Volume 47 — California Appellate Reports

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

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

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

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

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

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

<p>[1] Guaranty-—Action on—Nature of.-—A guaranty is an independent contract—that is, it is entirely independent of any contract of debt the payment of which is thus assured—and an action on a guaranty of payment of a note is upon an independent contract of the guarantor with which the principal debtor has nothing to do.</p> <p>[2] Id.—Several Securities for Same Obligation—Contract of Surety—Eight of Creditor.—A mortgage or a trust deed given to secure the performance of an obligation to pay money and a guaranty given for the same purpose are each intended to sub-serve the same purpose, and where both are given to secure one single obligation of that character, the -one operates merely as additional security to the other, and the creditor may resort either to the one or the other to enforce the payment of the money to secure the payment of which both were given; but in the case of a contract of surety executed to secure the performance of the obligation which is also secured by a mortgage or other collateral security, the holder of the mortgage or other security is compelled to apply to the payment of the debt the property of the debtor which has been mortgaged to secure the debt.</p> <p>[3] Id.—Security for Payment of Debt—When Security for Guaranty.—To justify a court in holding that a mortgage or deed of trust given as security for the payment of a debt was also given as security for the performance of a contract of guaranty of such payment, there would have to be to that effect a clear and unequivocal intent expressed in the mortgage or trust deed.</p> <p>[4] Id.—Action on—Attachment.—In an action upon a contract of guaranty, a motion to dismiss an attachment upon the ground that the performance thereof is secured by a deed of trust is properly denied where it is found that such deed of trust was given as security for the payment of the principal debt only, and not as security for the performance of the contract of guaranty of payment -of that debt.</p> <p>1. Co-ntraets of guaranty generally, note, 105 Am. St. Bep. 502.</p>

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

<p>[1] Easements — Irrigation Canals — Division op Tract—Implied Understanding.—Where the owner of a tract of land sells a portion thereof across which are constructed certain ditches or canals which are the visible and obvious means of transporting water to the remainder of the tract, in the absence of an express understanding, an implied understanding arises that the burdens and correlative advantages due to the presence of such ditches or canals shall continue as they existed before the separation of the title.</p> <p>[2] Estoppel—Pleading.—If the facts from which an estoppel arises appear on the face of the complaint, it is not necessary that estoppel shall be pleaded in technical terms.</p> <p>1. Implied grant of easements upon severance and sale of property, notes, 34 Am, St, Rep. 708; 3 L, R. A. (H, S.) 1082,</p>

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

<p>APPEAL from a judgment of the Superior Court of Contra Costa County. R. H. Latimer, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Fire Insurance—Change of Location of Goods—Construction of Policy.—The removal of goods from the rear to the front- of a single two-story hriek building, without any increase in the risk or hazard, does not constitute a violation of a provision in a policy of fire insurance purporting to cover said goods while situate in the rear of said building.</p> <p>[2] Id.—Ambiguities in Policy—Construction of.—Since the language and terms of insurance policies are framed and formulated by the insurer, whenever ambiguities occur therein they are to be resolved in favor of the insured.</p> <p>2. Rule that doubtful terms must be construed favorably to insured, note, Ann. Cas. 1913E, 287.</p>

<p>[1] Sureties—Action on Performance Bond—Damages—Evidence —Findings.—In this action to recover a money judgment upon a performance bond executed by .defendants, as principal and surety, in connection with a contract by the principal to construct certain ditches, pipes, etc., as part of an irrigation system belonging to plaintiff, the evidence was sufficient to support the finding of the trial court that by reason of the failure of the contractor to complete the work in accordance with the terms and specifications of his contract, plaintiff was damaged in the amount for which the bond was given.</p> <p>[2] Id.—Defects in Contract—Validity of Bond not Affected.— In an action against the principal and the surety on a bond given as security for the performance by the principal of certain work, it is no defense that there were certain defects in the steps leading up to the making of the original contract and that the law was not in all respects complied with.</p> <p>[3] Id.—Noncomfletion of Work—Becitals in Bond—Evidence.— Where, after the work was completed by the contractor, payment therefor by the irrigation district was made upon his giving a bond in which it was recited that “whereas of such portions of said contract as has been tested certain parts are unsatisfactory to the board of directors and the engineer of said district, because of the fact that small leaks have developed” and that the irrigation district is willing to pay the contractor if he execute a bond “conditioned that he will faithfully perform and complete all of said concrete pipes which were constructed under said contract,” such recitals are conclusive, or, at least, very strong, evidence that at the time the bond was executed the contractor had not constructed the work in accordance with the terms of the contract. .</p> <p>[4] Id.—Agreement to Submit to Arbitration — Jurisdiction of Court.—An arbitration clause in a contract will not be held to oust the courts of jurisdiction where there are no express words in the contract making submission to arbitration a condition precedent to the bringing of a suit and no language used therein from which such intent can be inferred.</p> <p>4. Validity and binding force of arbitration agreements, notes, 29 Am. Bep, 602; 47 L. B. A. (N. S.) 337.</p>

<p>[1] Corporations — Sale op Stock on Execution — Title op Purchaser—Bulb Inapplicable to Mutual Water Companies.—The rule that where one at a sale under execution, in the absence of facts shown which charge him with notice that another has an interest therein as owner or pledgee, buys shares of corporate stock standing upon the books of a corporation in the name of the judgment debtor, he acquires absolute title thereto, is inapplicable in the case of purchase of shares of stock in a mutual water company created not for profit and .to pay dividends to the stockholders, but solely for the convenient and more economical management of a common source of water in the distribution of and from which, according to their respective rights, the owners of these several tracts of land are entitled to a supply of water for use thereon.</p> <p>[2] Id.—Exchange of Water Eight for Stock—Sale of Land on Foreclosure—Priority of Title to Water Eight as Against Execution Purchaser of Stock.—Where the owner of a water right as an appurtenance to certain land conveys such water right to a mutual water company created not for profit but solely for the convenient and more economical management of a common source of water and receives in exchange therefor shares of stock in said company in proportion to his previous rights in the water, such water right remains as an appurtenance to the land and passes to the purchaser of the land on the foreclosure of a mortgage duly recorded wherein the owner of the land mortgaged the same, “together with all water rights, pipe-lines, ditches and appurtenances thereunto belonging,” as against a subsequent purchaser at execution sale of the stock which still stood on the books of the company in the name of the former owner.</p> <p>[3] Id.—Action to Establish Ownership of Stock — Compliance With Section 324, Civil Code-—Appeal on Judgment-roll—Presumption.—On an appeal on the judgment-roll alone, in an action by the execution purchaser of shares of stock in a mutual water company against the purchaser on foreclosure of a mortgage on the land of the execution debtor to obtain a decree adjudging it to be the owner of said stock and for an order requiring the water company to issue to it a certificate for the same, it will be presumed, in support of the judgment and finding of the trial court that such stock was appurtenant to the land and passed with the deed thereto, that the water company complied with the provisions of section 324 of the Civil Code making such stock appurtenant to and transferable with the land.</p>

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

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

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

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

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

PROCEEDING on Habeas Corpus by a person detained in the custody of the -sheriff under an order of arrest issued by virtue of the provisions of section 479 of the Code of Civil Procedure.

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

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

<p>APPLICATION for a Writ of Prohibition to restrain the Superior Court of Humboldt County and Denver Sexier, Judge, from proceeding in a divorce action after change of venue.</p> <p>The facts are stated in the .opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Sau Diego County declaring certain minors to be wards of said court. S. M'. Marsh, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Street Law—Bonds—Teem—Omission to Designate—Cube of Defect.—Where the resolution of intention, in connection with proceedings for certain street work instituted and carried through under the provisions of the Vrooman Act and the Bond Act of 1893, provides that serial bonds shall issue to represent the cost and expense of the work, but the city council does not designate the period of time over which the bonds shall extend, and no objection in writing or appeal is filed, either from or concerning the assessment which is issued or the action of the superintendent of streets in designating in the warrant attached to the assessment the period of time over which the bonds shall extend, or otherwise, and bonds are accordingly issued, the defect, if not waived by the failure to appeal from the action of the superintendent of streets in fixing in the warrant the period of time over which the bonds should extend, is, under section 4 of the Bond Act, cured by the issuance of the bonds.</p>

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

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

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

<p>APPLICATION for a Writ of Certiorari to review an order of the Superior Court of Mendocino County, and J. Q. White, Judge, adjudging petitioner guilty of contempt of court.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Attorney at Law—Distribution op Note to Legatee—Running op Statute op Limitations—Negligence—Liability.—Where the legatees under a will, without waiting for formal distribution by-order of the probate court, upon their legacies becoming due and payable, enter into an agreement among themselves for the division and distribution of the property which consists, among other things, of a promissory note, and the property is accordingly divided and distributed, the attorneys for the executrix have no further concern therewith, and if, thereafter, the person who receives the promissory note allows the statute of limitations to bar an action thereon, that fact cannot give rise to a claim for damages against the attorneys.</p> <p>[2] Fraudulent Representations—Action por Damages—Conplicting Evidence—Finding—Appeal.—In an action for damages for the alleged fraudulent representations of an attorney to the effect that a loan made to Mm would be secured by a mortgage, and that such mortgage had been, executed as promised and was in the bank, the defendant having testified that the loan was made to him upon his personal note upon the understanding that no security was to be given, and that testimony having found support in the physical circumstances of the transaction, a finding of the trial court in accordance with such testimony cannot be disturbed on appeal.</p> <p>1. Liability of attorney for negligence or breach o-f duty, notes, 34 Am. Dec. 89; 33 Am. Rep, 760; Ann. Cas. 1917B, 3, 55.</p>

<p>[1] Homestead—Declaration bt Wipe—Motive—Compliance With Statute.—It is immaterial what the motive of the wife may be in declaring a homestead for the joint benefit of herself and her husband on property standing of record in the name of the latter, as it is not legally incumbent upon her to give any reason for her action. All she needs to do is to comply with the statute.</p> <p>[2] Id.—Presence of Bad Motive—Effect of Declaration—Joint Benefit—Legal Implication.—Even though the wife’s purpose in declaring a homestead on property standing of record in the name of the husband is to harass and annoy the latter and to cloud the title to the property, when the declaration of homestead is so made and recorded it places the property described therein beyond the reach of the creditors of the husband, or sale upon execution for Ms debts, etc., as effectually as though he filed the same himself and to that extent, the declaration is, by legal implication, for their joint benefit.</p>

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

<p>[1] Pledge—Agreement or Pledgeholder to Hold Property—Estoppel.—In this action to establish a first lien in plaintiff upon certain automobile material which, notwithstanding a prior pledge thereof, was pledged to plaintiff as security for a loan, it having been represented to plaintiff that the property had been freed from all prior liens and the corporation pledgeholder, by its president, having agreed to honor only such orders with reference to the delivery of the material as might be issued by plaintiff, the trial court properly held that the corporation pledgeholder was estopped to deny the binding character of the contract made by its president to hold the property subject to plaintiff’s orders, and that such president, as an individual, to whom the first note and the interest of the payee therein in the pledge of the security was assigned, and who, through an agent or employee, had purchased the property on a sale thereof to satisfy such first pledge, was estopped to deny that 'he was bound by the contract of the pledgeholder to hold the' property unconditionally for plaintiff.</p>

- APPEAL from an order of the Superior Court of Humboldt County directing the payment of costs and counsel fees on appeal in an action for divorce. George D. Murray, Judge. The facts are stated in the opinion of the court.

<p>[1] Divorce—Extreme Cruelty—Pleading.—The plaintiff is not required to adopt the exact language of section 94 of the Civil Code in pleading a cause of action for divorce on the ground of extreme cruelty, but it is sufficient if, by appropriate averments, the proper qualification appears.</p> <p>[2] Id.—Absence of Allegation of Wrongful Conduct—Special Demurrer.—Where in an action for divorce on the ground of extreme cruelty the course of conduct of the defendant is set forth in detail and it is alleged “all of which caused plaintiff great shame and humiliation, and inflicted upon him grievous mental suffering,” but it is claimed that the complaint is insufficient by reason of the failure to state that the grievous mental suffering was “wrongfully” inflicted, such alleged defect can be reached by special demurrer, and if not so attacked, it must be held to be sufficient.</p> <p>[3] Id.—Grievous Mental Suffering—Question of Fact—Appeal.—■ Whether in any case the course of conduct complained of constitutes “grievous mental suffering” is a question^ of fact, the determination of which in the first instance is committed to the judge who tries the action, and . his finding that particular acts constitute grievous mental suffering will not be disturbed unless the evidence in support of the finding is so slight as to indicate a want of ordinary good judgment and an abuse of discretion.</p> <p>[4] Id.—Separation Agreement—Undue Influence—Finding—Evidence.-—In this action for divorce on the ground of extreme cruelty, in which the defendant sought at the trial to avoid the legal effect of a separation agreement, entered into between herself and plaintiff, upon the ground that it was procured by undue influence, the evidence failed to disclose that the defendant was in any way coerced or induced by any means against her will to enter into the agreement.</p> <p>[5] Id.—Agreement Facilitating Marriage Dissolution — Validity of.—An agreement entered into between a husband and wife with the object of dissolving the marriage contract, or facilitating that result, is void.</p> <p>[6] Id.—Void Provision for Attorney Fee—Valid Provisions not Affected.—Although that portion of a separation agreement providing for the payment of an attorney fee to the wife, in the event that either of the parties should ever institute a divorce . action against the other, is void, such provision will not invalidate the other provisions of the agreement, which are disconnected and separable therefrom and are otherwise valid.</p> <p>[7] Id.-—Separation Agreement—Consideration of by Trial Court —Construction of Decree.—The trial court, having jurisdiction of the divorce action, has jurisdiction to consider the separation agreement entered into between the parties, and to affirm it, or to disregard it if it is found to be void; and if the court in its decree makes no division of the property of the parties, or provision for the support of the wife, but does recognize and expressly reserve to her the power to assert such rights and benefits as might accrue to her under the previously executed separation agreement, such action on its part will be construed to be a ratification of the agreement to that extent.</p> <p>4. Validity of contract intended to facilitate procuring of divorce, notes, 11 Ann. Cas. 377; Ann. Cas. 1915A, 811; Ann. Cas. 1918B, 902.</p> <p>[8] Id.—Validity of Agreement—Refusal to Set Aside.—The trial court, having found that the separation agreement was fairly made, and not obtained by coercion, intimidation, or undue influence, was correct in refusing to vacate and set it aside.</p>

<p>[1] Homestead—Declaration on Mortgaged Property—Extension oe Liability by Husband—Priority oe Homestead—Statute oe Limitations.—Where the wife declares and files a homestead on real property which is subject to a mortgage which she and her husband had executed as security for their promissory note, and thereafter and after the maturity of such note, but before the running of the statute of limitations, the husband, without the knowledge or consent of the wife, enters into a stipulation and agreement in writing with the payee of the note and mortgage of the property extending the time of payment on said note and mortgage, such extension of the liability does not preserve the lien of the mortgage as against the homestead after the statute of' limitations has run against the liability as originally created.</p>

PROCEEDING in Certiorari to review an order of the Industrial Accident Commission fixing compensation of counsel for legal services rendered to an applicant. The facts are stated in the opinion of the court.

<p>[1] Taxation—Improvements on Public Lands—Liability to Assessment.—Though land in this state may be exempt from taxation because it belongs to the city, to the state, or to the United States, improvements made thereon by an individual for Ms own use and benefit are subject to assessment and taxation.</p>

<p>[1] Divorce—Interlocutory Decree—Status of Parties.—-Under the provisions of section 132 of the Civil Code, the marital status of the parties is not affected by the interlocutory decree of divorce, further than that it establishes conclusively, unless set aside on appeal or in some other manner expressly provided by statute, the right to a divorce’ upon the expiration of the statutory period of one year, which must elapse between the entry of the interlocutory decree and the final judgment dissolving the marriage.</p> <p>[2] Id.—Settlement of Property Eights.—Husband and wife may agree in regard to their real property rights, and may change' the character of community property to separate property; and a court has power to do so in an action between them where such disposition is essential to a proper determination of their relative rights.</p> <p>[3] Id.—Finality of Interlocutory Decree.—The statutory interlocutory decree in divorce suits in this state is final, except as against such attack as is authorized by statute.</p> <p>[4] Id.—Effect of Interlocutory Decree on Eights of Parties.— An interlocutory decree of divorce so far as it determines the rights of the parties is a contract between them, temporary and provisional in its nature, but it settles the rights of the parties for the time being, and until some action, proceeding, or motion is begun to change the status and some order is made thereon which has that effect, or until they become reconciled and resume marital relations, in which event their mutual obligations are, for the time being at least, restored.</p> <p>[5] Id.—Interlocutory Decree—Death of Spouse—Termination of Marital Status.—The death of either of the spouses after the entry of an interlocutory decree of divorce terminates the marital relationship, the entry of a final decree thereafter having no effect upon the personal status of the surviving spouse.</p> <p>[6] Id.—Death of Husband — Eights of Wife — Succession.—Upon the death of the husband the rights of the wife under the laws of succession, if he died intestate, are fixed, unless those rights have theretofore been changed by contract with the husband.</p> <p>6. Effect on property or marital rights of death of one party before final decree of divorce, note, Ann. Cas. 1914B, 1094.</p> <p>[7] Id.—Interlocutory Decree—When Final.—Where no appeal is taken from an interlocutory decree of divorce and it is not set aside under section 473 of the Code of Civil Procedure, it becomes final and conclusive at the expiration of six months from its entry.</p> <p>[8] Id.—Motion to Set Aside Final Decree—Jurisdiction—Prohibition.'—A writ of prohibition will lie to restrain a superior court from entertaining a motion to set aside a final decree of divorce after the expiration of the time provided by section 473 of the Code of Civil Procedure.</p> <p>[9] Id.—Interlocutory Decree — Death of Spouse — Property Eights—Jurisdiction to Enter Final Decree.—While the death of one of the spouses after the entry of an interlocutory decree of divorce and before the entry of the final decree divests the court of jurisdiction to make a final decree dissolving the marriage status, the property rights of the parties fixed by an agreement between them and confirmed by the interlocutory decree remain in existence, and as to them the court retains jurisdiction to enter the final decree in the manner specified in the interlocutory decree. (Opinion of supreme court on denial of hearing.)</p>

<p>[1] Criminal Law — False Pretenses—Representations as to Amount of Money on Deposit—Reliance upon.—Where a purchaser obtains the property from the sellers upon the false representation that he has a given sum of money on deposit in a certain bank and his promise that by a certain day he will deposit such further sums as are necessary to meet the check which he then offers to them, and which they accept in payment and part with title to their property in reliance upon his representation as . to the amount of money he then has on deposit, he is guilty of the crime of obtaining property by false representations.</p> <p>[2] Id.—Preliminary Hearing—Rejection of Testimony—Province of Committing Magistrate.—On a preliminary hearing, the committing magistrate is clothed with authority to reject the testimony of the defendant and to believe that of the other witnesses, and he is not required to confine himself to the doctrine of reasonable doubt. It is sufficient if there exists sufficient cause to believe that the defendant is guilty.</p> <p>[3] Id.—Holding to Answer—Proof Required.—On a preliminary hearing of a defendant charged with obtaining property by false pretenses, it is not necessary, in order to hold the defendant to answer, that the committing magistrate shall be satisfied as to any fact beyond a reasonable doubt.</p> <p>1. Giving worthless cheek as constituting false pretense, notes, 8 Ann. Cas. 1069; 14 Ann. Cas. 510; Ann. Cas. 1916E, 736; 17 L. R. A. (N. S.) 244; 27 L. R. A. (N. S.) 1032; 52 L. R. A. (N. S.) 919.</p>

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

<p>[1] Contracts — Sale op Beans — Construction op Telegrams — Right op Inspection.—In this action to recover damages for the alleged breach of a contract in and by which it was claimed that defendant agreed to sell to plaintiff a specified quantity of re-cleaned pink beans at a given price, a fair construction of the telegrams passing between plaintiff and defendant showed that they met upon a definite proposition and agreement. The fact that to the telegram from plaintiff’s bank guaranteeing payment of draft with bill of lading attached, as requested by defendant, there was added the words, “subject permission inspection on arrival,” did not prevent a meeting of the minds of the parties, as the law would have added those words to the contract even if they had not been inserted in the telegram.</p> <p>[2] lb.—Transmission op Reply — Consummation op Contract.— After plaintiff’s bank had telegraphed its guarantee of payment, as requested by defendant, although such telegram had not been delivered, and after all the terms and conditions imposed by defendant had been accepted, defendant could not prevent the consummation of the contract by telegraphing plaintiff that his wire was received too late and that the entire matter was canceled.</p> <p>[3] Id.—Place op Payment—Construction op Telegrams.—The telegram from defendant to plaintiff instructing the latter to have his bank wire guarantee of payment of draft with bill of lading attached and the telegram from such bank in response to such demand worded, “We guarantee payment your draft, bill of lading attached,” showed that the understanding of the parties was that the goods were to be paid for at the point of destination, and not at the point of shipment, notwithstanding the telegram from defendant to plaintiff quoted the price of such goods “1?. O. B.” the point of sliipment.</p> <p>[4] Id.—Breach—Action pob Damages—P!rice—Evidence.—Where, in such action for damages for breach of contract to sell certain beans, the only evidence before the court as to the amount the plaintiff would have had to pay for equivalent beans was the price at which equivalent beans could have been bought at the point of shipment, the trial court was justified in accepting that price as the price at which plaintiff could have bought equivalent beans in the market nearest the place of delivery.</p> <p>1. Aceeptanee of offer with condition that law would imply, note, 1 A. L. R. 1508.</p> <p>2. Time when contract consisting of letters or telegrams showing offer and unconditional acceptance is complete, notes, 6 Ann. Cas. 378; 6 L. R A. (N. S.) 1016; L. R. A. 3.916A, 1302.</p>

<p>[1] Appeal—Request for Reporter’s Transcript—Time—Discretion of Trial Court.—Where a party dissatisfied with the judgment of the trial court gives notice of his intention to move for a new-trial, and such proceeding is terminated by the expiration of the three months’ period prescribed by section 660 of the Code of Civil Procedure, but notice of such termination is not given or waived, the trial court acts within its discretion in approving the reporter’s transcript of the record, notwithstanding request therefor was not made within ten days after the termination of the new trial proceedings, no undue delay having been caused.</p> <p>[2] Pleading—Suit to Determine Adverse Claim—Construction op Complaint.—A suit in the nature of an action to quiet title, the specific object of which is to cancel two purported assignments of a note and mortgage, and for the recovery of the money collected by the assignees under them, may be regarded as a suit under section 1050 of the Code of Civil Procedure to determine “an adverse claim . . . for money, or property upon an alleged obligation.”</p> <p>[3] Id.—Parties-—Suit by Distributees.—A final decree of distribution in the estate of the deceased payee named in such note and mortgage having been entered, the absolute right and title thereto was vested in the distributees, and they had the right to bring an action thereon.</p> <p>[4] Id.—Assignment op Note and Mortgage—Collateral Security —Evidence—Finding.—In this action to recover a note and mortgage, and certain sums of money alleged to have been collected thereon, the evidence was sufficient to sustain the finding of the trial court that the assignment from plaintiffs’ predecessor to certain of the defendants was given as collateral security for money advanced, and that they were taken by them as such and not by way of absolute ownership for an adequate consideration.</p> <p>[5] Promissory Note — Secured by Mortgage — Negotiability.—A promissory note, secured by a mortgage on land, both being executed as parts of the same transaction, and containing a default and option clause, is not negotiable.</p> <p>[6] Id.—Pledge—Apparent Ownership—Estoppel.—The general rule that one in possession of personal property can transfer to another, by pledge or sale, no greater interest in the property than he himself has, is subject to the exception that where the owner of the property clothes another with the apparent title to, or power of disposition over, it and an innocent third party has thereby been induced to deal with the apparent owner in reference thereto, the true owner is estopped from afterward asserting his title.</p> <p>[7] Id.—Bona Fide Purchaser—Negligence of Owner—Proximate Cause of Deceit.—A bono ¡fide purchaser of a non-negotiable chose in action, from one to whom the owner assigned apparent absolute ownership, may obtain a valid title as against such owner, although the assignee may not be the true owner; but if the purchaser from one who has not the title, and has no real authority to sell, relies for his protection on the negligence of the true owner, he must show that such negligence was the proximate cause of the deceit.</p> <p>[8] Id.—Equitable Defense—Pleading and Proof.—In an action to recover a note and mortgage and certain sums of money alleged to have been collected thereon, if a defendant intends to interpose the equitable grounds of estoppel, it is incumbent upon him to specially plead, and to prove, the facts constituting such defense.</p> <p>5. What is negotiable note, notes, 5 Ann. Cas. 152; Aim. Cas. - 1912D, 4; Ann. Cas. 19160, 503; 35 L. B. A. 536.</p> <p>[9] Findings—Form of.—Findings are not required to be in a particular form, so long as they properly dispose of the material matters at issue.</p>

<p>[1] Criminal Law—Burglary—Proof of Corpus Delicti—Admission of Confession.—In this prosecution for the crime of burglary, the testimony of the caretaker of the premises that the crime was committed between the hours of 8 o’clock P. M. of a certain day and shortly before 8 o’clock A. M. of the next day, at which latter time he discovered the facts and, following tracks from the building, located in a hedge of trees property similar to that which was stolen, the testimony of the sheriff that he stationed himself near the cached property found by the caretaker and arrested the defendant when he appeared there the following night with a sack under his coat, and the testimony of another witness that between the hours of 10 and 11 o’clock on the night the crime was committed the defendant, accompanied by another party, came to his house and left certain property, which property was identified as being similar to that which was stolen, and the inferences fairly dedueible therefrom, were sufficient to establish beyond a reasonable doubt that the offense was committed in the night-time, and, therefore, the court did not err in admitting evidence of the defendant’s confession.</p> <p>[2] Id.-—Burglary Defined — Instructions — Evidence.—In such prosecution the defendant was not prejudiced by an instruction, in the language of section 459 of the Penal Code, that '“Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary,” where no evidence other than that pertaining to the offense charged in the information was offered.</p>

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

<p>[1] Default—Notice of Motion to Set Aside—Day of Hearing-— Misstatement.—Where a notice of motion to set aside a default definitely designates the day of the month and year on which the motion will be made, a misstatement of the particular day of the week on which it will be made should be disregarded.</p> <p>[2] Id.—Postponement of Hearing—Duty of Opposite Party.—A notice that such a motion will be heard at a given hour of the day is sufficient to bring the opposite party into court at that time, and if there is any postponement of the hearing under rule of court, he is bound to ascertain that fact.</p>

<p>[1] State ■ Poison Act—Disposition of Fines—Law Applicable.— The state Poison Act, being a general statute, enacted by the legislature, and the offenses defined therein being state offenses— in other words, offenses which, in their commission or punishment, are not limited to the confines of any municipality—provision therein relating to the disposition of fines collected under its provisions and not the provision contained in a freeholders’ charter of a given municipality, is of superior effect and must control.</p> <p>[2] Id.—Sufficiency of Title.—An act entitled, “An act to regulate the sale of poisons in the state of California, and providing a penalty for the violation thereof,” satisfies the requirement of the constitution as to its title.</p> <p>[3] Id.—Action to Recover Percentage of Pines — Nature of — Statute of Limitations.—An action by the state against a city to recover seventy-five per cent of certain fines imposed upon defendants in the police courts of that city after conviction therein' of violations of the state Poison Act is one upon a liability created by statute, as to which the three-year statute of limitations is applicable.</p>

PROCEEDING- in Certiorari to review an order of the Superior Court of the City and County of San Francisco, George A. Sturtevant, Judge, granting a new trial and an order vacating the judgment. The facts are stated in the opinion of the court.

<p>[1] Negligence-—Prima Facie Presumption—Burden op Proop.—The presumption which in certain cas'es is available to a plaintiff as showing, prima facie, negligence on the part of a defendant, is one which in its practicable application results only in shifting the burden of proof, and in cases where the bare circumstances of an occurrence, as to the cause of which negligence is charged, are shown, if the defendant by uneontradieted evidence clearly shows that he has used the degree of care required of him in the circumstances, the plaintiff must fail of recovery.</p> <p>[2] Id.—Electric Corporations—Degree op Care Bequired.—Persons engaged in the business of supplying electric current, the agency involved being a dangerous one, are required to use great care to see that injury to others is not caused thereby.</p> <p>[3] Id.—Exercise op Proper Care—When Question op Law—Case at Bar—Evidence.—The question whether a company engaged in the business of supplying electric current discharged its obligation by properly constructing, installing, and inspecting its power line becomes a matter of law wherever the facts are clearly settled and the course which common prudence dictates can he readily discerned; and in this action for damages suffered by plaintiff because of the burning of certain hay, the fire having been caused by a “short” due to the cracking or puncturing of certain insulators on defendant's power line, the evidence was clear and satisfactory to the point that defendant had used that degree of care required of it in the circumstances.</p> <p>1. Presumption of negligence from -accident or injury, notes, 43 Am. Bep. 73; 6 Am. St. Bep. 792; 113 Am. St. Bep. 986.</p> <p>Applicability of res ipsa loquitur doctrine to accidents on private property due to escape of electricity from disordered electrical appliances, notes, 22 L. B. A. (N. S.) 1183; 32 L. B. A. (N. S.) 848.</p> <p>2‘. Duties and liabilities of electric corporations, note, 100 Am. St. Bep. 515.</p>

<p>[1] Contracts—Sale of Crop to be Grown.—A valid contract may be made for the sale of a crop to be grown in the future by the vendor where such vendor possesses the land upon which the crop is to be grown.</p> <p>[2] Id.-—Construction of—Passing of Title.—A provision that such contract shall pass title and constitute an absolute sale, with a risk on the grower for loss or damage until delivery, will be construed to mean only that title should be deemed to pass whenever the produce becomes a growing crop. It is competent for the parties to so contract.</p> <p>[3] Id.—Section 1141, Civil Code, Applied.—Assuming that the provision that such contract should pass title is void, it will not vitiate the main contractual obligation imposed upon the seller, which is to grow and deliver the crop, but in that ease section 1141 of the Civil Code, which declares when title is transferred by an executory agreement for the sale of personal property, is applicable.</p> <p>[4] Id.-—Liability „ of Buyer for Purchase Price — Mutuality of Contract.—Such a contract requiring the seller to grow and deliver a certain crop is not lacking in mutuality where its terms are sufficient to enable him, if he produces a crop and offers it to the buyer and the latter refuses to accept it, to enforce the term of the contract which provides for the payment of the purchase price agreed upon.</p> <p>[5] Id.—Action for Breach — Allegation of Damage — Value of Crop.—In an action by the purchaser against the seller for damages for breach by the latter of a contract to grow and deliver a certain crop of beans, an allegation in the complaint of the price at which the plaintiff “might have bought” beans in the market* at the time delivery from defendant was due is insufficient as an allegation of damage, as it is not an allegation of the valuation of the beans to the plaintiff or the market value thereof.</p> <p>[6] Id.'—Pleading — Damages — Sufficiency of Complaint.—In such an action, the plaintiff, after alleging the making of the contract, the terms thereof, and the breach committed by the defendant, is not required to plead the particulars as to why and how he has been damaged, but may allege generally that by reason of the failure and refusal of the defendant to grow and deliver the crop in question he had been damaged in a given sum.</p> <p>1. Sale or mortgage of future and growing crops, notes, 23 L. B. A. 449; L. B. A. 1917C, 8.</p> <p>4. Mutuality of obligation whpre one party’s obligation is not definite and certain, note, 1 L, B. A. (H. S.) 445.</p>

<p>APPLICATION for a Writ of Certiorari to review the action of the hoard of trustees of a high school district in changing the site of the high school.</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.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

<p>[1] Claim and Delivery — Detention of Automobile — Excessive Damages.—Where the judgment in an action in claim and delivery to recover possession of an automobile used for pleasure purposes and damages for its detention, awards plaintiff the car, together with a sum more than half the market value, thereof at the time it was taken for its depreciation during its detention, and a sum of over three times such market value for damages from being deprived of its use for about twenty months, such damages are excessive.</p> <p>[2] 3d.—Measure op Damages.—While the amount to be allowed the plaintiff in such an action is to be determined according to the market value of the use of the property, it is the net usable value less the expense of keeping up the property which may be recovered; and in determining the value of the use of the property, care should be taken not to permit the fixing of an amount out of all proportion to the value of the thing itself.</p> <p>[3] Id.—Detention Under Attachment by Sheripp—Third Party Claim.—Where property is wrongfully taken on attachment, the sheriff is absolved from liability for its detention prior to the filing of a third party claim, as provided in section 689 of the Code of Civil Procedure.</p>

<p>[1] Judgments—Breach of Lease—Action fob Damages—Cross-action for Breach—Previous Adjudication—Estoppel..—In an action for damages for breach of a covenant to pay rent, the defendant is estopped to set up as a defense and cross-action for damages that after the execution of the lease the plaintiff closed up one of the main entrances to the premises from the public street, thus greatly reducing the value of the use of the premises, and destroying the profits of defendant's leasehold, where the identical issue of fact was presented in a previous action between the parties in a justice’s court to recover one month’s rent and on a trial de novo in the superior court that issue was determined adversely to the defendant.</p> <p>[2] Id.—Bes Ad judicata.—A former judgment between the same parties is conclusive not only as to the subject matter in controversy in the action upon which it is based, but also in all other actions involving the same question.</p> <p>[3] Appeal—Failure of Appellant to Print Becord.—Under the amendment of 1919 to section 953c of the Code of Civil Procedure, the omission of an appellant to print in her brief or in a supplement thereto such portions of the record as she desires to call to the attention of the court does not permit of a dismissal of the appeal.</p>

<p>[1] Insolvency Act of 1880—Jurisdiction of Superior Court.—A superior court, in proceedings in insolvency under the Insolvency Act of 1880, exercises a special or limited jurisdiction; and everything required by that act to give said court the jurisdiction to hear and determine the same or to act in the proceedings must be made affirmatively to appear in the record. If any jurisdictional fact appears, upon the face of the record, to be wanting, the court is wholly without jurisdiction to act or to make any valid order or adjudication in the proceeding.</p> <p>[2] Id.—Action to Quiet Title—Sufficiency of Complaint.—In this action to quiet title, the amended complaint in intervention by the substituted assignee in the matter of an insolvent debtor, under the Insolvency Act of 1880, stated a cause of action, and the general demurrer thereto was properly overruled.</p> <p>[3] Id.—Appointment and Qualification of Assignee—Admission by Failure to Deny.—The amended complaint in -intervention having alleged the appointment and qualification of the assignee, and that allegation not having been denied, it was in legal effect admitted.</p> <p>[4] Id.-—Vacancy in Office—Conveyance of Property to Successor. Where, after the property of the insolvent debtor was conveyed to the assignee “and to his successor and successors in office,” the office of assignee became vacant and such vacancy was regularly supplied by the appointment of another to discharge the duties of the office, it was not necessary or requisite that there should be a specific assignment or conveyance of the property of the insolvent’s estate to such successor or successors.</p> <p>[5] Id.—Dismissal of Proceedings — Absence of Consent — Void Order.—An order dismissing insolvency proceedings which shows upon its face that it was made without the consent of all parties interested in or affected thereby is void.</p> <p>[6] Id.—Power to Set Aside Void Order.—An order dismissing insolvency proceedings without the consent of all parties interested in or affected thereby being void, a court making such an order may vacate and set aside the same.</p> <p>[7] Id.—Conveyance of Property to Assignee—Subsequent Deed by Insolvent—Validity of.—After the property of the insolvent debtor has been conveyed to the assignee and to his successor and successors in office, a deed of conveyance of the property by the insolvent debtor to a stranger to the insolvency proceedings is void, notwithstanding that prior to such attempted conveyance the court, acting in excess of its jurisdiction, ordered the insolvency proceedings dismissed.</p> <p>[8] Id.—Failure of Assignee to File Bond—Validity of Conveyance by.—Where the original assignee, in proceedings in insolvency under the Insolvency Act of 1880, dies and a successor is regularly appointed by the court but he fails to file a bond as assignee, as required by the act, he is without authority to exercise the duties of his office, and a conveyance by him of the property of the insolvent debtor which was conveyed to the original assignee, is void.</p> <p>[9] Id.—Delay in Prosecution of Proceedings—Abandonment of Property.—After the real property of the insolvent debtor is conveyed to the assignee, the fact that the administration of the estate of the insolvent remains in abeyance or is dormant because the proceedings in insolvency are not promptly prosecuted to a final determination does not of itself constitute an abandonment of such real property as a part of the assets of the insolvent estate to be subjected to the extinguishment of the liabilities of the insolvent.</p> <p>[10] Id.—Abandonment—Question of Fact—Intention—Burden of Proof.-—In such a case, the question of abandonment is one of fact to be determined by the jury or the court, if the issues of fact are tried by the court, and the burden is upon the person relying upon an abandonment of the property to show that there was an intention in the assignee to abandon the property.</p> <p>[11] Id.—Action by Intervener to Quiet Title—Statute of Limitations.-—In an action to quiet title by the grantee of an insolvent debtor, a complaint in intervention by the assignee of the estate of such insolvent debtor to quiet title to the property in question as against the parties to the original complaint and in favor of the intervener, in effect, is for the recovery of real property, and the time within which such complaint in intervention should be commenced is governed by section 318 of the Code of Civil Procedure.</p> <p>[12] Id.—Appointment of Assignee to Reconvey to Insolvent— Void Order.—An order, made after the death of the original assignee, appointing an assignee for the limited purpose of making a conveyance to the insolvent of the property conveyed to the original assignee is unauthorized by the Insolvency Act of 1880, and, therefore, void. (Opinion of supreme court on denial of hearing.)</p>

<p>[1] Broker’s Commissions—Contract or Employment by Corporation—Prima Facie Showing.—In an action against a corporation to recover a broker’s commission, a document purporting on its face to have been signed by the president and the secretary of the corporation, and having attached thereto and impressed thereon the seal of the corporation, is entitled to admission as prima facie having been authorized and executed by the corporation.</p> <p>[2] Id.—Statute or Frauds—Employment or Agent—Construction or Code Section.—Section 1624, subdivision 6, of the Civil Code does not require any formal contract but only that the fact of employment as agent or broker to sell real estate for compensation or a commission be expressed in writing, signed by the party to be charged, or by his agent.</p> <p>2. Bight of broker to recover commission under oral contract of employment where statute requires written contract, notes, 13 Ann. Cas. 977; Ann. Cas. 1915A, 1133; 44 L. B. A. 601; 9 L. B. A. (N, S.) 933.</p> <p>[3] Id.—Execution by Secretary of Corporation—Compliance With by Temporary Appointee.—Where a given instrument is required to be executed by the secretary of a corporation, execution thereof by a person appointed by the directors to act in the place of the regularly elected, qualified, or acting secretary is sufficient.</p> <p>[4] Id.—Procuring of Purchaser at Lesser Price—Eight to Compensation.—Where a broker procures a purchaser, not at the price specified in his contract of employment but at a lesser price, and the owner enters into an agreement of sale with such purchaser at such lesser price, under which agreement the latter enters into possession, the broker is entitled to the compensation agreed upon, according to his contract of employment.</p> <p>[5] Id.—Modification of Purchase Agreement—Eights of Broker not Affected.-—The subsequent modification of such contract of purchase by mutual consent of the vendor and the purchaser would not affect the right of the broker to the compensation agreed upon in his contract of employment, and to which he was entitled when the vendor and the purchaser enter into the original contract of purchase.</p> <p>[6] Id.—Appeal — Failure to Answer Eespondent’s Statements — Assumption.—Where, in reply to the appellant’s contention that the judgment of the trial court is erroneous, in so far as it found in favor of respondent the matters. alleged in his supplemental complaint, the respondent states that it was the understanding of the trial court and himself that the stipulation of the appellant was that judgment as to those matters should follow the judgment on the matters alleged in the complaint, and such statement is neither answered nor denied, it will be assumed that the appellant concedes the truth of such statement and that the judgment of the trial court was proper.</p> <p>4. Eight of broker to commission where less than stipulated price is accepted by owner, notes, Ann. Cas. 1913E, 784; Ann. Cas. 1914C, 138.</p>

<p>[1] Trade Name — Injunction — Sufficiency of Complaint — Findings—Evidence.—In this action for an injunction to restrain the defendants from using and from conducting business under the name under which plaintiff had established and was conducting a school devoted to the art of music, and for damages, the complaint was sufficient as against a general demurrer, and the evidence was sufficient to sustain the findings of the trial court with reference to the deceit and fraud practiced by the defendants, other than the defendant corporation, upon the plaintiff by assuming and using the name under which the latter had been doing business.</p> <p>[2] Id.—Prior Use of Name—Equity.—Where one has been first in the field doing business under a given name, courts of equity, in the interest of fair commercial dealing, will protect that person to the extent of compelling competitors to use reasonable precautions to prevent deceit and fraud upon the public and upon the business first in the field.</p> <p>1. Necessity of fraudulent intent to justify injunction against unfair competition, notes, 3 Ann. Gas. 32; 4 L. R. A. (N. S.) 960.</p> <p>[3] Pleading—Breach of Obligation by Defendants—Natural Result—Special Damage.—The refusal of a music company to carry out a contemplated scheme which had been agreed upon to buy a certain number of scholarships in plaintiff’s conservatory of music because of defendants’ adoption in use of the same name as that under which plaintiff had been and was doing business constituted a special damage, compensation for which could be recovered only where such damage was specially pleaded.</p> <p>[4] Id.—Special Damage — Failure to Plead — Evidence Inadmissible.—Where special damage is not specially pleaded, the admission of evidence as to such damage, over defendants’ objection, constitutes prejudicial error where it cannot be ascertained whether any such damages were allowed.</p>

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

<p>[1] Vendor and Vendee—Presence of Gas-pipes Dnder Land— Representation op Existing Pact.—A representation by the vendor to the vendee under a contract for the purchase of certain land “that gas-pipes were already upon or under the land” is of an existing fact, and not a promise of something to be done before the completion of the contract.</p> <p>[2] Id.—“Virgin Soil”'—Expression op Fact.—A representation by the vendor to the vendee that the land agreed to be sold was “virgin” soil was an expression of fact, and not one of opinion, where, on being asked what “virgin soil” meant, the vendor said that it “had been a sheep pasture and never cultivated.”</p> <p>[3] Id.-—Representations op Vendor—Reliance on by Vendee—• When not Expressions op Opinion—Estoppel.—Where the vendee relies on the representations of the vendor, and acts upon the faith thereof, without relying on. his own judgment or opinion, and this is known to the vendor, the latter cannot shelter himself under the pretense that Ms representations were mere expressions of opinion, when they are discovered to be false.</p> <p>3. Right to rely on representations by vendor as to quality or condition of soil, note, L. R. A. 1917C, 273-,</p> <p>[4] Id.—Sufficiency of Pleading and Proof.—In this action by the vendee against the vendors to rescind a contract for the purchase of land, and for damages, the plaintiff not only alleged, but proved, that she believed the representations made by the defendants were true and relied upon them and that she was damaged thereby.</p> <p>[5] Id.—-Defense not Pleaded—Rejection of Evidence Proper.-—In such action, the trial court properly sustained plaintiff’s objections to certain evidence offered by defendants, which evidence tended to prove that during a certain period of time the land which was not under cultivation was covered with barley stubble, and as to whether defendants had themselves farmed this particular piece of land, where there was no allegation setting up that defense.</p>

<p>APPEAL from an order of the Superior Court of Monterey County refusing to change the place of trial. J. A. Bardin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Attachment—Action on Foreign Judgment.—Section 537. of the Code .of Civil Procedure does not authorize an attachment to be issued in an action brought in this state upon the liability created by a judgment entered in favor of the plaintiff: and against the defendant in another state.</p>

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

<p>[1] Criminal Law—Assault With Deadly Weapon—Appeal—Affirmance of Judgment.—Where a defendant charged with the crime of assault with a deadly weapon with intent to commit murder is found guilty of assault with a deadly weapon and, on appeal, no argument is made in his behalf and no reason appears why the verdict should be disturbed, the judgment will be affirmed.</p>

<p>[1] Medical Practice Act—Sufficiency of Title.—The title of the State Medical Practice Act, approved June 2, 1913, (Stats. 1913, p. 722), is sufficiently comprehensive to include the matters contained in section 17 thereof.</p> <p>[2] Id.—Violation of Section 17—Sufficiency of Information.—An information which alleges that the defendant at a given time and place “did then and there willfully and unlawfully practice, attempt to practice and advertise and hold himself out as practicing a system or mode, of treating the sick and afflicted in the State of California, without having at the time of so doing a valid unrevoked certificate from the State Board of Medical Examiners of the State of California,” sufficiently charges a violation of section 17 of the State Medical Practice Act.</p> <p>[3] Id.—Conviction of Violation of Act—Sufficiency of Evidence. In this prosecution for a violation of section 17 of the State Medical Practice Act, in which the defendant was tried and convicted, the evidence was sufficient to justify the verdict.</p> <p>[4] Id.—Possession of Certificate—Burden of Proof.—In a prosecution for a violation of section 17 of the State Medical Practice Act, the burden is on the defendant to prove that at the time charged in the information he had a valid, unrevoked certificate from the'state board of medical examiners; and where such proof is not offered, it must be taken as true that he had not procured a certificate to practice medicine.</p> <p>[5] Id.—Reasonable Doubt — Proper Instruction.—An instruction that the term “reasonable doubt” as applied to the evidence in criminal cases means an actual and substantial doubt arising from the unsatisfactory nature ' of the evidence of the ease, and does not mean a doubt which may arise from some whim or vagary or from any groundless surmise or guess, is not erroneous.</p> <p>[6] Municipal Corporations — Sacramento Police Courts'—Jurisdiction as to Misdemeanors.—The jurisdiction of the police court of the city of Sacramento, as to misdemeanors committed under the general laws of the state, is concurrent with that of the justices’ courts of the county of Sacramento.</p>

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

<p>APPEAL from a judgment of the Superior Court of Sacramento County and from an order denying a new trial. Malcolm C. Glenn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Pleading — Action on Promissory Hote — Sufficiency of Answer.—In an action upon a promissory note, it is error to enter judgment against the defendants upon the pleadings where their , answer not only contains an express denial of the material allegation contained in the complaint as to nonpayment, but specifically alleges that the entire amount of principal and interest due upon the note has been fully paid.</p> <p>[2] Id.—Motion for Judgment — Affirmative Defenses Deemed True.—Upon a motion for judgment upon the pleadings, all matters affirmatively set up in the answer of the defendants must be deemed to be true.</p> <p>[3] Id.—Consideration—Agreement to Belease Defendants from Payment—Sufficiency of Defense.—In an action upon a promissory note, proof that a part of the consideration for defendants’ transfer and assignment of a certain lease was plaintiff’s agreement to release them from the payment of the note sued on would constitute a sufficient defense to plaintiff’s right to recover.</p>

<p>[1] Quieting Title — Decree Directing Payment op Mortgage — Finality op Judgment.—In an action to quiet title, a judgment decreeing that the plaintifE is the owner of the property, subject only to a mortgage lien of the defendants, and that upon the payment of such mortgage lien the plaintifE will be entitled to a decree quieting his title to the premises, is final and not interlocutory in its character.</p> <p>[2] Homestead—Residence upon Premises—Omission op Statement prom Declaration.—Where a declaration of homestead does not contain a statement that the person making it is residing on the premises claimed as a homestead, the homestead is void.</p> <p>[3] Id.—Omission prom Declaration — Extraneous Evidence Inadmissible.—The right of a claimant to select a homestead and impress upon it an exemption from forced sale must appear upon the face of the declaration, and its omission cannot be supplied by extraneous evidence.</p>

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

<p>[1] Criminal Law—Violation of Parole—Forfeiture of Credits— Powers of Prison Directors.—Where a prisoner, while on parole, commits a second crime, the state board of prison directors has the power to forfeit not only his credits for good conduct which have already been earned on his first sentence but also such credits as might thereafter be earned by him on said sentence.</p>

<p>[1] Negligence — Automobile Collision — Violation of Motor Vehicle Act—Efficient Cause of Accident.—In an action to recover compensation for damage to plaintiff’s automobile as the result of a collision between it and that of defendants, the act of the plaintiff in “cutting the corner” in turning into an intersecting street, in violation of the provisions of the Motor Vehicle Act, will not bar his recovery, unless it is made to appear that such negligence was a part of the efficient cause of the collision.</p> <p>1. Cutting of corners by automobile, as negligence, note, 6 A. L. K. 321.</p>

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

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

MOTIONS to dismiss an appeal from an order of the superior court of the City and County of San Francisco vacating a satisfaction of judgment and an appeal from a judgment by said court against the sureties on a stay bond. E. P. Shortall, Judge. The facts are stated in the opinion of the court.

<p>[1] Claim and Delivery—Delivery of Automobile to Plaintiff Following Judgment—Reversal on Appeal—Right to Restitution. In an action by a mortgagee against a repairman to recover possession of an automobile, the mere delivery of the automobile by the defendant to the plaintiff, for whom judgment was rendered, pending the determination of defendant’s appeal, no stay bond being filed, will not deprive the defendant of the right to have a judgment of restitution of the property upon a retrial of the cause, following the reversal by the appellate court of the first judgment entered.</p> <p>[2] Id.—Judgment for Plaintiff—Duty of Plaintiff to Deliver Possession on Demand.—The trial court, in such action, having adjudged that plaintiff was entitled to the possession of the automobile, the law imposed the duty upon the defendant, where execution was not stayed, to deliver the machine to plaintiff upon its demand, even though execution was not issued upon the judgment.</p> <p>[3] Id.—Priority of Lien of Repairman—Nonpayment of Mortgage Debt—Immaterial Issue.—In an action by a mortgagee against a repairman to recover possession of an automobile, the trial court having determined, in accordance with a decision by the supreme court on an appeal from a prior judgment in the case, that the lien of the repairman is superior to the lien of the mortgagee, its failure to find on the issue as to the nonpayment of the mortgage debt is immaterial.</p>

<p>[1] Workmen’s Compensation Act—Injury to Employee While on Vacation—Scope oe Employment.—Under the Workmen’s Compensation Act, an injury sustained by an employee when, upon his own time, free from any duties to his employer, he is engaged in the diversions of his vacation, is not an injury arising out of and in the course of his employment, notwithstanding at the time of the injury he is returning from a railway station, at which place among the things done, he mailed a letter in answer to one he received from his employer on a matter connected with the business of the latter.</p> <p>1. Injuries “arising out of and in the course of employment” within meaning of Workmen’s Compensation Act, notes, Ann. Cas. 1913C, 4; Ann. Cas. 1914B, 498; Ann. Cas. 1915A, 126; Ann. Cas. 1915C, 779; Ann. Cas. 1916A, 388; Ann. Cas. 1916B, 1293; Ann. Cas. 1916D, 584, 694; Ann. Cas. 1916E, 166; Ann. Gas. 1917D, 195, 199, 209; Ann. Cas. 1917E, 321, 332; Ann. Cas. 1918D, 683; Ann. Cas. 1918E, 813, 1168; L. B. A. 1916A, 40, 232; L. B. A. 1917D, 114; L. B. A. 1918F, 896.</p>

<p>[1] Negligence—Eight of Way at Street Intersection—Violation of Ordinance—Contributory Negligence.—Where the traffic ordinance of a city requires that “The drivers of all vehicles must look out for and give right of way to vehicles approaching simultaneously from their right at street intersection,” the driver of a vehicle who fails to yield the right of way to the driver- of another vehicle approaching simultaneously from his right at a street intersection, as the result of which a collision occurs and the former is injured, is guilty of negligence as a matter of law directly contributing to his injury which bars recovery, notwithstanding the driver of the other car is guilty of negligence per se in approaching the intersection at an excessive rate of speed.</p> <p>1. Violation of statute or ordinance giving one vehicle right of way as against another as affecting liability for injury, notes 12 A. L. R. 458; L. R. A. 1915D, 1021; L, R. A. 1917D, 693.</p>

<p>[1] Appeal—Action por Bent—Conflicting Evidence—Finding.— On an appeal from a judgment in favor of the plaintiff, in an action by the lessor against the trustees for the lessee, whom the lessor permitted to occupy the leased premises after the lessee became insolvent, such trustees agreeing to pay plaintiff the back rentals then due out of the first profits of the business, a finding of the trial court based upon conflicting evidence, to the effect that the defendants during their conduct of the business received sufficient moneys to have enabled them under the terms of their agreement with plaintiff to pay him the amount claimed to be due as rental for the premises, but that they used and disposed of such moneys in payment of other than necessary expenses of conducting and operating the business to an extent and in an amount sufficient to have paid plaintiff the amount due him, is conclusive on the appellate court.</p>

<p>[1] Quieting Title — Incorrect Description — Mutual Mistake — Equity.-—Where the parties to an action to quiet title, by mutual • mistake, incorrectly describe the property and the mistake in the description is contained in the judgment entered therein, in a subsequent action to quiet title and to correct the description a court of equity has the power to correct the mistake.</p>

<p>[1] Criminad Law—Bape—Fabrication oe Defense by Codefendants —Evidence.'—In a proseeution. of a defendant charged jointly with another with the crime of rape, evidence of a conversation between the two defendants while they were confined in jail before the trial, which was indicative of a purpose on the part of both defendants to fabricate a defense to the charge, is properly submitted to the jurors for their consideration.</p> <p>[2] Id.—Amendment of Information—Change of Name of Prosecutrix—Lack of Prejudice—Waiver of Objection.—A defendant convicted of the crime of rape may not, for the first time, on appeal, raise the objection that he was prejudiced by the action of the trial court in permitting the district attorney, after the jury was impaneled, to amend the information on its face by correcting the name of the prosecutrix, the cause having thereafter proceeded to trial without any objection or suggestion that a different offense had been charged by changing the name of the prosecutrix.</p>

<p>[1] Contracts—Purchase of Automobile—Action for Rescission-Time of Delivery—Parol Testimony.—In an action to enforce rescission of a contract for the purchase of an automobile which does not fix the date of delivery, it merely being stated in the contract that delivery is to be made “on or about out of first shipment of this model,” nothing therein being shown as to whether the shipment of automobiles had already been ordered or as to when such shipment would be made, it is proper for the court to receive testimony touching the representations and statements made by the vendors on the subject of delivery.</p> <p>[2] Id.—Rejection of Testimony—Incomplete Record on Appeal— Presumption in Favor of Ruling.—Where the record on appeal in such action shows that the trial court refused to permit the defendants to introduce testimony in support of the allegations of their cross-complaint concerning a prior transaction, on the ground that the condition of the evidence was such that they were not entitled to introduce any evidence whatever regarding such former transaction, but such record does not contain all the testimony heard at the trial, it must be presumed that the condition of the case was such as to support the ruling.</p>

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

<p>[1] Bail—Forfeiture by Becorder—Bight of County to Money— Payment to City — Action to Recover — Want of Defense.— Money collected as a forfeiture of bail for nonappearanee to answer a felony charge before a recorder of a city of the sixth class, sitting as a magistrate of the county, belongs to the county and not the city; and the fact that such magistrate has mistakenly paid out such money, even in good faith, to the city, does not constitute a defense to an action by the county to recover the same.</p>

<p>[1] Vendor and Vendee—Ejectment bt Vendor—Vendee in Possession—Equitable Defenses.—Vendees in possession, under a contract of purchase, not having performed their contract, and being in default with their payments, cannot maintain an equitable defense to an action of ejectment by the vendor.</p> <p>[2] Id.—Fraud of Vendor—Remedies of Vendee—Default—Ejectment.—Vendees in possession, under a contract of purchase which they were induced to enter into through the false and fraudulent representations of the vendor, must pay the purchase price, according to the contract, and receive such title as the vendor is able to give, if they choose to retain possession of the land, or they may rescind the contract, restore the possession to the vendor, and recover the purchase money paid, together with the other expenditures, after deducting therefrom the fair rental value of the premises. Refusing to adopt either course, they are liable to an action of ejectment by the vendor, in which they are not entitled to recover the purchase money paid.</p>

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

<p>[1] Forwarding Agent—Deposit op Goods With—Services Undertaken—Delation op Common Carrier.—If goods are deposited with a forwarding agent merely as the initiatory step toward starting them in itinere, the forwarding agent having undertaken to do no more than to safely keep the goods and forward them when the opportunity offers itself, and being in nowise interested in their carriage after delivery to the carrier, such agent cannot be regarded as a common carrier.</p> <p>[2] Id.'—When Liability op Common Carrier Assumed.—Where a forwarding agent undertakes to transport property from its location in one city to another city, for through rates less than the published rates of the railroad company for broken lots, which it is enabled to do by accumulating property for the given destination until a car can be filled, which is billed to its distributing agent at the point of destination, such forwarding agent assumes, while holding the property for accumulation, -the liability of a common carrier.</p> <p>[3] Id.—Delation to Owner—Carriage op Goods to Destination— Absence op Owner’s Consent.—Irrespective of whether its relation to1 **4the owner of the shipment be that of a common carrier or a mere forwarder, a forwarding company that, for hire, undertakes the carriage of goods of another in a car of its own selection, and delivery to the owner at the place of destination through its own distributing agent, cannot carry the goods on to the place of destination, as contracted for, against the owner’s consent.</p> <p>[4] Id.—Dight op Control Over Goods—Stoppage in Transit—Liability op Owner por Services Necessitated.—The owner does not renounce his right of all control over his goods by their delivery to a common carrier or to a forwarder, but the latter stands in the relation of one employed as a bailee of goods for the purpose of obeying instructions of the owner regarding them and, subject to the payment of a reasonable charge for the services necessitated by his order, the owner has the right either to stop the goods in transit or to stop their shipment before actual transportation has commenced.</p> <p>1. Character as common carriers of persons or corporations other than express companies that neither own nor operate transportation routes, but undertake to transport goods, note, 42 L. R. A. (N. S.) 902.</p> <p>4. Dight of stoppage in transitu, notes, 29 Am. Dec. 384; 19 Am. Rep. 87; 1 Am. St. Rep. 312.</p> <p>Dight of shipper to demand a redelivery of or to divert property at intermediate point, notes, 15 L. R. A. (N. S.) 756; L. R. A. 1918B, 79,</p> <p>[5] Id.-—Loading of Goods on Gab—Bight „to Eedeliveby—Expense of Unloading—Liability fob—Lien.—Where the forwarding company has loaded the owner’s goods on a car before receiving instructions to hold the shipment, but the goods, without any very great inconvenience, can be taken from the car at an expense not out. of proportion to their value, the owner is entitled to a redelivery of the goods at the point of shipment, the forwarding company being allowed to charge a reasonable sum to compensate it for its trouble in taking the goods from the carload, to secure which charge it has a lien on the goods.</p> <p>[6] Id.—In stbuctions to Hold Shipment — Befusal to Obey Unjustified—Authorization to Unload not Neoessaby.—Where a forwarding company, after it has loaded the goods on the car but before such car has started, receives definite instructions from the owner to hold the shipment, and such goods can be taken from the car at an expense not out of proportion to their value, the forwarding company is not justified in refusing to obey such instructions because, within a time specified by it, it does not receive a reply to its telegram wherein the owner, after being advised that the goods are already loaded and the cost of unloading, is asked if he authorizes unloading.</p>

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

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

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

<p>[1] Quieting Title—■ Action Against Administrator—• Scope of Judgment—Parties.—A judgment entered in favor of the plaintiff in an action to quiet title against the administrator of the estate of a deceased person is binding' upon her' estate, and is binding and conclusive as against the heirs of said deceased, even though they are not made parties defendants.</p> <p>[2] Id.—Disclaimer by Daughter ■—■ Absence of Interest — Want of Consideration.—The trial court, in such action, having determined that the property in question was the community property of the plaintiff and his deceased wife, and hence passed to him solely and absolutely upon her death, and that the daughter of such deceased wife never had any interest whatever in said property, the disclaimer by such daughter of any interest in the property, she having been made a party defendant, could furnish no consideration for an oral promise by plaintiff to deed her the premises upon demand.</p> <p>[3] Statute of Frauds—Oral Promise to Convey Property.—An oral promise to convey property upon demand is void under section 1624 of the Civil Code, in the absence of elements of fraudulent conduct taking the case outside of the requirements of said Statute.</p>

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

<p>[1] Banks and Banking—Forged Indorsement or Check—Payment by Bank—Liability to Depositor.—A bank has no right to charge a depositor’s account with the amount of a check upon the forged indorsement of the name of the payee,</p> <p>[2] Id.—-Loan on Forged Note and Mortgage—Liability to Repay Lender.—"Where a person falsely represents himself to be the agent of the owner of certain real property and that such owner desires a loan of a given amount to be secured by a mortgage upon such property, and, upon the production of a note and mortgage purporting to be executed by such owner, both of which documents are in fact forged instruments, a loan is made, the lender, by delivering to the purported agent a cheek payable to his order, which the latter in due course cashes, creates only a personal liability on the part of the latter to repay the same.</p> <p>[3] Id.—Payments by Forger to Depositor — Eight op Bank to Credit.—In an action against a bank to recover a sum which it charged to plaintiff’s account upon the payment by it of a check drawn by plaintiff on it upon a forged indorsement of the name of the payee, the bank is not entitled to have applied in liquidation of its liability to plaintiff the amount paid by the person who committed the forgery to plaintiff in settlement of a personal liability, where the funds used in making such payment were derived from a source other than the proceeds of forged check.</p> <p>3. Forger’s application of proceeds of check to an indebtedness to depositor, as affecting bank’s right to charge the same against depositor’s account, note, 25 L. B>. A. (N. S.) 996.</p>

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

<p>[1] Vendor and Vendee—Failure to Make Payments—Termination of Eights.—When, in a contract for the sale of land, time is made of the essence of the contract, an inexcusable failure on the part of the holder of the option to make a payment when the same should be paid according to the terms of the contract terminates his rights under the option and makes it impossible for him to enforce the same, in the absence of a waiver on the part of the other party, and no notice is required to terminate his rights under the contract.</p> <p>[2] Id.—Forfeiture by Vendee—Subsequent Conveyance by Vendor —Action to Quiet Title—Parties.—The default of the vendee in making the payments as called for by the contract of purchase having operated ipso facto as a forfeiture of the contract and her rights thereunder, in an action by the grantee under a subsequent conveyance to quiet the title to the property as against such do-faulting vendee, the grantor is neither a necessary nor a proper party to the action.</p> <p>[3] Id.'—Waiver of Strict Performance—Conflicting Evidence-Finding—Appeal.—The trial court, upon conflicting evidence, having found that the defendant was not excused from making the payments as the same became due, by any act or conduct on the part of her vendor, and that no act or conduct on his part justified her in failing to perform her part of the contract, the contention, on appeal, that there was a waiver of the strict performance of the terms of the contract by the vendor as to such payments cannot be sustained.</p>

<p>[1] Sales — Action for Conversion — Delivery of Bill of Sale — Effect of Continued Possession.—In an action to recover for the alleged conversion of an automobile claimed to have been improperly seized under attachment process by the defendant sheriff, the jury is properly instructed that if they find that the judgment debtor in the action in which the writ under which the sheriff acted was issued, prior to the time of delivering to plaintiff a bill of sale for the automobile in question, had the use of said automobile, and that thereafter, subsequent to the delivery of said bill of sale, he still continued to have the use and control of said automobile in the; same manner and to a like extent, there was no such delivery as the law contemplates as requisite to constitute a valid transfer.</p>

PROCEEDING on Habeas Corpus to secure the release of a lawyer imprisoned for failure to pay a license tax. The facts are stated in. the opinion of the court.

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

<p>[1] Execution—Sale of Real Property—Title of Purchaser — Necessity for Deed.—Under section 700 of the Code of Civil Procedure, a purchaser of real property under execution sale, from the time he receives his certificate of sale, is endowed with the full legal and equitable title of the judgment debtor, except that within the ensuing period of twelve months after sale an equity of redemption is possessed by the judgment debtor; and the issuance of a deed is not essential to the vesting of title in the purchaser.</p> <p>[2] Quieting Title — Erroneous Judgment-—-Res Judioata.—-Where the purchaser of real property under execution sale, after the period of redemption has expired but before a deed is issued to him, institutes an action to quiet title to the property as against the judgment debtor and the judgment against him, though erroneous, is allowed to become final, he is estopped from thereafter instituting a, new action to quiet title as against said judgment debtor, notwithstanding that subsequent to judgment in the first action a deed has been issued to him.</p>

<p>MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contracts — Advancement op Monet to Perfect Invention — Partial Breach — Rescission — Restoration.—Where defendant agreed to advance to plaintiff, an inventor, the moneys necessary to pay for time spent and materials used in the building of a new invention for automatically changing phonograph needles and for a patent thereon, in consideration of the transfer to defendant of a one-half interest in such patent, and there was a partial breach of such contrast by defendant, entitling plaintiff to rescind the same, he may only do so upon returning to defendant everything of value received from defendant under the contract.</p> <p>[2] Id.—Payments Made to Other Than Plaintiee—Acceptance oe° Beneeits—Obligation to Return.—The fact that a part of such money was not paid directly to plaintiff, but to the patent office for a patent and to vendors of materials for supplies to be used in completing the model, does not affect plaintiff’s obligation to return the same to defendant, where such money was paid under the contract for the benefit of plaintiff and to enable him to perfect his invention, and he accepted the benefits thereof.</p>

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

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

<p>[1] Attorney at Law-—Disbarment Proceedings—Conflicting Evidence-Appeal.—In a proceeding for the disbarment of an attorney at law, as in other eases, a court of review cannot determine the weight to be given conflicting evidence, but such determination is the peculiar and exclusive province of the tribunal wherein the hearing is had.</p> <p>[2] Id.—Misappropriation of Money—Proof Required.'—Section 1110 of the Penal Code, which specifies the character of proof required in order to convict one of false pretenses, is not applicable in a proceeding for the disbarment of an attorney at law based on the misappropriation of money intrusted to him.</p> <p>[3] lb.—Existence of Partnership—Absence of Defense.—The fact that a partnership existed between them would not constitute a defense to a proceeding brought against an attorney at law to have him disbarred for acts constituting moral turpitude in defrauding or misappropriating the money of his partner.</p> <p>[4] New Trial—Newly Discovered Evidence—Denial of Continuance.—A motion for a new trial on the grounds of newly discovered evidence and of error of the court refusing to granting a continuance that certain evidence might be secured is properly denied, where application for such continuance was not made during the trial of the ease and no facts are stated in the affidavit in support of such motion showing the discovery of any new evidence which was not known and accessible to defendant at the time of the trial.</p> <p>[5] Id.—Inefficiency of Counsel—Omission to Protect Defendant’s Rights.—In the absence of a duly authenticated record showing error, the appellate court cannot reverse an order denying a motion for a new trial on the ground that, due to the inefficiency of counsel, defendant omitted the doing of things which he thereafter felt he should have done in protecting his interest at the trial.</p> <p>[6] Appeal — Judgment — Reasons for Decision — Record.—Reasons stated by a judge in deciding a case are no part of the judgment and have no place in the record, and, therefore, present nothing to be considered in reviewing a judgment on appeal therefrom.</p>

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

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

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

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

<p>APPLICATION for a Writ of Habeas Corpus to secure •the release of a person held to answer to the superior court upon a charge of grand larceny.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Automobile Collision—Cause of Action—Simultaneous Negligence of Plaintiffs and Defendants—Evidence—. Finding—Appeal.—In an action for damages for personal injuries received in a collision between plaintiffs’ and defendant’s automobiles while crossing a bridge, if the evidence is such that the jury cannot determine which of the two was to blame for the collision, in other words, whether it was the defendant’s negligence or that of the plaintiffs or the contemporaneous negligence of both that was the proximate cause of the injury, the appellate court cannot hold, as a matter of law, that the finding of the jury that both the plaintiffs and the defendant were equally at fault, and that the accident would not have occurred but for the simultaneous negligence of both, is not supported by the evidence.</p> <p>[2] Id.—Position of Machines After Collision—Propriety of Questions and Statement by Trial Judge.—In such action, a witness for plaintiffs having testified that he saw evidence of a collision a specified distance from the end of the bridge, the distance stated being at variance with that stated by other witnesses, the court did not commit error in asking him whether he measured the distance or was just guessing at it; neither did the court, in ruling on an objection interposed to a question propounded to such witness as whether he saw any evidence of collision, commit error prejudicial to plaintiffs in suggesting that the machine of plaintiffs had been moved from the position in which it was left as the result of the collision, where, after counsel for plaintiffs stated there was’ no testimony that the machine had been moved, the court remarked that the question objected to had no application or reference to plaintiffs’ machine.</p> <p>[8] Id.—Condition of Witnesses as to Sobriety—Denial of Cross-examination—Absence of Prejudice.—In such action, while the ruling of the court denying plaintiffs the right to cross-examine one of defendant’s witnesses as to whether or not the latter was drunk on the day of the accident and for months previous thereto, such witness having testified that a certain witness of plaintiffs was drunk on the day of the accident, was erroneous, it was not prejudicial to the rights of plaintiffs where the testimony of their witness was merely corroborative of the testimony given by them and a different result would not have followed from the allowance of such cross-examination.</p> <p>[4] In.—Eight of Becovery— Damages — Instructions.—In such action, instructions that if, when the collision occurred, both parties were driving on the center line of the bridge, then both were equally guilty of negligence contemporaneously occurring and that in that ease neither was entitled to a verdict for damages as against the other, that if neither party was negligent, or if both parties were equally guilty of negligence, simultaneously committed, neither was entitled to recover against the other, and that the jury were not legally authorized to award damages to either party if the liability of neither was established by the evidence merely because the court explained to them the rule as to the measure of damages in such a ease, correctly state the law.</p> <p>[5] Id.—Form of Verdict—Sufficiency of.—In such action, the jury having found in effect against the plaintiffs on their complaint and against the defendant on his cross-complaint, its verdict “that neither party are entitled to damages,” although a little out of shape in its grammatical construction, is in language sufficiently clear and explicit to put beyond doubt the proposition that the result reached by the jury was that neither of the parties to the action was entitled to recover against the other.</p>

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

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

<p>[1] Claim and Delivery—Pleadings—Findings—-Unwarranted Affirmative Belief to Defendant.—Where the answer filed by the defendant in an action to recover possession of certain personal property does not claim a return of the property, and there is nothing in the pleadings or findings to indicate that the property was delivered to the plaintifE, or was not all the time held in possession of the defendant, a judgment that defendant recover from plaintifE the said personal property, or, if delivery thereof cannot be had, then the defendant have judgment in a stated sum (found to be the value of the property, less a certain allowed credit), and for costs, cannot be sustained, in so far as it grants to the defendant affirmative relief, except as a judgment for costs.</p>

<p>[1] Appeal—Former Judgment—Subsequent Departure prom Doctrine Announced—Law of Case.—A final judgment of the district court of appeal in a given case (a hearing in the supreme court being denied) constitutes the law of the case on a second appeal, notwithstanding that subsequent to the time such judgment became final, but prior to the second appeal, the doctrine of the decision of the district court of appeal on the first appeal is departed from by the supreme court in a different case.</p> <p>¿2] Mechanics’ Liens — Work on Building — Time of Cessation —* Painting of Window-sills Properly Overlooked.—The painting of window-sills under the direction of the architect to protect them from cracking in the sun, if trivial in amount and not done on the contract, nor by the contractor, is properly overlooked by the court in determining when work on the building ceased.</p> <p>[3] Id.—Equitable Garnishment by Giving of Stop Notice—Money Affected.—The equitable garnishment which is occasioned by the giving of a stop notice under section 1184 of the Code of Civil Procedure attaches only to such sum as might be payable to the contractor after the extinguishment of liens.</p> <p>[4] Appeal—Reversal—Recovery Costs—Service of Cost Bill on Co appellant Unnecessary.—Where the remittitur provides “the appellants to recover costs on this appeal,” it does not allow one appellant to recover costs from another appellant, but only from the respondent, such coappellants not being adverse parties, notwithstanding they took separate appeals and the judgment of the appellate court results in the reduction of judgment as to one and an increased judgment against the other; and in such case it is not necessary for the former to serve a copy of its cost bill on appeal on the latter.</p>

<p>[1] Trials—TTnimpeached Evidence—Disregard by Court.—A court may not arbitrarily disregard the unimpeached evidence of a single witness.</p> <p>[2] Gifts—Redelivery of Property to Donor—Effect of.—Where, in the delivery of property from one person to another, all the elements of a gift inter vivos are present, the act of the donee in immediately giving absolute possession of the property to the donor does not militate against the gift.</p> <p>[3] Id.—Essentials of Valid Gift.—The three requisites of a valid gift are, first, an intention on the part of the donor to make it; second, a delivery to the donee of the thing given; and, third, acceptance by the donee of the thing given.</p> <p>[4] Id.—Reversion to Donor upon Death of Donee—Valid Condition.—A gift, coupled with the condition that upon the death of the donee the property shall revert to the donor, is valid.</p> <p>2. Retention or resumption of possession by donor as affecting gift, note, 32 L. R. A. (N. S.) 219.</p> <p>Transfer of key to receptacle as delivery of possession sustaining gift of contents, note, 40 L. R. A. (N. S.) 901.'</p>

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

<p>[1] Corporations ■—• Stockholder’s Liability —• Action on Original Obligation—Renewal Notes'—Effect of.—An action against the stockholders of a corporation to recover on their stockholder’s liability is properly brought upon the original obligation of the corporation, notwithstanding the promissory notes evidencing such liability have been canceled and renewal notes issued, there having been no express agreement that the renewal notes should constitute payment and such notes not having been in fact paid.</p> <p>[2] Id.—Indorsement of Notes After Maturity — Liability of Stockholders.—The rights and liabilities of a stockholder of a corporation are not affected by the fact that certain promissory notes executed to the corporation are not indorsed by it over to and sold to another until after their maturity.</p> <p>[3] Id.—Nature of Stockholder’s Liability—Effect of Guaranty. The liability of the stockholders of a corporation is direct and primary, arising coincidentally with the debt of the corporation, and is not changed or affected by the existence of a guaranty.</p> <p>3. Nature of stockholder’s liability for debts of corporation, note, 99 Am. Dec. 432.</p>

<p>[1] Common Gabblers— Negligent Transportation of Bananas — Failure to Keep at Proper Temperature—Evidence—-Inferences—Finding.—In this action to recover damages alleged to have been sustained by plaintiff on account of defendants’ negligence in transporting a car of bananas, the testimony of the messenger who was in charge of the ear that the same was kept at a proper temperature while en route, coupled with the testimony of others which tended to show that the damage resulted from leaving the car door open during the night after its arrival at the point of destination, was sufficient to justify the finding of the trial court to the effect that the deterioration of the fruit, which was delivered to the defendants at the point of shipment in good condition, was due to the failure of the defendants to keep the same under proper refrigeration, and such evidence was not overcome by the inferences sought to be drawn from a report as to the varying outside temperatures along the line of travel.</p>

<p>[1] Landlord and Tenant—Use op Premises for Unlawful Purpose—Damages—Knowledge of Landlord—Estoppel.—A lessor is estopped to claim damages from the lessee due to the fact that the latter has conducted a gambling house in a residence leased by the former to the latter, thereby injuring the reputation of the house, where the lease of said premises was with the intention of both parties that the same should be so used.</p> <p>1. Effect of landlord’s knowledge that tenant intends to use premises for purposes of gaming, note, 19 L. B. A. (N. S.) 662.</p>

<p>[1] Default—Motion to Set Aside—Failure to Accompany Wjth Copy of Answer.—Where the notice of motion to vacate and set aside the default of a defendant and the judgment entered thereon against said defendant is not accompanied by the answer, or other pleading proposed to be filed therein, as provided in section 473 of the Code of Civil Procedure, and no answer, or other pleading, is served upon the plaintiff or offered to the clerk for filing, the motion should be denied.</p> <p>[2] Id.—Appeal—Bill op Exceptions—Pleadings—Presumption.— Where the bill of exceptions on appeal from an order granting a motion to set aside the default of a defendant and the judgment entered thereon does not show that an answer was served upon the plaintiff or offered to the clerk for filing, and the certificate of the judge states that it “contains the statement of all papers and evidence used in the above-entitled matter,” and the stipulation of the attorneys is “that the foregoing bill of exceptions contains a true and correct statement of all the evidence introduced and of all of the proceedings had upon the hearing of the above-entitled motion,” it cannot be presumed, in favor of the order of the trial court, that an answer was served or filed.</p>

<p>[1] Negligence—Action for Damages—Personal Injuries—VERmcT not Excessive.—In this action for damages for personal injuries sustained by plaintiff when an automobile bus owned and operated by the defendant, and in which plaintiff was riding as a passenger, overturned, in view of the injuries plaintiff received and the damage done to his clothes, the.nervous shock suffered by him, the time he spent in the hospital, then in bed at his home, and then during which he was unable to resume his work and the hospital and doctor’s bills incurred, tbe amount of damages allowed was not so grossly excessive as to call for the interference of an appellate tribunal.</p> <p>[2] Id.—Excessive Damages — Power of Appellate Court.—The power of an appellate court over excessive damages exists only when the facts are such that the excess appears as a matter of law, or is such as to suggest at first blush, passion, prejudice, or corruption on the part of the jury.</p> <p>[3] Id.—Passion or Prejudice—Disregard of Instructions—Excessive Verdict — Remedy — Procedure.—In an action for damages for personal injuries, if the defendant considers the verdict the result of passion or prejudice, or a disregard of the instructions of the court, it cannot raise the point for the first time on appeal, but must bring this matter before the attention of the trial court on a motion for a new trial.</p> <p>[4] Id.—Pain and Suffering — Admissibility of Statements by Plaintiff.—In an action for damages for personal injuries sustained by plaintiff when an automobile bus owned and operated by the defendant, in which plaintiff was riding as a passenger, overturned, testimony by the wife and the mother of plaintiff as to statements made by him with reference to the pain and suffering which he was undergoing during the period in which he was recovering is properly admitted.</p> <p>1. Excessiveness of verdicts in actions for personal injuries other than death, notes, 16 Ann. Cas. 8; Ann. Cas. 1913A, 1361; Ann. Cas. 1915D, 488; Ann. Cas. 1916C, 916; L. E. A. 1915F, 30.</p>

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

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

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

<p>[1] Replevin — Pleading—Possession—Findings—Issues—Appeal— Presumption.—On an appeal on the judgment-roll alone from a judgment in favor of the plaintiff in an action to replevin an auto-truck, although the complaint failed to touch upon the subject of possession of the property by defendant at the commencement of the action, or the implication of such possession was very defectively conveyed, but such defect was not raised by demurrer, it will be presumed in favor of the judgment and findings of the trial court showing defendant’s possession of the truck at the commencement of the action, that such fact was, at the trial, treated as a fact within the issues and properly to be determined by the court.</p>

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

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

<p>[1] Corporations — Fixing op Salaries — Noncompliance -With Bylaws—Validity op Agreement Between Owners.—Where two persons who own and control a corporation to all substantial effect agree upon the salaries to he paid to each of them, such agreement is valid and binding, notwithstanding the by-laws of the corporation declare that the salaries of the officers and employees should be fixed by the board of directors.</p> <p>[2] Appeal—Excessive Judgment—Necessity por Reversal.—In an action to recover for amounts of salary alleged to he unpaid, where the amount for which the court gave judgment is in excess of the amount shown by the evidence to be due to the plaintiff, which condition arose through an error in the findings of fact, the judgment must be reversed by the appellate court, as it cannot direct an amendment of findings of fact.</p>

<p>[1] Promissory Note—Action on—Defense—Agreement to Repurchase Interest in Invention—Findings—Sufficiency of Evidence.—In this action to recover upon a promissory note executed by defendant to plaintiff and his copartner as part consideration for the transfer to defendant by them of a one-third interest in an invention for the improvement of cameras, the evidence was sufficient to justify the findings of the trial court to the effect that plaintiff and his copartner agreed to repurchase the defendant’s interest in the invention on or about a specified time, if the latter desired to sell, and that defendant, at the time specified, did elect to sell, and thereafter did sell, his interest in the invention to plaintiff and his copartner, and the latter paid to defendant a given sum of money on account of such repurchase, which amount the court properly added to the amount of the note sued on in determining the balance due defendant.</p> <p>[2] Patents—How Assigned—Construction of United States Statute.—Section 4898 of the Revised Statutes of the United States, providing that an interest in a patent cannot be assigned except by an instrument in writing, has reference solely to patents or an interest therein, and not to an invention which has not been and may never be patented.</p>

<p>[1] Negligence — Doctrine oe Bespondeat Superior — When Applicable.—The doctrine of respondeat superior cannot be invoked to hold the master liable for injury caused by the negligent act of a servant unless at the time of the negligent act causing the injury the servant was engaged in performing a service for the master or incidental thereto.</p> <p>[2] Id.—Automobile Accident—Scope oe Employment—Evidence.— In this action against an oil company and one of its employees to recover damages for personal injuries sustained by plaintiff through having been struck by an automobile owned by the company and driven by such employee, the evidence showed that the accident happened after the duties of the employee to the employer had ended for the day and at a time when such employee was engaged in a mission the purpose of which was his own pleasure and which could have no possible connection with the duties which he owed to his employer.</p> <p>2. Besponsibility of owner when ear being used by servant or another for his own business or pleasure, notes, 10 Ann. Cas. 732; 12 Ann. Cas. 972; Ann. Cas. 1914G, 1087;-Aim. Cas. 1915D, 476; Ann. Cas. 1916A, 659; Ann. Cas. 1917D, 1001, 1008; Ann. Cas. 1918D, 241, 1134; 1 L. B. A. (N. S.) 235; 9 L. B. A. (N. S.) 1033; 14 L. B. A. (N. S.) 216; 21 L. B. A. (N. S.) 93; 26 L. B. A. (N. S.) 382; 33 L. B. A. (N. S.) 79; 37 L. B. A. (N. S.) 834; 47 L. B. A. (N. S.) 662; L. B. A. 1916A, 957.</p> <p>Liability of owner where car is being used by borrower or hirer, note, 33 L. B. A. (N. S.) 81. .</p> <p>[8] Id.—Consent of Employer to Use of Automobile — Liability for Damages.—The fact that the employee was using the automobile of his employer for his own purposes with the employer’s consent would not render the latter liable for injuries Resulting from the negligence of such employee.</p> <p>[4] Id.—Extent of Injury — Cause ■— Evidence — Findings.—In this action against an oil company and one of its employees to recover damages for personal injuries sustained by plaintiff through having been struck by an automobile owned by the company and driven by such employee, the evidence was sufficient to support the findings of the trial court as to the extent of plaintiff’s injury and that such injury was due to the negligence of the employee.</p> <p>[5] Id.—Settlement Agreement With Plaintiff—Evidence—Finding.—Notwithstanding that in a criminal proceeding growing out of the negligent act of such employee the judge had told him that he would have to make some reparation for the injury sustained by plaintiff and left the matter in the hands of the probation officer, who concluded that such employee could pay a given sum each month, which sum was paid for four months, the trial court, in such action, properly found that the parties had not entered into an agreement whereby such employee agreed to pay, and plaintiff agreed to accept, said sum per month for a given number of months in full settlement of his damages.</p>

<p>[1] Judgments—Order Dismissing Action—Right of Appeal.—An order dismissing an action under section 581a of the Code of Civil Procedure is, when entered upon the minutes of the court, a final judgment from which an appeal may be taken.</p> <p>[2] Id.—Relief from—Remedies—Time.—The time within which relief may be sought by appeal or motion under section 473 of the Code of Civil Procedure, is limited by statute, and .the time within which certiorari or a suit in equity may be instituted is determined by the equities of the ease.</p> <p>[3] Id.—Motion to Vacate—Time.—There is no statutory authority for a motion to set aside a judgment after the period fixed by section 473 of the Code of Civil Procedure has expired, if such • judgment is not void on its face because of want of jurisdiction of the subject matter.</p> <p>[4] Id.—Order Dismissing Action—Record—Presumptions.—In the absence of the record of the proceedings had on the hearing of the motion to dismiss, on an appeal from an order denying a motion to set aside an order dismissing an action on the ground that the summons was not served on the defendant within three years and it had not appeared in the action, the presumption is that the motion to dismiss was made by an attorney of record and that it was supported by affidavits or other evidence.</p> <p>[5] Id.—Appearance by Defendant—Determination by Trial Court —How Reviewed.—A determination by the trial court, on a motion to dismiss an action, that a notice of substitution of attorneys for defendant, which was served. on plaintiff, did not constitute an appearance by defendant—failure of service of summons being admitted—may be reviewed on appeal from an order granting the motion.</p>

<p>[1] Contracts—Action to Becover Architect’s Fees—Evidence— Finding.—In this action to recover fees alleged to be due fiom the defendant on a contract for professional services which were rendered by the plaintiff as an architect, notwithstanding the testimony given by the defendant and others tending to prove that the contract of employment was conditioned upon plaintiff’s procuring a tenant for the contemplated building, acceptable to the defendant, there was sufficient evidence to support the court’s finding of the existence of a contract free from such condition.</p> <p>[2] Id.—Nature of Contract—-Insufficient Pleading—Unnecessary Finding.—In such an action, where affirmative matters stated in the answer are not sufficient to present the defense that there was a conditional contract, such matters being pleaded only as a part of the defense that there was no contract of employment whatever, a specific finding as to whether the contract was a conditional one is not necessary.</p>

<p>APPLICATION for a Writ of Prohibition to restrain a justice of the peace from enforcing a judgment of contempt.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Street Law—Improvement Act op 1911—Issuance op Bonds—. Suppicienct op Recital in Resolution op Intention.—A resolution of intention to order certain street work, under the Improvement Act of 1911 and Improvement Bond Act of 1915, is not vitiated by a recital therein “that a serial bond to represent unpaid assessment” will be issued, where such resolution states further that the bonds will be issued “in the manner provided by the Improvement Bond Act of 1915,” a general reference in the proceedings prior to the warrant adopting the provisions of that act being sufficient to confer jurisdiction.</p> <p>[2] Id.—Amended Resolution op Award—Right to Adopt—Correction op Error.-—In the improvement of streets under the provisions of the Improvement Act of 1911 and Improvement Bond Act of 1915, the city council has jurisdiction to pass an amended resolution of award in order to correct an error in its original resolution, provided at the time of the adoption of such amended resolution no rights of third persons "have vested.</p> <p>[3] Id.—Amount op Bid—Recitals in Award and Notice—Substantial Compliance With Law.-—Where the resolution of award recites that the contract for doing the work was awarded to a given company “at the prices named in its bid,” and the notice of award as posted and published declares that the board of trustees “awarded the contract for said work to the lowest responsible bidder ... at the prices named for said work in said proposal or bid on file,” this constitutes a substantial compliance with the provisions of the Improvement Act of 1911.</p>

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

<p>[1] Partnership—Suit for Accounting—Interlocutory Judgment— Bight of Appeal.—A judgment in a suit for partnership accounting, which provides that the assets of the partnership be sold by a commissioner and, upon the return of the commissioner and the equal division of the assets between the parties, a final judgment be entered, is, in legal effect, a final judgment from which an appeal will lie.</p> <p>[2] Id.—Nature of Relationship—Evidence—Finding.—In such an action, if there is evidence to support the finding of the trial court that the partnership was not one of profits only, such finding is controlling on appeal.</p> <p>[3] Id.-—Equitable Jurisdiction of Court.—A suit for partnership accounting is one addressed to the equitable jurisdiction of the court.</p> <p>[4] Id.—Partnership Name—When an Asset.—In a suit fox partnership accounting, a name which had been used by one of the partners prior to the formation of the partnership, but which was worthless when the partnership was formed, is properly considered as a partnership asset where, after the formation of the partnership, it was made valuable by the joint efforts of the partners.</p> <p>[5] Id.-—Secret Recordation of Name by Partner—Effect of:—The act of the partner who had used such name prior to the formation of the partnership, after the formation of the partnership, but without the knowledge of his copartner, in causing such name to be registered in the office of the Secretary of State in his own name would not cause any diminution of the rights of his co-partner.</p>

<p>[1] Husband and Wife—Title to Property—How Acquired—Conflicting Evidence—Finding—Appeal.—In an action in which both the husband and the wife claim title to certain real property, notwithstanding a conflict in the evidence, a finding of the trial court that the wife acquired by assignment from her sister, as a gift, the latter’s equity in a contract for the purchase of the property, is conclusive on the appellate court.</p> <p>[2] Id.—Earnings of Wife—Mature of—When Separate Property. Although the earnings of the wife during marriage are, as a rule, community property, the husband may relinquish to the wife the right to such earnings without any consideration other than their mutual consent, and they then become her separate property.</p> <p>[3] Id.—Agreement as to Separate Character of Wife’s Earnings —How Proved.—An agreement between a husband and wife that the earnings of the latter shall be her separate property may be proved by evidence as to the acts and conduct of the husband with relation to the earnings of the wife or business conducted by her as community property indicating that he did not regard them as community property.</p> <p>g„ What is community property, noto, 12G Am. St. Bep. 99,</p> <p>[4] Id.—Relinquishment of Business to Wife—Separate Property. In this action involving, among other things, the right of a wife to a millinery business conducted by her and to the earnings derived therefrom, the evidence as to the manner in which the business had been conducted showed that it had been .relinquished by the husband to the wife and had become her separate property.</p> <p>[5] Id.—Improvement of Wife’s Property—Expenditures by Husband.—The expenditures by a husband of either his separate funds or the common funds of himself and wife in improving his wife’s separate property does not operate to change the title. As between them, in the absence of any specific agreement to the contrary, the title to the improvements follows the land.</p>

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

<p>[1] Libel—Words Actionable Per Se—Damage—Pleading.—Words written or printed may be libelous and actionable per se, that is, actionable without any allegations of special damage, if they tend to expose the plaintiff to public hatred, contempt, ridicule, aversion, or disgrace, and to induce an evil opinion of him in the minds of right-thinking persons and deprive him of their friendly intercourse or society, even though the same words, if spoken, would not have been actionable.</p> <p>[2] Id.—When Publication Libelous Per Se.—If, on its face, the publication is of a character that usually, ordinarily, and naturally detracts from the reputation and standing of the plaintiff, and tends proximately and naturally to deprive him of the confidence and esteem of others, thus causing him to be shunned or avoided, it is libelous per se, and special damages need not be alleged or proved. From such a publication the law presumes general damages as a natural and probable consequence.</p> <p>[3] Id.—Imputation of Dishonest Practices.—A printed and published article which imputes to plaintiff grave and reprehensible misconduct—dishonest practices which, if established, would justly bring Tiim into general contempt and disgrace—-is libelous and actionable per se.</p> <p>[4] Id.—Construction of Publication—Consideration as Whole.— The construction which it behooves a court of justice to put on a publication which is alleged to be libelous is to be derived as well from the expressions used as from the whole scope and apparent object of the writer.</p> <p>[5] Id.—"Violation of Confidence—• Treachery to Associates — Effect of Writing.—A writing that charges another with violating a confidence that has been reposed in him or with treachery to his associates is actionable per se.</p>

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

<p>[1] bailments — Enlargement of Bailee’s Liability—Agreement and Intention of Parties.—A contract enlarging a bailee’s liability must be specific and in clear and unambiguous language; and, while it will not be extended beyond the obvious scope of its terms, it must be given effect as showing the intention of the parties.</p> <p>[2] Id.—Loan of Gas Cylinders — Destruction by Fire — Liability for Damage—Agreement of Bailee.—Where a contract, in the form of a letter from the seller of acetylene gas to the purchaser and the acceptance by the latter, contains a provision that the purchaser is “responsible for any damages” to any of the cylinders containing such gas while in the purchaser’s possession, and such cylinders are almost totally destroyed by fire while in the latter’s possession, he is liable in damages therefor, notwithstanding there was no negligence on his part.'</p> <p>[3] Id.—Responsibility eor Damage—Consideration.—Where a seller of acetylene gas loans certain cylinders to a purchaser for a specified time without rent and the latter agrees to be responsible for any damage to the cylinders while they are in his possession, the bailment itself is a sufficient consideration for the obligation assumed by the purchaser.</p>

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

<p>[1] Habeas Corpus—Error in Exercise of Jurisdiction.—On habeas corpus error in the exercise of jurisdiction cannot be considered.</p> <p>[2] Id.—Commitment of Administrator—Refusal to Bender Final Account—Jurisdiction—Presumption.—In the absence of a showing on habeas corpus of any facts concerning the contents of the answer filed by the administrator of an estate to the original petition in a proceeding instituted under section 1639 of the Code of Civil Procedure to compel him to render a final account of his intestate’s administration of a given estate, it must be presumed that the court’s order that he be arrested on the ground that he had refused to obey the citation, though made in his absence and without notice, after the filing of such answer, was in the lawful and proper exercise of the judicial function.</p> <p>[3] Estates of Deceased Persons — Death of Administratrix — Final Account — Failure to File Claim—Jurisdiction.—The jurisdiction of the court to compel an administrator to render a final account of his intestate’s administration of a given estate is not lost by the failure of the successor of such intestate in the administration of such estate to present a claim against the estate of the deceased administratrix.</p> <p>[4] Id.—Revocation of Letters Prior to Death—Final Account by Personal Representative—Jurisdiction.—The fact that the letters of administration of such deceased administratrix were revoked before her death did not deprive the court of jurisdiction, in a proceeding under section 1639 of the Code of Civil Procedure, to require her personal representative to render the final account which she had not rendered.</p>

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

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

<p>[1] Account Stated—Statement oe Balance Due—Promise to Pat —Construction oe Writing.—In this action to recover money alleged to be due on an account stated, a statement of account mailed by defendant to plaintiff showing the result of certain financial transaction in which plaintiff and defendant were jointly interested, which account closed with a statement of a balance due plaintiff, considered in connection with defendant’s accompanying statement as to when he would pay the same, and his subsequent statements, constituted an account stated.</p> <p>[2] Id.—Promise to Pat With Interest—Implication.—A promise by one person to pay another “with interest” implies a debt due from the former to the latter.</p> <p>1. Accounts stated, notes, 62 Am. Dec. 85; 136 Am. St. Kep. 37.</p>

<p>[1] Libel — Action fob Damages ■— Letter Concerning Plaintiff — Finding—Evidence.—In this action for damages for an alleged libel on plaintiff, committed by means of a letter written in the Danish language and delivered to and read by the addressees, close friends of plaintiff, the finding of the trial court that the letter was written of and concerning plaintiff was .fully sustained by the evidence.</p> <p>[2] Ed.—Identity of Party—Use of Name Unnecessary.—To constitute libel a party need not be named in the writing if pointed to by description or circumstance tending to identify him.</p> <p>[3] Id.—Imputation op Want op Chastity—Damage—Presumption. Words imputing to a woman a want of chastity are actionableL, j)er se, and damage to her reputation are presumed to result from the^putilication thereof.</p> <p>[4] Id.—Privileged Communication—What Constitutes.—A privileged communication is one made without malice, to a person interested therein, by one who is also interested, or by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or who is requested by the person interested to give the information;</p> <p>[5] Id.—Burden op Proving Privilege.—In an action for damages for an alleged libel, the burden of proving the privilege as set up in the answer is upon the defendant.</p> <p>3. Libel and slander in charging woman with unchastity, notes, 15 Ann. Cas. 1242; 24 B. R. A. (3$T. S.) 577; 48 L. R. A. (N. S.) 615.</p> <p>4. What libelous statements are privileged, notes, 2 Am. Dec. 431; 15 Am. Dec. 232; 31 Am, Rep. 708; 104 Am. St. Rep. 110.</p>

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

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

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

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

<p>APPEAL from a judgment of the Superior Court of Kings County. M. L. Short, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Cruz County. Benj. K. Knight, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. C. 0. Busick, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Brokers — Procuring Cause op Sale •—• Consummation Through Another.—When an agent takes a prospective purchaser upon land which he has been authorized in writing by the owner to offer for sale and to sell, introduces such purchaser to the owner and succeeds in awakening his interest in the property, and the purchaser expresses a tentative or conditional purpose to buy the land, and a short time thereafter he does purchase it, the trial court is justified in concluding that such agent’s efforts were the procuring cause of the sale, or at least that the sale “was made by, through, or upon information received through such agent”; notwithstanding the sale is consummated through another agent.</p> <p>1. When broker is considered as procuring cause of sale, note, 44 L. R. A. 321.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to restore a lost record in conformity with plaintiff’s application. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Malcolm C. Glenn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Contracts—Sale op Crop op Oranges—Destruction by Frost— Liability, op Buyer.—Where a contract for the sale of a crop of oranges then growing in a certain orchard states that the owner “has this day sold” the same, and provides that the buyer is to furnish all boxes to put the said fruit in and to pick the fruit free of all costs to the owner, the fruit to be of merchantable quality and picked at the option of the buyer, provided the same is removed on or before a specified date, the buyer is obligated to take the fruit which is mature and ready for the market on or before that date, and at such reasonable time as should be necessary to insure their good condition, and where the buyer does not do so, and the fruit is destroyed by frost, the buyer is liable to the owner for the purchase price thereof.</p> <p>[2] Id.—Action to Recover Unpaid Balance—Condition op Fruit-Evidence—Findings—Appeal.—In this action to recover an unpaid balance alleged to be due on the sale by plaintiff to defendant of a crop of oranges, a part of which had been destroyed by frost, the evidence was sufficient to support the findings of the trial court that the portion of the fruit which was marketable on a specified date was easily and readily separable from that which had been frozen, and that the fruit for which compensation was allowed was merchantable during a certain specified period; and, though there was testimony to the contrary, such findings were conclusive on the appellate court.</p>

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

<p>[1] Vendor and Vendee — Transfer of Property and Contract as Security—Liability of Grantee to Vendee.—The vendee of land, upon being notified by the grantee of his vendors, to whom the contract of sale was also assigned, that no further payments would be received, as there was some question about the title to the land (a proceeding to foreclose a prior mortgage of record having been instituted), is not entitled to recover from such grantee the payments made under the contract of purchase, where the latter took the deed and assignment merely as security for certain sums of money which he had paid out under a surety bond executed for the benefit of such grantors in connection with an independent leasing transaction and did not assume the obligations of his grantors.</p> <p>[2] Trials — Abrupt Manner of Trial Judge ■—Effect on Appellant’s Counsel—Lack of Prejudice.—A judgment will not be reversed on appeal because the trial judge, in expressing his rulings, spoke laconically, decisively, and with great brevity, where there is nothing to show that the disposition of the court was other than usual, or that any prejudice resulted to appellant which prevented him, from showing that the facts were different from those appearing in the record, however much the abrupt manner of the trial judge may have been disconcerting to appellant’s counsel.</p>

<p>[1] Evidence—Action for Value of Pump and Services—Reasonable Value of Labor Expended — Expert Testimony.—In this action to recover the value of a pump installed by plaintiff on the defendants’ ranch, pursuant to a contract for the purchase of the same, and for services and accessories in connection with its operation, the court properly permitted the manager of the plaintiff, who, before becoming manager for the plaintiff, had for many years been engaged in the pumping and engine business, and as a designer and chief engineer of an iron works, to testify as an expert as to the reasonable value of the mechanical labor expended on the pump.</p> <p>[2] Id.—Speed of Operation of Pump—Proper Cross-examination.— In such action, a witness called by the defendants to testify to certain work he had done on the pump after its installation who, on his direct examination, gave his expert opinion as to its construction and testified that in installing a pump it was necessary to regulate its capacity in accordance with the volume of water in the well, was properly allowed to be questioned, on cross-examination, regarding the speed of the pump in operation in relation to the amount of water in the well.</p> <p>[3] Id.—Contradictions in Testimony—Province of Trial Court.— In such an action, contradictions in the testimony of the witnesses for the plaintiff and the defendant as to whether the pump was properly constructed and installed and the weight to be given to the testimony of each of the witnesses is a matter addressed to the discretionary consideration of the trial court.</p>

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

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge.</p> <p>The facts are identical with those set forth in Sheehan v. Board of Police Commissioner s¡ ante, p. 29, [190 Pac. 511.</p>

<p>[1] Taxation — Cotton Imported erom Mexico — Detention and Storage by Importer in Original Bales — Nonliability for State and Local Taxes.—Judgment reversed on the authority of Imperial Development Co. v. City of Calexico, ante, p. 666, except that this action involves a county tax sought to be levied.-.</p>