Volume 53 — California Appellate Reports

<p>[2] Id.—City of Oakland—Corporals of Police Department—Order of Suspension—Reduction of Number Pending Appeal—Creation of Vacancy.—In view of sections 87 to 89 of article XIV of the charter of the city of Oakland, empowering the council to fix the number of officers of the police department according to its needs, the adoption of an ordinance reducing the number of corporals from fourteen to seven pending an. appeal by a corporal from an order of suspension, and the appointment of others to the seven positions, created a vacancy in the position held by such corporal, notwithstanding the reversal of the order of suspension by the Civil Service Commission.</p> <p>[3] Id.—Office Created by Ordinance—Right to Abolish.—An office or position created by municipal ordinance may be aboHshed by ordinance, in which case the incumbent ceases to be an officer, even though by reason of having been appointed for a definite term, or by special statutory provision, he cannot be lawfully removed except for cause after a full hearing.</p> <p>[4] Id.—Removal of Officers—Restrictive Provisions of Charters .—Applicability.—Provisions of city charters restricting the power of removal of officers and employees refer to removals for lapse of duty and the like, and'are not a restriction upon the power of the council to abolish as many of the places or offices once provided for as it chooses, provided such action is taken in good faith.</p>

<p>[1] Criminal Law—Time of Trial—Expiration of Sixty-day Period —When Insufficient Ground for Dismissal.—A defendant is not entitled to have pending criminal actions dismissed on the ground that they were not brought to trial within sixty days after the finding of the indictments, where the court was engaged practically all of such sixty-day period in the trial of other criminal cases, many of which had precedence over those against the defendant.</p>

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

<p>[1] Judgment—Action Against Trustees—Confession of Judgment —Meritorious Answer by One Defendant—Effect of.—Where, in an action against the trustees of an unincorporated association doing business under a declaration of trust, two of the trustees confessed judgment and the third trustee answered and alleged that there was no consideration for the note sued upon, or that it had failed to a considerable extent through the manipulations of the plaintiff and the other trustees, who were conniving with the plaintiff to wreck the association to the injury of the answering trustee, it was error to render judgment upon the confession without disposing of such answer or the hearing of any evidence, since the pleading stated a defense to the action.</p>

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

<p>[1] Divorce—Conflict of Evidence—Appeal.—Where in an action for divorce the evidence upon most of the issues is conflicting, the appellate court in considering the question as to whether the evidence is sufficient to sustain the findings is not permitted to weigh the testimony and determine as to where the preponderance lies.</p> <p>[2] Id.—Extreme Cruelty—Improper Conduct of Husband' With Corespondent.—Acts tending to show improper relations of a husband with a corespondent may cause a wife sufficient mental suffering to constitute extreme cruelty.</p> <p>[3] Id.—Extreme Cruelty—Nature of Acts and Conduct.—Acts and conduct of either spouse, unjustifiable under a reasonable rule of marital behavior, which in any case may cause great physical suffering or mental torture, are sufficient to sustain a charge of extreme cruelty, although conduct which might amount to cruelty in case of a refined and sensitive spouse might not amount to such in the case of a person of no refinement and of a coarse nature.</p> <p>Id Community Property—Presumption.—All property in the possession of either husband or wife is deemed to be the community estate of the parties, notwithstanding the declaration of section 16.3 of the Civil Code that all property owned by the husband before marriage with the rents, issues, and profits thereof is his separate property, but such presumption is disputable and may be overcome by evidence to the contrary.</p> <p>[5] Id.—Management of Corporation—'Salary and Expenses—Income from Stock Owned Before Marriage—'Separate Property of Husband.—Where a husband at the time of his marriage was a man of large means, which included cash, notes, real estate, and corporate stock, and where during his marriage he devoted his exclusive attention to the management of a corporation for which he received a large salary and an additional amount for expenses incurred in the conduct of the business, his income during his married life outside of such salary and expenses was the rents, issues, and profits of his separate property owned by him before his marriage, and therefore his separate property, notwithstanding some of the income was from stock owned by him in the corporation and the result of his skillful management thereof.</p> <p>[6] Id.—Family Support—Payment from Community Funds—Presumption.—In the absence of any evidence showing a different practice, the rule is that the community earnings of husband and wife are chargeable with the family support, and any amount expended for such purpose by either spouse is presumed to have been paid out of the community estate.</p> <p>4. Whether profits accruing during marriage in connection with property belonging to separate estate of either spouse are community property, note, 31 L. K. A. (N. S.) 1092.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and Frank English, Deputy Attorney-General, for Appellants.</p>

<p>[1] Criminal Law — Burglary — Theft of Revolver — Evidence — Identification—Number on Box—Secondary Proof.—In a prosecution for burglary involving the theft of a revolver, error, if any, in permitting the complaining witness, over objection that it was secondary evidence, to state the number which he had seen on the box which contained his revolver when he purchased it, which number was identical with the revolver produced on the trial, was cured where the witness subsequently testified that he had searched for the box itself and it could not be found.</p> <p>[2] Id.—Appeal—Correspondence of Number on Box With Contained Revolver—Point not Available for First Time.—On appeal from a judgment of conviction of burglary, involving the theft of a revolver, the objection that proof of the number on the box in which the revolver of the complaining witness was purchased was not evidence that the same number was on the revolver contained in the box, cannot be raised, where such objection was not made in the trial court.</p> <p>[3] A>.—Identification by Invoice.—Where in a prosecution for burglary involving the theft of a revolver the prosecuting witness had identified a revolver sold by the defendant after the burglary as the one stolen by the number on the box in which it was purchased by such witness, there was no error in permitting further identification by means of the invoice showing the sale.</p> <p>[4] Id.—Guilt of Defendant—Conviction of Individual Juror—Instruction.—An instruction in such prosecution that the jury could not convict if any individual juror was not convinced of appellant’s guilt beyond a reasonable doubt should have been given, but the failure to give it was not reversible error, since it was simply admonitory and cautionary of the sworn duty of the jurors.</p>

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

<p>[1] Attorney at Law—Disbarment—Proof.—A proceeding for the removal and disbarment of an attorney is gwosi-criminal in its nature; and an attorney should not be disbarred on testimony of a doubtful character, but the charge should be clearly sustained by convincing proof, which proof must satisfy a court with reasonable certainty, and any doubt arising should be resolved in favor of the accused.</p>

<p>[1] Criminal Law—Motion in Arrest op Judgment—Order not Appealable.—An order denying a motion in _arrest of judgment ia not appealable, and an appeal therefrom must be dismissed.</p> <p>[2] Id.—Appropriation op Monets bt Building Contractor—Embezzlement.—Where money is paid to a contractor under a building contract with a property owner and such contractor, instead of expending the money for labor and materials, appropriates it to other uses, he is not guilty of the crime of embezzlement defined in section 503 of the Penal Code.</p> <p>[3] Id.—Failure .to Pay Debts—Unconstitutional Legislation.— Any legislation that makes it a crime for one to use his own money for any purpose other than the payment of his debts is violative of section 15 of article I of the state constitution, which expressly inhibits imprisonment for debt except in the case of fraud.</p> <p>[4] Id.—Breach op Agreement to Pay Debts—Embezzlement op Own Money.—Where, under the terms of the contract between a property owner and a building contractor, the title to moneys paid to the latter are vested in him, he cannot be found guilty of embezzlement because he breached a provision in the contract whereby he agreed to use the moneys to pay certain of his bills.</p> <p>[5] Id. — Bight op Contract — Payments in Trust — Unconstitutional Legislation.—A statute that, in its practical operation, in effect declares that under any contract between the owner of property and a building contractor the payments that may be made to the latter shall not be absolutely his own to do with as he pleases, but shall be held by him in trust to pay debts due by him to certain preferred creditors, is unconstitutional in that it is an infringement upon the inalienable right of contract.</p> <p>[6] Id.—Bight op Contract—Control by Legislature.—The right to make contracts, common to all legitimate vocations, is a property right, the enjoyment of which is guaranteed by the constitution; and though the legislature may prescribe the form in which contracts shall be executed in order that they may be valid or binding, it cannot limit the right of the parties to incorporate into their contracts, otherwise valid, such terms as may be mutually satisfactory to them.</p> <p>[7] Id.—Liability op Bight op Contract to Police Begulation.— While the right of contract is subject to reasonable police regulation, the police power cannot be made a cloak under which to overthrow or disregard constitutional rights. It is only when the general welfare, the interests of the public as distinguished from those of individuals, will be protected that the right of contract may be limited by a general exercise of police power.</p> <p>[8] Id.—Misappropriations by Contractor—Unconstitutional Code Amendments.—The 1907 amendment of section 506 of the Penal ■Code, providing that “any contractor who appropriates money paid to him for any use or purpose, other than for that which he received it, is guilty of embezzlement,” is an unwarranted invasion of the rights guaranteed by our state and federal constitution; and the clause added to section 1919, providing that “the payment of laborers and materialmen for work performed or material furnished in the performance of any contract is hereby declared to be the use and purpose to which the contract price of such contract, or any part thereof, received by the contractor shall be applied,” is likewise void and wholly ineffective.</p> <p>3. Constitutionality of statute providing for imprisonment for breach of contract of labor or rental, notes, 14 Ann. Cas. 1060; 21 X>. R. A. (N. S.) 242. Constitutionality of imprisonment for debt, notes, 37 Am. St. Rep. 758; 34 L. R. A. 634; L. R. A. 1915B, 645.</p>

<p>[1] Husband and Wife—Divorce—’Settlement of Property Eights. Where the plaintiff in an action for divorce does not set forth that there is any property whatever belonging to the community, nor ask for any judgment or determination concerning it, a decree in such a ease, being for divorce simply, does not conclude either of the parties in respect to their claims otherwise existing to the community property.</p> <p>[2] Id.—Homestead to Husband—Separate Property.—The grant of a homestead by the United States government to the husband is a gift or donation, and, therefore, such homestead is the separate property of the husband.</p> <p>[3] Id.—Advances by Wife—Effect on Property of Husband.—The o fact that the wife has advanced money to the husband for the purpose of assisting him to procure a homestead from the United States government would not affect the title to or character of the property, but such money constitutes a loan to the husband, giving rise to a cause of action if not repaid.</p> <p>2. Partition of homestead in community property, notes, 56 L. E. A. 79; 4 L. E. A. (N. S.) 797.</p>

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

<p>[1] Vendor and Vendee—Void Contract for Sale of Land—Bight to Becover Payments—Statute of Limitations.—Where a contract for the sale of land is illegal and void, the vendees receive no consideration for the payments made by them, and they are entitled immediately to sue for and recover the payments made; and in the absence of any equitable consideration relieving them from the effect of the rule, the time within which they might bring an action for the recovery of such, payments cannot be postponed by them through delay in their repudiation of the purported contract.</p> <p>[2] Id.—Action to Becover Payments—Joint Judgment Unwarranted.—In an action by the vendees to recover payments made first to one of the vendors and then to the other, under a void contract for the sale of land, the plaintiffs are not entitled to a joint judgment against both defendants—the action not being upon the contract, but upon the implied obligation arising from that fact that there was no contract.</p> <p>[3] Pleading—Amendments to Answers—Sufficiency of Application—Appeal—Presumption.—Where the record on appeal does not contain a record of the proceedings had in the trial court, on the day of the trial, relating to the filing by the defendants of amendments to their answers, it will be presumed that the application for leave to amend was properly made, and for sufficient reasons was allowed.</p> <p>1. Betum of consideration on repudiation of void contract, note, Ann. Cas. 1914C, 898.</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] Contracts—Alleged Breach — Action to Recover Damages — Pleading.—In an action to recover damages for alleged breach of a contract to sell and deliver certain oil-well casing, where the complaint omits a specific proviso clause relating to delivery, the defendant may rest its defense upon a denial of such a contract, and is not required to set forth in its answer the full contract entered into with the plaintiff and then set forth the facts upon which it relies to excuse performance of the contract so pleaded.</p> <p>[2] Id.—Existence of Contract—Evidence—Finding.—In this action for damages for alleged breach of a contract to sell and deliver certain oil-well casing, the finding of the trial court that the contract pleaded was never entered into was amply supported by the evidence, and such finding was in itself sufficient to warrant the judgment in favor of the defendant.</p> <p>[3] Id.—Excuse foe Nonperformance—Evidence—Finding.—In this action for damages for alleged breach of a contract to sell and deliver certain oil-well easing, in which the defendant denied the execution of the contract pleaded in the complaint and set forth in hctec verba the full contract entered into between the parties, which contained the specific proviso: “We cannot guarantee deliveries, but have promise for shipment as near to the dates you mention as it is possible for the mill to ship. We will do all we possibly can to have the goods shipped,” and then set forth facts upon which it relied to excuse performance of the contract so pleaded, the evidence was sufficient to support the trial court’s finding as to the facts relied upon by the defendant to excuse performance of the contract, and that finding was sufficient to sustain the judgment in defendant’s favor.</p> <p>[4] Id .—Damages—Immaterial Findings.—In such action, no damages being recoverable, conflict in the findings in reference to the damage suffered and failure to find on the issue of special damage are alike immaterial.</p> <p>3. Eights of parties to contracts the performance of which is interfered with or prevented by war conditions or acts of government in prosecution of war, notes, Ann. Cas. 1918A, 14; Ann. Cas. 19180, 398; 3 A. L. E. 21; 9 A. L. E. 1509; 11 A. L. B. 1429; 15 A. L. B. 1512.</p>

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

<p>[1] Contracts—Purchase of Belinquishment of Homestead Claims —Liability of Successor of Purchaser—Evidence of Similar Transactions.—In an action to recover the balance of a sum orally agreed to be paid for the relinquishment by plaintiff and his assignors of certain homestead claims, where the corporation which took over all the properties of the lumber company that had agreed to pay said sum disclaimed all liability therefor, evidence that the lumber company had entered into a similar contract in writing with other settlers and that the corporation, after taking over the affairs of the lumber company, actually paid several of the settlers claiming under that agreement is properly admitted.</p> <p>[2] Id.—Issues—Circumstantial Evidence—Belevancy.—A fact in issue may he proved either by direct evidence of the -fact, or by proof of other facts or circumstances, from which the fact in issue may be inferred; and any evidence tending to show the probability or improbability of an issue of fact is relevant to such issue.</p> <p>[3] Id.—Failure to Produce Written Agreement—Motion to Be-open Case—Discretion of Trial Court.—During the presentation of defendants’ case, it having appeared that the contract between the lumber company and the corporation that succeeded to its properties was in writing, and that a copy of the contract was in existence, and the plaintiff having successfully objected to any testimony as to its contents unless the witness produced the writing, which was not done, the trial court did not. commit an abuse of discretion in denying defendants’ motion, made after the trial was concluded, but before decision, to reopen the case that they might introduce certain designated portions of the written agreement, particularly where the introduction of the portions of the contract designated without explanatory testimony would have accomplished little, and no satisfactory reason was given by the defendants for not producing the agreement when its contents were under discussion and the cause was on trial.</p> <p>[4] Id.—Assumption of Obligation by Successor—Findings—Evidence.—In this action to recover the balance of a sum orally agreed to be paid for the relinquishment by plaintiff and his assignors of certain homestead claims, the trial court was correct in reaching the conclusion that it was a part of the transaction between the lumber company, which had made the agreements, and the corporation that had taken over all its properties, including its rights in the claims in question, that the latter should, and that it did, assume the payment of the obligations of the lumber company to plaintiff and his assignors, and the court’s finding to that effect was sufficiently supported by the evidence.</p> <p>[5] lb.—Time for Perfecting Title—Silence of Agreement—Reasonable Time Implied.—The agreements between the lumber company and plaintiff and his assignors having provided that the latter should not be paid the balance of the sum agreed upon for their relinquishments until the lumber company should have perfected title to the property, but no time having been fixed in the agreement as to when the lumber company should perfect title to the claims and pay the remaining amounts due, the law annexed as an incident to the agreement that the title should be acquired within a reasonable time and that reasonable diligence should be used to secure title to the land, upon the completion of which the payment was contingent; and five years having elapsed between the making of such agreement and the bringing of action to recover the balance due, the trial court was justified in taking the view that a reasonable time for securing title had elapsed.</p>

<p>[1] Fraud—Sale op Hogs—Sufficiency of Pleading.—In an action on a promissory note given in payment of certain hogs, an affirmative defense to the effect that the hogs were not sound but were suffering from cholera and that plaintiff knew the condition of the hogs at the time of the sale, but that defendants did not, is fatally defective where there is no allegation that plaintiff made any false representation fraudulently or that he concealed the condition of tie hogs with intent to deceive.</p> <p>[2] Id.—Partial Failure of Consideration—Ero Tanto Defense— Pleading.—Where, as the result of fraud, the^e is a partial failure of consideration, and the amount of damage is definite and can be ascertained by calculation, the fraud may be pleaded in reduction of damages as a defense pro tanto; but, to avail himself of such defense, the defendant must show affirmatively a right of action in his favor arising out of the fraud.</p> <p>[3] Id.—Nature of Statement—Fraudulent Representation—Warranty.—A fraudulent representation is an antecedent statement made as an inducement to the contract, but is not a part or element of the contract; on the other hand, to constitute an express warranty the statement must be a part of the contract.</p> <p>[4] Id.—Warranty of Condition of Hogs—Insufficient Pleading. In an action on a promissory note given in payment of certain hogs, an allegation in the answer that, at the time of sale, plaintiff “represented to the defendants that said hogs so purchased were in good health and sound physical condition and free from cholera or other infectious or contagious diseases and were merchantable hogs,” is not sufficient to show a breach of an express warranty, there being no allegation that plaintiff “warranted” the soundness of the hogs, nor any equivalent averment, as, for example, an averment that the buyer understood that the alleged representation was to be a part of the contract of sale.</p> <p>[5] Id.—Joint Tort-feasors—Counterclaim.—In an action on a promissory note given in payment of certain hogs, the defendant may interpose a counterclaim based upon alleged false and fraudulent representations, made by plaintiff and another person, that the hogs were sound and free from disease, notwithstanding that other person is not a party plaintiff to the action.</p> <p>[6] Id.—Proof of Scienter—Erroneous Instruction.—In an action on a promissory note given in payment of certain hogs, an instruction charging the jury that if they believe from a fair preponderance of the evidence that the payee of the note represented to defendants that the hogs were sound and free from disease, that defendants believed such representation and relied thereon, and that, the hogs, when sold, were not sound, then they should find that the payee of the note had been guilty of fraud and deception and had received the note from defendants under misrepresentation, is erroneous, in that it does not require the jury to find that the payee of the note had knowledge of its falsity, or what in law is equivalent to proof of the scienter.</p> <p>[7] Promissory Note—Indorsement as Security for Pre-existing Debt—Status of Indorsee.—An indorsee of a note merely as collateral security for a pre-existing debt owing to him by Ms indorser is a holder for mine and in the usual course of business, and the note, in the hands of such indorsee, if, at the date of indorsement, it is taken without notice of any infirmity in the instrument, is not subject to existing equities between the original parties.</p> <p>[8] Id.—Indorsement as Indemnity—Transfer for Value and in Due Course.—The indorsee of a note, indorsed to indemnify Mm against future loss on account of an existing liability to a third person, is a transferee for value and in due course, the same as if the note had been indorsed to secure a pre-existing indebtedness due to him from his indorser.</p> <p>[9] Id.—Indorsement as Indemnity Against Possible Future Loss —Lien of Indorsee.—A person to whom a promissory note has been indorsed as collateral to indemnify him against possible future loss arising out of an existing liability incurred for and on behalf of his indorser has a lien on the note to the extent of any loss that he may sustain by reason of such liability.</p> <p>[10] Id.—Notice of Infirmity Before Payment in Full—When Code Provision Applicable.—The provision of section 3135 of the Civil Code that “where the transferee receives notice of any infirmity in the instrument . . . before he has paid the full amount agreed to be paid therefor, he will be deemed a holder in due course only to the extent of the amount theretofore paid by him,” is applicable only where the obligation incurred by the holder of the note is such that, on discovering the infirmity in the instrument, he is relieved from all further legal obligation to make any further payment, as, for example, where the note has been transferred to him in consideration of his promise to make future payments to Ms transferor.</p>

<p>PROCEEDING on Habeas Corpus to secure release of petitioner on the ground of lack of jurisdiction.</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] Divorce—Material Allegations—Insufficient Findings.—In an action for divorce, findings “that all the material allegations of plaintiff’s complaint are true’’ and “that all the material allegations of the answer of defendant except as herein otherwise found are untrue’’ are clearly insufficient as findings of fact and must be dismissed from consideration on appeal in determining the question whether the findings are sufficient to support the interlocutory decree.</p> <p>[2] Id.—Condonation—Evidence—Pleading—Findings.—In an action for divorce, if the evidence shows condonation, it is the duty of the court to find to that effect, even though condonation is not pleaded as a specific defense.</p> <p>[3] Id.—Admissions in Answer—Plea of Justification—Findings. Where the defendant’s answer expressly admits facts sufficient to constitute gross cruelty unless justified by the plaintiff’s conduct, no findings as to those admitted facts are required, and general findings to the effect that the defendant’s acts and conduct were without any just cause or reason or provocation, without finding specially as to the facts alleged in justification, are sufficient on the plea of justification.</p> <p>[4] Id.—Fesidence—-Sufficiency of Findings.—In an action for divorce, a finding “that plaintiff and defendant now are and for more than one year last past, preceding the commencement of this action, have been residents” of the county, is sufficient.</p> <p>[5] Id.—Attorney’s Fees—Allowance for Past Services.—In an action for divorce, the court is not authorized to allow attorney’s fees for past services.</p> <p>5. Liability of husband for counsel fees incurred by wife, notes, 15 Ann. Cas. 21; Ann. Cas. 1917A, 689, 702.</p>

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

<p>[1] State • Medical Practice Act—Action to Compel Approval op School—Quality op Course op Instruction—Competent Evidence.—In an action, brought in accordance with section 10% of the State Medical Practice Act, to compel the board of medical examiners to approve the plaintiff as a school whose graduates are entitled to examination before the board for physician and surgeon certificates, and to admit the graduates thereof to examination for those certificates, evidence of the quality of the course of instruction given by plaintiff to its students, and of defects in the equipment and methods of instruction in plaintiff’s school, is competent for the purpose of determining whether or not plaintiff is complying with the requirements of section 10 of the said act, and such evidence should be received.</p> <p>[2] Findings—Power op Appellate Court to Make or Change— Consideration op Rejected Evidence.—Where evidence proffered by the defendant is admitted in form but rejected in fact, and ■ the findings of fact and judgment are in favor of the plaintiff, the appellate court, upon determining that such evidence was erroneously rejected, cannot give consideration to such evidence and direct final judgment in accordance therewith. Courts of appeal are not authorized to make or change findings of 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>The facts are stated in the opinion of the court.</p>

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

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

<p>APPLICATION for a Writ of Prohibition to prevent the Superior Court of Los Angeles County, and Frederick W. Houser, Judge thereof, from dismissing a certain criminal action.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law—Commission op Lewd and Lascivious Acts— Credibility op Witnesses — Suppiciency op Evidence. — In a criminal action the credibility of witnesses is for the jury in the first instance and for the court on motion for a new trial; and in this prosecution for the commission of lewd and lascivious conduct upon the body of a girl of the age of about eight and a half years the evidence produced by the prosecution, and which was believed by the jury, was amply sufficient to convict.</p> <p>[2] Id.—Bight to Ask Leading Questions.—In this prosecution for the commission of lewd and lascivious conduct upon the body of a girl of the age of about eight and a half years, in view of her age and her embarrassment in relating the sordid story in court, the district attorney was properly permitted to ask leading questions.</p> <p>[3] Id.—Scene, op Crime—Evidence.—In such a prosecution, it is not error to permit the prosecuting witness to testify that a few days before the trial she pointed out to another witness the place where the crime was committed, and to permit the second witness to testify as to the place she so designated, where the purpose of such testimony is to lay "the foundation for the introduction' of measurements made by this second witness of the distance from the place where a fire had been built to the scene of the crime.</p>

<p>[1] Municipal Corporations — Extension op Municipal Railway System'—Acts Done in Proprietary Capacity.—A municipality, in proposing to construct an extension of a street railway system owned and operated by it, and in threatening to proceed with such extension with the imminent consequence of the destruction of the manholes which constitute the means of access to the underground conduits of a telegraph corporation, unless the latter moved such manholes, is acting in a proprietary and not in a governmental capacity.</p> <p>[2] Id. — Use of Street by Telegraph Corporation — Nature of Property Eight—Destruction by City—Constitutional Liability.-—-The acceptance and use by the telegraph corporation of the portion of the street wherein its conduits and manholes were placed, under the authority of the Post Eoads Act (enacted by Congress on July 24, 1866) and under the provisions of section 536 of the Civil Code, constituted a valuable and vested right, and the property therein a valuable property, which the municipality, in the purely proprietary activity of constructing and maintaining a municipal railway system upon and along said street, could not interfere with or destroy without being subjected to the same rightful demand for compensation which a private corporation engaging in a like enterprise would be required to respond to under the law of eminent domain.</p> <p>[3] Id.—Compulsory Eemoval of Manholes—Liability of City for Eeasonable Cost.—The action of the municipality in entering upon the proprietary enterprise of constructing, operating, and extending a municipal railway system upon and along the street where the conduits and manholes of the telegraph corporation were placed having rendered their removal and replacement imperative, and the telegraph corporation having removed and replaced the same under protest, the municipality was bound to pay the reasonable cost of such work.</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 and from an order denying a new trial. Michael J. Roche, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Partnership — Accounting — Pleading — Oral Modification op Written Lease—Absence op Prejudicial Error.—In this action for a partnership accounting and dissolution, in which the defendant, by way of answer and cross-complaint, admitted the existence of the partnership, denied the commission of the breaches charged against him, and alleged a series of wrongful acts by the plaintiffs, both alleged causes of action having arisen out of a transaction whereby the plaintiffs, by a written instrument, leased to defendant a large tract of land to be used by the latter in raising turkeys, the plaintiffs could not have been injured by the action of the trial court in admitting evidence concerning an alleged oral understanding whereby the defendant was. limited to but a small portion of the tract, even though such oral understanding , was invalid as being a modification of a written instrument.</p> <p>[2] Id.—Eight to Eeasonable Quantity op Land—Construction op Lease by Parties.'—The defendant having been entitled to at least a reasonable quantity of land, the fact that the plaintiffs after entering into the written lease put him in the peaceable possession of the part thereof upon which stood the buildings amounted to a determination by them that, under his lease, the defendant was entitled to that portion of the land and to a reasonable quantity thereabouts.</p> <p>[3] Id. — Absence op Special Pleading — Error not Reversible. — Where no actual harm could have resulted to the plaintiffs by reason of the failure of the defendant to plead in his answer and cross-complaint the oral understanding between him and the plaintiffs as to the portion of the tract which he was to occupy, a matter upon which the written lease was silent, but which was fully covered by the evidence admitted, such failure, under section 4% of article IV of the constitution, is not a sufficient ground upon ' which to predicate a reversal of the judgment in defendant’s favor.</p>

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

<p>[1] Divorce—Extreme • Cruelty—Condonation—Evidence—Findings. In this action for divorce instituted by the husband on the ground of cruelty, in which the wife interposed a plea of condonation, the evidence upon the matter of condonation having been in substantial conflict, the appellate court would not disturb the finding and judgment of the trial court in favor of the husband.</p> <p>[2] Id.—Character of Property—Award to Defendant—Lack of Prejudice.—In such action, the defendant could not have been injuriously affected by the judgment and decree of the trial court that certain property was the community property of both spouses, and not her separate property, where the decree, although it awarded the plaintiff a divorce on the ground of the defendant’s extreme cruelty, it awarded the latter all the community property.</p>

<p>APPLICATION for a Writ of Habeas Corpus to secure release from the state prison.</p> <p>The facts are stated in the opinion of the court.</p>

<p>PROCEEDING on Habeas Corpus to secure the release of petitioner after conviction under municipal prohibition ordinance.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Like Insurance—Death oe Insured—Circumstantial Evidence. In an action on a policy of life insurance, where the deceased disappeared and no trace of him or of his body was found thereafter, evidence that he was last seen on a certain date near where he was accustomed to going in bathing, and that his clothes were later found in one of the bath-houses, evidence of his conduct toward his wife during their married life, showing that he was very affectionate and very attentive, evidence of his financial condition, showing him to have been possessed of some wealth and a substantial income, and other evidence, such as his lodge affiliations, tending to show the improbability of absence due to any cause other than death, is properly admitted to prove the fact and exact date of death.</p> <p>1. Facts sufficient to raise presumption of death from absence for less than seven years, note, Ann. Cas. 1916B, 67.</p> <p>[2] Id.—Admission of Proofs of Loss—Lack of Formal Euling—■ Waiver of Objection.—In such action, where the proofs of loss presented by the beneficiary were identified by her and it was stipulated that they were received by the defendant, but the court’s ruling on their admission in evidence was suspended oh the request of the attorney for the defendant, and no valid objection appearing to have been made to their admission, the papers being free from any objection if one had been made, the defendant will not be heard on appeal to complain that the trial court omitted to make a formal ruling on the admission of the proofs of loss.</p>

<p>[1] Negligence—Death Through Operation of Elevator—Possession and Control of Premises—Evidence.—In this action for damages for the death of plaintiff’s intestate, who was crushed to death by an automatic elevator in the apartment house in which he was a tenant, from the facts admitted and proven the jury were entitled to draw the inference that the actual possession and actual control of said apartment house had been taken over by the defendant on or about the date when he became the purchaser thereof at the foreclosure sale to satisfy the mortgage theretofore held by him, and that he was actually thereafter and up to. and including the date of said casualty in the full possession and control of said apartment house, notwithstanding the year of redemption had not expired and the receiver who was appointed to take possession and control of the property pendente lite was not discharged until some time after the accident occurred.</p> <p>[2] Id.—Legal Eight to Possession Immaterial.—In such an action, the question is not who was legally entitled to the possession and control of the premises in question, but who was actually in the possession and control of the same so as to be held responsible for negligence in the maintenance, operation, and inspection of the elevator therein, the defective manipulation of which caused the fatality to the decedent.</p> <p>[3] Id.—Actual Control and Possession of Elevator—Admissions Against Interest.—The act of the defendant in such action in taking out a policy of insurance indemnifying him against the ' claims of persons injured or killed in the operation of the elevator, his statements as to the ownership of the property made in the course of procuring such insurance, and his acts immediately after the accident in causing the elevator to be repaired, constituted acts and statements against interest which were admissible in evidence for the purpose of proving that he was in actual possession and control of the appliance which caused the casualty on which the action was based.</p> <p>[4] Id.—Action for Damages—Issues—Failure to Limit Evidence —Lack of Prejudice.—Practically the whole case having turned upon the question of the defendant’s possession of the premises at the time the accident occurred, the failure of the court to limit such evidence as to the insurance policy and as to the subsequent repairs upon the elevator to the issue of the defendant’s possession of the premises at the time the accident occurred upon his request made at the time of the introduction of such, evidence was not sufficiently prejudicial to justify a reversal of the case.</p>

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

<p>[1] Contracts—Purchase or Goods—Pabol Statements by Agent —Writing not Varied.—Where a writing relating to the purchase of certain goods is a complete contract in itself, it supersedes any former oral statements by the agent of the seller, if any were made, and cannot be varied by them.</p> <p>[2] Id.—Signature by Agent—Scope op Authority—Liability op Principal.—The fact that an agent signed his name to such contract as “purchaser” did not relieve his principal from liability, where such agent was acting within the scope of his authority and was in fact exercising that authority in affixing his signature.</p> <p>1. General rule that parol evidence not admissible to vary, add to, or alter a written instrument, note, 17 L. R, A, §70.</p> <p>[3] Id.—Goods Sold and Delivered — Evidence — Findings — Judgment.—In this action for goods, wares, and merchandise sold and delivered, which plaintiff agreed to take back but defendant did not redeliver, 'the proof was ample as to the execution of the written contract for the sale of the goods to defendant, the delivery of the goods thereunder, the demand for payment, and that the defendant had failed and refused to pay; and the findings that allegations of these facts were true being sufficient to support the judgment in favor of plaintiff, the lack of findings upon other and immaterial facts is not ground for a reversal.</p> <p>[4] Id.—Interest.—In such action, the amount owing from the defendant to the plaintiff having been ascertainable by computation, and the same thing having been true with reference to the amount owing from the plaintiff to the defendant, the plaintiff was entitled to interest on the unpaid balance due him from the date of the execution of the contract of sale.</p> <p>[5] lb.—Separate Oral Agreement by Agent—Bight oe Principal to Dispute Authority.—In an action for goods, wares, and merchandise sold and delivered, where the defendant seeks affirmative relief by way of counterclaim, his claim being based upon an alleged oral agreement entirely separate from the one alleged in the plaintiff’s complaint, the plaintiff has a right to dispute the authority of his agent to make such alleged oral agreement.</p> <p>[6] Id.-—Arrangement Outside Agency.—A verbal arrangement made by a salesman, outside the scope of his agency, is not his principal’s contract.</p>

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

<p>[1] Vendor and Vendee — Repudiation of Contract by Vendee — Right of Possession.—A vendee in possession of land cannot repudiate Ms contract of purchase and at the same time hold the possession under and by virtue of it. A repudiated contract is no protection to an intending vendee in possession as against the legal title.</p> <p>[2] Id.—Ejectment by Owner of Legal Title—Defense—Equity. When the plaintiff in an action of ejectment is the owner of the legal title to the property, and the defendant relies upon an equitable defense, the latter must, in order to prevent a recovery, make out a complete equitable title and the right of possession thereunder.</p> <p>[3] Id.—Equity—Offer of Vendee to Perform.—In an action of ejectment by the owner of the legal title, the defendant cannot be heard to assert an alleged equity arising out of a contract of purchase until he shall have offered to perform Ms part of such contract.</p> <p>2. What title or' interest will support an action in ejectment, notes, 18 L. R. A. 781 j 46 L. R. A. (N. S.) 508.</p> <p>[4] Id.—Ownership of Plaintiff—Estoppel.—The defendant in such action having entered into possession of the property, claiming under plaintiff and in subordination to his title, is estopped from questioning plaintiff’s ownership of the property.</p> <p>[5] Id.—Improper Joinder of Actions—Appeal—Waiver.—The objection that plaintiff improperly joined a cause of action for the recovery of real property with one for the recovery of personalty may not be urged for the first time upon appeal.</p> <p>[6] Appeal—Special Order After Judgment—Review of.—An order denying a motion to recall a writ of execution, being a special order made after judgment, is an appealable order; therefore the objection that such motion was improperly denied may not be considered on an appeal from the judgment.</p> <p>4. Estoppel of vendee in possession to question vendor’s title, notes, Ann. Cas. 1912C, 404; 21 L. R. A. (N. S.) 399.</p>

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

<p>[1] Negligence—Death of Married Man—Action for Damages— Evidence—Family Delations—Support.—In an action for damages for the death of a married man due to the negligent operation of an auto-stage in which he was riding as a passenger, it is proper to permit the widow of the deceased to answer questions the purpose of which is to show that the family were living happily together and that they were supported by the wages of the deceased.</p> <p>[2] Id.—Use of Earnings — Necessity for Support and Maintenance of Family—Pleading—Admissions.—Where, in such an action, the complaint alleges and the answer admits that at the time of his death the deceased “was, and for a long time prior thereto had been, using his earnings in the support and maintenance of his wife, his children and himself,” this implies that they were necessary for that purpose and that the family were dependent upon them.</p> <p>[3] Id.-—-Superfluous Questions—Lack of Prejudice.—It could not be prejudicial to ask simply an unnecessary and superfluous question, as to inquire of a witness concerning a fact that was admitted by the pleadings.</p> <p>[4] Id.—Error—Injury—Burden of Proof.—Injury is no longer presumed from error, but the appellant must affirmatively show that the error upon which he relies was prejudicial.</p> <p>[5] lb.—Error in Admission of Evidence—Appeal—Decord—Assumption.—Where the record on appeal from a judgment in favor of the plaintiff in an action for damages for the death of plaintiff’s intestate does not contain the evidence received at the trial or the instructions of the court, it must be assumed in favor of the judgment that the evidence showed without any conflict that ■plaintiff was entitled to recover the full amount of the verdict and that the defendant proposed, and the court gave, an instruction to the jury to disregard the particular evidence, the admission of which defendant claimed constituted error.</p> <p>[6] Id.—Death op Husband—Measure op Damages.—In an action for damages on behalf of a widow and children for an injury causing the death of the husband and father, the pecuniary loss suffered because of the death is the measure of damages. (Opinion of supreme court on denial of hearing.)</p> <p>[7] Id. — Evidence — Dependence op Widow and Children Immaterial.—In such an action, evidence is not admissible to show that the widow and children were dependent upon the decedent for support, their loss being the same regardless of their dependence upon him for support. (Opinion of supreme court on denial of hearing.)</p> <p>[8] Id.—Evidence—Earning Ability op Husband—Dependence op Wipe and Children.—In such an action, evidence of the ability of the deceased to earn money may be admissible to show the quality of the support he should give the wife and minor children, but evidence that they have no means of their own and that they are dependent upon him for their support is not admissible. (Opinion of supreme court on denial of hearing.)</p> <p>6. Measure of damages for death of husband or parent, notes, 3 Ann. Cas. 103; 16 Ann. Cas. 932.</p>

<p>[1] Street Daw—Change op Grades—Improvement Under Act op 1911.—A city council, after adopting an ordinance under the so-called “Change of Grade Act” of 1909 (Stats. 1909, p. 1068), purporting to change certain street grades, may select the Improvement Act of 1911 as the act under which improvment work on said streets, the grades of which have thus been changed of record, shall be done.</p> <p>[2] Id.—Change op Grade Ordinance—Title—Subjects Embraced. An ordinance of the city of Oakland, under which the change of grade of a main thoroughfare is accomplished, does not embrace more than one subject in its title, contrary to the provisions of section 46, subdivision 4, of the charter, and is not void merely because several streets in the same neighborhood are affected by the change, or that in the course of making the change it becomes necessary incidentally to give the official name of one of said streets other than said main thoroughfare.</p> <p>[3] Ed.—Noncollusive Affidavit—Oakland Charter Provision not Applicable.—The provision of section 126 of article XIX of the Oakland charter to the effect that a contractor’s bid must be accompanied by his affidavit that his hid is genuine and not sham or collusive, is not applicable to street improvements, where the cost and expense is to he paid by special assessment on private property and the council has adopted the Improvement Act of 1911 as the general law under which the improvement is to be made.</p> <p>[4] Id.-—Failure to File Noncollusive Affidavit—Waiver of Ob jection by Property Owner.—Where street improvement is undertaken under the Improvement Act of 1911, the objection that the contractor’s bid was not accompanied by a noncollusive affidavit is such an objection as is waived by the property owner through his failure to avail himself of the provisions of section 16 of said act by filing with the clerk of the council a notice in writing stating in what respect the acts and proceedings thus far taken are irregular, defective, erroneous, or faulty.</p> <p>[5] Id.—Change of Grade—Compensation for Damage—Eemedy of Property Owners.—Where a municipality, after establishing the official grade of a street and without instituting any proceeding to ascertain and provide for the payment of the damage caused by the raising or lowering of the level of the street by the change of grade, proceeds to improve the street under the Street Improvement Act of 1911, and to reduce it to the official grade, the remedy of property owners is not to enjoin the collection of the assessment levied to pay the cost of the work, but to enjoin the performance of the contract prior to the work having been done until damages are paid, in case the result of such work would cause damage to such abutting owners. (Opinion of supreme court on denial of hearing.)</p>

<p>[1] Negligence—Conclusion of Trial Judge—Discretion—Appeal. The conclusion of the trial judge, as in this action for damages for personal injuries sustained by plaintiff as the result of having been struck by an automobile driven by the defendant, that the facts of the 'case do not amount to negligence as a matter of law, will not be disturbed upon appeal in the absence of a clear showing of abuse of discretion.</p> <p>[2] Id.—Last Clear Chance—Facts of Case.—In such an action, the defendant cannot be held responsible for the injuries sustained by the plaintiff upon the ground that he had a last clear chance to avoid injuring plaintiff, but neglected to take advantage of it, where the facts of the ease show that there was no time up to the moment before the injury when plaintiff was in an obvious position of peril from which he could not extricate himself, and it is apparent that had he not changed his mind twice as to the side of the road he would find refuge from the oncoming automobile he would have been out of danger, and his final decision to cross from the south to the north side of the highway was taken too late to give the defendant a clear chance to avoid striking him.</p>

<p>[1] Statute of Frauds—Contract Extending Over Term of Yeabs —Liability for Separate Items—Enforcement of.—In certain kinds of contract, as where a series of things is to be done, occupying in the whole more than one year, but each item as it is performed drawing with it a separate liability therefor, the statute of frauds does not prevent an action upon such items as are performed within the year to recover the stipulated compensation.</p> <p>[2] Id.—Performance of Oral Agreement—Equity—Estoppel.— Where it is clearly and unequivocally made to appear that there has been a performance of an oral agreement required by the statute to be in writing, under such circumstances as to make it inequitable to allow the party receiving the benefit thereof to invoke the statute, he is estopped from doing so.</p>

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

<p>[1] Dismissal—Trial—Judgment.—After the plaintiff’s evidence is in and the defendant has submitted the case, and the court has stated what his ruling will be on the evidence, it is too late for the plaintiff to dismiss his action; and notwithstanding an attempted dismissal by the plaintiff at that time, the trial court has the power to render a judgment in favor of the defendant.</p> <p>[2] Contracts — Agreement to Compensate by Will — Breach — Quantum Meruit.—In an action against the administratrix of an estate to recover for care, medical services, and board and lodging furnished to the deceased by plaintiff with the understanding that they should be compensated for by will, where the plaintiff is not entitled to recover upon the theory of a breach of an agreement to make provision by will, the plaintiff is entitled to recover upon quantum, meruit.</p>

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

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

<p>[1] Negligence—Theory of Killing—Circumstantial Evidence— Sufficiency of.—In an action for damages for death, where the evidence in support of plaintiff’s theory of the ease is circumstantial, the plaintiff’s ease is not sufficient merely because the circumstances proved are consistent with the plaintiff’s theory, but the circumstances must show, when weighed with the evidence opposed to them, that the circumstances relied on have more convincing force substantiating the theory contended for, and from which theory it results that the greater probability is in favor of the party upon whom the burden rests.</p> <p>[2] Id.—Presumption of Negligence—Prejudicial Erroneous Instruction.—In this action for damages for the death of plaintiff’s intestate, the court’s instruction, after assembling certain facts, that “from such circumstances, if they have been proved, and in the absence of any explanation from the defendant the law presumes that the defendant was negligent, and the burden is then east upon the defendant,” etc., was erroneous, and, as there was no eye-witness to the accident which caused the death of the decedent, the instruction complained of must have been highly prejudicial.</p>

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

<p>[1] Negligence—Duty of Owner to Licensee.—Where one enters the premises of another as a mere licensee he does so at his own peril and subject to the ordinary risks which attach to such premises, and the owner owes him no duty except to abstain from willfully and wantonly injuring him.</p> <p>[2] Id.—Liability of Owner to Invitee.—Where one enters premises as an invitee the owners are liable to him for their mere failure to use ordinary care for his safety.</p> <p>[3] Id.—Use of Common Entrance—Duty of Tenant to Exercise Proper Care.—Where a person enters the basement of a building by means of an entrance used in common by a tenant and a subtenant for the purpose of transacting business with such subtenant, he is" an invitee of both the tenant and the subtenant, and such tenants owe him the duty to exercise proper care for his safety.</p> <p>[4] Id.—Portions of Building Used in Common—Duty óf Landlord to Visitors.—When a building is let in flats or offices the hallways, entrances, and stairways not being demised to the tenants hut used in common by all, the landlord owes a duty to those visiting the premises to use ordinary care to avoid injuring them.</p> <p>1. Duty of owner of premises to protect licensee against hidden dangers, notes, 1 Ann. Cas. 209; 17 L. E-, A. (N. S.) 916.</p>

<p>[1] Trade Acceptances—Signature by Wife—Consideration—Extension of Time of Payment.—Where goods were sold to a husband upon an open account which had become due, subject only to the vendor’s promise that he would take acceptances therefor signed by the husband and wife payable at such future dates as should be agreed upon, the waiver by the vendor of his right to demand immediate payment of the account constituted a sufficient consideration for the signature of the wife to such acceptances.</p> <p>[2] Id.—Daws Governing—Identity of Drawer.—Trade acceptances are governed by the state laws relating to ordinary drafts or bills of exchange, and are within the rule that they may be signed by the acceptor before the name of the drawer is filled in, and the drawer may be anyone whom the acceptor may accept as such.</p> <p>[3] lb.—Signature of—Misapprehension of Legal Effect—Liability.—One who signs a trade acceptance, either as an acceptor or as a guarantor, is not excused from liability thereon by reason of misapprehensions concerning the facts or concerning the legal effeet of the signature knowingly placed upon such acceptance, in the absence of proof of incompetence or fraud.</p> <p>3. Eraud or mistake regarding legal effect of wife’s signing contract with husband, note, L, R. A. 1918A, 496.</p>

<p>[1] Evidence—Opinion of Witness—Weight of as Against Facts. The statement of a mere opinion or conclusion by a witness in his direct examination can have no weight as against facts stated by him in his cross-examination which are necessarily opposed to such opinion.</p> <p>[2] Id.—Conflict Between Direct and Cross Examination—Inferences—Nonsuit.—An irreconcilable conflict between the direct examination and the cross-examination of a witness is not of itself sufficient to justify a nonsuit; but on such motion the evidence must be taken most strongly against the defendant, and if an inference could reasonably arise therefrom in favor of plaintiff’s contention, the motion must be denied.</p> <p>[3] Appeal—Law of Case—New Trial.-—Where the appellate court has in its opinion stated a rule or principle of law necessary to a decision, that rule or principle must be adhered to and observed throughout the subsequent progress of the case, both in the lower court and upon subsequent appeal, although it may be believed upon further consideration that the former decision in that particular is erroneous.</p> <p>[4] Id.—New Trial—Effect of Additional Favorable Evidence.— Where in a decision by the appellate court it is held that the evidence against the defendant was sufficient to be submitted to the jury and the judgment is reversed, upon the new trial, if substantially the same evidence is introduced against the defendant, the decision by the appellate court is controlling, notwithstanding additional evidence is received that might be favorable to said defendant.</p> <p>[5] Employer and Employee—Special Employment—Liability for Negligence.—A person may be in the general employment of one and in the special employment of another, so as to make the latter responsible for the negligence of such employee.</p> <p>[6] Pleading—Admitted Facts—Proof.—When a fact is admitted by the pleadings it is not necessary to prove it.</p>

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

<p>[1] Municipal 'Corporations — Annexation of Territory — Sufficiency of Description.—If the description of the district proposed to be annexed to the municipality, as contained in the resolution of. the board of trustees, is sufficiently definite to answer for a private grant or conveyance, it is sufficient for annexation purposes.</p> <p>[2] Id.—Evidence—Surveys of Public Lands—Inclusion of Private Property—Judicial Notice.—Under section 1875 of the Code, of Civil Procedure, the eoiirts will take judicial notice of government surveys of public lands as public and official acts of the executive department of the United States; and the fact that the section lines or quarter-section lines exhibited on a general plat of a township extending into or across lands granted by the government to a private owner does not cause them to lose their official character, and the map does not become, as to that part of it, a map merely of private lands, and hence not one of the records recognized under said section of the code.</p> <p>[3] Id.—Action to Enjoin Annexation Election—Sufficiency of Description — Evidence.—In this action by property owners within certain territory proposed to be annexed by a municipality to enjoin said city from holding an election to decide the question of annexation, on the ground that the proceedings were invalid because of alleged uncertainty in the boundaries described in the resolution of the board of trustees, the court was justified in looking to the township map introduced by the defendants, such map having been indorsed by the surveyor-general showing that it was strictly conformable to field-notes of the survey thereof on file in his office, and having been filed in the local United States land office in 1871, and in taking judicial notice of all the boundaries officially expressed thereon, notwithstanding part of the section lines and quarter-section lines extended into and across lands held in private ownership.</p> <p>[4] Id. — Location of Termini and Direction of Call-—Disregard of Curves at Street Intersections.—Where the point of commencement of a call in a description, which runs in a given direction “in a straight line along the westerly prolongation of the southerly line” of a named street, is plainly indicated, and the terminus of the line is indicated as being in a designated section line at the east of the starting point, the curves in said street at intersecting street corners, such corners being turned in the form of arcs of a circle in order to allow room for a small public park located at the center of the intersection, may be disregarded without creating any ambiguity or uncertainty as to what was intended to be indicated by the call</p>

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

<p>[1] Workmen’s Compensation Act—Review op Evidence—Authority op Appellate Court.—The authority of the appellate court in making • a review of the evidence heard before the Industrial Accident Commission upon which an adjustment of a claim is made is limited to determining whether there is any evidence to be found in the record which will support the findings as made; in other words, an award will be annulled only where there is no evidence to support it.</p> <p>[2] Id.—Casual Employment—Evidence—Finding.—Where there is a conflict as to the length of time the work which the applicant for compensation was engaged to do might require, and the testimony of the applicant, who was qualified by reason of his occupation and experience to make such estimate, was that the work would have taken him three weeks or a month, the evidence was sufficient to justify the finding of the commission that the employment of claimant was not a casual one, but was one which reasonably required work extending over a period of more than ten days.</p>

<p>[1] Parent and Child—Admittance op Minor Sons into Family of Stepfather—-Evidence.—In an action by a father to recover the reasonable value of the services of his minor sons, the court is not bound by the conclusions of witnesses that the defendant received the boys into his family, but it devolves upon the court, from a consideration of all the facts in evidence, to determine that question.</p> <p>[2] Id.—-Temporary Admittance into Family of Stepfather—Obligation to Support—Section 2-0-9, Omn Code, Construed.—The provision of section 209 of the -Civil Code, to the effect that if a husband receives Ms wife’s children by a former marriage “into his family and supports them, it is presumed that he does so as a parent,” does not reasonably contemplate a mere temporary relation to be assumed and disclaimed at will, but the arrangement must be of such character as to impose some obligation to support.</p> <p>[3] Id.—Employment of Minors by Stepfather—Reasonable Value of Services—Right of Rather to Recover.—The father, to whom was awarded the custody of his two minor sons in an action for divorce, and who has not waived his right to their earnings, is entitled to recover from their stepfather the reasonable value of their services rendered to the latter, where such minors were not received into the family of the stepfather as members thereof, but only under a temporary and conditional arrangement.</p> <p>[4] Id.—Implied Contract—Special Instance and Request—Amendment of Complaint to Conform to Proof.—The first amended complaint having alleged an implied contract of employment and the reasonable value of the services rendered, the trial court did not commit error in permitting the plaintiff, after the evidence was closed, to file a second amended complaint which alleged the performance of the services at the defendant’s “special instance and request” and the reasonable value thereof.</p> <p>[5] Id.—Amendment of Complaint to Conform to Proof—Waiver of Objections.—After an amendment of a complaint to conform to the proofs, if the defendant makes no request that the submission of the cause be set aside or that he be permitted to offer further pleadings or proofs, he is in no position to complain.</p>

<p>[1] Public Work—Subcontract—Bond.—A subcontractor, in cases of contracts for the performance of public work, may be required by the contractor to execute to him the bond provided for in the statute of 1897 (Stats. 1897, p. 2122).</p> <p>[2] Sureties—Exoneration.—A surety is favored in law, and any act by the obligee which is injurious to his rights will operate as an exoneration of his obligations as such surety.</p> <p>[3] Id.—Premature Payments by Contractor—Pro Tanto Exoneration.—Premature payments by the contractor to the subcontractor will not release the sureties of the subcontractor from their entire obligation, but only from that part of the subcontractor’s default that may be made up of such premature payments.</p> <p>[4] Id.—Liability of Contractor to Make Payments—Obligation of Sureties.—Sureties upon a bond given for the proper execution of the terms of a subcontract, under a contract for the performance of public work, undertake their obligation with full knowledge of the proposition that creditors of the contractor cannot be compelled to postpone the enforcement of their claims beyond the time at which they may agree with the contractor that they shall be paid, and their obligation as such sureties no less requires them to stand good for the faithful execution of the terms of the contract in that particular than for any other vital provision thereof.</p> <p>[5] Id.—Duty of Contractor to Make Payments—Inability to Retain Agreed Percentage—Rights of Sureties not Impaired. Where such a subcontract provides that the contractor shall withhold twenty-five per cent of all payments becoming due the subcontractor for a period of thirty-five days after the completion of the contract, and also expressly provides that creditors must be paid when due and payable, if such payments to creditors are required to be made prior to the expiration of the thirty-five days and it becomes necessary for the contractor to pay them and it is impossible, from the extent of such obligations, to retain the twenty-five per cent provided by the contract, it cannot be held that the payment of them under such circumstances is such a violation of the terms of the contract as to affect or change or impair the rights of the sureties, either in whole or in part.</p> <p>3. Premature payment to principal as release of surety on contractor’s bond, notes, 2 Ann. Cas. 766; 8 Ann. Cas. 245; Ann. Cas, 1915C, 674.</p> <p>[6] Bankruptcy — Pleading — Evidence — Knowledge of Filing of Petition—Insufficient Findings—Judgment.—In this action by a contractor against a subcontractor, and against Ms sureties, assuming that the trial court was authorized to take judicial notice of the discharge in bankruptcy of the defendant subcontractor, • although he did not set that up as a defense to the action, and further assuming that it was true that plaintiff had actual knowledge of the filing of the petition of said defendant to be declared a bankrupt prior to the time at which he was so adjudged and discharged from his indebtedness, the trial court having failed to find that plaintiff did have such actual knowledge, the mere finding that said defendant was adjudged a bankrupt, considered in connection with the concession of counsel that plaintiff was not, as a matter of fact, included among the creditors of said defendant in his petition, was ineffectual for any purpose and in no manner or measure added any support to the judgment in favor of said defendant.</p> <p>[7] Sales—Breach by Buyer—Betaking of Possession by Vendor —¡Compensation fob Use—Measure of Becovery.—Where the purchaser of a truck under a conditional sale contract in the form of a lease breaches his agreement in the matter of the payment of the installments, and the vendor retakes possession thereof, the latter is not entitled to maintain an action for the purchase price or for the rental agreed on in the contract, but is limited to the reasonable value of the use thereof by the purchaser.</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 ojt Trial—Recovery on Accident Insurance Policy— County oe Accident.—An accident insurance corporation is not entitled to have the place of trial of an action to recover on one of its policies commenced in the county where the holder of the policy was killed, changed to the city and county in which it has its principal business, although the contract was made in such city and county and the premiums paid therein, since the place where the insured is killed is the place where the cause of action arises.</p>

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

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

<p>[1] Telegraphs and Telephones—Use op County Highways—Right op Individual.—A private individual has no right to use county highways over which to construct a telephone line, save and except upon a grant of such right made by the board of supervisors in the exercise of the powers vested in it by subdivision 35 of section 4041 of the Political Code, and under and pursuant to the restrictive provisions of the Broughton Act (Stats. 1905, p. 777).</p> <p>[2] Id.—Exercise op Franchise by Private Individual—Percentage op Gross Receipts—Liability.—A telephone line operated by a private individual under a franchise granted by a board of supervisors after five years from the date of the grant is subject to the annual payment of the two per cent tax upon the gross receipts, in the absence of a transfer of such line to a telephone corporation.</p> <p>[3] Id.—Telephone Corporations—Use op Public Highways—Rights Under Section 536, ■ Civil Code.—Under and by virtue of the provisions of section 536 of the Civil Code, telephone corporations are granted the right and privilege to use the public highways over which to construct and operate lines of telephone wires, free from any grant made by subordinate legislative bodies and unrestricted by the provisions of the Broughton Act, and their right to do so applies not only to lines constructed by them, but to lines in place which they acquire by purchase from private individuals, constructed under franchises granted by boards of supervisors.</p>

<p>Charles S. Burnell, City Attorney, W. B. Mathews, Lewis E. Whitehead, Trent G. Anderson and Ray C. Eberhard for Appellants.</p>

<p>[1] Broker’s Commission—Procuring of Purchaser—Finding—Sufficiency of Evidence.—In this action to recover a real estate broker’s commission, the finding that plaintiff was the procuring cause of the sale is supported by the evidence.</p> <p>[2] Id.—Exclusive Agency—Sale by Owner—Bight to Commission, A broker having an exclusive contract of sale cannot be deprived of his commission by the owner himself consummating the sale to the broker’s client.</p> <p>[3] Id. — Action for Commission—Evidence—Effect of Previous Knowledge of Purchaser—Conclusion of Witness.—In an action to recover a broker’s commission, a question asked the purchaser by the defendant whether the fact that plaintiff showed him the place after he knew it was for sale had any bearing on his purchase or anything to do with closing the deal was properly sustained, as calling for the conclusion of the witness.</p> <p>2. Bight of real estate broker to commissions where owner makes sale, notes, 9 Ann. Cas. 433; Ann. Cas. 1913D, 821.</p> <p>Ordinary contract as excluding right of sale by owner, note, 10 A. L. B. 814.</p>

<p>[1] Negligence—Killing of Pedestrian—Backing of Automobile— Method of Stopping—Question for. Jury—Appeal.—In an action for the death of a pedestrian caused by the backing down upon her of an automobile, where there was evidence that the defendant’s right foot became fastened between the foot-brake and accelerator and he lost control of his car, and it further appeared that of the three methods of stopping automobiles the defendant adopted the least effective, the question whether the defendant was negligent under all the circumstances *in omitting to use one of the more effective methods was a question upon which the finding of the jury is conclusive on appeal.</p> <p>[2] Id.—Pleading—Acts of Negligence.—In such action it was not necessary for the amended complaint to disclose the acts or omissions constituting the alleged negligence, it being alleged that the defendant did negligently, carelessly, recklessly, suddenly, abruptly, and without warning of any kind to any person and without due regard to the safety of pedestrians unlawfully back his automobile, etc.</p> <p>[3] Id.—Experience of Defendant—Familiarity With Appliances— Consideration of Evidence.—In determining the defendant’s experience and whether or not he was familiar with the appliances for the control of Ms automobile and whether he was confused in the use of them, the jurors were not bound to accept his statements as conclusive, but they had the right to consider all of his acts and omissions at the time of the accident.</p> <p>[4] Id.—Cause of Accident—Instructions. — Where it devolved upon the jury to decide whether the injuries inflicted were due to an unavoidable accident, to the defendant’s inexperience, to his lack of familiarity with the control appliances of his automobile, or to his confusion, it was proper to state the law applicable to all conclusions which might legitimately be drawn from the evidence.</p> <p>[5] Id.—Verdict not Excessive.—An award of $11,875 as damages for the death of a woman of the age of fifty-one years cannot be said to be excessive, where she was educated and devoted to her husband and three children of the ages of fourteen, nineteen, and twenty years.</p> <p>[6] Id.—Expectancy of Life—Mortality Tables.—In an action for damages for death, mortality tables are admissible but not essential.</p> <p>[7] Evidence—Health—Presumption.—It is presumed that a person is in average normal health, in the absence of evidence to the contrary.</p> <p>5. Exeessiveness of verdict for death by wrongful act, notes, 18 Ann. Gas. 1209; Ann. Gas.. 19150, 449; inadequacy of verdict, note, Ann. Cas. 1916B, 460.</p>

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

<p>[1] Broker’s Commission—Agreement for Division — Valid Contract.—An agreement between real estate brokers for a division of a commission is not illegal or against public policy.</p> <p>[2] Id.—Statute of Frauds Inapplicable.—A contract between brokers for a division of a commission earned on a sale of real estate is not required to be in writing.</p> <p>[3] Appeal—Finding—Evidence.—An appellate court is required to uphold a finding of the trial court if there be any substantial evidence in its favor, regardless of whatever may be the showing in opposition.</p> <p>[4] Broker’s Commission—Rights of Respective Parties—Findings —Sufficiency of Evidence.—In this action involving the respective rights of real estate brokers to a commission on a sale of real estate, the evidence is sufficient to support the finding of a verbal agreement of one of the brokers with the owners for the sale and the finding of the agreement between the brokers for the division of the commission.</p> <p>[5] Contract—Evidence—Conduct.—An agreement to the terms of a proposed contract may be evidenced and confirmed by conduct as well as by verbal expression.</p>

<p>[1] Criminal Law—Bape—Besistance—Sufficiency op Evidence.— In this prosecution for rape, the evidence sufficiently shows that the prosecutrix resisted the acts of the defendant and that such resistance was overcome by force and violence.</p> <p>[2] Id.—Evidence—Other Offenses—Conspiracy.—Evidence of another crime is inadmissible, but where the evidence sufficiently establishes a conspiracy, evidence of all acts in furtherance of the common design by any or all of the conspirators is admissible.</p> <p>[3] Id.—Bape—Conspiracy—Evidence—Similar Offense.—Where in a prosecution for rape it appeared from the evidence that the defendant and his companions either expressly or tacitly formed the design to engage in acts of cexual intercourse with the prosecuting witness and another girl with or without their consent, proof of the attempt of the defendant and others to commit rape upon such other girl was admissible.</p> <p>2. Other offenses as provable in rape, notes, 8 Ann. Cas. 459; 18 Ann. Cas. 442; Ann.. Cas. 1915D, 164.</p> <p>[4] Id.—Conspiracy—Equal Guiw op Conspirators.—When a conspiracy to commit an offense of a certain class is shown, each conspirator is deemed guilty of every such crime committed in furtherance of the conspiracy by any of the conspirators.</p> <p>[5] Id.—Rape—Unchastity op Prosecutrix—Relevancy.—In a prosecution for rape evidence of the unehastity of the prosecutrix is admissible as bearing on the question of consent, but evidence of her moral delinquency is inadmissible as affecting her general credibility as a witness.</p> <p>[6] Id.—Plight as Evidence op Guilt—Instruction.—An instruction in a prosecution for rape that flight itself is not evidence of guilt but is a circumstance which the jury may consider, and that it may be taken as an indication of guilt if not satisfactorily explained, is not prejudicial to the defendant in omitting the qualification as to knowledge of the defendant that he was charged with the crime, where such fact is shown by uncontradicted evidence.</p> <p>[7] Id.—Misconduct op Court—Insufficiency op Evidence.—In this prosecution for rape none of the incidents upon which the charge of misconduct on the part of the trial court is laid affords any sufficient foundation therefor.</p> <p>[8] Id.—Appeal—Review op Alleged Misconduct—Specification in Trial Court.—A claim of misconduct on the part of the district attorney or the trial judge will not ordinarily be considered on appeal unless the complaining party has promptly called the attention of the court to the alleged impropriety and assigned misconduct thereon.</p>

<p>[1] Criminal Law—Indictments—'Charges of Different Offenses of Same Class—Consolidation—Absence of Error.—In view of section 954 of the Penal Code, which provides that if two or more indictments or informations are filed in the cases mentioned in the section, the court may order them to be consolidated, it was not error to consolidate charges of rape and of the commission of the infamous crime against nature embraced in separate indictments, where the two offenses were charged in the indictments to have been committed upon the body of the same person.</p> <p>[2] Id.—Evidence — Time of Commission of Offenses—Lack of Prejudice.—A defendant charged under separate indictments with the crime of rape and with the commission of the infamous crime against nature was not prejudiced by the consolidation of the charges and their trial together because of the fact that the evidence showing the defendant to be guilty of the latter crime disclosed that such offense was committed after the several crimes of rape which he was charged with having aided and abetted had been fully consummated, where it also appeared, not only that the crimes of rape were committed in the course of a general orgy of passion and lust in which the defendant took throughout a sufficiently guilty part, but that one of the crimes of rape was practically coincident in its commission with that of the commission of such infamous crime against nature.</p> <p>[3] Id.—Offense Against Third Person—Lack of Prejudice.—The admission, in such a consolidated trial, of the testimony of a third person as to an offense in the nature of an attempted rape committed by the defendant against her and which was not embraced in either of the indictments was not error, where such ■ act and the acts charged were so interrelated as to form a continuous series of offenses in which each act and offense of each perpetrator was part of the res gestae as to all concerned.</p> <p>[4] Id.—Refusal of Change of Place of Trial—Discretion not Abused.—A denial of a motion for a change of place of trial supported by affidavits showing an aroused state of public feeling over the commission of the offenses with which the defendant and his associates were charged was not an abuse of discretion, where a panel of twelve qualified jurors was actually obtained from a very fair and full vow dike examination of thirty-six jurors, during the course of which the defendant challenged but two prospective jurors for cause, one of whom was dismissed upon such challenge.</p>

<p>[1] Appeal—Decree of Distribution—Typewritten Eeoord.—An appeal from an order and decree settling a final account and decreeing distribution of an estate is not subject to dismissal for want of a printed record; where prosecuted under the alternative method and the transcript, which contains the necessary papers is prepared in the manner prescribed by section 953a of the Code of Civil Procedure and properly authenticated by the clerk.</p> <p>[2] Estates of Deceased Persons—Indebtedness of Distributee— .Statute of Limitations—Setoff.—An indebtedness of a distributee to an estate which is barred by the statute of limitations cannot be set off against the distributive share of the debtor.</p>

<p>[1] Landlord and Tenant—Breach of Lease of Farm Lands— Agreement of Defendants—Planting of Crop—Pleading—Sufficiency of Complaint.—In an action by a lessor for damages for an alleged breach of a written lease of farming lands, the complaint is not subject to general demurrer for failure to allege in the body thereof that the defendants agreed to plant the lands to rice or to any crop, where the lease is made a part of the complaint by express averment and annexed thereto as an exhibit, and the complaint alleges that defendants did not cultivate and did not sow any part of said lands to rice as in said lease provided.</p> <p>[2] Pleading—Written Instrument—-Reference.—When a written instrument upon which the plaintiff declares or the defendant bases his defense is by sufficient reference in the pleading made a part thereof, such instrument becomes as much a part of the pleading as though it had been m haea verba incorporated into the body thereof.</p> <p>[3] Id.—Answer—Cure of Defect in Complaint.—Where in such an action the answer makes the question whether the defendants agreed to cultivate and plant the land to crops as provided in the lease an issue in the case by admitting that they did not sow or plant the same and stating facts purporting to justify such failure, any defect in the complaint in such regard is thereby cured.</p> <p>[4] Id.—Evidence—Cure of Defective Complaint.—Where in such action evidence is admitted without objection that the defendants had failed to comply with the covenants and terms of the lease which also was admitted without objection, any defect in the complaint as to failure to allege an agreement to plant and cultivate crops is thereby cured.</p> <p>[5] Id.—Planting of Oats and Bice—Time of Commencement of Action for Breach.—An action for damages for breach of a lease of lands for the crop season of 1919 brought July 5, 1919, is not premature where the crops were rice and oats, since the cropping season, so far as the planting of such crops was concerned, was then ended.</p> <p>[6] Id.—Damages—Evidence—Probable Bice Yield—Experts.—Testimony given by experts as to the probable yield of rice on the lands in question for the year 1919 was competent.</p> <p>[7] Id.—Futubb Profits—When Recoverable.—Damages based upon future profits which are the natural and direct consequence of the breach of a contract and not collateral to the subject matter thereof are recoverable.</p>

<p>Wm. M. Abbott, Wm. M. Cannon, K. W. Cannon, Ivores R. Dains and Hall C. Ross for Appellant.</p>

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

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

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

<p>APPLICATION for a Writ of Mandate to compel the delivery of records of a corporation.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Workmen’s Compensation Act—-Letting op Houses por Hire— Repair Work—Casual Employment.—Where an individual in- , vests his money in a house or houses which as owner he lets for profit, and at irregular times when demanded has labor performed in the repair thereof, and is not engaged in any other business, he is not engaged in the prosecution of a trade or business within the meaning of the Workmen’s Compensation Act and upon which a charge of compensation for injury sustained by an employee casually engaged in doing such work can be imposed.</p> <p>1. What constitutes casual employment within the meaning of workmen’s compensation acts, notes, L. R. A. 1916A, 96, 120, 247; L. R. A. 1917D, 147, 151; L. R. A. 1918F, 215.</p>

<p>[1] Default—Relief Under Section 473, Code of Civil Procedure— Discretion—-Appeal.—While applications for relief under section 473 of the Code of Civil Procedure, on the ground of mistake, inadvertence, surprise, or excusable neglect, are addressed to the discretion of the trial court, with which discretion, when once exercised in a case, interference by a reviewing court will not be justified except upon a satisfactory showing that it has been abused, still the provisions of the section, like all others of the code, are to be liberally construed with a view to effect its objects and to promote justice.</p> <p>[2] Id.—Refusal to Set Aside Default—Abuse of Discretion.—Refusal to set aside a default for failure to demur or answer a complaint within legal time is an abuse of discretion, where it is shown by uneontroverted affidavits that the defendant erroneously stated to his attorney the date upon which he was served with summons, and within three days after receipt of information that the default had been entered, he applied for relief and showed that he not only had a meritorious defense, but was entitled to affirmative relief.</p>

<p>[1] Injunction—Finding—Negative Pregnant.—A finding in an action to restrain an irrigation district from permitting seepage •water from its canal to flow upon the land of the plaintiffs, that it is untrue that defendant ever since the use by it of the canal has negligently or carelessly or without right allowed water to flow upon the lands of the plaintiffs, is in the nature of a negative pregnant and implies the truth of the affirmative allegation which it attempts to deny.</p> <p>[2] Id.-—Seepage from Canal—Finding—Evidence.—In this action to restrain the defendant from permitting seepage water from its canal to flow upon the land of the plaintiffs, the finding of absence of seepage is contrary to the evidence.</p> <p>[3] Canal Corporation—Construction of Ditch—Prevention of Seepage—Negligence.—To knowingly construct a canal through loose sand or gravel incapable of holding water without taking any steps to prevent or control seepage therefrom constitutes negligence.</p> <p>[4] Id.—Construction of Canal—Liability for Defects.—If, in the actual operation of a canal, sudden and unexpected damage results by reason of some hidden defect which could not reasonably have been foreseen, the owner will not be liable in damages, being-chargeable only in case of negligence, but after discovery of the defect and after reasonable opportunity to correct it, if he continues the use, his liability for subsequent damages is the same as if he had known of the defect at the time of construction.</p> <p>[5] Id.—Failure to Enlarge Storm Drain—Lack of Contributory Negligence.—In an action to restrain the defendant from permitting seepage water from its canal to flow upon the plaintiffs’ lands, the plaintiffs are not guilty of contributory negligence •barring recovery because they failed to increase the capacity of a storm drain to a capacity sufficient to carry off the additional seepage water.</p> <p>[6] Id.—Evidence—Mitigation of Damages.—Evidence that plaintiffs failed to use ordinary care to prevent' the injury after the seepage began to flow down upon their land may be considered in mitigation of damages, but if by the exercise of such care they could have avoided the injury, they would be entitled to recover as damages the reasonable expenditures made necessary by the additional water.</p> <p>4. Liability for injury to private property by construction and operation of canals, note, 61 L. B. A. 858.</p> <p>[7] Id.—Damages from Seepage—Bight of Land Owner—Constitutional Law—Care in Construction Immaterial.—One whose land is injured by seepage water of a canal constructed for public purposes and to serve the purpose of distribution of water for public use is entitled to damages, in view of article I, section 14, of the constitution, regardless of the care that may be taken in the construction. (Opinion of supreme court on denial of hearing.)</p>

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

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

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

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

<p>APPLICATION for a Writ of Mandate to compel the dismissal of an information. H. L. Preston, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>[1] Nonsuit—Evidence—Inferences.-—On a motion for nonsuit, not only must all the evidence in favor of the plaintiff he taken as true, and contradictory evidence, if any, be disregarded, but if the evidence will reasonably 'permit of two or more inferences, those inferences only which are most favorable to the plaintiff must be adopted by the court.</p> <p>[2] Contract—Care and Colonization of Bees—Conduct of Defendant—Justification of Belief of Withdrawal—-Question for Jury.—In this action for damages for breach of a contract by the terms of which defendant was for three years to take care of bees furnished by plaintiff and to make therefrom additional colonies each year, the plaintiff to furnish a house and an automobile and the parties to share the honey and wax, the question whether under the evidence the plaintiff was justified in believing that defendant had withdrawn from the contract was one for the jury.</p> <p>[3] Id.—Automobile for Use in Work—Appliance—Construction of Contract.—An automobile furnished for use under such a contract is an “appliance” within the meaning of the clause imposing upon the defendant the duty of keeping all tools and appliances in good repair at his own expense.</p> <p>[4] Id.—Taking of Possession upon Abandonment—Damages for Failure to Colonize—Right of Recovery.—The right of the plaintiff under such a contract to recover damages for the breach of the provision as to the colonization of the bees is not affected by the fact that he took possession of the automobile and assumed the sole care of the bees, if the defendant was the first to breach the contract.</p> <p>[5] Id.—Statute of Limitations.—Where such contract was not mutually abandoned and there was no rescission by the plaintiff, the four-year period of limitation did not commence to run as to the right of recovery for breach of the part of the contract as to the colonization of bees until the end of the first year.</p> <p>[6] Id.—Abandonment of Contract—Mixed Question of Law and Fact.—The question as to whether a contract has been abandoned is a mixed one of law and fact, and although the parties may abandon it by matter in pais, the acts and conduct relied on must be clearly proved, and they must be positive, unequivocal, and inconsistent with the existence of the dontract.-</p> <p>[7] Nonsuit—Statement oe Gbounds.—A motion for a nonsuit should specify the grounds upon which it is made, and a ground which is not stated cannot he considered on appeal.</p>

<p>[1] Place of Trial—Application for Change—Prejudice of Residents—Discretion—Appeal.—Applications for a change of place of tidal on the ground that an impartial trial cannot be had in the county are addressed to the sound legal discretion of the trial court, and its action cannot be disturbed on appeal unless it clearly appears that there had been an abuse of discretion.</p> <p>[2] Id.—Right of Defendant.—The right of a defendant to have his case tried in the county wherein he and his witnesses reside is a substantial one and is not to be set aside unless it actually conflicts with the higher right' of a plaintiff to have an impartial trial.</p> <p>[3] Id.—Order Denting Motion—Discretion not Abused.—On this appeal by the plaintiff from an order denying his motion for a change of place of trial on. the ground that he could not have an impartial trial in the county, the trial judge did not exceed or abuse the legal. discretion vested in him.</p>

<p>[1] 'Claim and Delivery — Mortgaged Personalty—Pleading—Demand and Possession.—In an action by the assignee of a chattel mortgage to recover possession of the property for the purposes of sale and payment of the debt, it is necessary that the complaint allege a demand for delivery during the time the defendants held possession, hut such defect is cured by averments in the answer amounting to an admission of possession at the time of demand.</p> <p>[2] Appeal — Findings — Construction. ■—Where from facts found other facts may be inferred which will support the judgment, such inference will he deemed to have been made by the trial • court, and upon appeal the court will not draw from such facts any inference of fact to the contrary.</p> <p>[3] Claim and Delivery—Discharge of Mortgage—Transaction Between Assignee and Mortgagee—Findings—Conflict of Evidence—Appeal.—Where in an action by the assignee of a chattel mortgage to recover possession of the property the evidence is in substantial conflict as to the contention that an alleged transaction between the plaintiff and the mortgagee was one of payment of the debt and discharge of the mortgage, the finding will not be disturbed on appeal.</p> <p>[4] Id.—Alternative Judgment—Amount.—In an action by the assignee of a chattel mortgage to recover possession of the property for the purposes of sale and payment of the debt, an alternative judgment in excess of the amount of the debt is unwarranted.</p>

<p>[1] Guaranty — Payment of Note—Construction—Evidence—Unconditional Promise.-—In this action upon an alleged guaranty for the payment of a promissory note, which guaranty was contained in a telegram and a copy of which is set out in the opinion, the instrument is held to be an unqualified and unconditional agreement of payment and not, as contended, a promise to pay only in the event that there should be sufficient proceeds from the sale of a crop of beans belonging to the maker of the note in the possession of the guarantor for purpose of sale and liquidation of the maker’s indebtedness to the defendant.</p> <p>[2] Id.—Consideration—Forbearance of Attachment.—A guaranty of payment of a promissory note in consideration of the payee’s forbearance in attaching a crop of beans belonging to the maker in the -possession of the guarantor for the purpose of sale and payment of the maker’s debt to the guarantor is supported by a sufficient consideration.</p>

<p>[1] Mechanics’ Liens—Time eoe Filing Claim—Notice of Completion.—The time allowed a materialman within which to file his claim of lien begins to run from the date of the filing of the -notice of completion of the building and not from the time of actual completion.</p> <p>[2] Id.—Substantial Compliance—Completion Within Reasonable Time—Sufficiency of Evidence.—In this action for the foreclosure of a mechanic's lien, the findings of substantial compliance with the contract and completion within a reasonable time are sustained by the evidence.</p>

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

<p>[1] Execution—Release of Levied Property—Third Party Claim— Purpose of Code Enactments.—Sections 710 to 713%, inclusive, of the Code of Civil Procedure, enacted in 1903, are intended for the benefit of the judgment creditor and also to provide a method ■by which a third party claiming -property levied upon under execution may prevent a summary sale to his loss and detriment.</p> <p>[2] Id.—Obligee of Undertaking.-—A bond given under section 710 of the Code of Civil Procedure reciting that the surety is bound either to the sheriff or the judgment debtor “whichever of them is, or may be finally adjudged to be the proper obligee of the undertaking, (but not to both of them jointly), and if neither -be so adjudged, then unto the state of California,” is a substantial compliance with the code sections which do not specifically designate the obligee, since the sections are remedial in- their nature and'are to be given a liberal construction.</p>

<p>[1] Forcible Entry and Unlawful Detainer—Insufficiency of Evidence.—Where in an action of forcible entry and unlawful detainer it appeared that the door to the premises was barred by someone, but it was not shown by whom, nor was it shown who was in possession from the time of the alleged trespass to the commencement of the action, .or that the defendant had the authority or power to deliver possession, there was a failure of proof to sustain the charging part of the complaint.</p> <p>[2] Id.—Tenant at Will—Damages.—The longest period of time for which a plaintiff at will is entitled to charge a loss of profits as an element of damage in an action of forcible entry and unlawful detainer is thirty days.</p> <p>[3] Id.—Exemplary Damages—Procedure.—Where a tenant at will in an action of forcible entry and unlawful detainer asks in his complaint for exemplary damages the jury should fix the damages, and the plaintiff then apply to the court to have the damages trebled, and where such procedure is not followed, a verdict in excess of loss of profits for thirty days cannot be considered as including exemplary damages.</p>

<p>[1] Criminal Law—Murder—Killing of Officer—Unlawful Transportation of Liquor—Evidence—Motive.—In a prosecution for the murder of an officer whose duty it was to apprehend persons engaged in the unlawful transportation of liquor, which killing occurred while defendant was engaged in such unlawful transportation and was caused by defendant’s automobile colliding with deceased after a signal to stop, the admission of testimony of the transportation of the liquor and of the hiding thereof after the killing and the introduction of the liquor itself was material and competent to show a motive and to present a theory inconsistent with defendant’s claim that the killing was accidental.</p> <p>[2] Id.—Character of Crime—Evidence.—Where in a prosecution for murder the killing is admitted but it is claimed that it was not intentional but accidental, any evidence that tends to show that the commission of the act was prompted by a motive inconsistent with innocence is material.</p> <p>1. Admissibility of evidence tending to prove other crimes, against defendant, as proof of motive, notes, 7 Ann. Cas. 66; 8 Ann. Cas. 773.</p>

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

<p>[1] Criminal Law—Embezzlement—Leased Personal Property—■ Ownership—Evidence.—A defendant charged with the crime of embezzlement in removing, concealing, and disposing of an automobile which had been leased to him cannot contend that the ownership of the machine was not in the person named in the information by reason of the fact that after the delivery of the automobile to the defendant such person had made a bill of sale thereof to a bank, where it appeared that the bill of sale was given as security for money advanced as a loan to such person by the bank on the contract.</p> <p>[2] Id.—Enactment of Section 504a, Penal Code—Sufficiency of Title—Constitutional Law.—Section 504a of the Penal Code is not void on the ground that its adoption was in violation of section 24, article IV, of the constitution, which provides that every act shall embrace but one subject, which subject shall be expressed in its title.</p>

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

<p>[1] Promissory Note — Consideration — Presumption-—Finding.—A promissory note carries the presumption of consideration, which is evidence to be weighed against the testimony of the maker that he did not receive any consideration, and with this conflict, the finding of the trial court that a consideration passed should not be disturbed.</p> <p>[2] Id.—Liability op Maker—Disposition op Consideration Immaterial.—A maker of a promissory note purporting to bind him alone is bound thereby, although he has no personal interest in the consideration and intends to use the same for a corporation.</p> <p>[3] Partnership—Guaranty—Authority op Partner.—One partner has no authority to guarantee negotiable paper in the firm name, or to make contracts of guaranty or suretyship, without authority specially given him for the purpose, or implied from the common course of the business of the firm, or from the previous course of Sealing between the parties, unless the act of such partner is ’ afterward ratified by his copartners.</p> <p>[4] Is. — Signing of Guaranty—Finding—Implied Authority of . Partner.—The effect of a finding that a partner had general authority to sign the partnership name to a guaranty, although he was not expressly authorized by his partner to do so, is that the authority to make the guaranty was implied from the common course of the business of the firm.</p> <p>[5] Id.—Execution of Guaranty—Partnership Affair—Sufficiency of Evidence.—In this action upon a promissory note and guaranty, , the evidence supports the finding that the partner was authorized to sign the guaranty and that the entire transaction was a partnership affair.</p> <p>[6] Guaranty —■ Promissory Note — Separate Instruments — Pleading—Joinder of Parties.—The guarantor of a promissory note may be joined as a party defendant with the maker, although the guaranty was executed upon a separate paper, it being a part of the same transaction.</p> <p>[7] Id.—Default of Maker—Immediate Liability of Guarantor.— The guarantor of the payment of a promissory note becomes liable on default of the maker without demand or notice.</p> <p>[8] Id.—Extension of Time of Payment—Guarantor not Exonerated. A guarantor under a guaranty to remain in force during all the renewals of the indebtedness is not discharged by an agreement extending the time of payment, there being no essential difference, so far as his rights are concerned, between such extension and a renewal.</p>

<p>[1] Automobile Insurance—Indemnification Against Loss from Collision With Another Object — Overturning on Edge of Road.—Under an insurance policy indemnifying' against loss or damage to an automobile caused “solely by collision with another object,” no recovery can be had because of the turning over of the automobile on the edge of a road without striking or colliding with any object other than the ground.</p>

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

<p>[1] Dismissal op Action—Consolidation Under Workmen’s Compensation Act—Bight op Employer.—Where an action for damages for the death of an employee brought by the widow of the deceased is consolidated as provided by section 26 of the Workmen’s Compensation, Insurance and Safety Act (Stats. 1919, p. 920) with a subsequent action brought by the employer after having paid an award of compensation under such act, the employer has the right to have the action brought by the widow dismissed, under subdivision 1 of section 581 of the Code of Civil Procedure, where no counterclaim has been set up or affirmative relief sought by cross-complaint.</p> <p>[2] Id.—Further Proceedings in Dismissed Action—Prohibition.— A writ of prohibition will issue to prevent a superior court from further proceeding in an action which has been consolidated with another action under section 26 of the Workmen’s Compensation Act and thereafter dismissed.</p>

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

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

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

<p>[1] Negligence—Failure to Deliver Water—Action for Damages— Pleading.—In this action to recover damages for the injury caused to-plaintiff’s property by reason of the neglect, failure and refusal of the defendant, a municipal corporation of the sixth class, to deliver an adequate and sufficient supply of water to her premises, plaintiff’s complaint was sufficient as against a general demurrer.</p> <p>1. Duty of water company or municipality supplying water to extend the services to all applicants willing to comply with its regula,tions, note, 17 L. E, A. (N. S.) 655.</p> <p>[2] Id.—Evidence—Finding.—In sueh aetion, from the evidence showing the existence and availability of a substitute water supply adequate and sufficient to have met plaintiff’s requirements, showing that theretofore her requirements had been met, and showing why they had not been met during the period in question, the court was warranted in determining that the defendant did not make any sufficient effort to obtain this substitute water supply, and in finding that defendant's failure to furnish to plaintiff an adequate supply of water during the period in question was due to negligence and without cause.</p> <p>[3] Id.—Loss of Chickens and Growing Crops and Trees—Damages Eegoverable.—In such an action, the damages suffered by plaintiff by reason of the loss of chickens that died, the loss of growing crops that were destroyed, and the depreciation or destruction of fruit trees actually in existence, were not speculative in their nature, but they represented actual detriment caused by defendant’s breach of its obligation to supply plaintiff with the required amount of water.</p>

<p>[1] Sales — Warranty op, Title — Purchases by Copartner prom Partnership—Agreement to Reimburse—Consideration.—A co-partner who, without knowledge that the copartnership has not the title thereto, purchases merchandise from the copartnership is entitled to the warranty of title protection of section 1765 of the Civil Code; and the obligation resting upon his copartner to respond when the defect of title becomes established furnishes a good consideration for the promise of the latter to make good his share of the loss occasioned by the defect of title.</p> <p>[2] Partnership—Dissolution—Contribution.—After a partnership has been dissolved and the accounts fully settled, one partner who has paid partnership debts may maintain an action against the other for contribution.</p> <p>2. Right of contribution between partners, notes, Ann. Cas, 1916D, 820, 842, 846.</p>

<p>[1] Guaranty—Consideration—One Transaction.—The fact that a contract of guaranty of a portion of a debt secured by a note and mortgage bears date subsequent to that of such note and mortgage does not constitute proof of want of consideration for such contract of guaranty, where the evidence shows that there was but one transaction and that the note and mortgage were not accepted, nor the money loaned, until such guaranty was furnished.</p> <p>[2] Id.—Guaranty of Debt Secured by Mortgage—Default—Action on Guaranty Without Exhausting Security. — Where the guarantor, under a contract of guaranty of a portion of a debt secured by a note and mortgage, expressly agrees that his liability under the guaranty contract shall become immediately due and payable to the creditor upon the happening of any default in the terms of said note, and t-hat his liability shall in nowise be contingent upon the exercise of the rights of the creditor as mortgagee under said mortgage, the creditor is entitled to enforce the obligation . 'of the guaranty immediately upon the default of the principal debtor and without notice to the guarantor, and is under no requirement to exhaust the mortgage security as a condition to suit.</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] Criminal Law—Weight of Evidence—Credibility of Witnesses , —Province of Jury and Trial Judge—Appeal.—In a criminal prosecution, the weight of the evidence and the credibility of the witnesses are, in the first instance, within the province of the jury when deliberating upon the guilt or innocence of a defendant but after their verdict has been rendered, the determination of such questions rests solely with the trial judge in passing upon a motion for. a new trial; and his conclusion as to the sufficiency of the evidence to support the verdict will not be disturbed by the appellate court, save in those rare cases where it obviously appears that the testimony upon which the conviction was had is so inherently improbable as to be impossible of belief.</p> <p>[2] Id.—Scope op Cross-examination—Failure to Object—Appeal. The appellate court is not required to determine whether or not the cross-examination of a witness for the defense covered too broad a field, where that objection was not made to the questions, or where the answers to the questions to which that objection was made were not in the least prejudicial to the defendant.</p> <p>[3] Id.—Impeachment op Witness—Admission op Signed Statement Previously Made.—The introduction in evidence, for the purpose of impeachment, of a signed statement previously made by a witness is properly permitted over the objection of the defense that it was “secured from the man under duress, that he signed it against his will, that he was beaten and abused by the police before he signed it, and the only reason that he signed it was so that they might cease their brutal treatment,” where there is no evidence of any kind offered to sustain these charges.</p> <p>[4] Id.—Proop op Other Oppenses—When Admissible.—While it is the general rule that evidence of an offense other than the one for which the defendant is being tried may not be admitted in evidence against him, where ■ several crimes are intermixed or blinded with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of one or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.</p> <p>[5] Id.—Bape—Oppenses Committed Against Witness—Evidence.— In a prosecution for the crime of rape, where the testimony of a witness other than the prosecutrix bearing upon the crime with which the defendant is charged cannot be given without the recital of offenses against herself, such testimony is admissible.</p> <p>[6] Id.—Conspiracy—Proop.—In proving a conspiracy it is not necessary that proof be made that the parties met and actually agreed to undertake the performance of the unlawful act, but a conspiracy may be shown by proof of facts and circumstances sufficient to satisfy the jury of • the existence of the conspiracy, leaving the weight and sufficiency of the evidence to the triers of the questions of fact.</p> <p>[7] Id.—Bape—Moral Delinquency op Witness—Evidence.—In a prosecution for the crime of rape, evidence of the unchastity of the prosecutrix is admissible as bearing upon the question of consent, but evidence of her moral delinquency, or of the moral delinquency of any other witness, is inadmissible as affecting her general credibility as a witness.</p> <p>4. Evidence of other crimes in prosecution for rape or assault with intent to commit rape, notes, 8 Ann. Cas. 459; 18 Ann. Cas. 442; Ann. Cas. 1915D, 164; 62 L. R. A. 236; 48 Ii. R. A. (N\ S.) 236.</p>

<p>[1] Criminal Law — Confession — Exhortation to Speak Truth ■—• Evidence.—A confession will not be excluded merely because the prisoner was exhorted or urged to speak the truth.</p> <p>[2] Id.—Burglary—Degree of—Definition of Night-time—Instructions.—In a prosecution for burglary, where the evidence is undisputed that the crime was committed in the night-time, it is not error to instruct the jury that if the defendant is guilty of burglary at all it is burglary in the first degree; and such an instruction is not rendered so erroneous as to require reversal by reason of the fact that the court defined “night-time” as being “between sundown and sunrise on the second day of June,” when what he meant to say was between sundown on the first day of June and sunrise on the second.</p> <p>1. Reasons for exclusion of confessions, notes, 18 L. R. A. (N. S.) 771; 50 L. R. A. (N. S.) .1077.</p>

<p>[1] Appeal — Bight op Appellant to Dismissal — Appeal by Despondent.—If an appellant sees fit to dismiss, his appeal and be bound by the judgment from which the appeal is taken, the respondent should not be permitted to prolong the litigation by securing a reversal upon the appellant’s assignment of errors of which the respondent has not complained. Where a respondent has not appealed, he is not entitled to a reversal of the judgment entailing,. as it does, a new trial of the action; and where he also has appealed, he must rely upon his own assignments of error.</p>

PROCEEDING for the modification'of a judgment of suspension of an attorney at law. Judgment vacated. 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>[1] Appeal—Sufficiency of Evidence—Absence of Specifications of Particulars.—Where the bill of exceptions presented on appeal from a judgment contains no specifications of particulars wherein the evidence is claimed to be insufficient to justify the findings, the question of the sufficiency of the evidence to sustain the findings cannot be considered by the appellate court.</p> <p>[2] Pleading — Mistake in Initial of Defendant — Amendment — Time.—Where through mistake and inadvertence the middle initial of a party defendant is erroneously inserted in the original complaint, the court may permit the plaintiff to file an amended complaint correcting such error, and the action against that party will be regarded as having been commenced against her at the time when the original complaint was filed.</p> <p>[3] Jurisdiction—Liquidation of Canadian Banking Corporation— Service of Process — Judgment. — The rule that jurisdiction to render a judgment personally enforceable against the defendant must be founded upon personal service of process within the state or country to which the jurisdiction of such court is confined is not applicable to proceedings in the supreme court of Ontario, in the Dominion of Canada, conducted under the “Winding-Dp Act,” and ■ amendments thereto, of that country, for the purpose of liquidating the affairs of a Canadian banking corporation.</p>

<p>[1] Appeal—Law of Case—Second Trial—Decision on Conflicting Evidence.—Where, on a new trial after reversal. on appeal of the former judgment in favor of plaintiff, the only additional testimony introduced is that of one witness called by plaintiff in rebuttal, and that negative testimony only raises a, conflict in the evidence which is resolved against -the plaintiff by the trial court, on a second appeal the decision announced on the former appeal constitutes the law of the case.</p> <p>[2] Adverse Possession—Erroneous Survey—Possession of Overlap — Payment of Taxes. — A division line, established by an erroneous survey, attaches itself to the deeds of the respective coterminous owners, and defines the lands described in each deed, so that the one in possession of the overlap holds title thereto by the same tenure as he holds the land technically embraced in the description, and the payment of the taxes on the land assessed according to such description is a payment of taxes on the land included in the overlap, for the purpose of establishing a title thereto by adverse possession.</p> <p>[3] Id.—Errors in Pleading—Amendment to Conform to Proof-Lack of Prejudice.—In an action in ejectment, errors in descriptions in the defendant’s answer and cross-complaint, and other inaccuracies in stating the facts, developed without controversy by the evidence, do not justify a reversal of the judgment in favor of the defendant, where he would have been entitled to amend to conform to the proof, and such an amendment would not have taken the plaintiff by surprise, and it is apparent from an examination of the evidence that substantial justice has been done between the parties.</p>

<p>[1] Contracts—Sale of Lumber—Authority of Soliciting Agent to Bind Principal.—A mere -soliciting agent employed by a lumber company to obtain orders, which are subject to the approval of the company and for which when accepted he is to receive a commission, has no power to bind the company by a contract for the sale of lumber, and if Ms acts can be construed as an attempt to do so, they are without authority.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco setting aside an order directing that execution issue. George H. Cahaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

PROCEEDING on Habeas Corpus to secure release from custody after conviction of violation of municipal prohibition ordinance. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Los Angeles County authorizing the county to take immediate possession and use of property condemned for use as a highway. Paul J. McCormick, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for a Writ of Habeas Corpus to secure release from state prison.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. George E. Crothers, Judge.</p> <p>The facts are similar to those stated in the opinion in General Electric Co. v. American Bonding Co., 180 Cal. 675.</p>

<p>[1] Place of Trial—Prejudice—Denial of Motion—Discretion not Abused.—Order denying motion for change of place of trial affirmed on the authority of Boss v. Kalin, ante, p. 616.</p>