Volume 62 — California Appellate Reports

<p>[1] Intoxicating Liquors—Unlawful Possession—Void Municipal Ordinance.—A city ordinance making it unlawful to have intoxicating liquor in one’s possession, and prescribing a greatei penalty for such offense than that prescribed by the state law, is void.</p> <p>[2] Id.—Sufficient Complaint Under State Law—Jurisdiction—Prohibition.—A writ of prohibition will not issue to restrain a police court from proceeding with the trial of a defendant charged with unlawfully having intoxicating liquor in his possession, contrary to the provisions of a specified municipal ordinance, which is void, where the complaint in the action, although purporting to state an offense under the ordinance, does in fact state an offense under the state law and over which such police court has jurisdiction.</p>

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

<p>[1] Criminal Law—Forgery oe Deed—Proof oe Ownership.—In a prosecution, for forgery of a deed, where the prosecution does not rely upon the presumption of the continuance of title in the complaining witness, but such witness testifies that he had not alienated it, it is not error to permit proof of ownership by the county records instead of by the original deeds.</p> <p>[2] Id.—Other Offenses—Guilty Knowledge—Intent to Defraud —Evidence.—In a prosecution for forgery of a deed, proof that defendant made, executed, and delivered a forged deed to a different piece of real property purporting to be from a named nonresident, and the acknowledgment to which was also represented as being before a notary public who is shown to have been fictitious, is admissible to .prove guilty knowledge and intent to defraud. \</p> <p>1. Admissibility of evidence of other crimes in prosecution for forgery, notes, 9 Ann. Cas. 456; Ann. Cas. 19120, 91; 62 L. R. A. 224, 249, 289, 319, 324; 43 L. R. A. (N. S.) 754.</p>

<p>[1] Contracts — Undisclosed Mental Attitude. — An undisclosed mental attitude can never constitute the basis of a contractual obligation.</p> <p>[2] Broker’s Commissions—Authority to Contract—When 'Commission Earned.—Where a real estate broker is employed, under an exclusive agency contract, to “contract with the purchaser for the sale and conveyance” of certain real propjrty, such broker is entitled to the agreed commission only when he has secured a binding contract for the sale ,of the property upon the terms specified in his contract, and not merely upon the procuring of a purchaser with whom the vendor might so contract.</p> <p>[3] Id.—Purchase Subject to Mortgage—Outstanding Contract of Purchase.—An agreement to purchase land subject to an outstanding mortgage for a specified sum does not constitute an agreement to purchase the land where the title thereto is in a third person and the vendor merely holds a contract of purchase under which such sum is due.</p> <p>[4] Id. — Admission of Liability — Incorrect Information. — The owner of land cannot be held liable for broker’s commissions based upon admissions of liability made by him in letters to such broker, where those admissions were based upon incorrect information given by the broker to the owner.</p> <p>[5] Id. —■ Power of Attorney — Authority of Agent. — Where the owner of land, after giving a real estate broker exclusive authority to effect a sale of the property upon certain specified terms, executes a power of attorney whereby a third person is given authority “to do all acts necessary or proper for the transfer of any real property or interests therein owned by” the maker, such power of attorney will be construed as authorizing the attorney therein named to make the formal transfer of the property but not as giving him any discretion in fixing the terms and conditions of a sale. (On denial of rehearing.)</p> <p>2. Effect of contract expressly making broker’s right to commission dependent upon sale of property or other condition beyond that ordinarily implied, note, 29 L. B. A. (N. S.) 533.</p> <p>Performance of contract of real estate broker to find a purchaser, notes, 139 Am. St. Kep. 225; 44 L. E. A. 593.</p>

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

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

<p>[1] Pkomissoby Note—Payment—Evidence—Finding.—In this action on a promissory note, all the evidence and the only evidence sustained the allegations of the complaint that the note was unpaid, and the trial court’s finding that the note had been fully paid was unsupported.</p> <p>[2] Employee and Employee—Compensation—Judgment.—In this action to recover for services rendered by plaintiff, upon the case made by defendant, based upon the theory that plaintiff had been employed on a commission basis during the entire period, plaintiff was entitled to a judgment in some amount, and the judgment in favor of defendant was erroneous.</p> <p>[3] lb.—Division op Peopits—Accounting.—In such action, plaintiff having proved by uneontradieted evidence that for a part of the time he was employed on a commission basis and that during the remainder of the period he was to have received fifty per cent of the profits, he was entitled to an accounting to determine the net profits, in order to ascertain whether he had received his proportionate share thereof.</p>

<p>[1] Promissory Note—Death of Payee and Maker—Disqualification of Husband of Payee as Witness.—-In an action on a promissory note by the administrator of the estate of the deceased payee against the executor of the will of the deceased maker thereof, after rejection of a claim based upon such note, the surviving husband of the deceased payee of the note is disqualified, under subdivision 3 of section 1880 of the Code of Civil Procedure, from testifying concerning matters connected with the transaction ■but occurring prior to the maker’s death.</p> <p>[2] Id.—Delivery—Consideration—Evidence—Findings.—In such an action, where there is some evidence to justify a finding that the note was not delivered and that there was no consideration therefor, this is sufficient to justify such a finding, even though there is also sufficient evidence to support a finding to the contrary.</p> <p>1. Statute prohibiting witness from testifying to transactions with decedent as applicable to probate proceedings, notes, Ann. Cas. 1914A, 982; 51 L. K. A. (N. S.) 212.</p>

<p>[1] Assault and Battery—Malice—Evidence—Finding—Appeal.— In this action for assault and battery, while there was much reason in the position taken by defendants that there was no evidence to support the finding that the attack upon plaintiff was malicious, it could not be said that there was not some evidence from which the trial court could draw the inference of malice in support of such finding; and under those circumstances the appellate court could not grant defendants any relief.</p> <p>[2] Id — Damaoes — Evidence — Appeal. — The trial court having determined that the attack upon plaintiff was malicious, but it not having designated how much of the amount awarded was allowed as actual damages and how much was allowed for exemplary damages, and there being nothing in the record indicating that the judgment was the result of passion or prejudice or that the feeling of plaintiff’s counsel against defendants because of their nationality was reflected in the amount of damages awarded, the appellate court could not say that the judgment for fifteen hundred dollars damages was excessive, even though the evidence showed that plaintiff suffered a very minor injury so far as actual damages were concerned.</p> <p>2. Excessive verdict in action for damages for personal injuries not resulting in death, notes, Ann. Cas. 1915A, 488; Ann. Cas. 1916G, 916.</p>

<p>[1] Pleading—Quieting Title—Tenancy in Common—Parties.—The administratrix of an estate, as a tenant in common in real property, is entitled to sue either jointly or severally for the protection of her interest therein.</p> <p>[2] Evidence—Escrow Instructions to Attorney—Privileged Communications.—The escrow instructions given by the grantor in a deed are not privileged communications even though such instructions are given to a party who has theretofore, or at the time occupies the position of attorney to the grantor. (Opinion of supreme court on denial of hearing.)</p> <p>[3] Id.—Professional Employment of Attorney—Holding of Deed— Instructions.—Instructions to the holder of a deed delivered in escrow with reference to its delivery are not “in the course of the professional employment” of the attorney within the meaning of subdivision 2 of section 1880 of the Code of Civil Procedure, although the delivery be made to the grantor’s attorney, but are instructions which he is bound to reveal at the request of the grantee for whose benefit the instructions are given. (Opinion of the supreme court on denial of hearing.)</p> <p>3. Privileged communications between attorney and client, notes, 66 Am. St. Rep. 213,- Ann. Cas. 1913A, 3; Ann. Cas. 1916E, 335.</p>

<p>[1] Criminal Law—Infamous Grime Against Nature—Evidence— Appeal.—In this prosecution for the commission of the infamous crime against nature, while there was a sharp conflict in the evidence, the story of the victim of the assault, a boy of the age of nine years, having disclosed every fact material to a conviction, the ease was properly one for the jury to determine, and the appellate court could not substitute its judgment for theirs as to the facts.</p> <p>[2] Id.—Instructions—Definition of Crime.—In such a prosecution, an instruction, in the language of section 287 of the Penal Code, that “any sexual penetration, however slight, is sufficient to complete the crime against nature,” is not rendered erroneous by the addition of the further statement that “evidence of emission is not necessary.”</p> <p>[3] Id.—Date of Commission of Offense.—In such a prosecution, the jury is properly instructed that “it is not necessary for the prosecution to prove the commission of the offense” on the date charged in the information, “but proof of its commission at any time on or about that date and within three years of the filing of the information is sufficient,” where there is no evidence or claim of more than one offense.</p> <p>[4] Id.—Child as Accomplice.—In such a prosecution, it is not error to instruct the jury that “in the absence of clear proof that at the time of committing the act constituting the crime he knew its wrongfulness, a child under the age of fourteen years is presumed -incapable of committing a crime, and cannot therefore be deemed an accomplice.”</p> <p>[5] Id.—Good Character—Evidence.—In such a prosecution, it is not error to refuse an instruction to the effect that evidence of good character is evidence relevant to the question of guilty or not guilty, where there is not such proof.</p> <p>[6] Id.—Reputation—Evidence.—In a prosecution for the commission of the infamous crime against nature, evidence of the reputation of the defendant is properly restricted to his general reputation “for the elements involved in the charge,” and evidence of his reputation for truth, honesty, and integrity is properly held inadmissible.</p> <p>[7] Id.—Interest of Father—Evidence.—In such a prosecution, it is not error to refuse to permit the defendant to show the interest and ill feeling of the father of the boy (the victim of the assault) toward the defendant, where the father is not called as a witness for the people and the complaint which was sworn to by him is not introduced as evidence.</p> <p>L8) Id.—Statements of Boy—Confirmation by Mother.—In such a prosecution, the boy having testified on direct examination in response to a proper question that he had made complaint to his mother, and on cross-examination in an effort to discredit his testimony defendant having required him to state just what he had said to his mother, it was permissible to allow his mother to confirm what he had said; but even if it was error to permit her to so testify, the error was not prejudicial to defendant, where her testimony merely confirmed the testimony of the boy.</p>

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

<p>[1] "Vendor and Vendee—Bight of Possession—Intent.—Upon the sale of real property, the right of possession follows the legal title if the parties intend that the right of possession should be determined by law and not by contract.</p> <p>[2] Id.—Incomplete Contract—Future Negotiations—Evidence.—In this action to recover a sum of money deposited with a title company by the vendee in connection with a real estate transaction, the evidence, including the documents and writings relied upon by defendants, having shown that the parties did not intend to leave to implication of law provisions regarding numerous matters which they had not put into the writings at the time their agreement was signed, but intended to arrive at an agreement regarding such matters at a later date, which they did not do, the trial court properly concluded that, as to those matters, the parties never consummated an agreement, and their contract with reference to the entire subject matter, therefore, was incomplete and unenforceable.</p> <p>1. Implied right of purchaser of realty to possession, note, 4 Ann. Cas. 1018.</p>

<p>[1] Statutory Construction — Meaning of Words “Revise” and “Amend.”—While abstractedly there are well-understood differences in meaning between the words “revise” and ‘amend,” they are interchangeable in the sense in which they are used in article IV, section 24, of the constitution, which provides that “No law shall be revised or amended by reference to its title; but in such ease the act revised or section amended shall be re-enacted and published at length as revised or amended.”</p> <p>[2] Id.—Revision or Amendment of Act.—There is no shade of difference in the meaning, under the rules governing the construction of statutes, between the “revision” of a particular act, or a section thereof, “to read as follows” and the “amendment” of the same act or section “to read as follows.” In either ease it is clear that the revising or amending act is intended as a substitute for the original statute or section, continuing in force that which is reenacted and repealing what is omitted.</p> <p>[3] Street Law—-Road District Improvement Act—Sufficiency of Designation.—The act of 1921 (Stats. 1921, p. 311) is “amendatory” of the Road District Improvement Act of 1907 (Stats. 1907, p. 806), and the statement in a resolution of intention that the supervisors are “proceeding under and by virtue of the Road District Improvement Act approved March 21, 1907, and acts amendatory thereof,” is not inappropriate or .misleading, notwithstanding the act of 1921 expressly provides that it shall be known and designated as the “Road District Improvement Act of 1907.”</p> <p>[4] Id. — Establishment op Boundaries — Ordering op Work — Determination op Supervisors—Hearing—Failure to Object.—The courts cannot interfere with the determination of the board of supervisors in the establishment of the boundaries of a road district and the ordering of work to be done therein where the complaining property owner was given a reasonable opportunity to be heard in the proceeding before the board and there failed to object to any action taken, by it.</p>

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

<p>[1] Contracts—Exclusive Agency—Breach—Loss op Profits—Evidence—Recovery Allowed.—In the event of the breach by the principal of a contract constituting another the exclusive agent for the sale of the products of the former, where the loss of profits cannot be estimated with sufficient certainty, recovery may be allowed for actual expenditures of money and for loss of time in connection with the contract.</p> <p>[2] Id. — Action fob Damages — Recovery of Expenditures — Evidence—Judgment—Appeal.—In this action to recover damages for the breach of a contract constituting plaintiff the exclusive agent of defendant for the sale of the products of the latter, the evidence having shown that plaintiff held a similar contract with another company and that he had divided his efforts in his endeavor to sell the products of both companies, the conclusion of the trial court that defendant could only be charged one-half of plaintiff’s approximated expenditures was determinative and conclusive on appeal.</p> <p>[3] Id.—Loss of Time and Profits—Evidence—Judgment.—In such action, the evidence having afforded no definite basis upon which a judgment for services and prospective profits could be predicated that would not be conjectural and speculative, the trial court properly denied the relief sought under those items.</p>

<p>[1] Street Law—Vacation oe Public Street—Public Interest or Convenience—Determination oe City Council.—In the absence of fraud or collusion, the decision by the city council of what constitutes public interest or convenience in the matter of the vacation of a public street is legislative in character, and a determination by the city council of such a question is conclusive.</p> <p>[2] Id.—Disregard oe Public Interest or Convenience—Invalid Ordinance—Judicial Review.—Where a city council, purporting to act under the /power granted by the act of 1889 (Stats. 1889, p. 7), passes an ordinance vacating a public street, the court may inquire into the real purpose and the result of such ordinance, and upon its determination that the aetion of the city council was based upon a monetary consideration paid by a private motion picture corporation and was solely for the benefit and advantage of said corporation, and against real public interest and convenience, the court may declare such ordinance invalid.</p> <p>1. Power to vacate street, note, 2 Ann. Cas. 87.</p> <p>[3] Id.—Order Closing Street—Public Interest or Convenience— Express Declaration Unnecessary.—The adoption of an ordinance vacating a public street, under the power granted by the act of 1889 (Stats. 1889, p. 70), constitutes a determination by the city council that the public interest or convenience requires that the street be closed) notwithstanding the ordinance contains no declaration to that effect. (Opinion on denial of hearing.)</p>