Volume 50 — California Appellate Reports

<p>APPEAL from orders of the Superior Court of Los Angeles County setting aside a default and sustaining demurrers without leave to amend. Dana R. Weller and L. H. Valentine, Judges. Appeal dismissed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contempt—Disobedience op Restraining Order—Discharge op Respondents.—On this application for an order adjudging the ■respondents in contempt for an alleged violation of a temporary-restraining order of the appellate court, it is held that they were merely acting as officers of the law in the discharge of what they conceived to be their duty, and that no contempt was intended or committed.</p>

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

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

<p>[1] Statute op Limitations—Broker's Commission—Payment in Installments.—Where a written agreement for the payment of services in effecting a sale of lands entered into after the services had been completed provided for the payment of the commission in installments as payments were made on the purchase price, the statute of limitations commenced to run on each installment when it fell due.</p> <p>[2] Id.—Time op Payment of Installments—Construction op Contract.—Where a written agreement for the payment of services in effecting a sale of land entered into after the services were completed provided that a certain percentage of each installment payment made on the purchase price should be paid to the brokers, the effect thereof was to fix the time at which the respective payments on commissions should fall due as the time when the payments on the purchase price were actually made, and until the latter payments were made no cause of action for the recovery of the installments of commissions could be had. (Opinion of supreme court in denying hearing.)</p>

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

<p>[1] Divorce — Default — Interlocutory Decree — Payment of Alimony—Belief in Excess of Demand of Complaint.—Where, in an action for divorce, the prayer of the complaint was for a dissolution of the bonds of matrimony and for general relief, and the defendant made default, it was error to order in the interlocutory decree that the defendant pay the plaintiff a monthly alimony.</p>

<p>[1] Pleading—Election of Demedies.—In general terms, waiver by election occurs when a party having two or more different and coexisting modes oí procedure and relief allowed by law on the same state of facts and the one being inconsistent with the other elects to pursue one of those remedies.</p> <p>[2] Mortgage — Action on Note — Dismissal Before Judgment — Foreclosure.—The lien of a mortgage is not waived nor the right of foreclosure lost by the mere commencement of an action at law on the note for which the mortgage was given, and where the action is dismissed before judgment, the mortgagee may bring an action of foreclosure.</p> <p>[3] Claim and Delivery—Mortgaged Personal Property—Becovery by Donee ot -Mortgagor—Payment op Debt.—A donee of mortgaged personal property cannot maintain an action in claim and delivery to recover the possession of the property from the assignee of the mortgagee without payment of the note to secure which the mortgage was given, where the possession was peaceably obtained from the mortgagor and under the terms of the mortgage the mortgagee was entitled to such possession until payment.</p>

<p>[1] Partnership — Death op Partner — Recovery op Possession prom Administrator—Pleading.—A complaint in an action for an accounting brought by certain members of a partnership against the administrator of the estate of one of the deceased partners and other members of the firm, which alleges the existence of the partnership, the death of one of the partners, the appointment of his administrator, the ownership of the partnership of certain particularly described personal property, the taking of possession of a part thereof by the administrator, and the denial of the right of the partnership thereto, states a cause of action against the administrator for the possession of the property.</p> <p>[2] Id.—Action Against Administrator and Partners—Recovery op Possession op Dipperent Rjoperty—Joinder.—A cause of action against certain members of a partnership to recover the possession of certain personal property alleged to belong to the partnership may be joined with a cause of action against the ad ministrator of the estate of a deceased partner to recover the pos session of other personal property, although the action against the administrator is, strictly speaking, in law and against the other defendants in equity, since the single purpose of the action is to subject all of the partnership property to an accounting.</p>

<p>[1] Place of Trial—Affidavit of Merits—Statement of Defendant’s Case to Attorneys.—An affidavit of merits on a motion for a change of place of trial of a civil action to the county of the residence of the defendant which declares that the defendant has stated “his case” to his attorneys is not insufficient where it also contains the statement of facts which prima facie fully and completely answer the plaintiff’s action.</p> <p>[2] Id.—Sufficiency of Affidavit of Merits.—It is not required that an affidavit of merits to constitute a sufficient predicate for the removal of a cause on a motion for that purpose should set out in full the defense upon which the defendant will rely, nor is it important or of any materiality in the consideration of the affidavit whether the defense may or may not be sustained, but it is sufficient to show that the defendant, upon stating the facts of the case to his attorney, has been advised by the latter that he has a defense that will address itself to the merits of the controversy and not merely to matters of form and so forth.</p>

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

<p>APPEAL from a judgment of the Superior Court of Sacramento County and from an order denying a new trial. Charles 0. Busick, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court</p> <p>A. J. Hill, County Counsel, Hugh Gordon, Assistant County Counsel, and Jerry H. Powell, Deputy County Counsel, for Appellants.</p>

<p>[1] Ejectment—Judgment — Pleading — Failure to Show Compliance With Terms.—Where a judgment decreeing a deed to be a mortgage provided for tender of the amount due the defendant, but if defendant should refuse to reconvey that such tender be made to the clerk of the court, a complaint in an action to recover the possession of the property based on such judgment failed to state a cause of action where it simply alleged a tender of a certain amount to the clerk but failed to aver a tender of the amount to the defendant and his refusal.</p> <p>[2] Tender—Offsetting of Judgments.—An offer to offset one judgment against another is not a proper tender under a judgment declaring a deed to be a mortgage and providing for a reconveyance upon tender of the amount owing,</p> <p>[3] Appeal—Judgment—Ruling on Demurrer—Record — Presumption.—Where on appeal from a judgment entered after the sustaining of a demurrer to a complaint without leave to amend the appellant failed to bring up any bill of exceptions showing that he asked for and was denied leave to amend, or that ho proposed any particular amendment to his complaint, and there was nothing in Ms brief, assuming such presentation proper, which might even indicate Ms ability to remove any defects which might be found in the complaint, it must be assumed that there was no abuse of discretion in making the order.</p> <p>[4] Ejectment—Mortgagee in Possession.—Ejectment will not lie by a mortgagor or his successors against a mortgagee in possession.</p> <p>[5] Pleading—Ownership—Legal Conclusions.'—General allegations of ownership contained in a complaint based solely on the specific allegations of fact set forth therein must be treated as mere legal conclusions of the pleader. (Opinion of supreme court in denying hearing.)</p>

<p>[1] Pleading — Accounting — Beal Party in Interest — Insufficient Complaint.—A complaint in an action for an accounting starting out with a statement that plaintiff is the successor in interest, etc., of certain persons, but nowhere supported by an allegation of fact, fails to show him to be the real party in interest, although reference is made to his “grantors and predecessors,” where they are not named and it is not shown in what manner plaintiff deraigned title from them. ></p> <p>[2] Appeal—Reversal of Order Denting New Trial—Effect on Previously Affirmed Judgment.—Where an -appeal was taken by the plaintiff in an action from an order denying a motion for a new trial, and the judgment of the appellate court was that the order is reversed and the cause remanded for a new trial, the effect of such judgment was to vacate and render for naught the judgment of the trial court, notwithstanding its prior affirmance on appeal. (Opinion of supreme court in denying hearing.)</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County and from an order denying a new trial. Charles 0. Busick, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Judgment—Belief Dnder Section 473, Code of Civil Procedure —Notice of Motion—Statement of Grounds.—In view of section 1010 of the Code of Civil Procedure, a notice of a motion for relief from a judgment made under section 473 of such code should state the grounds upon which the motion will be made, and a notice merely stating that the motion would be based upon affidavits, served with the notice, and upon the records and files in the action, is insufficient. ,</p> <p>[2] Id.—Affidavit of Merits—Statement of Pacts.—An affidavit of merits is essential to a motion for relief from a judgment under section 473 of the Code of Civil Procedure, and an affidavit which merely declares that the moving party has stated to her attorney all of the facts upon which the cross-complaint is based is insufficient.</p> <p>[3] Id.—Order Setting Aside Default and Judgment—Insufficient Showing of Inadvertence.—An oi'der setting aside a default and a judgment entered on a cross-complaint for failure to answer the pleading is without justification where the application for relief fails to show any reason or excuse for the inadvertence or negligence of the attorney who should have filed the answer, notwithstanding his death, on the day of hearing of the motion.</p>

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

<p>[1] Contract — Sale or Cattle — Selection by Representative or Buyer—Meaning or Provision—Parol Evidence.—A written contract for the sale of seventy-five cows at seventy-five dollars per head containing the provision that “all stock- for delivery are to be selected by a representative of the buyer,” is by such provision rendered uncertain whether the buyer was to select seventy-five head at the price named, or to select such number at that price as the representative of the buyer might desire to accept, and it was therefore proper for the court in an action on the contract to receive parol testimony as to the meaning of the provision.</p> <p>1. Parol evidence to explain mercantile and other contracts, notes, 6 Am. Rep. 678-; 28 Am. Rep. 210.</p>

<p>[1] Promissory Note—Purchase Before Maturity—Consideration —Inquiry of Makers.—A purchaser of a negotiable promissory note before maturity is not required to make inquiry of the makers as to the consideration and circumstances leading up to its execution.</p> <p>[2] Id.—Purchase at Ten Per Cent Discount—Insufficient Evidence of Infirmity of Note.—The -purchase of a negotiable promissory note more than one year prior to its maturity at a ten per cent discount is not of itself sufficient to raise an inference or suspicion that the purchaser was buying a tainted instrument.</p> <p>2. Payment of less than face value of promissory note by transferee as affecting bona fides, note, 17 Ann. Cas. 386.</p>

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

<p>[1] Contract—Association for Development of Oil Lands—Contribution—Construction of Instrument.—Where a contract between three individuals provided that two of them were to advance and pay all moneys required in the location and development of certain prospective oil lands, and the other party was to contribute no money, but devote his time and services, the latter was not liable to one of the former for contribution on payment of a judgment obtained against all of them, notwithstanding the services for which such judgment was obtained were rendered after the party who paid the judgment had given notice to the party who was not required to contribute any money that no further advancements would be made by him and that he had been informed by the other contributing party under the contract that he would take care of ail future matters.</p>

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

<p>[1] Negligence — Death of Automobile Stage Passenger — Action for Damages—Dependency of Mother—Condition of Health— Evidence.—In this action, prosecuted under the provisions of section 377 of the Code of Civil Procedure, for damages for the death of plaintiff’s intestate as the result of injuries sustained by her while a passenger on an automobile stage, which was negligently operated by an employee of the defendant, it was not error to permit the mother of the deceased, who was shown to have been an invalid for a number of years, to state the nature of her ailments and the services rendered her by the deceased during that period and of which she was deprived by the death.</p> <p>[2] Id.—Waiver of Special Damages—Recovery of General Damages by Husband—Nonsuit.—In such an action, where special damages are not claimed, a motion for a nonsuit as to any damages on the part of the husband of the deceased is properly denied, notwithstanding at the time of the injury he was living separate and apart from the deceased and had procured an interlocutory decree of divorce on the ground of desertion.</p> <p>[3] Id.—Deceased as Passenger for Hire—Conflicting Evidence-Determination of Jury—Appeal.—In such an action, where the evidence upon the question whether or not the deceased was a passenger for hire on the stage in which she was riding at the time she sustained the injuries is conflicting, the determination of the jury thereon in favor of the plaintiff is conclusive on the appellate court, unless, by error in the instructions, the jury was misled to the prejudice of the defendant.</p> <p>[4] Id.—Person Traveling in Autobus—Passenger por Hire—Presumption.-—In such an action, the jury is properly instructed that a person traveling in an autobus used for carrying passengers is, in the absence of countervailing circumstances, presumed to be a passenger for hire.</p> <p>[5] Id.—Approach op Crossing—Disregard op Train Signals—Lack op Ordinary Care and Diligence.—Prom the facts that the driver of the stage approached the railroad crossing at a high rate of speed, and without stopping, reducing speed, or apparently giving any attention to the signals of a heavy freight train visible for a considerable distance from the road, ran upon the crossing, where the stage was struck by the locomotive, the only possible deduction to be drawn was that the driver of the stage was reckless and did not exercise the ordinary care and diligence required of a carrier of passengers without reward.</p> <p>[6] Id.—Action Under Section 377, Code op Civil Procedure—Gravamen op Action—Care Esquired op Carrier—Materiality op Payment op Pare.—In an action, prosecuted under the provisions of section 377 of the Code of Civil Procedure, for damages for the death of plaintiff’s intestate as the result of injuries sustained by her while a passenger on an automobile stage operated by an employee of the defendant, the gravamen of the action is the fact of the death of the deceased by negligence while she was a passenger, not whether or not she paid her fare, this latter fact being important only in considering the degree of care required of the carrier; and when the carrier is shown to have used no care, its liability for damages for her death becomes fixed, whether she was a gratuitous passenger or one for reward.</p> <p>[7] Id.—Measure op Damages—Proper Instruction.—In such action it is not error for the court, after fully instructing the jury that there can be no recovery for sorrow, to add “yet you have the right to take into consideration the pecuniary loss suffered by the members of the family occasioned by her death, including the loss to them of the comfort, society, and protection of the decedent.”</p> <p>1. Admissibility, in action for wrongful death, of evidence of health or physical condition of person for whose benefit action is brought, note, Ann. Cas. 19120, 266.</p>

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

<p>[1] Vendor and Vendee — Assignment of Contract of Sale as Security—Liability of Assignee for Nonperformance.—Where a contract for the sale of certain land is assigned by the vendor as security for an indebtedness, and a deed in ordinary grant form covering the property is also made to such assignee for a like purpose, but the latter does not assume the obligations of the original vendor, he cannot be compelled to perform such contract or to answer in damages for the nonperformance thereof, notwithstanding that subsequent to the assignment of such contract he accepts payments thereunder from the vendee.</p>

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

<p>[1] Place of Trial—Action Against Corporation—Enforcement of Contract.-—An action against a corporation for the enforcement of a contract for the payment of money may, under section 16 of article XII of the constitution, be commenced in the county where the contract was made or where it was to be performed, or where the obligation arose.</p> <p>[2] Id.—Personal Action Against Corporation—Bight of Transfer to County of Besidenoe.—A corporation against which a personal or transitory action is brought has no 'absolute right to have the action either commenced or removed to the county in which it has its principal place of business, which is the county of its residence, merely upon that ground or for that reason, but can only secure a removal “as in other eases” or upon some ground, legally recognized, other than the fact that its residence is in a county other than the county in which the action has been commenced.</p> <p>[3] Id.—Title of Action—Proper County — Presumption. — In the absence of an affirmative showing to the contrary, the presumption is that the county in which the title of the action shows that it is brought is, prima facie, the proper county for the commencement and trial of the action, where the court in which the action is brought has jurisdiction of the subject matter thereof.</p> <p>[4] Id.—County Where Contract Made—TTncontroverted Pleading. In an action on behalf of an association against a corporation which was a member thereof to recover under a written contract the defendant’s pro rata proportion of certain expenses incurred by the association, where the contract is set out in full in the complaint, immediately followed by averments of the facts constituting the gist of the action against the defendant, after which it is alleged that “said association is located” in the county in which the action is brought “and does its business therein; and said transactions took place therein, and said cause of action arose therein,” and these averments are not denied or controverted in the affidavit of merits filed by the defendant on his motion for a change of place of trial, or at all, it sufficiently appears that the contract was made in said 'county.</p> <p>[5] Id.—Where Transactions Took Place—Pleading — Statement of Pact.—In such action, the allegation in the complaint that “said transactions took place therein”—that is, in the county in which the action was commenced—does not involve the statement of a legal conclusion, but contains the statement of a fact.</p>

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

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

<p>[1] Vendor and Vendee—Fraudulent Representations — Reliance on by Vendee.—Conceding that the vendor did- make representations that the land sold had had water on it and that a given number of acres thereof was irrigable and could be put into crops immediately after suitable ditches had been constructed and the land bordered, all of which a,t the time he knew to be false and untrue, nevertheless legal fraud could not be predicated thereon unless the vendee, believing the same to be true, relied thereon and was thereby induced to purchase the property.</p> <p>[2] Id.—Personal Investigation by Vendee — Presumption. — If a purchaser of real estate visits the property prior to the sale and makes a personal examination of it touching representations made as to its quality, character, or condition, he will be presumed to rely, not upon the representations, but upon his own judgment in making the purchase, provided the vendor does nothing to prevent his investigation being as full as he chooses.</p> <p>[3] Id.—Independent Investigation—Purchase on Advice of Expert—Estoppel to Claim Deceit.—Where the vendee does not rely upon the representations made by the vendor, but, without any interference on the part of the vendor, makes an independent investigation, and, after obtaining the opinion and advice from the expert whose services he seeks, he purchases the land, he cannot be heard to claim that he was deceived by the false representations made by the vendor.</p> <p>[4] Appeal — Alternative Method ■—■ Sufficiency of Evidence to Support Decision.-—Under the alternative method of appeal, it is not necessary, in order to entitle the appellant to a review of the sufficiency of the evidence to support the decision, that he first present to the trial court a motion for a new trial.</p> <p>1. Necessity for reliance on false representations in order to maintain action for deceit, note, Ann, Gag, 1915B, 779,</p>

<p>[1] Specific Performance—Agreement to Devise Property by Will —Breach—Inadequacy of Money Payment.—In an action to enforce an agreement to make a will and devise property in favor of the plaintiff, it must appear in the complaint, either by direct averment or from a description of the character of the services rendered, that a money payment would not furnish adequate compensation to the plaintiff.</p> <p>[2] Id.—Value of Services—Pleading—Sufficiency of Complaint. The fact that the plaintiff in such action has fixed a definite sum as being the value “or thereabouts” of the services rendered will not alone vitiate the statement of a good cause of action for the relief demanded, provided the complaint contains such a description of the services which were performed as to enable a court to say that the value of such services cannot be adequately measured in money terms.</p> <p>[3] Id .—Insufficiency of Complaint—Waiver of Objection—Pleading.—Where the complaint in such action not only fails to disclose services rendered by the plaintiff of such a character as to entitle him to have specifically performed the contract alleged but, by affirmative allegation as to the value of such services, makes it appear with reasonable certainty that he could have secured full redress by money claim against the estate of the deceased, the defendants, by failing to demur and by denying in their answer that services of the value stated or of any value had been rendered, do not waive their right to question the complaint on the general ground that it fails to state sufficient facts to authorize equitable relief to be administered.</p> <p>[4] ' Appeal—Alternative Method—Review of Evidence.—On an appeal from a judgment under the alternative method, in order to review the evidence it is not necessary that there has been a motion for a new trial.</p> <p>1. Specific performance of contract to make will, note, Ann. Cas. 1914A, 399.</p>

<p>[1] Contracts—Repair of Boiler—Action upon Quantum Meruit— Rescission—Evidence.—In this action to recover the reasonable value of materials furnished and labor performed by plaintiff at the special instance and request of defendants in repairing a steam boiler, a portion of which repairs was done under a special contract, which fixed the price to be paid therefor, the evidence was insufficient to support the finding of the trial court to the effect that such special contract was rescinded before its completion.</p> <p>[2] Id.—Fixed Contract Price—Quantum Meruit — Evidence. — In such action, proof that a part of the work was done under a special contract, which fixed the price to be paid therefor, fails to support the allegations of the complaint upon quantum meruit for the work done as a whole.</p>

<p>[1] Negligence—Action fob Damages fob Death—Evidence—Finding.—In this action for damages for the death of plaintiff’s intestate from injuries received, while waiting for a train, through having been run into and knocked down by an automobile driven by the defendant, the evidence was sufficient to support the finding of negligence on the part of the defendant.</p> <p>[2] Id.—Absence of Begular Waiting-station—Bight to Stand at Usual Place.—There having been no regular station or safety-zone where such train was accustomed to stop, the deceased, while awaiting its arrival, had a right to stand at the usual place for persons intending to board trains to stand.</p> <p>[3] Id. — Presence of Automobile Tracks — Cause of by Defendant’s Car—Evidence—Admissions.—Where the defendant himself admitted that he had examined certain scars in the asphalt that appeared on the roadway the next morning after the accident, which markings were caused from the friction of rubber, and that his car had made such scars, the plaintiffs, who had introduced testimony as to such sears for the purpose of showing at what point defendant had applied his brakes, were not required to prove that the tracks were caused by defendant’s automobile.</p> <p>[4] Id.—Marriage of Deceased—Mode of Proof—Waiver of Objections.—In such action/ the brother of the deceased having been permitted, without objection, to testify that the deceased was married and that he left surviving him a wife and two minor children, all of whom resided in China, and no evidence having been introduced to disprove these facts, the admissibility and sufficiency of such evidence to prove those facts cannot be questioned for the first time on appeal.</p> <p>[5] Id.—Deprivation of Support—Loss Suffered—Besidence of Dependents Immaterial.—In such action, the deprivation of the support that deceased was morally and legally bound to furnish his wife and minor children is the loss suffered, and the fact that they are nonresidents does not in any manner affect their rights.</p> <p>5. Measure of damages for husband’s death, notes, 12 Am. St. Bep. 375; 3 Ann. Cas. 103; 16 Ann. Cas. 932.</p> <p>[6] Id,—Expectancy oe Lies—Income—Damages not Excessive.— Considering the facts that the expectancy of life of the deceased, as shown by mortality tables introduced in evidence, was thirty-two years and that of his wife and children a longer period, that he was in sound physical health and was earning forty-five dollars a month together with his board and lodging, and was to receive more, it could not be said that the judgment in favor of the plaintiffs for five thousand four hundred dollars was excessive as matter of law; neither does such judgment suggest at first blush passion or prejudice.</p>

<p>APPEAL from an order of the Superior Court of San Mateo County granting a new trial. John L. Hudner, Judge Presiding. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Quieting Title—Actual Possession—Prima Facie Evidence op Ownership—Presumption.—In an action to quiet title to real property, proof of actual possession by plaintiff is prima facie evidence of Ms ownersMp and of Ms right to a decree quieting his title;' and while such presumption is disputable and may be controverted by other evidence, it affords full and sufficient evidence of ownership of land, unless it be successfully controverted.</p> <p>[2] Id.—Delinquent Assessment—Sale op Property—Insufficient Notice op Eedemption—Void Deed.—A deed executed by the board of public works of the city of Los Angeles to the purchaser, after sale of a lot following a delinquent assessment to pay the expenses of acquiring land for a public library under the act of April 22, 1909 (Stats. 1909, p. 1066), as amended by the act of December 23, 1911 (Stats. 1911, Extra Sessions, p. 17), is null and void where the affidavit of posting the redemption notice does not show that the notice was posted on the property or that due diligence had been used to find the owner.</p> <p>[3] Abatement—Dismissal op Former Action.—A judgment of dismissal of a prior action, entered after the trial of the second action has commenced but before its conclusion, is a good answer to the plea of abatement.</p> <p>[4] Id.—Motion to Dismiss Prior Action—Written Authority of Attorneys—Presence op Plaintiff in Court—Estoppel.—Where the attorneys of record for plaintiff in the prior action gave the attorneys of record for plaintiff in the second action written authority to move the court to dismiss the former action, tMs was sufficient authority for the presentation by the latter attorneys of a motion to dismiss; and where plaintiff was in court when the motion was made, he is estopped to question the authority of Ms attorneys to dismiss the former action, and the defendant in the second action is not in a position successfully to contend that the motion to dismiss the former action was unauthorized.</p> <p>[5] Id.—Another Action Pending—When Plea Proper.—To sustain the plea of another action pending, it is essential that it shall appear, not only that there is another action pending between the same parties, but also that the cause or causes of action and the issues involved are substantially the same in the two suits.</p> <p>5. Abatement of action by another pending in same state, note, 84 Am. Dec. 452.</p> <p>[6] Land Title Law—Withdrawal of Application—Collateral Attack on Judgment of Dismissal.—Under section 20 of the Land Title Law (Stats. 1915, p. 1932), an applicant for the registration of land may, on payment of all fees due, “withdraw his application at any time prior to the hearing thereof”; but, conceding that it is error to permit an applicant to withdraw his application after any defendant shall have filed a pleading asking for affirmative relief, the judgment of dismissal of such action, on motion of the plaintiff, is not subject to collateral attack by such defendant in a second action brought by the applicant to quiet title to the property.</p>

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

<p>[1] Divorce—Separation Agreement—Construction of—Voluntary Separation—Finding—Evidence.—In this action for divorce on the ground of desertion, the evidence was sufficient to support the finding of the trial court that a certain written agreement entered into between plaintiff and defendant, and which defendant contended evidenced a voluntary separation, “was not intended as an agreement between the plaintiff and defendant to live separate and apart, but was intended to recognize the fact that plaintiff and defendant were then living separate and apart by reason of the defendant’s refusal to live with said plaintiff, and was for the purpose of providing a property settlement between the plaintiff and defendant and to assure maintenance and support for said defendant.” (On petition for Hearing in supreme court, approval withheld.)</p> <p>[2] Id.—Refusal to Resume Marriage Relation—Desertion — Evidence—Finding—Judgment.—In said action for divorce on the ground of desertion, the evidence was sufficient to support the finding of the trial court that the next day after the execution of said agreement “the said plaintiff requested the said defendant to resume marriage relation with him and to thereafter live with him, but the said defendant refused so to do, and ever since has continued to live separate and apart from the plaintiff and to desert and abandon him,” and this finding was sufficient to support the judgment in plaintiff’s favor.</p>

<p>[1] Pleading—Action on Contract—Authority of Agent—Scope of Denial.-—-In an action to recover the purchase price of certain personal property at a price in excess of two hundred dollars, a denial by the defendant that the purported agent, through whom the actual purchase was effected, was in fact his agent necessarily implies a denial that he was such an agent as, in view of the provisions of section 2309 of the Civil Code, was clothed with authority to make the particular purchase.</p> <p>[2] Id.—Statute of Frauds—Evidence—Waiver of Objection—Appeal.—In such an action, the defendant loses the right to object for the first time on appeal that the contract of authorization was invalid because it was not reduced to writing, where he does not on the trial object to the admission of oral evidence to prove the authority of the agent, nor make any suggestion that he desires or intends to rely upon a want of written authority.</p> <p>[3] New Trial — Existence of Evidence — Forgetfulness No Excuse.—Mere forgetfulness that the evidence existed without any showing that tends to excuse the forgetfulness does not entitle a party to a new trial on the ground of newly discovered evidence.</p> <p>[4] Judgments—Interest—Excessive Award—Modification on Appeal.—Where the jury awards one year’s interest in excess of the proper amount, the appellate court may direct the proper modification of the judgment.</p> <p>[5] Id.—Pleading—Prayer—Contested Case—Belief Authorized.— In a contested case, intetest may be awarded, if the plaintiff is entitled thereto, notwithstanding the complaint contains no prayer for interest.</p> <p>3. Forgotten facts as constituting newly discovered evidence, note, 17 Ann, Cas. 317.</p>

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

<p>[1] Medical Practice Act—Definition of Unprofessional Conduct —Revocation of Certificate — Class Legislation — Constitutionality of. — The state Medical Practice Act (Stats. 1917, p. Ill), in defining “unprofessional conduct” as “ . . . Third—All advertising of medical business which is intended or has a tendency to deceive the public or impose upon credulous or ignorant persons, and so be harmful or injurious to public morals or safety,” and providing for the revocation of a certificate to practice medicine and surgery whenever the holder of such certificate is guilty of unprofessional conduct as' defined in said act, does not deny to citizens the equal protection of the law and is not class legislation; neither is it void or unconstitutional for vagueness or uncertainty.</p>

<p>[1] Quieting Title—Possession by Owner Unnecessary.—It is not necessary, in order to maintain an action to quiet title, that an owner should be in possession.</p> <p>[2] Findings—Ultimate Fact—When Overcome by Finding of Probative Facts.—The finding of an ultimate fact cannot be overcome by a finding of probative facts unless it clearly appears that the finding of the ultimate fact is entirely based on probative facts which are destructive of the former, or where it appears that the trial court made the finding of the ultimate fact as a conclusion from the particular facts found.</p>

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

<p>[1] Leases—-Action to Determine Ownership—Execution as Security — Evidence — Presumption — Bebuttal. — In an action brought to have it decreed that the plaintiffs are the owners of a certain written lease which was executed by the lessor to one of the defendants and by him assigned to his eodefendant, the presumption is that the instrument is what it purports on its face to be, a' lease to the lessee named therein, and to overcome this presumption and establish that the lease was executed in favor of said lessee as security only for an indebtedness due from plaintiffs’ assignor, the evidence must be clear, unequivocal, and convincing; but this rule means no more than that the evidence in support of the findings, if believed by the trial court, must be sufficient to furnish clear, unequivocal, and convincing proof of the facts found.</p> <p>[2] Id.—Execution op Lease as Security—Finding—Evidence.—In this action brought to have it decreed that the plaintiffs were the owners of a certain written lease which was executed by the lessor to one of the defendants and by him assigned to his eodefendant, and for an accounting of the rents, issues, and profits thereof, the evidence was sufficient to support the findings of the trial court to the effect that at the time of the execution of said lease plaintiffs’ assignor was indebted to said eodefendant and that the lease was executed to the lessee named therein as security for that indebtedness.</p> <p>[3] Id.—To Whom Payments Charged—Best Evidence.—In such an action said codefendant company’s books are the best evidence as to whom certain payments made by it to plaintiffs’ assignor were charged.</p> <p>[4] Pleading — Denial op Leave to Amend Answer — Absence op Error.—It was not an abuse of discretion to deny the defendants’ motion, made at the close of the evidence, to amend their answer by stating a certain denial, where the case was tried upon the theory that such denial had been made, and such denial did not correspond with the proof.</p> <p>[5] Findings—Probative Facts in Answer.—The trial court is not required to find on probative facts pleaded in an answer and which merely bear upon one of the principal issues tried and determined by the court.</p>

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

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco denying a motion to vacate a prior order denying a motion to have certified a transcript on appeal. E. P. Mogan, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

<p>[1] Place of Trial—Motion fob Change — Affidavit of Merits — Eight to Amend.—An affidavit of merits on a motion for change of place of trial is amendable.</p> <p>[2] lb.—Establishment of Eight to Change—Affidavit—Demand— Waiver.—The filing of the affidavit of merits and demand for change of place of trial at the time of the first appearance is all that is required to establish the right of the defendant in a personal action to have the place of trial changed to the county of his residence; but this right, though absolute if insisted upon, is one which the defendant may waive, and which he does waive unless he follows the procedure provided for asserting it.</p> <p>[3] Id.—Notice op Motion—Time—Lack of Diligence.—While it is not necessary that the notice of motion for change of place of trial accompany the affidavit and demand, the motion should be made at the earliest opportunity, and if it is made afterward the applicant must explain any seeming lack of diligence on his part.</p> <p>[4] Id.—Insufficient Notice of Motion — Denial Without Prejudice—Jurisdiction to Entertain Proper Motion.—Where a first notice of motion for change of place of trial is insufficient, because the time allowed is less than that required by section 1005 of the Code of Civil Procedure, and no order shortening time is secured, and a second notice of motion for a later date is served and filed, there is in legal effect but one motion presented for judicial action, and after the court has by consent denied without prejudice the motion first noticed, it may proceed to entertain the motion that was properly noticed.</p> <p>[5] Id.—Affidavit of Merits — Time. — Where the defendant in his amended affidavit of merits filed on his motion for a change of place of trial, after setting forth the other necessary matters, avers that he had fully and fairly stated the case to a certain attorney at law, one of the members of a named firm, and after such statement he was advised by him, and he verily believed, he had a good and substantial defense on the merits of the action, the objection that such affidavit is insufficient because it fails to state when the defendant stated the facts to his attorney, or when the latter advised him he had a good defense, are supertechnieal and without merit.</p> <p>[6] Id.—Delay in Filing Papers—Laches.—The defendant was not guilty of laches in presenting his motion for change of place of trial, where the only motion which was effective was made on the first call of the motion calendar after his demurrer, demand for change, and affidavit were filed, and the conditions would not have been changed if he had filed such papers the day they were served instead of five days later, they having been filed within the time permitted by the statute.</p>

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

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

<p>[1] Landlord and Tenant—Nonpermitted Use op Premises—Damages.—Where demised property is used for purposes other than those contemplated by the lease, the lessor’s damages under section 1930 of the Civil Code are only those which the lessor suffers by reason of his property being injured by a depreciation in value being produced, or by some other injury which naturally occurs because of the nonpermitted use, and the mere value of the use does not measure the amount of damages.</p> <p>[2] Pleading—Amended Complaint—Motion to Strike—Time.—A motion to strike out an amended and supplemental complaint, made after answer thereto, is too late, and properly denied.</p> <p>[3] Landlord and Tenant—Pleading—Amendment op Complaint_ Change op Cause op Action—Statute op Limitations.—Where in an action by a lessor against a lessee the plaintiff, by filing an amended and supplemental complaint, eliminated all claim to any right to have the lease forfeited, as sought in the original complaint, and adopted the alternative remedy of damages permitted by section 1930 of the Civil Code, the amended pleading declared upon a different cause of action, and the application of the statute of limitations will be considered with reference to the date of the filing of the amended complaint, rather than to the original date of the commencement of the action.</p>

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

The facts are stated in the opinion of the court. Stewart & Stewart and L. B. Stanton for Appellant. Geo. M. Barker and S. M. Bernard for Respondent Dunn. James, Smith & McCarthy for Respondent Bank.

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

<p>[1] Mortgage—Foreclosure—Litigation of Adverse Title.—While it is generally the rule that claims adverse to both the mortgagor and mortgagee cannot be litigated in, a foreclosure suit, if the adverse claimants subject themselves to the jurisdiction of the court in the foreclosure suit, it being before a court of equity, complete justice may be done.</p> <p>[2] Id. — Collateral Proceeding — Execution Sale Pending Foreclosure—Jurisdiction.—In an action for the foreclosure of a mortgage, the court was without power in a collateral proceeding instituted by the receiver in the action to annul an execution sale of the property in a partition suit or to restrain the purchaser, who was not a party to the foreclosure action, from selling or dealing with his claim of title acquired while the property was sub juSiee, but had the power to restrain the purchaser from interfering with the possession of the receiver.</p>

<p>[1] Contract—Appearance Before State Highway Commission — Presentation op Merits op Proposed Route—Validity op Agreement Between Property Owner and Representative.—A contract of a property owner employing an individual to represent him before the State Highway Commission in relation to the location of a certain route for the highway which, if adopted, would bring the highway to or through the lands of such owner is not against public policy, where the means employed in the fulfillment of the contract were perfectly legitimate in the eyes of the law.</p>

APPEALS from a judgment of the Superior Court of the City and County of San Francisco, and from orders denying motions to stay proceedings, to set aside judgment, and to recall execution. Daniel C. Deasy and George H. Cabaniss, Judges. Affirmed. The facts are stated in the opinion of the court.

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

PROCEEDING in Habeas Corpus to secure the release of petitioner from custody on a charge of violating the San Francisco license ordinance. Petitioner remanded to custody. The facts are stated in the opinion of the court.

<p>[1] Employer and Employee—Tortious Acts op Guards op Street Eailroad Company — Assault and False Imprisonment — Mistaken Identity—Liability op Company.—Where a street railroad company during a strike, acting under general instructions from its president to his subordinates, sent to a section of the city where acts of violence had been and were being committed, employed patrolmen and guards to protect the nonstriking employees and company’s property and preserve order, the company was liable for the acts of such guards in assaulting and arresting an individual under the mistaken belief that he was one of the strikers and participants in the unlawful acts, since they were acting within the scope of their authority, regardless of the fact of mistaken identity and guilt.</p> <p>[2] Id.-—Acts Within Scope of Employment—Improper Manner of Performance — Liability of Employer. — Where employees of a railroad company were acting within the scope of their authority in taking into custody a person believed to be guilty of unlawful acts, the fact that they did so with undue violence or with opprobrious and insulting forms of speech did not absolve their employer of liability for their wrongful action.</p> <p>[3] Id. — Wrongful Acts of Street Kailroad Employees — Exemplary Damages—Insufficiency of Evidence.—In this action to recover damages for an alleged assault upon and imprisonment of the plaintiff by guards employed by a street railroad company to protect its property during a strike, there was no sufficient evidence of malice, fraud, or oppression on the part of the company against the plaintiff to warrant a verdict for exemplary damages in any sum, and the judgment was modified by striking therefrom the item of damages so assessed.</p> <p>[4] Corporations-—Acts of Employees — Liability in Exemplary Damages.—A corporation may become liable in exemplary damages where an act of one of its employees done in ill will or in actual malice or under circumstances of fraud or oppression is done with the knowledge or under the express direction of its superior officials having power to bind the corporation, or, if done without such knowledge or direction, is thereafter ratified by such officials, with full knowledge as to the willful and malicious quality of such acts.</p> <p>[5] Employer and Employee — Wrongful Acts of Employees — Direction of Employer—Verdict Exonerating Employees—Liability of Employer.—In an action against an employer and its employees for damages for assault and false imprisonment, a verdict in favor of the employees does not exonerate the employer from liability, where the employees were acting under the direction of the employer, since, under such circumstances, the employer was a joint participant.</p> <p>4. Liability of corporations for exemplary damages, note, 59 Am. St. Bep. 589.</p>

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

PROCEEDING on Habeas Corpus to secure the release of a minor adjudged a ward of the juvenile court and committed to a private training school. Petition denied and ward remanded. The facts are stated in the opinion of the court.

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

<p>[1] Estates of Deceased Persons — Jurisdiction of Foreign Executor—Right to Maintain Suit in This State.—The authority of an executor or administrator does not extend beyond the jurisdiction of the state or government under which he is vested with Ms authority; and while a foreign executor may receive property voluntarily given to him, he cannot by suit in the courts of this state enforce the right of the estate thereto.</p> <p>[2] Id.—Presumption of Claim by Foreign Executor — Right oi Action Thereon by Ancillary Administrator.—A foreign executor has no authority to present a claim for allowance against an estate being administered in a court of this state; and an administrator with the will annexed, though duly appointed by a court of this state, cannot maintain an action against an estate being administered in a court of this state on a claim presented by a foreign executor.</p>

<p>[1] Action for Damages-—Obtaining of Beal Property for Mortgage Bonds and Corporation Stock—Fraud—Pleading—Nature of Action.-—A complaint charging that the defendants, as officers and directors of a railway corporation, willfully gave and published written certificates, and willfully made and published official printed reports and public printed notices concerning the corporation, its business, financial standing, and assets, which were false and untrue in the following material respects, namely, that the defendants falsely represented and stated to plaintiff verbally and by means of said printed reports and notices that the corporation had sold mortgage bonds sufficient to finish and equip the road when in truth and in fact all of said representations, both oral and printed, were false and untrue, states a cause of action based upon section 316 of the Civil Code, and not one for fraud and deceit under section 1572 of such code.</p> <p>[2] Fraud — Pleading — Common-law Action. — In order to state a common-law action for fraud or deceit there must be more in the complaint than the bare statement that the defendants made certain false and fraudulent representations upon which, believing the same, the plaintiff entered into the transaction from which he thus asks to be relieved or as to which he seeks any appropriate legal or equitable relief, as it must also be charged not only that ' the defendant knew that the alleged representations were false and untrue at the time that they were made, but that they were made with the intent to deceive and defraud the plaintiff.</p> <p>[3] Action for Damages—Liability Fixed by Section 316 of Civil Code—Scofe of Evidence.—Where the complaint in an action for damages for alleged false representations made by corporation officers and directors in obtaining an exchange of real property for bonds and stock shows that the action is based on section 316 of the Civil Code, evidence tending to establish a case of fraud and deceit under section 1572 is irrelevant, and proof of oral transactions of the corporation bearing upon the subject matter of the action is inadmissible.</p> <p>[4] Id.—Oral Representations op Corporate Oppioers—Admissibility Against Others.—In such an action oral representations or statements made by certain of the officers named in the complaint to the plaintiff relative to the affairs of the corporation are not binding upon the others, unless it is first shown that all of them had corruptly conspired together and entered into a mutual understanding that the representations should by all or any of them be made to the plaintiff for the purpose of inducing him to make the transfer.</p> <p>[5] Id.—Order op Proop—Discretion not Abused.—In such an action the court properly exercised its discretion in requiring proof of the falsity of the alleged representations and of their having been made by an officer of the corporation before admitting proof of the plaintiff’s alleged damage.</p>

<p>[1] Attorney and Client—Dealings Between—Fairness and Good Faith—Burden of Proof.—The relation of attorney and client is one of special trust and confidence; therefore, in dealing with his client, the highest degree of fairness and good faith is required of an attorney, and courts view all such transactions with suspicion and examine them with the utmost scrutiny; and in any attempt to enforce such an agreement the burden is upon the attorney to show that the client entered into the contract freely and with full knowledge of all the facts connected with the transaction.</p> <p>[2] Id.-—Dealing With Client Through Her Attorney in Fact-Good Faith not E'xoused.—The mere fact that an attorney, in effecting a sale of certain property of his client, is dealing with his client through her attorney in fact does not excuse him from acting throughout the transaction in the highest good faith toward her.</p> <p>[3] Id.—Sale of Client’s Property—Division of Commission—Absence of Good Faith—Evidence—Erroneous Instructions.—In an action by an attorney at law to recover commissions as a broker for services rendered in the sale of a client’s interest in certain real property, it is error for the trial court to instruct the jury to find for the plaintiff, if there is evidence in the case from which the jury would be warranted in finding that plaintiff, without the knowledge of his client, agreed with her attorney in fact to divide with the latter a certain sum of money received from the purchaser, or any commission received by plaintiff from a sale of the property, or that plaintiff, before the sale of the property, concerted with defendant’s attorney in fact to ignore a higher offer, without investigation as to the character thereof; and conclude a sale to another person at a lower net price, but upon which they were to receive and divide a large sum of money as commission.</p>

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

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

<p>APPLICATION for a Supersedeas during the pendency of an appeal from a judgment denying a Writ of Prohibition. Petition denied.</p> <p>The facts are stated in the opinion of the court.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. S. M. Marsh, Judge. Denied. The facts are stated in the opinion of the court.

<p>[1] Trusts—Suspension of Alienation Until Beneficiaries Beach Designated Age—Validity of.—Where a trust created by a will by its terms is to continue until the two sons of the testator “reach the age of forty years,” the suspension of the power of alienation is dependent upon, and measured by, the duration of the life of the survivor of them, and such trust is not void as imposing an unlawful restraint on alienation.</p> <p>[2] Id. — Termination of Trust Prior to Fixed Time — Power of Court of Equity.—A court of equity may terminate a trust, prior to the expiration of the time fixed for its duration, when all the parties in interest are sui jwris and join in a request for its dissolution, unless the trustor has placed an express limitation upon this power, or the trustee is vested with discretion as to the amount of income to be devoted to the use of the beneficiary, or a valid direction for accumulation is contained in the instrument creating the trust.</p> <p>[3] Id.—Petition to Terminate Trust—Absence of Possible Beneficiaries—Equity.—Where a trust provision in a will leaves the residue of the testator’s property to his two sons, share and share alike, provided they both live to the age of forty years, the property in the meantime to be held by a designated trustee, and such will provides in effect that in the event of the death of either of said beneficiaries before the expiration of the trust period, the share of said beneficiary shall go to his children, and in the event of the death of either of said beneficiaries “without issue,” the . whole corpus of the trust shall go to the survivor, a court of equity has no power to terminate such trust, upon the petition of said two sons, prior to the expiration of the trust period, all the possible beneficiaries not being before the court. ,</p> <p>[4] Id. — Disposition of Income — Silence of Will. — Where a will creates a trust in favor of certain named beneficiaries and provides that the corpus of tho trust property shall be held by á designated trustee until said beneficiaries shall reach a certain age, but such ^will does not provide for the accumulation ■ or the disposition of the income during the existence of said trust, the income belongs to said beneficiaries, they being the persons presumptively entitled to the next eventual interest.</p> <p>2. Power of court to hasten enjoyment of trust fund, notes, Ann. Cas. 1915B, 723; 46 L. R. A. (N. S.) 43.</p>

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

<p>[1] Debtor and Creditor — Agreement of Life Tenant to Keep Premises in Repair — Relationship to Remainderman. — Where-the owner of a life estate by an agreement with the remainder-man obligates herself to keep the improvements on the property in reasonable and ordinary repair and to paint them at reasonable intervals during her life estate, such obligations constitute the remainderman a creditor of the owner of the life estate.</p> <p>[2] Fraudulent Conveyances — Approved Claim Against Estate — Force of—Prima Facie Evidence.—A claim against the estate of a deceased person duly allowed and approved by the judge of the superior court in which that estate is pending has the same force as a judgment of the court; and in an action by such claimant brought to set aside, as a fraud upon creditors, a trust executed by the deceased in her lifetime, such approved claim is prima faoie evidence of the plaintiff’s debt, and the burden is upon the defendant to show that the claim was not properly allowed.</p> <p>[3] Id.—Action to Set Aside Trust—Existence of Actual Indebtedness.—In such action, it not being disputed that at the time of the execution of the trust sought to be set aside there was a subsisting obligation, upon the part of the deceased, who executed the trust, in favor of the plaintiff, it is not necessary that the claim based upon that obligation disclose that there was an actual indebtedness to the plaintiff at the time of the execution of the trust.</p> <p>[4] Nonsuit—Motion for—Evidence—Inferences—Presumptions.— Upon a motion for a nonsuit every favorable inference fairly dedueible and every favorable presumption fairly arising from the evidence produced must be considered as evidence in favor of plaintiff, while all contradictory evidence must be disregarded.</p> <p>[5] Fraudulent Conveyances — Transfers in Consideration of Future Support—Intent—Presumption.—Where a person, having existing creditors, transfers all his property to another in consideration of the future support of the grantor, the law presumes the act to be done with fraudulent intent and to hinder and delay the creditors in enforcing their claims.</p> <p>[6] Id.—Action to Set Aside Trust—Bight of Creditor to Maintain.—Where a creditor of an estate has exhausted all means to procure the executor or administrator to bring an action to set aside, as a fraud upon creditors, a trust executed by the deceased in her lifetime, the creditor may bring such action.</p> <p>[7] Nonsuit—Grounds—Appeal.—No grounds other than those stated upon a motion for a nonsuit can be considered upon an appeal.</p>

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

<p>[1] Sales—Sale of 'Sand and Gravel by Weight—Construction of Contract.-—A contract for the sale of sand and gravel which states “that 2,400 pounds will be accepted as the average weight per cubic yard of all of the above mentioned materials, and that bills will be paid for on that basis, at the rate of 750 per ton of 2,000 pounds f. o. b. ears,” is a contract for purchase and sale by weight and not by measure, especially where the parties themselves so construe it by keeping an accurate account' of each and every ton delivered, but no account is kept of the number of cubic yards delivered.</p> <p>[2] Appeal — Sufficiency of Evidence to Support Proposed Findings — Becobd — Presumption.—Where, on appeal, error is predicated on the action of the trial court in refusing to sign certain findings proposed by the defendants, based upon the allegations of their answer and counterclaim, but the evidence taken at the trial is not before the appellate court, the record merely showing “that plaintiff and defendant introduced evidence on each and all of said allegations,” the appellate court is unable to determine whether or not it was incumbent upon the trial court to make the findings which the defendants proposed, and, therefore, must presume, in favor of the judgment of the trial court, that the evidence was insufficient to justify such findings.</p>

<p>[1] Promissory Note—Payments—Absence of Indorsements—Presumption.-—Possession of .a promissory note by the payee having no payments indorsed thereon raises a presumption that no part of the note has been paid.</p> <p>[2] Id.—Trust Deed—Action to Enjoin Sale—Issue of Payment— Conflict of Evidence—Finding—-Appeal.—Where in an action to enjoin a sale under a trust deed given to secure the payment of a promissory note there is a conflict in the evidence on the issue of payment, the finding of the trial court cannot be disturbed.</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 Industrial Accident Commission discharging an insurance carrier from further payments. Writ denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Mandamus to require dismissal of a justice’s court appeal. Granted.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Action for Services — Liability of Individual Defendants — Sufficiency of Evidence.—In this action brought by the plaintiff on his own behalf and also as the assignee of certain other parties to recover for services rendered and moneys advanced, the evidence was sufficient to' sustain the findings that the services and advancements were made to defendants prioi to the formation of an organization which defendants claimed was liable to the plaintiff.</p>

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

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

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

<p>[1] Appeal—Action to Set Aside Deed—Finding—Delivery—Evidence.—On an appeal from a judgment in an action to set aside a deed, the evidence must be considered on the theory that every reasonable inference deducible therefrom, and which is favorable to the court’s finding of delivery, is an established fact.</p> <p>[2] Deed—Delivery—Question of Fact.—Delivery or nondelivery is always a question of fact to be found from the surrounding circumstances of each transaction, and a finding that a deed has been delivered, if the finding is based upon an analysis of conflicting testimony or upon inferences reasonably deducible from the evidence, may not be questioned on appeal.</p> <p>[3] Id.—Manner_ of Delivery.—Delivery of a deed is an essential element of a-valid transfer of title td real estate and must take place during the lifetime of the grantor, for a deed cannot be made to perform the functions of a will; but the delivery need not be made to the grantee in person; it may -be delivered to a third person to be by him delivered to the grantee.</p> <p>[4] Id.—Delivery to Third Party.—Where the grantor, parting with all dominion and control over the deed, and intending it to take effect and pass the title as a present transfer, delivers it to a third person to be delivered to the grantee, and such person does deliver to the grantee, as authorized and directed by the grantor, there is a good delivery to the grantee, though the grantor be dead at the date of the last delivery.</p> <p>[5] Id. — Delivery After Death of Grantor — Acceptance by Grantee.—Where a deed is delivered to a third person with instructions to deliver it to the grantee upon the death of the grantor, the latter parting with all dominion over the instrument and reserving no right to recall it or to alter its provisions, such third person has authority, after the death of the grantor, to deliver the deed to the person named as grantee, and, as between the grantor and grantee, and those claiming under them, the rights of third persons not intervening, the grantee’s acceptance of the deed, though after the death of the grantor, constitutes a good delivery.</p> <p>[6] Id- — Delivery After Death — Presumption of Assent of Grantee During Lifetime of Grantor.—Where a grantor after signing and acknowledging a deed delivered it to Ms attorney with instructions to deliver it to the grantee, without reserving any right to recall it, and the attorney did not make delivery until after the death of the grantor, the grantee’s assent to the delivery during the lifetime of the grantor will be presumed from the acceptance after the grantor’s death and from the fact that it is wholly beneficial to the grantee.</p> <p>2. Delivery of deed as question of law or fact, note, Ann. Cas. 1914D, 108.</p>

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

<p>[1] Partnership — Single Transaction — Sharing of Loss. — An agreement to share the loss on a single transaction does not and cannot establish a partnership.</p> <p>[2] Principal and Agent—Relationship—Burden of Proof.—Agency is a fact, the burden of proving which rests upon the party affirming its existence.</p> <p>[3] Id. — Contract With Agent — Burden of Proof.—Where it is claimed that the contract was made with an agent and because thereof it is sought to charge the principal thereunder, the burden is upon the plaintiff to show that the agent had authority from the principal to enter into the contract, and this must be proved by evidence aliunde, and not by the declarations of the agents themselves.</p> <p>[4] Id.—Contract for Sale of Barley—Agency—Insufficiency of Evidence.—In this action to recover on a contract for the sale of barley, the evidence was insufficient to establish the relationship of principal and agent between the parties who signed the contract and the party whom they claimed they acted for as brokers in the transaction.</p> <p>[5] Id.—Agent and Undisclosed Principal—Liability—Election.— When one party to a contract deals with another as principal and afterward discovers that such party was in fact agent for an undisclosed principal, he may elect to hold either the agent, or, upon discovery, the principal, but he cannot hold both, the agent being liable because credit was originally extended to him in the belief that he was acting for himself and the undisclosed principal being liable on the theory that, having received the benefit of the contract made by his agent, he should assume its burdens.</p> <p>5. Commencing action or taking judgment against either an undisclosed principal or his agent as a bar to a subsequent action against the other, notes, 8 Ann. Cas. 1026; 17 Ann. Cas. 614; 21 L. R. A. (N, S.) 786.</p>

<p>[1] Landlord and Tenant—Recovery op Possession—Damages prom Sale of Stock and Retirement from Business—Evidence—Reversal of Judgment.—In an action by a lessor to secure judgment of ejectment against the lessee and to recover rents and damages for the alleged withholding of the demised premises, it is reversible error to award the defendant judgment on his affirmative pleadings for damages suffered from a sale of his stock of merchandise and compelled retirement from the premises due to plaintiff’s interference, where it is found that said sale and removal was made after a date when defendant was no longer lawfully in the possession of the premises because of Ms default in the payment of rent.</p> <p>[2] Id.—Trespass of Lessor—Wrongful Interference With Possession of Lessee—Pleading—Counterclaim.—In such an action a trespass alleged to have been committed by the lessor in wrongfully interfering with the possession of the lessee may be set up by way of counterclaim as being a cause of action connected with the transaction alleged by the plaintiff.</p> <p>[3] Id.—Deposit Covering Rentals at End of Term—Allowance to Lessee.—In such an action the defendant is entitled to have allowed as against the demand for rent his counterclaim for the money deposited to cover the rental for the last two months of the term, notwithstanding the provision of forfeiture, where the plaintiff’s damage is capable of calculation with reasonable definiteness.</p>

<p>[1] Promissory Note—Defense—Fraud—Pleading—Injury.—Where, in an action to recover money paid as indorser on a promissory note given for the purchase price of corporation stock, the defendant admits the execution of the note but attempts to avoid payment to the plaintiff on the ground that the note was procured by false representation, the answer should allege injury or detriment to the defendant from the fraud.</p> <p>[2] Id.—Appeal—Findings—Conflicting Evidence. — Where in such action all the issues of fraud tendered by defendant’s answer are resolved in favor of the plaintiff: on conflicting evidence, the findings cannot be disturbed on appeal.</p>

PROCEEDING in Mandamus to compel A. F. St. Sure, as Judge of the Superior Court of Alameda County, to direct a wife to answer questions propounded to her in the taking of her deposition. Writ issued. The facts are stated in the opinion of the court.

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

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

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

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

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

<p>[1] Municipal Ordinance—Regulation of Hours of Dancing—Constitutional Law.—A municipal ordinance providing that between the hours of 10 o’clock P. M. and 8 o’clock A. M. of the next succeeding day it shall be unlawful for any person, firm, or corporation in control of any room or hall, any portion of which or any window of which is within twenty-five feet of any portion of any building used as the residence of any person other than the person in control of such room or hall, to conduct or permit dancing or the performance of any dance-music in such room or hall, is unreasonable and oppressive, in that it unduly and unwarrantably interferes with personal rights and the right to the enjoyment and reasonable úse of property guaranteed by the fourteenth amendment of the constitution of the United States and section 1 of article I of the state constitution.</p> <p>1. Power of municipality to regulate dancing in public places, notes, Ann. Cas. 19150, 1110; L. R. A. 1917A, 1174.</p> <p>Dancing as proper subject for exercise of police power, note, L. R. A. 1-917E, 318.</p>

<p>[1] Guaranty—Payment op Loan to Company—Nature op Transaction—Findings.—In this action to recover on a bond guaranteeing the payment of a loan of money to be made by the plaintiff to a reclamation company at the instance and request of the defendant, the findings, when considered together, refuted the contention of the defendant that the loan was not made to' the company but to certain individuals for their personal use and benefit, although such individuals gave their joint and several promissory note therefor.</p> <p>[2] Id.—Attorney’s Fees — Finding — Appeal — Presumption prom Eecord.—On an appeal from a judgment in an action to recover on a guaranty bond, the finding as to the amount of the attorney’s fees, claimed to be excessive, cannot be reviewed, in the absence of a record showing the character and amount of work performed, and the finding must stand under the presumption that there was sufficient evidence to warrant it,</p>

<p>[1] Constitutional Law—Consultation With Counsel—Right of Person Accused of Crime.—The right of an. accused, confined in jail or other place of detention pending a trial of the charge against him, to have an opportunity to consult freely with his counsel without any third person, whose presence is objectionable to the accused, being present to hear what passes between the accused and his counsel, is one of the fundamental rights guaranteed by the American criminal law, which right no legislature or court can ignore or violate.</p> <p>[2] Habeas Corpus—Unlawful Restraint of Liberty. — A person may be said to be unlawfully restrained of his liberty, so as to be entitled to the writ of habeas corpus, when, though lawfully in custody, he is deprived of some right to which, even in his confinement, he is lawfully entitled under the constitution or laws, the deprivation whereof serves to make his imprisonment more onerous than the law allows, or curtails, to a greater extent than the law permits even in his confinement, his freedom to go when and where he likes.</p> <p>1. Right of prisoner to opportunity to consult with his attorney, notes, Ann. Cas. 1918D, 287; 44 L. R. A. (N. S.) 1083.</p> <p>[3] Id. — Ward of Juvenile Court — Private Consultation With Counsel.—Habeas corpus is the proper remedy to compel the superintendent of a juvenile home to permit one lawfully confined in such home under a valid commitment to engage in private conversation with her counsel without the hearing and nresence of such superintendent or any objectionable third person, in order that she may prepare her defense to a criminal charge.</p>

PROCEEDING on Habeas Corpus to secure the release of a minor committed to and detained in a county detention home. Writ discharged and petitioner remanded. The facts are identical with those in In re Hunter, ante, p. 285, [195 Pac. 76].

<p>Place of Trial — Motion for Change — Bias of Judge — Time for Filing Counter-affidavits.—Order affirmed on authority of Stuart v.' Everly, ante, p. 551, [195 Pao. 701].</p>

<p>Place of Trial — Motion for Change — Bias of Judge — Time for Filing Counter-affidavits.—Order affirmed on authority of Stuart v. Everly, ante, p. 551, [195 Pac. 701].</p>

<p>APPEAL from a judgment of the Superior Court of Riverside County. Hugh H. Craig, Judge. Affirmed.</p> <p>The facts are in all material respects the same as in Stevens v. Southern Pacific Land Co., ante, p. 596.</p>

<p>Public Lands—Restoration to Public Domain—Approval of Report of Smiley Commission.—Judgment affirmed on authority of Stevens v. Southern Pacific Land Co., ante, p. 596, [195 Pac. 712],</p>