Volume 45 — California Appellate Reports

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. Curtis D. Wilbur, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

Cabaniss, Judge Presiding, from proceeding to trial on an insufficient complaint, on an appeal from a judgment of conviction by a Justice’s Court. Writ granted. 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. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Tide-lands—Power op Legislature to Grant to Municipality.— The legislature under the terms of the constitution has the power to grant to a municipality tide-lands and harbor frontages to which the state holds title for certain trust purposes from the general government, where such grant is for a purpose in harmony with the trusts upon which the state was invested with title to the same.</p> <p>[2] Id.—Conveyance to City op Los Angeles—Title Acquired— Eight to Maintain Action.—Under the act of the legislature of 1911 (Stats. 1911, p. 1256), granting to the city of Los Angeles a certain tract of submerged land, title to which had theretofore been held by the state for certain trust purposes, that city became possessed of all the power which the state formerly held in relation to said lands and of all the rights to the ownership and possession thereof which the state had prior to said grant, and hence with full power, as the successor of the state, to maintain an action against one claiming to hold a public franchise for the possession and use of said premises for the purpose of maintaining a wharf thereon under the provisions of sections 2906-2920 of the Political Cod.e.</p> <p>[3] Id.—Wharf Franchise—Limitation of Term—Construction of Code.—The twenty-year limitation with reference to wharf franchises contained in section 2910 of the Political Code refers to the term of the grant and not solely to the right to take tolls.</p>

<p>EU Contracts—Agreement With Partnership—Failure to State Facts—Knowledge oe bt Partner.—A person contracting with a partnership is not guilty of misrepresentation in not making known certain facts where those facts are known to one of the members of the partnership.</p> <p>[2] Mines and Mining—Performance of Assessment Work—Failure to File Affidavit—Rights not Impaired.—Where a person has been in possession of a mine for many years, following his purchase of the claim, and the assessment work has been done and paid for by him, the fact that he has not filed an affidavit showing the assessment work for a given year does not impair his • rights in the premises.</p> <p>[3] Contracts—Knowledge of Right to Rescind—'Prompt Action Required.—A person entitled to rescind a contract must rescind promptly upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind. He may not wait to ascertain whether the transaction will he profitable to him, and so speculate upon the property and rights of the adverse party. This is • particularly true in relation to contracts concerning mining property.</p> <p>[4] Id.—Promptness in Rescinding—Section 1691, Civil Code, Mandatory.—The language of section 1691 of the Civil Code, requiring promptness in rescinding upon discovery of the fraud, is mandatory.</p> <p>[5] Id.—Default in Making of Payments—Termination of Lease— Lapse, of Right to Rescind.—Where, upon the failure of the lessees to make a certain payment as provided in a lease and option for the purchase of a mine, the parties enter into an extension agreement in which it is provided that the payment may he made by a given date from the proceeds of the mine, and that in the event the proceeds are insufficient to make said payment then, as a prerequisite to the further working of said mine, the lessees will make good the deficiency, and it is provided further that the only penalty for the failure to make said payment will be the forfeiture of any further right to continue under the lease, time being made of the essence of the agreement, upon the failure of the lessees to make such payment, the lease is at an end and the obligations of the lessor thereunder terminate, and the lessees have no right thereafter to rescind-, the transaction.</p> <p>[6] Id.—Contracting With Knowledge of Defects—Estoppel to Use Facts as Grounds for Repudiation.—Where parties, after entering into a lease and option agreement for the purchase of a mine with full knowledge of certain facts which will prevent the lessor from conveying a good title at the time, take possession and operate the mine until they find that the results of the enterprise are not satisfactory and then default in their agreement, they may not use those facts which were known to them and which would have prevented the lessor from conveying a good title had they elected to carry out the option to purchase, as justification for repudiating the contract, by asserting that the lessor was first in default.</p>

<p>[1] Common Law — Interpretation op—-Effect op Decisions op United States Courts.—In determining the doctrine of the common law, the courts may look to the decisions of the courts of the United States, as well as those of England, for their interpretation.</p> <p>[2] Deeds—Restrictive Covenants—Reversion — Vested Estate — Rule Against Perpetuities.—Under section 768 of the Civil Code, where the covenants in a deed limit the use of the premises to residence purposes, .prescribe the nature, quality, and cost of the buildings to be erected thereon, and provide, as to the grantor therein, that “the breach of any of the foregoing conditions shall cause said premises together with the appurtenances to be forfeited to and to revert to the said grantor, his heirs, successors, a'nd assigns, each of whom shall have the right of immediate entry upon said premises in the event of any such breach,” the estate reserved by the grantor is in the nature of a reversion or vested estate which is not within the rule against perpetuities.</p> <p>1. What the common law includes, notes, Ann. Cas. 1913E, 1222; Ann. Cas. 1918A, 968.</p> <p>[3] Id. — Reservation of Conditional Forfeiture — Remoteness— Validity.—Where a deed, after limiting the use of the premises ■to residence purposes, and -prescribing the nature, quality, and cost of the buildings to be erected thereon, provides, as to the grantor therein, that “the breach of any of the foregoing conditions shall cause said premises together with the appurtenances to be forfeited to and) to revert to the said grantor, his heirs, successors and assigns, each of whom shall have the right of immediate entry upon said premises in the event of any breach,” this latter conditional forfeiture reserved is not void for remoteness.</p> <p>[4] Id.—Change of Conditions—Quieting Title—-Equity.—The rule that equity will not enforce restrictions on the use of property where the reason and justification for them has failed through changed conditions does not go the extent of permitting parties whose land is subject to the legal restraint of such limitations to bring an action to quiet their title against such contractual obligation, because of changed conditions.</p> <p>[5] Id.—Increased Value of Property for Business Purposes—Enforcement of Covenants.—The mere fact that the property has become more desirable or valuable for business than for residence purposes will not necessarily defeat an application for equitable relief where the restriction, notwithstanding the change of conditions, still is of substantial advantage to the dominant property.</p> <p>4. Right to enforcement of building restrictions as affected by change in neighborhood, note, 2-8 L. E. A. (IT. S.) 707.</p>

<p>[1] Appeal—Default in Preparation of Proposed Bill of Exceptions—Contingent Intention to Make Application for Belief. A contingent intention to make application, under section 473 of the Code of 'Civil Procedure, for relief from default in' the preparation and service of a proposed bill of exceptions within time, does not constitute a pending proceeding, for such relief.</p> <p>[2] Id.—Expiration of Time for Preparation of Proposed Bill of Exceptions—Jurisdiction of Court to Thereafter Extend Time. After the time prescribed by section 650 . of the Code of Civil Procedure within which a party may prepare and serve upon the adverse party a proposed hill of exceptions has expired, the court is without authority to revive that right by an ex parte “order extending time,” and such an order, having .been made, is properly set aside.</p> <p>[3] Id.—Failure to File Transcript Within Time—Dismissal of Appeal.—Where the defendant fails to propose his bill of exceptions within the time limited by law, and likewise fails to file in the appellate court his transcript on appeál, and no sufficient cause appears excusing him from the consequences of his failure to file his transcript within the time prescribed by rule II of the appellate court, the appeal will, on motion, be dismissed.</p>

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

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

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

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

<p>[1] Mortgages—Transfer of Premises—Assumption of Mortgage— Principal Debtor and Surety—Agreements Express and Implied.—The person who, in taking over mortgaged premises, agrees to assume and pay the mortgage becomes by virtue of said agreement the principal debtor, while the person with whom he makes such agreement becomes as to such agreement and as to such mortgage Ms surety that he will perform the same. This agreement as to his immediate grantor is express; but there arises out of it also an implied agreement to the same effect as to the several predecessors of his immediate grantor back to the original mortgagor.</p> <p>[2] Id.—Foreclosure Proceedings—Deficiency Judgment—Remedy of Mortgagor—Pleading.—Where the mortgagee commences foreclosure proceedings against the mortgagor and also against the successive grantees who, in taking over the mortgaged premises, agreed to assume and pay the mortgage, the mortgagor may present a cross-complaint against such subsequent grantees to recover the amount of the deficiency judgment, if any, that may be rendered in favor of the mortgagee, and he compelled to pay, or he may wait until he has been compelled to pay such deficiency judgment and then prosecute an independent action against such .grantees for reimbursement.</p>

<p>APPEAL from an order of the Superior Court of Alameda County granting a temporary injunction. Joseph S. Koford, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Contracts—Conduct of Mercantile Business—Relationship of Parties.—Where by the terms of a written agreement between two parties it is provided that one of them shall, in addition to his services as manager of a mercantile business owned by the other, furnish the livestock, wagons, trucks and equipment with feed and oil, the use of which is required in conducting the business, and as full compensation therefor, including his services, he should receive one-half of the net proceeds derived from the business, it being further expressly provided that he is not a copartner and has no interest whatever in the assets of the business, the relationship of the parties is not that of a partnership, but that of employee and employer.</p> <p>[2] Claim and Delivery—Pledge as Security—Denial oe Indebtedness—Eight to Accounting—Pleading.'—Where a plaintiff sues in claim and delivery for property pledged as security for an indebtedness, alleging that it has been paid or that nothing is due thereon, and defendant contents himself with a mere denial thereof, he is in no position to assert that an accounting should be had as a condition of plaintiff’s right to recover the chattels. ‘If an accounting, other than such as is incidental and necessary to a determination of the issue as to the alleged indebtedness, is deemed necessary by defendant, then it should, in its answer, set up the facts upon which a demand therefor should be based.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. E. T. Zook, Judge Presiding. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PROCEEDING in Prohibition to prevent the Superior Court of Los Angeles County, and Paul J. McCormick, Judge thereof, from hearing and deciding a motion for a new trial. Peremptory writ denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law—Larceny—Pleading.—It is not necessary in an indictment for larceny to set forth in detail the evidence by which the larceny is to be proved.</p> <p>[2] Id.—Sufficiency of Indictment.—Where an indictment is in two counts, the first for obtaining money under false pretenses, in which the false pretenses are alleged in detail, and the second for grand larceny, the latter count being in the ordinary form of an indictment for grand larceny, the charge of larceny in the indictment is sufficient without the addition of the clause “that the allegations in both the first and second counts of this indictment constitute different statements of the same offense and relate to the same acts, transactions, and offenses,” and such a reference from one count to the other does not incorporate the allegations of the first count in the second.</p> <p>[3] Id.—Sufficiency of Each Count.—Material allegations must be made in every count of an indictment so that the defendant shall be charged with the distinct offense to which that count relates.</p> <p>[4] Id.—iSuFFiciENCY of Indictment—Test.—The test of the sufficiency of an indictment is that it alleges acts and facts which constitute the offense, and is direct and certain as to the party and the particular offense charged.</p> <p>[5] Id.—Effect of Statement of Circumstances.'—Where the indictment sufficiently charges the defendant with the crime, it is not impaired by the subsequent statement therein of the facts or circumstances under which it was committed, unless such statement of itself constitutes a negation of the crime.</p> <p>[6] Id.—Variance—When Material.—Where the acquittal of the defendant under the indictment would be no bar to the further prosecution of the offense, a variance between the allegations in the indictment and the evidence would be material, but where the discrepancy does not affect the validity of the indictment or prejudice the substantial rights of the defendant in his 'defense, the variance is immaterial.</p> <p>[7] Id.—Construction of Code—Charging of Different Offenses.— Section 954 of the Penal Code permits the charging of different offenses in different counts of the same indictment, where the different offenses all relate to the same act, transaction, or event.</p> <p>2. Form and sufficiency of indictments, note, 3 Am. St. Rep. 279.</p> <p>[8] Id.—Obtaining Property Through Trick or Device—Larceny.— Where the possession of personal property has been obtained through trick or device, with the intent, at the time the party receives it, to convert the same to his own use, and the owner of the property parts merely with the possession and not with the title, the offense is larceny.</p> <p>[9] Id.—Exhibition of Machine—■ False . Representations With Reference to — Other False Representations No Defense.— Where the defendant charged with the crime of grand larceny obtained the money of the complaining witness by means of a mechanical device so constructed that when blank paper was inserted in one portion, the machine first gave forth sounds of electric sparking and whirling of wheels, and then ground out genuine dollar bills, the blank paper being coiled inside the machine, which he exhibited, and by representations in regard thereto, it is no defense that .he may have made other false representations to the complaining witness by which he may have established a more or less confidential relationship with him.</p> <p>[10] Id.—Ultimate Fact—Pleading—Defense—Evidence.—In such case, the ultimate and issuable fact is the taking of the money of the prosecuting witness, and if the defendant is guilty, he is not deceived in the necessity for his preparation for defense by reason of the failure of the indictment to set forth the means- by which the offense was committed, in view of the use of the machine which, together with a number of new one-dollar bills and parts for the manufacture of a similar machine, was found in his possession at the time of his arrest.</p> <p>8. Distinction between larceny and obtaining property by false pretenses, note, 2 Ann. Cas. 1010.</p> <p>Larceny by obtaining money by trick, note, 1 L. R. A. (N. S.) 862.</p>

<p>[1] Place op Trial—Corporation as Dependant—Construction op Constitution.—The provision of section 16 of article XII of the state constitution, relating to the place of trial where a corporation or association is defendant, means not merely that a personal action against a domestic corporation may, at the option of the plaintiff, be commenced in one of the designated counties other than the one in which the defendant has its principal place of business, but that it may be prosecuted to final judgment when so commenced, unless the defendant can allege and show some sufficient ground for a change of place of trial distinct from the fact that the. residence of the corporation is in another county.</p> <p>[2] Id.—Constitutional Law.—Such a construction of section 16 of article XII of the state constitution is not violative of the fourteenth amendment of the federal constitution.</p> <p>[3] Id.—What Drawer op Check Undertakes.—The drawer of a check undertakes that the drawee will be found at the place where he is described to be, and that the sum specified will be paid there to the holder when the check is presented, and he is bound to pay at the place named.</p> <p>[4] Id.—Nonpayment op Check — Action Against Corporation.— Where a corporation draws a check on a bank in a county other than the one in which it has its principal business, and! at its request the check is not paid when presented, the holder thereof is entitled to have an action brought against such corporation to recover the amount thereof tried in the county where the check was to have been paid.</p>

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

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

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

<p>[1] Negligence — Damages fob Personal Injuries—■ Mental Suffering.—In an action for damages for personal injuries, the law permits a recovery for something more than tjie mental suffering produced by physical pain. Mental suffering may involve numerous phases, bearing with the nervous temperament of the individual, his ability to- stand shock, his financial condition in life, the nature of his injuries, etc. Mental worry, distress, grief, mortification, where they are shown to exist, are properly component elements of that mental suffering for which the law entitles the injured party to redress in monetary damages.</p> <p>[2] Id. — Pleading — Absence of Surprise — Affirmance of Judgment.-—In an action for damages for personal injuries, mental suffering need not be specially pleaded; and where the facts appear at the trial, and injurious surprise to the defendant does not appear, the judgment in favor of the plaintiff should be affirmed.</p> <p>1. Mental suffering as element of damages for physical injuries, notes, 5 Ann. Oas. 579; 15 L. R. A. (N. S.) 775; L. R. A. 1916D, 1038; Xi. R. A. 1916®, 898.</p> <p>Right to recover for mental anguish in separate action, note, 6 Ann. Cas. 48.</p> <p>[3] Id.—Evidence—View oe Injured Buggy—Lapse oe Tíme.—The trial court did not commit error in permitting the jury to view the injured buggy in which the plaintiff had been riding, although the trial was about a year after the accident, where the evidence showed that the buggy was in substantially the same condition that it was immediately after the accident.</p> <p>[4] Id.—Failure to Bequest Instruction—Appeal.—The appellant cannot on appeal for the first time take advantage of the trial court’s failure to give an instruction not requested before the jury-retired.</p> <p>[5] Id.—Instructions—Proximate Cause oe Injury-—Use oe Article “A” not Error.—An instruction that the law requires a person operating an overtaking vehicle to sound audible and suitable signal before passing a vehicle proceeding in the same direction, to which is added, “If you find that the defendant automobile driver failed to do so and that such failure was a proximate cause of the accident, your verdict, in the absence of contributory negligence on the part of the plaintiff, must be for the plaintiff,” is not prejudicially erroneous because of the use of the indefinite article “a” instead of the word “the” in connection with the words “proximate cause.”</p> <p>[6] Id. — Duty oe Driver oe Motor Vehicle Approaching Horse-drawn Vehicle.—In an action for damages for personal injuries arising out of a collision between a buggy and an automobile, an instruction that by statute the rule of the road in California is that every person having control of a motor vehicle on a public highway approaching any vehicle drawn by a horse shall operate the motor vehicle in such manner as to exercise every reasonable precaution to prevent the frightening of any such horse and to insure the safety and protection of any person driving the same, constitutes a proper statement of the law.</p> <p>[7] Id. — Future Damages—Use oe Word “Will.” — An instruction that if the injury impaired the plaintiff’s power to earn money in the future, such sum as will compensate him for such loss of power should be included in the damages, if the jury should find the plaintiff is entitled to recover damages, is not erroneous because of the use of the word “will” in connection with the word “compensate.”</p> <p>6. Duty of automobile driver where horses are encountered on highway, notes, 6 Ann. Cas. 658; 1 L. R. A. (N. S.) 223, 224; 14 L. R. A. (N. S.) 251; 48 L. R. A. (N. S.) 946.</p> <p>7. Measure of damages for loss of earning capacity of person engaged in business for himself, note, 9 A. L. R. 510.</p>

<p>[1] Negligence—Injury While Crossing Tracks—Failure to Look and Listen—Contributory Negligence.—In this action for damages for personal injuries resulting to plaintiff from being run over by one of the defendant’s interurban electric cars while he was attempting to cross the street, although the plaintiff looked and listened for the approach of cars before he left the sidewalk, his failure to again look and listen before crossing the second track, which was twenty-one feet beyond the first, the observance of either of which acts would' have warned him of the approach of defendant’s ear, constituted such contributory negligence as to bar recovery, notwithstanding such car was traveling at • an excessive rate of speed and the motorman failed to sound any warning.</p> <p>1. Duty of traveler after looking both ways on approaching track to look just before crossing, note, Ann. Cas. 1914A, 535.</p> <p>Duty to stop, look, and listen before crossing tracks of an electric road, notes, 15 L. E. A. (N. S.) 254; 23 L. B. A. (N. S.) 1224.</p> <p>[2] Id. — Interurban Oar Line — Rules of Caution Applicable.— Where a street which is largely given over to railway traffic is unpaved except at the crossing, and the double tracks which are utilized by an interurban ear line are open and unballasted, with the exposed ties and “T” rails projecting their full height above the street level, the rules of caution applicable are rather those of the steam railway than of street-car traffic.</p> <p>[3] Id.—Last Clear Chance—When Doctrine Applicable.—The doctrine of the last clear chance is not applicable where both parties are guilty of concurrent acts of negligence, each of which, at the very time of the accident, contributes to it, but only to conditions where the defendant, knowing of plaintiff’s danger and that he cannot extricate himself from it, fails to do something which is in his power to do to avoid the injury.</p> <p>[4] Id.—Knowledge of Danger Necessary.—In order to make the last clear chance rule applicable it' is not enough that defendant ought to have known, but it must appear that he actually did know, of plaintiff’s position of imminent danger.</p> <p>3. Origin, function, and mode of operation of doctrine of last clear chance, note, 55 L. R. A. 418.</p>

<p>[1] Municipal Corporations—Purchase of Supplies and Materials —Noncomplianoe With Charter Provisions.—Where a municipal charter provides that there can be no contract or order for supplies, for an amount in excess of a given sum, unless two-thirds of the city council shall vote in favor thereof, and further, that such vote shall be entered on the minutes, notice inviting proposals published, the contract let to the lowest bidder, etc., an attempted purchase of fire-alarm and police telephone apparatus and material for an amount in excess of such given sum, without complying with the provisions of the charter relating to the making of such a purchase, is void.</p> <p>[2] Id. —■ Limitation of Power to Contract — Estoppel — Ratification.—Where the power of a municipality to contract is thus limited by its charter, liability cannot arise by estoppel or ratification.</p> <p>1. Rights and remedies where contracts of municipal corporations are invalid, note, L. R. A. 1915A, 904.</p> <p>2. Ratification of invalid contracts of public corporations, note, L. R. A. 1915A, 1023.</p> <p>[3] Id. ■—■ Noncompliance With Charter — Recovery on Quantum Meruit.—Where a municipal charter prescribes the procedure to be followed in making certain purchases, and provides that the city shall not be bound by any contract unless such procedure is followed, but such procedure is not followed, recovery cannot be had on a quantum meruit.</p> <p>[4] Id.—Invalidity op Attempted Purchase—Vendor Charged With Notice—Duty to Demand Return.—The vendor, in such case, is charged with notice that there has been no valid sale or contract for sale, that there can be no establishment of a claim against the city by ratification, estoppel, or laches of its officers, and that it consigned its property to the possession of a party under conditions which would confer title by adverse possession, or bar relief by the running of the statute of limitations, and, therefore, it is clearly its duty to make demand for a return of possession of such property at least within the statutory period.</p> <p>[5] Id.—Delay in Commencing Suit—Laches—Statute op Limitations.—Where the provisions of a municipal charter relating to the making of purchases are not complied with, but demand for the return of the property is not made until over three years after complete delivery, and suit to recover the property is not begun until over two and one-half years after such demand, such delay is shown as to justify the court in finding that the action is barred by laches, and that the statute of limitations had run before the suit was begun.</p>

<p>[1] Pleading—Action to Recover on Notes—Amendment to Foreclose Mortgage—Change or Remedy.—The amendment of a complaint changing the nature of the action from one at law for the recovery of the balance due on certain promissory notes given in payment of a traction engine to a suit in equity to foreclose a mortgage on such engine given as security for the payment of such notes does not change the causes of action set forth in the original complaint, but merely changes the remedy.</p> <p>[2] Id.-—Election op Remedies—Estoppel.—The fact that the plaintiff took possession of the mortgaged property and undertook to sell the same under the provision of the mortgage authorizing it to take that course in case of a default in the payment of the . notes, and then commenced an action at law for the deficiency, did not estop it from thereafter amending its complaint and suing in equity to foreclose the mortgage on such property, the attempted sale pursuant to the provisions of the mortgage not having been effected and the original action not having been prosecuted to final 'judgment.</p> <p>[3] Id.—Capacity of Corporation — Estoppel of Mortgagor to Deny.—A mortgagor of property who has dealt with the mortgagee as a corporation, and received from it the consideration of the mortgage note, is estopped from denying its corporate capacity in an action by the corporation to foreclose the mortgage.</p> <p>[4] Id.—Action to Foreclose Mortgage—Right to Jury Trial.—A proceeding or action instituted for the purpose of foreclosing a mortgage, either on real or personal property, involves an equitable remedy, and a jury is allowable only as a matter of grace and not of right.</p> <p>[5] Sales—Warranty—Fraud—Failure to Rescind Contract—Action to Foreclose Mortgage—Evidence.—Where a contract for the sale of a traction engine contained no warranty that the engine would be of a given horse-power, or would in its operation develop that power, the only warranty contained in the order blank for the engine being that it would be made of good material “and durable with care, and be capable of doing more and better work than any other machine made of equal size and proportions, working under the same conditions on the same job, if properly operated ■ by competent persons,” the court, in an action to foreclose a mortgage on such engine given as security for the payment therefor, .properly struck out the defendants’ evidence offered to prove an alleged oral warranty and alleged fraudulent representations made by the plaintiff’s agent as to the horse-power of the ■ engine and its ability to perform certain specified service, the answer of the defendants not having alleged any rescission or offer to rescind the contract.</p> <p>2. Bringing suit not prosecuted to judgment as conclusive election of remedies, notes, 34 L. R. A. (N. S.) 309; L. R. A. 1917D, 657.</p> <p>3. Estoppel of defendant in action by corporation to deny corporate existence, note, Ann. Cas. 1914C, 1260; what names import corporation within rule, note, 5 A. It. R. 1580.</p> <p>[6] Id.—Knowledge of Defects—Retention of Engine—Failure to Give Notice—Waiver-—Estoppel.—Alleged fraud and misrepresentation as to the capacity of a traction engine is waived, and an estoppel to assert fraud is created, where the purchasers, with knowledge of the failure of the engine to measure up to alleged representations and warranties, retain the engine and make no complaint for over four months, at which time they request an extension of time of payment, whereas the' contract of sale gives them ten days within which to test the engine to ascertain if it meets the terms of the warranty contained therein and further provides, “Failure to so make such trial or to give such notice in any respect, shall be conclusive evidence of due fulfillment of warranty on the part of said company and that the machinery is satisfactory to the purchasers, and the company shall be released from all liability under the warranty.”</p> <p>6. Waiver of fraud generally, note, 67 L. R. A. 705; by completing executory contract for sale of personal property after discovering fraud, note, 8 L. R. A. (N. S.) 452.</p>

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

<p>[1] Workmen’s Compensation Act—Course of Employment—Leaving Premises to Secure Food.-—If an employee, during the hours of his employment, leaves the place of employment, with the knowledge, consent, and approval of his employer, for the purpose of procuring a bottle of milk to use with his lunch, as was his custom, he, while ministering unto himself, is nevertheless, in a remote sense, engaged in an act which contributes to his efficiency and furtherance of the work of Ms employer, and is entitled to compensation for injuries received while thus engaged.</p> <p>[2] Id.—‘Control of Elevators by Landlord—Use by Public — .Premises of Employer.—The facts that the elevator, the closing doors of which caught and injured such employee, was controlled by the owners of the building in which the employer, conducted a barber-shop and that the elevators in the building were for the use of all persons having occasion to use them as a- means of access to the building, could not affect such employee’s fight to compensation from his employer. Such elevators constituted an appurtenance to, and therefore a part of, the premises leased by such employer.</p> <p>[3] Id.—Liability of Owner—Release by Employee—Rghts of Employer not Affected.—The act of such employee, without the knowledge of the employer, and before the filing of Ms claim with the Industrial Accident Commission, in executing to the owners of the building a release of all liability against them on account of the injury sustained, in consideration of the payment to him of a given sum of money, could not destroy the employer’s right, as provided by section 26 of the Workmen’s Compensation Act, to recover against the owners of such building for liability created on account of the award made by the commission in favor of the injured employee and against such employer.</p> <p>1. Injuries received while procuring refreshment as within compensation act, notes, L. R. A. 1916A, 320; 1. R. A. 1917D, 120.</p>

<p>HI Promissory Notes—Execution by President and Secretary of Corporation — Consideration — Estoppel — Liability of Guarantors.—Where the promissory notes of a corporation, executed by its president and its secretary, are given for a valid and subsisting indebtedness and, as a consideration therefor, the corporation receives its former note, canceled, which was given for the purchase of certain property which it continues to retain and enjoy the use and benefit of, it will be estopped to deny the execution of said notes; and the secretary of the corporation, who executed a written guaranty thereof, is liable thereon as a guarantor.</p> <p>[2] Id.—Action on Notes—Admissions—Judgment—Reservation of Rulings—Affirmative Defense—Burden of Proof.—Where, in an action to recover on such notes, it was admitted that they were executed by the president and the secretary, claiming to act for the corporation, and that the secretary executed the written guaranties thereof, the admission in evidence of such notes was not necessary to support the judgment thereon against the corporation and against such secretary as guarantor; therefore, the latter was not prejudiced -by the action of the trial court in reserving its ruling upon the admissibility of the notes in evidence. If he had any affirmative defense the duty was on him to establish it by any evidence that existed.</p> <p>[3] Trials — Reservation of Rulings — Irregularities — Want of Prejudice—Appeal.—Where the reservation of a ruling by the trial court constitutes a mere irregularity, and does not result in any injustice to the complaining party, the judgment will not be disturbed on appeal because of such irregularity.</p> <p>1. Ratification by corporation of unauthorized contract entered into by officer by acceptance and retention of benefits, note, 7 A. L. R. 1446.</p>

<p>APPEAL from a judgment of the Superior Court of Kern County. Howard A. Peairs,. Judge, Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Attractive Contrivances—Duty Owing to Children.—Those who place an attractive but dangerous contrivance in a place frequented by children, and knowing, or having reason to believe, that children will he attracted to it and subjected to injury thereby, owe the duty of exercising ordinary care to prevent such injury to them, because such persons are charged with knowledge of the fact that children are likely to be attracted thereto and are usually unable to foresee, comprehend, and avoid the danger into which they are thus knowingly allured.</p> <p>[2] Id.—Death of Child on Mining Property—Dangerous and Enticing Trap—Ordinary Care—Intelligence of Child—Questions for Jury.—In an action for damages for the death of a minor son caused by his having fallen into a stope driven up through the floor of a tunnel in a mine, the ultimate question as to whether this was a trap enticing and dangerous to children, and whether the defendant exercised ordinary care in failing to close the mouth of the tunnel or otherwise to prevent children from wandering therein while playing with the cars, and from falling into the stope, and whether the deceased child was old enough and intelligent enough to anticipate, apprehend, and understand and to avoid the danger, are questions which are usually to he determined by the jury.</p> <p>[3] Id.—Attractive Nuisance—Evidence—Finding.—In this action-for damages for the death of a minor son caused by his having fallen into a stope driven up through the floor of a tunnel in a mine while playing with certain ears used in working the mine, the jury had sufficient evidence before it to justify a finding that the car, tunnel, and stope, taken together, did constitute an attractive nuisance within the general rule of the turntable cases.</p> <p>1. Attractive nuisances, note, 19 L. E. A. (N. S.) 1094.</p> <p>2. Liability of mine owner for injuries resulting from unguarded excavation, note, Ann. Cas. 1916E, 484.</p> <p>3. Liability of railroad companies for injury to children playing on turntables, notes, 14 L. E. A. 781; 4 L. E. A. (N. S.) 80; 16 L. E. A. (N. S.) 1129.</p> <p>Contributory negligente oí child injured on turntable, note, L. E. A, ¡L9.L7F, 111,</p> <p>[4] Id.—Contributory Negligence—Burden op Proof—Evidence.— The burden of proving contributory negligence rests on the defendant; and in this action for damages for the death of a minor son caused by his having fallen into a stope driven up through the floor of a tunnel in a mine, the jury was justified in finding from the evidence that this burden was not met.</p>

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

<p>[1] Easements — Adjacent Lands — Natural Flow of Surface Waters.—Where two adjacent parcels of land, belong to different owners, one being 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 the higher land has an easement by virtue of which storm waters from such land may be permitted to flow on to the lower tract, which latter is charged with a corresponding servitude.</p> <p>[2] Id.—Erection of Obstructions—Change of Natural Flow.— Such dominant tenement, however, has no right to erect a brick wall along the boundary line of his property, thereby causing ■ an accumulation of storm waters in large and artificial quantities at a particular spot, which are discharged upon the adjoining land with force and in a different form from that prevailing under natural conditions, whether such adjoining land be a city lot or a larger open tract.</p> <p>2. Eight to collect or divert surface water in masses, note, 21 L. R. A. 595.</p>

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

<p>[l] Contracts—Use of Property for School Purposes—Abandonment—Evidence.—In this action by a school district to compel specific performance of an alleged contract to convey certain real property and for the enforcement of a trust in the property, the letters and evidence introduced, given even their strongest construction in favor .of the plaintiff, showed nothing more than a willingness on the part of defendant’s predecessor that the school should take possession of an indefinite lot of land, a -part of a given quarter-section, and use it for school purposes so long as it might need it therefor, or so long as the district might find it convenient to maintain the school in that particular location. The plaintiff, having ceased to conduct a school on the premises and having abandoned possession thereof to the defendant, waived all further right to possession for any purpose whatever.</p>

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

APPEALS from a judgment of the Superior Court of Fresno County, and from an order granting a motion for a new trial. H. Z. Austin, Judge. Judgment affirmed; order granting new trial reversed. The facts are stated in the opinion of the court.

<p>[1] Waters and Water Eights—Prescription—Excessive Diversion. One actually diverting water under a claim of appropriation for a useful or beneficial purpose cannot by such diversion acquire any right to divert more water than is reasonably necessary for such use or purpose, no matter how long a diversion in excess thereof has continued.</p> <p>1. Correlative rights of upper and lower proprietors -as to appropriation of water, note, 41 L. R. A. 743-; right of prior appropriator, note, 30 L. R. A. 665, 668.</p> <p>[2] Id.—Amount of Water Necessary—Weight of Opinion Evidence.—In determining whether the amount of water in fact used on a given acreage was applied to a beneficial use and was reasonably necessary for irrigation and the other purposes to which it was devoted, the testimony of farmers, and of superintendents, ■ditch-tenders, stockholders, irrigators, and the presidents and directors of the various irrigation systems, whose actual knowledge of the lands and the use of water thereon has extended over a period of years, is of a higher quality than the mere opinion of experts who have made a mere casual or theoretical survey of the lands.</p> <p>[3] Id.—Presumption in Favor of Prior Appropriator.—In determining how much of the water in fact used on a given acreage was reasonably necessary for the purpose for which it was used, a court should be liberal with the appropriator to the extent, at least, that it should not deprive him of any portion of the amount of water that he has in fact used- for the period necessary to gain title by prescription, unless it is clearly and satisfactorily made to appear that he has used moi;e than was reasonably necessary.</p> <p>[4] Id.—Conflicting Rights to Waters — Erroneous Rulings of Trial Court—Prejudicial Conduct—Preponderance of Evidence —New Trial.—In these actions involving the rights of various companies to divert water from a given river for irrigation purposes, the various rulings of the trial court with reference to the admission and rejection of evidence, standing alone, were such that they might have been regarded as without prejudice, but when coupled with the conduct of the trial judge and the fact that the evidence preponderates in favor of appellant, were such that the interests of justice demanded a new trial.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. Charles Monroe, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a motion for a new trial. Paul J. McCormick, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Marin County. E. T. Zook, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco vacating an order denying a motion to set aside a judgment by default, and from an order of said court setting aside such judgment. James M. Troutt, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[l] Guaranty—Pledge of Stock as Collateral Security—Transfer of Stock to Pledgee—Exoneration of Accommodation Guarantor.—The action of the indorsee of a promissory note, which is secured by a pledge of certain corporation stock, in delivering the certificate for the stock to the secretary of the corporation and having a new certificate issued in his name and in thereafter voting the stock at a stockholders’ meeting will not exonerate the accommodation guarantor of such note.</p>

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

<p>[l] Contracts—Interpretation or—Action fob Breach—Extrinsic Evidence—When Admissible.—Where a contract relating to the purchase of a crop of beans is not so plain and unambiguous as to speak for itself unaided by extrinsic evidence, in an action for a breach thereof, testimony as to the nature and details of the transaction, the custom prevailing in the community in the- raising of beans, and the sale of the crop, and matters incidental thereto, is admissible, not for the purpose of varying the terms of the cm#tract, but to explain it and to enable the court to arrive at and interpret it in the sense in which the parties understood it.</p> <p>[2] Id.—Appeal—Absence of Evidence—Presumption.—In the absence of any transcript of the testimony or bill of exceptions, on appeal from the judgment in such action, it must he assumed that the evidence presented in support of the findings was competent to establish the allegations on which they were based, and was received without any objection, and was sufficient to sustain the facts found. 7</p> <p>[3] Id.—Construction of—Findings—'When of Law or Fact.—The construction of a contract, where that construction is to he arrived at from a mere reading of the agreement itself, or from such reading aided by extrinsic evidence of circumstances and the like, is always a construction of law; but when the meaning and construction of the contract are doubtful and depend upon extrinsic evidence, there may be a conflict in the extrinsic evidence itself, in which case the determination of that conflict results in a finding of pure fact.</p> <p>[4] Id.— Issues — Form of Statement in Complaint — Sufficiency fob Purpose of Findings.—Where in an action for a breach of contract the plaintiff has selected his own terms by which to tender the material issue of fact as to what the contract was, that form of statement is sufficient for the purpose of a finding.</p> <p>[5] Id.—Sufficiency of Answer—Trial—Waiver—Appeal.—Where no demurrer to the answer is interposed, and no objection thereto is made at the trial, the plaintiff will not he heard to assert for the first time on appeal that the answer of the defendant is not sufficient to raise issues upon certain material allegations of the complaint.</p>

<p>[1] Quieting Title—Community Property—Evidence—Findings.—In this action to quiet title to certain real property which stood of record in the name of the deceased wife of plaintiff and which she by her last will and testament undertook to devise to the defendant, the evidence sustains the finding of the trial court that the property was community property of the plaintiff and such deceased wife.</p>

<p>[l] Guardian and Ward — Authority to Draw Checks Prior to Issuance of Letters.—After the order appointing a given person guardian of the person and estate of an incompetent person has been duly made and entered and the bond in the amount specified in such order has been presented, approved, and, filed, such person has authority, as guardian, to draw checks on the account of such incompetent, notwithstanding the oath of office is not taken and letters of guardianship are not issued to him until two days later.</p>

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

<p>APPEAL from a judgment of the Superior Court of Sonoma County. Thomas C. Denny, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Counties-—-Partnership Claims Aqainst—Verification of.—-Sections 4075 and 4076 of the Political -Code do not require that partnership claims against a county shall be verified by a member of the partnership.</p> <p>[2] Id. — Form of Claims — Waiver of Objections. — Where claims presented to the supervisors are passed upon and rejected, and no objection is made to the form until after the commencement of an action thereon, objection as to the form of the claim presented is waived.</p> <p>[3] Id.—Rejection of Claims—Bight to Bring Suit.—Where claims against a county growing out of an alleged violation of a certain contract for road work are passed upon and rejected, the claimant may, under the provisions of section 40-78 of the Political Code, bring a suit thereon, notwithstanding such claims were not approved, before filing, by the road commissioner, or some other officer, as required by section 4076 of said code.</p> <p>[4] Id.—Action for Damages for Breach of Contract—Allegation of Nonpayment.—In an action for damages for breach of contract, it is sufficient for the purposes of demurrer to aver in the complaint the contract, the breach complained of, and general damages. An allegation of nonpayment is not necessary.</p> <p>[5] Id.—-Failure of Performance—Sufficiency of Allegation—Demurrer.—In an action for damages for breach of contract an allegation that “contrary to the wishes and will of plaintiffs, defendant did wrongfully and without cause fail and refuse to perform said agreement according to the terms thereof or at all, to plaintiffs’ damage,” etc., is sufficient to withstand a general demurrer. The objection that the complaint does not show how or in what respect the defendant failed to perform its part of the contract should be taken by special demurrer.</p> <p>[6] Id.—Contract by Supervisors—Liability of County for Violation.—Where the supervisors acted within the scope of their authority as agents of the county in entering into the contract, and had the power to authorize the acts complained of and to bind the county therefor, the contract being one which they were "empowered to make, the county is liable for the violation of such contract.</p> <p>[7] Id.—Motion to Set Aside Default—Discretion—Appeal.—A motion to set aside a default is addressed to the sound discretion of the trial court, and while appellate courts will listen more readily to an appeal from an order refusing to set aside a default, the determination of the trial court will not be disturbed in the absence of an abuse of discretion.</p> <p>[8] Id.—Failure to File Answer—Negligence of Counsel—Proper Denial of Motion.—Where plaintiff’s attorneys, weeks prior to the entry of the default of the defendant, had several times demanded in open court that answer be made and filed, and the defendant’s attorneys were willfully, grossly, and inexcusably negligent in their failure to prepare and file an answer prior to the time default was entered, defendant’s motion to set aside its default was properly denied.</p> <p>8. Right to open default judgment as affected by character of defense, notes, 61 I>. R. A. 746; L. R. A. 1916F, 839.</p>

<p>[1] Landlord and Tenant — Month-to-Month • Tenancy — Termination of.—Neither party to a lease from month to month can terminate the relation except by giving notice to terminate one month before the expiration of the term. The estate does not terminate by the mere lapse of time.</p> <p>[2] Id.—Tender of Keys—Insufficient Notice.—A tender of the keys to the premises covered by a lease from month to month is not sufficient as a notice to terminate Where the landlord refuses to accept the keys and the tenant continues to exercise dominion and control over the premises thereafter, though they are vacant.</p> <p>[3] Id,—Relation of Parties—Action to Recover Rent—Admissions —Appeal.—Where in an action to recover alleged unpaid rent the parties, both by their pleadings and in their statements to the court, agreed to the ultimate fact that the defendant was a tenant of plaintiff under a month-to-month tenancy up to the date defendant vacated the premises, defendant cannot on appeal, for the first time, raise the question that it does not appear that the defendant was the tenant of plaintiff.</p> <p>[4] Id.—Defective Statement of Pacts—Pleading—Appeal.—Mere defects in the manner of stating facts cannot be considered for the first time on appeal.</p> <p>1. Necessity and sufficiency of notice to quit, note, 42 Am. Dec. 126,</p>

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

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

<p>[1] Workmen’s Compensation Act—Employment as Carpenter on Dairy Farm—Course of Business of Employers—Evidence.—■ In this proceeding involving an award by the Industrial Accident Commission in favor of the widow and minor children of a man who died from injuries received through the giving away of a scaffolding used in connection with the construction of a silo on the dairy farm of the copartners by whom he was employed, the testimony of one of the copartners showed that the engagement of the deceased was in the course of the business or occupation of the copartners.</p> <p>[2] Id.—Election to Come Within Compensation Daw — Taking Out of Insurance—Evidence.—In this proceeding involving an award by the Industrial Accident Commission against the insurance carrier of certain copartners and in favor of the widow and minor children oí a man who died from injuries received through the giving away of a scaffolding used in connection with the construction of a silo on the dairy farm of the copartners, the admissions in the answer of the insurance carrier and its stipulations during the course of the hearing showed that such copartners had elected to bring themselves within the provisions of the compensation law, and also that insurance had been taken out thereunder.</p> <p>1. What accident arising out of, and in 'course of, employment is within purview of Compensation Act, notes, Ann. Cas. 1913C, 4; Ann. Cas. 1914B, 498; Ann. Cas. 1915A, 126; Ann. Cas. 1915C, 779; Ann. Cas. 1916A, 388; Ann. Cas. 1916B, 1293; Ann. Cas. 1916D, 584, 694; Ann. Cas. 1916E, 166; Ann. Cas. 1917D, 195, 199, 209; Ann. Cas. 1917E, 321, 332; Ann. Cas. 1918D, 683; Ann. Cas. 1918E, 813, 1168; L. B. A. 1916A, 40, 232; L. B. A. 1917D, 114; L. E. A. 1918F, 896.</p> <p>[3] Id.—Admissions in Pleadings and During Hearing—Necessity for Findings.—Pacts admitted in the pleadings or stipulated to be true on the hearing need not be made the subject of a finding.</p>

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

<p>[1] Trusts—Conveyance op Beal Property—Failure to State Purpose.—A deed which attempts to convey certain real property to a named person “as treasurer” of a given organization, “or his successor,” without designating any purpose to which the property should be put, while clearly indicating the intention of the grantor to create a trust in favor of such organization, does not conform with the requirements of the code relating to the creation of trusts in real property.</p> <p>[2] Id.—Language op Deed—Acceptance op Subsequent Conveyance —Notice.—The language of such a deed is in itself sufficient to put a prudent man upon inquiry as to whether it was an absolute grant to the named person or a conveyance in trust for the uses and purposes of the organization referred to therein; therefore, one who accepts a deed to the property from the person named as grantee in cancellation of an indebtedness due from the organization referred to therein cannot be said to be an innocent purchaser.</p> <p>[3] Id.—Intentions op Parties — Parol Evidence — When Admissible.—Where parol evidence is offered to explain the intentions of the parties as to whether a conveyance was a deed- absolute or in trust, it is admissible unless such evidence would prejudice a third party who, in good faith and without notice, has become a purchaser.</p>

<p>[1] False Representations—Materiality—Reliance upon.—In order to recover for false representations, the misrepresentation need not be the sole cause of the contract, but it must be of such a nature, weight, and force that the court can say without it the contract would not have been made.</p> <p>[2] Id.—Representations as to Ages op Trees—Reliance upon— Evidence—Finding.—In this action for damages for false representations as to the ages of certain walnut trees made by defendant’s agent upon the sale to plaintiff of defendant’s walnut grove, the evidence as to the investigations and inquiries made by plaintiff at the time he was shown the grove and the statements made by the agent at other times prior to plaintiff’s offer to purchase would not warrant the finding of the trial court “that he was induced to purchase the property because he relied upon the statements as to the ages of the trees.”</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Louis W. Meyers, Judge. Reversed in part; affirmed in part.</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. AfBrmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Mortgages—Priority Over Deed of Trust—Diligence of Parties—Fraud.—Where a money lender, before making a loan to be secured by the assignment to him of a mortgage on certain real property, examines the property covered by the mortgage, has the title thereof brought down to date showing the mortgage to be a first lien upon the property, causes the affidavit of the mortgagor to be taken showing that no concealed equities exists between her and the mortgagee, and causes the whole transaction to be handled by a corporation whose business it is to negotiate and consummate such dealings, it cannot be said- that his failure to make inquiries concerning the deed to the mortgagor and the trust deed from her in favor of her grantor, which recites that it is subject to such mortgage, constitutes gross negligence amounting to constructive fraud as against the grantor of the mortgagor, though such inquiry would have revealed to him the fraud perpetrated by others on such grantor.</p> <p>[2] Id.—Escrow Instructions—Recitals in Deed of Trust—Estoppel to Deny Priority.—Where the owner of property sells it to another, accepting a part payment down and a deed of trust for the balance, and agrees with the purchaser that a first mortgage for a given amount might be placed upon the property, there being a general understanding that the purchaser is to construct a residence upon the lot, and the escrow instructions to the title company signed by such vendor, in effect, plainly directs that the trust deed should be made subject to the mortgage in question, and such vendor accepts the trust deed containing such recital, he will be estopped to defeat or impair the mortgage by denying its priority, in the absence of fraud on the part of the holder thereof.</p>

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

<p>[1] Negligence—Personal Injuries—Damages.-—In this action for damages for personal injuries, the award of the jury was not so disproportionate to the injury proved as to justify the conclusion that the verdict was not the result of the cool and dispassionate discretion of the jury. Precise accuracy in assessing damages for personal injuries is never attainable.</p> <p>[2] Id.—Future Suffering—Damages—Instructions.—In an action for damages for personal injuries, an instruction to the effect that one of the elements entering into the measure of damages is “such reasonable sum as the jury should award- her on account of any physical pain or anxiety she may have suffered or may certainly suffer in the future by reason of her injury,” is not erroneous.</p> <p>1. What is excessive verdict for injuries not resulting in death, notes, 16 Ann. Cas. 8; Ann. Cas. 1913A, 1361; Ann. Cas. 1915D, 488; Ann. Cas. 1916C, 916; L. R-. A. 1915F, 30.</p> <p>2. Eight to recover for future pain and suffering due to personal injuries, note, 9 Ann. Cas. 1651.</p> <p>[3] Id.—Ordinary Oarb — Duty of Pedestrians.—Pedestrians must use such caution as ordinarly prudent men exercise under similar circumstances. The law does not define this ordinary care.</p> <p>[4] Id.—How Measured—Conclusion of Jury—When Disregarded. Negligence is not absolute, but is always relative to the particular circumstances on which it is sought to be predicated, and it is only where reasonable men can draw but one conclusion that the determination of the jury upon the question may be disregarded.</p> <p>[5] Id.—Abstraction of Pedestrian — Contributory Negligence.— Mere abstraction on the part of a pedestrian does not constitute contributory negligence.</p> <p>[6] Id.—Maintenance of Sidewalk Elevator—Liability of Owners and Users.—Where the owner of property maintains a sidewalk elevator, he is liable for injuries to pedestrians caused by his negligence, either in the construction, maintenance, or the operation of the elevator under his direction, or with his knowledge and by his permission; and one who uses such an elevator is liable for the results of his own negligence.</p> <p>[7] Id.—Happening of Accident — Absence of Explanation — Evidence of Want of Care.—Where, at the time the plaintiff fell through the hole in the sidewalk caused by the opening of the door of the sidewalk elevator, the elevator, with its doors, was under the joint management of the owner of the building and the company making delivery of purchases to such owner, and the accident was such as in the ordinary course of things does not happen if those having the management and control of such an instrumentality use proper care,, the fact of the accident, in the absence of explanation, affords reasonable evidence of want of care.</p>

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

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Mendocino County. J. Q. White, Judge, Motion denied. The facts are stated in the opinion of the court.

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

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

<p>APPEAL from a judgment of the Superior Court of Fresno County. D. A. Cashin, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Trademarks—Use of Container Common to Trade—Deception of Public—Unfair Competition.—Where the cans used by both parties to a suit for alleged unfair competition in the packing and sale of canned tuna are of the style put out by can manufacturers and are used by all the tuna-packing companies, the fact that anyone is deceived by the size, shape, and general make-up of the cans does not help the plaintiff's case, since plaintiff must show deception arising from some feature of its own, not common to the public.</p> <p>[2] Id.—Monopolization of a Color.—While sometimes a color, taken in connection with other characteristics, may serve to distinguish one’s goods, and thus be protected by the courts, as a rule, a color cannot be monopolized to distinguish a product.</p> <p>[3] Id.—Difference in . Labels—Absence of Confusion.—Where the difference between plaintiff’s and defendant’s labels are so marked-.in other respects that, in the absence of identity of color, there can be no possibility of confusion, a charge of unfair competition falls to the ground.</p> <p>[4] Id.—Descriptive Symbol not Subject . to Appropriation.—There can be no exclusive appropriation of the figure of a fish for use on labels to be used in connection with the sale of canned tuna. To give the right of exclusive appropriation, the sign or figure must be some arbitrary form or figure, not suggestive of the nature of the article to which it is affixed.</p> <p>[5] Id.—Falsehoods—When Public Protected.—The law of unfair competition does not protect purchasers against falsehoods which the tradesman may tell; the falsehood must be told by the article itself in order to make the rule of unfair competition applicable.</p> <p>[6] Id.—Duty to Public and Rivals.—One who so names and dresses his product that a purchaser who exercises ordinary care to aseertain the sources of its manufacture can readily learn that fact hy a reasonable examination of the boxes or wrappers that cover it has fairly discharged his duty to the public and to his rivals, and is guiltless of that deceit which is an indispensable element of unfair competition.</p> <p>1. What constitute, and what are infringements of, trademarks and trade names, note, 47 Am. Dec. 284.</p> <p>2. Use of color as infringement of trademark, note, 18 Aim. Cas. 1034.</p> <p>3. Label as trademark, note, 17 L. R. A. 130.</p> <p>6. Fraudulent intent as necessary element of unfair competition or infringement of trade name, note, 3 Ann. Cas. 32.</p>

PROCEEDING- in Habeas Corpus to secure the release of a person held in custody for the violation of a municipal ordinance. Writ discharged. The facts are stated in the opinion of the court.

<p>PROCEEDING in Mandamus to compel the settlement of a bill of exceptions. Writ denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Landlord and Tenant—Assessment of Lease—E^try into Possession and Payment of Bent—Failure of Assignee to Sign Immaterial.—An assignment of lease which recites that the assignee “hereby accepts .said assignment and hereby obligates itself upon said lease” from and after a given date, signed by the lessee and under which the assignee, without signing, enters into possession of the demised premises and pays the rent in accordance with the terms thereof, has the same binding force and effect as though the assignee had signed the same.</p> <p>[2] Id.—Agreement of Assignee to Pay Bent—Liability to Landlord—Effect of Subsequent Assignment.—Where the assignee of a lease expressly covenants to pay the rent reserved in the lease, its obligation as to the landlord is identical with that of the original lessee, and it cannot relieve itself of that liability by merely assigning the lease to another.</p> <p>2. Liability for rent as affected by assignment or sublease by tenant, note, Ann. Casi. 1916E, 788, 832, 837, 842, 844.</p> <p>Liability of assignee of lease for rent, note, 52 L. B. A. (N. S.) 978.</p>

<p>[1] Sales—Written Offer to Purchase—Deposit of Acceptance in. Mail — Contract Consummated.—A written contract of purchase binding in all respects upon the parties thereto is consummated when a written offer to purchase on certain specified terms, forwarded through the mail, is received by the seller and he deposits his written acceptance of such offer in the mail.</p> <p>[2] Id.—Delay in Delivering Telegram — Beceipt Before Withdrawal of Offer—Delay not Cause of Damage.—Where the acceptance of such offer to purchase was communicated to the offerer ■by telegram as well as by letter forwarded through the mail and, notwithstanding both communications were delayed in reaching the offerer, the latter did not attempt to withdraw his offer to purchase until after their receipt, the seller was not damaged by the delay in the delivery of the telegram, though the offerer would have completed the purchase of the property had he received the telegram upon the day on which it was sent.</p>

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

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

<p>[1] Findings — Conflicting Evidence — Appeal.—Where the evidence upon which the trial court based its judgment is conflicting, the appellate court is not at liberty to disturb the findings and conclusion thereon.</p> <p>[2] Deeds—Conditions Subsequent—Waiver—Parol Evidence.—In an action to enforce a certain forfeiture clause in a deed executed by plaintiffs' decedent to a corporation and conditioned upon the payment by the corporation to her of a specified sum monthly, evidence of the statements, acts, and conduct of such decedent subsequent to the making of the deed are admissible as tending to show a waiver by her of the requirements of such condition subsequent.</p>

<p>[1] Criminal Law—Discipline of Prisoners—Eights and Powers of State Prison Board—Summary Proceedings Before Board.—The purpose of vesting in the governing board of the state prisons of California the right and the power to punish prisoners confined in those prisons in the manner prescribed by section 1588 of the Penal Code is to compel, on the part of such prisoners, obedience to the rules of discipline established for the government of the conduct of the inmates of those institutions, and a proceeding instituted by such board for the purpose of ascertaining and determining whether a prisoner confined in any of said prisons has been guilty, while such prisoner, of an infraction of any of the prison rules or of any law of the .state may be summary in character.</p> <p>[2] Id.—Nature of Charge Against Prisoner — Eight to be Informed — Compliance With Section 1588, Penal Code.—A prisoner charged with an offense under section 1588 of the Penal Code is entitled to be informed, before he is put upon his trial, of the nature of such offense, but this requirement is sufficiently complied with where the „ charge is read and explained to him at the time of the hearing, whether such charge is merely entered in some book in which evidence of the proceedings of the board is preserved or written on a sheet of paper disconnected with any such book.</p> <p>[3] Id.—Sufficiency of Notice of Hearing.—While the provision of section 1588 of the Penal Code requiring that a prisoner confined in a state prison is entitled to notice of the pendency of the charge against him before the board is mandatory, so long' as the prisoner is given due or such timely notice as will put him in possession of knowledge of the nature of the charge to which he is required to plead as will afford him sufficient opportunity for the preparation of any defense which he may have, whether such notice be given in writing or orally, it is sufficient.</p> <p>[4] Id.—Entry of Plea of Guilty—Waiver of Notice of Hearing.— Where a prisoner is brought before the prison board and, after the charge against him is read and explained, he does not express a desire to contest the same but enters a plea of guilty, he will be held to have waived any further or different notice than that which has been given him.</p> <p>[5] Id.—Conferring of Jurisdiction by Consent — Limitation of Bule Against.—The expression that “jurisdiction cannot be conferred upon a court by the mere consent of the parties” means that jurisdiction of the subject matter of an action or proceeding cannot be so conferred; but that rule has no application where the question is as to the jurisdiction of the tribunal of the person of a party to a controversy over a subject matter of which such tribunal has jurisdiction under the law.</p> <p>[6] Id.—Jurisdiction of Prison Board Over Prisoners.—Under the law giving to the board of state prison directors its power as such, the said board has at all times for all the purposes of the state prisons and the government thereof jurisdiction of the persons of all prisoners confined therein. a</p>

<p>[1] Attachment—Contract for Sale and Delivery of Crop—Action for Damages for Breach.—In an action for damages for breach of an agreement for the sale and delivery of a crop of tomatoes, the issuance of an attachment is not authorized.</p>

<p>HI Criminal Law—Larceny of Automobile—Unexplained Possession by Defendant—Inference of Gtrii/r.'—In this prosecution for the theft of an automobile, the evidence showing the possession of the car by the defendant shortly after the commission of the crime and his failure to offer any explanation when arrested, coupled with other circumstantial evidence, was sufficient to justify the inference that the defendant was the perpetrator of the crime.</p> <p>[2] Id.—Failure to Demand Car—Comment by District Attorney— Legitimate Argument.—In a prosecution for the theft of an automobile, a statement by the district attorney, in his argument to the jury, that there is no evidence that the person to whom the defendant sold the car and from whom the owner recovered the possession thfereof “has ever sought to recover this car; he never made a demand for the car,” is within the scope of legitimate argument, that fact being a circumstance tending to shake the credit to be given to his testimony that he purchased the car from the defendant on a particular date, which date was more than two weeks before the theft, and to show his knowledge or belief that the car had been stolen.</p> <p>[3] Id.—Defendant’s Unexplained Possession of Car—Proper Comment by District Attorney.—In a prosecution for the theft of an automobile, it is not error for the district attorney, in his argument to the jury, to call their attention to the failure of the defendant to produce any witness to account for his possession of the property.</p> <p>I. Possession of recently stolen property as evidence of larceny, note, 12 L. R. A. (H. S.) 199.</p>

<p>EH Habeas Corpus—Conviction on Insufficient Complaint—Bight to Discharge.—Where there is an entire failure of the complaint in a justice court to state an offense, a defendant, even after conviction, is entitled to his discharge upon a writ of habeas corpus.</p> <p>[2] Criminal Law—Conduct of Percentage Game or Banking Game —Insufficient Complaint.—A complaint charging that the defendant, at a named place and on a given date, “did then and there knowingly and unlawfully conduct a percentage and banking gambling game—Seechinetta,” without charging that the game was played “for money, checks, credit, or other representative of value,” or any equivalent words, fails to state a public offense.</p>

PROCEEDING on Habeas Corpus to secure the release of certain minors committed to the custody of the county probation officer. Writ discharged. The facts are stated in the opinion of the court.

PROCEEDING in Mandamus to compel the receipt and filing of a nominating petition. Writ denied. The facts are stated in the opinion of the court.

<p>[1] Equity—Restraint of Authorized Act.—A court of equity will not restrain any person from doing that which the law authorizes that person to do.</p> <p>[2] Corporations—Disincorporation—Payment of Debts—Levy of Assessment.—In order to accomplish the disincorporation of a corporation and wind up its affairs as such, it is a legal prerequisite that the debts of the corporation be paid, and, if necessary, an assessment may be levied for that purpose.</p> <p>[3] Id.—Dissolution for Purpose of Incorporation in Another State—Constitutional Guaranty.—The fact that the same individuals who at present comprise the officers and directors of a corporation organized under the laws of this state may, after its dis-incorporation, go to another state, under the laws of which they may believe more freedom of action will be given to them, while one may not approve of that course, still it is a violation of no law and is but the exercise of a right guaranteed under the constitution of the United States.</p>

<p>[1] Evidence—Court Records—Judicial Notice.—A trial judge is bound to. take judicial notice of the files of his own court.</p> <p>[2] Pleading — Foreclosure of Chattel Mortgage — Supplemental Complaint Against Joint Maker of Note for Deficiencv.— Where the defendants makers of a chattel mortgage given as security for the payment of a certain promissory note executed by them and their codefendant default after service of summons, but their eodefendant appears and files an answer, and the court, after entry of the default of the defendants not appearing, but without trying the issues raised by the answer of the codefendant, enters a decree determining the liability of the defaulting defendants and orders the mortgaged property sold and the proceeds applied to the payment of said indebtedness, and such property is accordingly sold, leaving a deficiency, the plaintiff is not entitled to file a supplemental complaint setting up such facts and asking judgment for such deficiency against the defendant who appeared.</p> <p>[3] Id.—Demurrer to Supplemental Complaint Sustained—Original Complaint and Answer Disregarded—Erroneous Judgment.— Where such appearing defendant in his answer to the original complaint sets forth “that he executed said note as surety, and not otherwise,” etc., the trial court, after sustaining his demurrer to the supplemental complaint without leave to amend, committed error in entering judgment “that the plaintiff take nothing by this action,” etc.</p> <p>[4] Id.—Office of Supplemental Complaint.—A supplemental complaint is not an amendment to a pleading, and is not so classed in the code, but it is only authorized for the purpose of bringing before the court facts material to the case occurring after the former complaint or answer, and leaves the former pleading intact.</p> <p>[5] Id.—Construction of Section 726, Code of Civil Procedure— Application to Sureties and Other Than Privies.—Section 726 of the Code of Civil Procedure applies to the primary debtor, and was enacted for his benefit, and does not apply to an individual guarantor or surety, or to a subsequent endorser upon a promissory note, nor, in fact, to any case where there is no privity of contract existing between the two obligations—that is, where the promissory debt and the obligations under the mortgage are separate and distinct obligations.</p> <p>1. Judicial notice of court proceedings, note, 4 L. R. A. 34. Judicial notice of the court’s own records in other actions, notes, 12 Ann. Cas. 537; Ann. Cas. 1913A, 140; Ann. Cas. 1915B, 651; 11 L. R. A. (N. S.) 616; 29 L. R. A. (N. S.) 905.</p>

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

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

<p>PROCEEDING in Mandamus to compel a city clerk to provide ballots containing suitable blank spaces wherein electors may write in the names of persons not printed thereon. Peremptory writ issued.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[l] Mortgages — Guaranty oe Payment by Assignor — Action to Poreolose — Parties — Judgment.—Where a mortgagee assigns a note and mortgage and, for a valuable consideration, guarantees the payment of the note, in a subsequent action by the assignee to foreclose the mortgage such mortgagee may properly be joined with the makers of the note as a party defendant and a deficiency judgment be docketed against it therein.</p>

<p>[1] Criminal Law — Application for Continuance — Discretion op Trial Court—Appeal.—An application for a continuance of the time of trial in a criminal action is one which addresses itself to the sound discretion of the trial court; and without an abuse of discretion being made to appear to the appellate court, that court cannot interfere with the action taken.</p> <p>[2] Id.—Bight to Trial by Specific Jurors — Excusal op Jurors Without Challenge—Absence op Prejudice.—A defendant in a criminal action has no vested right to have certain specific jurors sit in the trial of his case; and where it appears without question that he was tried by twelve competent, fair and qualified jurors, he not having exhausted all of his peremptory challenges, he is in no position to complain of the action of the trial court, at the beginning of the trial and before any of the names in the jury-box of jurors regularly in attendance had been drawn, in excusing two certain jurors from further attendance as jurors.</p> <p>[3] Id.—Prosecution for Burglary and Grand Larceny—Incriminating Admissions op Defendant — Evidence.—In a prosecution for burglary and grand larceny, testimony as to a conversation had with the defendant' in the county jail, wherein he made incriminating admissions, is properly admitted, the witness having testified in positive terms that he held out no hope of reward and said nothing from which the defendant could have drawn such an inference.</p> <p>[4] Id.—Escape and Flight—Attack on Officer—Evidence.—In a prosecution for burglary and grand larceny, evidence of defendant’s escape and flight from the jail after his arrest, and the fact that when apprehended a few hours thereafter he, in resisting the officer, tried to cut the latter’s throat with a razor, was admissible as tending to show consciousness of guilt.</p> <p>[5] Id.—Burglar Tools Taken from Companion—Admissibility in Evidence.—In such prosecution for burglary and grand larceny, the court did not err in admitting in evidence a bag of burglar’s tools which, while not in defendant’s actual possession, was in the apartment of a woman with whom he was unlawfully living and to whom he, by telephone, communicated an order directing her to take the same and deposit in a parcel-room, which she did, receiving a check therefor, which was found under the carpet of the apartment by the officers, who thus obtained possession of the bag.</p> <p>[6] Id.—Duty of Court to Preserve Order—Bight to Gag Obstreperous Party.—It is the duty of a trial judge in the administration of justice to preserve the order of the court and see to it that all persons whomsoever, including the defendant himself, indulge in no act or conduct calculated to obstruct the administration of justice; and if necessary to the orderly proceedings of a court, the trial judge would be justified in causing an obstreperous defendant to be gagged where the trial could not proceed without such action.</p>

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

<p>[1] Appeal—-Bill op Exceptions—Insufficiency of Evidence—Absence of Specification—Review op Bindings.—Where the bill of exceptions on appeal from the judgment of the trial court contains the evidence received at the trial, but the record contains no specification of any kind directed to insufficiency of the evidence to support the findings, no question of sufficiency of the evidence to sustain the findings can be considered.</p> <p>[2J Broker’s Commissions—Reasonable Value op Services—Failure to Object to Evidence—Findings—Variance.—In this action to recover the amount of a commission alleged to be" due for services rendered in procuring a tenant to whom the defendants made a ' lease of real property, the defendants were not misled in any way, nor did any miscarriage of justice result from the judgment of the trial court in favor of the plaintiffs based on its finding as to the reasonable value of the services rendered by them under their contract of employment, the court having further found that the defendants did not expressly agree to pay the amount sued for, as alleged in the complaint, and such finding establishing the reasonable value of the services performed having been based upon evidence introduced at the trial, to which evidence no objection was made.</p>

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

<p>HI Vendor and Vendee—Action to Recover Unpaid Installments— Reasonableness of Contract—Pleading.—An action to recover the amount of certain installments due and unpaid as part of the purchase price provided in a contract of sale of real property is an action at law to recover money due on the contract and not an action in equity to compel specific performance of the contract; and in such an action it is not necessary to allege or to state facts showing that the contract is as to the defendant fair, just, and reasonable.</p>

<p>APPEALS from a judgment of the Superior Court of Monterey County, and from an order denying an application to he relieved from the forfeiture of a lease. J. A. Bardin, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Public Work—Time op Completion—Installation op Temporary Fixtures — Beflacement — Delay in Filing Claim — Erroneous Judgment.—In this action by a materialman on a contractor’s bond, executed pursuant to the provisions of Act No. 2895, the school buildings in question were completed on the date when the board of trustees, vested with full power to do so, formally accepted the same, took possession thereof and occupied them for school purposes, notwithstanding the contractor, due to his' inability to procure certain fixtures called for by the specification, installed therein temporary fixtures, posting his certified cheek as security for his furnishing, when procurable, the fixtures called for by the specifications, and such temporary fixtures . were not replaced by the proper fixtures until a later date; and plaintiff’s claims not having been filed within ninety days after such completion, though within ninety days after such temporary fixtures were replaced, judgment in its favor against the surety on the contractor’s bond was erroneous.</p>

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

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

<p>EH Appeal—Failure to File Brief or Appear for Oral Argument —Affirmance of Judgment.—Where an appeal is taken under the alternative method but the appellant does not file a brief or appear at the time set for oral argument, no reason being presented to the appellate court to show that the judgment as entered by the trial court was in anywise defective, erroneous, or improper, the judgment will be affirmed.</p>

<p>[1] Divorce—Contest by Wife—Eight to Temporary Alimony and Counsel Dees—Inability of Husband to Pay.—If a husband comes into court for a divorce and the wife makes, a defense, he must expect to furnish her with money .to enable her to make her defense, and, likewise, money wherewith to support herself during the litigation; and while the court may not punish him for contempt or dismiss his suit if he is unable to pay or earn the amount awarded the wife, it will refuse to proceed with the action until he has made the payments.</p> <p>[2] Id.—Ownership by Wife of Honincome-producing Troperty— Liability of Husband for Temporary Alimony.—Where the wife is the owner of nonineome-producing property, the' law does not require her to have recourse to her own resources first, or ‘to impair the capital of her separate estate, before calling on the husband for temporary alimony pending the latter’s appeal from a judgment in her favor, based ‘on her cross-complaint, in an action for divorce instituted by him.</p> <p>[3] Id.—Sufficiency of Alimony—Eight to Increased- Alimony Pending Appeal—Evidence—Burden of Proof—Presumption.— To entitle the wife, petitioning for temporary alimony pending her husband’s appeal from a divorce decree in her favor, to an amount in excess of the permanent alimony thereby awarded her, after a trial on the merits where all the facts may be, and presumably are, adduced and considered, it is incumbent upon her to adduce evidence of new conditions that show a necessity for the increase, or else that the amount allowed by the decree was inadequate in the first instance. In the absence of such showing, the amount awarded by the decree must be presumed continuously adequate for her support until the judgment appealed from has become final, or, if the judgment is reversed, until a final judgment shall have been rendered in the-divorce suit..</p> <p>[4] Id..—Temporary Alimony Pending Appeal—Liability of Husband to Pay Twice—Duty of Court to Protect Husband.—The trial court, in making an order for the payment of temporary alimony pending the husband’s appeal from a divorce decree in favor of the wife, is under a duty to protect the husband against the possibility of being compelled, by reason of the possible affirmance of the judgment .or the dismissal 'of the appeal therefrom, to pay twice for any .period .of time; and in so far as such an order fails to give "that protection, it is erroneous.</p> <p>1. Contempt proceedings to compel payment of alimony, note, 24 L. R. A. 433.</p>

<p>[i] Contracts — Nature of — Ambiguity and Uncertainty — Parol Evidence.—Where written agreements relating to real property are ambiguous and uncertain as to whether they were intended to constitute an option to- purchase the property or a lease thereof with an option to purchase, in order to arrive at a correct interpretation the trial court, in an action based thereon, is justified in resorting to evidence of the circumstances under which they were executed, including the situation of the subject matter thereof and of the parties thereto.</p> <p>[2] Id. — Findings — Appeal on Judgment-roll Alone—■ Presumptions.—The trial court, in such action, having admitted evidence upon such points and having determined that the instruments did not constitute a lease, and the appeal from the judgment based on such finding having been taken on the judgment-roll alone, the appellate court must assume that the evidence thus admitted fully supported the findings of the trial court.</p> <p>[3] Id.—Agreement to Fat Taxes—Termination of Option—Extent of Liability.—Where such agreements provided that the holder of such option should pay all taxes assessed upon the property during the term of the option, he became liable only for the taxes which became due prior to the termination of the option, notwithstanding the owner of the property did not resume control and dominion over the property until a later date.</p> <p>[4] Id.—Action on Contracts—Ambiguity and Uncertainty—Issues —Parol Evidence—Findings.—The agreements set out in the complaint having been ambiguous and uncertain, and there having been an issue as to the correct interpretation thereof, the trial court having properly admitted evidence of the circumstances under which they were executed, its findings touching those circumstances cannot be said to be outside the issues made by the pleadings.</p>

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

<p>APPEAL from an order of the Superior Court of San Luis Obispo County dissolving a restraining order and denying a motion for an injunction pendente lite. T. A. Norton, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Fire Insurance — Preliminary Proof of loss — Failure of Owner to File in Time—Bar to Action on Policy.—Where a policy of fire insurance provides that “within sixty days after the commencement of the fire the insured shall render to the company . . . preliminary proof of loss,” and further, that “no suit or action on this policy for the recovery of any claim shall be sustained, until after full compliance by the insured” with such requiremént, neglect or failure on the part of the owner to render such preliminary proof of loss within the time specified constitutes a bar to his right of recovery.</p> <p>[2] Id.—Eights op Mortgagee—Action not Barred by Neglect ob Failure op Owner.—Where there is attached to such policy ■ a mortgage clause providing that the loss or damage,' if any, under the policy, shall be payable to the mortgagee and that the insurance, “as to the interest of the mortgagee, only, therein, shall not be invalidated by any act or neglect of the mortgagor or owner,” and there is no provision requiring him to file a preliminary proof of loss, such mortgagee is not required to file such proof of loss, and the neglect or -failure of the owner to file a preliminary proof of loss will not bar such mortgagee’s right of recovery.</p> <p>[3] Id.—Neglect op Owner—Eight op Mortgagee to Perform—Construction op Section 2541, Civil Code.—The provision of section 2541 of the Civil Code that where the mortgagor as insurer neglects the performance of acts necessary to the validity of the insurance, the mortgagee named in a- policy as being entitled to indemnity in ease of loss may perform them is restricted to acts “prior to the loss,” which, if not performed, would avoid the insurance.</p> <p>2. Effect of mortgagor’s failure to give notice or proof of loss on mortgagee’s right to recover, note, 14 L. R. A. (N. S.) 459.</p>

<p>[1] conversion—Expenditures in Pursuit of Property—Damages. In an action for the wrongful conversion of property a plaintiff is entitled to recover a fair compensation as damages for time and money properly expended in pursuit thereof.</p> <p>[2] Jurisdiction — How Determined — Judgment Prayed. — Whether the superior court has jurisdiction in an action at law is to be determined by the demand or prayer of the complaint, made in good faith and reasonably supported by the allegations on which it is founded, and if this demand amounts to three hundred dollars, exclusive of interest, such court has jurisdiction of the case for all purposes, entirely regardless of the amount which the plaintiff may finally be held to be entitled to recover.</p> <p>[3] Appeal—Eight to Assess Damages, When Frivolous.—Where an appeal is frivolous or taken for delay, the appellate court, under section 957 of the Code of Civil Procedure, may, in affirming the judgment, add to the costs on appeal such damages as may be just.</p>

<p>APPEAL from a judgment of the Superior Court of Imperial County. Franklin J. Cole, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Place of Trial—Rescission of Contract—Fraud—Action to Recover Money Paid and Damages—Parties Defendants.—In an action to recover money paid, notes given and damages incurred by reason of a rescinded contract of sale of a motor-truck to plaintiff by alleged fraudulent and false representations, only the parties to such contract, or those in privity with them, can be joined; and, while one not a party to the contract but who fraudulently participated in inducing the execution of the contract would be liable in an action for damages, he would not be a party to the liability involved in the rescission, and his joinder as a defendant will not justify the retention of the action in the county of his residence as against the motion and demand of the defendant party to the contract that the place of trial be changed to the county of the latter’s residence.</p> <p>[2] Id.—Order Changing Place of Trial—Estoppel to Commence New Action.—Where the court on a motion by one defendant to change the place of trial to the county of his residence has determined that his codefendant is not a proper party to the action and granted the change of venue, the plaintiff is estopped from bringing a new action and again making the latter a defendant to give jurisdiction under the same state of facts, or by merely camouflaging them in a different form of action which such facts will not support.</p> <p>[3] Id.—Statement Cause of Action—Conclusive of Complaint —Right to Present Sufficiency on Motion for Change of Venue.—The fact that the complaint states a cause of action . against the defendant resident in the county where the action is brought is not conclusive as against a motion by a codefenda/nt to change the place of trial to the county of the latter's residence, but it may be shown on such motion that the cause of action stated does not in reality exist.</p> <p>[4] Id.—Order tor Change ot Place ot Trial—Finality ot—Appeal from.—An order for change of place of trial has all the characteristics of a final judgment, and an appeal lies therefrom.</p>

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

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

<p>[1] Motor Vehicles—Municipal Ordinance Prescribing Boute—Authorized Deviation by Driver—Evidence—Presumption.—In an action against a jitney-bus driver and his insurance carrier to recover damages suffered by collision with a motor-bus being operated pursuant to a permit issued in accordance with the provisions of a municipal ordinance, the accident having happened at a point beyond the prescribed terminus of the route over which the motor-bus operated, it may properly be assumed, in the. absence of evidence to the contrary, that such deviation was authorized where the ordinance under which the bus was operated in several of its clauses authorizes a deviation, under circumstances therein specified, from the prescribed route.</p> <p>[2] Id.—Change of State Serial Number—Necessity for New Permit.—The jitney-bus driver having secured the permit to operate his motor-bus, in accordance with the provisions of the ordinance, it was not necessary for him to secure a new permit for that purpose at the time the state serial number of the machine was changed, the ordinance not having so provided.</p> <p>[3] Id.—Failure to Pile Agreement of Renewal of Policy—Release of Insurance Company from Liability.—The ordinance having provided that it should be unlawful to conduct any such motor-bus business unless there should oe executed and remain in full force and effect at all times, and on file in the office of the city clerk, a certain indemnity insurance policy, but not having provided that the agreements of renewal should thus be on file, the insurance company was not released from liability by reason of the fact that the agreement of renewal covering the period in which the accident occurred was not on file in the office of the city clerk at the time of the accident where the policy was in effect at that time and such agreement of renewal was thereafter filed with the city clerk.</p> <p>[4] lb.—Execution op Indemnity Policies- as Commercial Adventure—Strict Bules op Construction not Applicable.—An insurance company executing such an indemnity bond as a commercial venture cannot invoke the strict rules which the courts and statutes have devised for the protection of gratuitous sureties.</p> <p>4. Liability of surety company as distinguished from that of gratuitous surety, note, 12 A. L. R. 382.</p>

<p>[1] Agency—Ratification of Portion of Unauthorized Act—Effect.—If a principal ratifies any portion of an unauthorized transaction of his agent, he must be deemed to have ratified the whole of it.</p> <p>[2] Id.-—-Receipt of Benefits.-—A principal may not receive the benefits and at the same time disclaim responsibility for the methods adopted by his agent.</p> <p>[3] Id.—Acquiescence to Provisions of Unauthorized Contract— Ratification—Estoppel.—Where, with full knowledge of all the facts involved, a principal reaps the fruits of the unauthorized contract of his agent, and for some time yields acquiescence to its provisions, he will be deemed to have ratified it, and will be estopped, as against one who has fully performed the contract on his part, from repudiating it to the injury of the latter.</p> <p>[4] Id.—Payment of Purchase Price to Agent—Settlement Effected Between Principal and Agent—Ratification of Agent’s Acts.—In this action to recover the purchase price of certain fire apparatus sold and delivered to defendant through plaintiff’s agent, the latter having received payment in full therefor from defendant, the plaintiff, in thereafter effecting with such agent a partial settlement, ratified the act of the agent in collecting the purchase price, notwithstanding that prior to the shipment of the apparatus he notified defendant that payments were to be made direct to him.</p> <p>2. Ratification of unauthorized act of an agent by silence, note, Ii. R. A. 19180, 222.</p>

<p>[1] Street Law—Adoption of Plans and Specifications—Reference to in Resolution of Intention—Certainty of Identification.— A recital in a resolution of intention for the improvement of a portion of a city street that the work is to be done “in accordance with the plans and specifications heretofore adopted for doing said work and now on file in the office of the city clerk” is not uncertain and misleading because there are two sets of plans and specifications on file, where one of the sets was filed the same day the resolution of intention was passed and referred to the terminal streets by the names by which they were then designated and the other set was filed over four years earlier and referred to the streets by which they are designated at such earlier date, the name of one of the terminal streets having subsequently been changed.</p> <p>[2] Id.—Alternative Provisions for Iron or Steel Culverts—Absence of Injury.—Plans and specifications are not invalidated by an alternative provision therein for culverts of corrugated iron or steel, where such provision will not seriously affect the property owners.</p> <p>[3] Id.—Character of Gravel Required—Certainty of Specifications—Compliance With.—Such specifications are not indefinite and uncertain as to the character of gravel required in that they provide that such gravel shall be “of sound trap rock or granite composition equal to the gravel found in the San Joaquin River,” where they require that no work shall be accepted which may be defective in its construction or deficient in any of the requirements therein provided. Such specifications cannot be complied with by the furnishing of any other quality of gravel than that specified merely because it may be equal to that, or be in fact found, in the San Joaquin River at some remote distance from the city wherein the improvements are to be made.</p> <p>[J] Id.—Obedience to Instructions—Construction of Specifications.—Such specifications, in requiring that “the contractor shall be held liable for the faithful observance of any instructions which may be delivered to him or to his representative on the work,” are not subject to the objection that the contractor is made liable for the instructions given him by any person, where such requirement is but a portion of a paragraph of the specifications and is immediately preceded by a provision that “the contractor shall be constantly on the work during its progress, or shall be represented by a foreman who is competent to receive and carry out any instructions that may be given him by representatives of the street superintendent.”</p> <p>[5] Id.—Issuance of Bonds—Identification of Act to be Issued Under — Sufficiency of Besolution of Intention.—Where the resolution of intention recites that all the proposed work shall be done under the Improvement Act of 1911, that serial bonds shall be issued to represent each assessment of twenty-five dollars or more, and that they shall extend over a period not to exceed nine years from the second day of January next sueceedmg their elate, payable in equal annual installments on the second day of January each year thereafter, it sufficiently appears that the bonds are to be issued under the Improvement Act of 1911, and not under the Improvement Bond Act of 1915.</p> <p>[6] Id. — Time Bonds to Bun — Sufficiency of Specification in Besolution of Intention.—Section 61 of the Improvement Act does not require that the resolution of intention shall distinctly specify a definite time in which the bonds are to run, it being sufficient if it states, in the language of the statute, that the bonds “shall extend over a period not to exceed nine years from the second day of January next succeeding their date.”</p> <p>[7] Id. — Special Taxation for Local Improvements — Constitutional Bight of Property Owners to be Heard.—No constitutional rights of property owners are invaded in the enactment of statutes for special taxes for local improvements if, at some stage of the proceeding, the property owner has the right to a hearing upon the question as to what portion of .the tax shall be assessed upon his land. •</p> <p>[8] Id.-—Statutory Bight to Protest Against Work—When Effective to Avert Further Proceedings.—The right of property owners to protest and avert further proceedings is purely the creature of the statute, and this privilege afforded to the land owner by the “Improvement Act of 1911” is a conditional one only, and in order to be effective requires the approval of more than one-fifth of the members of the board.</p> <p>[9] Id.—Notice of Improvement—Size of Letters—Immaterial Defect.—A notice of improvement posted by the superintendent of streets is not fatally defective because the length of the letters comprising said words is from one twenty-fifth to one sixty-fourth less than the one-inch prescribed by the statute.</p>

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

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

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

<p>[1] Evidence—Findings Based on Conflicting Evidence—Appeal.— In an action to recover for personal services, where the evidence is conflicting as to whether the plaintiff was employed by the . defendant corporation or by another company having a similar name and the trial court finds that plaintiff was not employed by defendant corporation, such finding is conclusive and binding on the appellate court.</p> <p>[2] Id.—Documentary Evidence of Agency—Remoteness in Time. In such action, documentary evidence offered for the purpose of proving that the person who employed plaintiff was the representative of the defendant corporation is properly excluded where the employment of plaintiff was alleged to have taken place almost a year prior to the dates of such documents.</p>

<p>APPEAL from a judgment of the Superior Court of Kern County. J. W. Mahon, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>[1] Corporations — Making Dividends Out of Capital — Statutory Liability of Directors—Bight of Corporation to Enforce.— Where the directors of a corporation make dividends out of other than surplus profits, contrary to the provisions of section 309 of the Civil Code, the right to recover upon the liability defined by that section is not limited to a recovery on behalf of the stockholders or the creditors of the corporation, but the corporation itself may maintain a suit to enforce such liability.</p> <p>[2] Id.—Actual Damage to Corporation.—Where the directors of a corporation make dividends out of other than surplus profits, contrary to the provisions of section 309 of the Civil Code, the actual damage to the corporation is the amount which its capital is depleted by the unlawful dividends.</p> <p>[3] Id.—Recovery by Corporation from Stockholders—Diminution of Bight to Recover Against Directors.—The right of the corporation to recover from those to whom corporate assets may have been unlawfully transferred does not affect the statutory liability of the directors who made the unlawful distribution, unless the corporation, in the exorcise of the first right, causes the replacement, in whole or in part, of what was taken from the corporation. In that event the liability of the directors would be diminished proportionately or expunged, since the corporation would be entitled to what -was taken and no more.</p> <p>1. Liability of directors to corporation for acts in excess of their power, note, 55 L. R. A. 758.</p> <p>Liability of stockholders who receive dividends paid out of capital, notes, Ann. Cas. 1915A, 827; Ann. Cas. 1917A, 575; L. B. A. 1917C, 397.</p> <p>[4] Id. — Action to Enforce Statutory Liability of Directors — Parties—Rights of Directors Against Stockholders Immaterial.—In an action by the corporation against the directors to enforce the liability of the latter for making dividends out of other than surplus profits, neither the corporation nor the court is concerned with the question of any subsequent rights of the directors to pursue the stockholders to whom such dividends were paid, they being neither necessary nor proper parties to the litigation.</p> <p>[5] Id. — Acceptance of Unlawful Dividends — Ratification — Estoppel.—The mere acceptance by the stockholders of the dividends declared out of other than surplus profits, unaccompanied by any other fact which might present equitable considerations, will neither operate as a ratification of the wrongful act nor as an estoppel against the right of the corporation to enforce the statutory liability defined by section 309 of the Civil Code.</p> <p>[6] Id.—Good Eaith of Directors—When a Defense.—in an action by the corporation to recover upon the statutory liability of the directors for having made dividends out of other than surplus profits, good faith on the part of the directors in believing that there were surplus profits out of which such dividends could be paid does not constitute a defense. If that defense could ever be considered, it would only be where the pleadings clearly and in detail show the facts of fraud and dishonesty practiced upon the directors, and further show facts from which the conclusion would follow irresistibly that the directors could not have guarded against such fraud.</p> <p>[7] Id.—Surplus Profits Defined.—The term “surplus profits” is the equivalent of net receipts, that is, the receipts of a business after deducting current expenses. Neither money earned as interest, however well secured, or certain to be eventually paid, nor mere advance in value of property prior to its sale, not estimated profits on partially executed contracts, constitute profits within the meaning of the statute so as to entitle the directors of a corporation to make dividends therefrom.</p>

<p>[1] NEGLIGENCE'—ACTION FOB DAMAGES—PROXIMATE CAUSE OF LOSS —Pleading.—In an action for damages the mere allegation of negligence on the part of defendant and the loss of property by plaintiff would not charge the former with responsibility for the damage, unless it appear expressly or by fair intendment that said negligence caused or contributed to said loss.</p> <p>[2] Id. — Negligent Construction and Operation op Engine — Destruction of Grain — Pleading — Anticipation of Defense.— Where it does appear from the complaint in an action for damages for the destruction by fire of a ripened crop of barley that the fire was the result of the negligent construction and operation of defendant’s engine and that the fire destroyed plaintiff’s grain, the causal connection between the negligence and the loss is expressly, though concisely, shown. The plaintiff is not required to anticipate or negative any defense that might be urged as to an intervening agency.</p> <p>[3] Id.—Issue Tendered by Answer^-Trial on Merits—Absence of Prejudice—-Defect of Pleading Immaterial.—Where a complaint is defective in that it does not expressly allege that the negligence of defendant was the proximate cause of the injury complained of, but such issue is raised by the answer of the defendant, and the case is fairly tried upon the merits and under circumstances which indicate that nothing in the pleadings misled defendant to Ms injury, the matter of pleading becomes unimportant.</p> <p>[á] Id.—-Origin of Pire—Probable Absence of Liability-—Reversal on Appeal.—To warrant the reversal on appeal of the judgment in favor of the plaintiff in an action for damages for the destruction by fire of a ripened crop of barley, it is not sufficient that the appellate court find that the origin of the fire could be reasonably attributed to a condition for which no liability on the part of the defendant attaches, but before it is authorized to interfere it must be satisfied that it is entirely unreasonable to attribute it to a condition imposing such liability.</p> <p>[5] Id.—Destruction of Crop—Measure of Damages—Erroneous Ruling and Instruction—Absence of Prejudice.—In such action, the error of the trial court in permitting the plaintiff to introduce evidence of the value of the grain at dates other than the date of its destruction, which was higher then than at the latter date, and in instructing the jury that in arriving at the market value of the grain they “have the right to determine what grain of the same kind and similar quality was selling for in the market in the vicinity where said crop was grown at the time of its destruction or within a reasonable time thereafter” was without prejudice where the verdict of the jury was for an amount not only less than the value of the grain based on the lower rate but also less than the value thereof as admitted in the answer, after subtracting the cost of harvesting and marketing.</p> <p>2. Proximate cause and intervening condition, note, 1 Ann. Gas. 230.</p> <p>5. Damages recoverable for loss or injury to growing crops, notes, 6 Ann. Gas. 949; 12 Ann. Gas. 782; 12 L. B. A. (U. S.) 267; 23 L. B. A. (IT. S.) 310; 27 L. B. A. (KT. S.) 168; 37 L. B. A. (ST. S.) 976; 49 L. B. A. (IT. S.) 415.</p>

<p>MOTIONS to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. E. P. Mogan, Judge, and an appeal from an order denying a motion to set aside an order refusing to settle the record on appeal. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Accounting — Beference — Issues for Beferee. — The "whole issue” which the court is authorized, by section 639 of the Code of Civil Procedure, to direct a referee to hear and decide when the trial of an issue of fact requires the examination of a long account on either side refers to or means the account, and does not include other issues in the case or issues having no direct or immediate connection with the account.</p> <p>[2] Id.—Bight to Accounting—Decree Determining not Essential Prerequisite to a Beference.—A preliminary order or decree adjudicating that one of the parties is entitled to an accounting is not an essential prerequisite to the proper exercise of the jurisdiction of the superior court to order a reference for the purpose of examining a long account and obtaining a report of the referee thereon.</p> <p>[3] Id.—Oil Contract Obtained Through Fraud—Bight to Monet Judgment for Difference Between Price Paid and Market Price.—In an action by the stockholders of an oil corporation for the purpose, among other things, of having declared null and void a certain contract of sale of oil by the corporation to the persons named as the codefendants of the corporation and for an accounting by said codefendants of the money received by them for the sale of oil, the court having found that the contract whereby the corporation sold to said codefendants all the oil produced from the property leased by said corporation at a given rate per barrel was fraudulently obtained by said codefendants and with the purpose and intent of cheating and defrauding the stockholders of the corporation, a money judgment against said codefendants for the difference between the amount paid by them for the oil and the market value of the oil at the time it was received by them is authorized, notwithstanding it is not found that said codefendants received in money the market price of said oil.</p> <p>[4] Id.—Offsets—Burden of Proof.—If said codefendants in the action to set aside the contract for the purchase of oil obtained by them through fraud and for an accounting as to the oils delivered to and received by them thereunder had any expenditures or claims which they could have legitimately set up in abatement of the amount for which the referee found they sold the oil, the burden was upon them to prove such expenditures or credits.</p>

<p>[1] Negligence—Damages for Personal Injuries—Excessive Verdict—Successive Determinations—Absence of Passion or Prejudice.—Where three juries and two judges, in successive trials and new trial proceedings, have determined that a specified sum is not too great a compensation for injuries received by the plaintiff through the negligence of the defendant, the appellate court would be going far afield to assume, as a matter of law, that all of these—the three juries and two judges—were moved to reach their conclusions “under the influence of passion or prejudice.”</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Ventura County. Merle J. Rogers, Judge. Affirmed.</p> <p>The facts are stated in the opinion of.the court.</p>

<p>APPLICATION for a Writ of Supersedeas. Petitions dismissed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Instructions—Questions of Fact—Absence of Prejudicial Error.—An instruction upon a question of fact forbidden by article YI, section 19, of the state constitution is not sufficient to require a reversal of the case where the evidence offered to prove such fact is uncontradieted and it does not appear from an examination of the entire record that such error resulted in a miscarriage of justice.</p> <p>[2] Negligence—Injury While Alighting from Street-car—Bight to Becover—Instructions.—In an action for damages for personal injuries sustained while alighting from a street-ear, an instruetion, “if the ear stopped to enable him to get off and started up again while he was getting off, he is entitled to recover,” while not as full, is not in contradiction with an instruction, “If the car stopped, whether it stopped to enable the plaintiff to get off or whether it stopped for any other reason, if it stopped and the plaintiff started to get off and while he was getting off it started up again and threw him, then he is entitled to recover.”</p> <p>2. Duty of street-car conductor to see that passenger is off before starting the car, note, 11 L. B. A. (N. S.) 140.</p> <p>Negligence in starting car with jerk while passenger is alighting, notes, 13 L. B. A. (N. S.) 611; 23 L. B. A. (N. S.) 891; 29 L. B. A. (N. S.) 814; 34 1. B. A. (N. S.) 225; L. B. A. 19160, 373.</p> <p>[3] Id.—Bight of Passenger to Alight When Cab Stops—Duty of Carrier.'—Carriers of passengers upon railways owe to such pas- . sengers the highest degree of care, and this degree of care requires of such carriers, especially upon street-ears operated in cities, that whenever such cars come to a stop, whether at a regular stopping place or not, if such points of stoppage are such that passengers might properly and conveniently alight, that those in charge of the car advise themselves that passengers are not attempting to alight from their said car at such point of stoppage before again starting the car, and a nogleet of this duty renders their principal liable.</p> <p>[4] Id.—Contributory Negligence—Sufficiency of Instructions. In an action for damages for personal injuries sustained while alighting from a street-ear, an instruction that if “the car did not stop but simply slowed down, and while it was actually in motion he tried to get off and was injured, he cannot recover,” constitutes a sufficient instruction upon the question of the contributory negligence of the plaintiff where that is the only state of facts upon which a claim of contributory negligence on the part of the plaintiff could be predicated.</p> <p>3. Duty of railroad company to allow time for passengers to board or alight from trains, notes, 7 Ann.. Cas. 760'; 14 Ann. Gas. 962; Ann. Gas. 19120, 794.</p> <p>4. Negligence in getting off or on a moving street-car, notes, 38 L. E. A. 786; 30 L. E. A. (N. S.) 270.</p>

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

<p>[1] Redlight Abatement Act—Expenses of Investigations Prior to Suit—Costs.—In a suit instituted under the “Redlight Abatement Act,” the plaintiff is not entitled to be allowed, as costs, the expenses of its investigations which resulted in the filing of the suit. The provisions, found in subdivision 3 of section 8 of the act, for the payment of “plaintiff’s costs in said action” includes only such items as are ordinarily allowed in an equitable proceeding.</p> <p>[2] Id.—Right to Close Premises Prior to Judgment—Expense of Guards Pending Trial—Costs.—In such suit the court may not take possession of the questioned premises, by placing keepers therein, nor may it order the same closed, prior to judgment; and the plaintiff is not entitled to be allowed, as costs, the expense of guards placed in charge of the premises in question after the commencement of suit and before trial, pursuant to the terms of a preliminary injunction.</p> <p>[3] Costs—Nature of Right to—When mat be Recovered.—The right to recover costs is purely statutory, and in the absence of statute, no costs can be recovered by either party, whether the-court is sitting as a court of law or of equity.</p>

<p>[l] Criminal Law—Void Sentence Under Indeterminate Sentence Act—Validity oe Second Sentence.-—Where the sentence imposed by the trial court, under the Indeterminate Sentence Act,' is void because the crime was committed before the provision of the code authorizing such a sentence became effective, the proper procedure, on habeas corpus, is to remand the defendant to the custody of the sheriff to be resentenced by the court to a definite term; and such second sentence is not void because it was not passed within a reasonable time after the first sentence or because it was pronounced without proper arraignment proceedings; nor is the defendant thereby twice put in jeopardy for the same offense.</p>

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

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

<p>[l] Contracts—Sale or Interest in Business—Existence oe Partnership —- Evidence — Findings.—In this action to recover upon three promissory notes executed by defendant to plaintiff as part consideration for the transfer by plaintiff to defendant of the former’s interest in the business conducted by them, in which action the defendant pleaded failure of consideration based upon an alleged breach by plaintiff of an agreement- not to engage in business in competition with defendant, there was no evidence to support the court’s findings that the partnership between plaintiff and defendant continued to exist at the time of said transaction, notwithstanding the prior formation of a corporation bearing the same name, and that the sale of. plaintiff’s interest was in reality a sale of a partnership interest, made in contemplation of a dissolution of the partnership*.</p> <p>[2] Id.—Contract in Restraint of Trade—Sale of Corporate Stock —Agreement not to Engage in Competitive Business Void.—An agreement by one stockholder of a corporation with another not to engage in a competitive business in a given city for five years, entered into by said parties in connection with the sale and transfer to the latter of the former’s stock and interest in said corporation and business, is void.</p> <p>2. Validity of contract by selling shareholder not to engage in business in competition with corporation, note, 23 L. R. A. (N. C.) 506.</p>

<p>[1] Municipal Corporations—Oakland—Discharge of Employee— Appeal Under Charter to Civil Service Board—Modification of Punishment.—Where a member of the fire department of the city of Oakland holding a position in the classified civil service of that city is discharged from the fire department on the ground of insubordination and he takes an appeal to the civil service board, pursuant to the provisions of sections 81 and 82 of the charter of that city, the civil service board, under the latter section, has the power to fully hear and determine the matter, and» having found that he should not have been discharged but that for failure to obey the order of his chief he should forfeit two months salary and be reinstated at the expiration of that time, has the power to revise the punishment imposed upon him in accordance with such findings.</p> <p>[2] Id.—Performance of Duty by Civil Service Board—Presumption.—The presumption that public officials will do their duty applies to a civil service board, notwithstanding the possibility that such board may at some time abuse its power and render unjust decisions.</p>

<p>[1] Mechanics’ Liens — Materialman’s Claim — Liability ot Surety.—Judgment in favor of a materialman in an action on a bond given by a contractor affirmed on the authority of General Electric Co. v. American Bonding Co. of Baltimore, 180 Cal. 765.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. John W. Shenk, Judge. Reversed.</p> <p>The facts, in all essential respects, are the same as in Burrows v. Durflinger et al., ante, p. 366, [187 Pac. 752].</p>

<p>[1] Waters and Water Eights—Prescription—Excessive Diversion. Judgment and order reversed on the authority of Stinson Canal §• Irr. Co. v. Lemoore Canal fy Irr. Co. et al., and Stinson Canal Irr. Go. et al. v. People’s Ditch Co. et al., ante, p. 241.</p>