Volume 54 — California Appellate Reports

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

<p>[l] Criminal Law — Rape — Use op Force and Violence — Place op Punishment — Duty op Jury to Determine — Construction op Code.—The provision of section 264 of the Penal Code, making it incumbent upon the jury to determine whether or not the defendant, if found guilty, should be imprisoned in the county prison, or in the state prison, is only applicable in cases in which the prosecution is for offenses under subdivision 1 of section 261 of the Penal Code, the rape being accomplished without force, and the female being over the age of sixteen years and under the age of eighteen years, and is not applicable when the rape is committed over the resistance of the prosecutrix by means of force and violence.</p>

<p>[1] Criminal Law—Evidence—Other Offenses.—While the general rule is that evidence of an offense other than the one for which the defendant is on trial is inadmissible where the commission of such other offense appears merely incidentally in proving a fact pertinent to the charge on trial, such proof is not held to violate the general rule.</p> <p>[2] Id.—Attempt to Commit Burglary—Appliances Used—Unlawful Possession—Evidence.—In a prosecution for an attempt to commit 'burglary it is proper to prove the possession by the defendant of an appliance used in the commission of such offense, although in making such proof his possession of the instrument appears to have been unlawfully obtained.</p> <p>1. Evidence of other crimes in prosecution for burglary, notes, 16 Ann. Cas. 669; 62 L. R. A. 236, 285, 317, 324.</p>

<p>The facts are stated in the opinion of the court.</p> <p>W. H. Smith, A. L. Whittle, Morrison, Dunne & Brobeck and Chapman & Trefethen for Appellants.</p>

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. 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>[1] Elections — Voting of School Bonds ■— Disfranchisement of Certain Voters—Result Unchanged—Refusal to Sign Bonds. Where, in connection with a school bonds election, after counting all of the votes of the disfranchised electors against the proposi-tion, for which the returns show a majority, that proposition still has a majority, such disfranchisement cannot be considered as materially changing the result, or be relied on by the chairman of the board of supervisors as a ground for refusing to sign the bonds.</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] Election of Remedies — Deed as Mortgage ■—■ Subsequent Attempt to Treat as Trust Deed.—Where in an action to quiet title to certain real property the defendant elects to claim that the bargain and sale deed from himself to plaintiff, and under which the plaintiff claims title, was intended as a mortgage, in which action the plaintiff obtains judgment, said defendant is precluded from later attempting to treat that deed as a trust deed.</p> <p>[2] Judgments — Character of Conveyance — Res Judicata. — The question whether or not such bargain and sale deed was intended as a mortgage having been expressly litigated in such former action and decided adversely to the contention of the defendant therein, that judgment constituted a bar to the consideration of the same question in a subsequent action between the same parties.</p>

<p>[1] Criminal Law — Larceny — Taking op Intoxicating Liquors. — Under the Volstead Act, wine containing more than one-half of one per cent by volume of alcohol, and manufactured since January 20, 1921, for beverage purposes, is not property or a thing of value, and is not a subject of larceny.</p> <p>[2] Id. — Burglary — Entering Building to Take Intoxicating Liquors.—A person who enters a building with intent to take wine containing more than one-half of one per cent by volume of alcohol, and manufactured since January 20, 1921, for beverage purposes, is not guilty of the crime of burglary.</p> <p>1. Property kept for unlawful purpose as subject of larceny, note, 5 Ann. Cas. 798.</p>

<p>APPLICATION for a Writ of Certiorari to review an order of the Superior Court of Humboldt County, and Denver Sevier, Judge thereof, adjudging petitioners guilty of contempt.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Divorce — Property Rights — Character of Wife’s Earnings •— Conveyance to Wife—Evidence—Inferences—Presumptions.— In this action, in which both parties alleged grounds for divorce and asked the court to adjudicate their property rights, the statements and conduct of the defendant relative to the plaintiff’s earnings afforded sufficient grounds for the inference that it was understood between them that the plaintiff’s earnings should be her separate property, and these facts, considered in connection with the presumption arising from the conveyance to her of the real property purchased with such funds, as provided by section 164 of the Civil Code, sufficiently supported the court’s finding that the property thus standing of record in her name "was her separate property.</p>

<p>[1] Pleading ■—Action to Recover Commissions — Suiticienoy oe Common Count—PArties.—In an action to recover commissions on sales of merchandise, a complaint in the form of a common count for services rendered under an express promise to pay therefor is sufficient, as against demurrers, both general and special; and several defendants may properly be joined in the action as joint debtors.</p> <p>[2] Action to Recover Commissions — Evidence — Findings — Judgment.—In this action against three corporations to recover money alleged to be due the plaintiff as commission on sales of X-ray equipment and similar articles manufactured by the defendant corporations, the evidence was insufficient to justify the trial court’s finding that the defendants, while organized as three distinct corporate entities, were owned by and operated by the same persons and had the same officers and the same place of business, or to support the judgment in favor of the plaintiff as against the corporations other than the one sales corporation with which the plaintiff had contractual relations.</p>

<p>PROCEEDING in Prohibition to prevent the Superior Court of Sutter County from trying certain actions.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Contracts—Signature by Individual—Sufficiency of to Bind Corporation.—The signature of a contract by an individual is sufficient to bind a corporation of which he is the president and general manager, and in the name of which he is engaged in the business with direct relation to which the contract is entered into, where the contract on its face purports to be the contract of the corporation, and expressly states that he is the president and general manager thereof.</p> <p>[2] Id.—Personal Services—Dissatisfaction of Employer—Bight to Terminate Agreement.—Where the contract between a corporation and a vaudeville performer provides that, “if it determines the services herein contemplated to be unsatisfactory to it,” the corporation may thereupon cancel and terminate the agreement, such agreement comes within the class of contracts where fancy, taste, sensibility, or judgment are involved, and the corporation has the right, in the absence of bad faith, to cancel and terminate the same upon determining, through its local manager invested with that discretion, that the services are unsatisfactory.</p>

<p>[2] Id.—Recovery of Money Advanced—Statute of Limitations.— Where the complaint in such action shows that the contract was abandoned and the plaintiffs do not seek its enforcement but merely to recover the money advanced by them to the defendant, and for which they received no fruit in return, their cause of action is one in implied assumpsit for money had and received and as such is barred 'by the statute of limitations after two years.</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—-Pimping—Verdict—Evidence.—In this prosecution for the crime designated “pimping” in the act approved February 8, 1911 (Stats. 1911, p. 10), the evidence was ample to support the verdict of guilty.</p>

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

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

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

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

<p>[1] Criminal Law — Assault With Deadly Weapon — Evidence — Instruction—Return of Verdict of , Simple Assault.—Where a defendant charged with the offense of assault with a deadly weapon was convicted of assault, and the evidence would have amply supported a verdict for the greater offense, it was not reversible error for the court to instruct the jury as to its right to return a verdict of guilty of simple assault, although there was no evidence of such lesser offense.</p> <p>[2] Id.—Consideration of Testimony of Defendant—Instruction.— In a prosecution for -assault with a deadly weapon, the refusal to instruct the jury that the defendant had a right to take the witness-stand in his own behalf, and that his testimony should be weighed the same as the testimony of any other witness, was not prejudicial where special instructions were given as to their duty with respect to the consideration of all the evidence.</p> <p>[3] Id.—Justification of Assault—Instruction.—An instruction in such a prosecution that if from the evidence the jury believed beyond a reasonable doubt that without any overt act or physical demonstration upon the part of the complaining witness sufficient to warrant the defendant as a reasonable man in believing that he was in great bodily danger, he assaulted such witness with a deadly weapon, such assault would not be justified, was proper against the contention that the conduct, language, and appearance of the complaining witness might justify accused in acting without any overt act or physical demonstration.</p>

<p>[1] Criminal Law — Aiding and Abetting Mtjeder — Sufficiency of Information.—An information expressly charging that at a certain time and place a named person did kill and murder the deceased in the defendant’s presence, and that the defendant then and there aided and abetted the commission of the crime, is sufficient, and more favorable to the defendant than if it had been drawn in the language of the statute.</p> <p>[2] Id.—Accusation of Participation—Silence of Defendant—Evidence.—In a prosecution for aiding and abetting a murder, testimony that the defendant sat silent when, shortly after the-crime, the murderer in defendant’s presence stated to the officers that defendant had participated in the commission, was admissible.</p> <p>[3] Id. — Inconsistent Statements of Accuser — Evidence. — Testimony as to the making of certain statements by the murderer at other times and places inconsistent with the statement made in the defendant’s presence accusing defendant of participation in the commission of the crime was not admissible where the murderer did not testify, since the incriminating testimony was admitted solely for the purpose of showing the conduct of the defendant in the face of the accusation.</p> <p>2. Uncontradicted statement in presence of accused as confession, notes, 25 L. R. A. (N. S.) 542; 42 L. R. A. (N. S.) 889.</p>

<p>[1] Criminal Law—Defense of Insanity—Evidence.-—Where a defendant in a criminal action interposes the defense of insanity, it is incumbent upon him to establish it by a preponderance of the evidence.</p> <p>[2] Id.—Murder in- First Degree—Sufficiency of Evidence.-—In this prosecution of the defendant for the killing of his wife, the contention that he was improperly convicted of murder upon facts showing nothing more than manslaughter cannot he upheld in view of the record, which amply supports the theory of the prosecution that the killing was without provocation and under such circumstances as to show an abandoned and malignant heart.</p> <p>[3] lb. — Irrational Condition — Effect of — Instruction. — An instruction that if the jury believed from the evidence that the defendant’s mind was irrational at the time of the homicide, even though caused by the continual or excessive use of alcoholic or intoxicating beverages, it was its duty to find the defendant not guilty by reason of insanity, is not a correct statement of the law, since although one may be irrational, yet if he has reasoning capacity sufficient to distinguish between right and wrong as to the particular act he is doing, and to know that it is wrong and criminal, and will subject him to punishment, he must he held responsible for his conduct.</p> <p>[4] Id. — Disregard of Sympathy — Instruction. — An instruction to the effect that the jury should not be governed by sympathy is proper.</p> <p>[5] Id. — Oral Instructions — Reduction of Portion to Writing — Request of Jury—Construction of Code.—Section 1137 of the Penal Code, which provides that upon retiring, the jury may take with it the written instructions given, does not prohibit the court, where the charge is given orally, from reducing to writing, if requested by the jury, any portion of its charge without reducing the whole thereof.</p> <p>1. Burden of proving insanity as defense to a crime, note, 97 Am. Dec. 176.</p>

<p>[1] Criminal Law—Information—Subscription by District Attorney—Waiver.—While an information must be subscribed by the district attorney and must be set aside by the court in which the defendant is arraigned, upon his motion, if it be not so subscribed, yet if such motion is not timely made, the defendant will bé deemed to have waived the objection and is precluded from afterward taking advantage of the defect.</p> <p>[2] Id.—Trial—Transcript op Testimony—Failure to Receive Demanded Copy—Lack of Prejudice.—Failure of a defendant to receive a copy of the transcript of the testimony taken in the lower court, which was demanded upon arraignment, is without prejudice in the absence of a request for a continuance or the making of any objection to proceeding with the trial, during which a transcript was present and used by counsel for appellant 'with apparent familiarity.</p> <p>[3] Id.—Jury—Absence of Talesmen—Lack op Prejudice.—The impanelment of a jury without all of the jurors on the panel being present is without prejudice although the defendant exhausted all her peremptory challenges in the absence of a showing that any objectionable juror was forced upon her after she had exhausted such challenges.</p> <p>[4] Id.—Violation op Medical Practice Act—Verdict—Absence of Variance.—In a prosecution for a violation of section 17 of the state Medical Practice Act there is no variance between the verdict and the allegations of the information where the verdict follows the charging part of the information.</p> <p>[5] Id.—Testimony of Hired Detectives—Consideration—Instruction.—An instruction that the testimony of hired detectives or state agents should not be disregarded solely for the reason that they are thus employed should not be given.</p> <p>[6] Id. — Testimony of Dependant — Instruction. — An instruction that while the defendant in a criminal case is not required to take the stand arid testify, yet if she does so, no greater presumption attaches in favor of her 'testimony than attaches in favor of any other witness, should not be given.</p> <p>[7] Id.—Misconduct op Court—Colloquy With Counsel—Admonition to Disregard—Insufficient Ground for Reversal.—Discussion on the part of the court with counsel for defendant at the conclusion of his argument as to the import and effect of certain remarks is a most serious invasion of the rights of the defendant, but no.t reversible error where admonition is given to disregard the episode.</p>

<p>[1] Divorce—Adultery—Evidence—Birth of Child After Separation.—Where in an action for divorce on the ground of the wife’s alleged adultery it appears as an uncontroverted fact that the parties have lived separate and apart for a period of four or five years, it is competent for the husband to prove either by his own testimony or that of other witnesses that although he has had no sexual relations with his wife during such period, she has conceived and given birth to a child within such time, notwithstanding the provisions of subdivision 5 of section 1962 of the Code of Civil Procedure, since the dominant purpose of such testimony is to support the charge of adultery.</p> <p>[2] Id.—Existence of Sexual Delations After Separation—Conflict of Evidence—Exclusion of Admissions by Wife—Prejudicial Error.—In an action for divorce on the ground of the wife’s alleged adultery, the exclusion of testimony offered by the plaintiff of alleged admissions by the defendant to a third party that she and her husband had not lived together and had had nothing to do with each other for four or five years prior to the date of the birth of the child last bom to her was reversible error, where plaintiff testified that he had not had sexual relations with her during said period and she, on the other hand, testified that he had frequently visited her and maintained such relations.</p> <p>[3] Id.—Property Settlement—Undue Influence—Sufficiency of Evidence.—In this action for divorce, the finding that the property settlement and deed made in pursuance thereof were procured by means of undue influence is sustained by the evidence.</p> <p>[4] Husband and Wife—Transfer of Property—Good Faith.—The relation between a husband and wife is of a confidential nature, and the law requires that in a transaction involving the transfer by the one to the other of property of value, the husband shall act in the highest good faith toward his wife to the end that he may not obtain any unfair or uneonseientious advantage over her in such transaction.</p> <p>[5] Id.—Independent Adviser—Bight of Wife.—In transactions involving the transfer of property between the husband and wife the latter should have the benefit of a full, free, and private preliminary conference with a competent lawyer or business man who was employed and paid by her in whom she has confidence and who would be devoted to her interest only.</p> <p>[6] Id.—Inadequacy of Consideration—Circumstance of Fraud.— While it is true that the want of a valuable consideration for a contract or agreement between husband and wife involving a transfer of property by one to the other is not of itself sufficient to raise the presumption of fraud or undue influence in the procurement of the agreement, yet where there is a valuable consideration which, when viewed by the light of the confidential relation existing between the parties, is so small as to shock the conscience, the fact of the inadequacy of the consideration may be considered as a circumstance tending to support the claim that the consummation of the transaction has not been free from fraud or undue influence.</p> <p>[7] Id.—Rescission of Property Settlement Agreement—Restoration of Consideration — When Unnecessary. — A wife in rescinding on the ground of undue influence an agreement settling property rights is not required to restore to the husband the money received under the agreement, where the same was used for the purpose of defraying the living expenses of herself and their minor children.</p>

<p>[1] Negligence — Driver of Motor Vehicle — Beckless Conduct_. Ignorance of Others on Highway—Instruction.—An instruction in an action for damages to an automobile received through a collision with another automobile, that it is a part of the duty of an operator of a motor vehicle to keep his machine always under control and that he has no right to assume that the road is clear, but under all circumstances and at all times he must be vigilant and anticipate the presence of others, and the fact that he does not know that anyone else is on the highway is no excuse for conduct that would amount to recklessness if be had such knowledge, is a correct statement of the law and not an invasion of the province of the jury.</p> <p>[2] Id.—Damages—Loss ot Use During Repair.—In an action for damages for injury to an automobile the plaintiff is entitled to compensation for the loss of the use of the machine while it is being repaired, regardless of whether he hires another or gets along without one.</p> <p>2. Measure of damages for destruction of or injury to commercial vehicle, note, 4 A. L. R. 1350.</p> <p>Measure of damages for damage to automobile used for pleasure, note, L. R. A, 19150. 319.</p>

<p>[1] Personal Services—Cross-complaint for Rent—Findings—Evidence.—In this action for the recovery of an alleged indebtedness for personal services wherein the defendant filed a cross-complaint for an alleged indebtedness for rent, the findings as to the existence of an agreement to pay for such services and the finding as to the nonliability for rent by reason of fire and failure to repair within the period provided in the lease are supported by the evidence.</p>

<p>[1] Appeal—Conflict of Evidence—Findings.—Findings will not be disturbed on appeal for a mere conflict in the evidence.</p> <p>[2] Negligence — Collision of Autotruck and Jitney Bus — Contributory Negligence—Evidence—Question of Fact.—In this action for damages for injury to person and property resulting from a collision between an automobile truck owned and operated by the plaintiff and a jitney bus belonging to the defendant and operated through his agent, the evidence fails to show that plaintiff was guilty of contributory negligence as a matter of law.</p>

<p>[1] Streets — Abandonment by Municipality—Procedure — Construction op Act op 1889.—Under the act of March 6, 1889 ('Stats. 1889, p. 70), giving to the city conneil of any municipality the power to' close up, in whole or in part, any street, the jurisdictional provisions of the act are not confined in their application to cases where assessments are required for improvements, since it appears that a distinction between cases where assessments are necessary and those where assessments are not necessary is first made at a point in the procedure when the council has acquired jurisdiction by the passage of a resolution of intention, the posting of such notice in the manner prescribed, the publication thereof, and such other matters as are prescribed by said act.</p> <p>[2] Id.—Closing .op Portion of Street—Failure to Follow Proper Procedure — Consent of Abutting Owners — Insufficient to Confer Jurisdiction.—Where a portion of a street in a municipality is closed by municipal ordinance and not in the manner provided by the act of March 6, 1889, the failure of the city council to acquire jurisdiction cannot be cured by the consent of the abutting property owners.</p> <p>[3] Id. — Construction of Bulkhead in Street — Insufficient Act of Abandonment.—Where certain persons claimed the area of a city street from property line to property line and a bulkhead was erected by the city in the street from curb to curb and it was apparent from the action sought to he taken by the council, as evidenced by the ordinance, that the relinquishment of the portion of the street not covered by the bulkhead was not permaEnent hut was made upon the condition that it was to he revocable at the will of the city, such act did not amount to- an actual abandonment of the street by the city.</p> <p>[4] Id,—Disuser of Easement for Five Tears—Inapplicability to Temporary Relinquishment of Portion of City Street. — The provision of subdivision 4 of section 811 of the Civil Code that an easement acquired by enjoyment may be extinguished by disuser for a period of five years is inapplicable to the rights of a city in a street in which it erected a bulkhead pursuant to an ordinance which also provided for a temporary relinquishment for parking purposes of the portion of the street not covered by the bulkhead.</p> <p>1. Power to vacate street, note, 2 Ann. Cas. 87.</p> <p>3. Reversion of title upon abandonment of street or highway, note, 18 A. L. R. 1008.</p> <p>[5] Basement — License Affecting Enjoyment — Revocation — Revival of Basement.—When the owner of an easement licenses another to do an act which affects the enjoyment of the easement, when the license is revoked, the right to the easement revives with full vigor.</p>

<p>[1] Ejectment — Fraud ■— Findings — Evidence. — In this action in ejectment involving the ownership of an undivided one-half interest in certain real property wherein defendant by cross-complaint attacked plaintiff’s title as having been founded on fraud, the evidence amply sustains every material portion of the findings upon which judgment was rendered quieting defendant’s title to the entire interest in the property.</p>

<p>[1] Prisons—Discharge of Convict—Credits—Habeas Corpus—Insufficient Petition.—An inmate of the state prison is not entitled to his discharge on habeas corpus on the ground that the term of his imprisonment has expired by reason of credits earned and not forfeited, where it is not shown by the petition that the board of prison directors by any act on its part has accorded the petitioner any credits for good conduct, or if any have been given, that they have not been declared forfeited.</p>

<p>[1] Pleading—Accord and Satisfaction.—An agreement of accord and satisfaction must be specially pleaded before it can be availed of as a defense.</p> <p>[2] Claim and Delivery—Defense of Payment—Insufficiency of Evidence—Appeal—Point not Available.—A plaintiff in an action to recover the possession of a piano sold under a contract providing for installment payments cannot contend on appeal that the evidence does not prove payment in full of the contract as'claimed by defendant, but an accord and satisfaction which not having been specially pleaded could not operate as a defense to the action, where he interposed no objection to the evidence on the part of the defendant as to the real nature of the settlement with the piano company and made no motion to strike out when advised of its purport and effect.</p> <p>[3] Id.—Basis of Action—Finding—Effect of.—Where, in an action to recover the possession of a piano, the plaintiff based his right to recover upon an alleged indebtedness of the defendant and title to and ownership of the instrument in himself, all of which was denied by the defendant, the finding substantially in the language of the pleadings as the ultimate fact that nothing was due and unpaid and that title to the piano was in defendant was amply sufficient to warrant the court’s conclusion that defendant was the lawful owner and holder and entitled to possession, and whether defendant paid in full or settled with the piano company for a less amount was immaterial.</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] Promissory Note—Execution to Wipe—Action by Husband— Pleading — Community Property. •— In an action by a husband upon a promissory note, an allegation in the complaint that the note is community property is sufficient to rebut the disputable presumption that the note is the wife’s separate property because executed to her, and to render the pleading immune from attack on the general ground of want of facts to state a cause of action.</p> <p>[2] Id.—Parties—Wipe not Proper Party.—A wife is not a proper party plaintiff in an action on a promissory note although executed to her, where the note is community property.</p>

<p>[1] Criminal Law—Forgery—Evidence—Similar Omenses—Common Design.—In a prosecution for forgery, evidence of the commission of similar offenses is admissible as tending to .prove such similarity of plan or system in committing the other acts as to indicate that the offense charged was likewise the act of the defendant.</p> <p>1. Evidence of other crimes in prosecution for forgery or uttering forged instrument, notes, 9 Ann. Cas. 456; Ann. Cas. 1912C, 91; 62 L. R. A. 193; 43 L. R. A. (N. S.) 754.</p>

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

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

<p>[1] Sales—Automobile Contracts—Ostensible Agency—Finding—■ Evidence.—In this action for the recovery of the price of several automobile sales contracts purchased for the plaintiff by his agents, the finding that the individual who sold the contracts for the defendant corporation was clothed with ostensible authority is supported by evidence of the knowledge of plaintiff’s agents of the position held by such individual with the corporation and of the sales of other contracts -by him to such agents, with the knowledge of the corporation.</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] Counties—Charges Against Employee by Supervisor—Trial— Competency to Act.—While it cannot be doubted that boards of supervisors when engaged in the prosecution of an investigation of charges or misfeasance, nonfeasance, malfeasance, or other dereliction of duty by an employee or officer of the county appointed by such board, in a sense, exercise judicial functions, strictly speaking such investigations are merely administrative, and a member of the board who has filed charges for the removal of such an employee may sit in judgment on the latter.</p> <p>[2] Id.—County Engineer—Tribunal for Trial op Charges.—It is clear from the statute authorizing the appointment of county engineers by the boards of supervisors (Stats. 1919, p. 1290), that the legislature intended in a ease where the engineer appointed is charged with dereliction of his duties as such to constitute the board of supervisors itself the sole tribunal by which such charge or charges should be heard and determined, and it is not required that resort be had to sections 758 and 772 of the Political Code.</p> <p>[3] Id. — Trials by Boards of Supervisors — Inapplicability of ' Bules Governing Judicial Tribunals.—Trials of charges against an officer or employee of a municipality or county are not controlled by or subject tp the rules that appertain to judicial tribunals, where the legislature has expressly given the governing ■body of the municipality or county the exclusive cognizance or jurisdiction of such trials.</p> <p>PROCEEDING on application for a Writ of Prohibition to prevent a member of a board of supervisors from sitting with such board on the trial of charges against a county engineer.</p>

<p>[1] Warehouseman — Participation in Unlawful Taking of Stored Property—Refusal to Return to Person Entitled—Claim and Delivery — Liability for Costs. — Where a warehouseman employed by certain persons to store household goods of which they claimed to be the owners sent his employees to the residence of the real owner thereof during her absence and removed the goods in a manner little short of larceny, and thereafter informed such owner, upon demand for the return of the goods and offer to give an indemnity bond, that she would have to bring an action in replevin, and in such action joined with his codefendants in denying plaintiff’s title and by cross-complaint asserted a claim of lien for cartage, storage, and attorney’s fees and prayed that plaintiff and his codefendants be required to interplead as to their respective rights, such cross-complaint did not constitute a proceeding in interpleader but a complaint in intervention, and he is in no position to complain of the judgment, which in awarding plaintiff possession provided for the recovery from him as well as ,his codefendants, of her costs in pursuit of the property.</p> <p>[2] Id.—Lien for Storage—Deposit by Other Than Owner or One in Lawful Possession.—While a warehouseman may by virtue of his lien retain possession of goods deposited by the owner, or by one in the lawful possession thereof, until the charges for which the lien exists are paid, such right does not apply to property of which the depositor has neither title nor right of possession.</p>

<p>[1] Appeal—Judgment—Ruling on Demurrer in Former Action as a Bar — Record — Contention Without Merit. — On an appeal from a judgment there is no merit in the appellant’s contention that by reason of the action of the court in sustaining a demurrer . to plaintiffs’ second amended complaint in a former action, an adjudication of the subject of the litigation was had which constituted a bar, where neither the second amended complaint in the former action nor the demurrer thereto is set forth in the record.</p> <p>[2] Monet Had and Received — Several Obligation — Liabilitt. — Where the liability of defendants was not founded on contract upon which they were jointly liable, but upon an implied obligation of each for money had and received without consideration, one of the defendants was not liable for money received by the other.</p> <p>[3] Vendor and Vendee — Purchase of Lots — Unrecorded Map —■ Knowledge of Vendees—Absence of Estoppel.—Where the contract pursuant to which money was paid by plaintiffs was for the purchase of lots referred to as delineated upon an unrecorded map, and hence, as declared by statute (Stats. 1907, p. 390), null and void, plaintiffs are not estopped from maintaining an action to recover the sum so paid by reason of their having had knowledge that the map was unrecorded.</p> <p>[4] Id. — Recovery oe Money Paid — Bight oe Vendees.—Where money was paid for lots referred to as delineated on an unrecorded map, no obligation was imposed upon the vendors to convey, and the money paid thereon was therefore without consideration and recoverable by the vendees.</p>

<p>[1] Pleading — Inconsistent Defenses. — Inconsistent defenses may be pleaded by a defendant, and he may plead as many defenses as he may have, and the allegation óf a fact in one defense of an answer will not operate to the disadvantage of the party making it, when the allegation is invoked against him on the trial, of an issue presented by a denial in a separate defense of the existence of the same fact.</p> <p>[2] Conversion—Laths—Insufficiency of Evidence.—In this action for the conversion of laths, the evidence is insufficient to support the finding of conversion.</p> <p>[3] Bill of Exceptions—Statement of Evidence.—A bill of exceptions need not purport to contain all the evidence bearing upon the point made by the appellant, as the moving party is only required to set forth so much of the evidence as may be necessary to explain the points specified, and when settled, it will be presumed that it contains all the evidence necessary to be stated.</p> <p>[4] Appeal—Point First Presented in Closing Brief.—A question ordinarily will not be considered by a court of review if it be presented for the first time in a closing brief.</p>

<p>[1] Judgments—Equitable Interest of Vendee Under Contract of Sale—Absence oe Lien.—A judgment lien does not attach to the equitable interest on real property acquired by a vendee under an ordinary contract to purchase, the vendee having paid a portion of the price and entered into possession, since only real property owned by the debtor at the time of docketing and real property that he may afterward acquire are subject to the lien of a judgment, although, any interest in real property, legal or equitable, may be seized and sold under execution.</p> <p>1. Estates and interests affected by judgment lien, notes, 93 Am. Dec. 345; 117 Am. St. Rep. 776.</p>

<p>[1] Appeal—Judgment on Second Trial — Order Granting New Trial not Beviewable.—Under the amendment of 1915 to section 956 of the Code of Civil Procedure, an order granting a motion for a new trial is not reviewable .on an appeal from a second judgment rendered and entered upon the retrial of the ease.</p>

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

<p>[1] Counties — Illegal Protection District Assessment—Return of Monet — Payment of Judgment from General Fund of County.—Persons owning property within a protection district from whom assessments for work have been illegally collected and who have obtained a judgment against the county for the return of' their money are entitled to be paid out of the general fund of the county and are not restricted to the protection district fund, regardless of any declaration in the judgment as to the fund from which it was to be paid.</p>

<p>[1] Building Contract — Substantial Performance.—The principle that one who has acted by virtue of a written contract has no right of recovery unless he can show that he has completed his contract or that completion has been waived or excused has no application to a building contract where the changes or omissions complained of are either ordered by the architect or are trivial in character.</p> <p>[2] Id.—Trivial Defects—Effect of.—A contractor who has substantially performed his contract will not be held to have forfeited his right to recovery by reason of trivial defects or imperfections in the work performed.- -</p> <p>[3] Id.-—-Question of Fact.—What constitutes trivial imperfections is a question of fact and the decision of the trial court upon proper evidence cannot be reviewed on appeal.</p>

<p>[1] Municipal Corporations —■ License Tax — Auctioneers — Ordinance not Discriminatory.—Provisions of a municipal ordinance requiring persons selling real estate, livestock, or second-hand goods at public auction to pay a license tax of fifty dollars per year, and requiring persons selling any other property at public auction to pay a license tax of ten dollars per day, are not void as being discriminatory.</p>

<p>[1] Agency—Purchase of Barley—Insufficiency of Oral Authorization—Statute of Frauds.—In view of sections 1624 and 2309 of the Civil Code, an oral authorization to purchase a quantity of barley, involving a consideration of more than five thousand dollars, is insufficient, where the principal has not received or accepted any part of the barley or paid any part of the purchase price thereof.</p> <p>[2] Id. — Manner of Batification.—Batifieation of an act of an agent can be made only in the manner that would have been necessary to confer an original authority for the act ratified.</p>

<p>[1] Landlord and Tenant—Essentials of Lease.—The only essentials of a valid lease are a definite agreement as to the extent and boundary of the property, a definite and agreed term and a definite and agreed price of rental and the time and manner of payment.</p> <p>[2] Id.—Nature of Instrument—Intention of Parties.—Whether an instrument is a lease in praesenti or an agreement to execute a lease in future is largely a question of the intention of the parties.</p> <p>[3] Id. — Agreement upon Essentials—Later Contract — Effect of.—Where the parties have agreed upon all essential facts there is a binding contract, notwithstanding that a more formal contract is to be prepared and signed, and when one party refuses to execute the lease according to the contract thus made, the other has a right to fall back on the written propositions as originally made, and the absence of the formal agreement contemplated is not material.</p> <p>[4] Id.—Location of Property—Certainty.—An agreement for a lease is not too vague and uncertain to be specifically performed or to constitute an agreement of the parties because it fails to specify the city and state in which the property is located, where the lessee has gone into possession.</p> <p>[5] Id.—Refusal to Execute Lease — Imposition of Different Terms.—An agreement to execute a lease for a given period at a stated rental is not broken by a refusal to execute a lease which imposes terms and conditions not imposed by law and of which no mention is made in the agreement.</p> <p>[6] Appeal—Unlawful Detainer—Payment of Money Judgment— Effect of.—Payment of the money judgment in an action of unlawful detainer is not voluntary and does not deprive the appellant of the privilege of having his rights as to such part of the judgment determined, where, the money was paid to save the property of the appellant from forced sale under execution and upon the assurance of his attorney that it could be recovered in the event of a reversal.</p>

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

<p>[1] Novation—Essentials.—Novation is the substitution of a new obligation for an existing one, and such substitution must be with intent to extinguish the old obligation.</p> <p>[2] Id.—Contract for Installation of Elevators—Remedy of Defects—Deposit of Balance Due With Instructions—Agreement not a Novation.—An agreement by a contractor to remedy certain claimed defects in his work in installing elevators on condition that the owner deposit with a third party certified checks for the balances due the contractor to be turned over to the latter upon such defects being remedied to the satisfaction of the architects, did not constitute a novation in the absence of an agreement waiving the owner’s original obligation.</p> <p>[3] Id.—Substantial Compliance—Sufficiency of.—Substantial compliance with such an agreement by the contractor is sufficient.</p> <p>[4] Id.—Agreement not an Accord and Satisfaction.—Such an agreement did not constitute an accord and satisfaction, since there was no agreement by the contractor to accept anything different or less than the amount due, and in view of the fact that the checks were not turned over to him but were returned by the depositary to the defendant.</p>

<p>[l] Appeal—Judgment—Refusal of Continuance of Tbial—Record —Point not Reviewable.—On an appeal from a judgment, the court cannot consider the contention that the appellant was wrongfully refused a continuance of the date of the trial, where the papers contained in the record do not show that a motion for a continuance was made, or the grounds of the motion, or the contents of the moving papers, or the ruling of the trial court thereon, notwithstanding the statements contained in the briefs of the respective attorneys bearing upon the subject.</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] New Trial—Discretion—Appeal.—The granting or refusing of a new trial is a matter largely within the discretion of the trial court and it is only when such discretion has been abused that the appellate court will reverse the order.</p> <p>[2] Id.—Order Granting New Trial—General Terms—Affirmance on Appeal.—Where a motion for a new trial was based on all the statutory grounds and the order granting the motion made before the amendment of 1919 to section 657 of the Code of Civil procedure was general in its terms, the order must be affirmed if it could properly have been granted on any of the assigned grounds.</p> <p>[3] Id.—Dissatisfaction With Verdict—Duty of Trial Court.-—It is the duty of the trial court to grant a new trial when it is not satisfied with the verdict.</p> <p>[4] Contributory Negligence—When Question of Law.—The question of contributory negligence is one of fact and not one of law, save in those eases in which, judged in the light of common knowledge and experience, there is a standard of prudence to which all persons similarly situated must conform, in which cases failure to reach that standard is contributory negligence as a matter of law.</p> <p>[5] New Trial—Appeal — Order When not Review able.—Where there is any appreciable conflict in the evidence or where the question as to the probative force or the evidentiary value of the testimony arises, the action of the trial court in granting a new trial is not open to review.</p> <p>[6] Id.—Presumption as to Order.—In considering the question of the correctness of an order granting a new trial, the presumption on appeal, is in favor of the order and against the verdict.</p> <p>[7] Id .—Action por Death of Railroad Brakeman—Order Granting New Trial—Presumption.—On an appeal from an order granting a new trial in an action for damages for the death of an experienced railroad brakeman who placed himself between two moving cars, it must be assumed in view of such conduct that the trial court was satisfied that the verdict of the jury rendered in favor of the plaintiff was contrary to the weight of the evidence.</p> <p>[8] Id.—Affirmance op Order.—Where the court, in the exercise of its wide discretion, has granted a new trial, and the case shows a reasonable or even a fairly debatable justification under the law for the action taken, the order will not be set aside on appeal.</p> <p>[9] Bailroads—Delivery of Defective Oar to Connecting Line—Inspection—Liability for Injuries.—A railway company which delivers a defective freight-ear to a connecting line is not liable in damages to an employee of the latter, who is injured after the car has been inspected by the company receiving it, since the loss of control over the car and over the servants having it in charge relieves the furnishing company from responsibility to the employees of the receiving company.</p> <p>9. Liability of company transferring defective car to another company for injuries received by the employees of the latter thereby, note, 46 L. R. A. 119,</p>

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

PROCEEDINGS on application for a Writ of Mandate to require the issuance of school bonds. The facts are stated in the opinion of the court.

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

<p>[1] Appeal—Insufficient Specification of Points.—On an appeal from a judgment, alleged errors in rulings during the trial and in refusing to give requested instructions will not be considered where the points are merely stated followed by references to the transcript without argument or citation of authority, or where authorities are cited, no statement is made as to what principle or rule they enunciate.</p> <p>[2] Criminal Law—Confession—Instruction.—An instruction that a confession, in criminal law, is a voluntary declaration made by a person who has committed a crime to another person, while fragmentary and incomplete, is without prejudice, where there was a plain and direct statement in the written confession that the defendant committed the crime charged.</p> <p>[3] Id.—Forgery ■—Voluntary Character of Confession — Instruction.—In this prosecution for the crime of forgery, the instruction concerning defendant’s confession is held not to have had the effect of leading the jury to believe that the court had passed upon the free and voluntary character of such confession, in view of the instruction when considered in its entirety.</p> <p>[4] Id.—Evidence—Identity of Person.—In a prosecution for forgery, questions addressed to residents of a very small place, of which the person whose name the defendant was charged to have forged was represented to be a resident, as to whether they knew such a person, were entirely proper.</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. Pat R. Parker, Judge Presiding.</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] Contract — Agency for Sale of Lots — Duration — Effect of Subsequent Trust Agreement.—Under a contract giving an agent the exclusive right of sale of lots for a period of eighteen months at prices payable in monthly installments, and providing that the compensation of the agent should be, first, a percentage of the amount of each sale, payable out of the first moneys received thereon, second, all of the purchase money for each lot in excess of a certain sum, and, third, all moneys received in the aggregate from sale of lots in excess of a stated amount, and under a declaration of trust, executed for the purpose of carrying out the contract, conveying the unsold lots and the contracts upon which payments were not fully made to the trustee, and extending the life of the contract for a period of six months, the provision in the agency contract making time of the essence thereof did not apply to the time within which the owner was to receive the aggregate amount, but to the time within which the agent should procure contracts for the sale of lots under which the owner’s share would be sufficient to make such aggregate.</p>

<p>[1] Personal Services — Correspondence — Account not Stated. — Tti this action to recover moneys alleged to be due for personal services, the defendant’s silence in failing to answer a letter of the plaintiff stating the amount of his claim and asking for a remittance did not constitute an admission- as to the correctness of the amount, making it an account stated, in view of the fact that a few days previously defendant, in answer to a prior letter of the plaintiff asking for a check for the balance claimed, refused to make any further payment and claimed that defendant had been wronged. .</p> <p>[2] Id. — Oral Contract op Employment — Statute op Frauds. — An oral contract of employment for a term of ten years is invalid under subdivision 1 of section 1624 of the'Civil Code.</p>

<p>[1] Divorce — Interlocutory Decree —• Temporary Alimony — Final Decree—Provision for Permanent Allowance—Jurisdiction.—A court has jurisdiction under section 139 of the Civil Code to provide in a final decree of divorce for the support and maintenance of the wife, notwithstanding the interlocutory decree of divorce awarding alimony until the entry of the final judgment has become final and no right to make any order for further alimony ’ is reserved therein, and notwithstanding such section was enacted before the law was changed providing for interlocutory judgments in divorce cases.</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>

PROCEEDING on Habeas Corpus to secure the release of a person held in custody as a fugitive from justice. The facts are stated in the opinion of the court.

<p>[1] Lease — Surrender of Possession — False Representations — Rescission—Recovery of Property.—Where a lease provides that the lessee shall surrender possession of the leased premises, together with the crop of fruit thereon, upon the payment to him of a given sum of money, if the premises are sold and the purchaser shall require possession before a specified date, but that if the premises are not so sold the lessee shall pay a given sum of money as rent and the crops raised on the premises shall be his property, and said lessee is induced to surrender possession of the premises and the crop of fruit thereon by the representation of the lessor that the property is so sold, upon the discovery of the falsity of such representation the lessee is entitled to rescind and repudiate the transaction, returning the money received from the lessor and paying the agreed rent, and to recover all the property he has been induced to relinquish.</p> <p>[2] Id.—Sale of Crop by Lessor—Recovery of Monetary Equivalent. During the period of time such lessee was out of possession, the lessor having sold the .crop of fruit to a bona fide purchaser for value and thereby put it out of her power to make restitution of the fruit itself, the lessee, still basing his right to relief upon his rescission and repudiation of the fraudulent transaction, is entitled to recover from the lessor the money for which the fruit was sold, less the amounts due from him to her, not as damages for loss sustained, but as the monetary equivalent of the fruit which belonged to him when he rescinded the transaction.</p> <p>[3] Evidence — Credibility of Witnesses — Weight of Evidence — Province of Trial Judge—Findings—Appeal.—Matters going to the credibility of witnesses and to apparent inconsistencies between the statements of witnesses and the admitted facts ordinarily fall within the exclusive province of the trial judge, and the appellate court may not reverse his findings unless the record demonstrates that in the very nature of things the testimony of a witness cannot be true.</p> <p>[4] Leases — Action to Recover Sale Price of Fruit — Statements of Agent—Evidence.—In an action by the lessee to recover from the lessor the money for which the fruit was sold, after plaintiff had rescinded and repudiated the transaction whereby he had been fraudulently induced to surrender possession of the leased premises, • plaintiff is properly permitted to testify, over defendant’s objection, that defendant’s agent told him that the premises had been sold and that the purchaser had demanded possession, although defendant was not present at the time such statement was made, and such agent is properly permitted to testify to what he, as defendant’s agent, told plaintiff respecting the sale of the ranch and the necessity for surrendering possession to the supposed purchaser.</p> <p>[5] Id.—Rescission and Tendee — Sufficiency of. ■—• The letter from the lessee to the lessor having expressed the willingness and abil ity of the lessee to return to the lessor the sums of money to which the latter was entitled upon the former’s repudiation of the transaction whereby he was induced to surrender possession of the leased premises, that was all that was required. It was not necessary that the language of such tender conform to technical niceties.</p> <p>[6] Id. — Conversation With Agent — Objection to General Question—Error.—Where, after a witness for the defendant has detailed a conversation which she had with defendant’s agent, the court sustains an objection to a general question asked such witness as to whether she had any other conversation with such agent, and the defendant makes ho attempt to show the nature of the conversation which she expects to prove by such witness, error is not affirmatively shown.</p>

<p>[1] Criminal Law—Murder of Peace Officer—Probable Cause for Making Arrest—Evidence—Instructions.—In this prosecution for the murder of a peace officer, in view of the evidence showing that just prior to the murder a burglary had been committed, that the deceased and other officers were on the lookout for the burglars, that because of the defendant’s actions suspicions were directed toward him, that the defendant knew he was dealing with a peace officer, and that the defendant shot the deceased when the latter was placing him under arrest and severely wounded another officer, the trial court did not commit error in refusing to instruct the jury that “the evidence shows as a matter of law that the officers had not probable cause to believe, nor reasonable ground for suspicion that a felony had been committed by the defendant.”</p> <p>[2] Id. — Relative Location of Parties —• Evidence'— Expert Testimony.—In a prosecution for murder, where the jury have before them, in ordinary lay language, a description of the course of the bullets after they entered the body of the deceased and other evidence from which they can determine the relative. positions of the parties when the shots were fired, it is not error to deny the defendant permission to introduce expert testimony to prove that fact.</p>

<p>[1] Trials-—Notice op Motion to Set—Compliance With Statute.— Both a notice of motion to set and the presence of counsel at the hearing of said motion are matters without the provisions of section 594 of the Code of Civil Procedure, and they neither sustain nor violate the calls of that statute.</p> <p>[2] Id. — Notice op Trial — Power op Court to Shorten. — Section 1005 of the Code of Civil Procedure does not confer the power on a trial court to shorten the five days’ notice of time and place of trial prescribed by section 594 of that code.</p>

<p>[1] Criminal Law—Failure to Provide for Minor Child—Fvldence —Belief of Prosecutrix—Appeal.—In a prosecution for failure to provide for a minor child, the jury have the right to accept the testimony of the prosecutrix with reference to the paternity of the child as true, as against the testimony of the defendant that at the time the sexual intercourse was claimed to have taken place he was on the high seas, even though the latter is corroborated by both oral and documentary evidence, and the appellate court cannot review their decision upon the credit to be given the witnesses or the weight of the testimony.</p> <p>[2] Id.—Time of Commission of Offense—Appeal.—In a prosecution for failure to provide for a minor child, the jury is correctly instructed “that it is wholly immaterial on what day or night the offense charged in the information was committed, provided you believe from the evidence it was committed and that the same was committed within three years prior to the filing of the information in this case.”</p> <p>[3] Id. — Date of Act of Sexual Intercourse — Instructions. — In a prosecution for failure to provide for a minor child, an instruction which informs the jury that the date of the act of sexual intercourse need not be proved to have been even within the period of three years before filing of the information correctly states the law.</p> <p>[4] Id. •— Dependence of Child upon Charity — Evidence. — In this prosecution for failure to provide for a minor child the evidence showed that the child of the defendant was dependent upon charity foi its food, clothing, and shelter, and this "was sufficient, under section 270 of the Penal Code, to render the defendant criminally liable.</p> <p>4. Criminal responsibility of parent for failure to support child where support is furnished by others, notes, 32 L. R. A. (N. S.) 841; L. R. A. 1915A, 564.</p> <p>[5] Id.—Ability of Defendant to Maintain Offspring—Evidence— Inference.—In a prosecution for failure to provide for a minor child, evidence showing that the defendant is able-bodied and in the employ of the United States government in the capacity of chief machinist’s mate is sufficient, in the absence of any contrary showing, from which the jury might properly draw the inference that the defendant possesses the ability to maintain his offspring.</p>

<p>[1] Promissory Note—Time of Payment—Oral Agreement.—In the absence of fraud or mistake, the time of payment as fixed by the written terms of a promissory note cannot be varied by any contemporaneous oral agreement.</p> <p>[2] Id.-—Oral Stipulations’—Merger in Written Agreement.—The rule that a writing which purports to be the complete contract of the parties is deemed in law to be the full repository of the agreement or contract, that the whole contract is expressed by it, and that evidence of oral stipulations is not admissible to incorporate other elements in it or to alter or enlarge its terms, is applicable to negotiable as well as to non-negotiable instruments.</p> <p>[3] Id. — Failure to Object to Oral Evidence — Effect of. — The failure to object to the admission of evidence of an oral agreement whereby the parties to a promissory note -stipulated that it should not become payable until such time as the payee should see fit to demand payment does not alter the legal rights of the parties, as expressed in the note, but the ineompeteney of such evidence to vary the writing may be considered as a matter of law.</p> <p>[4] Id. — Time of Payment — Extension by Oral Agreement. — The time of payment as fixed by the written contract of the parties may not be suspended or extended by a subsequent unexecuted oral agreement.</p> <p>[5] Id.—Prior Oral Agreement—Estoppel.—An oral agreement made prior to the execution of a promissory note, whereby it was agreed that the note should not become payable until such time as the holder should see fit to demand payment, will not estop the payee from claiming that the note is payable in accordance with the maker’s express written promise to pay “one day after date, without grace.”</p> <p>[6] Id.—Estoppel—Representations—Existing Facts—Future Contracts.—It is the general rule that, to work an estoppel, a statement or representation made during the negotiations that terminate in a written contract must relate to an existing fact and not to a mere promise of future performance; and the only exception to this rule is where the representation relates to the intended abandonment of an existing right. The doctrine of estoppel, therefore, has no place or application when the representation relates to rights depending upon contracts yet to be made to which the person complaining is yet to be a party.</p> <p>2. General rule that parol evidence not admissible to vary, add to, or alter a written instrument, note, 17 L. R. A. 270.</p> <p>[7] Id.—Subsequent Oral Agreement—Estoppel.—Estoppel to claim payment of a promissory note in accordance with its express terms cannot be predicated on an alleged oral agreement, made by the agent of the payee subsequent to the execution of the note, to the effect that the instrument would not become payable until payment should be demanded.</p> <p>[8] Id. — Breach of Promise — Disappointment of Expectations — Estoppel.—The doctrine of estoppel will not arise simply from a breach of promise as to future conduct or from a mere disappointment of expectations.</p> <p>[9] Id. — Oral Agreement as to Time of Payment — Excuse for Delay—Code Provision Construed.—Where a promissory note is made payable “one day after date, without grace,” the maker cannot successfully claim that, by reason of the provisions of subdivision 3 of section 1511 of the Civil Code, delay on his part in the performance of the obligation was excused by oral statements made by the payee’s agent, at the time of and subsequent to the execution of the note, to the effect that the instrument would not become payable until payment should be demanded.</p> <p>[10] Id.—Time and Place of Payment—When Demand and Presentment Unnecessary.—Where a note is payable at a particular time and place neither demand nor presentment at the place named is necessary in order to entitle the holder to maintain an action against the maker to recover the principal.</p> <p>[11] Id.—Ability and Willingness to Pay—Defense—Pleading and Proof.—The ability and willingness of the maker of a note to pay it at maturity at the place named therein is a matter of defense that must be pleaded and proved by him, if he would establish the equivalent of a tender and thus prevent the holder from recovering further interest and costs of suit.</p> <p>[12] Id.—Extinguishment of Obligation—Sufficiency of Tender.— To effect the extinguishment of an obligation under section 1500 of the Civil Code, there must be a full compliance therewith; and a failure to deposit the money in the name of the creditor is fatal to any claim of extinguishment.</p> <p>[13] Id.—Tender of Insufficient Amount—Debt not Extinguished. Where a promissory note provides for the payment of attorney’s fees “if suit should be commenced,” the deposit with a bank, after the commencement of action, of an amount which does not include the attorney’s fees not only does not extinguish the debt, but it cannot preclude the holder of the note from recovering his costs and attorney’s fees.</p>

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

<p>[1] Pleading — Common Count — Work and Labor — Special Contract.—In an action for work and labor performed, if the complaint is in the form of a common count it is not rendered demurrable on special grounds by reason of the inclusion therein of an allegation to the effect that the defendant, agreed to pay for the work and labor “upon a special contract.”</p> <p>[2] Negligence—Fumigation of Tbees—Evidence.—In this action for work and labor performed by plaintiff in the fumigation of defendants’ orchard, wherein the defendants by cross-complaint sought to recover damages for injuries alleged to have been caused to their trees and fruit because of the alleged negligence of plaintiff in the performance of the work, the trial court was amply justified in finding that the damage, if any, to defendants’ trees was not occasioned by any negligence on the part of plaintiff.</p>

<p>[1] Estates — Remainders — Construction. — Where the question is doubtful, estates in remainder are to be construed as vested rather than contingent.</p> <p>[2] Id.—Devise of Life Estate to Widow—Remainder to Children —Vested Estate—Death of Child.-—Where a testator devises his property to his surviving wife for and during the term of her natural life and upon her death the remainder to Ms son and daughter, said remainder to be held by said son and daughter from the time of the death of their mother as tenants in common, in equal proportions forever, such remainder is a vested and not a contingent remainder; and where the daughter dies before her mother, her interest in the remainder vests in her heirs, subject to administration, and does not lapse.</p> <p>[3] Quieting Title—Action by Heir Before Distribution.—The administrator’s title and possession of real property is not adverse to the heir, but the latter, subject to said right of the administrator, can maintain an action to quiet his title and recover possession as against anyone but the administrator even while the estate remains undistributed.</p> <p>2. Character of remainder given by will as affected by a direction that children, etc., of a deceased remainderman shall take their parents’ share, notes, 2 Ann. Cas. 645; Ann. Cas. 1917B, 1245 ; 37 L. R. A. (N. S.) 728.</p>

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

<p>[1] Criminal Law—Perjury—Insufficient Complaint.—If the complaint in a criminal action in which the defendant is charged with having conducted the game of “stud-horse poker” fails to charge a public offense, the testimony of the defendant therein under oath, though false, will not amount to perjury.</p> <p>[2] Id.—Violation of Section 330, Penal Code'—• Pleading and Proof.—In order to constitute an offense under section 330 of the Penal Code, it is essential that it be alleged and proved that the game, whether described under any of the names specifically given in that section, or under the general term of “banking or percentage game,” shall have been played “for money, cheeks, credit, or other representative of value.”</p> <p>1. Distinction between false swearing and perjury, note, 8 Ann. Cas. 881.</p>

<p>[1] Negligence—Action by Insurance Carrier for Damages—Pleading—Evidence—Findings—Judgment.—In an action by an insurance carrier against a third person for injuries alleged to have been occasioned by the latter to an employee of the insured, evidence that since the accident the injured employee had received compensation from the plaintiff amounting to a specified sum, exclusive of Ms doctor and hospital expenses, and that a named doctor treated such employee, acting upon the. request of plaintiff, standing alone, is not sufficient to support allegations that plaintiff was the insurance carrier of the employer of the injured employee, that after the accident it furnished such employee with hospital and medical expenses and had been and was paying him workmen’s compensation; and a judgment in favor of the insurance carrier is not supported by such evidence.</p> <p>[2] Id.—Contributory Negligence—Cause of Injuries—Conflicting Testimony-—Findings—Appeal.—In an action against an independent contractor for damages for injuries alleged to have been caused to an employee of the general contractor on a building, due to the negligence of the defendant in the manner of anchoring a gin pole used in hoisting heavy rafters or trusses, findings that the injured employee was not guilty of contributory negligence and that his injuries were the result of the falling of the gin pole erected and used by defendant, if based upon conflicting testimony, are binding upon the appellate' court.</p> <p>[3] Id.—Weight of Trusses—Dimensions—Judicial Notice.-—Where the record on appeal shows that the rafters or trusses being raised by the defendant were made out of pine wood and after each one had been constructed it was about sixty feet long from tip to tip, about twelve feet high, and, when the planks had been nailed together, the dimensions of a cross-section were eight by ten inches, the appellate court will take judicial notice that each of such trusses was a very heavy load.</p> <p>[4] Id.—Gin Pole as Dangerous Instrumentality—Care Required— Evidence—Finding.—To stand a gin pole of great weight, thirty-seven feet six inches long, perpendicularly is to maintain a very dangerous instrumentality; and when the danger is great the care required is great; and in this action the trial court was justified in finding that the gin pole erected by defendant was negligently and carelessly secured.</p>

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

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

<p>[1] Municipal Corporations—Los Angeles—Ordinances Immediately Effective — Denial of Bight of Beferendum. — Under the Los Angeles charter, ordinances of the kinds which are excepted by section 198g thereof from the operation of the thirty days clause, which includes those “for the immediate preservation of the public peace, health or safety,” etc., take effect upon their publication, and the right of the people to exercise the referendum against them is denied.</p> <p>[2] Id.—Absence of Ordinance upon Given Subject—Assertion by Council Final Unless Falsity Shown by Pooof.—When a city council, in the pursuit of its legislative duty, makes the assertion in an ordinance that the previous ordinances dealing with the same subject have been repealed, and that there is no ordinance in force relating thereto, that assertion demands the fullest respect and credence at the hands of the courts, unless its falsity is adequately demonstrated.</p> <p>[3] Id.—Insufficient Denial of Existence of Ordinance—Assertion Unimpeached.-—In a court attack upon such ordinance, a mere denial that there was no ordinance in force relating to that subject, without any attempt to show by affirmative allegation what ordinances were in effect, does not adequately controvert the assertion made by the council, and the assertion of the council must stand as unimpeached and conclusive.</p> <p>[4] Id.—Solicitation of Custom and Patronage at Bailroad Depot— Urgency Peculation—Statement of Emergency.—The statement by the Los Angeles city council, in an ordinance prohibiting the solicitation of custom and patronage in railroad depots and upon railroad depot grounds and upon portions of the public streets adjacent thereto, regulating the solicitation of custom and patronage upon railroad trains and other vehicles operated as common carriers, and regulating the standing of vehicles upon depot grounds and portions of the public streets adjacent thereto, that there was no ordinance in force upon that subject, taken together with its assertion of the other matters and conditions which naturally and inevitably followed from the fact that there was no such ordinance, showed that there existed such a ease of urgency as to authorize the city council, under section 198g of the charter, to provide that such ordinance take effect immediately upon its publication.</p>

<p>[l] Injunction—Restraining Order—Appeal.—A restraining order in its effect is an injunction, and is an injunction though temporary; and the statute, in giving the right of appeal from an order granting an injunction, makes no distinction between temporary and permanent injunctions.</p> <p>1. Distinction between temporary injunction and restraining order, note, Ann. Cas. 1917B, 123.</p> <p>[2] Id.—Issuance Pendente Lite—Remedy of Party Aggrieved.-—The only remedy of a party against whom an injunetion pendente lite has been, granted, if aggrieved by the injunetion. issued, is an appeal from that "order, or a trial of the action on the merits in the superior court.</p> <p>[3] Id.—Divorce—Order Requiring Defendant to Vacate Premises— Appeal.—An order in a divorce proceeding made pendente lite and prior to judgment wherein, among other things, the defendant is required “to forthwith vacate the residence of plaintiff” at a stated address and also to "deliver to counsel for plaintiff the key to the front door of said premises and any other keys that will give defendant ingress to said premises or any part or portion thereof,” is an appealable order; and such an appeal, if taken, will stay the operation of-such order in so far as it is mandatory in character.</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>[1] Contracts—Failure to Deliver Water Stock—Action fob Damages—Pleading.—In an action for damages for the breach of a written contract to furnish, for irrigation of land leased by plaintiff from defendants, a certain number of shares of the capital ' stock of a given water company, the complaint is not subject to general demurrer because it fails to state of what the capital stock of that company consists and the quantity of water in inches and feet that plaintiff would be entitled to as the possessor of such shares, or how many acres it would have irrigated, or how many acres plaintiff prepared for irrigation.</p> <p>[2] Id.—Time fob Delivery of Shares—Construction of Lease.—A provision in a lease that the lessors “will furnish for irrigation of said land during said term” a certain number of shares of the capital stock of a given water company means that the water stock is to be placed in the hands of the lessee at the beginning of the term and so remain in his hands during its entire period.</p> <p>[3] Id.—Demand for Delivery of Stock—Pleading.—The complaint having alleged that the defendants “failed and refused to furnish said water stock or any part thereof,” this was a sufficient allegation of demand for the stock, as against defendants’ general demurrer.</p> <p>[4] Id.—Susceptibility of Land to Irrigation—Pleading.—In such an action, the complaint is not defective because it fails to state that the land was susceptible of irrigation and that without irrigation it would be valueless, the complaint being sufficient as against a general demurrer if it states facts which show jurisdiction of the court, that the defendants were under a certain duty to the plaintiff and the facts from which the duty arose, that there was a breach thereof and that as a result of the breach plaintiff was damaged.</p> <p>[5] Id. — Ability of Water Company to Supply Water — Unnecessary Allegation.—In such an action, the complaint is not defective because it fails to state that the water company had the water and could have supplied the plaintiff with the same had he received the stock from the defendants.</p> <p>[6] Id. — Failure to Find upon Probative Facts — Absence of Reversible Error.—In such an action, the trial court having found the ultimate facts as to the breach of the contract by the defend- ’ ants and the resulting damage to the plaintiff, its failure to find upon the probative facts pleaded in plaintiff’s complaint, to the effect that the land was good agricultural land and in good condition to produce a crop of corn, etc., will not constitute reversible error.</p> <p>[7] Id. — Sufficiency of Conclusions of Law. — In such an action, conclusions of law “That the plaintiff is entitled to have judgment against the defendants”, in a specified Sum “as damages, and that the defendants are not entitled to recover anything from the plaintiff on their said cross-complaint,” are sufficient.</p> <p>[8] Id.—Incomplete Conclusions of Law—Reversal of Judgment.— A judgment which is lawful will not be reversed because of the fact that the conclusions of law are incomplete, such as where the plaintiff is clearly entitled to his costs and the conclusions of law do not direct a judgment therefor.</p>

<p>[1] Estates of Deceased Persons—Action for Services—Agreement of Parties—Evidence—Finding.-—In this action against an executor to recover a balance alleged to be due to plaintiffs for personal services rendered and moneys expended for the defendant’s testate during her lifetime, the evidence was sufficient to warrant the conclusion of the jury that the agreement for earing for the deceased, as originally made with her agent, did not include ser-' vices as a nurse and the constant attention which, it developed after the deceased had been in the home of the plaintiffs for a short period, was absolutely necessary to make her as comfortable as she could be made under the circumstances, and that such agent, subsequent to the making of the original agreement, promised to pay additional compensation for the required additional services.</p> <p>[2] Id.—Proof of Services—Recovery of Compensation—Payment— Burden of Proof.—In such action, it having been admitted that a .certain sum had been paid on account, the proof of the services rendered was sufficient to entitle the plaintiffs to recover any balance that might be due, the -burden of proving the payment of the account being upon the defendant.</p> <p>[3] lb.-—Book Entries—Absence of Personal Knowledge—Right to Refresh Memory from. — In an action against an executor to recover a sum of money for goods had and received by the deceased during the latter’s lifetime and while she was at the home of plaintiffs, it is error to permit a daughter of the plaintiffs to refresh her memory from the entries made by her in a book at or about the time the goods were furnished, where such entries were not based on facts within her own personal knowledge, but on facts which had come to her knowledge only through the statements or declarations of her mother or others.</p>

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

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

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

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

<p>[1] Costs—Nonsuit.—A defendant is entitled to recover his costs on the granting of his motion for a nonsuit.</p>

<p>[1] Pleading—Damages—Insufficient Complaint.—In this action, in "which there was no allegation of damage but in which the plaintiff sought to recover from the defendant a sum of money because of the trouble and expense to which she had been put by reason of the defendant’s having taken an appeal from a judgment in her favor in a prior claim and delivery action and because of the depreciated value of a certain horse at the time it was returned to her, after the affirmance on appeal of the judgment in such prior claim and delivery action, the complaint was subject to demurrer, not only on the ground of insufficient facts, but also on the grounds that it was uncertain, ambiguous, and unintelligible.</p>

<p>[1] Husband and Wife—Acquisition of Property in Joint Names— Presumption—Rebuttal.'—Under section 164 of the Civil Code, as it read in 1908, only a rebuttable presumption arose that any portion of the property conveyed to a husband and to his wife was the separate property of the wife; and in this action to enjoin the sále on execution, under a judgment obtained against the wife, of certain real property which had been conveyed to plaintiff and to her husband in 1908, but which was claimed to be exempt by reason of an alleged declaration of homestead filed by the husband, such presumption was disputed and overthrown by other evidence . amply sufficient to justify the finding of the trial court that the property was community property when designated as a homestead.</p> <p>[2] Id.—Death of Husband—Erroneous Inventory—Estoppel.-—In such action, the plaintiff was not estopped from asserting the community nature of the property by reason of the fact that in the course of the administration of her husband’s estate she returned an inventory in which she set out a one-half interest in the property as belonging to the estate, where such inventory was prepared by her attorneys, who did not understand the real nature of her interest in the property, and the error in the inventory was called to the attention of the probate court and it made an order setting apart the property to plaintiff as a homestead.</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—■ Embezzlement — Ownership of Monet — Evidence—Verdict.—In a prosecution for embezzlement, where it is claimed that the evidence is insufficient in that the money embezzled belonged to the complaining witness and another person, while the charge is laid in the information that it belonged to the complaining witness alone, the testimony of the complaining witness that he gave the money to defendant out of his own pocket is sufficient, if believed by the jury, to sustain a verdict of guilty. ■</p> <p>[2] Id. — Commission of Wrong — Admission by Defendant — Evidence.—In such a prosecution, it is not error to permit the district attorney to testify, over the objection of defendant, that defendant stated to him that he had admitted to a party in Los Angeles the commission of a wrong of some sort in the northern portion of the , state, notwithstanding there is no evidence showing that the admission related to the present case.</p> <p>[3] in. — Other Offense — Erroneous Question ■—Prompt Admonition—Lack of Injury.—In such a prosecution, defendant could not have been injured by the action of the district attorney, after he had asked defendant whether or hot the latter was in an automobile when arrested, in asking the further question, “Is it not a fact that, when the policeman approached you, you told them you were going right to Stockton to straighten up about that car?” where the court promptly sustained defendant’s objection to such question and charged the jury that the matter should not have the slightest weight with them.</p>

<p>[1] Judgments — Default ■—■ Motion to Vacate — Discretion — Appeal.;—In this action in which a complete settlement of all the matters in controversy was entered into between defendant and plaintiff, but in which the latter thereafter committed a breach of faith in failing to dismiss the action and in having the default of defendant entered, the affidavit of defendant, filed in support of his motion for an order setting aside the judgment, setting forth the above facts and that defendant did not learn of the default until some time after it was entered, showed a case appealing to the wise discretion of the trial court, and the appellate court could not say it was an abuse of that discretion to grant the motion.</p> <p>[2] Id.—Delay in Seeking Relief—Sufficiency of Excuse—Appeal —Presumption.—Where the affidavit of defendant on motion for an order setting aside a judgment by default is supplemented by parol proof, but that testimony is not presented to the appellate court on appeal from the order granting defendant’s motion, it must be presumed that such testimony furnished a complete and satisfactory excuse for any seeming remissness on the part of defendant in not sooner seeking relief from the judgment taken against him by default.</p> <p>[3] Id.—Affidavit of Merits—Verified Answer.—On a motion for an order setting aside a judgment by default, a sworn answer positively denying the material allegations of the complaint is a sufficient affidavit of merits.</p>

<p>[1] Quieting Title—Pleading—Issues—Burden of Proof—Findings. In an action by a special administrator to quiet title to certain real property, where the answer of the defendants denies the plaintiff’s asserted right and interest in the property and generally avers title in themselves, the plaintiff is put upon proof of his own asserted title and an issue is created which justifies the trial court in finding that during her lifetime, and while she was the owner of the property, plaintiff’s intestate made, signed, ar.l delivered to a third party, with instructions to deliver to the grantees upon the grantor’s death, a deed conveying the property to defendants, that such grantor reserved no power thereafter to revoke or otherwise control said deed and at the time intended to make said delivery absolute, that said third party held said deed during the lifetime of the grantor and upon her death delivered it to the defendants.</p> <p>1. Efficacy of deposit of deed with third person to be delivered after grantor’s death, notes, Ann. Cas. 1915C, 378, 385, 388; 4 L. R. A. (N. S.) 816; 9 L. R. A. (N. S.) 317.</p> <p>[2] Id. — Delivery of Deed to Third Party — Instructions to Deliver on Death of Grantor — Intent — Evidence — Findings — Appeal.—The question as to the intention with which the grantor of real estate makes and delivers ,a deed thereof to a third person with instructions to deliver the same to the grantee upon the death of the grantor is a question of fact to be determined by the trial court from all the circumstances of the case; and its determination of that fact, if it can be fairly drawn as a reasonable inference from evidence educed before the trial court, will not be disturbed upon appeal.</p>

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

<p>[1] Deed of Gift—Reformation—Judsment—Action to Set Aside— Defense—Fraud-—Proof.—In order for the heirs at law of the grantor in a deed of gift to prevail in an action brought by them to vacate and annul a judgment obtained in a prior action reforming the description in such deed, they must show not only that such prior judgment was procured by fraud, but also that they had a substantial defense to the action in which that judgment was rendered.</p> <p>[2] Id.—Defective Description-—Subsequent Bona Fide Purchaser for Value—Reformation—Superiority of Equities.—Equity will not refuse to reform the description contained in a deed from a husband to his wife because it was a mere voluntary transfer without any consideration, where subsequent to the execution of the conveyance, but prior to the commencement of the action for the reformation thereof, a portion of the land intended to have been conveyed passed by mesne conveyances to plaintiff, who paid full value therefor, and his predecessors in interest, including the grantee of the husband, had been for over fourteen years in the open, notorious, actual, and continuous possession of the same, and paid all the taxes thereon, whereas the defendants’ only claim of title was based upon the fact that they were heirs at law of the grantor.</p> <p>[3] Id. — Action for Reformation — Parties ■—• Subject Matter — Res Ad judicata.—The action for the -reformation of the deed of gift from the husband to the wife having been brought against a daughter of the grantor, as the administrator of his estate, by one asserting title to a particular portion of the land claimed to have been omitted from the description in the deed by mistake, the judgment in that action did not constitute an adjudication of the claim of said daughter personally to a different portion of the land under a conveyance from her mother.</p> <p>[4] Adverse Possession—Statute of Limitations—Claims of Heirs —Title Under Independent Source.—The fact that the plaintiffs claimed title to the property as heirs of their father would not stop the statute of limitations from running against them and prevent others from obtaining title' to the property by adverse possession, where the latter asserted title from an independent' source in opposition to the estate of the father, and not as heirs, or successors of heirs, of the father.</p> <p>2. Reformation of instrument based on no consideration, note, 10 Ann. Cas. 523.</p>

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

<p>[1] Contracts — Highway Construction—■ Excavations Between Header Boards—Bight to Compensation—Evidence—Findings— Judgment—Appeal—Presumptions.—On an appeal from a judgment directing the issuance of a writ of mandate requiring the county engineer to make a true and correct final estimate of excavations made by the plaintiffs under a contract for the construction of a concrete highway for the county, in the absence of the evidence and findings, it must be presumed that the evidence supported the judgment; and the decision of the engineer as to what work was necessary under the contract as the work progressed being conclusive, the plaintiffs were entitled to compensation for the excavation made, in filled sections, between the header boards placed along the sides to hold the concrete in place as it was poured, as ordered by the county engineer, and as provided in the specifications covering the contract.</p>

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

<p>[1] Criminal Law—Burglary—Information in Two Counts—Evidence—Verdict.—Where an information is in two counts, the first charging that on a certain date the defendant unlawfully, feloniously, and burglariously entered a certain dwelling-house, with the intention then and there to commit the crime of larceny, and the second charging a similar entry of the same house on a different date, and evidence is received concerning both charges, a verdict of the jury, without particular designation of either count, finding the defendant guilty of burglary in the first degree .is a verdict of guilty on both counts. e</p> <p>[2] Id.—Insufficient Evidence on One Count—Judgment—Lack of Prejudice.—Where such defendant, although convicted on both counts, is ordered by the judgment to be punished by imprison-meat in the state prison “for an indeterminate period for the crime of burglary in the first degree,” he is not prejudiced by reason of any insufficiency of the evidence to sustain the verdict on the second count, if he is convicted upon sufficient evidence relating to the first count.</p> <p>[3] Id.—Possession of Stolen Property—Insufficient Evidence.— In this prosecution for burglary, aside from the defendant’s possession of the stolen property at a date more than two months after that property appeared to have been stolen, there being no evidence tending to prove defendant’s guilt of the crime of burglary as charged in the first count of the information, the evidence was insufficient to sustain the verdict of guilty.</p>

<p>[1] Negligence — Operation of Truck by Wife of Employee — Liability of Owner for Damages.—Where the driver of an auto-truck, while on a long trip with the vehicle in the regular course of his employment, accompanied by his wife, becomes fatigued and, in order temporarily to rest himself, allows his wife to operate the truck, the owner of the truck is liable for the damage caused by her negligent operation thereof, notwithstanding she was not employed by the owner nor under any authority conferred by the owner upon her husband.</p> <p>1. Liability of master for injury to property or person of one to whom he owes no contractual duty by acts of volunteer whom servant permits to assist in performance of master’s service, notes, 13 L. R. A. (N. S.) 572; 45 L. R. A. (N. S.) 383.</p>

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

<p>[1] Jtjdgment-boll—Contents—Appeal—Order, Fixing Time to Answer.—Dnder section 670 of the Code of Civil Procedure, .an order fixing the time to file an amended answer, or an answer to an amended and supplemental complaint, after answer stricken out, is not a part of the judgment-roll; and, where an appeal is taken on the judgment-roll alone, such an order, though included therein, may not be considered.</p> <p>[2] Id.—Failure to Answer—Entry of Default Before Ten Days —Lack of Error.—A judgment-roll which shows that the default of the defendant was entered without allowing it ten days after service and filing of an amended and supplemental complaint to answer does not show error, there being no showing as to the time allowed by the court in which the defendant might have answered such complaint.</p> <p>[3] Judgment—Default—Ministerial Capacity of Clerk—Presumption in Favor of Acts. — While a clerk acts in a ministerial capacity in entering defaults and in rendering default judgments and while his acts are not supported by the presumptions to be indulged in connection with the judgments of courts of superior jurisdiction, he is a public officer and his solemn acts done in the discharge of his official duty cannot be set absolutely at naught except upon some affirmative showing that they have been incorrectly performed.</p> <p>[4] Id.—Recitals in Default Judgment—Presumption of Correctness.—Where the judgment rendered by the clerk recites, among other things, that defendant’s “legal time for answering having expired” judgment against it is “hereby rendered,” etc., and the statement showing the entry of default also recites that the time for answer has expired, it will be assumed on appeal, in the absenee of any showing to the contrary, that the clerk’s duty was properly performed and that the judgment by default was properly rendered.</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 restrain the Superior Court of Fresno County and S. L. Strother, Judge thereof, from proceeding with the retrial of a ease, following the making of a void order granting a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Collision Between Pedestrian and Automobile-Use of Wrong Side of Street—Contributory Negligence—Evidence.—In this action for damages for personal injuries resulting from being struck by an automobile while crossing a city street, plaintiff was not guilty of negligence in failing to maintain a proper lookout or to- exercise ordinary care where, before leaving the curb of the sidewalk, he saw the automobile of the defendants approaching and saw it turn in behind a line of automobiles which were moving slowly toward him on the south or right side of the street and, seeing that he was safe with respect to that line of automobiles, he approached the center of the street and turned his attention toward the east, that being the direction from which danger might be apprehended on the north side of the street, at which instant the driver of defendants' automobile, in order to beat the ears in front of him to the crossing, swung out around these cars and on to the wrong side of' the street and ran into plaintiff. ”</p> <p>1. Pedestrian’s rights and duties with reference to vehicles on highway, notes, 4 Ann. Cas. 398; Ann. Cas. 1914A, 249.</p> <p>[2] , Id.—Probable Permanence op Injury—-Mental Suppering—Evidence.—In such action the court did not err in receiving the testimony of plaintiff stating his belief concerning the probable permanency of his injuries, where the court limited such testimony to the single purpose of showing the mental suffering which resulted to him from the injuries received.</p> <p>[3] Id.—Mental Suppering—Damages—Evidence. — Notwithstanding the complaint in such action did not directly mention mental suffering, it having alleged that the plaintiff suffered serious and lasting injury to his nervous system, mental suffering was a proper element of damages.</p> <p>2. Bight to recover for future pain and suffering in personal injury case, note, 9 Ann. Cas. 1051.</p> <p>3. Mental anguish as element of damages, notes, 7 Am. St. Bep. 534; 30 Am. St. Bep. 711.</p>

<p>[1] Contracts — Modification or Discharge by Oral Agreement — Parol Evidence.—A written contract as well as one not in writing may be discharged or modified by a subsequent oral agreement, and the parol evidence rule does not exclude oral evidence thereof.</p> <p>[2] Id.—Mutual Cancellation of Written Contract—Action for Damages-—-Parol Evidence.—In an action for the alleged breach of a written contract to deliver certain cannery shook, it is error to exclude oral testimony offered by the defendant to prove that by mutual oral agreement between the parties the performance of the contract was waived and the contract orally canceled.</p> <p>[3] Id.—Oral Mutual Eesoission—Consideration.—Where the oral rescission or cancellation of a written agreement is mutual, no consideration other than the agreements of the respective parties is required.</p> <p>1. Modification of written contract by parol agreement, note, 17 A. L. E. 10.</p>

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

<p>[1] Judgment on Pleadings—Allegations Deemed True.—On a defendant's motion for judgment upon the pleadings all the material allegations of the plaintiff’s complaint must be deemed to be true.</p> <p>[2] Contracts—Sale of Land—Breach by Buyer—Damage—Pleading.—A complaint alleging the making of a written contract for the sale by plaintiff to defendant of a certain lot of real estate, with improvements which were being constructed thereon, the due •performance by plaintiff of all conditions on his part to be performed under the contract, the repudiation thereof by defendant, and the damage thereby caused to plaintiff, sufficiently states a cause of action.</p> <p>[3] Id.—Action for Damages—Motion for Judgment on Pleadings —Answer not to be Considered.—On consideration of the defendant’s motion for judgment on the pleadings in such an action, the court cannot pass upon the denials contained in the answer as to the execution of the contract or any other material matter alleged therein.</p> <p>[4] Id. — Completion of Building — Satisfaction of Buyer — Construction of Contract.—A contract calling for the completion of a building in accordance with specifications in the contract is to be construed as one to furnish such a thing as ought reasonably to satisfy the buyer and not as one permitting him to express dissatisfaction merely for the purpose of repudiating his contract.</p>

<p>[1] Sales—Bona Fide Purchase from Vendee—Title—Estoppel.— Where a lumber company sells lumber outright to a known dealer in lumber and thereafter another lumber company, without any knowledge of the facts of that sale, receives that lumber from said dealer under a conditional sales contract and pays by credits, dollar for dollar, to said dealer therefor, the lumber company first referred to is estopped from afterward asserting its title thereto.</p> <p>[2] Conversion—Nonsuit.—In this action for damages for the conversion of certain lumber which had been sold by plaintiff to a known dealer in lumber and by the latter to defendant, the motion for a nonsuit was properly granted.</p>

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

<p>[1] Public Utilities — Municipal Waterworks — Regulation op Rates — Jurisdiction op Railroad Commission. — Section 23 of article XII of the state constitution was not intended to and does not vest in the Railroad Commission- authority to regulate the rates to be charged by a municipal corporation in the sale of water to its inhabitants.</p> <p>[2] Id.—Discrimination Between Private and Municipally Owned Public Utilities—Constitutional Law.—Section 23 of article XII of the state constitution, in excluding municipally owned public utilities from the jurisdiction of the Railroad Commission, is not violative of the fourteenth amendment to the federal constitution, and that section does not constitute an attempt to create an arbitrary discrimination and classification between persons engaged in the same kinds of business and under the same conditions.</p> <p>[3] Id.—Classification of Objects of Legislation—When Reviewable.—The state may distinguish, select, and classify objects of legislation, and necessarily the power must have a wide range of discretion; and classification for such purposes is not invalid because not depending upon scientific or marked differences in things or persons or in thoir relations. It suffices if it is practical, and it is not reviewable unless palpably arbitrary.</p> <p>1. Applicability of public utility acts to municipal corporations owning or operating a public utility, notes, 10 A. L. R. 1432; 18 A. L. R.,946.</p>

<p>[1] Malicious Prosecution — Embezzlement — Want of Probable Cause — Evidence — Verdict. — In this action for damages for malicious prosecution brought by a husband and wife against the owner of an apartment house who had caused the arrest and prosecution of the plaintiff wife on a charge of embezzlement growing out of the retention by said plaintiff of a small sum of money which had been paid to her by a tenant for the cleaning of an apartment, while she was employed as manager, the evidence was sufficient to warrant the jury in finding that there was no probable cause for the prosecution.</p> <p>[2] Id.—Appropriation of Monet Under Claim of Title—Embezzlement—Want of Probable Cause to Prefer Criminal Change.— Where a person appropriates money openly and avowedly, under a claim of title preferred in good faith, she is not guilty of embezzlement, even though her claim- is untenable; and where the owner of the money believes, or has reasonable grounds to believe, that she appropriated the money under such conditions, he has no probable cause to prefer a charge of embezzlement against her and cause her arrest thereunder.</p> <p>[3] Id.—Want of Probable Cause—Malice—Presumption—Inference.—While there is no legal presumption of malice arising from the want of probable cause for a criminal prosecution, malice may be found as an inference of fact arising from the circumstances of the want of probable cause.</p> <p>[4] Id.—Honest Belief of Guilt—Advice of Counsel—Instructions ' —Want of Prejudice.—In this action for damages for malicious prosecution, considering the other instructions given by the court, the jury could not have been misled to the defendant’s prejudice by an instruction in the conjunctive to the effect that if the person causing the prosecution of another honestly believes that the crime has been committed, and if, in addition to such honest belief in the guilt of the accused, he seeks the advice of counsel learned in the law, and, after a full and fair statement of the facts within his knowledge, is advised by such counsel that the facts constitute a crime, his good faith in prosecuting the alleged offender is warranted, such instruction having been directed to the special affirmative defense of advice of counsel.</p> <p>2. What constitutes embezzlement, note, 87 Am. St. Rep. 19.</p> <p>3. Instruction in action for malicious prosecution that malice may be inferred from want of probable cause, note, L. R. A. 1918A, 872.</p> <p>4. Advice of counsel as defense in action for malicious prosecution, notes, 1 Ann. Cas. 932; 11 Ann. Cas. 954; Ann. Cas. 1912D, 423.</p> <p>[5] Id.—Sufficiency op Statement to Counsel—Belief or Knowledge of Existence of Other Facts.—In an action for damages for malicious prosecution, it is not error to instruct the jury that to support the defense of advice of counsel the defendant is required to show by a preponderance of the evidence that he made to counsel “a full, fair and true' statement of all the material facts known to him, of which he had and knew the means of ascertaining,” and that if he had reasonable grounds to believe that other facts existed which would tend to exonerate the accused from the charge of embezzlement, good faith required that he should make further inquiry with reference to those facts and communicate the information obtained to his counsel, or that he should inform counsel of his belief in their existence.</p> <p>[6] Id.—Review of Verdicts—Excessive Damages'—Duty to Order New Trial.—While there is no inflexible or definite rule by which courts can be governed in reviewing verdicts in actions for damages, the appellate court has the power, and it is its duty, to order a new trial where the justices are satisfied that the amount assessed against the defendant is excessive, unless the plaintiff shall file a remittitur of damages; and in this action for damages for malicious prosecution, in view of the circumstances surrounding the arrest and release of the plaintiff on bail and the small amount of actual damages suffered by her, the verdict of the jury, as reduced by the trial judge on motion for new trial, for six thousand dollars was outrageously excessive and grossly disproportionate to any injury that may have been received and to any punishment that properly could be inflicted upon defendant.</p> <p>6. Excessive or inadequate verdict in action for malicious prosecution, note, Ann. Cas. 1916C, 250.</p>

<p>[1] Libel—Defamatory Publication Concerning Dead—Recovery of Damages by Relative.—While the publication of malicious defamatory statements tending to blacken the memory of one who is dead is made a crime, punishable as provided in section 249 of the Penal Code, it gives rise to no cause of action in favor of a relative of such deceased for the recovery of damages.</p> <p>[2] Id. — Pleading — Application of Statements to Plaintiff. — While section 640 of the Code of Civil Procedure provides that in an action for libel it is not necessary to state in the complaint any extrinsic facts for the purpose of showing application to the plaintiff of the defamatory matter out of which the cause of action arose, such complaint must contain an allegation to the effect that the libelous statements were published concerning the plaintiff.</p> <p>[3] Id.—Libelous Statements About Dead—Mental Suffering of Relative—Damages.—The publication of false and libelous statements about one who is dead does not give rise to a ■ cause of action in favor of a relative, even though the latter is thereby caused grievous mental suffering.</p> <p>1. Legal responsibility, civil or criminal, for defamation of deceased person, notes, Ann. Cas. 1917E, 234; L. R. A. 1917C, 615.</p>

<p>[1] Claim and Delivery—Judgment—Failure to Determine Value and Direct Payment—Conversion—Bar.—Where the judgment in a claim and delivery action is that the property be returnéd to the defendant (it having been delivered to the plaintiff under a writ of possession), but that judgment fails to direct that if a return of the property cannot be had the plaintiff shall pay to . defendant its value fixed at a certain amount, that judgment will not constitute a bar to a subsequent action by defendant for damages for the conversion of the property, following plaintiff’s refusal to redeliver it.</p> <p>[2] Id. — Failure to Demand Return op Property — Issues — Erroneous Judgment.—Where, in a claim and delivery action in which the plaintiff has obtained possession of the property, the defendant does not demand a return of the property or its value, contenti.xg himself with a demand for the repayment to him of the sum of bis installment payments on account of the property under a conditional sale contract with damages for the detention of the property, a judgment directing the return to him of the property upon payment of the balance due under the contract, though without the issues, is only erroneous and not void.</p> <p>[3] Conversion—Legal Title—Right op Possession.—The legal title to property is not always necessary to an action for conversion, but any special valuable interest in the property accompanied with the right of possession is sufficient to form the basis of such an action.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Sidney N. Reeve, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Davis, Rush & MacDonald, Alfred F. MacDonald, William B. Beirne and S. W. Thompson for Appellant.</p>

<p>APPEAL from an order of the Superior Court of Siskiyou County denying a motion to vacate a judgment. C. J. Luttrell, Judge.</p> <p>This case involves the same questions as that considered in Five States Timber Co. v. Dwinnell, ante, p. 113.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. J. P. Wood, Judge.</p> <p>The facts are - identical with those stated in the opinion in Brigden et al. v. Dodge et al., ante, p. 266.</p>

<p>Appeal—Second Judgment—Review op Order Granting New Trial. Judgment affirmed on the authority of Sehomaker v. Boemer et al., ante, p. 528.</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 the same as- in W. P. Fuller & Co. v. Chatham et al., 53 Cal. App. 800 [200 Pac. 293].</p>