Volume 61 — California Appellate Reports

<p>[1] Criminal Law—Evidence—.Impeachment of Defendant.—Where ■a defendant in a criminal case takes the witness-stand in his own behalf he may be impeached by testimony that his general reputation for truth, honesty, and integrity is bad.</p> <p>[2] Id.-—Dismissal of Information—Insufficiency of Evidence. Section 1382 of the Penal Code fixes the grounds upon which a motion may be made to dismiss an information, and a motion for a dismissal upon the ground that the evidence fails to show the guilt of the defendant is not one of them.</p>

<p>[1] Criminal Law—Obtaining Property Under False Pretenses— Amended Information—Additional Charge of Passing Fictitious Check—Discretion not Abused.—An amendment of an information charging the crime of obtaining property under false pretenses by adding thereto a second count charging a violation of section 476 of the Penal Code, by passing a fictitious check-with intent to defraud, is proper under section 1008 of such code, where according to the original information the defendant in committing the crime of obtaining property by false pretenses did so through the commission of the further crime of uttering and passing a fictitious cheek, it thus appearing that the two crimes were part -of the same transaction.</p> <p>[2] Id. — Information—- Uncertainties—Demurrer. — Mere uncertainties in an information cannot be availed of either upon motion in arrest of judgment or upon appeal, in the absence of a demurrer.</p> <p>[3] Id.—Passing of Fictitious Check—Absence of Account With Bank “Branch”—Sufficiency of Evidence.—In a prosecution for uttering and passing a fictitious cheek with intent to defraud in violation of section 476 of the Penal Code, the testimony of the paying teller of a branch of the bank upon which the check was drawn that the purported drawer of the check had no account with the bank at the time the cheek was dated, passed, and presented, and that he turned the check down because such drawer had no account with the bank, was sufficient to show that such drawer had no account with either the bank or the branch, it appearing that the teller was at one and the same time the employee of the bank and the paying teller of the branch.</p> <p>[4] Id.—-Nonexistenoei of Drawer of Fictitious Check — Sufficiency of Evidence.—In such a prosecution, testimony that the purported drawer of the check had no account with the bank upon which the check is drawn is prima facie evidence of the nonexistence of the drawer, and where supplemented by defendant’s statement to the arresting officer that he never knew such drawer and had never seen the check or the person to whom he was charged with having delivered it, is sufficient to prove the nonexistence of the drawer.</p> <p>1. Giving of worthless cheek as constituting false pretense, notes, 8 Ann. Gas. 10-69; 14 Ann. Gas. 510; Ann. Cas. 1916E, 736.</p> <p>[5] Id.—Elements of Offense—Proof Beyond Reasonable Doubt —Instructions.—Where in such a ease the jury was instructed that the burden was upon the prosecution to prove every element of the offense charged beyond a reasonable doubt, it was not error to refuse an instruction that it would be the jury’s duty to acquit unless the prosecution proved certain allegations beyond a reasonable doubt.</p> <p>[6] Id.—Fictitious Character of Check—Prima Facie Evidence. Where a check is drawn upon some bank, banker, or depository for money, purporting to be signed by an individual, evidence v, that no such person as the one whose name purports to be signed to such check had any account with said bank, banker, or depository for the payment of money at the time of making, drawing, or uttering of such check is prima facie evidence of the fictitious character of the check.</p> <p>[7] Id.—Prima Facie Evidence of Fictitious Character of Check —Instruction.'—An instruction in such language in such case is not subject to the criticism that it singles out the testimony of the paying teller of the bank and practically instructs the jury that such testimony must be taken as to have established prima facie the fictitious character of the check, where the jury was also instructed that they were the exclusive judges of the evidence, of the credibility of the witnesses, and of the weight of the testimony.</p>

<p>[1] Title Insurance—Search of Records—Certificate of Title— Contract.—A certificate issued by a title insurance and trust company which is directly limited to the condition of the record title, and wherein the company states that after a careful examination of the official record of the county, in relation to the title to the real property in question, it “hereby guarantees that the title to said property as it appears from said records” is vested in a designated person, is a contract of insurance, upon which a liability will accrue if the title is not as represented.</p> <p>[2] Id.—Guaranty of Title—Indemnity—Consideration.—A certificate wherein the company issuing it states that “after a careful examination of the official records ... in relation to the title of that certain real property hereinafter described, the-Company, a corporation, . . . hereby guarantees that the title to said property as it appears from said records is vested in--is a contract of indemnity; and being in writing, a consideration is implied.</p> <p>[3] Id.—Recordation of Conveyances—Purpose of Code Provision. Section 1213 of the Civil Code, which provides that “every conveyance of real property acknowledged or proved and certified and recorded as prescribed by law from the time it is filed with the recorder for record is constructive notice of the contents thereof to subsequent purchasers and mortgagees,” exists for the protection of those who acquire interests in real property by virtue of duly recorded instruments, and it does not prevent the record title from being the subject of insurance.</p> <p>[4] Id.—Form of Certificate—Noncompliance With Statute.—The fact that the form of guaranty certificate issued by a title insurance company does not specify all the facts set forth in section 2587 of the Civil Code does not deprive such certificate of its character as an insurance contract.</p> <p>1. Title insurance, note, Ann. Cas. 1914D, 637.</p>

<p>[1] Boundaries—True Location of Dividing Line—Evidence.—In this action to quiet title to certain land, and to recover damages for the cutting and removal of timber therefrom by defendants, the evidence was such as to justify the finding of the trial court as to the true location of the township or boundary line dividing the lands of the respective parties.</p> <p>[2] Id.—Uncertainty oe Location of True Line—Agreed Boundary —Evidence.—In such action, the evidence showed that the predecessors in interest of the respective parties to the action were uncertain as to the location of the true boundary between their lands and, with the intent to establish such line, they agreed with each other that the boundary line between their respective properties should be the line which the court found to be the true boundary and which commenced at a certain specified corner and ran west to another specified corner.</p> <p>2. Location of boundary lines by acquiescence or agreement, notes, 69 Am. Dec. 711; 27 Am. Rep. 239.</p> <p>[3] Id.—Agreed Boundary Bulb—Uncertainty—Dispute.—The agreed boundary rule may be invoked where the true boundary line is doubtful or uncertain, and it is not necessary that there should Ibe an actual dispute between the parties as to the location of the true line.</p> <p>[4] Quieting Title—Adverse Possession—Evidence.—In this action to quiet title, the evidence having shown that the true boundary line between the lands of plaintiffs and defendants was marked upon the ground, that the parties built up to it and occupied the lands on each side thereof, that the portion thereof inclosed by the division and other fences was farmed by the parties and that the portion thereof covered by timber was occupied and used for the ordinary use and in the ordinary way, and that plaintiffs and their predecessors in interest had paid all the taxes against the land in dispute from 1875 to the date of the judgment, and that defendant and his predecessors had never exercised any ownership and never asserted any claim of right to that portion of the land at any time during the period from 1878 to 1920, plaintiffs would have been entitled to judgment based upon their rights by adverse possession, had they not been able to prove their title under the agreed boundary rule.</p> <p>4. Applicability in ease of disputed boundaries of rule against conveyance of land held adversely, note, 35 L. B. A. (N. S.) 746.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Orange. R. Y. Williams, Judge.</p> <p>The facts are stated in .the opinion of the court.</p>

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

<p>[1] Vendor and Vendee—Contract for Sale of Mine—Agreement to Perfect Title—Time—Intent.—Id. this action to recover the moneys paid under a contract for the purchase of an undivided fractional interest in certain mining claims, notwithstanding the contract provided that the vendors should proceed with due diligence to perfect and acquire title to the property, “all to be acquired within one year from date hereof,” and further provided that “in the event of the failure of” the vendors “to perfect title as above stated, then the amount paid” by the vendee to the vendors should be repaid, giving due consideration to all the terms of the contract and viewing it in the light of the known circumstances under which it was executed, it could not be held that the parties intended to make time of the essence of the obligation of the vendors.</p> <p>[2] lb.—Making Time of Essence—Intent.—In order to make time of the essence of an obligation, it is not necessary that it should be declared to be so in the words of the statute; but the intent to make it of the essence of the contract must be clearly, unequivocally, and unmistakably shown.</p> <p>[3] Id.—Default—'Waiver by Conduct.—Conceding that the vendors under such contract were obligated to perfect the title within a year, under penalty of losing their bargain, their default did not ipso facto terminate the contract, but they continued to be bound by its terms, at the option of the vendee, until the latter declared his intention to take advantage of the default; and where the vendee, knowing of the claimed default of the vendors and of the refusal of the latter to negotiate with other persons for the sale of the property, in the belief that they were bound by the contract with the vendee and that the latter intended to take the property, by his conduct and by the reasons given by his attorney for not completing the contract at the times requested by the vendors confirmed the vendor’s belief that he would complete the purchase, equity would not permit him to take advantage of the alleged default of the vendors, but he must be held to have waived it toy the course of conduct he pursued.</p> <p>3. Waiver of purchaser’s right to rescind contract for purchase of real property, note, 30 L. R. A. (N. S.) 872.</p> <p>[4] Id.—Default by Vendee—Estoppel.—Where the vendee was himself in default in the payment of the interest on the deferred payments under the contract, he was not in a position to maintain an action based on the alleged subsequent default of the vendors 'in procuring title to the property within the time specified in the contract.</p>

<p>[1] New Trial—Newly Discovered Evidence—Cumulative Character—Appeal.—Because newly discovered evidence is cumulative is not at all times, in and of itself, a sufficient reason for denying a motion for a new trial. New evidence, although cumulative, might be of such overwhelming character as to render a different result certain or probable, and in such a ease a new trial should be granted. But whether the evidence is of this character is not a question of law, but for the judgment of the trial judge, whose discretion will not be interfered with by an appellate court except in cases of manifest abuse.</p> <p>[2] Criminal Law ■— Grand Larceny — Alibi—New Trial — Insufficient Affidavits.—On this appeal from a judgment of conviction of the crime of grand larceny, the appellate court could not say that the contents of the two affidavits presented by defendant on his motion for a new trial, to establish his defense, an alibi, were of such an overwhelming character as to render a different result certain or probable, or that the showing made was of such a character as to make it manifest that the case would result differently on a new trial.</p> <p>[3] Id.—Jurisdiction—Passage of Money in Sister State.—In this prosecution for grand larceny, the fact that the money was passed in a sister state did not make the verdict of conviction contrary to law.</p> <p>1. What is cumulative evidence within rule excluding it when offered in support of motion for new trial, note, Ann. Cas. 1913D, 157.</p> <p>Cumulative evidence as ground for new trial in criminal cases, note, 46 I». R. A. (N. S.) 903.</p>

<p>[1] Evidence—Findings—Money Loaned—Cokbobobation.—In an action to recover a balance due on a loan made by plaintiff to defendant, it is not necessary that the testimony of plaintiff be corroborated to justify a finding in his favor; and where, as in this case, the testimony of the plaintiff, which was corroborated by his brother, is not inherently improbable and is sufficient to support the finding in plaintiff’s favor, the appellate court cannot interfere with that finding.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Peter J. Shields, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Imperial County. R. D. MePherrin, Judge pro tempore.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. George H. Thompson, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. S. L. Strother, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Eight of Wat—Grant at Reasonable Price—Amount Entitled —Construction of Contract.—Under a contract between land owners and a canal company for the construction of a ditch which provided that “the necessary rights of way therefor through said lands will be granted without unnecessary delay to the first party, at such reasonable price as may be acceptable to the first party,” the reasonable price must be such as will reasonably compensate the property owners for whatever pecuniary injury they have suffered, and is not limited to the value of the land actually taken.</p> <p>[2] Id.—Grant ot Bight ot Wat—Damages—(Estoppel.—Whenever a grant of a right of way is executed by a land owner he thereby estops himself from afterward prosecuting any action for the past, present, or future damages that may have occurred, or reasonably be expected to occur, by reason of the necessary, natural, and ordinary use of the utility or public service for which the right of way is granted.</p> <p>[3] Id.—Action to Determine Price—Evidence—Damages—Seepage. Under a contract between land owners and a canal company for the construction of a ditch which provided that “the necessary rights of way therefor through said lands will be granted without unnecessary delay to the first party, at such reasonable price as may be acceptable to the first party,” the grantors, in an action to determine such reasonable price, wore entitled to present to the jury every item of damage or injury to their property for which they would have been entitled had condemnation proceedings been had, including damages for seepage.</p>