Volume 57 — California Appellate Reports

<p>[1] Broker’s Commission—Negotiation op Sale.—A broker, in order to bring himself within the conditions of his contract providing for the payment of a compensation on any sale which results through his “negotiations” or through his “efforts,” is required to show that he was the efficient cause of the sale.</p> <p>[2] Id.—Employment on Sale — Bight to Commission.—Under a contract prescribing compensation to a broker alike whether he “originates” or is “employed” on a sale, Ms rights are the same whether he is the fertile mind that begins, or is the effective instrument that ends, a continuous series of negotiations leading to a successful consummation.</p> <p>[3] Id.—Construction op Contract—Future Services.—A contract providing for the payment of compensation to a broker on any sale “upon which you are employed” is not limited to a sale resulting from services in course of rendition at the date of the contract, where the contract was not a studied production but a communication between two men who had been working together in the same office toward the same end, and who, believing they understood each other, dealt in open-handed fashion, with little thought of niceties in the use of m'oods and tenses.</p> <p>1. When real estate broker is considered as the procuring cause of sale or exchange of real property, notes, 28 Am. St. Rep. 546; 139 Am. St.Rep. 225; 44 L. B. A. 321.</p> <p>[4] Id.—Peo curing Cause of Sale—Protection of Broker.—Where there is justification for treating the broker as the procuring cause of sale, his services are regarded as highly meritorious, and the law leans to that construction of the contract and to that interpretation of the facts of the case and the acts of the parties which will best secure to the broker the payment of his commissions.</p> <p>[5] Id.—When Procuring Cause of Sale.—To constitute himself the predominating effective cause of a sale, it is not enough that the broker contributes indirectly or incidentally to the sale by imparting information which tends to arouse interest, hut he must set in motion a chain of events, which, without break in their continuity, cause the buyer and seller to come to terms as the proximate result of his peculiar activities.</p> <p>[6] Id.—Completion of Sale by Another—■ Effect upon Commission.—A broker who is the primary procuring cause of a sale will not be deprived of Ms commission because the negotiations were completed through someone else, even perhaps without the broker having himself met or communicated personally with the buyer.</p> <p>[7] Id.—Procuring -Cause of Sale—Question of Fact —Appeal.— Whether or not a sale is primarily the result of the broker’s efforts is a question of fact, and the determination of the triers of such fact will not be disturbed on appeal.</p> <p>[8] Id.—Sale of Site for Shipbuilding Yard — Broker Procuring Cause of -Sale.—Where a broker, acting under his contract of employment, carried on extended negotiations with a shipbuilding corporation for the sale of a site for a- shipbuilding yard, and the land was ultimately purchased at the same price and on the same terms as those named -by the broker to the shipbuilding corporation with money furnished by the United States Shipping Board Emergency Fleet Corporation to enable the shipbuilding corporation to take the active management and to build ships under orders in the Fleet Corporation’s jrard, the shipbuilding corporation and the Fleet Corporation were coadventurers in the purchase, and the broker was the procuring cause of the sale, notwithstanding 'the sale was consummated by the parties themselves.</p> <p>[9] Id. — Termination of Agency Contract —- Subsequent Completion of Sale—Bight to Commission.—Allowance of compensation .to a broker who was the procuring cause of a sale is not precluded by reason of the fact that the sale was completed more than thirty days after the owner’s notice terminating the broker’s contract, notwithstanding the contract provided for termination on such notice, where the notice expressed a willingness to pay the broker a commission on all sales which originated with him or for which in the judgment of the directors of the owner he was responsible.</p> <p>[10] Corporations—Brokerage Contract—Signature by Manager— Absence op Authorization — Effect op.—A brokerage contract signed by the acting general manager of a corporation is binding on the corporation, notwithstanding the absence of an express written authorization.</p> <p>[11] Broker’s 'Commission — Prevention op Performance — Suit in Assumpsit—Right of Broker.—A state of facts showing prevention of performance of a contract justifies an action in assumpsit, and while a broker’s contract cannot be set up to defeat the implied assumpsit, it is admissible in evidence to show how the cause of action arose and to supply a measure of damages.</p> <p>[12] Id.—Prevention of Performance — Submission to Jury—Sufficiency op Evidence.—In this action the evidence justified the plaintiff as a precautionary measure in going to the jury on a count based on the theory of prevention of performance.</p> <p>[13] Id.—Assumpsit—Sum Demanded—Pleading.—In an action in assumpsit by a broker, based on the theory of prevention of performance, it is not essential to aver that the sum demanded is the reasonable value of the services, where the contract provision for compensation is relied upon as the standard of value.</p> <p>[14] Id.—Evidence—Contract.—In such an action the plaintiff was not required to offer any evidence concerning the amount of damages other than the contract itself on which he was entitled to rely as a standard of value.</p> <p>[15] Id. — Action in Two Counts — Election. — A broker suing an owner for a commission in one count and in assumpsit based on prevention of performance in another count is under no compulsion to elect between the counts, but is entitled to submit his entire ease to the jury for determination upon the facts, and it is the jury’s province to decide which count is supported by the evidence.</p> <p>[16] Id.—General Verdict—Evidence—Support of Either Count.— Where a general verdict is rendered in such a case, the verdict ■and judgment entered thereon must stand if the evidence supports a verdict on either count.</p> <p>[17] Id. — Acceptance op Government Employment by Broker—■ Effect op.—A broker who was the procuring cause of a sale of a site for a shipyard to the government did not forfeit his right to his commission under his contract by accepting employment with the government’s engineers, after the government had obtained an option to purchase, where his assistance furthered rather than dissuaded action and involved no service in conflict with a due regard to the interests of the vendors.</p> <p>[18] Id.—Instructions — Absence of Error.—The instructions in this case read as a whole gave an exposition of the law which subjected defendants to no prejudice, and placed the ease before the jury in a manner which left to the defendants no just ground of complaint.</p>

<p>[1] Estates of Deceased Persons—Trial of Title to Personal Property—Lack of Jurisdiction.—The superior court, sitting in prohate, in the exercise of its jurisdiction pursuant to sections 1459, 1460, and 1461 of tho Code of Civil Procedure, cannot try and determine questions of title to personal property.</p> <p>[2] Id.—Charge of Embezzlement—Answer Denying Accusations and Asserting Ownership—Jurisdiction to Determine Title not Conferred.—A respondent in a proceeding under sections 1459, 1460, and 1461 of the Code" of Civil Procedure charging her with embezzlement of personal property belonging to an estate does not voluntarily submit to the jurisdiction of the probate court the question of the title to the property by the filing of an answer denying the accusations and asserting her claim of ownership.</p> <p>[3] Id. — Judgment Directing Delivery of Property — Kemedy of Respondent—Prohibition.—A writ of prohibition is the proper remedy of the respondent in such a proceeding where it is adjudged that the estate have and recover the property, that the respondent deliver the same within ten days, and that in event of refusal, compliance with the judgment be enforced by contempt proceedings.</p>

<p>[1] Divorce — Decree op Annulment—Appeal — Pleading — Marriage oe Parties—Point Without Merit.—On an appeal from a judgment annulling a decree of divorce, the complaint is not subject to attack for failure to allege by direct averment that the plaintiff and the defendant were husband and wife, where no attack was made upon the marriage during the introduction of the evidence, or in the specifications of the insufficiency of the evidence.</p> <p>[2] Id.—Marital Status of Plaintiff^-Improper Cross-complaint. In an action to annul a decree of divorce, a cross-complaint setting np facts showing that the plaintiff had formerly been the wife of another and that she was not legally divorced from him was not a necessary or proper pleading on behalf of the defendant.</p> <p>[3] Id.—Annulment of Decree—Damages—Pleading—Joinder of Causes of Action.—A cause of action to vacate a decree of divorce alleged to have been obtained by fraud, and also to recover damages from the defendant husband, may be joined with a cause of action to recover damages from his codefendant.</p> <p>[4] Id.—Attack upon Deoree—Procedure—Bill in Equity.—The plaintiff in an action to annul a decree of divorce did not err in making her attack by filing a suit in equity instead of proceeding by motion, where it appeared that she did not know of the entry of the decree until her return to the state, more than one year after the filing of the final decree.</p> <p>[5] Id.—Commencement of Action—Laches.—The plaintiff in such action was not guilty of laches where the action was commenced within one month after she had acquired knowledge of the entry of the decree.</p> <p>[6] Id. — Publication of Summons — False Affidavit—Fraud.—The false statement in an affidavit for publication of summons in an action for divorce that the defendant “left” the state on a stated date “for some place without the state of California unknown to affiant,” invalidated the affidavit and constituted a fraud on the court.</p> <p>[7] Id.—Husband as Guardian of Incompetent Wife — Action for Divorce—Concealment of Fact—Fraud.—Where a husband who was the guardian of the person and estate of his wife did not call to the attention of the court either in his complaint for divorce, or in the affidavit accompanying it, that he was suing his ward and that his ward was an incompetent person on whom a summons might not legally be served, he was guilty of a fraudulent concealment.</p> <p>[8] Id.—Damages—Attorney’s Fees.—In an action by a wife to annul a decree of divorce obtained by fraud, she is not entitled to recover, as an element of damage, the reasonable value of the services of her attorney on the theory that by reason of the fraud she was delayed and prevented from proceeding with an action against the defendant for maintenance.</p>

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

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

<p>[1] Landlord and Tenant—Lease op Lot and Building to be Constructed—Provision as to Cost op Building—Construction of Instrument.—A lease of a lot with a building to he erected thereon “to cost approximately $21,600” in consideration of the payment as rental of the sum of six per cent net on the valuation of the lot and eight per cent on the cost of the building, while not restricting the cost to a sum not in excess of $21,000, was intended as an approximate estimate, and the construction of a building at a cost of more than fifty per cent in excess of $21,000 was not in the contemplation of the parties.</p> <p>[2] Id. — Cost in Excess op Specified Amount —■ Acceptance op Building—Amount op Rental—Covenant not Waived.—Where the provision as to the cost of a building to be erected on demised premises was inserted solely for the purpose of fixing the amount of rent which the lessee should pay, the acceptance of the building and entry and occupation by the lessee did not constitute a waiver of the covenant or of the right to insist upon a rental based upon any less sum than actual cost.</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—Belief from Default—Insufficiency of Affidavit.— On this appeal from an order denying a motion to set aside an interlocutory judgment of divorce and disallowing the appellant’s application to file an answer, the grounds stated in appellant’s affidavit are clearly insufficient as a matter of law to justify the granting of any relief under the provisions of section 473 of the 'Code of Civil Procedure.</p> <p>[2] Id.—Belief from Default—Discretion—Appeal.—The granting or denial of a motion to set aside a default is largely a matter of discretion to be exercised by the trial court, and its action will only be reversed where a clear abuse of discretion is shown.</p>

<p>PROCEEDING in Certiorari to review an award of the Industrial Accident Commission. Award annulled.</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] Constitutional Law—Searches and Seizures—Applicability.— The fourth and fifth amendments of the federal constitution apply to searches and seizures only when made by the federal government and its agencies and constitutes no limitation on the power of the states.</p> <p>[2] Criminal Law—Burglary—Illegal Seizure op Articles—Order Denying Application por Return — Appeal prom Judgment — Order not Reviewable.—An alleged erroneous ruling in denying a timely application of a defendant charged with burglary for a return of the articles illegally seized from him and later used as evidence against him cannot be reviewed on appeal from the judgment of conviction.</p> <p>[3] Id.—Jury—Unpair Method op Interrogation—Remark op Court —Lack op Prejudice.—In a prosecution for the crime of burglary, the substantial rights of the defendant were not prejudiced by the action of the court in giving expression to the opinion that defendant’s interrogation of one of the prospective jurors was misleading and unfair, where not only was the juror excused upon the peremptory challenge of the defendant, but his right to such challenges was not exhausted.</p> <p>2. Admissibility against defendant of documents or articles taken from him, notes, 59 L. R. A. 465; 8 L, R. A. (N. S.) 762; 34 L. R. A. (N. S.) 58; L. R. A. 1915B, 834.</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>PROCEEDING in Certiorari to review an order of the Industrial Accident Commission. Order annulled.</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] Workmen’s Compensation Act—Letter of Injured Employee to Insurance Carrier—Explanation of Immediate Necessity of Operation—• Refusal to Act—Liability of Carrier.—Where a letter written by an injured employee to the employer’s insurance carrier explained the immediate necessity of an operation, and the carrier was also in possession of the reports of its own physician sent to it at its request, and showing that such operation was necessary, it was the carrier’s duty to provide the surgical treatment with all possible diligence, and where it failed to do so within a reasonable time, it was liable under section 9(a) of the Workmen’s Compensation Act for the reasonable expenses incurred by the employee in procuring the same.</p> <p>[2] Id.—Letter to Industrial Accident Commission — Application —Statute of Limitations.—A letter written by an injured employee to the Industrial Accident Commission stating that a had case of hernia had developed as the result of the injury and that a physician had a vised an immediate operation and asking that the commission look into the matter of the injury constituted an “application” under section 17 of the Workmen’s Compensation Act, sufficient to avoid the bar of the six-months period for the commencement of proceedings under section 11 of such act, notwithstanding the carrier was not officially served with a copy of such “application.”</p> <p>1. Liability of employer or insurance company for medical and hospital aid furnished to injured employee, under Workmen’s Compensation Act, note, 7 A. L. B. 545.</p>

<p>[1] Negligence —■ Death of Minor — Collision With Street-car—• Liability of Defendant-Disregard of Negligence of Parents —Erroneous Instructions.—Where in an action by a father to recover damages for the death of his minor child, who was struck by one of defendant’s street-ears, the defendant pleaded the contributory negligence of the child’s parents and introduced substantial testimony in support of its plea, it was error to give instructions making the defendant liable if guilty of negligence which proximately contributed to the death regardless of the contributory negligence of the parents, notwithstanding other instructions were given on contributory negligence.</p> <p>1. Parents’ negligence as imputable to child of tender years, notes, 1 Ann. Cas. 216; 7 Ann. Cas. 244; 11 Ann. Cas. 686; Ann. Cas. 1912D, 521.</p> <p>[2] Id.—Evidence—Last Clear Chance Doctrine—Instruction.— Where in such action the evidence was conflicting as to whether the car was' stopped as quickly as it could have been after the gripman saw" the child in a place of danger, it was proper to give an instruction on the last clear chance doctrine.</p> <p>[3] Id.—Death of Minor — Action by Father—■ Judgment — Community Property.—In an action by a father for the death of his minor child in which the mother is not joined as a party plaintiff, her contributory negligence may be set up as a defense, since the proceeds of the judgment are community property.</p> <p>[4] Id.—Defense to Action—Contributory Negligence of Mother of Child—Theory.—The contributory negligence of the mother is a defense to the action on behalf of the community to recover for the death of the child, not because of her interest in the community property but because in caring for the child she represents and acts for the community and for the husband as the head of the community, and her negligence in caring for the child is the negligence of the husband. (Opinion of the supreme court on denial of hearing.)</p> <p>2. Applicability of doctrine of last clear chance to case of imputed negligence, note, 26 L. R. A. (N. S.) 309.</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>PROCEEDING on Habeas Corpus to secure release for alleged violation of Optometry Law. Petitioner discharged.</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] Irrigation District — Recall Petition — Insufficiency — Omission of Electors to Affix Date of Signing.—A writ of mandate will not issue to require the secretary of the board of directors of an irrigation district to certify to the sufficiency of an alleged petition filed with him for the recall of the directors and also to require the board to call an election based on such petition, where none of the signers of the petition affixed thereto the date of “such signing” as provided by section 1083a of the Political (Code, as amended in 1915.</p> <p>1. Mandamus to compel performance of public duty at instance of private party, notes, 7 Am St. Rep. 484; 125 Am. St. Rep. 492.</p>

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

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

<p>[1] Sales—Balance Due on Autotruck—Deposit in Bank—Notification of Vendor—Sufficiency of Tender.—In this action to recover the possession of an autotruck sold to defendant under a conditional sale contract, the finding of a sufficient tender of the balance due by deposit in a bank to the credit of the vendor and his immediate notification thereof is supported by the evidence, as is also the finding that the assignment of the contract was made subsequent to such deposit and notification.</p> <p>[2] Tender—Gold Coin—Waiver.—An objection that gold coin was not offered or exhibited in payment of an obligation is waived where not made at the time of tender.</p>

<p>APPEAL from an order of the Superior Court of Fresno County dismissing an application for a family allowance. H. Z. Austin, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Quieting Title — Theory ot Trial—■ ©ingle Issue — Appeal — Untried Issues.—Where an action to quiet title was tried on the theory that only the issue as to the boundary line between the properties of the parties was involved, the losing party cannot be heard to complain on appeal that the other issues raised by the pleadings were not tried.</p> <p>[2] lb.—Mining Claims — Location op Boundary Line — Finding— Evidence.—In this action to quiet title to mining property the finding as to the location of the boundary line between the properties of the respective parties is supported by the evidence.</p>

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

<p>[1] Pleading—Belief—Poem, When Immaterial.—The form of the pleading or failure to ask for appropriate relief will not foreclose a plaintiff if, upon the facts disclosed, the plaintiff is entitled to some relief.</p> <p>[2] Fraudulent Conveyance—Action to Set Aside—Bight of Judgment Creditor.—A judgment creditor is entitled to maintain an action to set aside a conveyance made hy the judgment debtor for the purpose of defrauding the creditor of the fruits of the judgment.</p> <p>[3] Id. — Pleading — Insufficient Complaint.—In this action by a judgment creditor to subject to the lien of the judgment certain properties described in the complaint, the complaint fails to show that any conveyance therein alleged was made with intent to defraud or to deprive the plaintiff of the opportunity to enforce her judgment.</p> <p>[4] Appeal—Befusal of Permission to Amend Complaint—Bevibw of Alleged Abuse of Discretion.-—Alleged abuse of discretion in sustaining a demurrer to a complaint without permission to amend will not be reviewed on appeal, unless it appears that application for permission to amend has been made to the lower court.</p>

<p>[1] Evidence—Written Contract—Complete Terms—Parol Testimony.—While parol evidence may not be admitted to vary the terms of a written contract which is complete in all its terms, such evidence is admissible whore it is entirely consistent with and in no way changes or contradicts the writing.</p> <p>[2] Contract—Grading and Leveling op Land—Removal op Trees— Oral Agreement op Owner—-Justification por Non completion op Contract.—Where a written contract to level and grade a tract ■of land within a certain time contained no provision for the removal of a large number of trees situated upon the land and their removal was necessary in order to enable the contractor to complete his work, the oral contemporaneous agreement of the owner to remove the same was a valid agreement and the breach thereof a sufficient justification for the failure of the contractor to complete his contract within the time limited therein.</p> <p>1. Supplementing written contract by proof of collateral oral agreement, notes, 56 Am. St. Rep. 659; 2 Ann. Gas. 146; Ann. Cas. 1914A, 454.</p>

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

<p>[1] Criminal Daw—Manslaughter—Automobile Collision — Sufficiency of Evidence.—A conviction on a charge of manslaughter is justified by evidence on behalf of the prosecution that the defendant was driving his automobile in the night-time either in the center of the highway or on the left-hand side thereof at a speed of forty-five or fifty miles an hour, when he collided with two other machines at a dangerous curve and killed the driver of one of them.</p> <p>1. Homicide by negligent operation of automobile, notes, Ann. Cas. 1918E, 1146; 30 L. K. A. (N. S.) 458; 33 L. B. A. (N. S.) 403; L. B. A. 1918B, 954.</p> <p>[2] Id. —• Driving of Automobile at Unlawful Bate of Speed — Killing of Human Being — Manslaughter. — Death caused by driving an automobile in the night-time on the left-hand side of a hilly, serpentine, and heavily traveled road, at a speed of forty miles per hour, is manslaughter under seetion 192 of the Penal Code, defining such crime as the unlawful killing of a human being without malice in the commission of an unlawful act not amounting to a felony.</p> <p>[3] Id.—'Criminal Negligence — Evidence — Inappropriate Instruction.—Where a prosecution for manslaughter involved the doing of unlawful acts and not lawful acts, it was neither necessary nor appropriate that the jury should have been instructed on the law of criminal negligence.</p> <p>[4] Id.—Commission of Lawful Act Without Due Caution and Circumspection—Construction of Code.—In order to constitute the kind of manslaughter defined by subdivision 2 of seetion 192 of the Penal Code, the act may he lawful but it must be one which might produce death, and which does produce death, and it must be committed without due caution and circumspection. The lack of due caution and circumspection need not go to the extent of being wanton or reckless, although it might possibly be such as would be defined as culpable, but the word “culpable” is not an apt description of the idea intended to be conveyed by the words “due caution and circumspection.” (Opinion of supreme court on denial of hearing.)</p>

<p>[1] Criminal Law—Manslaughter—Sanity of Defendant—Sufficiency of Evidence.—In this prosecution for the crime of manslaughter the jury was justified in finding against the defendant’s contention that he was insane at the time of the homicide.</p> <p>[2] Id. — Evidence — Uncontradioted Testimony of Defendant — Credibility.'—A jury is not bound to accept as true even the uncontradieted testimony of a defendant, especially where the facts are exclusively within his own knowledge and there is no means of disproving the testimony.</p> <p>[3] Id.—Temporary Insanity—Voluntary Intoxication—■ Insufficient Justification.—Insanity or mental derangement immediately produced by voluntary intoxication, and which disappears on the return to soberness, is not a defense to a criminal charge.</p> <p>3. Drunkenness as a defense to homicide, notes, 36 It. R, A. 479; 13 L. R. A. (N. S.) 1024; 25 L. R. A. (N. S.) 376; 52 L. R. A. (N. S.) 230.</p>

<p>APPLICATION for a Writ of Mandate to compel the attachment of an amended affidavit to a filed initiative petition. Denied.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Accounting—Sale of Lands—■ Offsets—■ Finding—Evidence.— In this action based upon the theory that defendant refused to account to plaintiff for one-third of the selling price of certain lands, the legal title to which was held by defendant for the mutual benefit of the plaintiff, the defendant, and a third party in equal shares, the finding against the plaintiff's indebtedness on account of certain items of an asserted counterclaim or offset is supported by the evidence.</p>

<p>[1] Contract—Assignment—Covenants of Assignor — Liability of Assignees — Absence of Privity. —• Assignees of interests in a contract granting the right to the use of letters patent in certain territory are not liable to the grantor for the payment of the monthly installments called for by such contract, where the assignments contained no assumption of any of the obligations imposed, notwithstanding the assignees took their interests subject to all of the conditions of the contract and could not enforce any right thereunder against the grantor without showing performance of the obligations which it imposed upon their assignors.</p>

<p>[1] Appeal—Judgment—Order Denying Motion to Vacate—Record — Sufficiency op Evidence — Presumption. — Where an appeal from a judgment and from an order denying a motion to vacate such judgment and to enter on the facts found a judgment for the appellant is taken on a record which does not disclose the evidence, it must be presumed that the evidence was ample to sustain the findings.</p> <p>[2] Id.—Construction op Findings.—The findings must receive such a construction, if possible, as will uphold rather than defeat the judgment.</p> <p>[3] Negligence—Collision op Automobiles—Last Olear Chance— Findings.—In this action to recover damages for injuries received in a collision between two automobiles, one of which was being driven by plaintiff and the other hy defendant, the details and circumstances of the accident, as presented by the findings, are not inconsistent with the general finding that appellant had the last clear chance to avoid the collision, but negligently failed to avail bimself of the opportunity.</p> <p>[4] Id.—Evidence—Applicability op Rule.—If the driver of an automobile, when he reaches the point of collision and discovers his peril, is still in a situation to help himself, and, by the vigilant use of his ears, eyes, and physical strength, is able to extricate himself and avoid injury, his neglect fo do so will prevent a recovery notwithstanding the other party could have stopped in time to avoid the accident, but where the injured driver, because of his own heedlessness, has reached a point where he no longer can escape the injury by the exercise of any reasonably prudent measures that he may adopt, and his perilous condition is discovered by the other driver in season to avoid the injury by the exercise of ordinary care on his part, the negligence of the former •becomes the condition, and not the proximate cause, of the injury, and the failure of the latter to exercise ordinary care is a new and independent negligence and the proximate cause.</p> <p>4. Concurrent negligence of plaintiff as defeating recovery under doctrine of last clear chance, notes, Ann. Cas. 1912B, 888; 7 L. R. A. (N. S.) 132, 152; 17 L. B. A. (N. S.) 707; 19 L. B. A. (N. S.) 446; 27 L. B. A. (N. S.) 379,</p> <p>[5] Id. — Last Clear Chance Doctrine. — The doctrine of the last clear chance presupposes negligence on the part of the injured party, and proceeds upon the theory that, notwithstanding such negligence, if the other party, being cognizant thereof and of the peril in which the party has placed himself, fails to take the necessary precautions to avoid the injury, he is liable on the theory that he had a fair chance to avoid the accident by the use of ordinary care, and that his failure to exercise it is, under such circumstances, the proximate cause of the injury.</p>

<p>[1] Criminal Law-—Burglary—Indictment—Evidence—Appeal—Untenable Claim of Variance.—A defendant convicted of burglary-on an indictment wherein the offense was denominated robbery cannot contend on appeal that there was a fatal variance between the evidence and the indictment, where trial was had upon such indictment without objection and the indictment showed with sufficient clearness by specific allegations that the offense charged was burglary.</p> <p>[2] Id. —■ Evidence — Confession — Cross-examination of Witness —Restriction not Prejudicially Erroneous. — Error in refusing a witness for the prosecution, who had testified on his direct examination to a confession made to him by the defendant, to be cross-examined as to whether he had disclosed such confession to the grand jury when he appeared as a witness before that body, was not prejudicial where the confession was also testified to by two other witnesses.</p> <p>[S] Id.—Support of Verdict—Confession—Corpus Delicti.—While extrajudicial confessions alone are insufficient to sustain a conviction, where in addition thereto there is independent proof of the corpus delicti, the verdict is sufficiently supported by the evidence.</p>

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

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

<p>[1] Appeal—Records—Insufficient Certification.—An order denying a motion made after final judgment to vacate defendants’ default must be affirmed on appeal, where the transcript is certified by the clerk, but there is no certificate by the trial judge.</p> <p>[2] Id.—Order Subsequent to Judgment—Certification of Record. Where an order appealed from is subsequent to the judgment, and arises on a record outside the judgment-roll, it is not for the clerk, but for the judge who determined the action, to certify the papers and proceedings on which the order appealed from was made; and in the absence of such a record on which the merits of the appeal can be determined, the order should be affirmed.</p> <p>[3] Id.—Lack of Proper Record—Affirmance of Order.—Where a mere inspection of the record discloses that appellant can obtain no relief, the proper order is one of affirmance of the order upon appeal for lack of record showing error.</p>

<p>[1] Contracts—Employment op Engineer—Assignment op Eees— Quantum Meruit.-—-Where an engineer is employed by a city to supervise the installation of a sewer system under an express contract which provides that he is to receive as compensation for his services “a total fee” amounting to eight per cent of the money received from a certain bond issue, after a full and faithful performance by him of all the agreed services, a person to whom said engineer has assigned the right to “such fees as may be due . . . under the terms of said contract to be paid . . . when said contract has been properly fulfilled” cannot recover on a quantum meruit against said city the reasonable value of said engineer’s partially performed services.</p>

<p>[1] Street Law—Resolution of Intention—Jurisdiction.—A proceeding for street improvement under the act of 1911 depends for its jurisdictional foundation upon the resolution of intention.</p> <p>[2] Id.—Description of Work—Variance—Effect of Ambiguity.— While an immaterial difference between the work provided to be done by the resolution of intention and that described in the plans and specifications will not render the proceedings void, but the clear provision of the resolution of intention will govern, this rule does not apply where the resolution of intention is ambiguous and contains contradictory provisions.</p> <p>[3] Id.-—Inconsistent Descriptions—-Void Proceedings.—Where the resolution of intention describes the work to be done clearly and without ambiguity and the plans and specifications, which are referred to in the resolution of intention and expressly made a part thereof, clearly and without ambiguity sets forth a description of the work at variance with the description contained in the resolution of intention, an ambiguity is created which renders the proceedings void.</p> <p>[4] Id.—Uncertainty—Extrinsic Evidence.—The court will not use extrinsic aids or other intents to avoid the effect of uncertainty in such a proceeding.</p>

<p>[1] Pleading—Contract by Partners—Action on as Individuals— Evidence—Variance—Finding.—Where, in an action to recover the agreed price of certain grape stakes sold to defendant, the plaintiffs’ names appear in the title of the complaint as individuals merely, but in the body of complaint it is alleged that the two plaintiffs, as copartners, manufactured the grape stakes, that thereupon each became the owner of one-half thereof, and that one of them, acting for both, sold them to defendant, while the evidence shows that the contract for the sale of the grape stakes was executed by plaintiffs as copartners, the variance is not such as to mislead the defendant and, therefore, is not to be deemed material, but the court may direct the fact to be found according to the evidence.</p> <p>[2] Id. — Fictitious Name — Noncomplianoe by Copartners — Waiver of Objection.—The question of noncompliance by plaintiffs, as copartners, with the requirements of the Civil Code as to filing and publication of a certificate of doing business under a fictitious name cannot be raised for the first time on appeal.</p> <p>[3] Sales •—• Partial Deliveries—Time of Payment—Construction of Contract.—Where a contract for the sale of a large number of grape stakes provides for shipments to the purchaser “at instructions to follow,” and that provision, construed in the light of the attending circumstances and the manner in which the contract is carried out by the parties in so far as performed, justifies the inference that the parties understood at the time the contract was executed that a considerable time might elapse between the first and the last deliveries thereunder, the vendors are entitled to payment upon each delivery as ordered.</p> <p>[4] Id.—Refusal to Make Deliveries—Counterclaim for Damages. The plaintiffs having been justified in refusing to make further deliveries of grape stakes until they were paid for those already furnished, the defendant had no just cause of counterclaim against them because of damage suffered by defendant by reason of their refusal to make such further deliveries.</p>

<p>[1] Criminal Law—Burglary—Grand Larceny—Evidence—Verdict. In this prosecution, the evidence was sufficient to justify the verdict of guilty both of burglary in the second degree and of grand larceny.</p> <p>[2] Id.—Value of Property Taken — Degree op Crime—Evidence— Instructions.—The evidence having shown that the value of tho property taken exceeded fifty dollars, and the defendant not having requested any instruction concerning the crime of petty larceny, the failure of the court to include in its proposed forms of verdict a form of verdict relating to petty larceny did not deprive the defendant of any substantial right.</p>

<p>[1] Criminal Syndicalism Act—Unlawful Organization—Hame— Sufficiency of Information. — In a prosecution for an alleged violation of the provisions of the Criminal Syndicalism Act, an information charging that the defendant, at a specified time and place, “did then and there unlawfully, willfully, wrongfully and deliberately and feloniously organize and assist in organizing, and was, is, and knowingly became a member of an organization, society, group and assemblage of persons organized and assembled to advocate, teach, aid and abet criminal syndicalism,” without specifically designating the name of the organization, sufficiently states a public offense.</p> <p>[2] Id.—Organization of Unlawful Assemblage — Evidence—Verdict.—In this prosecution for an alleged violation of the provisions of the Criminal Syndicalism Act, the evidence showing the part taken by the defendant in organizing and assisting to organize the Communist Labor Party, as to which there was no dispute, and that she took a leading and active part in the subsequent meetings and acts of said organization, together with the evidenee as to the character and purposes of said organization, showing it to be within the class of organizations forbidden and condemned by the terms of the Criminal Syndicalism Act, was sufficient to justify her conviction upon the count of the information in which she was charged with having organized and assisted in organizing a group or assemblage of persons to teach, aid, and abet criminal syndicalism.</p> <p>2. Validity of legislation directed against social or industrial propaganda deemed to be of a dangerous tendency, notes, 1 A. L. B. 336; 2Q A. L. B. 1543.</p>

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

<p>[1] Life Insurance—Disappearance of Insured—Proof of Death— Void Condition.—A condition in a fraternal benefit certificate providing that the absence or disappearance of the member holding the certificate from his last-known place of residence for any length of time should not be sufficient evidence ■ of his death and that no right should accrue under such certificate to the beneficiary nor any benefits be paid until proof had been made of the death of the member while in good standing is against public policy and violative of subdivision 26 of section 1963 of the Code of Civil Procedure, which provides that a person not heard from in seven years is dead.</p> <p>[2] Id.—Payment of Indemnity—Evidence — Legal Implication.— The law implies that in every contract of insurance upon human life that the insurer will pay the indemnity upon proof by competent evidence judicially tested and weighed by the law of the land, and such contracts ought to be immune from material impairment of this right.</p>

<p>[1] Public Work—Belief Against Surety—Statute of Limitations —Effect of Action by Surety.-—-Claims of materialmen employed upon public work are not barred by the six-month provision of the act of 1897 from relief against the surety on the bond by the failure to appear in an action, brought by the surety for the . purpose of having all rights in the withheld fund adjudicated, within six months after the filing of their verified claims with the board of supervisors, where the action was commenced before the expiration of six months after such claims were filed and the complaint set forth the contract and the whole transaction upon which their claims depended.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Middlecoff, Scott & Ham, Farnsworth, McClure & Burke, Lewis H. Smith, W. N. Gilliam, J. A. Chase, Marley Fisher, Perry F. Backus, Russell & Heid, W. 0. Tyler, Scarborough & Bowen, Blakeley Hughes and W. C. Hamilton for Appellants.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Middlecoff, Scott & Ham, Farnsworth, McClure & Burke, Lewis H. Smith, W. N. Gilliam, J. A. Chase, M'arley Fisher, Perry F. Backus, Bussell & Heid, W. 0. Tyler, Scarborough & Bowen, Blakeley Hughes and W. C. Hamilton for Appellant.</p>

<p>[1] Criminal Law — Bigamy — Information — Void Alleged First Marriage — Existence of Prior Valid Marriage—Acquittal.— If the first marriage alleged in an information charging bigamy be shown to have been void because of a previous valid existing marriage, the defendant cannot be convicted thereunder.</p> <p>[2] Id.-—Evidence—Photographic Record—Insufficient Proof.—In a prosecution for bigamy, a photographic copy of a record from the health department of the city of New York purporting to be a marriage license to which was attached a certificate of marriage by an alderman of that city, although received in evidence without objection on the part of the people and nncontradieted, was insufficient to establish the marriage, where the license and certificate were not certified and there was no evidence of the genuineness of the signature of the alderman or of his authority to perform the marriage ceremony.</p> <p>[3] Id.—Solemnization of Marriage in Another State — Performance by Alderman—Presumption as to Authority.-—In the absence of proof under sections 1900, 1901, and 19-02 of the Code of Civil Procedure that under the laws of New York an alderman, who is not vested under section 70 of the Civil Code with authority to solemnize a marriage, has such authority in that state, testimony as to the performance of a marriage ceremony by such official in that state is entitled to no weight in establishing such a solemnization as is required by section 55 of the Civil Code.</p> <p>[4] Marriage—Deportment of Parties—Evidence—Rebuttal of Presumption.—Assuming that under subdivision 30 of section 1963 of the Code of Civil Procedure it will be presumed from general repute and the fact that a man and woman deport themselves as husband and wife that they have entered into a lawful contract of marriage pursuant to the provisions of sections 55 and 70 of the Civil Code, such presumption is overcome where the evidence conclusively shows that the solemnization of the marriage was by an alderman who, under section 70 of the Civil Code, is not vested with authority to act in such capacity.</p> <p>1. Bigamy as depending on validity of prior marriage, note, 14 Ann. Cas. 74.</p> <p>2. Proof of former marriage in prosecutions for bigamy, notes, 47 Am. St. Rep. 228; 106 Am. St. Rep. 768.</p> <p>[5] Criminal Law—Bigamy—Evidence — Decree of Annulment of Eirst Marriage.—In. a prosecution for bigamy, a deeree of annulment of the first marriage on the complaint of the wife, the allegations of which the divorce court found to be true, without any showing either by such decree or otherwise as to whether such marriage was void from the beginning or merely voidable, was not admissible on the question of defendant’s guilt or innocence.</p>

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

<p>[2] Id.—Timely Appeal—Failure to File Moratorium Affidavit—■ Immateriality.—The failure to file a moratorium affidavit in a justice’s court action is immaterial to the question as to whether the appeal from the judgment in the action was prosecuted in time.</p>