Volume 46 — California Appellate Reports

<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 G. Finlayson, Judge. Modified and 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. Frank G-. Finlayson, Judge. Modified and. affirmed.</p> <p>The facts are stated in the opinion of the court.</p> <p>A. J. Hill, County Counsel, Robert B. Murphey, Assistant County Counsel, Hugh Gordon and Gordon Boiler, Deputies County Counsel, for Appellant.</p>

<p>[1] Corporations—Issuance of Stock for Property—Overvaluation—Liability to Creditors.—Where the promoters of a corporation transfer a certain oil lease to the company in exchange for all of the stock of the corporation, as fully paid up and nonassessable, and the valuation placed upon such lease is so grossly excessive as to be constructively fraudulent as to creditors, the latter may recover from the holders of such stock an amount equal to the unpaid subscriptions, notwithstanding the honest belief of the parties as to the value of the property at the time of the exchange.</p> <p>1. Liability to creditors of corporation of person purchasing stock for property or services worth less than the par value of stock, note, Ann. Cas. 1915A, 1269.</p> <p>Eight of corporation itself to complain that property purchased by it was of less value than the stock issued in exchange therefor, in the absence of actual fraud, note, 19 L. B. A. (IT. S.) 115.</p> <p>[2] Id.—Liability of Transferees of Stock.—By purchasing from the original subscribers the transferees of such stock assume, as a matter of law, all the liabilities that the transferors of the stock to them are under, and take it subject to all their obligations.</p> <p>[3] Id.—Lack of Knowledge That Stock not Paid Up—Enforce- » ment of Stockholders'’ Liability—Estoppel.—In an action by a creditor of a corporation to enforce the stockholders’ liability for unpaid subscriptions, the plaintiff is not estopped to set up his complaint because it extended credit wholly upon its own representations of results that could be obtained from the use of a drilling rig it sold to the corporation and that sales of stock would furnish the funds necessary to pay for the drilling of the well and for the rig, where the evidence shows that it did not know that the defendants had not paid the full amount of the par value of the stock owned by them in the corporation.</p> <p>[4] Id.—Extension of Credit—Presumption as to Capital Stook and Bight to Enforce Collection.—When credit is extended to a corporation it is done so under the presumption that the capital stock that is issued has been or will be paid for in full if necessary to pay creditors, and where capital stock has not been paid for in full, the creditors, if they are unable to collect directly from the corporation, are entitled to seek to satisfy their judgment out of the unpaid portion of such subscribed and issued capital stock.</p> <p>[5] Id.—Identification of Books by First Secretary—Admissi- ■ bility—Presumption.—In an action by a creditor of a corporation to enforce the stockholders’ liability for unpaid subscriptions, the first secretary of the corporation having identified the books of the corporation used during the time he was such secretary, they were properly admitted in evidence, the presumption being, in the absence of evidence to the contrary, that they continued to be the books of the company.</p> <p>[6] Pleading—Amendment of Complaint-—Opening of Default— Service.—Where an amendment of a complaint goes only to the form, and not to the substance, a default is not opened, and service of such amended complaint upon the defaulting defendants is unnecessary.</p> <p>2. Liability as on unpaid subscription of transferees of stock issued in exchange for property or services at an overvaluation, note, 12 A. L. B. 449.</p>

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

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

<p>The facts are state4d in the opinion of the court.</p>

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

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

<p>[1] Pleading—Action fob Labor and Services Performed—Sufficiency of Allegation of Nonpayment.—In an action to recover for labor and service performed, an allegation of nonpayment that no part of the claims sued on “had been paid by the defendants, or any, or either, of them,” is sufficient.</p> <p>[2] Id.—Action Against Members of Association—Sufficiency of Statement as to Contract.—A complaint alleging that the defendants, prior to entering a contract with plaintiff, formed a voluntary association, that said association employed plaintiff to perform labor and services in the repair of certain streets, that such services were performed as agreed, and that plaintiff had not been paid by the defendants, or any, or either, of them, is sufficient as to the statement of a good contract.</p> <p>[3] Id.-—Eight to Eecover from Individual Members op Assooia. tion.—In such an action, recovery from the individual defendants, members of the association that employed plaintiff, is expressly authorized under the provisions of section 388 of the Code of Civil Procedure.</p> <p>[4] Appeal—Findings—Evidence—Presumption.—Where the appeal is on the judgment-roll alone, it will be presumed that the evidence was sufficient to support the findings of the trial court.</p> <p>3. Personal' liability of member of voluntary association not organized for personal profit on contract with third person, note, 7 A. L. R. 222.</p>

<p>[1] Contracts—Advances Made to Tenant—Agreement as to BeIMBTJRSEMENT FROM CROPS—BIGHTS IN PROCEEDS.-Where the agreement between the lessor and a third party, who had agreed to make certain advances to the lessee with which to pay the balance due on the rent for a previous year and to care for the crop then being grown, provided that such third party should have a first lien upon the crop being grown by the lessee for not to exceed a specified amount, that after the payment of said advances the proceeds should be applied upon the balance due the lessor as rent and the balance of the proceeds, if any, should be applied upon the indebtedness due from the lessee to such third party, in an action by the lessor against such third party to collect the excess over the amount it was agreed should constitute a first lien upon the crop, such third party having applied the entire proceeds on its own account, the court properly rejected evidence 'offered by the latter to prove that for the purpose of protecting the crop for the mutual benefit of itself and the lessor it was obliged to make further advances over and above the agreed amount.</p>

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

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

<p>[1] Estates of Deceased Persons—Will Contest—Inaccurate Instruction on Preponderance of Evidence — Error Cured by Other Instructions.—In a contest of a will based on the alleged unsoundness of mind of the testator, while an instruction that “the preponderance of evidence in a case like this is not determinable by the number of witnesses introduced to support the affirmative of the issue, but that testimony which produces conviction in the unprejudiced minds of the jurors represents the preponderance of proof, regardless of the number of witnesses from whom it proceeds,” contains an inaccurate statement of the rule as to “preponderance of evidence,” such inaccuracy will not constitute reversible error where it is virtually cured and -is rendered innocuous by a consideration of the entire charge.</p> <p>[2] Id.—Soundness 'of Mind of Testator—Obscure Instruction not Prejudicial.—In a contest of a will based on the alleged unsoundness of mind of the testator, an instruction that “What we mean by soundness in this connection is not that the mind should be in its full vigor and power but that its faculties, its machinery, should be in working order so to speak, with an active power to collect and retain the elements of the business to be performed for a sufficient time to perceive their obvious relation to each other,” while somewhat obscure, will not create any prejudicial impression where in another part of the charge the jury is instrueted that to be of sound and disposing mind the deceased “must have understood what he was doing.”</p> <p>[3] Id. — Erroneous Instruction — Evidence—Absence of Prejudicial Error.—In a contest of a will based on the alleged unsoundness of mind of the testator, the giving of an erroneous instruction on the question of soundness of mind will not constitute reversible error where the proof of sanity of the testator, in the legal sense, is so thorough and overwhelming as to make it almost inconceivable that there was any miscarriage of justice.</p> <p>[4] Id.—Medical Test of Sanity.—Anything short of a normal and • healthy mind free from any defective co-ordination arising from disease or decay, in a medical sense, may constitute insanity or unsoundness of mind, but the law does not demand such perfection to give capacity to manage one’s affairs and make valid disposition of property.</p> <p>[5] Id.—Legal Test of Sanity.—The insanity which will render a will invalid is general mental incompeteney, or some narrower form under which the testator is the victim of some hallucination or delusion, and in the latter instance the act to be avoided must have been produced in whole or in part by said delusion.</p>

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

<p>[1] Mechanics’ Liens—Release of Owner from Liability—Duty to Furnish Sufficient Bond.—If a property owner desires to limit the right of laborers and materialmen to recover against him as owner to the amount due from him to the contractor by filing the bond specified in section 1183 of the Code of Civil Procedure, the duty devolves upon him to require a bond that will continue good at least until the period has expired during which laborers and materialmen can avail themselves of the benefit afforded by such bond.</p> <p>[2] Id.—Insufficiency of Sureties—Release of Owner from Liability—Discretionary Power of Court.—-Where the contractor was insolvent at all times, and his son, who was one of the sureties on the bond given pursuant to the provisions of section 1183 of the Code of Civil Procedure, was wholly unqualified as a surety at any time, while his wife, the other surety on such bond, possessed only such property as she might reasonably be expected to, and which she subsequently did, by declaring a homestead thereon, preserve against her husband’s obligations, in an action by a materialman against the contractor, his sureties, and the owner, it was entirely within the discretionary power of . the court, granted it under said section 1183, to hold that under the circumstances it would not be equitable to restrict the recovery against the owner to the amount of the contract price.</p> <p>[3] Id.—Articles not Called for by Specifications—Not Proper Charge Against Owner.—The plaintiff in such action having stipulated that the specifications did not “specifically require the contractor to use brushes,” and the brushes in question not having been consumed in the performance of the contract, the value thereof did not constitute a proper charge against the owner.</p>

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

<p>[1] Vendor and Vendee—Acceptance of Overdue Payments—Demand for Performance of Current Conditions After Default— Waiver of Right of Forfeiture.—Where a contract for the sale of land provides for the payment of the purchase price in annual installments, with interest payable semi-annually, and for the payment of all taxes and assessments by the vendees, and contains a clause making time of the essence of the contract and providing for forfeiture of all prior payments upon any default, but the vendors repeatedly accept payments from one or two days to more than two months after they become due, they will be held to have waived the provision of the contract making time of its essence and giving them the right to declare a forfeiture upon a subsequent default, particularly where, after the occurrence of such default, the vendors demanded of the assignee of an undivided interest of the vendees in the land that he pay the taxes for the succeeding tax year which became due, which he thereupon did.</p> <p>[2] Id.—Sharp Practices by Vendors—Equity.—A suit to quiet title to real property, following default of the vendees, is addressed to the equitable powers of the court; and in such an action any unquestioned evidence of sharp practices and overreaching is sufficient to defeat a complainant who has been guilty of such practices.</p> <p>[3] Id.—Demand for Performance of Current Conditions—Waiver of Previous Default.—No party to a contract can insist on the performance of a current condition, such as the payment of taxes, and thereafter repudiate the contract for a prior breach of which he must have known.</p> <p>[4] Id.—Disregard of Provision Making Time of Essence -of Contract—Right to Enforce Forfeiture Provisions—Notice.—A vendor may not _ for years disregard a provision making time of the essence of a contract, little by little getting half the value of his land, and then, without notice to the buyer who has been lulled to a false sense of security, enforce a forfeiture for a trifling delay in the payment of interest.</p> <p>[5] Id.—Unwarranted Action—Frivolous Appeal—Injury to Vendees—Penalty.—Where, by the pendency of ah unwarranted action by the vendors to quiet title to certain real property as against the vendees, the latter are not only placed in a position where they cannot deal with their property rights but they lose the beneficial use of the money they have already paid and, notwithstanding a judgment by the trial court in favor of the vendees, the vendors take an appeal which is without real foundation and appears to have been taken only for delay, the case is a proper one for the imposition of a penalty for a frivolous appeal.</p> <p>1. Time as of essence in contracts for sale of land, note, 104 Am. St. Rep. 265.</p>

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

PROCEEDING on Habeas Corpus to secure the release of a defendant committed to the custody of the sheriff for refusal to perform an order of the Superior Court of Los Angeles County. Writ discharged. The facts are stated in the opinion of the court.

<p>[1] Juvenile Court Law—Commitment of Minors—Jurisdiction—• Sufficiency of Findings.—A finding by the juvenile court that the allegation of the petition that the minors have “no parent or guardian capable of exercising parental control” is true, substantially meets the requirements of subdivision 2 of section 1 and of section 9a of the juvenile court law, and is sufficient to show the jurisdiction of the court.</p> <p>[2] Habeas Corpus—Writ of Error—Error of Procedure—Jurisdiction.—The writ of habeas corpus is not intended to perform the functions of a writ of error for the purpose of reviewing mere errors or irregularities of proceedings of a court having jurisdiction of the person and subject matter involved.</p> <p>[3] Id.—Sufficiency of Petition Under Juvenile Court Act—Review on Habeas Corpus.—The petition filed under the Juvenile Court Act is a pleading filed in a court of record, and even where it is obviously open to" demurrer for an insufficient statement of the facts which would confer jurisdiction, if it appears from the declarations that there is a purported or attempted statement of facts which would confer jurisdiction, the question as to such sufficiency of statement will not be examined into on habeas corpus.</p> <p>[4] Id.—Evidence not Reviewable.—In a proceeding on habeas corpus to secure the release of infant children committed to the custody of the county probation officer by an order of the juvenile court, in proceedings under the juvenile court law, the sufficiency of the evidence to support the order of commitment cannot be questioned.</p>

<p>[1] Vendor and Vendee—Contract for Sale of Beal Property— Time of Essence — Bigi-it of Forfeiture — Default Without Legal Excuse—Retention of Moneys Paid.—Under a contract for the sale of real property which provides that time is of the essence, and that if the vendees shall make default in any of the payments as the same become due the contract may be rescinded at the option of the vendor, and that the vendor shall thereupon be released from all obligations in law or equity to convey said property and the vendees shall forfeit all right thereto, and all moneys paid to the vendor shall be forfeited and retained by the vendor as rent and agreed liquidated damages, upon the default of the vendees without legal excuse, the vendor is entitled to retain the moneys that have been obtained thereon.</p> <p>1. Time as of essence in contracts for sale of land, note, 104 Am. St. Rep. 265.</p> <p>Bight of vendee in contract for sale of real property to recover payments, note, L. R. A. 1918B, 540.</p> <p>[2] Id.—Action . for Deceit—Ability and Willingness to Perform —Pleading.—In an action for deceit, where the contract is executory, the plaintiff must allege his ability and willingness to perform the contract.</p> <p>[3] Id.—Fraud—Detention of Possession—Refusal to Make Payments.—-A party in possession of land under an executory contract to purchase it cannot, while retaining possession, refuse, because of claim of fraud, to make the payments provided by his contract. The fact, if it be a fact, that the contract was entered into by reason of fraudulent representations of the vendor, furnish no legal justification for neglect or refusal to pay the installments when due so long as possession is retained.</p> <p>[4] Id.—Unsupported Finding of Rescission — Construction of Notices—Use of Word “Rescinded.”—In this action to recover from the vendor moneys paid by the vendees on a contract for the purchase of certain real property, the finding of the trial court that the vendor rescinded the contract on a given date is not sustained by the evidence, notwithstanding the vendor, in his final notice to the vendees following their default, stated that it rescinded the contract, it being apparent from that notice, when construed together with the previous notices to the vendees, that the vendor did not intend to make a technical rescission in accordance with the code provision, but only to terminate the contract in accordance with its express provision.</p> <p>[5] Id.—Fraud—Rescission—Surrender of Possession—Default— Recovery of Moneys Paid.—If, before the contract of purchase has been ended for nonpayment, the vendees surrender possession of the premises and rescind the contract, they have a right of recovery of the moneys paid upon proving fraudulent representations sufficient to justify such rescission; but, after default without legal excuse, no recovery can be had for moneys paid, unless there is a mutual rescission.</p> <p>4. Necessity of notice of rescission before party can be placed in default as to time for performance of contract, note, 4 A. 31. R. 822.</p>

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

<p>[1] Attachments—Transfer of Property from Husband to Wife— Liability to Attachment in Suit Against Husband.—Where the husband, for a sufficient consideration, and at a time when he is solvent, transfers a note and mortgage to his wife, such note and mortgage are not subject to attachment some fifteen months after the said transfer at the suit of one of the creditors of the husband.</p> <p>[2] Husband and Wife—Disposition of Proceeds of Homestead— Validity of Oral Agreement.—An oral agreement entered into in good faith between a husband and wife with respect to what shall be done with the proceeds of the sale of their homestead property, by the terms of which such proceeds are to be transferred to wife, is valid when the same has been fully executed by the making of such transfer.</p>

<p>[1] Eminent Domain—Taking of Property for Public Use by Publio Service Corporation—Failure of Owner to Object—Waiver of Bemedy by Ejectment or Abatement—Bight to Damages.— Where property is taken for a public use by a public service corporation and the owner of the property has not in any appropriate way objected to its being so taken, but has by silence or quiescence, permitted the public use to be inaugurated and carried on for some period of time, he has thus waived or lost his right to proceed against such use of his property by ejectment or abatement. If he has suffered damage to his property by reason of such taking and use of his property, he is, of course, entitled to be compensated in damages.</p>

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

<p>[1] Trespass—Dndaweui/ Possession op Land—Recovery by Owner —Right to Crops—Damages.—Where the • owner of property recovers possession from a trespasser, or one in unlawful possession, not under circumstances to justify exemplary damages, he takes the growing crops with the land; but harvested crops are the property of the one in unlawful possession, the owner’s remedy being to recover the rental value of his land.</p> <p>1. Rights of trespasser with respect to crops sown by him, notes,. 21 Ann. Cas. 431; Ann. Cas. 1915D, 359.</p>

<p>[1] Corporations—Action on Contract Signed by President—Absence op Seal—Burden of Proving Authority or Estoppel.— In an action against a corporation to recover certain commissions alleged to be due in connection with the sale of real property, based on a document executed by the president of the defendant corporation but to which the corporate seal is not affixed, the authority of the president to execute such document being denied, the plaintiff must prove either that the president was expressly authorized to execute the same, or that it was an act fairly within the implied powers incidental to his office, or that the corporation is estopped to deny his authority by reason of having accepted the benefit of the contract, or otherwise.</p> <p>[2] Id.—Evidence — Proop op Implied Authority.—In such action, evidence that the president of the corporation told plaintiff that he had been paying out interest on the mortgage for a number of years since the death of his partner, that he was getting tired of it and that it was all left up to him, is not sufficient to prove that he was vested with implied authority. Implied authority must arise out of the duties and responsibilities actually entrusted to an officer by the corporation, or the duties assumed by him and acquiesced in by the corporation, and not by his statements regarding such duties and responsibilities.</p> <p>[3] Id.—Alienation op Property—Power op President.—The president of a corporation has no power, by virtue of his office, to alienate the property of the corporation. This can only be done by the board of directors.</p> <p>[4] Id.—Acceptance op Benepits op Contract—Estoppel to Deny Authority to Execute.—Where a corporation accepts the benefit of a contract made by its president, purporting to be made on behalf of the corporation, it will be estopped to deny his authority to execute the contract.</p> <p>2. Authority of officer to represent corporation as inferred from manner in which he has been permitted to act, note, Ann. Cas. 1913D, 646. Presumption that a contract within the powers of a corporation is within the authority of its president, note, 7 L. R. A. (N. S.) 376. Presumption as to authorization by corporation for contract executed by president, note, Ann. Cas. .1917A, 360. 3. Power of president to sell or mortgage corporate property, note, 19 Ann. Cas. 623.</p>

<p>MOTION for an order requiring appellant to print a supplement to Ms opening brief setting forth the portions of the record omitted therefrom. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Personal Services—Duty to Pay Reasonable Value of—Presumption.—When services are rendered by one person, from which another derives a benefit, although there is no express contract or agreement to pay for the services, there is a presumption of law which arises from the proof of services rendered that the person enjoying the benefit of the same is bound to pay what they are reasonably worth.</p> <p>[2] Id.—Intention of Parties —• Relationship — Inference.—The question as to whether such services were intended to he gratuitous or to be a charge against the party who was benefited thereby is one that must be determined on the circumstances of the particular case, the question in each ease being whether it can reasonably be inferred that pecuniary compensation was in the view of the parties at the time the services were rendered or the support furnished; and in the consideration of such circumstances, the degree of the relationship of the parties may strengthen or diminish the implication that the services were acts of gratuitous kindness and affection according to its proximity or remoteness.</p> <p>[3] Id.-—Action on Rejected Claim—Admissibility of Void Will.— In an action on a rejected claim against an estate for the reasonable value of services rendered the decedent over a period of many years terminating with his death, an instrument executed by the decedent purporting to devise and bequeath to plaintiff certain real and personal property “for care and faithful services rendered,” though insufficient as a will, is admissible as a recognition by the decedent of the value of the services of plaintiff and a declaration of his purpose and intention to reward her for the same.</p> <p>[4] Id.—Intention of Parties—Justness of Claim—Consideration by Court.—In such action, it is entirely proper for the trial court, in the determination of the intention of the parties, to weigh the circumstance that it would be just and equitable for the plaintiff to be rewarded for her services.</p> <p>[5] Id.—Employment for Indefinite Period—Time of Payment not Specified—Statute of Limitations.—Where a contract for services, either express or implied by law, is for an indefinite time and no time for payment is specified, the statute of limitations does not begin to run until the services end.</p> <p>[6] Id.—Indefinite Period of Employment—Statute of Frauds not Applicable.—The provision of subdivision 1 of section 1624 of the Civil Code requiring “an agreement that by its terms is not to be performed within a year from the making thereof” to be evidenced by a writing, subscribed by the party to be charged, does not apply to contracts, either express or implied, for the rendition of services for an indefinite period of time and payment to be made at the termination of the relationship.</p> <p>[7] Id.—Action on Quantum Meruit—Statute of Frauds.—Subdivision 7 of section 1624 of the Civil Code, requiring a writing for the validity of an agreement “which by its terms is not to be performed during the lifetime of the promisor, or an agreement to devise or bequeath any property or to make any provision for any person by will,” is not applicable where the person who rendered services or furnished support seeks to recover .upon a quantum meruit.</p> <p>[8] Id.—Statute of Frauds—Retroactive Effect.—A statute requiring a writing for the validity of a particular agreement does not control in a case originating before the enactment of such statute.</p>

<p>[1] Pledge — Security fob Payment of Several Obligations — Maturity of Portion—Eight to Sell Whole of Security— Agreement of Parties.—Where a pledgor, in depositing certain stock as collateral security for the payment of a given liability, or any other liability to the pledgee, due or to become due, or that may thereafter be contracted, expressly agrees that on the nonpayment of any of said liabilities the pledgee may sell “the whole or any part” of such securities and apply the proceeds “to any or either or all of said liabilities” as the pledgee shall deem proper, the whole of such securities may be sold to satisfy all liabilities existing in favor of the pledgee and against the pledgor, although only a portion thereof have matured.</p> <p>1. Eight of pledgee to sell debt or debt and collateral given to secure debt, note, Ann. das. 1916B, 23-7.</p>

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

<p>[1] Contracts—Time and Place op Consummation.—The time and place for the consummation of a contract is when and where the last act necessary for its validity was performed.</p> <p>[2] Id.—Discovery op Fraud—Demedies of Vendee.—A vendee of property, upon discovering fraud practiced upon him, may either affirm the contract and sue in tort for damages suffered by reason of the fraudulent representations, in which action he would not necessarily be limited in his recovery to the amount he had paid, or he may disaffirm the contract and recover what he has paid thereunder.</p> <p>[3] Id.—Descission op Contract by Vendee — Creation op Quasi contractual Eight — General Assumpsit.—Where the vendee, upon discovering the fraud, chooses to disaffirm the contract and recover what he has paid thereunder, such choice gives rise to a giiosi-contractual right which goes into effect instantaneously upon the service of the notice of rescission, and at the place where such notice is served; and upon this contract created by the law the vendee has the right to bring an action in general assumpsit for money had and received.</p> <p>[4] - Place op Trial—Bescission op Contract—Action Against Corporation to Becover Deposit.—In an action against a corporation to recover the deposit paid under a contract for the purchase of real property, after rescission of the contract because of fraudulent representations, the defendant, under section 16, article XII, of the constitution, has the right to have the action tried in the county where the quasi contract arose by the giving of the notice of rescission where the corporation’s principal place of business is located in that county.</p> <p>2. Limitation on right of rescission of fraudulent contract, note, 1 Ann. Cas. 910.</p>

<p>[1] Life Insurance—Change of Beneficiary—Bight of Original Beneficiary to Attack—Fraud and Undue Influence.—Where the' insured named in a policy of life insurance has the right to change the beneficiary named in the policy, the latter, in the absence of any contract with the insured, or any special equities depriving the insured of the right to make such change, has no vested rights in the policy, but, at most, only the mere expectancy of an incompleted gift, revocable at the will of the insured, and, therefore, is without right to attack the validity of a change of beneficiary on the ground that it was procured through fraud and undue influence by the changed beneficiary.</p> <p>1. Liability for inducing change of beneficiary in insurance policy, note, Ann. Cas. 1917A, 473. Bight of original beneficiary in ordinary life insurance policy to insist upon compliance with provisions governing change of beneficiary, note, L. It. A. 1918F, 311.</p>

<p>[1] Supplementary Proceedings—Commitment of Judgment Debtor to Jail—-Jurisdiction—Evidence.—On a proceeding supplementary to execution the court is without jurisdiction to order that the judgment debtor pay the judgment out of bonds which the evidence shows are not only the property of his wife but are pledged as security for money borrowed by her, and that until he comply with such order he be committed to the custody of the sheriff and confined in the county jail.</p> <p>[2] Id.—Sufficiency of Order of Commitment—Failure to Find Jurisdictional Facts.—On a proceeding supplementary to execution, an order directing that the judgment debtor be committed to the custody of the sheriff and confined in the county jail is fatally defective where it fails to find as a fact that said judgment debtor, having property from which the judgment could be paid, as ordered by the court, refused to comply with ■ such order by applying such property, or any portion thereof, to the payment of said judgment.</p> <p>[3] Id.—Hature of Contempt Proceedings — How Construed.—A proceeding to punish a defendant for contempt is in its nature a criminal proceeding, and the charge and finding thereon, and the judgment of the court, are to be strictly construed in favor of the defendant.</p> <p>1. Proceedings supplemental to execution, note, 300 Am. Dec. 500.</p>

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

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

<p>[1] Workmen’s Compensation Act—Furnishing op Transportation by Employer—Injury While Going to or Coming prom Work— Jurisdiction op Commission.—Where transportation is furnished by an employer, as an incident of the employment, to convey an employee to and from the place of employment, an injury suffered by the employee going or coming in the vehicle so furnished by the employer, and under the control of the employer, arises out of, and is in the course of, the employment, within the meaning of the Workmen’s Compensation Act; and, under the provisions of said act, the Industrial Accident Commission is given exclusive jurisdiction of actions arising out of such an injury.</p> <p>[2] Id.—Divesting Employee op Eight op Trial by Jury—Depriving Superior Court op Jurisdiction Gonperred—Constitutional Law.—The Workmen’s Compensation Act is not unconstitutional because it divests an injured employee, or the representatives of a deceased employee, of the right of trial by jury in violation of section 7, article I, of the state constitution, or because it deprives the superior courts of the jurisdiction conferred upon them by section 5, article VI, of said constitution, as those provisions were repealed pro tanto by the provisions of section 21, article XX, of the constitution, adopted in 1911, expressly authorizing the legislature to provide for the settlement by arbitration, by a board, or by the courts, of disputes involving the liability of employers.</p> <p>1. Injuries received while going to and from work as within Workmen’s Compensation Act, notes, L. R. A. 1916A, 331; L. R. A. 1917D, 119; L. R. A. 1918F, 907; while riding to or from work in employer’s conveyance, note, 10 A. L. R. 169.</p> <p>[3] Id.—Failure to Comply With Provisions of Act—Superior Court not Vested With Jurisdiction.—Under the Workmen’s Compensation Act, the Industrial Accident Commission is vested with exclusive jurisdiction of actions to recover for the injury to or death of an employee occasioned by the negligence of a fellow-employee, and no neglect or failure upon the part of the employee or his dependents to comply with any provision of the act, such as that requiring them to serve the employer with notice of the injury, can vest the superior court with jurisdiction.</p>

<p>[1] Book Account—Inclusion op Monet Loaned—Statute op Limitations.—Money loaned by one person to another pursuant to an oral agreement is a proper subject of book account; and where such indebtedness is regularly entered in an open book account existing between the parties, the four year and not the two year statute of limitations is applicable.</p>

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

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

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

<p>[1] Sales—Purchase op Bottles por Special Purpose—Knowledge op Manufacturer—Findings.—In this action by a manufacturer of glass articles to recover the purchase price of a certain lot of glass bottles which were wholly worthless and unfit for use in defendant’s business, it not being possible to cleanse them by the method of sterilization used by defendant, under the findings of the court it could not be said either that the manufacturer knew that a special method of sterilization was to be used in cleansing them or that the bottles were not generally suitable for the purpose of 0 the daily business.</p> <p>[2] Id.—Lack op Value op Bottles—Failure op Consideration— Construction op Findings.—In such action a failure of consideration is not shown by a finding that the bottles were worthless for use in defendant’s business “and are of no value whatsoever,” where such finding follows the allegation of the answer, the whole text of which plainly indicates that it was the purpose of the defendant to allege a special contract for the manufacture of bottles for a special purpose, and that the bottles as manufactured did not suit the purpose intended.</p> <p>1. Implied warranty of fitness of particular article purchased from manufacturer for particular use, notes, 22 L. E. A. 189; 15 L. E. A. (N. S.) 855.</p>

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

<p>[1] New Trials—Action eob Goods Sold and Delivered—Unauthorized Reduction oe Judgment.—On a motion for a new trial in an action to recover the balance owing on a contract for potatoes sold and delivered, the court is not authorized to order that the amount of the judgment in plaintiff's favor be reduced to a specified sum, even though plaintiff consents thereto, where such amended judgment substitutes a new theory and undertakes to change the findings of fact.</p> <p>[2] Id.—Correction oe Erroneous Finding After Judgment.—An erroneous finding cannot be corrected after judgment, except by granting a new trial.</p>

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

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

[1] Action upon Account—Services Rendered and Materials Furnished—Sufficiency of Findings of Fact.—In an action to recover upon an account for services rendered and materials furnished by the plaintiffs to the defendant at his special instance and request, a finding by the court that the defendant became indebted to the plaintiffs in a stated sum upon an open book account, or that the defendant became indebted to the plaintiffs for work and labor performed, materials…

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

<p>[1] Corporations—Concealment of Secret Profits bt Promoters— Right of Corporations to Recover.—When persons associate themselves together for the purpose of promoting the organization of a corporation whose stock and securities are to be placed upon the market for sale to the public, any unreasonable profits which such persons derive from the organization of the corporation, made possible only by concealment from those who have placed their trust in the promoters, are deemed secret profits, which the corporation or a stockholder on its behalf may sue to recover.</p> <p>[2] Id.—Action to Recover Secret Profits — Party Plaintiff — Purchaser of Treasury Stock.—One who becomes a stockholder in such corporation through the transfer to him of treasury stock, without notice of the fraud of the promoters in concealing the benefits or profits acquired by them in their transactions with the corporation, is a proper party plaintiff in an action on behalf of the corporation to recover such secret profits.</p> <p>[3] Id.—Action to Set Aside Fraudulent Transactions—Statute of Limitations.—An action by a stockholder on behalf of the corporation and its stockholders to recover property alleged to belong to the corporation, to set aside alleged fraudulent conveyances of said property, for the cancellation of securities alleged to have been fraudulently issued, and for damages alleged to have resulted from said acts, must be brought within three years from the time the fraud was committed or ^knowledge thereof had by the corporation, which is, in fact, the reS"^fty_IAiñtWest:</p> <p>[4] Id.—Knowledge of Facts by Directors and Stockholders—Imputation of Knowledge to Company.—Where all the directors and stockholders of the corporation either participated in or had direct knowledge of the withdrawal of the secret profits made at the time of the organization of the company, knowledge of the fraud is imputed to the company and to the stockholders as of the time of its commission.</p> <p>[5] Id.—Domination of Corporation by Person Committing Fraud —Tolling of Statute of Limitations—Suit by Innocent Stockholder.—Where the corporation and its board of directors were wholly under the domination of those who committed the original fraud, the corporation is deemed to be in the same position as an incompetent person or a minor without legal capacity either to know or to act in relation to the fraud so committed, and during such period of incapacity the statute of limitations does not run, at least against an innocent stockholder who was without knowledge of the fraud. Such a stockholder suing on behalf of . the corporation is in the position of a guardian ad litem.</p> <p>1. Liability of promoter to corporation or its members for secret profits, notes, 25 L. R. A. 92; 18 L. R. A. (N. S.) 1110.</p> <p>[6] Id.—Innocent Stockholder Without Knowledge of Fraud — Time for Action.—Where the corporation and all the stockholders have knowledge of the fraud, or of facts sufficient to put a prudent man on inquiry, the action is barred if not commenced within three years from the discovery of such facts; but when any one stockholder, at least, if he became a stockholder before the statute had made a complete bar as to the entire corporation, is without knowledge of such facts, he may commence such an action within three years from his discovery.</p> <p>[7] Id.—Discovert of Fraud—Pleading—Equity.-—In such an action it is not -sufficient for a party merely to allege that he did not make the discovery before a certain time. The facts ilpon which the fraud is based must be alleged, and when from the whole complaint it appears that discovery was actually made more than three years before the action was commenced or that plaintiff had knowledge of sufficient facts to put a prudent man on inquiry, the trial court may properly deny equitable relief, notwithstanding plaintiff’s allegation that he did not discover the fraud until within the statutory period.</p>

<p>APPLICATION for a Writ of Mandate to compel a county auditor to attest certain bonds. Peremptory writ issued.</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] Husband and Wife—Conveyance to Wife as Sole Grantee— Presumption—Evidence.—Where the wife holds a grant, bargain, and sale deed of property executed to In--' as sole grantee, the presumption is that the title is thereby vested in her as her separate property, and that presumption is itself evidence which may outweigh the positive testimony of witnesses against it, and will stand as evidence in the case until it is overthrown by other evidence.</p> <p>[2] Id.—Purchase of Property With Community Funds—Denial of Gift by Husband—Conflict of Evidence—Finding.—In an action by the husband to quiet title to real property which, at the time of purchase, was conveyed by the vendor to the wife by a grant, bargain, and sale deed and by her conveyed to defendant, evidence showing that the property was purchased with community funds and testimony of the husband that he did not give the property to his wife only raises a conflict of evidence, and a finding in accordance with the presumption declared in section 164 of the Civil Code has evidence to support it.</p>

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

<p>The facts are stated in the opinion of the court.</p> <p>G. G. Ringolsky, H. A. I. Wolch, Martin L. Haines and Andreani & Haines for Appellant.</p>

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

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

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

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

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

<p>[1] Replevin — Damages fob Detention — Conflicting Testimony — Weight and Credibility of Evidence — Findings — Appeal.—In this action in replevin for certain bar fixtures and furnishings installed in a saloon, the testimony as to the rental value of the property and its value at the time of demand therefor having been conflicting, and the finding and judgment of the trial court as to the damage suffered by reason of the wrongful detention of the property having been for a sum less than the reasonable rental value of the property, as testified to by one of plaintiff’s witnesses, the appellate court could give no consideration to the argument of appellants dealing with the weight of the evidence or the credibility of the respective witnesses.</p> <p>[2] Id.—Evidence—Value and Rental Value of Property—Qualification of Witness.—It having been shown in such action that the general manager of the company that installed the fixtures and furnishings had been in the business of buying, selling, and dealing in fixtures of the character involved for a period of twenty-five years, and that he had handled ninety per cent of the bar fixture business in that vicinity for five years immediately preceding the trial, there was no error or abuse of discretion in permitting him to testify on the subject of rental value or of value of the property from which the court was to determine the amount of damages for the deprivation of the plaintiff of the use of his property.</p> <p>1. Weight of testimony by expert, note, 4 Ann. Cas. 986.</p>

<p>[1] Land Title Law—Sale or Property for Delinquent Taxes— Filing of Notice With Registrar—Provision Mandatory.—The provision of section 77 of the land title law fixing the time within which a notice of tax sale must be filed with the registrar is mandatory, it being expressly provided in said section that unless such notice is filed as therein provided, to wit, within five days after the sale to the state, the land is “forever released from the effect of such sale.”</p> <p>[2] Id.—Statutory Construction — Intention of Legislature.—. Whether a particular statutory provision is mandatory or directory depends upon the intention of the legislature, to be ascertained from a consideration of the object of the statute and the consequences that result from construing it one way or the other.</p> <p>[3] Id.—Tax Sale—Failure to File Notice With Registrar—Redemption—Tax Lien.—Where a tax sale is nullified by the failure to file the notice thereof with the registrar within the five days as prescribed by the land title law, the five-year period for redemption before a deed can. issue to the state does not commence, though the tax lien continues as a valid encumbrance.</p> <p>2. When word “may” in statute is to be deemed mandatory, note, 6 1. R. A. (N. S.) 340.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Wm. D. Dehy, Judge Presiding. Granted. The facts are stated in the opinion of the court.

<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. Louis H. Ward, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contracts — Failure to Exact Prompt Payment — Waiver of Eights Under Subsequent Contract.—The fact that defendant had delivered fuel oil to plaintiffs under a contract between them and another oil company and accepted delayed payment therefor would not establish a waiver of its right to cancel, for failure to make payments promptly, a contract between it and the plaintiffs for the furnishing of fuel oil commencing with the termination of the former contract.</p> <p>[2] Id.—Waiver—Other Transactions—Immaterial Conduct.—The conduct of a party that will operate as a waiver of the provision of a contract giving him the right to cancel the same upon the failure of the other party thereto to make payments promptly as therein provided is his conduct with reference to that particular contract and not to some other transactions.</p> <p>[3] Id—Business Character—Immateriality of.—A' man’s general business character, as being that of one who does not insist upon strict performance of contracts made with him, cannot be invoked to prove that he has waived the provisions of a particular contract.</p>

<p>[1] Vendor and Vendee — Grant Deed — Partial Failure of Consideration—Remedy of Vendee.—Where a grant, bargain, and sale deed purports to convey a fee-simple title to a certain tract of land but in fact conveys only an undivided one-fourth interest therein, and the grantee does not rescind or offer to reconvey the title he obtained upon discovering he has no title to three-fourths of the property, he cannot maintain assumpsit for three-fourths of the money paid but is restricted to his remedy on the covenants of the deed.</p>

<p>[1] Bed-light Abatement Act—Nature of Proceeding.—An. action - under the “Bed-light Abatement Act” is not one for the abatement of prostitution, or of assignation or of lewdness, but one for the abatement of a public nuisance committed or maintained by the habitual practicing in a building or in or on any premises of acts of prostitution, or assignation or lewdness, and is a civil and not a criminal action.</p> <p>[2] Id.—Existence of Nuisance — Construction of Findings.—In this action under the “Bed-light Abatement Act,” the implication from the findings of the trial court, when considered, as they must be, in their entirety and by the light of the averments of the complaint, is that a nuisance existed in and on the premises complained of at the time of the commencement of the action, and that thus the proposition was determined by the court.</p> <p>[3] Id.—Testimony op Paid Witnesses—Beeusal op Proper Cross-examination ■—■ Absence op Prejudicial Error.—While it would have been proper for the trial court, in such case, to have allowed the defendants to ask certain witnesses for the relator, on cross-examination, how much they were paid for their services in securing proof against places in which prostitution, or assignation or lewdness was carried on, and whether the compensation for their services in procuring evidence sufficient to establish a ease against the defendants was contingent upon their success in that behalf, the disallowance of such cross-examination will not be held prejudicial where it appears from the record that the result would not have been any different from what it was had such cross-examination been permitted.</p> <p>[4] Id.—Beputation op Premises—Proop by Nonresident Witnesses —Absence op Prejudice.—Where there was other evidence directly showing that acts of lewdness were, and had been for some time prior to and down to the time of the commencement of the action, customarily practiced in the building in' question, it cannot be held that the error, if it was error, of the trial court in permitting witnesses who were nonresidents of the county in which the premises were situated to testify as to their general reputation was prejudicial in its effect upon the rights of the defendants or that it resulted in a miscarriage of justice.</p>

<p>[1] Pleading —• Filing Amended Complaint —■ Vacating Previous Order—Power of Court.—Where, on motion properly noticed, the trial court grants the plaintiffs leave to file an amended complaint changing their cause of action from one in claim and delivery to one in conversion, and, after issue joined, the cause is tried and submitted for decision, the trial court has not the power, of its own motion and without notice to the plaintiffs, to strike’ the amended complaint from the files and order the cause to stand submitted upon the original complaint and' answers thereto, notwithstanding the order granting leave to file the amended complaint was inadvertently made and such amended complaint should not have been filed.</p> <p>[2] Id.—Amended Complaint—Original Complaint Superseded by.— When the amended complaint for conversion was filed, in pursuance of the permission granted by the trial court, the original complaint in claim and delivery ceased to be the complaint in the, case, and the action became strictly one in conversion.</p> <p>[3] Id.—Limit on Power op Court.—The power of the court to vacate, without notice, an order previously made in an action is limited by section 937 of the Code of Civil Procedure to such orders as the judge has made without notice in the first instance.</p> <p>[4] Appeal—Striking Out Amended Complaint—Exception—Review.—The order striking the amended complaint from the files and submitting the cause upon the original complaint and answers was one deemed excepted to under section 647 of the Code of Civil Procedure, and as it necessarily affected the judgment entered upon such original complaint, it may be reviewed upon appeal from that judgment.</p>

<p>[1] Husband and Wipe—Agreement to Keep Peace—Evidence-Finding.-—In this action to recover a sum of money which had been placed on deposit with a certain bank pursuant to an agreement between the plaintiff and his wife that the latter would not molest or disturb the peace of the plaintiff during an agreed period, the evidence was sufficient to support the finding of the trial court that the wife had not violated the agreement.</p> <p>[2] Id.—-Agreement to Pay Wipe to Keep Peace—Validity op.—A contract between husband and wife by which the husband agrees to place a given sum of money in a savings bank, to be turned over to the wife in a year and five days from the date thereof, provided that during said period she does not in any way molest or disturb the peace of the husband, or of any employee of a certain company, it being agreed that if the wife does so disturb the peace of or molest the husband, or any employee of said company, she shall forfeit said sum of money, is legal and binding.</p>

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

<p>[1] Husband and Wipe—Relinquishment op Inheritable Interests—Validity op Oral Agreement.—A husband and wife may-enter into an agreement whereby the one or the other, or both, may relinquish his or her inheritable interest in the estate of the other; and- such an agreement is not required to be reduced to writing to be valid and enforceable.</p> <p>[2] Estates op Deceased Persons—Relinquishment op Inheritable Interests by Husband — Right to Administer Estate — Evidence—Finding.—In this proceeding in which the surviving husband and a surviving son filed separate petitions asking for letters of administration upon the estate of the wife and mother, there -was sufficient evidence to support the finding of the trial court that the surviving husband had entered' into a valid contract with the decedent relinquishing his inheritable rights and interests in the property and estate of the latter; and, therefore, he was not entitled to administer said estate.</p>

<p>[1] Trusts — Voluntary Conveyance to Another — Absence of Fraud or Beneficial Promises.—In this action to establish a parol trust in certain real property which had been conveyed by plaintiffs to defendant and, in connection therewith, to compel an accounting by the alleged trustee, as found by the trial court, there was no promise made by defendant for plaintiffs’ benefit, and he practiced no fraud or deceit whereby they were induced to convey the property to him, their act in so doing having been voluntary and prompted by the desire and for the avowed purpose of circumventing another who had acquired a note secured by a deed of trust to the property in deriving any benefit or profit from acts which they felt were unwarranted and oppressive toward them; hence there was no ground for plaintiffs’ contention that a constructive trust in tljeir favor was created.</p>

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

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

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

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

<p>[1] Workmen’s Compensation Act—Death of Employee Engaged in Interstate Commerce—Mistaken Assumption That Compensation Act Applicable—Agreement Fixing Compensation— Want of Consideration.-—Where an employee of a steamship company is killed while engaged in interstate commerce loading a vessel of the company in a California port, and his surviving wife and the steamship company’s insurance carrier, both acting upon the mistaken assumption that the provisions of the California Workmen’s Compensation Act are applicable,- enter into an agreement fixing the amount of weekly compensation to be paid on account of the accident, which amount it is agreed is to be paid “so long as required by said act,” such agreement is without consideration and the insurance carrier is justified in repudiating the same.</p>

<p>APPEAL from an order of the Superior Court of San Diego County in divorce proceedings awarding the custody of a child to the husband. C. N. Andrews, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Vendor and Vendee—Inability of Vendor to Convey—Remedies of Vendee.—When it becomes clear that the vendor will not or cannot convey in accordance with the terms of his contract, the vendee may sue for damages for the breach, or he may sue in equity for specific performance or alternative damages, or he may treat the contract as rescinded by consent and sue at law for the money theretofore paid on account of the purchase price of the land, to be recovered not as damages but as money had and received by the defendant to the use of the plaintiff.</p> <p>[2] Id.—Rescission—Action to Recover Money Paid—Stockholders’ Liability—Statute of Limitations.-—Where the vendees under a contract for the sale of certain real property tender the balance due but the corporation vendor refuses to convey, and is unable to do so, and the vendees elect to treat such inability and refusal as a rescission by the corporation and sue for the money theretofore paid- on account of the purchase price, such action is not on the original contract upon which the obligation of the stockholders, as well as of the corporation vendor, was fixed at its date, but upon an entirely new obligation to repay the plaintiffs money which was not incurred until the plaintiffs elected to relieve the corporation from the old obligation.</p> <p>2. Accrual of right of action to put statute of limitations into operation as to stockholder’s liability for corporate debts, notes, 10 L. R. A. (N. S.) 897; L. R. A. 1917E, 397.</p>

<p>[1] Specific Performance — Exchange of Beal Properties.— Adequacy of Contract—Just and Seasonable Contract.—In an action to compel the specific performance of an executory agreement for the exchange of real properties, the plaintiff must allege and prove that the consideration provided for in the agreement is adequate and that the agreement is just and reasonable as to the defendants.</p>

<p>[1] Estoppel—Agreement to Convey Half Interest in Homestead When Title Perfected—Subsequent Contest Against Entry-man—Specific Performance.—An administratrix is not estopped to compel the specific performance of an agreement between her decedent and the entryman upon a certain homestead of the United States government whereby the latter, in consideration of certain money received from the former, agreed to convey to the former an undivided one-half interest in said property when he had completed the commutation with the United States government and received his final receipt therefor, by reason of the fact that said decedent, after the making of said agreement, filed a contest against the defendant upon the ground that the latter was not a citizen, where that contest was decided adversely to said decedent and in favor of defendant.</p> <p>[2] Public Lands-—-Agreement Before Patent Beceived to Convey Homestead—Validity of.—An agreement between an entryman who is about to commute his homestead upon lands of the United! States government and receive a patent thereon and another, whereby the former, in consideration of certain moneys received from the latter, agrees to convey to the latter an undivided one-half interest in the property and improvements thereon when the commutation with the United States government is completed and final receipt therefor received, is valid.</p>

<p>[1] Broker’s Commissions—Absence op Contract op Employment— Exchange op Beal Estate—Exercise op Option to Cancel.—A real estate broker is not entitled to recover a commission for procuring an assent to the terms of an agreement for the exchange of certain real properties where the only agreement to pay him a commission is contained in the agreement of exchange, to which he is not a party, and that agreement is canceled and terminated by one of the parties in accordance with an express option to terminate within a given time contained therein.</p> <p>1. When has a real estate broker earned Ms commission, notes, 28 Am. St. Rep. 546; 139 Am. St. Rep. 225; Ann. Cas. 1914D, 395.</p>

<p>APPLICATION for a Writ of Mandate to compel the state controller to draw his warrant in favor of the petitioner. Peremptory writ issued.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Public Work—Assignment of Contract—Service of Withhold Notice—Equitable Garnishment.—One who has furnished teams, tools, and other appliances for use in connection with the construction of a county highway and who has served the notice to withhold upon the county, as prescribed by section 1184 of the Code of Civil Procedure, effects an equitable garnishment of the balance of the bonds remaining in the hands of the county treasurer which the county promised to issue for the work, as provided in the Boad District Improvement Act of 1907, notwithstanding the contractor had assigned his contract to another who financed the work in consideration of his receiving a certain portion of the proceeds.</p> <p>[2] Id.—Performance of Work as Subcontractor — Bight of Materialman to Garnishment.—In such case, the person furnishing such teams, tools, and other appliances, upon the giving of said notice, effected a garnishment of the balance of said bonds, whether the work was performed by the original contractor as such or as a subcontractor under his assignee.</p> <p>[3] Judgment—Pleading oe Bab.—The plaintiff is not required to plead a former judgment in bar of a defense set up by the defendant.</p>

<p>[1] Jurisdiction — Modification of Judgment Pending Appeal—. Power of Trial Court.—Pending an appeal from a judgment in favor of the plaintiff for a given amount of money and directing that certain street bonds in the custody of the county treasurer be delivered to the clerk and held by him to satisfy such money judgment, the trial court is without jurisdiction to make an order directing that a part of said bonds be released and delivered to the defendant.</p>

<p>[1] Evidence — Testimony Inherently Impossible — Reversal of Judgment.—When the undisputed circumstances show that the story told by a litigant and his witnesses cannot by any possibility be true, or when their testimony is inherently impossible, the appellate court should not hesitate to reverse the- judgment, to the end that the cause again may be submitted to the determination of a jury or trial judge.</p> <p>[2] Id.—Application of Common Knowledge of Physical Laws to Admitted Pacts—Improbability of Plaintiff’s Story.—It is the duty -of an appellate court to exercise great care and caution in applying the test of common sense and common knowledge of physical laws to a given state of facts, and unless it can say that, under the undisputed physical facts, the accident could not possibly have been due to defendant’s negligence as alleged in the complaint, it must affirm the judgment. It is not sufficient that the story told by plaintiff and his witnesses may be improbable.</p> <p>[3] Id.-—Position of .Plaintiff After Accident — Consistency of Plaintiff’s Version With Physical Laws.—In this action to recover damages for personal injuries sustained by plaintiff by reason of the fact that the motorcycle, driven by his son, on which he was riding was crowded off the highway, due to the alleged negligence of the defendant in the operation of her automobile, it could not be held as a matter of law or a demonstration of physics that plaintiff and his son could not possibly have been thrown the distance they were if the motorcycle was going at the rate of -speed described by plaintiff’s witnesses, but that such an eventuality was possible if it was going at the higher rate of speed testified to by defendant’s witnesses.</p> <p>[4] Id.—Consistency of Testimony With Physical Facts—Reasonableness of Plaintiff’s Version—Finding of Trial Court Conclusive.—To entitle the plaintiff in a personal injury ease to recover, it is not essential that the court can see that every detail of the accident, as testified to by the plaintiff and his witnesses, is consistent with the admitted physical facts and the laws of science; and if, notwithstanding the admitted physical circumstances, the accident could have been caused by the negligence of the defendant as charged in the complaint, the reasonableness of plaintiff’s version of the accident is a question of fact for the trial court, and its finding thereon is conclusive on appeal.</p>

<p>[1] Quieting Title—Essentials to Recovery—Evidence.'—In an action to quiet title, the plaintiff must succeed only on the strength of his own title, and not on the weakness of his adversary; and when reliance is placed solely upon a paper title, the chain thereof must he from the original patentee or some grantor in possession.</p>

<p>[1] Quieting Title—Pleading—Counterclaim for Commissions.—In an action to quiet title a defendant who, hy his answer, expressly denies that he claims any interest in the land, is not entitled under sections 437 and 438 to present a counterclaim for commissions earned as agent for plaintiff in procuring a prospective purchaser of the property.</p>

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

<p>[1] Supersedeas&emdash;Motion in Trial Court to Dismiss Appeal&emdash;Restraining Hearing.&emdash;A writ of supersedeas will be issued out of the district court of appeal to restrain a justice court from proceeding with the hearing or determination of a motion to dismiss an appeal taken to the former court.</p> <p>[2] Appeal &emdash; Sufficiency of Undertaking •&emdash; Jurisdiction to Hear Motion to Dismiss.&emdash;A motion to dismiss an appeal from a judgment of a justice court, based upon the ground that a proper undertaking was not filed, can be made in the appellate court only.</p>

<p>[1] Negligence — Use of Public Street — Duty to Observe Approaching Vehicles—Qualification of Bule.—The rule that one using a public street is charged with the duty of observing approaching vehicles is qualified and explained by the more general rule that, except in cases where the law itself fixes a standard of care, negligence is always relative and to be determined in view of all the circumstances of the particular case.</p> <p>[2] Id.—Position of Plaintiff —- View of Driver — Contributory Negligence.—In this action for damages for personal injuries received through having been struck by a truck driven by an employee of the defendant, it could not be said as a matter of law that plaintiff was guilty of negligence by reason of the fact that at the time of the accident he was standing in a public street near the curb and immediately back of the left rear mud-guard •of an automobile which had been struck earlier in the day and slightly damaged, where the plaintiff and the automobile he was examining were clearly visible in the course of the oncoming truck which caused the injuries.</p> <p>1. Duty of pedestrians to look out • for automobiles, notes, 3 L. B. A. (N. S.) 345; 20 L. B. A. (N. S.) 232; 38 L. B. A. (N. S.) 488; 42 L. B. A. (N. S.) 1179.</p> <p>Duties and liabilities of drivers of automobiles upon streets, notes, 5 Ann. Cas. 793; 6 Ann. Cas. 658, 922; 7 Ann. Cas. 551; 8 Ann. Cas. 1092.</p> <p>Reciprocal duty of operator of automobile and pedestrian to use care, note, 51 L. R. A. (N. S.) 990.</p> <p>[3] Id.—Prudence Exercised in Assuming Position — Bight of Driver to Bun into Plaintiff.—The rule of contributory negligence gives no support to the claim that the driver of an automobile or truck may heedlessly or wantonly run down those who are where they have a right to be, particularly if reasonable men may differ concerning the prudence exercised by the injured person.</p>

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

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

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

<p>[1] Interpleader—-Disputed .Commissions Deposited With Bank-Action to Determine Title.—Where money is paid into a bank under an agreement that a certain individual is to be paid a stated percentage thereof as commissions and the balance held in escrow for a certain corporation until a given amount is procured, and thereafter, but prior to such fund having reached the specified amount, the corporation notifies the bank that its contract with said individual has been abrogated and annulled, and demand is made that the bank pay no more money to said individual, and said corporation leaves on deposit with the bank a sum sufficient to pay the given percentage of the moneys thereafter paid into the bank with the understanding and agreement that the said sum is to be left with the bank until such time as the dispute between said individual and said corporation are adjusted, a proper case for interpleader by the bank is presented.</p> <p>[2] Id.—Nature of Proceeding—Waiver of Objections.—Where such bank brings an action in interpleader to determine the title to said fund thus left on deposit, and the defendants do not make any objection in the trial court to the nature of the proceeding, either by demurrer, motion, or answer, they will be held to have waived any objection they might otherwise have urged to the right of plaintiff to maintain the action as an interpleader.</p> <p>[3] Appeal—Insufficiency of Findings—Absence of Evidence on Appeal.—Where an appeal is on the judgment-roll alone, the appellate court cannot consider the appellant’s claim that the findings do not cover all the issues raised by the pleadings.</p> <p>[4] Id.—Want of Finding—When Reversible ERror.—A judgment will not be reversed for want of a finding unless it appears that there was evidence or lack of evidence which required the court to make a finding in favor of appellant.</p> <p>[5] Judgment—General Findings—Sufficiency of.—Where neither the answers to the complaint in interpleader nor the answers to the cross-complaint of one of the defendants presented any affirmative defenses, the general findings of the trial court that the allegations of said complaint and of said cross-eomplaint were true, except as in certain particulars specified, and that none of the answers of the defendants and cross-defendants was true or supported hy the evidence, were sufficient.</p> <p>1. Right of interpleader, notes, 35 Am. Dec. 695; 91 Am. St. Rep. 593.</p>

<p>[1] Corporations — Levy of Attachment on .Stock — Refusal to Transfer.—The fact that suit has been brought against the transferor and the transferee of corporate stock and a writ of attachment served on the secretary of - the corporation will furnish no ground for refusal on the part of such secretary, upon demand and presentation of the old certificate properly indorsed, to make transfer of the stock and to issue a new certificate therefor to the transferee.</p> <p>[2] Id.—Right to Reasonable Time to Make Transfer—Liability for Refusal to Transfer on Demand.—Where the secretary of the corporation was ready to have immediately made the transfer of the stock upon the demand of the transferee, but he refused to make the transfer because he believed the attachment prevented him from doing so, he was not entitled to a reasonable time there after within which he might make such transfer, and upon such refusal the transferee had the right to immediately commence an action to recover the penalty prescribed by section 324 of the Civil Code.</p> <p>[3] Id.—Absence of Revenue Stamps — Refusal to Transfer — Grounds—Liability.—The fact that the revenue stamps required by the federal law were not affixed to the old certificate or tendered by the transferee would not interfere with his right to recover the penalty prescribed by section 324 of the Civil Code where the refusal of the secretary to make the transfer was not based upon that ground, but solely upon the ground that the writ of attachment had been levied on the stock.</p> <p>1. Duty of corporations to transfer stock on their books, note, 136 Am. St. Rep. 1027.</p>

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

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

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

<p>[1] Negligence—Collision Between Motorcycle and .Automobile —Use or Wrong Side op Boad—Evidence—Finding.—In an action for damages for personal injuries, a finding that at ' the time of the accident the motorcycle on which plaintiff was riding was proceeding in a westerly direction on the northerly or right-hand side of the highway and that defendants’ automobile was proceeding in an easterly direction on the northerly or left-hand-side of the highway is not sustained by the evidence where it appears without conflict that the motorcycle on which plaintiff was riding had been proceeding westerly on the southerly or left-hand side of the highway and defendants’ automobile was proceeding easterly on the southerly or right-hand side of the highway, and that the driver of each machine was trying to avoid collision with the other, and each machine at the moment of the accident was proceeding diagonally north across and not along the road.</p> <p>[2] Id.—Burden of Proof.—In such an action, it is not sufficient for the plaintiff to show that the accident occurred and that he was injured, but he must also show that the accident occurred by reason of the negligence of the defendants, or, as in this case, of the wife who was driving the machine.</p> <p>[3] Id.—Use of Left-hand Side of Boad—Not Negligence Per Se. It does not follow as a matter of law that the defendants were . negligent in being on the left-hand side of the highway at the moment of the collision, and the allegations of the complaint that they were traveling along the left-hand side of the highway do not make a case of negligence per se. There are certain circumstances under which the law permits one to use that portion of the highway.</p> <p>[4] Id.—Duty of Driver to Avoid Collision.—It is the duty of the driver of a vehicle who is suddenly confronted with danger, though arising from the fault' of another, to seek to avoid a collision. Whether he has taken the proper course depends upon all the circumstances of the ease.</p> <p>[5] Id.—Issues Presented—Bight to Findings.—When the question of negligence is one of fact and not one of law the defendants are entitled to a finding on the facts put in issue by their answer in order that the court may on appeal determine whether the trial court drew the proper conclusions of law from the facts so found.</p> <p>[6] Id.—Unsupported Finding That All Allegations Untrue.— Where the circumstances under which the collision occurred were definitely put in issue by the answer and were proved substantially without conflict at the trial, a finding that all the allegations of the answer were untrue was not supported by the evidence.</p> <p>[7] Id.—Imputation of Negligence to Plaintiff — Absence of Bight to Becover.—Though the negligence of the driver of the motorcycle on which plaintiff was riding may not be imputed to the latter under a plea of contributory negligence, if the proximate cause of the collision with defendant’s automobile was the negligence of the driver of such motorcycle, plaintiff may not recover from the defendants.</p> <p>3. Buies of road governing vehicles proceeding in opposite directions, note, 41 Ii. R. A. (N. S.) 337.</p> <p>7. Contributory negligence of driver as imputable to occupant of vehicle, notes, 3 Ann. Cas. 703; 9 Ann. Cas. 408, 938; 19 Ann. Cas. 1225; Ann. Cas. 1916E, 685; Ann. Cas. 1918B, 241; Ann. Cas. 1918C, 961; L. R. A. 1915B, 953.</p>

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

<p>PROCEEDING in Mandamus to compel the auditor of Tehama County to draw his warrant for salary claimed by petitioner. Writ denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Pbomissory Notes—Action upon—Sufficiency of Allegation of Nonpayment.—In an action upon a promissory note, an allegation that a stated sum, “the interest on said promissory note” to a specified, date, “has been paid, and that no other or further sum has been paid thereon,” constitutes a sufficient allegation of nonpayment as against the general objection that the complaint does not state" a cause of action.</p> <p>[2] Id.—Action by Payees Against Makers—Ownership op Note— Pleading.—In an action by the payees against the makers . of a promissory note, it is sufficient to allege the execution and delivery of the note to the plaintiffs, without alleging that they are the owners and holders thereof.</p>

<p>[1] Appeal—Striking Demurrer from Files—Order not Appeal-able.—An order striking a demurrer from the files is not appeal-able.</p> <p>[2] Pleading—Piling After Time Allowed bt Law—Striking from Piles.-—-Where a demurrer is not filed within the time allowed by law, the trial court is warranted in ordering it stricken from the files.</p> <p>[3] Default—Effect of Pleading Piled Out of Time—Power of Court to Enter Judgment by Default.—A demurrer filed out of time is not a nullity, and until it is disposed of by motion, or in some appropriate manner, no judgment by" default can be entered.</p> <p>[4] Id.—Motion to Strike Out Belated Pleading—Discretion of Trial Court.—While a defendant’s default may not be entered until his demurrer or other pleading, though filed after the time permitted by law, has been disposed of, it is a proper practice in such ease to move to strike the pleading from the files; and in the exercise of a sound discretion, the court very properly may grant such motion to strike.</p> <p>[5] Id.—Frivolous Belated Demurrer—Harmless Error in Striking Out.—Where the case was such that the trial court was warranted in treating the demurrer filed by the defendant after the expiration of the time allowed by law as frivolous and interposed to gain time, and in overruling it without leave to answer, the irregularity, if any, of the trial court in striking such demurrer from the files was harmless error.</p>

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

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

<p>[1] Vendor and Vendee — Objections to Title—: Sufficiency of Specifications.—Where a letter from the vendee to the vendor is treated by the latter and his agent as a sufficient specification of the vendee’s objections to the title, it will be held sufficient as a specification of defects in title.</p> <p>[2] Id.—Sending of Notice to Vendor—Waiver of Contract.—The vendor will be estopped to raise the objection that the vendee sent such letter direct to him, instead of to his agent as provided in the contract of purchase, where such objection was not raised until after institution of suit to recover the deposit paid upon the signing of the contract of purchase.</p> <p>[3] Id.—Knowledge of Building Restrictions—Assurances of Removal—Reliance on—Waiver.'—The fact that the vendee knew of the building restrictions upon the premises at the time of the execution of the contract of purchase will not estop her from raising that objection to the title where the vendor and his agent repeatedly assured her that the obnoxious restrictions would be removed, and it was only in consequence1 of such assurances and in reliance thereon that she was induced to execute the contract for the purchase of the premises.</p> <p>[4] Id—Building Restrictions — Encumbrances upon- Title — Recovery of Deposit.—Restrictions imposed upon the use of premises for other than residential purposes constitute such encumbrances upon the title to real property as will justify a purchaser in seeking a recovery of his partial payment in the event of the refusal or failure of the seller to bring about their removal.</p> <p>4. Right of vendee in contract for the sale of real property to recover payments, note, L. R. A. 1918B, 540.</p> <p>[5] Id.—Division of Deposit Between Vendor and Agent—Recovery from Vendor.—The vendee, having paid to the vendor through the latter’s agent a certain sum as a deposit upon a contract which both the vendor and his agent failed and refused to carry into effect, is entitled to recover from the vendor the whole sum paid by her regardless of any division of said sum which might have taken place between the vendor and his agent and with which the vendee had nothing to do.</p>

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

<p>[1] Deed—Delivery Essential.—Delivery of a deed is necessary to consummate the conveyance.</p> <p>[2] Id.—Possession by Grantor—Delivery—Evidence.—Where the deed is found in the possession of the grantor, this fact is evidence that it was not delivered to the grantee.</p> <p>[3] Id.—Delivery to Third Party.—Where the grantee directs or agrees that the deed may be left for him with a third party, the delivery to the latter is equivalent to a delivery to the grantee, the third party being thus constituted the grantee’s agent for such purpose.</p> <p>[4] Estoppel—Inducing Others to Change Position—Rights op Legal Owner—Fraud.—The principle that where a person tacitly encourages an act to be done he cannot afterward exercise his legal right in opposition to such consent, if his conduct or acts of encouragement induced the other party to change his position so that he will be pecuniarily prejudiced by such adversary claim, can be invoked against the legal owner of land to prevent him from asserting his title only when he is chargeable with fraud, actual or constructive, against -the opposite party.</p> <p>[5] Id.—Construction op Building—Foreclosure op Trust Deed— Extinguishment op Liens.—Where the owner of land conveys it to another and the latter, while the owner subject to a deed of trust of record executed by him in favor of the former owner, contracts for services and materials in connection with the construction of a building on the land, and thereafter, upon a foreclosure of the deed of trust, the former owner again becomes the owner, he takes the property free and clear of the liens of the lien claimants who furnished such services and materials, if the transaction is free from fraud.</p> <p>[6] Id.—Improvement and Sale op Land—Joint Enterprise—Liability to Lien Claimants.—Where the owner of land conveys it to another, taking hack a deed of trust, and there is between them an understanding and agreement that the latter is to construct a building on the land and both are to he equally interested in the property and are to share in whatever profits might be enjoyed, both are liable for the cost of the building, and the building itself is subject to a lion for labor done or materials furnished in the absence of the notice of nonresponsibil- . ity provided by section 1192 of the Code of Civil Procedure.</p>

<p>[1] Nonsuit—Nature ot Motion—Question Presented.—A motion for a nonsuit presents for decision a question of law and in effect amounts to a demurrer to the evidence, and, therefore, necessarily assumes the truth of all the testimony presented in behalf of the plaintiff.</p> <p>[2] Wills—Proceeding to Contest—Submission to Jury—Evidence. In determining whether or not, in a proceeding to contest a will, the evidence produced by the contestants is sufficient to require the submission of the case to the jury, the same rules apply as in civil cases, and every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence produced must be considered as facts proved in favor of the contestants; and if there is any substantial evidence tending to prove in favor of the contestants all the facts necessary to make out their case, they are entitled to have the case go to the jury for a verdict on its merits.</p> <p>[3] Id.—Admission of Evidence of Both Parties—Motion for Non-suit—Consideration of Evidence.—The rule governing the determination of the question whether a nonsuit should or should not be granted in a given ease does not always apply with the same strictness where the motion is made after both the plaintiff and the defendant, or, in the case of the contest of a will, both the contestant and the proponent have presented their evidence, and it is not error to grant the motion where, upon all the evidence, it is clear that if a jury should bring in a verdict against the defendant it would be the duty of the court to set it aside and order a new trial.</p> <p>[4] Id.—Proceeding to Revoke Probate — Burden of Proof — Presumption of Testamentary Capacity.—In a proceeding to secure the revocation of the probate of a will upon the ground of testamentary incapacity, the attack being upon the order by the court admitting the will to probate and by which the court expressly found that the deceased was of sound and disposing mind, the burden is upon the contestants to overcome the effect of the primary presumption of the testamentary capacity of the deceased and also of the order involving the adjudication, upon presumptive sufficient evidence to justify it, that the deceased was mentally competent to make a will at the date of the execution of the instrument whose legality is under attack, and to show that he was not of such sound and disposing mind.</p> <p>[5] Id.—Condition of Mind Prior and Subsequent to Testamentary Act—Evidence.—Evidence of the condition of the testator’s mind, both before and "subsequent to the date of the testamentary act, is always admissible as having a tendency to show what the condition of his mind was at the date of the making of the will; but it does not always follow from the fact that a person may, before and after the purported execution of his last will and testament, display some mental peculiarities or idiosyncracies which have not always been in his lifetime characteristic of him or which have not been exhibited by him when he has been in what may be supposed to have been the normal state of his mind, that he is incapable, mentally, of exercising a sound will and judgment in disposing of his estate by testament.</p> <p>[6] Id.—Mental Capacity—Opinion Evidence—Weight.—The opinion of a witness that a person -is of unsound mind cannot be stronger than, or of superior evidentiary weight to, the reasons upon which he bases his opinion.</p> <p>6. Weight of opinion evidence as to mental capacity, notes, 38 Ii. R. A. 745; 39 L. R. A. 328, 331; 42 L. R. A. 767.</p> <p>[7] Id.—Proceeding to Revoke Probate — Insufficiency of Evidence.—In this proceeding to secure the revocation of the probate of a will upon the ground of testamentary incapacity, while the testimony introduced afforded the inference that the deceased at the times referred to by the witnesses often used intoxicating liquors to an excessive degree, and was frequently ill, perhaps from the use of such liquors and "his venerable years, there was nothing in the testimony to indicate that his mental condition was impaired when he was not under a state of intoxication, or that he was not sober and perfectly rational at the time he made the will.</p>

<p>[1] Highways—Rights of Public Authorities.—As a general proposition, the public authorities have the right to the use of the entire right of way that has been acquired for highway purposes, and to that end to remove from it trees, embankments, or other obstructions which in any way interfere with its use for public travel.</p> <p>[2] Id.—Grant of Strip to County—Reservation of Growing Trees —Limitation on Subsequent Use.—Where the owner of land deeds a strip thereof to the county for highway purposes, reserving all of the trees growing thereon and the right to trim and remove them, and the supervisors accept the dedication subject to such reservation, a municipal corporation which subsequently transforms such highway into one of its streets takes it burdened with the exceptions contained in the deed to the county, and may not, without her consent, and without compensation, remove the trees because they interfere with the plans of the municipal corporation in the matter of paving and curbing the street.</p> <p>[3] Id.—Destruction of Trees by Municipality—Police Power.— The cutting down or destroying of trees growing in a public street without the consent of the owner of the fee-simple title to the trees, and without compensation, cannot be justified on the ground that it is an exercise of the police power for the benefit of the health and convenience of the community.</p> <p>[4] Id.-—Contract Reserving Trees—Right of State or Municipality to Impair.—The deed of a strip of land to the county for highway purposes, reserving to the grantor the trees growing thereon, which dedication is accepted by the supervisors subject to such reservation, constitutes an executed contract, within the meaning of the provision of article I, section 10, of the federal constitution that “No state shall pass any law impairing the obligation of contract,” and fixes and limits the rights of the respective parties thereto; and it is beyond the power of the state of California, or any municipal subdivision thereof, by any ordinance or resolution, to impair the obligations of such contract.</p> <p>[5] Id.—Destruction of Growing Trees—Injunction.—Where the owner of land conveys a strip thereof to the county for highway purposes, reserving the fee-simple title to the trees growing thereon, an injunction may be had to prevent the unlawful cutting down or destroying of such trees by a municipal corporation which subsequently transforms the highway into one of its streets.</p>

<p>PROCEEDING on Habeas Corpus to secure release from sheriff. Writ discharged.</p>

<p>[1] Broker's Commissions — Exchange of Beal Properties — Delivery of Documents Employing Plaintiff—Parol Evidence.— In an action to recover on a contract to pay a commission for services rendered in procuring an exchange of real property, parol evidence is admissible to prove that the documents on which the plaintiff relies to prove its authority and right to the commission, though executed by the defendants, were not effectively delivered.</p> <p>[2] Corporations—Exchange of Beal Properties—Power of President.—The president of a corporation has not the authority to bind the corporation to an agreement to exchange real properties.</p> <p>2. Power of president of corporation as to contracts, generally, note, 14 Ii. R. A. 356. Authority of officer of corporation to enter into contract for sale or purchase of real estate, note, Ann. Oas. 1917A, 482.</p>

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

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

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

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

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

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

<p>[1] Vendor and Vendee—Deficiency of Frontage—Materiality of Inducement.—In this action involving the sale and purchase of certain lots which contained a frontage of two and one-half feet less than the contracts called for, the finding of the trial court that the deficiency was material was warranted under all the facts and circumstances in evidence; and from the direct evidence of the vendees that they would not have bought less than the front-</p> <p>1. Bight of purchaser of land to rely upon representation of seller as to boundaries, note, 14 L. B. A (N. S.) 1210.</p> <p>age called for by their contracts, and that the lots were too small even at that measurement, the court was justified in concluding that this was a material inducement for entering into the contract.</p> <p>[2] Id.—'Compensation fob Deficiency—Inability to Measure—Rescission.—The representation as to the frontage of the lots having been a material inducement for entering into the contract for their purchase, and the deficiency not being capable of exact and entire compensation, the vendees, under the provisions of section 1690 of the Civil Code, were entitled to rescind.</p> <p>[3] Id.—Misrepresentation as to Frontage—Fraud.—Under section 1573 of the Civil Code, the vendors were guilty of fraud in misrepresenting the frontage of the lots, it having been their duty to inform themselves correctly regarding the boundaries of the lots they were seeking to sell.</p> <p>[4] Id.—Waiver of Delinquencies—Discovery of Misrepresentations—Rescission.-—If, notwithstanding the vendee was delinquent in Ms payments at the time -of the attempted rescission, the contracts were in full force and effect, the vendors having waived the provision that time was of the essence' of the contracts, the vendee was entitled to rescind upon discovery of the misrepresentations.</p> <p>[5] Id.—Motive in Rescinding Immaterial.—The motive of the vendee in rescinding may not be inquired into when he has a legal reason for rescinding and relies thereon.</p> <p>[6] Id.—Adjudication of Rights Between Defendants—Waiver by Failure to Request—Appeal.—Where the vendor and his assignee joined in one answer to the complaint of the vendee and did not ask the trial court to litigate the matter of their rights as against each other, and thereafter they joined in the notice of appeal from the judgment in favor of the vendee, neither appealing from the judgment as between themselves, argument cannot be made on such appeal that their rights are not adjusted between themselves in the decree of the trial court.</p> <p>[7] Id.—Acceptance of Overdue Payments—Right of Forfeiture Waived—Contract Unchanged.-—While acceptance of overdue installments of the purchase price, on an executory contract for the sale of land, waives any right to declare a forfeiture on account of the previous failures to pay when due, such acceptance alone does not change the terms of the contract as to forfeiture for future failures, nor eliminate the provisions that time is of the essence of the contract. (Opinion "of supreme court on denial of hearing.)</p> <p>2. Mistake in quantity of land as ground for rescission of sale, note, 4 Ann. Cas. 52.</p> <p>[8] Id.—Default by Vendee—Waiver of Bight to Besoind on Vendor’s Breach.—The rule that the vendee is not entitled to rescind1 while he himself is in default by nonpayment of installments due on the purchase price applies only to cases where a rescission is sought or claimed by one party to an executory contract on the ground of a breach of the contract by the other party. (Opinion of supreme court on denial of hearing.)</p>

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

<p>[1] Mandamus — Adjudication of Private Eights — Absence of Emergency- — Jurisdiction.—The appellate court will deny an application for a writ of mandate where the application is based upon private rights only and it does not appear that some peculiar emergency or exigency exists such as would justify the issuance of the writ by the appellate court in the first instance.</p>

<p>[1] Broker’s Commissions ■—Action to Recover — Misrepresentations—Independent Knowledge—Evidence—Findings.—In this action to recover the commission agreed to he paid for negotiating a. contract for the purchase of crude oil from a producing company, the evidence of disinterested witnesses clearly established that the defendant had full independent knowledge of the character of ,the oil produced before it signed the contract for its purchase and, as the plaintiff and' his associate both denied making the statements with reference to the character of the oil produced as charged by the defendant, the findings of the trial court that no fraud was practiced in the inception of the contract and that the alleged misrepresentations were not made were amply supported.</p> <p>[2] Id.—Counterclaim—Ultimate Fact—Findings.—Notwithstanding the defendant interposed a counterclaim for damages based on the alleged misrepresentations of the plaintiff, the ultimate fact in such case was whether or not the defendant was indebted to the plaintiff, and the trial court having found, with ample support in the evidence, that no improper act of plaintiff entered into the transaction, that the defense interposed by the defendant could not avail, and that the defendant was indebted to the plaintiff in the amount prayed for, that finding necessarily concluded the whole controversy, and its failure to find on the issues raised by the counterclaim was not an error requiring a reversal of the judgment.</p> <p>[3] Id.—Appeal—Presentation of Points—Insufficiency of Brief. Where the appellant, in its brief, says, “There are many other errors specified in defendant’s specifications of errors, but we submit the court’s attention has been called to sufficient error to reverse the cause, and without waiving any of the other errors will not further discuss them,” the appellate court will not consider points thus presented.</p>

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

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

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

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

<p>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. Reversed in part; affirmed in part.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>[1] Accident Insurance—Term of Insurance—Belief of Assured. Where an application for accident insurance is for insurance for a term of five years, and a collateral note given by the assured obligates him to pay the premium for a term of five years, it cannot be contended that the insurance company did not believe the assured understood its promise to be for the insurance for which he applied and for which he was bound to pay, notwithstanding the insuring clause, of the policy issued purports to limit the insurance to a period of one year.</p> <p>[2] Id.—Unpaid Installment — Forfeiture — Penalty.—Where such note was payable in annual installments, each installment representing one year’s premium payable in advance, which the insurer had the right to collect together with interest and attorney’s fees if not paid when due, a forfeiture clause in the policy providing for the release of the insurer from liability during the period between the maturity of an installment and its subsequent payment constituted a penalty in contravention of the provisions of the code relating to liquidated damages in fixing compensation to be made for the breach of an obligation to pay a sum of money on a certain day.</p> <p>[3] Id.-—Intention to Enforce Payment—Letters to Assured.— Where the insurer, after the second installment of the note became due, wrote several letters to the assured calling his attention to ■ the fact that the payment was past due and requested him to pay it, such letters indicated an intention on the part of the insurer to collect the amount of that installment of the premium for which the assured was entitled to the insurance for the second period of the five-year term.</p>

PROCEEDING- on Habeas Corpus to secure the release of a minor detained in a juvenile home for refusal to answer incriminating questions. Minor discharged. The facts are stated in the opinion of the court.

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

<p>[1] Nonsuit—When may be Granted.—When once a plaintiff has adduced such evidence as if uneontradieted would justify a verdict, no amount of contradictory evidence will justify the withdrawal of the case from the jury.</p> <p>[2] Id.—Contest of Will—Consideration of Evidence.—On a motion for a nonsuit, particularly when made on the close -of the plaintiff’s, or, in the ease of a will contest, the contestant’s, case, in determining whether the evidence presented is sufficient to take the ease from the jury, the entire evidence presented is to be viewed from a point most favorable to the plaintiff or the contestant. In other words, a nonsuit may be granted only when, disregarding conflicting evidence and giving to plaintiff’s or contestant’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of any substantiality to support a verdict in favor of plaintiff or contestant if such verdict were given.</p> <p>[3] Wills — Testamentary Capacity.-—If the testator is able to understand and carry in mind the nature and situation -of his property and his relation to his relatives and those around him with clear remembrance as to those in whom and those things in which he has been mostly interested, capable of understanding the act he is doing, and the relation in which he stands to the objects of his bounty, free from any delusion, the effect of disease, which might lead him to dispose of his property otherwise than he would if he knew and understood what he was doing, he has the capacity to make his will.</p> <p>[4] Id.—Legitimate Inference Defined.—By legitimate inferences are meant those inferences that necessarily follow from certain evidence—legal inferences that are reasonably and legally to be drawn from the evidence.</p> <p>[5] Id.—Contest of Probate — Evidence — Intoxication — Nervous Shock—Intelligent Comprehension of Act.—In this proceeding contesting the admission to probate of a holographic will, although the evidence introduced by the contestant showed that the testator had been addicted to the use of intoxicating liquors and that he had suffered a severe nervous shock as the result of the reverses with which he had met, and which had reacted upon his mental and physical condition, there was no evidence from which the inference necessarily followed that he had no intelligent comprehension of what he was doing when he wrote his will, while the • will itself was mute but convincing evidence of the fact that he fully comprehended what he was doing when he wrote it.</p> <p>3. What constitutes testamentary capacity generally, notes, 27 L. B. A. (N. S.) 2; L. B. A. 1915A, 444.</p> <p>[6] Id.—Suicide — Insanity — Testamentary Capacity — Burden oe Prooe.—The fact alone that the testator committed suicide does not prove that he was insane; neither is it true that no person who is insane may make a valid will. To sustain the position that one not entirely sane has not made a valid testamentary disposal of his estate it must be clearly shown that, at the time of the testamentary act, he was insane to the extent that he was mentally incompetent to do so.</p> <p>[7] Id.—Irregularity op Handwriting—-Mental Competency.-—The fact that in the testator’s handwriting as shown by his will there is evidence of nervousness or unsteadiness and for that reason he did not form the letters in the words as evenly or regularly as was his custom proves nothing as against the proposition that he was mentally competent to make a will at the time he wrote the document in question.</p> <p>[8] Id.—Misspelling Name op Devisee—Testamentary Capacity.— The circumstance that the deceased, in his will, spelled the first name of one of the devisees, a nephew, erroneously, does not possess any significance as showing his mind to be unbalanced to a degree that he was without testamentary capacity when he wrote the will.</p> <p>6. Suicide as bearing upon question of testamentary capacity, notes, 24 L. R. A. 577; 27 L. K. A. (ST. S.) 94. .</p> <p>Insanity as evidenced by suicide, notes, Ann. Cas. 1912A, 44; Ann. Cas. 1916E, 488.</p>

<p>[1] Place of Trial—Order Changing—Duty of Clerk to Transmit Papers—Effect of Appeal.-—Under section 399 of the Code of Civil Procedure, it is the duty -of the clerk of the court, upon the entry of an order changing the place of trial to another county, to immediately transmit the papers to the clerk of the court to which the action was transferred; and, under section 949 of the Code of Civil Procedure, the proceedings upon such an -order are not" stayed by an appeal therefrom.</p> <p>PROCEEDING in Mandamus to compel a county clerk to transmit the papers in an action to the clerk of the court to which the action was ordered transferred. Peremptory writ issued.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Louis W. Myers, Judge. Affirmed.</p> <p>The facts are closely like those shown by the record in Merchants Realty and Investment Co. v. Kelso, ante, p. 218, [189 Pac. 116],</p>