Volume 55 — California Appellate Reports

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

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

<p>[1] Divorce—Extreme Cruelty—Self-directed Acts or Omissions not Impairing Health—Insufficiency to Support Decree.— The language of section 94 of the Civil Code, defining extreme cruelty, should not be construed as referring to traits of character, habits of cleanliness, or conditions of bodily health, as to all of which, unless otherwise provided by statute, the parties must be deemed to have assumed the burden of informing themselves by association, acquaintance, and inquiry before contracting marriage.</p> <p>[2] Id.'—Practice of Masturbation—Insufficient Corroboration.— An interlocutory decree of divorce based upon a finding that the defendant was given to the practice of masturbation is not sufficiently supported, in the absence of any evidence of the commission of such acts other than the testimony of the plaintiff that she observed indications thereof.</p> <p>1. Habits or course of conduct as cruelty warranting divorce, notes, 29 Am. Dec. 674; 73 Am. Dec. 619; 40 Am. Rep, 463; 65 Am. St. Rep, 69; Ann. Cas. 1918B, 480, 500; 51 L. R. A. (N. S.) 282.</p>

<p>[1] Contract—Fixing op Valuation op Demised Premises—Basis op Bental—Duty op Appraisers—Hearing op Evidence op Parties. Under a contract between the parties to a lease appointing ap. praisers to fix a time for hearing proofs by such parties of the value of the demised premises as a basis for determining the rental, and providing that when the appraisers shall have heard the evidence their agreement shall be binding, it was the intention that the appraisers should afford the parties a hearing and an opportunity to offer evidence, and not that they should fix such value in accordance with their own opinion and judgment.</p> <p>[2] Id.—Court Proceeding Unauthorized.—Under such a contract, the parties are not entitled, in the absence of an annulment of the contract or of facts relieving them from its operation, to maintain an action to have the court fix the value of the property, and error in making the appraisement without a hearing of the evidence of the parties is not made harmless by the taking of testimony in an action to vacate the appraisement.</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. T. I. Fitzpatrick, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law — Issuing of Fictitious Check — Intent to Defraud—Sufficiency of Evidence.—In a prosecution for issuing , a fictitious check, an intent to defraud the person who cashed the check and the bank on which it was drawn is proven by testimony that all the handwriting on the face and back of the check including the signature and indorsement was that of the defendant, taken in connection with the fact that the bank was named as drawee and the further fact that the third person cashed the cheek.</p> <p>[2] Id.—Funds in Bank—Inference from Other Evidence.—In such a prosecution, evidence from which the jury might justly have concluded that defendant forged the signature to the cheek, that there was no account standing on the books of the bank under that name, that the check was cashed by a third person, and that payment was refused when presented, furnished a basis upon which the jury might properly have found that defendant had no funds in or credit with the bank.</p> <p>[3] Id.-—Nonexistence of Maker of Check—Immateriality.—Evidence that there was no account standing on the books of the bank under the name signed to the check and that defendant forged such name rendered it unnecessary for the prosecution to prove that no person by such name existed.</p> <p>[4] Id.—Similar Checks—Guilty Intent.—Other checks admitted by defendant on cross-examination to have had a similar origin with the one on which the prosecution was grounded and to have been passed to various persons as it was passed and at about the same time were properly receivable to show system and guilty intent.</p> <p>4. Other offenses as provable in prosecution for forgery, notes, 9 Ann. Cas. 456; Ann. Cas. 1912C, 91.</p> <p>Evidence of other crimes in prosecution for false pretenses, notes, 62 L. K. A. 222, 240, 323; 43 L. R. A. (N. S.) 667.</p> <p>[5] Id. — Trial — Cross-examination of Defendant — Overruling of Bequest for Temporary Postponement—Absence of Error.—A defendant cannot contend that he was forced to testify against himself by the action of the court in requiring him to resume the stand after a recess so that his cross-examination might proceed by reason of the fact that he expressed a desire not to resume the stand at once, but to await the coming into court of another person, not his counsel.</p> <p>[6] Id.—Evidence—Admissions—Voluntary Character—Proof Unnecessary.—Proof of admissions of a defendant to the sheriff not - amounting to a confession are not required to be shown to have been free and voluntary and made without fear, intimidation, or promise of benefit.</p> <p>[7] Id.—Instructions—Bequest of Defendant—Immateriality—Appeal.—Instructions requested by defendant and given as submitted cannot be complained of on appeal on the ground that they involve an issue not presented by the evidence.</p>

<p>[1] Criminal Law—Murder—Involuntary Confession.—Where one arrested for murder is denied the benefit of counsel and is repeatedly assured by the police officers and matrons that they are her friends and will do nothing to harm her, and is brought to a weak physical and mental condition by long-sustained examination without food or other nourishment, the statement by one of those in authority that it was the best thing for her to tell the truth conld not help but give her the impression that by telling the truth regarding the homicide those who professed to be her friends would aid her in getting lighter punishment, and a confession made under such circumstances and upon such a statement is involuntary and inadmissible.</p> <p>[2] Id.—Denials of Killing—Evasive Explanations—Admissions.^ Evidence of statements of the defendant denying the killing and of evasive explanations made by her as to the manner of death ara admissible without a showing of their voluntary character, since they are merely admissions and not confessions.</p> <p>[3] Id.—Life History of Defendant—Proof of Depravity—-Prejudicial Error.—In a prosecution for murder, where a physician in testifying that the defendant was insane stated that in reaching such conclusion he had taken into consideration the life history of the defendant, which had been written by her while in jail and which had been delivered by her to one of her counsel as a confidential communication, it was prejudicial error to permit the introduction of such life history in evidence, after its production had been ordered on the request of the district attorney, where such demand was made on the theory that the document was necessary to enable the prosecution to examine the witness and the offer in evidence was made, not for the purpose of eontradict- • ing the witness, but manifestly for the purpose of degrading the defendant and of exhibiting her to the jury as a low, depraved, and immoral person.</p> <p>[4] Id.—Murder of Husband—Correspondence Between Defendant and Other Men.—In a prosecution of a wife for the murder of her husband, correspondence between the defendant and other men which tends to prove motive for the crime is admissible, but not such correspondence as merely shows that the defendant is a person of loose moral character.</p> <p>1. When confessions are admissible, note, 46 Am. Eep. 253.</p>

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

<p>[1] Corporations — Unpaid Subscriptions — Creditor’s Bill — Exhaustion of Remedies—Pleading.—In an action by the assignee of judgment creditors of a corporation to recover from the defendants various sums on account of unpaid subscriptions to the capital stock of the corporation, it is necessary for the plaintiff to show that prior to the beginning of the action he had exhausted his legal remedies in an effort to collect the judgment, which is usually done by alleging the return of an execution unsatisfied.</p> <p>[2] Id.—Issuance and Return of Execution—Insufficient Allegation.—In such an action, the allegation of the issuance of the execution upon a certain day and its return unsatisfied on the day following fails to comply with the provisions of section 683 of the Code of Civil Procedure, which directs that no return on an execution may be made in less than ten days nor more than sixty days after the receipt by the sheriff.</p> <p>[3] Id.—Insolvency of Corporation—Effect of.—The return of an execution nulla T>ona is not a prerequisite for maintaining such an action- when the complaint shows that the corporation is wholly insolvent and has no assets upon which to levy an execution.</p> <p>[4] Pleading—Delay in Piling Amended -Complaint—Waiver.—A failure to file an amended complaint until three months after the obtaining of permission to file and serve such a complaint is waived where demurred to and answered after filed and trial had on the issues thus presented.</p> <p>[5] Corporations — Recovery of Unpaid Subscriptions — Action by Judgment Creditors—Proper Service of Summons in Judgment Action—Effect of Stipulation.—In an action by judgment creditors of a corporation to recover unpaid subscriptions to the capital stock, the contention that the judgment against the corporation is void for lack of service of summons on an officer of the corporation is without merit where it is stipulated that the summons was duly and -personally served on the corporation, giving the particulars.</p> <p>1. Right of creditors of insolvent corporation to sue stockholder at law upon unpaid subscription, note, 7 A. L. R. 100.</p>

<p>[1] Corporations — Supplies Furnished Tenant — Promise of Payment—Authority of President—Evidence.—In an action to recover from a corporation the value of meats alleged to have been delivered to a third person at the defendant’s special instance and request, a prima facie case of the authority of the president of the corporation to contract on its behalf for the payment is established by evidence that such president was in the active management of the corporation affairs and that the corporation had leased certain land to such third person, who was unable to pay for the meats which had already been supplied by the plaintiffs and was unable to continue farming operations and to pay the agreed rental without the defendant’s assistance in the way of such payment.</p> <p>[2] Action for Goods Sold—Delivery to Tenant at Bequest of De- • pendant — Quantity — Evidence — Shipping Tags. — It was not erroneous in such action to admit in evidence over objection that they were hearsay, the shipping tags showing the weight of the shipments, where one of the plaintiffs testified as to the making of the tags and of duplicate copies by himself, and the lessee testified as to the receipt of a duplicate tag with each shipment and as to the identity of the offered tags with such duplicates.</p> <p>[3] Contracts—Original Promise—Statute of Frauds.—If goods are delivered by the seller to one person on the promise of another to pay for them and solely on the promisor’s credit, the promise is original and not within the statute of frauds.</p> <p>[4] Action for Goods Sold—Judgment—Seasonable Value—Pleading.—A complaint alleging that defendant was indebted to plaintiff in a specified sum for and on account of meats sold by plaintiffs to defendant at the special instance and request of defendant and delivered to a third party is sufficient to sustain a judgment for the reasonable value of the meats, as against the objection that the allegation showed an express contract.</p> <p>[5] Corporations—Status of President—Authority to Contract.— While no presumption arises from the mere fact that one is president oí a corporation that he has authority to make a particular contract, such fact may be considered with other circumstances in determining the question. (Opinion on denial of rehearing.)</p> <p>1. Presumption as to authorization by corporation for contract executed by president, note, Ann. Cas. 1917A, 360.</p> <p>[6] Id.—Silence of Corporation—Knowledge of Pacts—Evidence of Authority.—Actual authority of the president of a corporation to make a particular contract may be proven by its silence after knowledge of facts connected therewith. (Opinion . on denial of rehearing.)</p>

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

<p>[1] Partnership—Interest op Deceased Partner—Eights op Purchaser.—The interest of a deceased partner in the business and property of the partnership is an asset of his estate, and although in the control and management of the surviving partner and subject to the payment of the firm’s debts and expenses in connection therewith, it is subject to sale by the administrator as provided by section 1524 of the Code of Civil Procedure, and a purchaser of such an interest is chargeable with knowledge of the fact that he cannot, as against the will of the surviving partner, be given possession of the property or have any voice in the control, management, and disposition thereof, but that his right is such only as was possessed by the estate, which was its share in the proceeds of the sale of the partnership assets after the payment of its debts.</p>

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

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

<p>[1] Judgment—Action to Annul—Service op Process—Finding— ■Sufficiency of Evidence.—In an action to annul a judgment upon the ground that the plaintiff, who was a defendant in that action and who never appeared therein, was never served with any summons or complaint, the return of service of process in the form of an affidavit contained in the judgment-roll, and the testimony of the affiant, who refreshed Ms memory from the return, that he personally served such defendant with a copy of the summons and complaint, were sufficient to support the finding of service.</p>

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

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

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

<p>APPEAL from" a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Paul J. McCormick, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law — Lewd and Lascivious Act — Evidence — Testimony of Complaining Witness—Corroboration not Required.— In a prosecution under section 288 of the Penal Code for the commission of a lewd and lascivious act upon or with the body of a child under the age of fourteen years, no corroboration of the testimony of the complaining witness is required where the defendant is over such age, in view of section 1111 of the Penal Code as amended in 1915, defining an accomplice.</p>

<p>[1] Divorce—Appeal—Judgment-roll—Absence of Finding as to Issue—Presumption.—Where an appeal from an interlocutory decree of divorce is taken on the judgment-roll alone, it must be presumed in support of the judgment that no testimony was offered on the issue of respondent’s alleged desertion, as to which there was no finding.</p> <p>[2] Id. — Extreme Cruelty — Separation at Commission — Insufficient Justification.—Acts of cruelty are not justified by reason of the fact that at the time of their commission the parties were living separate and apart.</p> <p>[3] Id.—Custody of Minor—Award to Stranger—Absence of Finding of Unfitness of Parents—Erroneous Order.—Where, in an action for divorce, the custody of a minor child of the marriage was sought by each of the parties upon the ground of the alleged unfitness of the other, it was error to award the custody to a stranger without a finding as to the unfitness of the parents.</p> <p>[4] Parent and Child—Best Interest of Child—Award of Custody to Parent—Presumption.—The law presumes that the interest of a child will be best subserved by awarding its care to a parent, unless he or she is unfit to have its care.</p> <p>[5] Id.—Fitness of Parent—Presumption.—In the absence of eithei evidence or finding showing the contrary, the law presumes that either parent is a proper person to whom its care should be awarded.</p> <p>3. Denial of custody of child to parent for its well-being, note, 41 L. B. A. (N. S.) 564.</p>

<p>[1] Municipal Corporations — City of Sacramento — Referendum Provisions of Charter—Applicability.—The provisions of the charter of the city of Sacramento relating to the referendum are applicable only to ordinances and resolutions which constitute an exercise of legislative power, and cannot be invoked to annul or delay executive conduct.</p> <p>[2] Id.—Legislative and Executive Power—Distinction.—Acts of a municipal body constituting a declaration of public purpose and making provision for ways and means of its accomplishment may be generally classified as calling for the exercise of legislative power, while acts which are to be deemed as acts of administration, and classed among those governmental powers properly assigned to the executive department, are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existence.</p> <p>[3] Id.—Offer of Sale of Lands for Public Park—Acceptance by City Commission of Sacramento—Administrative Act.—The acceptance by the city commission of the city of Sacramento of an oflier to sell certain lands for a public park under a trust provision in a will leaving money to the city to be expended for the purchase of ground suitable for a public park and for its equipment, involved the exercise of an administrative function, and was not subject to a referendum vote of the electors.</p> <p>[4] Id. — Administration of Fund — Duty of City Commission.— Under a trust provision in a will authorizing and empowering the mayor and board of trustees of the. city of Sacramento to expend a sum of money bequeathed in trust to’ the city in the purchase of ground suitable for a public park and its equipment, the city commission, which under the present charter is the successor of the mayor and board of trustees, is charged with the duty of the administration of the fund, and their acts are not proper subjects of referendum.</p> <p>[5] Id. — Reimbursement of City fob Expenditures of Existing Park—Unwarranted Application of Bequest.—A provision in a will bequeathing a sum of money in trust to the city of Sacramento and authorizing the mayor and board of trustees to expend so much of the bequest as might be necessary for the purchase of ground suitable for a public park and the balance in property equipping the same for park purposes was violated by the act of the city commission in attempting to use the bequest to reimburse the city for money spent in the purchase and improvement of a park already in existence.</p> <p>[6] Id.—Municipality as Testamentary Trustee—Duties.—A city may accept a trust bequeathing money to be expended by it for a public park, and when the trust is accepted it assumes the same obligations and becomes amenable to the same regulations as apply to other trustees of such trusts, and among them is the obligation to administer the fund in accordance with the expressed wish of the testator,</p> <p>[7] Id.—Offer and Acceptance of Lands for Park—Sufficiency of Description.—Descriptions of lands contained in an offer of sale thereof to the city of Sacramento for a public park and contained in the resolution of acceptance of the offer, which gave three boundaries, the aggregate acreage, and the acreage of the various parcels and the names of the owners, were sufficient, since the property could be readily identified by a competent surveyor with reasonable certainty.</p> <p>[8] Id.—Location of Lands—State and County—Sufficiency of Description.—Where a written communication offering the sale of a park site to the city of Sacramento is dated “Sacramento, California” and is addressed to “The Honorable City Commissioners, Sacramento, California,” and tenders to them, “as the legal representatives of the city of Sacramento,” the land in question to be devoted to park purposes, and such facts, with the references in the description to roads, a street, and property owned by the city, manifestly indicate that the description deals with property in the state of California, in or adjacent to the city of Sacramento, the description is not to be held insufficient because the body of the description fails to locate the property in any particular state or county.</p> <p>[9] Id.—Offer and Acoeptanoe—Statute of Frauds—Sufficiency of Memorandum.—Where the city of Sacramento, through its commission, by resolution duly adopted and spread upon the minutes, signed by the president of the commission, and attested by the city clerk, accepted a written offer of sale of lands for a park, and the parties making such offer accepted a counter-proposition to accept Victory bonds in payment, instead of cash, there was a sufficient memorandum signed by the parties to be charged to satisfy the statute of frauds.</p> <p>[10] Id. — Contract With Municipality — Reformation for Mistake—Description in Contract of Sale.—Contracts by or with a city may be reformed for mutual mistake, the same as contracts between individuals; and where a description of real property contained in a contract of sale between individuals and a city is found to not properly describe the property intended to be sold, and was inserted therein by mutual mistake, it is within the province of the court to revise the contract.</p> <p>[11] Id.—Specific Performance—Injunction—Prevention of Breach. Where, in an action for the specific performance of a contract of sale of lands to a city by individuals, it is found that a contract exists which is capable of being specifically performed, it is proper to prevent the breach of the contract by the city by an injunction.</p> <p>[12] Vendor and Vendee—Time not of Essence—Title of Vendor —Time.—Where time is not of the essence of a contract of sale, and there is a positive agreement to buy and not a mere option depending upon the sufficiency of the showing of title, it is enough if the vendor is in fact the owner in fee, unencumbered, at the time of the performance, or at the time of the decree.</p> <p>[13] Id. — Reasonable Time to Perfect Title.— It is within the jurisdiction of the court to allow the vendor in a suit for specific •performance a reasonable time within which to perfect his title where time is not of the essence of the contract and to do so will not work an injustice to the vendee.</p> <p>[14] Equity—Determination of Entire Controversy.—When a court of equity has once obtained jurisdiction, it will do complete justice by deciding the whole case and determining the whole controversy.</p> <p>13. Allowance to vendor of reasonable time to perfect title in suit for specific performance, notes, Ann. Cas. 1912A, 323; 30 L. R. A. (N. S.) 25.</p>

<p>[1] Broker’s Commissions—Procuring Acceptance of Exchange— Eight op Eescission for Fraudulent Eepresentations—Instruction.—In an action to recover a broker’s commission on an express contract to procure the acceptance of defendant’s offer to exchange real property, it was not error to refuse to give defendant’s requested instruction as to his legal right to rescind the contract if plaintiff had falsely represented to him the value of the property which was proposed to be taken in exchange, where the instruction omitted the elements of knowledge of the falsity of the representations on the part of the plaintiff and reliance upon them by the defendant, and also assumed that the representations were statements of fact rather than expressions of opinion.</p> <p>[2] Id.—Ascertainment op Value of Property—Duty of Broker— Instruction.—An instruction requested by the defendant that it was plaintiff’s duty to honestly inform his principal, of the value of the property which was proposed to be taken in exchange, ana that if he failed to do so and falsely represented such value the defendant was not required to examine the property, but could rely upon plaintiff’s statements, was properly refused, since it omitted the essential element of knowledge on the part of plaintiff and reliance upon the part of defendant, and was subject to the further objection that the contract did not cast upon plaintiff any duty of ascertaining value.</p>

<p>APPLICATION for a Writ' of Mandate to compel a sale of property Under "execution. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

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

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

<p>[1] Waters and Water Bight-s — Ownership in Well on Lot op Another—Extent op Interest—'Construction op Deeds.—Where the grantors of two lots in a certain tract, who were not shown to have had any title to a third lot, conveyed with such lots eight fifty-fourths of the water in the well on such third lot to the extent of twenty-six thousand gallons each twenty-four hours, and the owner of such third lot thereafter executed a deed conveying to ■ such grantees “the water right described” in the earlier deed, such confirmatory deed did not enlarge the right given to the grantees by the earlier deed, and they acquired only the fractional part of the water in the existing well, and not such part of all the waters underlying such lot.</p>

<p>[1] Criminal Law—Conviction on Certain Counts of Indictment— Failure to Pass Sentence—Appeal.—Where a defendant has never been sentenced on charges contained in certain counts of the indictment on which he is found guilty, there is, as to such counts, no judgment from which an appeal can be taken.</p> <p>[2] Id.—Order Denying New Trial—Appeal—Validity as to Certain Counts.—Whether an order denying a motion for a new = trial made under section 1181 of the Penal Code is erroneous as to certain counts on which the defendant was convicted need not be considered on appealj where sentence had not been passed thereon, since the defendant is entitled to a new trial as to the same under section 1202 of the Penal Code.</p> <p>[3] Id.—Obtaining of Money by False Pretenses—Venue.—The crime of obtaining money or property -by false pretenses is consummated at the place where the money or property is obtained from the defrauded person, regardless of where the 'false pretenses may have been made, and, therefore, the' place where the money or property is obtained is the place where, ordinarily, the venue should be laid.</p> <p>[4] Id.—Obtaining of Money Outside of State—False Pretenses Made Within State—Amenability to State Law.—In view of subdivision 1 of section 27 of the Penal Code, which provides that all persons who commit, in whole or in part, any crime within this state are liable to punishment under its laws, a person who makes in this state any false or fraudulent representation whereby money or property is obtained without the state is punishable under section 532 of the Penal Code.</p> <p>[5] Id.—Persons Punishable for Crime—Construction of Code.— The words “any crime,” as used in subdivision 1 of section 27 of the Penal Code, mean any offense which, if committed wholly within this state, would constitute a crime against the laws thereof.</p> <p>[6] Id.—Incriminating Documents—Secondary Evidence.—A court cannot compel a defendant in a criminal case to produce any incriminating writing, and it is for this reason that, ordinarily, the prosecution may give secondary evidence of the contents of an incriminating document whenever it appears prima facie that it is in the possession of the accused.</p> <p>3. Jurisdiction of offense of obtaining property by false pretenses, notes, 4 Ann. Cas. 368; Ann. Cas. 1917E, 311.</p> <p>[7] Id.—Misconduct of District Attorney—Demand for Production of Incriminating Writings—Appeal—Insufficient Showing of Reversible Error.-—Misconduct on the part of the district attorney in asking counsel for the defendant to produce incriminating writings without a prima facie showing that the same were in defendant's possession is not a sufficient ground for reversal in view of section 4% of article VI of the constitution, in the absence of a showing that such writings, if produced, would have worked a damage to the defendant.</p> <p>[8] Appeal—Affirmative Showing of Error—Constitutional Law. In view of section 4% of article VI of the constitution, injury is no longer presumed from error, and it is incumbent upon the appellant to show affirmatively that the error upon which he relies was prejudicial, and the rule applies even to an erroneous invasion of a constitutional right.</p>

<p>[1] Lira Insurance—Application for Policy—Good Faith of Applicant—Negligence of Agent—Estoppel of Insurer—Exception.—The rule that when an applicant for a life insurance policy in good faith makes truthful answers to the questions contained in his application, but his answers, owing to the fraud, mistake, or negligence of the agent filling out the application, are incorrectly transcribed, the company is estopped to assert their falsity as a defense to the policy, is subject to the limitation that there must be no complicity on the part of the applicant, actual or implied.</p> <p>[2] Id. — Preparation of Application by Agent ■—Knowledge of Falsity of Answer—Silence of Applicant—Void Policy.—A policy of life insurance is void where the application and the certificate of the medical examiner falsely recited that the applicant had not consulted any physician for any ailment within five years, and the insured upon receipt of the policy, which had attached to it a copy of such application and of such certificate, failed to notify the company of the falsity of such recitals, notwithstanding the application was prepared by the medical examiner, since the applicant by his silence approved the act of such examiner and thereby made him his agent as well as the agent of the company.</p> <p>1. Effect of honest mistake in answer as to health of insured warranted by him to be true, note, 15 L. K. A. (N. S.) 1277.</p>

<p>[1] Street Law—Assignment of Contracts for Value—Payment of Claims by Surety on Bond—Right of Exoneration—Relative Rights of Assignee and Surety.—A surety on a contractor’s labor and material bond given pursuant to section 6% of the Vrooman Act has not the right to claim the benefit of the diagram, warrant, and assessment issued under such act to reimburse itself by reason of -it having been called upon to pay claims for labor and material furnished under the contract, as against assignees of the contractor for value and before the surety sought to compel payment, in the absence of bad faith in the making of the assignment.</p> <p>[2] Id.—Assignment—Evidence—Absence of Bad Faith.—An assignment made by a street improvement contractor to a company financing him in the performance of the work of all his rights to the diagrams, warrants, and assessments issuable under section 7 of the Vrooman Act is not shown to have been made in bad faith, as against the surety on the contractor’s bond, which was required to pay claims for material and labor, by proof that the assignee had knowledge of the contractor’s obligations and the surety’s rights and continued to advance money to the contractor with knowledge that a few small bills had not been paid, deducted five per cent from the face of the warrant in purchasing it and permitted the contractor to use some of the money for living expenses and paying alimony to his former wife.</p>

<p>[1] Claim and Delivery—Present Right of Possession—Pleading— Subsequent Defaults Under Lease Contract ■—Supplemental Complaint.—In an action in claim and delivery to recover the possession of an automobile based on an alleged default in the payment of an installment of rent' under a lease contract, the plaintiff is not entitled to file a supplemental complaint setting up defaults in payments occurring after the commencement of the action, since in such an action the plaintiff on commencing the same must show a present right of recovery.</p> <p>[2] Lease Contract—Default—Retaking of Possession of Chattel —Subsequent Defaults—Insufficient Basis for Forfeiture.-— A lessor of an automobile cannot collect rent for the use of the car after he has repossessed himself of the same and elected to terminate the lease by reason of a default in the payment of an installment of rent, at least in the absence of an express covenant to that effect, and nonpayment of installments due after such retaking cannot be assigned as a basis for forfeiture.</p> <p>[3] Contract—Employment of Salesman—Reimbursement for Expenses—Performance of Duties Outside of Contract.—Where a letter employing a salesman on a salary with a commission to sell trucks, tractors, and other articles contained no intimation that the employee was to discharge his duties at any place other than the one indicated in the caption of the letter, the salesman was entitled to payment for his expenses incurred in selling such goods in various counties- where be was sent by his employer.</p> <p>[4] Id.—Nature of Lease Contract—Instruction.—Where a lease contract is plain, clear, and wholly free from ambiguity, and its terms provide for a lease and not a sale and it is distinctly stated in the writing itself that the lessee acquires no interest in or title to the chattel, a requested instruction in an action for its recovery after default in payment of the rental that it might be found that the alleged lease was in fact an absolute sale is properly refused.</p> <p>3. Implied or apparent authority of agent or employee to bind principal for board or traveling expenses, note, L. B. A. 191fiB, 754.</p>

<p>HI Nuisance —■ Flo web-stands in Front or Cemetery Grounds — Abatement.—An action may be maintained by a cemetery association to enjoin others from maintaining along the public highway in front of and adjacent to its cemetery portable stands for the sale of flowers and floral decorations, and from obstructing the entrances to the cemetery grounds, where the acts of such other persons, while partaking of the nature of a public nuisance, inflict upon the cemetery association a peculiar injury, different in kind, and not merely in degree, from that suffered by the general public.</p>

<p>[1] Divorce—Persistent Befusal to have Seasonable Matrimonial Intercourse—Health and Physical Condition—Uncorroborated Testimony of Husband.—In an action for divorce on the ground of persistent refusal to have reasonable matrimonial intercourse when health and physical condition did not make such refusal reasonably necessary, corroboration of the husband’s testimony regarding the wife’s continued refusals to live with him as husband and wife is not sufficient to support a decree, but proof is required that during the period of persistent refusal, health and physical condition did not make such refusal reasonably necessary, and the burden of proving such fact is not sustained by the uncorroborated testimony of the husband.</p> <p>[2] Id.—Preference of Wife for Own Belatives—Irrelevant Testimony. — In an action for divorce on the ground of persistent refusal to have reasonable matrimonial intercourse when health and physical condition did not make such refusal reasonably necessary, testimony that the wife preferred to live with her brothei and her mother than to live with her husband, and that she had refused to separate herself from her family at the request of her husband, was not relevant to the issue.</p> <p>[3] Id. — Corroboration of Testimony — Construction of Code.— Under section 130 of the Civil Code, which declares that no divorce can be granted upon the uncorroborated testimony of the parties, the testimony of one spouse cannot be taken in corroboration of that of the other for the purpose of proving a cause of divorce. (Opinion of supreme court on denial of hearing.)</p> <p>1. Befusal of marital intercourse as ground for divorce, notes, 12 Ann. Cas. 547; 14 L. B. A. 685; L. B. A. 1915B, 770.</p> <p>Granting of divorce on uncorroborated testimony of party or parties, note, Ann. Cas. 1913B, 3.</p>

<p>[1] Interest—Judgment—Action to Becover Taxes—Time.—In an action brought under section 3819 of the Political Code to recover taxes paid under protest, an order for judgment is not a sufficient foundation for the allowance of interest from such date until judgment is finally rendered and entered, notwithstanding the plaintiff is entitled to have a judgment entered nunc pro tunc as of the date of the order for judgment.</p> <p>[2] Judgment—Order for—Interest.—An order for judgment is not a judgment within the meaning of section 1920 of the Civil Code, providing interest is allowable upon judgments from the date of • their entry.</p> <p>[3] Id.—Becovery of Illegally Collected Taxes—Scope of Judgment.—A judgment to recover taxes illegally collected cannot be expanded so as to cover issues and amounts not embraced in the plaintiff’s pleading and not covered by the stipulation of the parties as to the facts of the ease.</p>

PROCEEDING on application for a Writ of Mandate to compel signing of high school bonds. Granted. The facts are stated in the opinion of the court. A. J. Hill, County Counsel, and Jerry H. Powell, Deputy County Counsel for Petitioner.

<p>[1] Pleading—Action for Breach of Contract—Capacity in Execution—Amendment of Complaint—Statute of Limitations.—An amended complaint in an action for damages for breach of a contract alleging that the contract was executed by an individual doing business under the name of a certain company • in his own behalf did not state a new cause of action so as to be barred by the statute of limitatons, where the original complaint alleged that the contract was executed by such person as president on behalf of a corporation which had forfeited its charter and in which such person owned all of the capital stock.</p> <p>[2] Contract—Shipment of Granite—Sinking in Transit—Raising of Cargo by Shippers—Liability for Work.—A contract to transport a quantity of granite providing for responsibility for all damage suffered by the shippers constitutes a sufficient consideration for a subsequent arrangement for the raising of the cargo by the shippers after the barge on which it was being carried had sunk, and the carrier is liable for the reasonable value of such work.</p> <p>[3] Corporations — Forfeiture of Charter — Continuance of Business by Sole Stockholder—Validity of Contract.—A contract with a corporation executed after the corporation had forfeited ■ its charter for nonpayment of its license tax is not void where the person executing such contract was the president of the corporation and owned all of the capital stock and after the forfeiture he continued the business as an individual but under trc corporate name.</p>

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

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

<p>[1] Physicians and Burgeons — Practice of Osteopathy — Misconduct—Revocation of License—State Medical Law.—A person granted a reciprocity certificate to practice osteopathy by the board of medical examiners, who writes prescriptions and performs both minor and major surgery and engages in the practice of medicine and surgery, is guilty of misconduct warranting the revocation of his license under subdivision 14 of the act of 1913 (Stats. 1913, c. 354).</p>

<p>[1] Municipal Corporations—City op Oakland—Additional Benefits fob Injured Policemen—Charter Provision not Betroactive.— Section 92% of the charter of the city of Oakland, which went into effect on January 18, 1919, providing for additional benefits to those provided in article XIV of such charter for officers and members of the police department sustaining injuries in the performance of their duties, is not retroactive and cannot be given application to injuries sustained prior to the enactment.</p> <p>[2] Statutory Construction — Prospective Operation. — Legislative acts are not to be considered retrospective unless the intention to make them so clearly appears from their terms.</p> <p>[3] Id. — Compensation Laws — Measure op Becovery — Operative Enactment at Time op Injury.—The state of a compensation law at the time of the injury is to be taken as the measure of the right of recovery of an injured person.</p>

<p>[1] Mandatory Injunction—• Removal of Encroaching Foundation and Wall—Absence of Damage—Denial of Relief.—A mandatory-injunction will not be granted at the instance of an owner of a parcel of land to compel an adjoining owner to remove a concrete foundation partly placed by the latter on an inch and one-half of the former’s land and also to compel the removal of the brick wall situated thereon, where the former has not suffered any damage and there exists an adequate remedy at law.</p> <p>1. Injunction to compel removal of encroachments by adjoining land owner, note, 14 A. L. R. 831.</p> <p>Injunctive relief as affected by comparative injury to parties, notes, 14 Ann. Cas. 19; Ann. Cas. 1913A, 248.</p>

<p>[1] Partnership—Taking of Exclusive Possession by Partner— Dissolution—Period Embraced in Accounting.—In an action for dissolution of a partnership and for an accounting based upon the wrongful act of the defendant in taking exclusive possession of the business and property, the court was warranted in taking an account up to the date of the filing of the interlocutory decree, regardless of whether the dissolution occurred when the defendant took possession or when the decree was entered, since the defendant having assumed to act in liquidation of the affairs should not be permitted to escape a complete accounting.</p> <p>[2] Id.—Equity—Complete Accounting.—In such an action, a court of equity will not make an incomplete settlement of accounts, but will adjust the whole matter, even if it involves items accruing after the commencement of the suit.</p> <p>[3] Id.—Report op Referee—Matters Included—Appeal—Presumption.—On an appeal from the judgment in favor of the plaintiff in an amount found by the referee, it will be assumed, in the absence of evidence to the contrary, that the referee's report was limited to the items necessary to an accounting and settlement of the partnership business, and did not attempt to include business or property of the defendant exclusive of such partnership affairs.</p> <p>1. Misconduct of partner as ground for dissolution of partnership, note, 4 Ann. Cas. 460.</p>

<p>[1] Criminal Law—Arrest of Judgment—Denial of Motion—Order not Appealable.—An order denying a motion for an arrest of judgment is not appealable.</p> <p>[2] lb. — Rape — Misconduct of Court — Comment on Defendant’s Evidence.—In a prosecution for rape, remarks of the trial judge, while a witness for the defense was on the stand, that counsel for the defendant were “not establishing a thing,” that they were “not asking a material question,” that all they were doing was “to corroborate what was said by the plaintiff’s witnesses,” and that if they had any witnesses who knew anything to call them, was reversible error where such evidence contradicted that of the prosecution in several material respects and especially concerning the condition of the prosecuting witness shortly after the commission of the alleged offense.</p> <p>[3] Id.—Appeal—Review of Misconduct—Absence of Timely Objection.—Where, in a prosecution for rape, the trial judge in commenting on defendant’s evidence added one harmful remark to another until the total was enough to do substantial injury, the right to have such misconduct reviewed on appeal is not foreclosed for failure to take timely exception to such remarks, since admonition to the jury under such circumstances would have availed nothing.</p> <p>[4] Id.—Rape—Evidence—Testimony of Prosecutrix—Influence of Fear.—In a prosecution for rape, the exclusion of evidence tending to show that the prosecutrix was testifying against the “defendant through fear of her adoptive parents was error.</p> <p>[5] Idv—Information—Prosecutrix Under Age—Force and Violence —Joinder in One Count.—An information charging the crime of rape in one count containing the two allegations that the prosecutrix was of the age of less than eighteen years and that the crime was committed by force and violence, is not subject to demurrer on the ground of improper joinder.</p> <p>[6] Id.—Appeal—Age of Prosecutrix—Attempted Impeachment— Presumption from Record.—On an appeal from a judgment of conviction for the crime of rape, it must be assumed that the rulings in sustaining objections to attempts to impeach the testimony of the prosecuting witness as to her age by asking her whether she made statements on the same subject as a witness at the preliminary examination of the defendant, even if erroneous, were harmless, in the absence of a showing of such statements in the record on appeal.</p> <p>[7] Id.—Testimony op Adoptive Parents—Document Showing Age— Eppect op Introduction by Dependant.—On such an appeal, the appellant cannot contend that error was committed in receiving the testimony of the adoptive parents of the prosecuting witness as to her age, where he himself introduced in evidence an application of the prosecutrix for admission to a child’s home showing her to be under the age of consent.</p> <p>[8] Id.—Opinion op Adoptive Parents as to Age.—In such a prosecution, the opinion of the adoptive parents of the prosecuting witness as to her age is admissible where they adopted her nine years before the commission of the alleged offense.</p> <p>[9] Id.—Duress in Giving Testimony—Evidence.—Evidence that the adoptive mother of the prosecuting witness caused her to be put in the juvenile hall after the preliminary hearing was inadmissible to prove that the prosecuting witness was under duress in giving her testimony.</p> <p>[10] Id. — Testimony op Prosecutrix — Cautionary Instruction ■— When Improper.—In a prosecution for rape, a cautionary instruction concerning the testimony of the prosecutrix is uncalled for where she is not a child of tender years or when her testimony is corroborated.</p> <p>[11] Id.—Mature op Charge—Instruction.—An instruction in such a prosecution that the jury should not permit their minds to be prejudiced against the defendant merely on account of the nature of the crime or because he was charged therewith is proper, but the refusal to give it is not error.</p> <p>8. .Competency of witness to testify, to age of another person, notes, Ann. Cas. 1918A, 262; 111 Am. St. Eep. 584.</p>

<p>[1] Pleading — Parties — Corporation and Individual Defendant — Amendment of Complaint ■—- Statement of Cause of Action Solely Against Individual—Effect of.-—A cause of action alleging that the indebtedness sued for was incurred by a corporation and an individual defendant was not changed by the filing of an amended complaint alleging that the indebtedness was incurred by the individual defendant alone.</p> <p>[2] -Corporations — Debts of Corporation -—Individual Liability of Directors.—In view of section 309 of the Civil Code, which provides that the directors of a corporation must not create any debts beyond their subscribed capital stock, and that when they do so they are liable as individuals to creditors to the full amount of the debt contracted, the president and director of a corporation which has issued no capital stock is liable for debts contracted by Mm in the name of the corporation.</p> <p>[3] Id.—Assumption of Official Capacity—Conduct of Corporate Business for Individual Benefit — Finding — Sufficiency of Evidence.—In this action for goods sold and delivered to an individual assuming to act as the director and president of a corporation, the evidence supports the finding that the corporate business was wholly controlled and run by and under the direction and for the sole benefit of the defendant.</p> <p>2. Character of “debts” of corporation for which directors are liable, notes, 12 Ann. Cas. 807; Ann. Cas. 1914B, 152.</p>

<p>[2] Id.—Action fob Damages—Second Trial on Single Issue—New Findings on All Issues—Erroneous Procedure. ■—An order granting a new trial in an action for damages for toreaeh of contract on the issue of damages does not open for retrial every issue upon which the plaintiff’s asserted right of recovery depends, and where the parties on the retrial treat the order as a limited one, it is error for the court to make ■ an entirely new set of findings wherein every issue formerly found in favor of the plaintiff is found in favor of defendant and judgment entered accordingly.</p>

<p>[1] Tenancy nr Common — Commission of Waste — Injunction — Bight of Cotenant.—A tenant in common is entitled to an injunction to restrain the cutting of timber upon lands owned by her and her son as tenants in common, where she did not execute the contract made with, the defendants by her son for the cutting of such timber, or ratify or confirm the contract by her acts or conduct.</p> <p>[2] Id.—Conteact With Cotenant foe Cutting of Timbee—Lack of Consent of Cotenant—Damages feom? Injunction—Nonliability of Contbacting Tenant.—A tenant in common is without authority to enter into a contract without the consent of his cotenant for the cutting and removal of timber from the tenancy in common, and one who enters into such a contract with knowledge that the property is held in cotenancy cannot recover damages against the contracting eotenant for damages alleged to have been suffered from an injunction preventing such cutting and removal.</p> <p>1. Injunction against trespass to cut timber, notes, 11 Ann. Cas. 456; 22 L. B. A. 233; 43 L, R. A. (N. S.) 262.</p> <p>2. Bights of cotenants inter se as to timber, note, 2 A. L. R. 993.</p>

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

<p>[1] Criminal Law—Murder—Killing by Poisoning—Contents of Stomach—Evidence—Insufficient Identification.—In a prosecution of a husband for the alleged poisoning of his wife, it was prejudicial error to admit evidence of the finding of cyanide in a stomach which was not legally identified as the stomach of the defendant’s deceased wife.</p> <p>[2] Id. •— Performance of Autopsy on Body — Conclusion of Witness.—In such prosecution, an objection to a question asked a physician as to whether he had performed an autopsy upon the body of defendant’s wife should have been sustained on the stated ground that it called for the conclusion of the witness, where the physician had not known the deceased in her lifetime and there was no evidence of identification of the body as that of the deceased wife.</p> <p>[3] Id.—Hearsay Evidence of Identification—Insufficient Foundation for Admission.—The testimony of such physician that he had been told by an attendant in the undertaking establishment that the body was that of defendant’s wife was hearsay, and insufficient to lay the foundation for the introduction of the contents of the stomach taken from such body.</p> <p>[4] Id. — Vegetable Contents of Stomach — Correspondence With Vegetables Found on Premises—Insufficient Circumstance for Inference.—The testimony of the mother of defendant’s wife that she found in the “cooler” of her daughter shortly after her death certain vegetables which corresponded with those which the physician had testified he had found in the stomach he analyzed was not sufficient to constitute even a circumstance from which it might be inferred that the stomach was that of her daughter.</p> <p>[5] Id.—Identity of Person from Identity of Name—Presumptive Bule Inapplicable.—The rule that identity of person may be presumed prima fade from identity of name is not applicable as to the identification of a stomach taken from the body of a person Whom the physician removing such stomach did not know and who was unknown to the attendant of the undertaking establishment representing the body to be that of a person of a certain name.</p> <p>[6] Id.—Can of Cyanide—Failure to Connect With Defendant.— The admission of a can of cyanide which was kept in a room where defendant was employed, to which room the defendant and other employees had access, was prejudicial error, in the absence of a showing of knowledge on the part of the defendant of the existence of the poison and in view of the fact that the top of the can when removed by detectives a few days after the wife’s death was covered with a heavy coat of dust.</p> <p>[7] Id.-—Circumstantial Evidence—Connection of Facts With Defendant.—If circumstantial evidence is introduced in a criminal ease to connect the defendant with the criminal act, the circumstantial facts themselves must be connected with the defendant or they will be incompetent as evidence.</p> <p>[8] Id.—Lack of Affection—Illicit Delations—Letter of Defendant to Wife.—A letter written by the defendant to his wife about a year and a half prior to her death in which he stated that he did not love her as a husband should and that he had had illicit relations with other women was admissible, regardless of its remoteness and of the fact that the parties had become reconciled after a separation which existed when the letter was received.</p> <p>[9] Id.—Materiality of Testimony.-—Upon the trial for murder of husband or wife, evidence tending to show illicit relations of the accused with another is admissible to show lack of love and affection for the defendant’s lawful spouse.</p>

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

<p>APPEAL from an order of the Superior Court of San Mateo County denying a motion for relief from a default. George H. Buck, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[1] Pleading—Order Sustaining Demurrer—Presumption.—Where an order sustaining a demurrer is general in its terms it wiE be deemed to have been sustained upon any ground as to which it is _well taken.</p> <p>[2] Id.—Order Sustaining Demurrer to Certain Defenses—Bight of Trial as to Others.—Where in an action in ejectment <he answer set up five defenses and a demurrer was interposed as to three of them, leaving two good and sufficient defenses unassailed, it was error on sustaining the demurrer to enter judgment for the plaintiff without a trial of the issues raised by the two defenses.</p> <p>[3] Ejectment—'Trespass—Mistake as to Boundary Line—Insufficient Justification.—In an action in ejectment, an admission in the answer of the commission of a trespass under a mistake as to boundary line does not relieve the defendant from the duty of surrender of the property and making fuU reparation in damages.</p> <p>[4] Id. — Lease — Pleading — Silence of Complaint — Admission in Answer — Absence of Issue. — Where in an action in ejectment the complaint did not allege a lease to defendant, a statement in the answer admitting a lease from the plaintiff did not amount to an issuable aUegation.</p> <p>[5] Id.—Denial of Ouster.—In an action in ejectment, a denial that defendant is or ever was in possession is in effect a denial of ouster and is sufficient in the absence of an objection thereto.</p> <p>[6] Id.—Becovery of Possession of Adjoining Lots—Pleading—Admission as to One Lot—Judgment.—In an action in ejectment to recover the possession of two adjoining lots, where the judgment was properly given against the defendant as to one of them and he was never in the possession of the other, a judgment against him as to the latter was not injurious.</p> <p>[7] Id.—Damages fob Detention—Ekroneous Denial of Hearing of Defense.—Where in an action in ejectment the answer alleged a good and sufficient defense to the claim for damages for detention, and such defense was not demurred to, it was error on sustaining the demurrer to other defenses to refuse the defendant a hearing on his unassailed defense.</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] Railroads—Federal Control—Breach of Contract—Nonliability of Owners—Pleading—Parties.—Owners of transportation companies during the time that the companies were under federal control pursuant to the act of Congress and presidential proclamation were not liable for the breach of any contract or the failure to keep any obligation imposed upon the carrier, and in an action for such a breach or default the Director-General of Railroads is the only proper party defendant.</p> <p>[2] Common Carrier—Insurer—Exception.—The obligation assumed by a common carrier of freight or merchandise is that of an insurer, except that it is not liable where extraordinary occurrences not within its control produce the damage.</p> <p>[S] Id.—Negligence—Exemption prom Liability.—A carrier may not contract to free itself from damages caused by its own negligence.</p> <p>[4] Id.—Interstate Commerce—Exemption prom Liability—Scope op Contract.—While under' the Carmack Amendment of 1906 and under the Cummins’ Amendment of 1915 a carrier engaged in interstate commerce is liable for the full loss, damage, or injury to a shipment caused by it or by any connecting carrier, an initial carrier may contract for exemption from liability for damage where there is no negligence on its part or on that of the connecting carrier.</p> <p>[5] Id.—Bill op Lading—Exemption on Account op Strikes—Binding Stipulation. — A provision in a bill of lading stipulating that the carrier should not be responsible for loss or damage occurring from riots or strikes is binding on the shipper.</p> <p>[6] Id.—Strike op Employees—Care op Shipment—Duty op Carrier.—Irrespective of a provision in a bill of lading that the carrier should not be liable for loss or damage from strikes, it is liable for delay on account of a strike of its employees unless it uses all reasonable efforts to preserve the shipper’s property and to cause it to be transported to its destination.</p> <p>[7] Id.—Action por Loss op Shipment—Strike—Evidence—Burden op Proop.—In an action for the loss of a shipment caused by a strike of employees, the plaintiff makes out a prima facie case by showing the fact of shipment and the failure to deliver to destination, regardless of the stipulation in the bill of lading exempting liability for strikes, and the burden of proving exonerating facts is on the carrier.</p> <p>[8] lb. •— Exoneration op Carrier. — Where a carrier after a strike which is brought about through no fault of the employer uses every reasonable effort to fill the places of the strikers, and every reasonable effort to obtain men and means to care for property intrusted to it for shipment, which property is lost or destroyed while in its charge, the exceptional conditions of violence, riots, intimidations, act of God, etc., may then be deemed to have been established and exoneration from liability will follow.</p> <p>4. Carmack Amendment as affecting liability of initial carrier, notes, Ann. Cas. 1915B, 80, 92; Ann. Cas. 1917C, 939.</p> <p>Validity and effect of stipulation limiting carrier’s liability for delay caused by strikes, etc., note, Ann. Cas. 1915C, 1189.</p>

<p>[1] Fire Insurance—Conveyance of Insured Premises—Deed Intended as Mortgage—Sole Ownership Clause not Violated.— A. provision in a fire insurance policy that the policy shall be void if the interest of the insured be other than sole and unconditional ownership is not violated by a conveyance of the insured property in the form of a deed intended as a mortgage, since such instrument transferred no interest in the property but created a lien only which was an incident of the secured debt.</p> <p>[2] Deed—Mortgage—Evidence.—Clear and convincing evidence is required to show that a deed is a mortgage, but where there is a substantial conflict, it is primarily for the trial court to determine whether the evidence is of such character.</p> <p>[3] Fire Insurance—Proof of Loss—Denial of Liability—Waiver. A provision of a fire insurance policy requiring the making proof of loss is waived by a denial of liability by the insured prior to the time provided for the making of such proof.</p> <p>[4] Id. — Waiver by Insurance Adjuster — Authority — Policy. — An adjuster of a fire insurance company is not deprived of authority to waive the making of a proof of loss by a provision of the policy to the effect that no representative of the company shall have power to waive any provision or condition of the policy.</p> <p>1. Mortgage of property as change in interest within insurance policy, note, Ann. Cas. 1912B, 525.</p>

<p>Ill Negligence—Ownership op Automobile—Operation by Agent— Presumption-—Finding.—Where, in an action for personal injuries to a street-car passenger alleged to have been sustained by the joint negligence of the driver of a passenger automobile stage and the motorman in charge of the car, the ownership of the antomobile was admitted at the trial, the presumption arose that the driver was the agent of such owner, and was sufficient to support a finding that at the time of the accident the automobile was being operated by the owner, although opposed and contradicted by direct testimony.</p> <p>[2] Id.-—Co-operative Business Association — Operation op Automobile Stages—Negligence op Member—Liability op Association — By-laws. ■— A co-operative business association organized under the provisions of section 653b et seq., of the Civil Code is not liable for the negligent operation of an automobile stage by a member of the association, where it appears by the by-laws that the proceeds from the operation of each stage, after the deduction of certain expenses, belong to the owner thereof, and he is to keep and operate his own machine.</p> <p>1. Liability of owner of automobile for acts of negligence of chauffeur or agent, notes, 10 Ann. Cas. 732; 12 Ann. Cas. 972; Ann, Cas. 1914C, 1087; Ann. Cas. 1915D, 476; Ann. Cas. 1916A, 659; Ann. Cas. 1917D, 1001, 3 008; Ann. Cas. 1918D, 241, 1134.</p>

<p>[1] Quieting Title—Lien of Deed of Trust—Unauthorized Execution by Administrator — Payment as Condition of Decree — Equities.—Where real property was conveyed to trustees to indemnify a surety company against loss on a bond staying an execution pending an appeal, and the judgment was afBrmed and the amount thereof paid by the surety company, the heirs at law of the judgment debtor are not entitled to a decree quieting their title to the property as against the surety company and the trustees, without payment of the lien under the deed of trust, by reason of the fact that pending the administration of the estate of such debtor the trustees executed a quitclaim deed releasing their lien in order that a pre-existing mortgage might be renewed, and thereafter were given a new deed of trust by the administrator, which was ineffective, because the probate court was without jurisdiction to authorize the execution of the deed of trust or any form of security other than a mortgage.</p>

<p>[1] Action on Promissory Note —■ Payment of Subscription by Stockholder of Bank — Purchase of Securities — Pleading — Proper Party Plaintiff.—Where the stockholders of a bank, in order to avoid an involuntary assessment, subscribed certain amounts to be paid to trustees named in the subscription agreement for the purpose of enabling such trustees to purchase certain collateral which the bank examiner had directed the bank to dispose of, and a stockholder gave his note to the bank for the amount of his subscription and the bank gave the trustees credit therefor and the collateral was subsequently delivered to the trustees, the bank was the proper party plaintiff in an action to recover on the note.</p> <p>[2] Id.—Failure of Consideration—Defense Without Merit.—In such action it cannot be claimed that there was a failure of consideration for the note because all subscriptions were not received within the time provided in the subscription agreement, in ’view of the fact of the delivery of the securities to the trustees.</p>

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

<p>[l] Husband and Wipe—Divobce—Settlement op Property Interest Prior to Proceeding—Sufficiency op Evidence.—In this action by a divorced wife to quiet title and to declare a trust in a parcel of real property as against the heirs of her former husband and the distributees under his will, the evidence supports the findings of a settlement of property interests prior to the divorce proceedings and of an absence of any property of a community ehar- . acter being brought into the estate.</p>

<p>[1] Criminal Law-—Charge of Murder—Preliminary Examination —Holding of Defendant to Answer—Sufficiency of Evidence. On this application for a writ of habeas corpus to secure the release of the petitioner on the ground that the evidence taken at his preliminary examination on a charge of murder does not show reasonable or probable cause for holding him to answer, the petition is denied on the ground that the evidence satisfactorily shows the existence of both reasonable and probable cause.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County denying a motion to offset judgments. John W. Shenb, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>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] Street Law—Improvement Act oe 1911—Resolution oe Intention—Certainty as to Work—-Eeeeot of Exception.—A resolution of intention to make a street improvement under the Improvement Act of 1911 is not insufficient to confer jurisdiction to order the work done, on the theory that it is uncertain as to the work to be done or that to be excepted, because, after describing the proposed work, it excepts therefrom any part thereof already done to official line and grade “and satisfactory to the superintendent of streets.”</p>

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

<p>[1] Intoxicating Liquors—'Wyllie Local Option Law—Effect of Volstead Act.—The Wyllie local option law (Stats. 1911, p. 599), whenever its prohibitory provisions are given practical operation in the manner prescribed thereby, is in nowise repugnant to or inconsistent with, but, as far as it goes, operates as in furtherance of, the purposes of the act of Congress known as the “Volstead Act.”</p> <p>[2] Id.—Licen store of Sale in “Dry" Territory—Invalid Provision of Wyllie Law — Effect of — Valid Provisions Unaffected.— The invalidity, by virtue 'of the eighteenth amendment to the federal constitution and the congressional legislation designed to enforce the terms of such amendment, of section 11 of the Wyllie local option law, which sanctions the licensing of the sale of intoxicating liquors in any district which has been previously voted “dry” if the majority of the electors so declare, does not render the 'other provisions of the law invalid, since the provisions of section 11 are subsidiary to the main purpose of the act and not essential to its validity.</p> <p>1. ‘Construction and effect of “Volstead Act,” note, 10 A. L. E. 1553.</p>

<p>[1] Quieting Title — Claim Under Lease — Evidence — Matters in Avoidance—Burden of Proof.—Where, in an action to quiet title, the plaintiff rested without introducing any evidence because the allegations of his complaint were not denied, and thereupon the defendants in support of their alleged claim of interest introduced in evidence a lease of a spring and right to maintain a pipe-line, and after the defendants had rested the plaintiff called witnesses to rebut the due execution of the instrument but did not tender any other issue, the plaintiff may not be heard to complain because of the failure to make findings on other issues in avoidance of the lease relating to its alleged uncertainty, since the burden was upon the plaintiff to introduce evidence on such other issues.</p>

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

<p>[1] Fraudulent Conveyance—Action to Set Aside—Pleading—-Exhaustion of Legal Remedies.—In an action by a judgment creditor to set aside an alleged fraudulent transfer, the failure of the complaint to show an exhaustion of legal remedies is without prejudice, where it is shown by the evidence that the defendant had transferred, or, at least, attempted to transfer, all of his property prior to the issuance of execution, and also that plaintiff had resorted to proceedings supplementary to execution.</p> <p>[2] Id.—Existence of Other Property—Immateriality.—If a conveyance is made with intent to defraud creditors, it is void, notwithstanding the debtor has other property ample in amount to satisfy his creditors.</p> <p>[3] Id. — Effect of Transfer — Contemplation of Insolvency. — Where a transfer renders one insolvent his insolvency is contemplated by the very act of making the transfer.</p> <p>[4] Id.—Intent—When Immaterial.—Intent is immaterial where the transfer is made without consideration and in contemplation of insolvency.</p> <p>[5] Id. — Action to Set Aside Fraudulent Transfer — Issues in Former Action—Retrial.—In an action by a judgment creditor to set aside an alleged fraudulent transfer, the defendant cannot retry issues raised and decided in the former action, in the absence of any allegation of extrinsic fraud in obtaining the judgment.</p> <p>1¡6] Id.—Lack of Consideration—Intent to Defraud—Sufficiency of Evidence.—In this action by a judgment creditor to set aside an alleged fraudulent transfer, the evidence is sufficient to support the findings that the transfer was made without consideration and for the purpose of defrauding plaintiff.</p> <p>[7] Id.—Existence of Indebtedness—Presumption of Fraud.—The existence of an indebtedness at the time of a voluntary conveyance creates at least a prima facie presumption of fraud.</p> <p>[8] Id. — Action to Set Aside Fraudulent Transfer—Pleading — Sufficient Complaint.—The allegation in a complaint by a creditor to set aside a transfer made with intent, to defraud creditors that plaintiff has recovered a judgment on his debt, that it is unpaid, and that an execution has been issued thereon and has boon returned unsatisfied, is sufficient, to show that plaintiff is entitled to appeal to equity. (Opinion of supreme court on denial of hearing.)</p> <p>[9], Id.—Unliquidated Nature of Debt—Immateriality.—In an action to set aside a transfer made with intent to defraud creditors, a judgment for the plaintiff in a prior action for legal services was proof that the defendant was indebted to plaintiff on the contract at the time the action was begun, and it was immaterial to the right to maintain the action to set aside the transfer that the debt was for the reasonable value of the services and to that extent unliquidated. (Opinion of supreme court on denial of hearing.)</p>

<p>[1] Sales—Fraud—Default—Finding—Evidence.—In this action for the cancellation of a conditional sales contract, for the recovery of moneys paid thereunder and for the cancellation of a note and mortgage given for an installment payment, on the ground of alleged misrepresentations as to the ownership of the property, the findings in favor of the defendant and cross-complainant as to the alleged fraud and as to the defaults in payments are supported by the evidence.</p> <p>[2] Contract—Breach of Implied Warranty-—Right of Recovery— Freedom from Default.—A defaulting party cannot maintain an action for breach of an implied warranty.</p> <p>[3] Rescission—Defaulting Party.—Rescission of a contract cannot be made by a party who is in default.</p> <p>[4] Id.—Compliance With Code.—Compliance with the provisions of section 1691 of the Civil Code is essential to rescission.</p>

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

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

<p>[1] Fraud—Exchange of Lands—Action for Damages—Duress of Wife—Pleading—Insufficient Complaint.—In an action by a husband and wife for damages for deceit in an exchange of lands, a complaint which does not allege that the wife was confined by anybody is insufficient to show that she signed the contract under duress as defined by subdivision 3 of section 1569 of the Civil Code.</p> <p>[2] Id.—Undue Influence—Insufficient Complaint.—An allegation in such an action that one of the defendants and the plaintiff husband annoyed the wife until she signed the contract without knowing its contents is insufficient to show undue influence.</p> <p>[3] Id. — Misrepresentation of Value of Exchange Property — Pleading ■—■ Reliance upon — Insufficient -Complaint. — A complaint in such an action alleging that the defendants misrepreseated the value of the property they were to give in exchange, but which shows that one of the plaintiffs examined the property before signing the contract, does not show reliance upon such misrepresentation, especially in view of the provision in the contract that the parties had investigated the respective properties and that the defendants were released from all responsibility regarding valuation.</p> <p>1. What amounts to duress, note, 26 Am. Dec. 374.</p> <p>[4] Id.—Ownership op Property by Another—Character op ¡Representation.—An allegation in such an action that the defendant who signed the contract did not own the property at the time and that he represented that another defendant owned the property negatives rather than sustains any misrepresentation of a fraudulent nature.</p>

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

<p>APPLICATION for a Writ of Habeas Corpus to secure release for violation of a county prohibition enforcement ordinance. Granted.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Bailroads—Deed of Strip of Land—Construction of Bo ad— Condition Subsequent.—A deed of a strip of land to a railroad company in consideration of the promise of the company to construct a road cannot be construed as a deed containing conditions subsequent in the absence of anything in the deed itself to such effect or in the language of the promise purporting to state a condition or forfeiture.</p> <p>[2] Id.—Purchase of Land for Unauthorized Purposes—Bight of Complaint.—If a railroad company has purchased land for purposes not authorized by its charter, the question may be examined into by the state, but the grantor may not complain.</p> <p>[3] Specific Performance — Bailroad Contract — When not Enforceable-—Statute of Limitations.—A railroad company cannot be compelled to specifically perform a contract for the construction of a road under a complaint which shows the making of an alleged promise so to do over seventeen years prior to the filing of the complaint and that no railroad other than a construction road has been built.</p> <p>2. Effect of ultra vires purchase of land by corporation, notes, 70 Am. St. Kep. 156; 17 Ann. Cas. 529.</p>

<p>[l] Contract—Commission on Sales op Farm Products—Destination Sales—Construction oe Instrument.—Under a contract providing for the payment of a commission of “20% of the net f. o. b. destination sales” of certain farm products which the defendant was to market for the plaintiffs, the former was not entitled to the commission on gross sales, but on sales after deducting freight.</p>

<p>[1] Medical Act — Unprofessional Conduct — Deferring of Judgment—Jurisdiction of Board.—The board of medical examiners, after acquiring jurisdiction of a proceeding to revoke a license for unprofessional conduct, has the power to continue its hearings from time to time, and to defer for a period of months the pronouncing of its judgment upon one found guilty of such conduct.</p>

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

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

<p>[1] Negligence — Driver op Motor-truck — Entry op Street prom Wrong Side op Intersection—Excessive Speed.—A driver of a motor-truck who enters a heavily traveled thoroughfare at an obstructed corner from the wrong side of the intersecting street at a speed of fifteen miles an hour is guilty of negligence.</p> <p>1. Speed of automobile as negligence, notes, 25 I». R. A. (N. S.) 40; 38 L. R. A. (N. S.) 488; 42 L. R. A. (N. S.) 1178; 51 L. B.. A. (N. S.) 993.</p> <p>Automobile cutting corners as negligence, note, 6 A. L. R. 321.</p> <p>[2] Id.—'Collision With Motorcycle—Contributory Negligence— Question of Fact.—In an action for personal injuries sustained by .a motorcycle rider in a collision of his machine with an auto-truck which had entered the street from the wrong side of the intersecting street, it yyas a question of fact for the jury to determine whether the plaintiff was guilty of contributory negligence in not slowing down his motorcycle or in not turning into the intersecting street and avoiding the collision.</p> <p>[3] Id.—Position of Great Peril—Degree of Care.—One in great ' peril, when immediate action is necessary to avoid it, is not required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under ordinary circumstances.</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] Trademarks—Similarity of Names—Injunction.—A similarity of such a character exists between the trade names “Active Transfer Company” and “Action Transfer Company” as will justify the issuance of an injunction restraining the use of the latter name.</p> <p>[2] Id.—Transfer and Parcel Delivery 'Company—Eight of Appropriation of Word “Active.”—The word “active” is subject to appropriation as a trade name in connection with a transfer and parcel delivery business.</p> <p>1. Similarity of name as constituting infringement of trademark or trade name, notes, 47 Am. Dec. 284; Ann. Cas. 1915B, 327.</p> <p>Protection of public as grounds for injunction against misuse of trademark or trade name, note, L. R. A. 1916D, 119.</p>

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

<p>[1] Justice’s Court Appeal—Judgment by Default—Jurisdiction of Superior Court.—Where a judgment upon default has been entered in a justice’s court, there can be no appeal on questions of fact, and the appellant cannot extend the scope of the appeal beyond questions of law by designating the appeal as one upon questions of both law and fact.</p>

<p>APPEAL from an order of the Superior Court of San Bernardino County denying a motion for change of place of trial. Rex B. Goodcell, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>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. John Hunt, Judge. Affirmed. a</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] Nonsuit—Motion—Admission of Facts.—A motion for a nonsuit admits the truth of the evidence produced and every legitimate inference of fact that may be legitimately drawn therefrom.</p> <p>[2] Id.—Decision on Motion—Limitation.—The court cannot go beyond the limits of a motion for a nonsuit in rendering its decision.</p> <p>[3] Id.—Doubtful Case—Duty of Court.—It is the duty of the court on a motion for a nonsuit if there be any doubt to let the case go to the jury.</p> <p>[4] Id.—Interpretation of Evidence.—On a motion for a nonsuit, the evidence should be most strongly interpreted against the defendant.</p> <p>[5] Negligence — Discovery of Spring —; Offer of Reward — Duty Toward Searchers—Ordinary Care.—Where a lumber company employed plaintiff to dig a well 'and while waiting for his outfit to be repaired he went in search for a spring of water, for the discovery of which the company had offered a reward, the offer was an invitation to go upon the company’s premises for the purpose of the search, and while so engaged the plaintiff was entitled to the legal protection of ordinary care on the part of the company.</p> <p>[6] Id.—Beturn from Search—Personal Injuries—Issues—Questions for Jury.—Where the plaintiff in returning from the search for the spring was injured by being struck by a crane operated by a crew of men employed by the lumber company, whose operations he had stopped to watch at a distance of thirty or forty feet from the crane, the issues of negligence and contributory negligence in an action for such injuries were for the determination of the jury.</p>

<p>[1] Deed — Description of Property — Extrinsic Evidence. — The grantee of a deed is entitled to have title declared in him wherever, by reason of a fair interpretation of the terms of the conveyance, assisted by extrinsic evidence, the property may be iden tified.</p> <p>[2] Id.—Conveyance of Half Interest in Devised Properties— Sufficiency of Description. — Two documents executed by a widow, each declaring that in one of the civil courts which is established in the county of Imperial Valley there are being determined the probate actions of the properties of her deceased husband, who left her by will all of his properties, “as well in the city of Calexico, as in this city, and is as follows . . . seven lots situated in the city of Calexico,” and each document declaring a grant of twenty-five per cent of the rights which she “represents in the properties,” operated to convey to the grantee a one-half interest in all of the real estate located in the city of Calexico which was owned by her husband at the time of his death, and the fact that the county of Imperial was referred to as the county of Imperial Valley did not impair the description.</p>

<p>[1] Negligence—Damage to Truck—Evidence—Amount of Earnings.—Where, in an action for damages to a truck resulting from a collision with the truck of the defendant, the complaint alleged and the answer denied that plaintiff had lost the use of the truck for a period of ten days, it was proper to permit the plaintiff to testify as to the amount that he was earning with the truck at the time of the accident.</p> <p>[2] Id.—Entrance of Street Intersection—Bight of Control Until Passage Therefrom—Instruction.—An instruction that if it should he found that the defendant, in turning to the left, had the right of way over any vehicle approaching from the left, while making such turn, and if it should be found that the intersection had been entered, he had the right to maintain possession until the turn was completed and that the entrance of plaintiff was negligence, was properly refused.</p>

<p>[1] Negligence Personal Injuries — Action for Damages — Contributory Negligence—Pleading and Proof.—The plea o£ contributory negligence is an element that must he pleaded and proved by the defendants, unless the evidence appears from the testimony given in the plaintiffs’ case; and in this action by a husband and wife for damages for injuries sustained by the latter by being struck by an automobile which one of the defendants was driving, it could not he said that, as a matter of law, such wife was guilty of contributory negligence—that is, that all the facts plainly and inevitably pointed to such negligence, leaving no room for argument or doubt.</p> <p>[2] Id.—Excessive Verdict—Evidence—Appeal,—In this action for damages for personal injuries, the jury apparently having believed the evidence of plaintiff as to the extent of her injuries, the length of time she was confined to her bed, the seriousness of the pain and suffering to which she was put, and the amount of money she was required to pay for doctors’ services and medicine and for help employed to do the housework which she had theretofore done, the appellate court was not at liberty to hold that the verdict was excessive.</p> <p>1. Duty of pedestrians to look out for automobiles, notes, 4 Ann, Gas. 400; 3 L. R. A. (N. S.) 345; 20 Ir. R. A. (N. S.) 232; 38 L. R. A. (N. S.) 488; 42 L. R. A. (N. S.) 1179; 51 L. R. A. (N. S.) 992.</p> <p>2. Excessive verdict for personal injuries not resalting in death, notes, 16 Ann. Gas. 8; Ann.'Gas. 1913A, 1361; inadequate verdict, notes, Ann. Cas. 1916B, 384, 450, 451, 454, 455, 457.</p> <p>[3] Id.—Conclusion of Defendant—Improper Question—In an action for damages for personal injuries sustained by being struck by an automobile, an objection to a question asked of the defendant, by his own counsel, as follows: “Was there anything you could have done that you did not do to avoid the accident?” is properly sustained as calling for the conclusion of the witness.</p> <p>[4] Id.—Speed of Automobile—Qualification of Witness to Testify.—In such an action, where it is first shown by a witness that he had driven an automobile for about a year and a half, that he had driven cars having a speedometer, and that he had watched speedometers to gauge his speed, the necessary foundation is laid to permit that witness to testify as to his ability to estimate the speed of the automobile at the time it struck plaintiff and to give his estimate of the speed thereof.</p> <p>[5] Id.-—-Theory of Case—Application of Local Ordinance—Appeal —Estoppel.—Where during the trial the plaintiffs introduced the local municipal traffic ordinance and the defendants made no objections, hut stipulated that the whole ordinance should be deemed in evidence and that either party might read such sections thereof as they desired, and it was further stipulated that such ordinance provided a certain speed limit at the place where the accident happened, and the attention of the lower court at no time was called to the question as to whether the state statute or such local ordinance was controlling, the defendants are not entitled to raise that question on appeal.</p> <p>4. Qualification of witness to testify as to speed of automobile, notes, 19- Ann. Gas. 754; Ann. Cas. 1917D, 613; 34 L. R. A. (K S.) 778.</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—-Admission—-Confession.—An admission is distinguished from a confession by the fact that the term “admission” in criminal matters relates to matters of fact that do not involve a criminal intent, and a confession is an acknowledgment of guilt.</p> <p>[2] Id.—Statement of Guilty- Conduct—Justification—Admission. When the statement of guilty conduct is such that it does not involve a criminal intent, or where it constitutes facts amounting to justification or excuse for, the defendant’s acts, it is an admission rather than a confession.</p> <p>[3] Id.—Confession — Voluntary Character — Instruction. — While primarily it is for the court to decide whether a confession was voluntarily made for the purpose of determining its admissibility, the jury should be instructed that it is still within its province to pass upon the matter.</p> <p>[4] Id.-—Murder—Evidence—Instructions—Absence of Error.-—In this prosecution of a husband for the murder of his wife, no error was committed in the admission in evidence of the statement of the defendant concerning the cióme, or in the admission of other testimony, or in the instructions to the jury.</p>

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

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

<p>[1] Divorce—Award of Alimony—Modification of Decree—Power of Court—Effect of Stipulation.—A stipulation of the parties to an action for divorce before trial that a certain sum might be awarded to the plaintiff “as and for permanent alimony” has reference to the alimony awarded after suit under section 139 of the Civil Code, as distinguished from the suit money awarded during the pendency of the action, and usually termed “temporary alimony,” and an award of such amount in the interlocutory decree is subject to the power of modification, although the decree fails to show that the stipulation was before the court or that it was considered by it.</p> <p>[2] Id.—Award of Alimony—Modification of Decree—Discretion.— The modification of a decree of divorce in respect to the award of alimony is a matter which rests in the sound discretion of the trial court, and when the financial circumstances of the parties change, the court may in its discretion modify the award.</p> <p>2. Modification of decree of divorce in respect to the award of alimony, notes, 13 Ann. Cas. 296; Ann. Cas. 1912C, 446; 44 L. K. A. (H. S.) 1026.</p>

<p>[1] Sale—Quality of Oil—Insufficient Warranty—Expression of Opinion.—The statement of a seller of peach kernel oil that it was equal to the best grades of imported olive oil was the mere expression of an opinion and wholly insufficient for reliance upon as a warranty.</p> <p>[2] Id.—Action fob Breach of Warranty—Quality of Oil—Conflict of Evidence—Binding—Appeal.—Where in an action for an alleged breach of warranty on a sale of peach kernel oil there was a fair conflict of the evidence upon the question as to whether the oil was of reasonably good quality, the finding is conclusive.</p>

<p>[l] Corporations—Amount Paid for Stock—Refund from Proceeds of Sale of Property-—-Void Certificates.—A certificate of a corporation agreeing to refund to a stockholder the amount paid for shares of its capital stock out of moneys received from a sale of real property of the corporation is void under section 309 of the Civil Code.</p>

PROCEEDING in Certiorari to review a decision of the Industrial Accident Commission denying compensation. Affirmed. The facts are stated in the opinion of the court.

Charles 0. Busick, Judge. Submission vacated and leave given to file supplemental briefs. The facts are stated in the opinion of the court.

<p>[1] Criminal Syndicalism Law — Maintenance of Industrial Change—Omission to Penalize—Constitutional Law. — The criminal syndicalism law which penalizes certain acts done to accomplish an industrial or political change is not unconstitutional for not penalizing the same acts if done for the purpose of maintaining and perpetuating the same industrial or political condition.</p> <p>[2] Id.—Destruction of Owned Property—Amenability to Act— Evidence—Moot Question.—Complaint cannot be made in a prosecution for criminal syndicalism that under the terms of the statute one cannot destroy his own property without becoming amenable to its terms, where the facts do not present the question.</p> <p>[3] Id.—Failure to Define Terms—Validity of Statute.—The criminal syndicalism law is not void for failure to define “crime,” “unlawful method of terrorism,” “change in industrial ownership or control,” etc., since the meaning of such words and terms may be obtained from the decisions and code provisions, and in view of the fact that there is no constitutional requirement that rules of interpretation be provided within the bounds of each particular statutory enactment.</p> <p>[4] Id.—Information—'Consolidation With Subsequent Indictment —Absence of Error.—In a prosecution for criminal syndicalism, it was not error to consolidate an information charging the defendant with a violation of subdivision 3 of section 2 of the Criminal Syndicalism Act, with a later indictment presented against the defendant and seven others, in view of section 954 of the Penal Code, and of the fact that he was acquitted on the charge stated in the information.</p> <p>[5] Id.—Indictment—Name of Organization—Names of Persons Induced to Join — Unnecessary Allegations. — An indictment charging that the defendant “organized and assisted in organizing” a group of persons to advocate, teach, aid, and abet criminal syndicalism, and that he “became a member of” such organization, is not insufficient for failure to allege the name of the organization or the names of those “induced to join.”</p> <p>[6] Id.—Words of Statute—Insufficient Counts.—Counts in an indictment for criminal syndicalism pleading the words of the statute without specifying any particular circumstance to indicate to a person of common understanding what was intended are insufficient.</p> <p>[7] Id.—Evidence—Principles of I. W. W. Organization.—Where in a prosecution for criminal syndicalism it was shown that the defendant stood in the position of one indorsing and advocating the tactics, program, and principles of the I. W. W. organization, it was proper to receive evidence showing the nature of such principles.</p> <p>[8] Id.—Conspiracy—Liability of Conspirators —• Instruction. — A requested instruction in such a prosecution to the effect that a conspirator is not liable for the acts committed by his fellow-conspirators during the life of the conspiracy in carrying out the conspiracy was properly refused as not being a sound proposition of law.</p> <p>[9] Id.—Rights of Labor Unions—Instruction.—A proposed instruction on the rights of labor unions was properly refused, as foreign to the issues.</p> <p>[10] Id.—Bight to Sympathize With Bolsheviks—Instruction.— A requested instruction addressed to the right of the individual to sympathize with the Bolsheviks was properly refused.</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>U. S. Webb, Attorney-General, Arthur Keetch, Deputy Attorney-General, and John W. Maltman for Appellant.</p>

<p>[1] Waters and Water Eights—Acquisition op Property op Competitor—Evidence—Finding—'Burden op Existing Easements.— In this action, from the evidence showing that certain stockholders of the defendant water company acquired all the capital stock of its 'competitor, that one of them, who was also the president of the defendant corporation, received a conveyance from certain persons who purported to act as the agents of such competitor of its property and franchises, and that thereafter such stockholders permitted the defendant corporation to take possession of such property and franchises, the trial court was justified in finding that the defendant corporation acquired the property and franchises of its competitor; and the defendant corporation, in thus voluntarily taking possession of the property and franchises of its competitor, took them burdened with the easement of the water rights fastened thereto at the ti.no of such acquisition, so long as it continued to enjoy the water supply of its former competitor, notwithstanding it abandoned the greater part of the latter’s reservoirs, main, and pipes.</p> <p>[2] Id.—Preferential Eights — Erroneous Judgment — Collateral Attack.—Where a superior court has jurisdiction of the parties and of the subject matter of an action involving the right to certain water, and there is no irregularity or departure in the pursuit of that jurisdiction, its judgment—although it may be erroneous in law, in that it establishes a preferential right in waters appropriated to public use—is not void, and, being merely erroneous, is not subject to collateral attack.</p> <p>[3] Id.—Allowance of Water for Domestic Use—Definiteness of Decree.—Where a decree, after specifying the amount of water in gallons to which the plaintiff is entitled for irrigation purposes, provides tha't she shall be entitled to take “in addition thereto a sufficient quantity for domestic use in and about the dwelling-house and other buildings on the premises,” the quantity of water allowed for the latter purpose is made sufficiently definite and certain by the extremely limited use to which it may be applied.</p>

<p>[1] Trust—Conveyance of Real Property—Passing of Title-Vested Remainder.—A written instrument assigning, granting, and transferring to named persons described real property “to have and to hold the same in trust during the remainder” of the life of the grantor, and giving and granting to other named persons the remainder and residue of the property in the hands of the trustees at the time of the death of the grantor, vests title immediately and absolutely in the trustees and is not a void trust to convey, since the trustees are not directed to make a conveyance.</p> <p>[2] Id.—Delivery to Trustees — Agents of Remaindermen.—Delivery of such instrument to the trustees was sufficient to vest title in the remaindermen without a delivery to the latter, since the trustees became their agents.</p> <p>[3] Remainders—Deed—-Exception to Rule.—Remainders are an exception to the general rule that one not a party to a deed can take nothing by it.</p> <p>[4] Trust—Accumulations—Validity of Provision-—When not Determinable.—The validity of a trust provision for accumulations will not be determined in the absence of a showing of an accrual of such accumulations.</p>

<p>[1] Contracts—Sale of Fruit Crop—Term of Obligation—Ownership of Land Immaterial.—Under a contract for the sale and purchase of all the crops of fresh fruit grown, or to be grown, upon certain specific land “during the seasons of 1917 to 1928, both inclusive,” the obligation of the seller to perform is not limited to the period of his ownership of the land by the mere recital in such contract that he is the owner of the land upon-which the fruit is to- be grown, those words being merely deseriptio personae.</p> <p>[2] Id.—Provision That Covenants Run With Land—Effect of Disposition of Land.—The fact that such contract provided that the covenants therein contained should run with the land did not have the effect of relieving the original covenantor from liability upon his disposition of the land.</p> <p>13] Id.—Agreement That Covenants Run With Land—Effect of on Subsequent Purchaser.-—By a provision in such a contract that “It is mutually agreed, between the parties hereto that the covenants herein contained, shall • run with the land hereinabove described, and shall bind both of the parties hereto, their heirs, administrators, executors, successors and assigns,” the parties not ‘ only fail to impose a lien or burden upon the land but they also fail to charge the grantee of the land with any responsibility under said contract or to relieve his grantor from his continuing liability thereunder.</p> <p>[4] Id.—Breach—Specific Performance as Cumulative Remedy.— A provision in such a contract that it “may,” at the instance of either of the parties thereto, be specifically enforced in any court of competent jurisdiction does not have the effect of making an action for specific performance the only remedy for a breach, but only gives the parties an optional and cumulative remedy which would not otherwise exist.</p>

<p>HI Negligence—Death op Bailroad Employee—Federal Employers’ Liability Act—Pleading—Party Plaintipp.—Under the Federal Employers’ Liability Act, which relates to the liability of common carriers by railroad to their employees in certain cases, the right to recover, in ease of the death of an employee, is in the personal representative of the deceased, and no one else can maintain the action.</p> <p>[2] Id.—Amendment op Complaint—Substitution op Personal Bep-RESENTATIVE AS PARTY PLAINTIPP-ERROR WITHOUT PREJUDICENonsuit.—Error in allowing the amendment of a complaint, setting up in one count a cause of action under the Federal Employers’ Liability Act, whereby the personal representative of the deceased was substituted for the original parties after the statute of limitations had run against the aetion, was without prejudice where a judgment of nonsuit in favor of the defendant was entered on such cause of aetion.</p> <p>[3] Id.—Cause op Action Under State Law—Proper Amendment.— An amendment of a complaint setting up in a second count negligence of the defendant in its treatment of the employee, by substituting the personal representative of the deceased employee as party plaintiff after the federal statute of limitations had run against the first cause 'of aetion, was not erroneous, since the liability arose under the laws of this state, and such substitution was not the beginning of a new action.</p> <p>[4] Id.—Negligent Treatment by Physicians—Bailroad Hospital Maintained by Employees—Liability op Company.—A railroad company is liable for the negligence of its physicians in the treatment of an injured employee while confined in a hospital maintained by the company, notwithstanding the company exercised due care in their selection, in the absence of any showing that the funds collected monthly from employees for the maintenance of such hospital constituted a trust fund in which the employees had an interest and that the hospital was operated solely as a charity.</p>

<p>[1] Stock Brokers—Order for Purchase of Stock—Nature of Transaction — Nonliability for Conversion.—Where plaintiff gave a firm of stock brokers a written order for the purchase of oil stock, and the order contained a provision that all purchases and sales were subject to the rules of the exchange where the order was executed, and the brokers contracted for the purchase of the stock on the New York stock exchange, whose rules provided that such contracts were not to be consummated until the day following that of the purchase, at which time the transaction was to be closed by the seller delivering the stock upon payment therefor by the purchaser, and on the day of the purchase the local brokers, after plaintiff refused to deposit more margin, resold the stock to the brokers through whom the purchase was made, the plaintiff never became the owner of the stock, since it was never delivered to his brokers, and they were not guilty of its conversion.</p>

<p>[1] Sale—Recovery of Balance of Price of Engines—Counterclaim for Breach of Warranty—Trial on Theory of Issues Raised—Appeal—Sufficiency of Pleading.—Where in an action to recover on a note given in part payment of gasoline engines no demurrer was interposed to the counterclaim setting up in general terms a breach of warranty as to the mechanical condition of the engines, and the ease was tried and evidence received without 'objection touching the issues as fully and to the same extent as though tho particular defects constituting the breach had been specifically stated, the plaintiff cannot complain on appeal of tho insufficiency of the pleading.</p> <p>[2] Id.—Breach of Warranty-—Pleading—Sufficiency of Counter claim.—A counterclaim for breach of warranty as to the mechanical condition of gasoline engines is not insufficient, under section 3313 of the Civil Code, in not alleging the actual value at the date of the sale, where it is alleged that had the warranty been complied with, tho engines would have been of a value in excess of their actual value at the time of the warranty, and no attack was made on the pleading on tho ground of uncertainty, but evidence was received on behalf of both parties as to the excess in the value of the property as warranted over its actual value at that time.</p>

<p>[i] Criminal Law—Raising of Check—Place of -Commission of Crime.—Where a raised check was drawn on a bank in Yolo County and presented to a bank in Contra Costa -County with other checks and money to be credited to the defendant’s cheeking account, and the latter bank made the credit and mailed the check to its correspondent in San Francisco, and in due course the check was presented to the bank in Yolo County and paid, ancl the amount thereof charged to the account of the drawer, the crime was committed in Contra Costa County, and the superior court of Yolo County was without jurisdiction of the offense.</p>

<p>[1] Negligence—Destruction or Grain Crop—Suppiciency op Evidence.—In this action for damages for the destruction by fire of certain grain, the evidence was sufficient to sustain the findings that defendant’s employees, who before and at the time of the breaking out of the fire were engaged in repairing defendant’s power line, were negligent in failing to extinguish or stay the spread of a small grass fire which had originated near the place where they were working.</p> <p>[2] Id.'—Origin op Fire—Evidence—Remark op Dependant’s Employee to Third Party.—In such action, the testimony of a witness, who observed such employees standing near the fire with sacks in their hands but doing nothing to extinguish it or to prevent it from spreading, that, in reply to a remark concerning the fire, one of them said, “Never mind, partner, we will attend to the fire,” was competent and relevant to establish responsibility for its origin.</p> <p>1. Master’s liability to third person for damage by fire started by servant, notes, Ann. Cas. 1914A, 1102; Ann. Cas. 1917B, 1054.</p>

<p>[1] Bail Bond — Failure op Dependant to Appear at Preliminary Examination — Becitals—Liability op Surety.—A surety on a bail bond executed prior to the preliminary examination of the defendant is liable thereon upon the failure of the defendant to appear at sueh examination, notwithstanding the recitals in the undertaking that “an order having been made” that the defendant be held to answer, the surety undertakes that he “will appear and answer the charge in whatever court it maybe prosecuted,” since section 1278 of the Penal Code, which provides the form of bail bonds and for sueh recitals therein, is applicable to bonds to be given before and after preliminary examinations.</p>

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

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

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

<p>[1] Vendor and Vendee—Time of Essence op Contract—Belief prom Forfeiture.—While facts may be shown which would justify a court in relieving a vendee under a contract of sale of real property from a forfeiture even where time is of .the essence of the contract, such relief will not be granted in the absence of any request therezor or any suggestion that the vendee is either able or willing to make payment of the amount due.</p>

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

James M. Troutt, Judge. Modified. The facts are the same as those stated in the opinion in the case of United Taxpayers Go. v. City and County of San Frcmeisco, a/cite, p. 239.