Volume 64 — California Appellate Reports

<p>[1] Sales—Title—Intention.—As a general rule, the question of when title to goods sold passes from a seller to the buyer is one of intention between the parties; and in the absence of a showing to the contrary the contract of the parties is controlling upon the subject.</p> <p>[2] Id.—Tender—Title—Delivery.—Every tender does not transfer title; and where the contract provides that payment is to be made upon delivery, the tender implies that the fulfillment of this concurrent condition must be complied with before title will pass from the seller to the buyer.</p> <p>[3] Id.—Title—Intention—How Ascertained.—The question of the passing of title being one of intention, in the ascertainment of this intention resort must be had to the terms of the contract, the conduct of the parties, and the circumstances of the case.</p> <p>[4] Id. — Refusal of Buyer to Accept Prunes — Nonpassage of Title — Measure of Damages — Section 3310, Civil Code. — The contract price for an undelivered portion of a crop of prunes which the buyer refused to accept is not recoverable by the seller under section 3310 of the Civil Code, where by the terms of the contract title to the prunes is to pass to the buyer upon completion of weighing and payment, and no showing is made of any intent on the part of the seller to .transfer his title in the prunes to the buyer.</p> <p>[5] Id.—Remedies of Seller—Title—Tender.-—If the seller transfers to the buyer the title to the property sold, he may, under section 3310 of the Civil Code, recover the full purchase price. If, on the other hand, he retains title to the goods he is confined in his remedy to section 3311 of the Civil Code, under which he is entitled to recover the difference between the contract price and the market value at the time of performance, or, if he sell the goods as in the case of a pledge, he will be entitled to recover the difference between the price thus realized and that .stipulated in the contract. If tender is made by the vendor with intent to pass title in the goods to the vendee, title is thereby deemed to have passed, and the vendor may sue for the contract price, but if tender is made without intent to pass title until payment is made, title is not deemed to have passed, and the situation is controlled by section 3311 of the Civil Code.</p> <p>[6] Id.—Title — Intention — Expression “Eree on Board.”—While the expression “free on board” has a general meaning, it is not conclusive upon the question of intention to pass title.</p> <p>6. Effect of delivery of goods f. o. b. upon the passing of title, notes, 62 L. R. A. 802; 3.3 L. R. A. (N. S.) 54. What amounts to delivery f. o. b., note, 16 A. L. R. 597.</p> <p>[7] Id—Refusal of Buyer to Accept Prunes—Action for Damages —Payment by Buyer—Right to Credit.—In an action by a seller to recover damages for the breach of the buyer to accept an undelivered portion of a crop of prunes, where under the express terms of the contract the defendant was entitled to have a sum paid by it when the contract was entered into applied on account •of the purchase price as deliveries were had and payments became due thereon, the fact that defendant did not fully perform its contract did not deprive it of the right it had exercised to apply such sum to the first deliveries, and it was entitled to a credit in such sum.</p>

PROCEEDING in Certiorari to annul an award of the Industrial Accident Commission denying compensation for death. Award affirmed. The facts are stated in the opinion of the court.

<p>[l] Criminal Law—Alleged Failure to Provide for Minor Child— Granting New Trial — Evidence — Appeal.—In this prosecution upon an information charging a father of a minor child with failure, without lawful excuse, to furnish said minor with necessary food, clothing, shelter, and medical attendance, in alleged violation of section 270 of the Penal Code, the record on appeal does not present a case warranting interference with the ruling of the trial court in granting a new trial upon the ground that the verdict of guilty was contrary to the law and the evidence.</p>

<p>[1] Contract — Purchase of Real Property — Recovery of Initial Payment — Approval of Contract—Finding—Evidence—Appeal. In an action to recover an initial payment made by plaintiff on the purchase price of real property under a contract entered into by plaintiff, on behalf of a third party, and the owners of said property, subject to the approval of said third party, a finding that the latter approved the sale and the execution of the contract and the payment so made will not be disturbed on appeal where such finding is based on conflicting evidence.</p>

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

<p>[1] Filing—Placing op File-mark on Papers—Ministerial Act.— The placing of the file-mark on a paper filed in the office of the county clerk is a ministerial act to be performed by the clerk, and the fact that such file-mark is not indorsed on the paper until a subsequent date does not change the time of filing.</p> <p>[2] Id.—Kecital in Judgment — Evidence — Presumption. — The recital in a judgment of the fact of filing of a demurrer will be presumed to be correct, in the absence of contradictory proof.</p> <p>[3] Street Law—Delay in Demanding Sale—Mandamus—Statute op Limitations.—Notwithstanding section 4 of the act of 1893, which provides a system of street improvement and issuance of bonds therefor, provides that the assessment “shall be a first lien upon the property affected thereby, until the bond issued for the payment thereof, and the accrued interest thereon, shall be fully paid,” a proceeding in mandamus to compel the city treasurer to sell the property covered by a bond issued under that act is barred by the statute of limitations where more than six years has elapsed between the maturity of the bond and the making of the demand to sell the property.</p>

<p>[i] Vendor and Vendee—Forfeiture of Vendee’s Eights—Collection of Deferred Payments—Promissory Note.—Where a contract for the sale of real property makes time of the essence and provides that upon failure of the vendee to perform any of the terms and conditions thereof then the vendor may, at his option, declare the agreement to be at an end and to be null and void, and that all payments theretofore made by the vendee shall be retained by the vendor as further consideration for the execution of the agreement and as compensation to the vendor for the occupancy of the property, and the vendor, by reason of a default upon the part of the vendee, has declared the vendee’s rights in the premises forfeited, the vendor may not enforce payment of a promissory note thereafter maturing, although such note was given at the time of the execution of the original agreement for one of the deferred payments.</p> <p>1. Eight of vendor to unpaid installments of the purchase price where the contract has terminated or been rescinded for default of vendee, note, L. E. A. 1916C, 893.</p> <p>[2] Id.—Innocent Holder op Note—Reassignment to Vendor—Enforcement op Payment.—While such note could have been enforced by an innocent holder for value before maturity, the fact that it was transferred by the vendor to an innocent holder for value before maturity and that after maturity it was retransferred to the vendor did not give the latter the right to enforce payment, where he had declared the vendee’s rights in the premises forfeited prior to the maturity of the note.</p>

<p>[1] Criminal Law—Violation of State Poison Act—Challenge for Cause—Refusal by Court—Absence of Prejudice.—In a prosecution for a violation of the provisions of the act of 1907, as amended, regulating the sale of poisons, it is not prejudicial error to disallow defendant’s challenge for cause as to three jurors, who had testified that they were prejudiced in narcotic cases, where said jurors did not serve upon the case and it is not shown that defendant, after having exercised all his peremptory challenges, had occasion or desire to use any additional peremptory challenges or that the jurors finally accepted and sworn wore not entirely satisfactory to him.</p> <p>[2] Id.—Competency op Juror—Evidence.—In such prosecution, where a juror, who at first stated that she was prejudiced “from the very nature of the charge,” testified to all subsequent questioning that she would be fair, that she entertained no prejudice, but could and would lay it aside and accept the instructions of the court, and try the case upon the evidence as fairly as any other, and that she did not know of any reason why she could not be fair and impartial as a juror, both for the people and for defendant, such testimony, taken as a whole, furnished no ground for defendant’s objection to the competency of said juror.</p> <p>2. Disqualification or incompeteney of jurors by reason of bias as ground for new trial, notes, 1 Ann. Cas. 196; 12 Ann. Cas. 922; Ann. Cas. 1913A, 892; 18 L. E. A. 476.</p> <p>[3] Id.—Evidence—Corroboration.—In this prosecution for a violation of the provisions of the act of 1907, as amended, regulating the sale of poisons, defendant was not convicted upon the testimony of the prosecuting witness alone, but the record showed that her testimony was corroborated by that of two police officers who witnessed the transfer of the narcotics; and the testimony of defendant denying the delivery of the narcotics only raised a conflict in the evidence, which was not reviewable on appeal.</p> <p>[4] Id. — Separation op Jurors •— Lack op Prejudice — Burden op Proop—Hew Trial.—The affidavits of defendant introduced on his motion for a new trial having shown that after the cause had been submitted to the jury the jurors separated, some of them talking among themselves and with other parties in the courtroom, some in the hallway, and others in the toilet, the burden was upon the prosecution to show that such irregularity had resulted in no prejudice to defendant, and where the prosecution filed no counter-affidavit, the trial court should have granted defendant’s motion for a new trial.</p> <p>4. Bight to permit separation of jury in criminal eases other than capital, after finding of verdict, but before rendition, note, 31 L. E. A. (N. S.) 1005.</p>

<p>[i] Appeal — Absence op Points and Authorities — Frivolous Appeal—Dismissal—Damages.—No appearance having been made on the part of appellants and no points and authorities having been filed in their behalf, the appeal was dismissed; and it further appearing that there was no merit in the appeal and that same was frivolous, the court ordered that respondents recover of appellants as damages the sum of one hundred dollars.</p>

<p>[1] Contracts—Sale of Land—Statute of Frauds.—A contract for the sale of land is invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged.</p> <p>[2] Id.—Escrow—Necessity for Binding Contract.—Before a proposed escrow may have any validity there must be a binding contract in existence between the parties to such escrow.</p> <p>[3] Id.—Deposit of Bonds With Title 'Company—Absence of Meeting of Minds—Subsequent Instructions—Liquidated Damages. Where the vendor and the vendee of certain real property- orally agree that certain bonds shall be deposited with a title insurance company to be forfeited to the vendor if the sale shall not be consummated, and the bonds are so deposited, but there is no “meeting of the minds” of the parties on the question of the terms of the proposed contract of sale other than the inchoate agreement as to the forfeiture of the bonds, and thereafter the parties give new written instructions to the title company, but such instructions contain no mention of the bonds in connection with their forfeiture to the vendor as liquidated damages or otherwise, the vendor is not entitled to such bonds upon the failure of the vendee to consummate the deal.</p> <p>[4] lb.—Liquidated Damages — Invalid Contract. — Assuming that the parties had entered into a written agreement embracing all the terms of the proposed sale, and that such agreement had contained a provision evidencing the intent of the parties that the bonds should be forfeited to the vendor upon the failure of the vendee to consummate the deal, under sections 1670 and 1671 of the Civil Code such provision for liquidated damages could not be enforced in the absence of pleading and proof that “from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.”</p> <p>[5] Id.—Rental Value of Land — Evidence — Invalid Provision.— Assuming that there was a contract between the parties and that the intention was that the bonds were to be considered as rent for the use of the property in the event the sale was not completed, under sections 1670 and 1671 of the Civil Code such provision would not be enforceable, as it would have been a comparatively easy matter, after the termination of the transaction, by the vendor, following the failure of the vendee to consummate the deal, to determine what was the value of the use of the land while it was occupied by the vendee.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. J. R. Welch, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for reinstatement as an attorney and counselor at law after disbarment.</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. Chas. Monroe, Judge. Reversed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Negligence—Enormous Traffic on Highways—Judicial Notice —Due Care by Users.—The enormous traffic on the improved highways of the state of California, and of which the court may properly take notice, is such as to constitute the traveled portions thereof a definite danger zone necessitating due care and caution on the part of every user thereof to insure his own personal safety.</p> <p>[2] Id.—Repairs on Highway—Care Required—Contributory Negligence.—Plaintiff’s left-hand rear tire having collapsed as he was traveling southerly on an improved highway, causing him to stop for the purpose of changing tires, but because of shoulder construction work that was going on it having been impossible for him to remove the automobile from the traveled portion of the highway) he was required to use very great care in keeping his machine and person on the westerly half of the improved portion of the highway and might readily be charged with contributory negligence if he allowed any portion of his person to get beyond the center line thereof.</p> <p>[3] Id.—Contributory Negligence—Last Clear ChAnce.—If plaintiff’s negligence contributed to the cause of the injury and the injury would not have resulted had his negligence not contributed thereto he cannot recover, unless it further appears that defendant had a last clear chance to avoid inflicting the injury.</p> <p>[4] Id.—Removal of Car to Safe Place—Immaterial Issue.—If defendant had a last clear opportunity to avoid injuring plaintiff and could have done so by the exercise of due care, the question whether it was impracticable for plaintiff to remove his car to some other location for the purpose of making repairs is wholly immaterial.</p> <p>4. Origin, function and mode of operation of the doctrine of last clear chance, note, 55 L. R. A. 418,</p> <p>[5] Id.—Sufficient Boom to Pebmit Passage—Duty of Defendant. If plaintiff (who had been traveling southerly) was on the westerly side of the road and there was sufficient room for defendant (who was traveling northerly) to pass without injuring plaintiff it was Ms duty to move Ms car sufficiently to his right-hand side of the road as to admit of such passage without injury; and if defendant saw plaintiff in a position of danger at á time when his (defendant’s) ear was sufficiently distant to admit of his ear being stopped or brought under such reasonable control in relation to its stopping as to admit of its passage by plaintiff without injury to him, then it was the duty of defendant to either stop Ms car or reduce its speed to such a degree as to enable Mm to pass by plaintiff without injuring Mm, even though plaintiff had placed himself in a dangerous position.</p> <p>5. Liability for injuring one engaged about an automobile on the highway, notes, 25 A, L, R. 134; L. R. A, 1917B, 319,</p> <p>[6] Id.—Evidence—Due Cabe by Plaintiff—Reckless Speed of Defendant.—In this action for damages for personal injuries sustained by plaintiff as the result of being struck by an automobile owned and driven by defendant, the trial court was justified in concluding from the evidence that plaintiff (who had stopped on the highway for the purpose of changing tires) had taken all precautions and at the time of the accident was taking all precautions that could have been reasonably required of Mm under the circumstances and that his injury was due to the carelessness and negligence of defendant in maintaining a high rate of speed while passing the person of plaintiff.</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County. W. B. Wallace, 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. Louis W. Myers, Judge. Affirmed.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Attorney at Law—Disbarment—Reinstatement—Sufficiency of Punishment.—Application for reinstatement as an attorney and counselor at law after disbarment denied upon authority of In re O’Connell, ante, p. 673.</p>