as disqualification of juror in action against one insured or indemnified by such company, note, L. R. A. 1915A, 193.</p>

<p>APPEAL from a judgment of the Superior Court of Orange County. W. H. Thomas, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>HI Public Lands—Decisions of Land Department—When Conclusive.—A decision of the Land Department of the United States upon any question of fact, in determining the right of any person in respect to the public lands under the laws of the United States, is conclusive upon all other tribunals in the absence of fraud, mistake, or imposition.</p> <p>1. ‘Conclusiveness of decisions or findings of Land Department, note, L. B. A. 1918D, 597.</p>

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

<p>[1] Criminal Law — Conspiracy — Acts and Declarations op Co-conspirators—Evidence.—The acts and declarations of either of the conspirators, committed in pursuance and furtherance of the conspiracy, may be shown at the trial of a co-conspirator; and it is not necessary to show that the defendant on trial was present at the time of such conduct or declarations.</p> <p>[2] Id.—Agreement to Commit Crime—Circumstantial Evidence Admissible.-—On the trial of a eo-eonspirator, it is not necessary to prove by direct evidence that there was an agreement to commit the crime, but such fact may be established by circumstantial evidence, and it is sufficient to make out a prima facie case to warrant the admissibility of the acts and declarations of the co-conspirators.</p> <p>[3] Id.—Droop op Conspiracy—Evidence op Circumstances.—As a general rule, a conspiracy can only be established by circumstances, and all these bearing in any way upon the fact of a conspiracy, or upon the acts done in pursuance thereof, may be shown to prove the fact of a conspiracy, and to show the intent or motive of a defendant for a crime involved in the commission of an overt act in furtherance and execution of the conspiracy.</p> <p>[4] Id.—Murder—Motive—Theory op Drosecuiion—Evidence.—In a prosecution for the crime of murder, it is proper for the district attorney to advance any theory, within the range of human experience and reasonable probability and to support that theory by appropriate evidence, although he may he entirely mistaken as to the motive for the crime.</p> <p>1. Evidence in prosecution for conspiracy, note, 3 Am. St. Rep. 474.</p>

<p>11] Negligence—Use oe Streets—Duties op Pedestrians and Automobile Drivers.—A pedestrian crossing a, street has a right to assume, until the contrary reasonably appears, that drivers of automobiles will keep a reasonable lookout ahead and exercise ordinary care to avoid causing him injury; and, likewise, such pedestrian is bound generally to look after his own safety, and in that behalf a duty is imposed upon him, when crossing a highway where vehicles are to be looked for, to use due care and caution to see that he is not in- danger.</p> <p>[2] Jury and Jurors—Collective Examination op Jurors by Judge —When not Error.—The trial court does not commit error by examining the jurors collectively respecting their general qualifications, in order to expedite the trial, where on re-examination by counsel much liberality is permitted, both as to'the matters covered in the examination by the court and all other matters bearing on the qualifications of the several jurors.</p> <p>1. Reciprocal duty of operator of automobile and pedestrian to use care, notes, 38 D. R. A. (N. S.) 487; 42 L. ft. A. (N. S.) 1178; 51 L. R. A. (N. S.) 990.</p>

<p>[1] Estrays—Demand for Compensation—Evidence.-—In an action for claim and delivery of certain livestock claimed by the defendant to have been lawfully impounded under the act concerning estrays, evidence that at the time the plaintiff and one of his employees demanded the possession of the livestock the defendant demanded payment of a dollar and a half a head, instead of fifty cents, before he would give .them up, will not support a finding that the amount of money demanded “was not demanded or claimed under the provisions of the act . . . but as damages to the property of said defendant which he claimed to have suffered at other times than the time at which said taking up took place.”</p> <p>[2] Id.—Right of Taker-up to Lien—Duty of Owner to Tender Compensation.—In such action the trial court having found that the defendant had properly taken up the plaintiffs’ stock under the Estray Act, and having found that the said defendant is entitled ,to the sum of forty-two dollars for his expenses and costs incurred for the keeping and care of said estrays while they were in his . possession, the defendant is entitled, under said act, to his lien upon the stock until the owners have tendered to him the amount to which he is entitled in satisfaction of his said lien. No such tender having been made, the plaintiffs are not entitled to the possession of their property, unless the defendant has waived his right to insist on the said lien.</p> <p>[3] Id.—Demand for Larger Sum Than Entitled—Waiver of Lien-Duty of Owners to Make Proper Tender.—The fact that the defendant, at the time of the plaintiffs’ demand for the possession of the stock, claimed a larger sum than that to which he was entitled under the provisions of the Estray Act, would not constitute a waiver of his right to insist on his lien upon the stock. Under section 4 of said act it was the express duty of plaintiffs, if dissatisfied with the amount charged by the defendant, to have tendered to him the amount to which he was properly entitled before commencing suit for the recovery of the possession- of their said property.</p> <p>1. Meaning of term “estray” as applied to animals, notes, 9 Ann, Cas. 284; Ann. Cas. 191213, 1081.</p>

<p>HI Evidence—Breach of Warranty—Admissibility of Parol Evidence.-—In an action to recover a balance claimed to be due for stone work and ornamental mold-ing-s used in the construction of a building, wherein the defendant by cross-complaint seeks to recover the amount paid on account of such materials on the ground of breach of warranty, parol evidence as to the alleged warranty is admissible, where the transaction between the parties had its inception in oral representations and agreements, and considerable material was furnished under such oral understanding and agreement -prior to the time the agreement was reduced to writing, although the written agreement contains no warranty.</p> <p>[2] Appeal—Review of Instructions—Sufficiency of Record.—On an appeal from a judgment under the alternative method, instructions to the jury not included in- the reporter’s transcript cannot -be reviewed, although included in the clerk’s transcript, in the absence of a certification by the trial judge as to correctness or as -being the instructions actually given, although at the foot of each instruction there is a notation supposedly made by the trial judge in the course of his consideration of the instructions proffered by the respective parties to the case.</p> <p>1. Admissibility of parol evidence to vary terms of written contract, generally, note, 17 L. R. A. 273,</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Vendor and Vendee—Repudiation op Transaction by Vendee— Tender op Deed and Certificate op Title by Vendor Unnecessary.—Where the purchaser of real property repudiates the transaction and attempts to rescind the contract of purchase, it is not necessary for the vendor, as a condition precedent to bringing an action to recover the amount due under the contract, to .tender the purchaser a deed or a certificate of sale to the premises.</p> <p>[2] Id.—Right op Vendee to Rescind—Evidence—Findings—Appeal. In this action by the vendor to recover the amount due under a contract for the purchase of real property after the purchaser repudiated the transaction, the evidence was sufficient to sustain the findings and conclusions of the trial court that the purchaser was not entitled to rescind, and the testimony in regard thereto being in substantial conflict, such determination will not be disturbed on appeal.</p> <p>1. Necessity of tender of performance by vendor to entitle him to retain purchase money on default by vendee, note, L. B. A. 1918B, 557.</p>

<p>[1] Nuisances—Obstruction of City Street by Railroad Company —Action to Abate—Insufficient Denials.—In. an action by a municipality against a railroad company to compel the removal of certain obstructions to travel placed by the latter across a public street in said municipality, denials that the embankments or tracks is or are an unlawful obstruction of the street, or an unlawful interference with the use of the street by the public, are insufficient to raise an issue of fact.</p> <p>[2] lb.—Temporary Closing of Street—Permission to Use for Railroad Purposes—Withholding of Permanent Rights.—A resolution by a board of town trustees temporarily closing a portion of a certain street to public travel and granting a railroad company permission to occupy the same for the purpose of carrying on its railroad business until the further order of that or some future board of trustees of said town, and further providing that no permanent rights are thereby granted to the railroad company, does not cause such street to cease to be a highway, or give the railroad company any right to obstruct the street any longer than the town sees fit to permit such obstruction.</p> <p>2. Power of municipality in absence of express legislative authority to grant street franchise for railroad, note, 22 I». R. A. (N. S.) 925, 927, 935.</p> <p>[3] Id.—Application to Railroad Commission for Relief—Waiver of Right to Maintain Action—Jurisdiction of Commission.— The fact that the board of town trustees made application to the Railroad Commission to compel the railroad company to repair its tracks and place the same in such condition that the street could be traveled by vehicles, and that after a hearing the Railroad Commission denied the application, did not bar the town’s right thereafter to maintain an action to abate the obstruction. Where the constitution and laws of the state do not confer jurisdiction of the subject matter upon the Railroad Commission, such jurisdiction cannot be conferred by consent.</p> <p>[4] Id.—Use and Repair of Streets—Power to Submit to Railroad Commission.—Not only is the board of trustees of a city without power to submit the use and repair of its streets to the Railroad Commission, but even the electors of such city cannot by an affirmative vote at an election submit such matters to the commission.</p> <p>[5] Id.-—Withdrawal of Temporary Permit—Continued Obstruction —Trespass.—The granting of a temporary permit to a railroad company to construct its tracks across a public street, and the temporary cessation of travel thereon does not destroy its character as a public street; and when the railroad company continues to obstruct it after the permit is withdrawn, it becomes a trespasser, to all intents and purposes, as it would have been if it had in the first instance obstructed the street without permission.</p> <p>[6] Id. — Obstruction of Highway — Nuisance — Jurisdiction to Abate.—An obstruction of an established highway constitutes a public nuisance which the superior court has jurisdiction to abate.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. Dudley Kinsell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Trusts—Support and Maintenance of Grantor and Husband— Power to Mortgage—Termination of.—Where a deed of trust provides that the trustee is to hold the trust property during the life of the grantor and her husband and the survivor of them, and during said period to receive the rents and profits and apply the same to the use of said grantor and her husband during their lives, and upon the death of the survivor of them to convey said property to certain named children, a further provision authorizing the trustee to mortgage, lease, or sell the said property in case the rents and profits shall be insufficient to pay for the maintenance of said grantor and her husband while they live and to hold or invest or apply the proceeds to the support and maintenance of the grantor and her husband “while they both live,” must be construed as authorizing the trustee to encumber the property at any time during the life of the grantor and her husband and the survivor of them.</p> <p>[2] Id.—Loan by Husband to Wife, as Trustee—Mortgage as Security—Validity of.—Where a wife, as trustee, is authorized to mortgage the trust property as security for a loan, her husband may make her a loan of community money, taking a mortgage on the trust property as security, so long as the transaction is fair and conducted in the fullness of good faith, and where such loan is not paid he is entitled to foreclose his mortgage on the property.</p> <p>[3] Husband and Wife—-Community Funds—Interest of Wife.—The interest which the wife has in community funds is not a vested interest, hut a mere expectancy.</p>

<p>[1] Negligence—Collision of Automobile and Pedestbian—Action fob Damages—Contributory Negligence — Evidence. — In this action by a husband and wife for damages for personal injuries to the wife caused by being struck by an automobile driven by the defendant while crossing a city street, the wife was not guilty of contributory negligence, as a matter of law, but the question was one for the jury, and the admitted physical facts and the testimony of the plaintiffs were sufficient to warrant the jury in finding that there was no contributory negligence on the part of the wife.</p> <p>[2] Id.—Pedestrian Crossing Street—Rights and Duty of.—Where such injured party, after having passed the center of the street, turned and looked in the direction from which the automobile which struck her came and ascertained that apparently there, was no danger, it was not negligence on her part to turn and look ahead of her as she .proceeded across the street. She had a right to expect that an automobile would not suddenly emerge from a concealed position within fifty feet of her, going at a speed of over twenty miles an hour, and without sounding any warning, strike her within less than fifty feet from the point where it emerged into view.</p> <p>3. Reciprocal duty of operator of automobile and pedestrian to use care, notes, 38 L. R. A. (N. S.) 48V; 42 i,, R. A. (N. S.) 1187; 51 L. R. A. (N. S.) 990,</p>

<p>[1] Guaranty—Agreement Collateral to Lease—'Purchase of Furniture-Part Payment by Lessor—Breach by Lessee—Exoneration of Guarantor.—Where an agreement collateral to a lease and guaranty provides that the lessee is to purchase certain furniture for the demised premises, at not to exceed a given cost, one-half of the cost of which, not to exceed one-half of the sum specified, is to be advanced by the lessor, and that upon the payment of the balance of the purchase price by the lessee, the lessor is to be given a mortgage thereon as security for the money advanced and for the faithful performance of the covenants of the lease, and the guarantor of the performance by the lessee of the covenants of the lease is thereupon to be released from further liability, such guarantor cannot defeat recovery against him by the lessor on the ground that the lessee purchased furniture at a cost in excess of the amount specified, provided the lessor paid the maximum amount agreed to- be paid by him.</p> <p>[2] Id.—Knowledge by Lessor of Acts of Lessee—Guarantor not Exonerated.—The fact that such purchase of furniture in excess of the specified maximum amount was without the knowledge or consent of the guarantor, and that within three or four months thereafter the lessor, knowing that the total purchase price had exceeded the limit agreed upon, and consenting thereto, paid on account of the purchase price the sum agreed to be paid by him, did not exonerate the guarantor, under the provisions of section 2819 of the Civil Code.</p> <p>1. Contract of guaranty, note, 105 Am. St. Rep. 502.</p>

<p>[1] Vendor and Vendee—Default by Vendee—Election by Vendor to Declare Eights Forfeited—Eight to Possession.—A vendee in a contract of sale of property which is to be paid for by installments, upon default in the payment of any of which the vendor, as authorized by the contract, has elected to treat and declare the contract null and void and .the rights of the vendee forfeited, cannot retain possession of the property and at the same time refuse to pay the installment or installments past due.</p> <p>[2] Id.—Failure of Vendee to Comply With Contract—Defective Title of Vendor No Defense.—A vendee in a contract of sale of property cannot retain possession of the property and refuse or fail to comply with terms of the contract as to the payment of the purchase price as specified and stipulated in such contract, and then, in an action by the vendor to recover possession, set up as a defense the fact, if it be a fact, that the title of the vendor is defective or not satisfactory in certain respects.</p> <p>[3] Id.—Defect of Title—Default of Vendees—Action in Ejectment—Defense—Rescission.—The vendees in a contract of sale of real property cannot breach their contract by noncomplianee with the covenant therein as to the payment of the purchase price of the property upon the ground that the title is defective or in an unsatisfactory condition, and then set up the fact of the defectiveness of the title as a defense in an action by the vendor to recover possession for default in the payment of the purchase price, unless they can also show that they either rescinded or offered to rescind the contract and offered to return to the vendor the possession of the property which is in them.</p> <p>[4] Id.—Filing of Gross-complaint—Insufficient as a Rescission. In an action by the vendor to recover possession after default in the payment of the purchase price, the filing of a cross-complaint to recover the money already paid to the vendor because of fraud and defect of title does not amount to a rescission of the contract, the vendees not having rescinded or offered to rescind after their discovery of the facts but having insisted on holding possession of the property.</p> <p>[5] Id.-—Default of Vendee—Retention of Possession—Defect of Title—Return of Money.—A vendee under a contract for the purchase of real property cannot continue in possession thereof after making default in the payments as therein provided, regardless of whether the vendor has title or not, and cannot refrain from making payments as by the contract provided, and also continue to hold possession of the land; nor can the vendee under any circumstances be entitled to the return of the money by him theretofore paid thereunder while he continues to hold possession of the land; nor can the vendee after making default in his payments without legal excuse ever recover the return of any of the money he may have paid thereon when the vendor was not in default of anything on his part to be kept and performed, except when there has been mutual rescission.</p> <p>2. Defective title as defense to action for purchase price against purchaser in possession, notes, 3 Ann. Cas. 365; 21 L. R. A. (N. S.) 363.</p> <p>5. Right of purchaser in possession to rescind in action for defective title, note, 21 L. R. A. (N. S.) 395.</p> <p>Right of vendee to recover payments made where title is defective, note, L. R. A. 1918B, 554.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. J. R. Welch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. J. R. Welch, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, refusing to vacate a default judgment. Edmund P. Mogan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Irrigation Districts — Bonds—-Statute or Limitations.—The right to recover the amount of either principal or interest coupons on irrigation district bonds issued under the Wright Act of 1887 is barred by the statute of limitations after the lapse of four years from the date such coupons became payable.</p>

<p>[1] Vendor and Vendee—Agreement to Repay Moneys—Action to Recover—Performance op Conditions Precedent—Pleading.—. Where a contract for the purchase of real property provides that in the event of the death of the buyer “the seller will, upon request, ou surrender and cancellation of this agreement, provided that all installments and interest have been paid as herein provided, pay to the legal representative of the buyer an amount equal to the sum of all payments made by the buyer under this agreement,” in an action by the personal representative of the purchaser, following the latter’s death, to recover the amount paid, due performance of all conditions precedent in the contract must be averred in the complaint, either specifically or by authorized general averment, or a waiver thereof alleged.</p> <p>[2] Id.—Allegation That Contract was in Full Force and Effect —Effect of.—An averment in the complaint in such action that at the time of the purchaser’s death the contract “was in full force and effect” is but the statement of a conclusion of law.</p> <p>[3] Dx—Pleading and Proof—Burden on Plaintiff.—In such action, not only is it incumbent upon the plaintiff to allege either a performance of the contract by the decedent or a valid excuse for nonperformance, but he also has the burden of proving one or the other.</p> <p>[4] Id. — Time as Essence of Contract — Acceptance of Overdue Payments.—Where time is made of the essence of a contract of purchase, the simple act of receiving a payment after the date when the payee was bound to accept it, without more, is no excuse for laches as to future payments.</p>

<p>APPEAL from a judgment of the Superior Court of San Mateo County. George H. Buck, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Landlord and Tenant—Reservation of Basement—Lease of to Carpenters—Disturbance of Tenants—Evidence of III Will.— Where the lessor reserves the basement of the leased premises, he has a right to lease the same to a firm of carpenters, and his act in so doing, and the consequences of said act in the later disturbance of the subtenants of the lessee of the remainder of the building by the noise of the machinery incident to the conduct of the shop, cannot be attributable to or furnish any proof of ill will on the part of the lessor toward his said lessee where there is no evidence to show that at the time of the letting and use of said basement as aforesaid the lessor was in anywise dissatisfied with his tenant or with the terms of his lease.</p> <p>[2] Id.—Sublease of Building at Increased Rental—Statements by Lessor—Insufficient as Evidence of Malice.—A statement by a lessor, made upon learning that the lessee had made a sublease of the premises at a rental much in excess of that which he was receiving, that “You ought to divide the profits with me,” is not sufficient to support a charge of malice on the part of such lessor against his tenant, or to supply a reason based on ill will for the institution of a wrongful action in unlawful detainer against him.</p> <p>[3] Id.—Overtures to Sublessee to Lease Direct—Not Evidence of Malice.—Malice is not shown by the fact that the lessor, after the commencement of an action in unlawful detainer against his lessee, made overtures to the subtenant to take a direct lease from him at the same rental agreed to be paid by her under her contract with the lessee.</p> <p>[4] Id.—Prosecution of Causeless Action—When Evidence of Malice.—Out of the commencement and prosecution of a causeless action by one person against another the presumption of malice may arise from proof of the fact of a want of probable cause for the institution of such action.</p> <p>[5] Id.—Probable Cause—What Constitutes.—Probable cause for the institution of an action does not mean legal cause therefor, but only an honest suspicion or belief on the part of the instigator thereof, founded upon facts sufficiently strong to warrant a reasonable man in believing that such action is proper.</p> <p>[6] Id.—Probable Cause fob Commencement of Action—Advice of Counsel.—Where a lessor in good faith lays all the facts upon which he relies before his attorney, and is advised by the latter that he has a good cause of action in unlawful detainer against his tenant, he has probable cause for the commencement of such an action.</p> <p>[7] Id.—Recovery of Judgment in Trial Court—Presumption of Probable Cause—Reversal of Judgment on Appeal.—The fact that the plaintiff in such action recovered judgment in his favor upon the trial of the action entitled him, upon the trial of a subsequent action against him, to the full benefit of the presumption of the existence of probable cause for the institution of his said former action; and the fact that such judgment was reversed upon appeal did not suffice to deprive him of the benefit of that presumption.</p> <p>[8] Id.—Dismissal of Action Following Adverse Decision on Appeal—Presumption of Probable Cause not Overthrown.— Where the decision of the appellate court, upon the reversal of a judgment of the trial court in favor of the plaintiff, is such as to render impossible the further successful prosecution of the cause on the part of the plaintiff in the trial court, his dismissal of the action cannot be held to be such a voluntary abandonment of his case as to give rise to the presumption of such want of probable cause in its inception as would either suffice to show malice or to overthrow the presumption as to the existence of probable cause which was raised by the original judgment in his favor.</p> <p>5. What constitutes malice as element of malicious prosecution, note, 21 Ann. Gas. 756.</p> <p>fi. Counsel’s advice as defense to action for malicious prosecution, notes, 16 Ann. Gas. 718; Ann. Gas. 1918A, 498; 18 L. B. A. (N. S.) 49; 39 L. B>. A. (N. S.) 207; advice of layman, magistrate or justice of peace, notes, 16 Ann, Gas. 718; Ann. Gas. 1918A, 498.</p>

<p>APPEAL from a judgment of the Superior Court of San Diego County. C. N. Andrews, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Bonds—Time for Commencement of Action—Six Months’ Limitation Reasonable.—A stipulation in a building contractor’s bond that no suit or action shall be instituted in any event later than six months after the date or time fixed in the contract for the completion of the work therein, is not in and of itself unreasonable.</p> <p>[2] Id.—Delay in Instituting Action—Insufficient Excuse.—Delay by the owner in instituting an action on such bond beyond the period therein provided was not excused by reason of the claim by plaintiff that she was not able to ascertain the amount of damages sustained until the entry of judgment in- the consolidated lien foreclosure action, where the last claim of lien was filed more than three months before the time limited by the bond for the commencement of the action and there was no showing that the delay in the commencement of the action on the bond was unavoidable, or that any diligence was used in ascertaining her damages.</p>

<p>[1] Divorce—Conflicting Testimony—Findings-—Appeal.—Where in an action for divorce the testimony of the parties and of their witnesses is sharply in conflict as to practically every issue involved, and the findings of the trial court are fully supported by the testimony offered on behalf of the defendant, the judgment in his favor on his cross-complaint, based upon such findings, will not be disturbed on appeal.</p> <p>[2] Id.—Continuances—Absence of Witnesses—Discretion of Trial Court.—The matter of the granting or denial of continuances for the -purpose of enabling a party to procure the presence and testimony of absent witnesses lies very largely within the discretion of the trial judge; and it must be made to appear very clearly that such discretion has been abused before the cause will be reversed upon appeal for an alleged error of the court in denying a continuance.</p> <p>[3] Id.—Denial of Continuance—Discretion not Abused.—It is not an abuse of discretion to deny a motion for a continuance for the purpose of enabling a party to procure the attendance of an absent witness, where the affidavit and other documents presented upon the hearing of such motion utterly fail to show that the absent witness is the only witness who can give evidence as to the matters for which his presence is desired, or that the party requesting the continuance is not provided with the presence and testimony of other witnesses to every matter respecting which the absent witness could testify.</p> <p>[4] Id.—Custody of Minor—Conflicting Testimony—Order Conclusive.—In an action for divorce, an order, based upon conflicting testimony, awarding the custody of a minor child to his father during the pendency of the trial and during certain periods after the entry of the judgment therein will not be disturbed on appeal.</p> <p>2. Continuance to procure witness who is beyond the jurisdiction, note, Xi. R. A. I918E, 527.</p>

<p>[1] Quieting Title—Adverse Possession—Pleading.—Where the complaint in an action to quiet title alleges that the plaintiffs are the owners in fee of the property, they are entitled to prove title based on adverse possession.</p> <p>[2] Id.—Sufficiency of Findings.—In an action to quiet title a general finding that the allegations of the cross-complaint "are untrue except as otherwise found to be true” is not too indefinite to support the judgment, where there are specific findings upon all the issues raised by the pleadings, including the cross-complaint and answer thereto, which are sufficient, and which amply support the judgment.</p> <p>[3] Id.—Admitted Allegations—Effect of.—Allegations of a cross-complaint admitted by the answer thereto must he treated as found.</p> <p>[4] Id.—Claim of Title Under Decree of Distribution—Evidence.— In an action to quiet title, a decree of distribution in the estate of one who, assuming that he was the owner of the property in question, devised the same to plaintiffs, was properly admitted to show that the plaintiffs claimed title founded upon a written instrument as provided in section 323 of the Code of Civil Procedure.</p> <p>[5] Id.—Reopening of Case—Additional Testimony—Reversal of Judgment.—In an action to quiet title, the trial court, after announcing judgment in favor of the defendants, does not _ commit error in reopening the case, at the request of the plaintiffs, to hear further testimony and then ordering judgment for the plaintiffs, where the defendants are offered and avail themselves of the opportunity to introduce such additional evidence as they desire the court to consider.</p> <p>[6] Id.—'Continuity of Possession.—It is not essential, in every case, to the continuity of an adverse possession that there shall be a continuous personal presence on the lot of some person holding for the adverse claimant. It is enough, under the code, that the property is devoted to the “ordinary use of the occupant" where the possession is under color of title.</p> <p>6. Unbroken continuity as essential element of adverse possession, notes, 13 Am. Dec. 185; 15 L. R. A. (ST. S.) 1202.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County appointing a receiver in an action to foreclose a mortgage. Grant Jackson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. E. P. Shortall, Judge.</p> <p>The issues involved in this appeal are identical with those in California Canneries Co. v. Great Western Lumber Co., ante, p. 69, [185 Pac. 1008].</p>