Volume 90 — California Reports

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Pledge of Stock to Broker—Security for Purchase-money —"Appropriation for Previous Debt of Pledgor — Conversion — Liability of Broker to Owner. — A broker who receives from a customer a certificate of stock indorsed in blank, which was delivered to the customer by the owner to enable him to pledge it as security for the purchase of other stock, and which is pledged for that purpose, cannot, after having purchased such other stock, and resold the same at an advance, retain the pledged stock as security for a previous debt of the pledgor existing at the date of the pledge, if it does not appear to have been pledged for such indebtedness; and if the broker thereafter sells it and appropriates the proceeds to pay such indebtedness, he is liable to the owner of the stock for a conversion thereof.</p> <p>Id. — Apparent Ownership of Pledgor — Bona Fide Holder of Pledge — Repayment of Moneys Advanced. —The fact that the broker was ignorant of who was the true owner of the stock at the date of the pledge is immaterial, the apparent ownership of the pledgor not having resulted to his injury, and the broker not being a holder of the pledge in good faith and for value, as against the owner, after the moneys advanced on the stock were fully repaid.</p> <p>Id. — Conversion of Stock — Findings — Conclusion of Law.—When the facts found show a conversion of the stock of the plaintiff by the defendant, a finding that defendant did not convert the stock must be held to be a finding of a conclusion of law, and not of an ultimate fact.</p> <p>Id. —Reversal of Judgment — Judgment. — Where a judgment for the defendant in an action for damages for the conversion of personal property is reversed on appeal, a judgment for the plaintiff for the highest market value of the property between the times of the conversion and the verdict cannot he ordered, unless the findings, in addition to finding such value, also find that the action has been prosecuted with reasonable diligence.</p>

<p>Divorce — Stipulation as to Property Rights — Error of Law Occurring at Trial — Amendment of Judgment. — Where a stipulation was entered into between the parties to an action of divorce, pending a decision of the case, fixing the property rights of the parties, and the trial judge was requested, before the judgment, to incorporate it therein, his refusal so to do, if error at all, is error of law committed at the trial, which should have been taken advantage of upon a motion for a new trial or upon an appeal; and the subsequent amendment of the judgment by the court so as to include the stipulation, upon a motion to amend the judgment, is error.</p> <p>New Trial — Renewal of Motion — Res Adjudicata. — The doctrine of res adjudicata is applicable to the decision of a motion for a new trial, and after the motion has been denied the moving party is not at liberty to make a second motion therefor.</p> <p>Id. — Motion to Amend Judgment — Ground of New Trial. —A party to an action cannot, under the form of a motion to amend the judgment, obtain relief, which, if proper to he granted under any circumstances, should have been sought through a motion for a new trial.</p> <p>Amendment of Judgment — Clerical Misprisions — Judicial Errors. — Clerical misprisions in a judgment can be corrected "at anytime by an order of the court,'but judicial errors can be remedied only through a motion for a new trial, or on appeal.</p>

<p>Corporation de Facto — Action — Power of Trustees. — The trustees of' a corporation de facto may sue in its corporate name, until its existence is called in question by a direct proceeding upon information of the attorney-general.</p> <p>Id. — Quieting Title — Injunction — Property Held by Trustees. — Where the trustees of a corporation hold property in trust for its uses, their ownership and possession is the ownership and possession of the corporation, and the corporation has a sufficient interest in the property to bring an action in its corporate name to quiet title thereto, and to restrain by injunction a threatened interference with the possession.</p>

<p>Trust Deed —Land out of State — Refusal of Trustee to Act — Appointment of New Trustee — Jurisdiction.—Where a trust deed respecting land in another state, made and executed in this state, provides that if the trustee named therein should fail or refuse to accept the trust a new trustee may be appointed by a court of competent jurisdiction, a court of this state which acquires jurisdiction of the parties may appoint a new trustee to carry out the trust, where the trustee named in the deed refuses to act.</p> <p>Id. — Validity of Deed — Assent of Trustee—Incompetency —Enforcement of Trust in Equity. — The assent of the trustee is not necessary to the validity of a trust deed; and the fact that the trustee named in the deed is not competent to act does not render the trust void as between the parties thereto, but a court of competent jurisdiction may substitute a new trustee to enforce and perfect the objects of the trust.</p> <p>Id. — Signature of Trustee. — The fact that the trust deed was not signed by the trustee, although it was intended to be signed by him, does not render it defective, if it was signed by the other patties thereto, under an express agreement that it should be binding as between them.</p> <p>Id. — Action to Appoint New Trustee and to Enforce Trust — Parties— Transfer of Property. •—Where one of the parties to the trust deed, who was made a party defendant in an action to appoint a new trustee and to enforce the trust, transferred all his interest in the land to a third person after the execution of the deed, and after the complaint was filed, he cannot complain that the third person was not made a party to the action, if he did not ask to have him joined as a party.</p>

<p>Appeal from a judgment of the Superior Court of Santa Clara County.</p> <p>The facts are stated in the opinion of the court..</p>

(Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial. The facts are stated in the opinion.

<p>Appeal from a judgment of the Superior Court of Mendocino County.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Napa County..</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.</p> <p>The facts are stated in the opinion.</p>

<p>New Trial — Statement — Specifications of Insufficiency of Evidence. — The party moving for a new trial on the ground of the insufficiency of the evidence must specify in the statement the particulars wherein the evidence is alleged to be insufficient, and any specification not made cannot be considered.</p> <p>Id. — General Specifications. — Specifications of error, in a suit in equity, as to the insufficiency of the evidence to sustain the decision, which are not directed at any particular one of numerous findings of fact upon the various issues involved, but at all of them, at the verdict of the jury upon an issue submitted to them, which was adopted by the court, and a finding made thereon, and at the judgment, are insufficient.</p> <p>Mechanic’s Lien — Contract — Extra Work—Evidence — Rebuttal-Proof of Fraudulent Contract — Misrepresentation.—In an action to foreclose a mechanic’s lien for work done in the construction of a building, where an issue is raised as to the performance of work alleged to have been done under a contract described in the complaint, and the answer alleged another contract, including extra work sued for by the plaintiff upon a quantum mei-uit count, it is competent for the plaintiff, when such other contract is introduced in evidence by the defendant, to show in rebuttal that he signed it under the defendant’s fraudulent misrepresentation, and never intended to sign such a contract, and supposed he was signing the one sued upon.</p> <p>Verdict in Equity Case — Setting aside Inadvertent Judgment — Adoption of Verdict — Findings — New Judgment.—The court may properly set aside a judgment entered upon the verdict of a jury in an equity case, where it appears that it had been inadvertently entered by the clerk, without judicial sanction, when other issues of fact remained to be determined by the court, and the court may proceed with the trial of such issues, and may adopt the advisory verdict of the jury upon the special matter therein involved, make findings as to the other issues, and have a new judgment entered.</p>

<p>Appeal from a judgment of the Superior Court of Mendocino County.</p> <p>The facts are stated in the opinion.</p>

<p>Pleading — Complaint—Demurrer—Misjoinder oe Causes of Action. — A cause of action for costs incurred in having to bring suit against the defendant for specific performance of an agreement to reconvey certain premises, a cause of action based upon alleged fraud, malice, and oppression of the defendant, and a cause of action arising from the breach of the defendant’s written covenant of warranty of property conveyed to the plaintiff, cannot be united; and a complaint which unites and mingles together such causes of action is demurrable, on the ground that several causes of action are improperly united.</p> <p>Id. —Facts Constituting Fraud. — A complaint alleging a cause of action based upon alleged fraud of the defendant, which fails to aver the facts constituting the fraud, is demurrable as to that cause of action.</p>

<p>Appeal from an order of the Superior Court of the city and county of San Francisco refusing to revoke an order granting letters of guardianship of a minor.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal — Jurisdiction—Motion fob New Trial.—The pendency of an appeal from a judgment does not affect the jurisdiction of the court below to hear and pass upon a motion for new trial.</p> <p>Id. — Dismissal of Motion. — Where a notice of motion for a new trial is served and filed in due time, the trial court should hear the motion, and either grant or deny it; and the fact that the judgment had been appealed from at the time of the hearing of the motion does not warrant the court in dismissing the motion.</p> <p>Id. — Appeal from Order Dismissing Motion — Denial of New Trial. — An appeal from an order dismissing a motion for new trial because of the pendency of an appeal from the judgment will be treated as being, in legal effect, an appeal from an order denying a new trial.</p> <p>Contracts — Breach of Bond to Deliver Land-warrants — Mortgaged Land Conveyed in Exchange — Measure of Damages. —In an action to recover damages for the failure of the defendants to deliver land-warrants to the plaintiffs at the time and place specified in a bond of the defendants, conditioned for the due delivery of the warrants, the measure of damages is the market value of the warrants at the time specified for their delivery, with legal interest from that date, less the amount due upon the purchase price.</p>

<p>Partnership — Suit by Assignee of Insolvent Firm — Recovery of Property Sold — Void Sale by One Partner — Amendment of Complaint. —In an action by an assignee of an insolvent firm to recover the value of certain sheep, alleged in one count of the complaint to have been sold to the defendant by the firm in violation of section 55 of the Insolvent Act, it is not error for the court to permit the complaint to be amended by adding a count charging the sale of the sheep to have been void because made by only one of the partners, without authority from the other partner. ■ .•</p> <p>Id.—Temporary Absence of Copartner —Sale of Entire Partnership Property — Excess of Authority. —The fact that one of the partners in a firm is temporarily absent from the state at the time of the sale of the entire partnership property by his copartner does not render him incapable of acting, within the ■ meaning of section 2430 of the Civil Code, nor of itself constitute an abandonment of the business to his copartner, and the sale of the entire partnership property by the latter is in excess of his authority as a member of the firm, and does not pass the absent partner’s interest in the property to the purchaser.</p> <p>Id.—Effect of Unauthorized Sale — Interest of Partner Making Sale. — A sale of the entire partnership property made by one partner, without the authority or consent of the others, passes title to the interest of the partner making the sale, and when made in payment or satisfaction of the partnership indebtedness is valid in reference to the whole property as against every person except the non-consenting partner or the successor to his right of action therefor, and neither the non-consenting partner nor the assignee of the firm can maintain an action for the conversion of the whole partnership property upon the ground that the partner making the sale exceeded his authority in so doing; and the non-consenting partner is only injured to the extent of the value of his interest in the property, and is not allowed to recover any greater amount as damages for such as to him unauthorized sale.</p> <p>Id._Conversion of One Partner’s Interest — Action of Trover — Measure of Damages — Solvency of Firm —State of Accounts__ The measure of damages in an action of trover for the conversion of the interest of one partner in partnership property is the value of his undivided share in the property converted, irrespective of the question whether or not the partnership was solvent, and without regard to the state of the partnership accounts.</p>

<p>Lease — Action for. Rent — Pleading — Demurrer — Performance of Covenants by Lessor — Counterclaim — Breach by Lessor — Error ■without Injury. —The failure of a complaint, in an action for rent due under a written lease, to allege the performance, or an excuse for the non-performance, of the covenants of the lease to he performed on the part of the lessor, if error, is error without injury, where the covenants are set up in a counterclaim and their breach therein alleged, and the case is tried upon the issues thus raised.</p> <p>Id. — Rent — Damages for Breach of Covenant — Misjoinder of Causes of Action — Abandonment of Count for Damages — Error without Injury.—Where a complaint contained two counts, one for rent due under a written lease, and the other for damages for the breach of a covenant to restore the property in good condition, the overruling of a demurrer to the complaint, on the ground of misjoinder of causes of action, if error, is error without injury, where it appears that the latter count was wholly abandoned by the plaintiff upon the trial, and the court so charged the jury, and the verdict was for a sum less than the amount claimed in the other count to he due for rent.</p> <p>Evidence — Trial — Striking out Competent Testimony — Cure of Error. — Error of the court in striking out competent testimony is cured by the witness being subsequently recalled and giving .substan- . tially the same testimony without objection.</p> <p>Lease — Covenant of Lessor to Build Laundry — Damages for Breach — Evidence — Value of Use of Laundry. — Questions as to the value of the use per month of a lauudry attached to a leased building, or to a hotel like it, failing to state the correct rule of damage for the landlord’s breach of covenant to build a laundry upon the premises, are properly rejected.</p> <p>Id. ■—Substitute for Laundry to be Erected—Waiver of Covenant. — The lessee cannot recover for breach of covenant to build a laundry, beyond the period during which he was deprived of the use of any laundry, if it appears that the erection of a laundry building was waived, and a room in the hotel was fitted up at the lessor’s expense and used for laundry purposes with the consent of the lessee.</p>

<p>Negligence — Failure of Landlord to Provide Suitable Entrance — Injury to Tenant’s Wife — Pleading — Facts Showing Cause of Injury. — A complaint in an action by a husband and wife for damages for personal injuries to the wife, which alleges that while the plaintiffs were in possession as tenants of the defendant’s house he raised it six or seven feet, but failed and neglected to provide a safe, proper, and suitable means of entrance to or egress from the house, and that plaintiffs continued to reside in the house after it had been raised, and to pay rent as before, and that by reason of such negligence the wife, in endeavoring to descend from the house to the ground, fell and was injured, but which fails to aver any facts showing that the alleged negligence caused or contributed to the injury, does not state a cause of action.</p> <p>Id. —Pleading — General Allegations — Special Facts — Cause of Injury — Patent Defect. — Although negligence may be charged in general terms, yet it must appear from the facts averred that the negligence caused or contributed to the injury, and it is not sufficient merely to aver that the injury was caused by reason of the negligence averred, if no fact is stated which shows how the injury was caused, or that it was not caused through a patent defect.</p> <p>Id. — Construction of Pleading — Latent Insecurity of Structure — Presumption as to Patent Defect. — In construing pleadings before judgment, it is presumed that the pleader has stated his case in the most favorable manner to himself, and where, in an action of negligence, it is not alleged that the injury occurred through any latent insecurity of the structure which caused the injuries, it will be presumed that the accident arose from a patent defect, and that the pleader failed to make a more specific statement because such a statement would have weakened his case.</p>

<p>Prohibition—Subscription to Stock of Corporation — Attachment of Property of Non-resident Subscribers — Remedy by Appeal.— Where property situated, in this state, belonging to non-residents, is attached in an action against them upon a subscription to the stock of a corporation, prohibition will not lie to restrain the plaintiff from proceeding with the action, upon the ground that the action is one in which no attachment will lie, there being a remedy by appeal from an order refusing to dissolve the attachment.</p> <p>Id. — Construction of Code — Plain, Speedy, and Adequate Remedy. — A remedy by appeal is a “ plain, speedy, and adequate remedy in the ordinary course of law,” within the meaning of section 1103 of the Code of Civil Procedure, and the fact that more time would probably be consumed by appeal than in a proceeding by a writ of prohibition, does not render the remedy by appeal not “ plain, speedy, and adequate. ”</p> <p>Id. —Incidental Question of Jurisdiction.— The fact that a question of jurisdiction is incidentally raised in an action does not present a sufficient cause for granting a writ of prohibition.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.</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, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

The complaint averred that the defendants “ assumed and agreed ” to pay the mortgage debt. The answer denied that the defendants “ assumed and agreed ” to pay such debt. Further facts are stated in the opinion.

<p>Appeal from a judgment of the Superior Court of Tulare County.</p> <p>The facts are stated in the opinion.</p>

<p>Replevin — Pleading — Answer — Justification — Attachment of Pledged Propertv — Estoppel.— In an action of replevin against a sheriff, an answer which alleges justification under writs of attachment and execution, and avers that the levy was made in sole reliance upon the statement of the plaintiff that he held possession of the property as the pledgee of the execution debtor, who was the owner thereof, sufficiently pleads an estoppel under section 1962, subdivision 3, of the Code of Civil Procedure; and the plaintiff, upon such facts being proved, is estopped from denying the truth of the statements made by him, and from setting up title to the property in any one hut the execution debtor.</p>

<p>Appeal from a judgment of the Superior Court of Tulare County, and from an order denying a new trial, and from an order granting a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Nonsuit — Specification of Grounds of Motion. —It is error for the trial court to grant a nonsuit, unless the grounds therefor are called to the attention of the trial judge and the plaintiff at the time the motion is made; and where none of the grounds upon which the nonsuit is asked are sufficient to warrant the court in granting the motion, the order granting it will be reversed, although another ground, not specified in the motion, might have warranted the order.</p>

<p>Estates of Deceased Persons—Liability of Administrator—Rents and Profits of Realty. — An administrator is responsible for the rents and profits of his decedent’s land, and, where he occupies and uses it as his own, is responsible for all profits made by him out of the land, unless his occupation is shown to be after surrender to a paramount adverse title asserted by another.</p> <p>Id.—Laches of Heirs — Contesting Pinal Account — Neglect of Administrator.— The fact that the heirs of a decedent omit for many years to assert their claim to the rents, issues, and profits of property, of which the administrator of the estate had control, will not render them guilty of laches so as to estop them from contesting the final account of the administrator, for which he seeks judicial sanction, or preclude them from seeking to charge him with the rents and profits in such account.</p>

<p>Action upon Note — Pleading — Non-payment. — A complaint in an action upon a promissory note which contains no allegation of non-payment of the note is fatally defective.</p> <p>Id.—Insufficient Allegation. — An allegation that “no part of” tiia principal sum mentioned in the note, with the interest thereon, “still remains due and unpaid,” is not an allegation of non-payment.</p>

<p>Appeal from an order of the Superior Court of Los Angeles county granting a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Santa Barbara county.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Prosecution of Lawful Work — Injury to Property by Street Contractor. — In an action for damages alleged to have been caused to plaintiffs property by the negligence of the defendant in prosecuting street-work under a contract with the city, where the defendant denies the allegations of negligence, and claims that the operations resulting in the injury were justifiable and unavoidable in the prosecution of a lawful work, and the jury finds in favor of the plaintiff, upon the ground that the defendant was negligent, the judgment will not be reversed, if there is evidence tending to support the verdict, and there are no errors of law in the instructions of the court.</p>

<p>Appeal from a judgment of the Superior Court of San Bernardino County, from an order denying a new trial, and from an order refusing to set aside a sale under an execution.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Official Bond— Action against Sureties —'Evidence — Account-books — Fraudulent Omissions — Disoredh-inq Books.— In an action against the sureties upon an official bond, to recover money received by the officer in his official capacity, which he neglected to pay to the state, as his official duty required, where the plaintiff introduced account-hooks required to be kept by the secretary of the board, of which the officer was ■ a member, for the purpose of showing that he had not paid the money as required, because the books did not contain any account of such payment, which they should have contained if such payment had been made, the defendants may show that the books were incorrectly kept, and that there were many other omissions therein which were false and fraudulent, for the purpose of discrediting the books as evidence.</p>

<p>Vendor and Purchaser—Bond for Deed — Vendor’s Lien — Trust Agreement — Tenanoy in Common.—Where a vendor gives a bond for a deed, and receives part of the purchase-money, but by the terms of the bond holds the legal title as security for the unpaid purchase-money, and the vendee afterwards enters into an agreement with the vendor and others, the object of which is to declare that the vendee was to hold the property purchased in trust for the benefit of himself and the other parties, including the vendor, in equal shares, or in proportion to the amount of money paid by each, the vendee does not by such subsequent agreement become a tenant in common with the vendor in proportion to the amount paid by him upon the purchase price, and is not relieved from the obligation of the original contract of purchase.</p> <p>Id.— Foreclosure of Rights of Vendee. — The vendee under such contract having failed to complete the purchase, the remedy of the vendor is to institute proceedings to foreclose the rights of the vendee to purchase under the contract.</p>

<p>Criminal Law—Homicide—Instructions—“Malice Aforethought.’’ — Upon the trial of a defendant charged with murder, an instruction to the jury that if they found the defendant murdered the deceased “ willfully, deliberately, and with premeditation,” then their “verdict should be murder in the first degree,” is not erroneous because of omitting the element of malice aforethought, where the court had already instructed the jury that murder “ was the unlawful killing of a human being with malice aforethought,” and had given the statutory definitions of malice.</p> <p>Id.— Discretion of Jury as to Punishment — Instructions.— Instructions to the jury to the effect that if they found the defendant guilty of murder in the first degree, and also found some extenuating fact or circumstance, it was within their discretion to fix the punishment at imprisonment for life, but that if there were no extenuating circumstances, then, they should impose the death penalty, is not erroneous as interfering with the discretion of the jury, though the practice of giving instructions upon that subject is not to be encouraged.</p> <p>Id.— Defense of Insanity — Burden of Proof — Preponderance of Evidence—Reasonable Doubt.—The burden is on the defendant asserting insanity to establish it by a preponderance of evidence, and instructions asked by him, to the effect that if the jury, upon the whole evidence, had a reasonable doubt of his sanity they should acquit, are properly refused.</p> <p>Id.— Preliminary Examination and Commitment—Waiver of Objection— Motion for New Trial — Arrest of Judgment.— The objection that there was no preliminary examination and commitment of the defendant by a magistrate before the filing of an information is neither a ground of a motion for a new trial nor for a motion in arrest of judgment, and is waived if not taken by a motion to set aside the information upon the arraignment of the defendant.</p> <p>Id.— Regularity of Proceedings — Jurisdiction.— Where the preliminary examination and commitment of a defendant, and the information based thereon, are regular on their face, the court has full jurisdiction to try the case.</p>

Application to the Supreme Court for a writ of mandate to the judge of the Superior Court of Fresno County. The facts are stated in the opinion of the court.

The appeal is from a decree settling the final account of Frank Locan, as assignee of the insolvent partners, Herman Siering and Robert Siering, doing business under the firm name of H. Siering & Co. The appellants describe themselves as creditors of the insolvents. Further facts are stated in the opinion of the court.

<p>Contempt — Imprisonment tor Fine — Unauthorized Release-—Expiration of Term.— When a person has been regularly adjudged guilty of a contempt of court, and has been fined therefor, and ordered to be imprisoned until the fine be paid, at the rate of one dollar per day, anun, authorized release of the prisoner by the sheriff pending an appeal, until after the term of imprisonment which would have satisfied the fine has expired, cannot have the effect to extinguish the fine, or to shorten the term of actual imprisonment required to satisfy it if not otherwise paid.</p> <p>Criminal Law—Sentence of Imprisonment —Escape —Duration of Term.—The unauthorized release or departure of a prisoner under sentence of imprisonment, without having been discharged in due course of law, is, in effect, a technical escape, from which he can derive no advantage, and the time of his absence cannot be computed as any part of the term of imprisonment.</p> <p>Id.— Execution of Sentence—Extent of Punishment—Expiration of Time.— The essential part of a sentence of imprisonment is not the time when it should be executed, but the extent of the punishment fixed; and expiration of time, without imprisonment, is in no sense an execution of the sentence.</p>

<p>Appeal from a judgment of the Superior Court of Colusa County, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Mechanic’s Lien—Void Contract — Invalid Bond — Estoppel oe Surety. — Where a contract for the erection of a building is void for failure of recordation, and other defects, a bond attached to the contract, conditioned that the contractor should not permit any claim, debt, or lien to be placed upon the building in the erection thereof, is also void, and does not constitute an estoppel as against a surety thereon who seeks to foreclose a lien upon the building for materials furnished by him to be used, and which were used, in its construction.</p> <p>Id. — Material-man’s Lien. — One who furnishes materials which were neither to be used nor used in the construction of the building is not entitled to a lien therefor.</p>

<p>Appeal from, an order of the Superior Court of Sacramento County setting aside a judgment.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—• Review oe Evidence.—Where there is evidence to sustain the decision of the trial court, the judgment will he affirmed, although the appellate court might have found otherwise if sitting as a trial court.</p>

<p>Appeal from a judgment of the Superior Court of Modoc County.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Modoc County.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Solano County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporations — Benevolent Association — Suspension of Member — Appeal to Body of Corporators •— Action for Damages. — A member of an incorporated benevolent association cannot maintain an action against the association to recover damages on account of his suspension for misconduct, under a provision of the by-laws, where such suspension has been affirmed upon an appeal taken by himself, under the constitution of the society, to the whole body of the members of the corporation; and it is immaterial whether the facts upon which the determination was predicated justified the suspension or not.</p>

Appeals from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial. The facts are stated in the opinion of the court.

Application to the Supreme Court for leave to prove amendments to a bill of exceptions. The facts are stated in the opinion of the court.

<p>Principal and Agent —Action for Money Overpaid to Agent — Purchase of Stock — Immaterial Variance. — In an action by a principal against an agent to recover the difference between the price for which the agent reported he had purchased certain shares of stock, and which amount the principal had paid him, and a less price which the agent actually paid therefor, where the complaint alleges that the agent purchased the shares of stock, and the proof shows that he purchased certain agreements of a syndicate to furnish the shares, the variance is immaterial, and could not have misled the defendant, if he made as full a defense as though the complaint had accurately stated the facts.</p>

<p>Petition to the Supreme Court for a writ of mandate. The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Alameda County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from, a judgment of tlie Superior Court of Placer County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Basement — Servitude upon Ditch— Verbal Contract for Use of Water— Irrevocable License—• Statute of Frauds.-—When a right of way for a ditch across the land of the grantor is conveyed to a grantee, without further written agreement, a verbal contract for the use of a certain quantity of the water to be taken from the ditch, at a certain price, and used perpetually for irrigating the grantor’s land, is within the statute of frauds, and cannot create a servitude or easement upon the ditch property or constitute an irrevocable license, or justify the diversion of the water by the successor in interest of the grantor.</p> <p>Id. — Action for Diversion of Water— Evidence. — In an action for the diversion of water from the ditch, brought by the owner of the ditch property against the successor in interest of the grantor of the right of way, in which the issue to be tried is as to the right to a permanent easement of defendant in the ditch and water right, it is error to admit evidence as to such verbal contract on behalf of the defendant.</p> <p>Id. —Pleading!—.Part Performance — Specific Performance—Irrevocable License. —The defendant in such action cannot avail himself as a defense, at the trial, of the fact that the verbal contract was partly performed by his grantor, if he has failed to plead facts sufficient to entitle him to a specific performance, nor can he avail himself of the defense of an irrevocable license, if no license of any kind has been pleaded.</p> <p>Id.—Failure to Perform — Part Payment of Purchase-money — Part Specific Performance. — The defendant in such action is not entitled to enforce a specific performance of the verbal contract, where it does not appear that the plaintiff was unable to perform the contract on his part, in the absence of proof of a tender of full performance on the part of the defendant, and a request from him of full performance by the plaintiff; and where it appears that only part of the purchase-money was paid by the grantor of the plaintiff, and no offer or intention appears on the part of the plaintiff or of his grantor to pay the remainder, no part specific performance can be enforced.</p>

<p>Fraud — Action to Set Aside Conveyance—■ Undue Influence—Sufficiency of Complaint. — The complaint in an action to set aside a conveyance of land and a bill of sale of personal property, which shows that the vendor was an old, sick, weak-minded, foolish woman, without advisers or friends, and that the property was obtained at a grossly inadequate price, under circumstances showing great oppression and undue influence well calculated to overcome the judgment and will of the vendor, accompanied by unreasonable representations and threats, states a cause of action.</p> <p>Id.—Evidence—Conversations Prior to Conveyance — Merger.— The action to set aside the conveyances being based upon fraud in procuring the deed and bill of sale, the rule that all verbal precedent negotiations were merged in the writings does not apply, and evidence of conversations proving a previous verbal contract is admissible.</p> <p>Id. — Pleading — Averments of Fraud — Evidence of Statements not Averred. — The rule that acts of fraud must be specifically set out in such a case does not require or justify a minute detail of all the conversations by which the fraudulent representations are proven, but it is sufficient to aver the fraud in substance and legal effect as proven, and when so averred, corroborative statements may be shown.</p> <p>Id. — Offer to Restore Consideration — Pleading__An offer to restore ¡the consideration of a deed which is sought to be set aside, if averred in the language of the statute, is sufficient as against a general demurrer.</p> <p>Id. —Findings — Falsity of Representations. —A finding of facts inconsistent with and contradictory of the representations made sufficiently shows .that the representations were false, without a specific finding thereon-</p> <p>Id. — Fraudulent Representations — Accompanying Duress — Belief of Representations — Implications from Finding of Fraud. — Although the fact that the fraudulent representations were accompanied by threats and duress, rendered it unnecessary to find that the vendor believed them, yet a general finding that the deed and bill of sale sought to be set aside were procured by fraud implies the fact that the vendor believed and relied upon the representations.</p> <p>Id.—Injury to Vendor — Inadequacy of Consideration.—A finding that the price paid for the land was grossly inadequate sufficiently shows that the vendor was injured by the fraud.</p> <p>Id.—General Finding of Ultimate Facts — Duress — Menace—Undue Influence — Fraud — Support of Judgment. —A general finding that the deed and bill of sale were procured by the vendee “ by duress, menace, undue influence, and fraud,” although not as specific as it ought to be, is a sufficient finding of ultimate facts to sustain the judgment, where it appears that the vendee is not prejudiced by the failure to find more specifically.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence — Defective Step to Street-railway Car — Gross Negligence of Driver — Injury to Passenger — Instruction — Contributory Negligence. — In an action against a street-railroad company for damages caused by its negligence, where the evidence is ample to show both carelessness of the corporation in having a defective step on its car, and also gross negligence on the part of the driver in starting the car just as the plaintiff, who was a passenger, was stepping off, and there is no evidence tending to show any negligence on the part of the passenger, an instruction that if the jury should believe from the evidence that the railroad company was guilty of gross negligence which caused the injury, the company was liable, notwithstanding contributory negligence on the part of the passenger, is not prejudicially erroneous.</p>

<p>Appeal prom Order Denying Hew Trial—Review—Sufficiency op Complaint — Findings — Evidence.—Upon an appeal from an order denying a new trial, the appellate court cannot consider the sufficiency either of the complaint or of the findings to support the judgment, and its examination of the evidence is limited to a consideration of its sufficiency to sustain the findings of fact.</p> <p>Id.—Omission op Material Findings — Mistrial — Decision against Law—Support op Judgment.—Although, as a general rule, a failure to find upon material issues produces a mistrial, and renders the decision against law, yet this rule is applicable only where a finding upon the omitted issues might have the effect to countervail or destroy the effect of the other findings; and if findings are made which determine issues sufficient to uphold the judgment, it is not a mistrial or against law to fail or omit to make findings upon other issues, which, if made, would not invalidate the judgment.</p> <p>Id.—Finding op Constructive Fraud — Omission to Find Actual Fraud. — Where a complaint alleges both actual and constructive fraud as grounds for enforcing a reconveyance of real property conveyed by the plaintiff to the defendant, a finding of constructive fraud is sufficient, and a failure to find upon the issue as to actual fraud does not constitute a mistrial, or render the decision against law.</p> <p>Construction op Findings. —If the language of a finding is susceptible of different constructions, one of which is supported by the evidence, and the other not, the appellate court will give to the language that construction which finds such support, rather than a construction which would have the effect to defeat the finding.</p> <p>Constructive Fraud — Breach op Confidential Relation — Husband and Wife — Deed in Lieu of Will — Promise to Reconvey — Violation of Trust.—Where a husband, upon leaving home, makes an absolute deed to his wife instead of a will, relying upon her promise to reconvey the property to him on demand if he should return in safety, her subsequent refusal to reconvey the property upon his return, and demand for a reconveyance, is not merely the breach of an agreement, hut is the betrayal of a confidence and the violation of a trust, constituting a constructive fraud which a court of equity will remedy.</p> <p>Id.—Presumption of Undue Influence — Abuse of Confidence.—. The influence which the law presumes to have been exercised by one spouse over the other is not an influence caused by any act of persuasion or importunity, but is that which is superinduced by the relation between them, and generated in the mind of the one by the confiding trust which he has in the devotion and fidelity of the other. Such influence the law presumes to have been undue, whenever this confidence is subsequently violated or abused.</p>

<p>Appeal from an order of the Superior Court of Orange County striking out a cost-bill.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal —Review of Conflicting Evidence. —Where the evidence is substantially conflicting upon any particular issue, a finding thereon will not be disturbed on the ground of the insufficiency of the evidence to justify it.</p> <p>Id.—Authority of Superintendent of Mining Corporation—Pledge of Bullion — Grant by Corporation. — Where the evidence conflicts as to the authority of the superintendent of a mining corporation to pledge its bullion to a creditor of the corporation, a finding in favor of such authority will sustain a judgment in favor of the pledgee in an action of claim and delivery brought against him by a subsequent purchaser of the bullion from the corporation.</p> <p>Id.—Cost-bill — Order Denying Motion to Retax.—Where the items of costs and disbursements charged in a cost-bill appear to be proper upon their face, and the objections thereto were heard and decided by the trial court upon conflicting evidence, an order denying a motion to re tax costs will be affirmed on appeal.</p>

<p>Appeal from a judgment of the Superior Court of San Benito County.</p> <p>The facts are stated in the opinion.</p>

Separate appeals from part of a judgment of the Superior Court of the city and county of San Francisco, and from the whole judgment. The facts are stated in the opinion of the court.

<p>Estates of Decedents — Action against Executor — Findings — Appeal upon Judgment Roll. — In an action against an executor to recover a balance due upon a mutual account between the testator and the plaintiff, where the items claimed were duly set forth in the claims presented and in the complaint, and the court finds as an ultimate fact that the estate was indebted to the plaintiff in a sum less than the amount claimed, the finding is conclusive upon an appeal from the judgment taken by the executor upon the judgment roll only, and the judgment will be affirmed upon such appeal.</p>

<p>Application to the Supreme Court for a writ of prohibition. The facts are stated in the opinion of the court.</p>

<p>Appeal Bond — Action against Sureties — Pleading — Taking op Appeal — Ultimate and Probative Pacts. — An allegation in a complaint in an action against the sureties upon an undertaking on appeal from the judgment of a justice’s court that the defendant in the action in that court “appealed to the superior court ” from the judgment is a sufficient averment of the ultimate fact that the appeal was taken. The several acts performed in taking the appeal are probative facts, and should not he alleged.</p> <p>Id. — Nature of Appeal — Judgment or Determination. -— Construction of Code — Pleading. — An appeal is not a “judgment or other determination” within the meaning of section 456 of the Code of Civil Procedure, and that section has no application to an averment in a pleading respecting the taking of an appeal.</p> <p>Id. — Pleading — Defective Averment of Complaint Cured by Answer — Dismissal of Appeal —Rendition of Judgment. — An averment in the complaint on such undertaking that the “appeal was dismissed by the superior court, ” if defective because of not meeting the' requirements of section 456 of the Code of Civil Procedure, is cured by an allegation in the answer that the court made an order of dismissal, “which said judgment was duly made, duly rendered, and duly given.”</p> <p>Id. — Failure of Sureties to Justify — Dismissal of Appeal — Liability of Sureties. —The sureties upon an appeal bond cannot avoid their liability thereon by failing to justify after an exception to their sufficiency by the adverse party, and their undertaking to he hound, if the appeal is withdrawn or dismissed, applies to a dismissal of the appeal resulting from their failure to justify.</p> <p>Id.—Construction of Code — Vacation of Appeal — Jurisdiction of Superior Court.—Under section 978 of the Code of Civil Procedure; providing that an appeal from a justice’s court “is not effectual for any purpose unless an undertaking he filed,” and that upon the failure of the sureties to justify within the time allowed by law after an exception to their sufficiency, “the appeal must be regarded as if- no such undertaking had been given,” the failure of the sureties to justify after an exception to their sufficiency does not ipso facto vacate the appeal. That section is merely intended to give respondent the right to move to dismiss the appeal if he shall so choose, and the jurisdiction of the superior court, having attached upon the perfecting of the appeal by the filing of the undertaking, can he divested only by an order of dismissal or some other act of the court.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Robbery — Evidence — Blood upon Coat of Accused •—Competency of Non-expert Witness. — Where it is conceded upon the trial of one accused of robbery that there was blood upon the coat of the accused, a witness who saw the defendant shortly after the alleged robbery is competent to testify that the blood upon the coat was fresh, without showing himself to be an expert.</p> <p>Id. — Proof of Venue. — Proof that an offense was committed in a particular city constitutes sufficient proof of the venue.</p> <p>New Trial —Newly Discovered Evidence — Discretion — Impeachment of Witness. —A motion for a new trial upon the ground of newly discovered evidence is addressed to the sound discretion of the trial court; and where the only office of such evidence is to impeach an adverse witness, it is insufficient for the purposes of a new trial, and an order denying the motion will be affirmed.</p>

<p>Appeal — Review of Conflicting Evidence. — Where the evidence is conflicting, the decision of the trial court is conclusive upon appeal, if there is any sufficient evidence to justify the findings made.</p>

<p>Criminal Law — Assault to Rape — Evidence — Children as Witnesses — Weight op Testimony—Discrepancies — Corroboration.—The fact that there were discrepancies in the statements of children, who were witnesses against a defendant convicted, of an assault with intent to commit rape, does not warrant a reversal of the judgment, where the discrepancies are such as might be expected from their tender age, and there is other evidence to corroborate their account, including the defendant’s own testimony.</p> <p>Id. — Province op Jury—Credibility op Witnesses.—Where the value and weight of evidence depend upon the credibility of the witnesses, it is a matter peculiarly for the jury to determine.</p> <p>New Trial — Newly Discovered Evidence — Discretion — Cumulative and Conflicting Evidence — Evidence Known before Trial. — The granting or denying of a motion for a new trial on the ground of newly discovered evidence is within the sound discretion of the trial court, and its refusal to grant it will not be reversed, where the evidence is all cumulative or simply contradictory of the testimony of the prosecution, and counter-affidavits show that unless the testimony is false the defendant must have known of it and of the witness before the trial.</p> <p>Id. — Want of Diligence — Counter-affidavits.—Upon a motion for a new trial upon the ground of newly discovered evidence, counter-affidavits may be used to show that due diligence has not been used.</p>

<p>Mandamus — Insufficient Petition — Supervisors — Roads — Removal of Obstructions — Repair — Non-abandonment.—A petition for a writ of mandate to compel the hoard of supervisors of a county to clear from obstructions and keep in repair a portion of a road situated in the county is fatally defective if it fails to show that the obstructed road had not been abandoned and discontinued by the hoard.</p> <p>Id. — Request to Road Commissioner or Road Overseer. —The omission of the petition to state that the attention of the road commissioner or road overseer had been called to the alleged obstruction, or that either of them had been asked to have the obstructions removed, as provided for in sections 2845, 2731 et seq., of the Political Code, renders the petition insufficient.</p> <p>Id. — Parties — Road Overseer. — The road overseer is a necessary party to a petition for a writ of mandate to compel the keeping of a road free from obstructions and in good repair.</p> <p>Id. — Writ of Mandate, when Allowable.—Writs of mandate are issued only to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.</p>

the city and county of San Francisco, and from an order denying a new trial.

<p>Dismissal of Action — Filing of Dismissal by Plaintiff — Right to Judgment. Under section 581 of the Code of Civil Procedure, providing for the dismissal of actions, the plaintiff has the right to have the action dismissed at any time before trial upon the mere filing of the dismissal, and to have judgment entered thereon accordingly, if no counterclaim has been made or affirmative relief sought by the cro-is-complaint or answer of the defendant, at the time of filing the dismissal.</p> <p>Id. — Answer after Filing Dismissal — Motion for Judgment of Dismissal— Cross-complaint — Striking out Pleadings.—Where the plaintiff has filed a dismissal before the service of summons or appear- ■ anee of the defendant, and has served and filed notice of a motion to strike out an answer theieafter filed, and for the entry of a judgment of dismissal nunc pro tunc as of the date of filing the dismissal, he cannot be deprived of his right to the judgment of dismissal by the filing of a cross-complaint hy the defendant before the hearing of the motion, and the court should grant the motion, and strike the cross-complaint as well as the answer from the files.</p> <p>Id. — Relation of Order and Judgment to Notice of Motion — Relative Speed of Parties. —An order granting a motion for a judgment of dismissal, and the judgment entered pursuant to the order, relates to the first step taken in its procurement, and is to be regarded as having been made at the date of the notice of motion; and the right to have the motion granted does not depend upon the relative speed of the parties in procuring the first hearing before the court.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are stated in the opinion.</p>

<p>Judgment Lien — Form of Docket Entrt — Designation of Amount — Line Distinguishing Dollars from Cents.—A statement of the amounts of a judgment entered in the judgment docket by placing the figures under the heading “ Amount of judgment,” one of the amounts being preceded by the word “costs,” and the last two figures of each amount being separated from the others, in the manner usual in account-books, by a vertical red line separating dollars from cents, without any dollar-mark or other designation of money, is a sufficient statement of the amount of the judgment to create a lien under section 672 of the Code of Civil Procedure.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.</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, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Lassen County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

Appeals from an interlocutory decree of the Superior Court of the city and county of San Francisco, and from an order denying a new trial. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Los Angeles CounLy, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County granting a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new ' trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>New Trial — Notice of Intention — Sufficiency of Contents — Effect of Stipulation as to Statement. — A notice that the defendant “ intends to and will move this court to setjaside the decision and judgment heretofore rendered, entered, and made in said cause,” setting out as grounds relied on for the motion three of the grounds for new trial specified in section 657 of the Code of Civil Procedure, and stating that the motion will he made upon a statement of the case, is sufficient as a notice of intention to move for a new trial; and where the respondents’ attorneys stipulated to give the defendant further time “ within which to prepare and serve his statement on motion for a new trial,” they cannot object that they were misled by the form of the notice.</p> <p>Findings—Relation to Pleadings — Evidence Unobjected to.—A finding Will be held within the issues, if the pleadings, though too general and indefinite, might include the matter found, and evidence was received without objection which sustains the finding.</p> <p>Appeal — Objection for First Time.—An objection to evidence which might have been obviated by amendment in the court below cannot be interposed for the first time upon appeal.</p> <p>Building Contract—Breach by Owner—Measure of Damages—Loss of Profits — Expenditures. — Where a contractor agreed to perform certain work and furnish certain materials for the construction of a building, and after furnishing a portion of the materials the owners of the building failed to resume work upon the building, or to receive any further material from the contractor, the latter may recover not only the profits he would have made by performance, but is also entitled to recover for expenditures made in preparing to do the work.</p> <p>Id. — Payment of Expenditure after Commencement of Suit — Compromise with Employee. — The fact that money paid to an employee of the contractor, whose work was stopped, was paid after suit brought against the owner of the building for breach of the contract, and that the owner of the building had no contract with the employee, and was not consulted as to the settlement, does not affect the contractor’s right to recover for the expenditure incurred, where it appears that the compromise was a reasonable one, and the settlement was advantageous to the owner of the building.</p> <p>Id. —Amount of Recovery—Appeal—Error not Appearing from Record— Affirmance of Judgment. — Where the building contract was for a lump sum, and there is nothing in the record upon which to base an estimate of the value of specific materials contracted for, or the cost of performance and the profits, and the evidence shows what would probably have been the profits arising from a full performance of the contract, and the recovery is for a less sum than the estimate given, the judgment will be affirmed.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Santa Barbara County,</p> <p>The facts are stated in the opinion of the court.</p>

<p>Ejectment — Inconsistent Surveys — Conflict of Evidence.—In an action of ejectment, the judgment is affirmed for the reason that the evidence is conflicting as to the accuracy of the surveys of the land in dispute.</p>

<p>Appeal—Presumptions in Favor op Judgment. —Upon an appeal from a judgment upon the judgment roll alone, all intendments will he made in support of the judgment, and all proceedings necessary to its validity will be presumed to have been regularly taken.</p> <p>Id. — Matter Dehors the Record — Bill op Exceptions. — Any matter dehors the record, relied on to destroy the presumptions in favor of the judgment, upon an appeal therefrom, must he embodied in a bill of exceptions; and if any matters could have been presented to the court below which would have authorized the judgment, it will he presumed that they were presented, if the record does not show the contrary.</p> <p>Id. —Claim and Delivery op Personal Property — Alternative Judgment — Presumption upon Appeal. — In an action for the recovery of specific personal property, if the jury find that the plaintiff is entitled to the possession, they are not required to find the value of the property, if it has been delivered to the plaintiff; and where a judgment is entered in favor of the plaintiff for the possession of the property, without an alternative judgment for its value in case delivery cannot be had, it will be presumed, upon appeal from the judgment, in the absence of any bill of exceptions, that it appeared at the trial that the plaintiff had already obtained possession of the property sued for.</p>

<p>Appeal from an order of the Superior Court of San Diego County vacating a judgment as to costs, and refusing to relieve the defendant from default.</p> <p>The facts are stated in the opinion.</p>

<p>Attachment — Strict Pursuance of Statute. — Attachment proceedings are special and statutory, and the provisions of the statute must be strictly followed, or no rights will be acquired thereunder.</p> <p>Id.—Garnishment — “Credits” not Inclusive of “Debts.”—A garnishment of ‘'certain credits belonging to the defendant,” which a corporation has in its possession or under its control, is not an attachment of a debt due from the corporation to the defendant, within the meaning of sections 542-546 of the Code of Civil Procedure, and the attaching creditor acquires no lien upon or right to such debt by the service of the writ.</p> <p>Id. — Distinction of “Debts” from “Credits”—Definition—Construction of Code. — “Debts” aud “credits” are separate and distinct things, within the meaning of the Code of Civil Procedure relating to attachments. A “ debt ” is money owing by the garnishee to the defendant which may be paid over to the sheriff, while credits are something belonging to the defendant, hut in the possession and under the control of the garnishee, such as promissory notes or other evidences of indebtedness of third parties, which may he delivered up or transferred to the sheriff</p>

<p>Appeal from a judgment of the Superior Court of Alameda County.</p> <p>The facts are stated in the opinion.</p>

<p>Mechanic’s Lien — Notice of Claim — Reference to Recorded Contract. — A notice of lien of a material-man which refers to the contract between the contractor and the owner of the building for the terms of making payments to the material-man, which were to be made at the time when payments become due the contractor, is not invalidated because it does not repeat the provisions of the contract on that subject, where the contract, being for more than one thousand dollars, has been duly recorded, and the terms of payment can be ascertained therefrom.</p> <p>Id. — Validity of Recorded Contract—-Description of Property.— A recorded contract between a contractor and the owner of a building to be erected for a price of more than one thousand dollars is not required by the statute to contain a description of the property to he affected thereby, and a failure to insert the description will not invalidate it.</p> <p>Id. — Time of Pinal Payment. —The statutes of this state do not make a building contract void upon any other default than a failure to record it, if the price is more than one thousand dollars; and it is not rendered void by the fact that the final payment is to become due thirty days after the completion of the building, instead of thirty-five days thereafter, as required by section 1183 of the Code of Civil Procedure.</p> <p>Id.—Non-conformity of Valid Contract with Statute — Rights of Lienors — Penalty — Immaterial Variance. —Although, in case of a material non-conformity of a building contract with the statute in .particulars not rendering it void, material-men and laborers may recover the amount of their liens from the owner of the building, irrespective of the amount due under the contract, yet this is in the nature of a penalty, which every reasonable intendment must be made to avoid; and the substitution of thirty days after the completion of the building, instead of thirty-five days, for the time of the final payment is not such a substantial non-conformity with the statute as will impose such liability upon the owner.</p> <p>Id.—Verification of Claim of Lien — Unfilled Blank—Name of Affiant.—A claim of lien was subscribed “Williams & Whitmore,” and immediately following the signature was a verification which commenced thus: “-, being duly sworn, deposes and says that he is one of the persons named asWdliams & Whitmore in the foregoing claim of lien,” etc., and which was signed by “A. C. Williams,” and attested as having been subscribed and sworn to before an authorized officer. Held, that the verification shows who was sworn, and is sufficient.</p>

<p>Sale — Breach of Contract—Failure to Deliver at Time Agreed — Evidence — Contract for Resale — Market Value.—In an action for a breach of contract in not delivering goods sold at the time agreed upon, evidence of the buyer as to the price agreed upon between himself and third persons, to whom he had contracted to resell the goods, is incompetent to establish their market value.</p> <p>Id.—Depreciation in Value after Delivert.—Evidence in such action tending to show a depreciation in the market value of the goods sold subsequent to the date of the delivery is inadmissible.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Evidence — Confession. — A defendant charged with crime cannot be convicted upon his confessions alone.</p> <p>Id. —Forgery of Check — Firm Name-—Evidence. —On a trial for the forgery of a check purporting to be signed by a firm name, it is necessary to prove that there was such a firm in existence and that the check was not signed by it, or that the firm did not exist and that the check was fictitious.</p> <p>Id. — Non-Existence of Firm — Fictitious Check — Pleading — Evidence-Penal Code. —If there is no such firm in existence as that the name of which is signed to the check, then the check is a fictitious one, and the prosecution should be had under section 476 of the Penal Code, with allegations and proof that the check was fictitious, and that the defendant knew that fact, and not under section 470 of that code.</p> <p>Id. —Mistake in Name of Firm. — A person charged with forging a check signed by a firm name cannot be convicted under section 470 of the Penal Code, if there is no firm of that name, although he may have signed such firm name by mistake, intending to designate a firm of different name, believing the name signed to be the correct name, but he is guilty in such case of making and passing a fictitious check, and should be prosecuted under section 476 of the Penal Code.</p> <p>Id. — Criminal Intent. — The law does not recognize a man’s criminal indention as a crime, and he can only be prosecuted for an offense actually committed, and not for an offense he may have intended to commit.</p> <p>Id. — Misleading Instructions. — Where different instructions given, when taken together, must have tended to confuse and cloud the minds of the jury, it is ground for reversal of a judgment convicting a defendant of crime.</p>

<p>Mechanic’s Lien — Variance between Notice of Claim and Contract — Reasonable Value — Special Contract — Finding — Insufficiency of Evidence. — A finding that a notice of claim of lien filed by a material-man was “ in due form as required by law ” is not sustained by the evidence, where the notice stated that the materials were to be paid for on the basis of what they were reasonably worth, and the evidence shows that part of them were furnished at an agreed price, and the remainder without any agreement as to price, though it is testified that they were all reasonably worth the amount charged; nor does such evidence sustain a finding of an agreement to pay for them all at what they were reasonably worth.</p> <p>Id.—Stopping Work under Special Contract—Claim for Reasonable Value. —Where a notice of claim of lien stated that the agreement between the claimant and the owner of the building was, that the claimant “was to be paid for the labor done and furnished at what it was reasonably worth, to be paid for when the work ceased,” and the evidence showed that the claimant had an express contract to do the work for a specified sum, and that he did a-portion of it, and stopped because the owner refused to pay him, the variance between the notice of lien and the actual contract proved is fatal.</p> <p>Id. — Name of Employer — Immaterial Variance. — Where the notice of claim of lien stated that the materials were furnished to a contractor, and that the claimants were employed by both the contractor and the owner of the building to furnish them, and the evidence showed that the owner alone originally contracted with the claimants to furni-sh the material, but that it went into the building that the contractor was erecting for the owner, and for which he got it from the material-men, and that the contractor admitted his liability therefor by giving orders for part payment drawn on the owner, which were paid, the variance between the claim of lien and contract proved is immaterial, and cannot injure the owner.</p> <p>Id. — Statement of Usual Price — Reasonable Value at Claimant’s Place of Business — Payment on Delivery. — A notice of claim of lien by material-men which states that the price agreed upon was “ the usual price, and what said materials were reasonably worth at their place of business,” states, in legal effect, a contract that the materials were to be paid for on delivery at what they were reasonably worth.</p> <p>Id. —Evidence — Reasonable Value —Agreement to Pay on Delivery. — Such claim is sufficiently sustained by proof that the materials asked for were furnished on order of the architects, and used in the building, and were reasonably worth a certain sum, no part of which has been paid, and it is unnecessary to prove an express agreement to pay for them at the time of delivery.</p> <p>Id. — Claim Recognizing Valid Contract — Pleading—Complaint Alleging Void Contract — Purchase by Contractor as Agent — Immaterial Variance. —No material variance between the notice of claim of lien and the complaint of foreclosure appears merely because the notice treated the contract between the owner and contractor as valid, and did not allege that the contract or a memorandum thereof was not filed, but stated that the contractor purchased the materials both as contractor and as agent of the owner, while the complaint alleged that the contract was void for want of filing, and that the contractor purchased the materials as agent only for the owner.</p> <p>Id. — Foreclosure — Pleading — Support of Finding — Use of Materials in Building. — An allegation in the complaint of foreclosure that the claimants sold and delivered to the owner of the building “certain hardware and building material to be used in the erection and construction of said building, and affixed and attached thereto,” is, in the absence of a special demurrer, a sufficient allegation that the materials were used in the building to support a finding to that effect.</p> <p>Id. ■— Subcontract — Record — Construction of Code. — The contract of a mere subcontractor and material-man is not required to be in writing or recorded, under section 1133 of the Code of Civil Procedure, although it is over one thousand dollars.</p> <p>Id. — Time for Claim of Lien — Completion of Building — Cessation of Work by Contractor. —Where the contractor had ceased to work upon the building for thirty days before the lien claims of subcontractors and material-men were filed, the building is deemed complete in legal contemplation, and the filing of the claims is not premature.</p> <p>Id. — Commencement of Work before Filing of Contract — Finding — Insufficiency of Evidence. — Where the claimant’s memorandum of contract was filed at 10:30, A. M., and the evidence shows that if any work at all was commenced before the filing, it was of the most trivial nature, and was not commenced until 8 or 8:30, A. St., of the same day, a finding that the work was commenced before the filing of the memorandum is not sustained by the evidence.</p> <p>Id.—Record—■ Plans and Specifications. —A contract between an owner and contractor for the erection of a building, made since the amendment of 1887 to section 1183 of the Code of Civil Procedure, is not rendered invalid by a failure to file in the recorder’s office the plans and specifications for the building.</p> <p>Id.—Sufficiency of Original Contract—• Terms of Payment—Payments for Materials and Labor. — Where the contract between the owner of the building and the contractor provided that the owner would, upon the written order of the contractor, pay the material-men for materials furnished as soon as the material should be actually worked into the building, and also pay the mechanics and laborers upon the building weekly, the payments are specific enough as to time and amounts to comply substantially with the statute.</p> <p>Id. —Verification of Claim of Lien. — The verification to a claim of lien is sufficient if it states that the claim is true, and it need not set out the particulars contained in the body of the claim.</p> <p>Id. —Liability of Owner of Building-—Neglect to Retain Percentage from Contractor. — The neglect of the owner of the building to retain for thirty-five days after the final completion of the work and contract, and to pay over to those entitled thereto, twenty-five per cent of the contract price, renders him responsible to such persons to that extent, less any lawful credits the owner may be entitled to under section 1200 of the Code of Civil Procedure or otherwise.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street Improvements — Construction of Statute — Election of Owners of Frontage — Authority of Superintendent of Streets — Premature Contract — Void Assessment. — Under section 5 of the act of March 18, 1885, authorizing street improvements, which provides that after the contract has been awarded, notice of the award shall be posted for five days, and that within ten days after the first posting the owners of the major part of the frontage upon the street to be improved may elect to take the work, and enter into a contract to do the work at the price awarded, hut if they fail so to elect, the superintendent of streets must enter into a written contract with the original bidder, the superintendent has no authority to contract with the original bidder until ten days after the first posting of the notice, and a contract so entered into before the expiration of the ten days is without authority and void, and cannot he the basis of a valid assessment.</p> <p>Id. — Foreclosure of Street Assessment — Evidence — Contract for Improvement — Bond — Prima Facie Case — Rebuttal by Defendant. — Although the award, assessment, and diagram, with the affidavit of demand and non-payment, when offered by the plaintiff in an action to foreclose a street-assessment lien, are prima facie evidence that a valid contract was entered into for the street improvement for which the assessmen fc was made, it is competent for the defendant, who denies the contract, to overcome the effect of such evidence; and documentary proof from the office of the superintendent of streets, showing that the original contract on file therein was prepared for execution by both parties, and was not signed by the superintendent, and that the bond on file was in blank, without specifying the names of obligors or the penalty, or any contract for specific work, and without date, is admissible for the defendant, as tending to show that no contract for doing the work had been entered into by the superintendent.</p> <p>Id. — Defects Defeating Contract — Waiver — Appeal from Assessment. — An objection to the correctness of the proceedings upon a street assessment, by reason of defects defeating the validity of the contract for the street improvement, is not waived by the failure of the owner whose property is sought to be charged to appeal to the city council from the assessment, the defects being such that the council could not remedy or avoid them upon such an appeal.</p> <p>Id. — Incurable Defects — Construction of Statute. — The provision of section 11 of the act of March 18, 1885, authorizing street improvements, to the effect that no assessment shall be held invalid except upon appeal to the city council, etc., does not apply to a case in which an appeal is not authorized, or in which, if taken, the council could not have remedied the defect, the assessment being void by reason of incurable defects.</p> <p>Id. — Estoppel of Owner — Decision upon Appeal — Assailing Jurisdiction of City Council. — An owner appealing to the city council in the ease of an assessment void for incurable defects cannot be estopped by a denial of relief upon such appeal; and even if the council should expresdy determine that the assessment was valid and the proceedings regular, their jurisdiction being limited and special, it may he shown that the facts conferring jurisdiction upon them to determine the question did not exist.</p> <p>Id. — Foreclosure of Street Assessment — Judgment for Deficiency. — A judgment of foreclosure of a street-assessment lien which provides for a personal judgment against the defendant for any deficiency that might remain after a sale of the lot assessed is unauthorized and erroneous.</p>

Application to the Supreme Court for a discharge upon a writ of habeas corpus. The facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of San Bernardino county denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order of injunction.</p> <p>The facts are stated in the opinion of the court.</p>