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Full text of "Reports of cases determined in the District Courts of Appeal of ..., Volume 43"

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REPORTS OF CASES 



DETERMINED IN 



THE DISTRICT COUBTS OF APPEAL 



Of THE 



STATE OF CALIFORNIA 



FROM AUGUST 26, 1919, TO OCTOBER 28, 1919 



RANDOLPH V. WHITING 

REPORTER 



FEED L. STEWART 
HENRY P. WRIGLEY 
WILLIAM F. TRA VERSO 

ASSISTANT REPORTERS 



VOLUME 43 



SAN FBANCI800 

BANCROFT-WHITNEY COMPANY 

1922 



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Copyright 1922 
ST 

(BAtfCBOFT-WHlTNEY COMPANY 



San Fbancisoo 

Thx Filmer Brothers Electrotype Coicputt 

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DISTRICT COURTS OF APPEAL 



First Appellate District. 
(San Francisco) 

Division One. 

William H. Waste Presiding Justice 

Frank H. Kerrigan Associate Justice 

John E. Richards Associate Justice 

Division Two. 

W. H. Langdon Presiding Justice 

F. S. Brittajn Associate Justice 

Thos. E. Haven 1 Associate Justice 

John T. Noursb* Associate Justice 

J. B. Martin Clerk 

Walter S. Chisholm Deputy Clerk 

Willard W. Shea Deputy Clerk 

Counties of the First Appellate District — San Francisco, 
Marin, Contra Costa, Alameda, San Mateo Santa Clara, 
Fresno, Santa Cruz, Monterey and San Benito. 



Seoond Appellate District. 
(Los Angeles) 

Division One. 

Nathaniel P. Coneby Presiding Justice 

William P. James Associate Justice 

Victor E. Shaw Associate Justice 

Division Two. 

Frank G. Finlayson Presiding Justice 

W. A. Sloans Associate Justice 

W. H. Thomas Associate Justice 

W. D. Shearer Clerk 

H. C. Lillib Deputy Clerk 

Counties of the Second Appellate District — San Luis Obispo, 
Kings, Tulare, Inyo, Kern, Santa Barbara, Ventura, San 
Bernardino, Los Angeles, Orange, Riverside, Imperial and 
San Diego. 

i Resigned. 

a Appointed September % 1919, in plaee of Thos. B. Haven, resigned, 

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iv District Courts op Appeal. 



Third Appellate District. 

(Sacramento) 

N. P. Chipman Presiding Justice 

A. G. Burnett Associate Justice 

E. G. Hart Associate Justice 

John T. Stafford Clerk 

Cavins Hart Deputy Clerk 

Counties of the Third Appellate District— Del Norte, Siski- 
you, Modoc, Humboldt, Trinity, Shasta, Lassen, Tehama, 
Plumas, Mendocino, Lake, Colusa, Glenn, Butte, Sierra, 
Sutter, Tuba, Nevada, Sonoma, Napa, Yolo, Placer, Solano, 
Sacramento, El Dorado, San Joaquin, Amador, Calaveras, 
Stanislaus, Mariposa, Madera, Merced, Tuolumne, Alpine and 
Mono. 



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TABLE OF CASES— VOL. 43 



Albers Bros. Milling Company, City of Oakland ▼. 191 

Al. G. Faulkner Company, Kranzthor ▼. 441 

Alles ▼. City of Venice 568 

Ambrose ▼. Hammond Lumber Company 597 

American Improvement Co. v. Lilienthal 80 

American Trust ft Banking Company v. Union Security Company. . 126 

Arnold, Curtis ▼ 97 

t. Asels 574 



Bakersfield City Council, Sidler ▼ 849 

Barber v. Superior Court of San Diego County 221 

Barboza ▼. Conselho Supremo da Irmandade do Divino Espirito 

Santo do Estado da California 775 

Barlow, San Joaquin Light ft Power Company v 241 

Barndt, Bishop 149 

Bayside Land Company ▼. Phillips 255 

Beck, Rogers Brothers Company v 110, 799 

Bell v. German American Trust ft Savings Bank 402 

Benson, Bobben v 204 

Bishop ▼. Barndt 149 

Blackburn v. Marple 141, 236 

Blakeley v. Bryson 735 

Board of Education of Pasadena High School District, West v.. 199 

Bodkin, Edwards v 405 

Bonnarjee v. Pike 502 

Bowie, Stewart v 751 

Bourne v. Bourne 516 

Boyle, Miller v 39 

Boyle, Beid v 34 

Bradford Baking Company v. Weber Baking Company 570 

Braun, Bryant ft Austin v. City of Venice. 568 

Bridge, Murphy v 87 

Brown v. White 363 

Bryson, Blakeley v 735 

Bump, Rosenberg v 376 

Bunting, Petersen v 707 

Burnett Estate Company, Calvert v 456 

Burns v. Southern Pacific Company 667 

Burr, Swartz ▼ 442 

Bush, Turner v 309 

00 



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Table of Casks— Vol. 43. 



California Home Extension Association, Van Demark t 685 

Calvert v. O. G. Burnett Estate Company 456 

Cambridge v. Bamser 722 

Caprile, Nannizzi v. 498 

Carl v. McDougal 279 

CawBton Ostrich Farm, Salomon v 466 

Chase t. Oehlke 485 

Chase r. Peters 226 

City Council of City of Bakersfleld, Sidler t 849 

City of Oakland v. Albers Bros. Milling Co 191 

City of Venice, Alles t 568 

City of Venice, Braun, Bryant k Austin t 568 

City of Venice, Leake v 568 

Cole, Nezik v 180 

Commercial Security Company v. Modesto Drug Company 162 

Conselho Supremo da Irmandade do Divino Espirito 8anto do 

Estado da California, Barboza t 775 

Coombs y. Reynolds 656 

Crane, Fox v 659 

Curtis y. Arnold 97 

De Bock y. De Bock 283 

Deems, Spencer v 601 

Dibble, Morgan v 116 

Drake v. Tucker 53 

Drew y. Superior Court of Mendocino County 651 

Dupes y. Dupes 67 

Eades t. Los Angeles Railway Corporation 259 

Eddy y. Stowe 789 

Edwards v. Bodkin 405 

Ehrhart v. Mahoney 448 

Estate of King 807 

Estate of Mauvais 779 

Excelsior Cereal Milling Company y. Taylor Milling Company.... 591 

Faulkner Company, Kranzthor v 441 

Ferguson, Tevis v 779 

Figone v. Guisti 606 

Findley y. Lindsay 158 

Fox y. Crane 559 

Fox, People v 899 

Frazier, People v 762 

Gates y. Kehlet 788 

German American Trust k Savings Bank, Bell v 402 

Gernhardt v. Industrial Accident Commission 484 

G. G. Burnett Estate Company, Calvert v 456 



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Table op Gases — Vol. 43. vii 

Giannini, Whiteomb y 229 

Gilman, People ▼ 451 

Golden State Syndicate, Smith ¥ 346 

Gommet, Varroia y 756 

Gould v. Van Home 145 

Great Western Milling Company, Helme ▼ 416 

Greene t. Moore 91 

Greenleaf y. Pacific Telephone and Telegraph Company 691 

Guardian Casualty ft Guaranty Company, Norman B. Livermore & 

Co. y , .,.„, 549 

Guisti, Figone ▼ , , 606 

Hammond Lumber Company, Ambrose r... 697 

Hannas, Hegel y 218 

Hayashi t. Pacific Fruit Exchange 677 

Hegel v. Hannas 218 

Hellman Commercial Trust ft Savings Bank, Murphy v 579 

Helme v. Great Western Milling Company 416 

Hilaon, Pasqualetti v • 718 

Hittaon, In re • 462 

Holsapple, Rogers Brothers Company y 800, 801 

Hunt t. Industrial Accident Commission 873 

Hunt, Shepard y 680 

Industrial Accident Commission, Gernhardt y 484 

Industrial Accident Commission, Hunt v 873 

Industrial Accident Commission, Lauzier v 725 

Industrial Accident Commission, Western Indemnity Company v.. 487 

In re Hittaon 462 

In re Lowrie 564 

Israel v. Superior Court of San Diego County 711 

Johnson ▼. Nelson • 113 

Jones, Moulton Irrigated Lands Company y 732 

Kaufman, McComish y 507 

Kehlet, Gates v 738 

Keyes v. Nims 1 

Kimball Company y. Bead 342 

King, Estate of 807 

King y. Wright 21 

Kranzthor y. AL G. Faulkner Company 441 

Laux y. Los Angeles Stove Co 801 

Lauzier v. Industrial Accident Commission 725 

Leake v. City of Venice 568 

Lehman, Standard Auto Sales Co. v 763 

L. E. White Lumber Company, O'Brien v. 4 . . ,. . . 703 



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viii Tablb of Cases — Vol. 43. 

Lilienthal, American Improvement Co. t • . 80 

Lindsay, Findley y 158 

Livermore & Company v. Guardian Casualty & Guaranty Company. . 549 

Los Angeles Investment Company, Winkler ▼. 408 

Los Angeles Railway Corporation, Eades Y 250 

Los Angeles Stove Co., Lanx v 801 

Lowrie, In re 564 

MacSwain v. Wright 21 

Macy, People v 479 

Mahoney, Ehrhart v 448 

Malter, Simpson v • 662 

Marple, Blackburn v 141, 236 

Martin, Pence ▼ 626 

Martinez, People v 746 

Mathews v. Savings Union Bank & Trust Co 45 

Mauvais, Estate of 779 

McComish v. Kaufman 507 

McDougal, Carl v 279 

McDougall ▼. Roberts 558 

Mcintosh, Tormey v 411 

McKenzie v. Nichelini 194 

McWilliams, Stone v 490 

Mercantile Trust Company of San Francisco v. Stockton Terminal 

and Eastern Railroad Co 512 

Miller v. Boyle 39 

Modesto Drug Company, Commercial Security Company v 162 

Moore, Greene v 91 

Morgan v. Dibble 116 

Morosco, Standing v 244 

Moss Beach Realty Co., Rich v 742 

Mott v. Wright 21 

Moulton Irrigated Lands Company v. Jones 732 

Murphy v. Bridge 87 

Murphy v. Hellman Commercial Trust ft 8avings Bank 579 

Nannizzi v. Caprile 498 

Nelson, Johnson v 113 

Nezik v. Cole 130 

Nichelini, McKenzie v 194 

Nims, Keyes v 1 

Norman B. Livermore & Co. v. Guardian Casualty & Guaranty 

Company 549 

North Pacific Steamship Company v. Terminal Investment Com- 
pany 182 

Oakland, City of v. Altera Bros. Milling Co 191 

O'Brien v. L. B. White Lumber Company 703 



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Table or Cases— Vol. 43. ix 

Oehlke, Chase t 435 

Orbison, Park t 74 

Park y. Orbison . 74 

Pasadena High 8chool District of Los Angeles County, West y.. 199 

Pacific Fruit Exchange, Hayaahi v . 671 

Pacific Surety Co., Tulare County Power Co. y 315 

Pacific Telephone and Telegraph Company, Greenleaf y 691 

Pasqualetti y. Hilson 718 

Peck, People t 638 

Pence ▼. Martin 626 

People r. Fox 399 

People t. Frazier 762 

People r. Gilman 451 

People t. Macy 479 

People T. Martinez 746 

People v. Peck 638 

People r. Razo 251 

People t. 8artori 804 

People t. Schroeder 623 

People v. Scott 439 

People t. Shwartx 696 

People v. Wagner 248 

People y. Williams 60 

Peters, Chase y 226 

Petersen v. Bunting 707 

Phillips, Bayside Land Company y 255 

Pike, Bonnarjee y 502 

Piatt Produce Company, Yoshizumi y 673 

Pratt t. Pratt 261 

Bamser, Cambridge ▼ • 722 

Bauer, 81ater v 748 

Bazo, People y 251 

Bead, W. W. Kimball Company y 842 

Beed, Williams ▼ 425 

Beid ▼. Boyle 84 

Reynolds, Coombs v 656 

Bich t. Moss Beach Realty Co 742 

Bobben v. Benson 204 

Roberts, McDougall y 553 

Rogers Brothers Company v. Beck 110, 799 

Rogers Brothers Company y. Holaapple 800,801 

Rosenberg y. Bump 876 

Bossbach v. Superior Court of Los Angeles County 729 

Boesiter y. Schultz 716 

Salomon y. Cawston Ostrich Farm 465 

Ssa Joaquin Light & Power Company y. Barlow 241 



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Table op Cases— Vol. 43. 



Barton, People r • 804 

Savings Union Bank and Trust Company, Mathews v 46 

Schroeder, People v • 62S 

Schultz, Bossiter v 716 

8cott, People v 439 

Security Commercial ft Savings Bank of San Diego v. Seitz 353 

Seitz, Security Commercial ft Savings Bank of San Diego v 353 

Shepard v. Hunt 630 

Shwartz, People v 696 

Sidler v. City Council of City of Bakersfield 349 

Simpson v. Malter 662 

8impson v. Smith 94 

Slater v. Rauer 748 

Smith v. Golden 8tate Syndicate 346 

Smith, Simpson v 94 

Southern Pacific Company, Burns r 667 

Southwestern Building Company, Terry v 366 

Spencer v. Deems • 601 

Standard Auto Sales Co. v. Lehman 7G3 

Standing v. Moroseo 244 

Stewart ▼. Bowie 751 

Stockton Terminal and Eastern Railroad Co., Mercantile Trust 

Company of San Francisco v 512 

Stone v. McWilliams 490 

Stowe, Eddy v 789 

Superior Court of Lake County, Yolo Water ft Power Co. v 332 

Superior Court of Los Angeles County, Rossbach v 729 

Superior Court of Mendocino County, Drew ▼ 651 

Superior Court of San Diego County, Barber v 221 

Superior Court of San Diego County, Israel ▼ 711 

Superior Court of San Joaquin County, Takeba v 469 

Swarts ▼. Burr 442 

Takeba v. Superior Court of San Joaquin County 469 

Taylor Milling Company, Excelsior Cereal Milling Company v.... 591 

Telander v. Tujunga Water ft Power Co 492 

Terminal Investment Company, North Pacific Steamship Company v. 182 

Terry v. Southwestern Building Company 366 

Tevis v. Ferguson 779 

Thomas, Thompson v.. 588 

Thompson v. Thomas 588 

Tormey v. Mcintosh 411 

Tucker, Drake ▼ 53 

Tujunga Water ft Power Co., Telander v 492 

Tulare County Power Co. v. Pacific Surety Co 315 

Turner ▼. Bush 309 

Union Security Company ?. American Trust and Banking Com- 
pany v. 126 



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Table of Cases — Vol. 43. 



VaUejo High 8chool District of 8oUno County ▼. White 859 

Van Demark v. California Home Extension Association 685 

Van Home, Gould v 145 

Varrois ▼. Gommet 756 

Venice, City of, Alles ▼ 568 

Venice, City of, Braun, Bryant ft Austin t 568 

Venice, City of, Leake t 568 

Wagner, People ▼ 246 

Weber Baking Company, Bradford Bakix.g Company ▼ 570 

Webster v. Webster 772 

West ▼. Board of Education of Pasadena High School District.. 199 

Western Indemnity Company v. Industrial Accident Commission.. 487 

Whitcomb v. Giannini 229 

White, Brown ▼ 363 

White, Vallejo High 8cL'«ol District of Solano County v 359 

White Lumber Company, O'Brien v 703 

Williams, People ▼ 60 

Williams v. Reed 425 

Winkler ▼. Los Angeles Inrestment Company 408 

Wright, King t 21 

Wright, MacSwain t 21 

Wright, Mott v 21 

W. W. Kimball Company t. Bead 342 

Yolo Water and Power Co. ▼. Superior Court of Lake County.... 332 
Yoshizumi v. Piatt Produce Company 673 



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TABLE OF GASES CITED— VOL. 43. 



A. Booth & Go. y. Weigand, 30 Utah, 135 345 

Acme Lumber Co. v. Wessling, 19 Cal. App. 406 31 

Adams v. Seaman, 82 Cal. 636 561 

Adams v. Wallace, 119 Cal. 67 584,586 

Agar ?. Winslow, 123 CaL 587 189 

Agard v. Valencia, 39 CaL 292 121 

Allen v. Pockwitz, 103 Cal 85 688 

Ailpeter ?. Postal Tel. Jb Cable Co., 26 Cal. App. 705 141 

Alta Land & Water Co. v. Hancock, 85 Cal. 219 57 

American Amusement Co. v. East Lake Chutes Co., 174 Ala. 526.. 345 

Anaheim Union Water Co. v. Fuller, 150 CaL 332 58 

Anderson, In re, 23 Fed. 482 93 

Anderson v. Kinley, 90 Iowa, 554 446 

Anglo -California Bank v. Grangers Bank, 63 CaL 359 130 

Arguello v. Bours, 67 Cal. 447 155 

Armstrong t. Lowe, 76 Cal. 616 749, 750 

Arnold v. Krigbaum, 169 Cal. 147 109 

Arnold v. Loomis, 170 CaL 95.. 759, 761 

Ashcroft Estate Co. v. Nelson, 26 Cal. App. 400 585 

Astin v. Chicago etc. Co., 143 Wis. 477 420 

Atkinson v. Goodrich etc. Co., 60 Wis. 141 620 

Bacon v. Davis, 9 Cal. App. 33 750 

Bailey v. Aetna Indemnity Co., 5 Cal. App. 744 414 

Bailey v. Bidwell, 13 Mees. AW. 73 181 

Baird, In re, 112 Fed. 960 93 

Baker v. Eilers Music Co., 26 Cal. App. 371 438, 741 

Balfour v. Fresno Canal Co., 123 Cal. 397 446 

Balfour etc Ins. Co. v. Sawday, 133 CaL 228 429 

Bancroft v. Bancroft, 110 Cal. 379 556 

Bank v. Gleichmann, 50 Okl. 441 562 

Bank ot Healdsburg v. Bailhache, 65 CaL 327 174 

Bank of Woodland v. Herron, 122 Cal. 107 622 

Banzhof v. Chase, 150 Cal. 180 574, 596 

Bargewell v. Daniel, 98 L. T. Bep. 257 727 

Barlow v. Barnes, 172 CaL 98 520, 539, 540 

Barnes v. Barnes, 95 CaL 171 73 

Bartlett Estate Co. v. Fraser, 11 CaL App. 373 112 

Barton v. Groseclose, 11 Ida. 227 770 

Bash v. Evans, 40 Ind. 256 714 

Bashare v. Parker, 146 Cal. 529 298 

Bassett v. Thakara, 72 N. J. L. 81 84 

Bates v. Coronado Beach Co., 109 Cal. 160 174 

Baustian v. Young, 152 Mo. 317 521 

Bean v. Pioneer Mining Co., 66 CaL 451 444 

Bell v. 8an Francisco Savings Union, 153 Cal. 64 139 

Benoist v. Benoist, 178 Cal. 234 759 

Bergen v. Tulare Conntv Power Co., 173 Cal. 709 321, 322 

Bernou v. Bernou. 15 Cal. Ann. 341 431 

Berri v. Rogero, 168 CaL 736 492 

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xiv Tablb of Cases Cited— Vol. 43. 

Benson v. Shotwell, 87 CaL 49 709 

Benton. Estate of, 131 Cal. 472 782 

Bianchi v. Hughes, 124 CaL 24 27 

Birmingham Trust ft Sav. Go. v. Currey, 75 Ala. 873 521 

Bishop v. Superior Court, 87 Cal. 233 338 

Black y. Hunter, 169 CaL 632 13, 15 

Blackwell y. Renwick, 21 CaL App. 131 79 

Bliss v. Sneath, 119 Cal. 529 370 

Blochman Commercial etc. Bank y. Moretti, 177 CaL 256 638 

Blood v. La Serena L. ft W. Co., 113 Cal. 221 444 

Blood y. Munn, 155 CaL 228 590 

Bludworth y. Lake, 33 CaL 255 389, 390, 394, 395 

Board of Education y. Common Council, 128 Cal. 369 714 

Board of Trustees etc, y. Rodley, 38 CaL App. 563 661 

Bonetti v. Treat, 91 CaL 226 437 

Bonnett v. San Francisco, 65 Cal. 231. 458 

Boone v. Templeman, 158 Cal. 290 154, 258 

Boscus y. Waldmann, 31 CaL App. 245 29 

Bosqui y. Sutro R. Co., 131 CaL 397 620 

Bourget v. Monroe, 5 Mich. 563 122 

Bowers y. Cherokee Bob, 46 CaL 279 115 

Boyd y. Heine, 41 La, Ann. 393 51 

Bracken y. Fidelity Trust Co., 42 OkL 118 562 

Branch y. Han rick, 70 Tex. 731 275 

Brander v. Bowmar, 16 La. 370 683 

Brandon v. Umpqua Lumber ft Timber Co., 166 CaL 822 137, 138 

Brawley v. Risdon Iron Works, 38 CaL 676 407 

Breeze y. Brooks, 97 Cal. 72 370, 666 

Bremmerly t. Woodward, 124 CaL 568 276 

Bresee v. Los Angeles Traction Co., 149 CaL 131 608 

Brion v. Cahill, 34 Cal. App. 258 754 

Brooks y. Forington, 117 CaL 219 430 

Brosnan y. Kramer, 135 CaL 39 437 

Brovelli v. Bianchi, 136 Cal. 612 213 

Brown v. Brashear, 22 CaL App. 135 77 

Brown v. Brown, 22 Wyo. 816 70 

Brown t. Crown Gold Milling Co., 150 CaL 376 174 

Brown v. Foster, 113 Mass. 136 688 

Brown v. Lemon Cove Ditch Co., 86 CaL App. 94 670 

Brown y. Osgood, 25 Me. 505 696 

Brown y. Pacific Electric Ry. Co., 167 Cal. 199 78 

Brum y. Ivins, 154 Cal. 17 215 

Buchanan v. Foster, 23 App. Div. (N. Y.) 542 297 

Buck Stove ft Range Co. v. Vickers, 226 U. & 205 345 

Buell v. Brown, 131 Cal. 158 28, 629 

Buena Vista Oil Co. v. Park Bank of Los Angeles, 39 Cal. App. 

716 33 

Burmester v. Horn, 35 Cal. App. 549 258 

Burnett v. Stearns, 33 Cal. 468 744 

Burns, In re, 218 Mass. 8 421 

Burns v. Bauer, 37 Cal. App. 251 181 

Burr v. United R. R. Co., 163 CaL 665 620 

Burton v. State, 10 Ala. App. 214 215 

Butler y. Estrella Raisin Co., 124 CaL 239 677 

Byrne v. Hoag, 116 Cal. 1 432 

Caesar v. Rubinson, 174 N. T. 492 101 

Cahn y. Ford, 42 La. Ann. 965 51 

Calhoune's Appeal, 39 Pa. St. 218 272 

California etc Co. v. Schiappa-Pietra, 151 Cal. 732 260, 731 



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Table of Cases Cited — Vol. 43. rv 

Calkins, In re, 112 Cal. 296 788 

Calkins v. Equitable 8. & L. Assn., 126 Cal. 531 148 

Callan v. Empire Surety Co., 20 Cal. App. 483 371, 872 

Camp 7. Boyd, 41 Cal. App. 83 33 

Campbell v. Wade, 132 U. S. 34 396 

Campbell v. West, 93 Cal. 653 140 

Canadian Bank v. Leale, 14 Cal. App. 307 570 

Carr v. Howell, 154 Cal. 372 122 

Carter v. Hammett, 18 Barb. (N. Y.) 608 437 

Carver v. 8teele, 116 CaL 116 584 

Castagnino v. Balletta, 82 Cal. 250 31 

Chase v. Peters, 37 Cal. App. 358 227 

Cbilders v. San Jose Mercury, 105 Cal. 284 282 

Church v. Collins, 18 Cal. App. 745 749, 750 

Church v. Shanklin, 95 Cal. 626 688 

City of Houston v. Glover, 40 Tex. Civ. App. 177 44 

City of Newport News v. Potter, 122 Fed. 821 44 

(Sty of New York v. Clark, 84 App. Div. (N. Y.) 383 469 

City of Tulare v. Hearne, 126 CaL 226 339 

Clark v. Bosario Mining k Milling Co., 176 Fed. 180 122 

Clarke v. Clarke, 133 CaL 667 311 

Cleghorn v. New York Cent. R. Co., 56 N. Y. 44 617 

Clemens ▼. Clemens, 28 Wis. 637 291 

Coit v. Western Union TeL Co., 130 Cal. 664 420 

Columbia Iron Works, In re, 142 Fed. 234 93 

Combes v. Keyes, 89 Wis. 297 139 

Commercial Bank of Santa Ana ▼. Kershner, 120 CaL 495 584 

Commonweath v. Warren, 143 Mass. 568 214 

Conn v. City Council of Richmond, 17 CaL App. 705 350, 351 

Consolidated Coal Co. v. Schneider, 163 111. 393 676 

Cook v. Miller, 175 CaL 497 240 

Cooley ▼. Lobdell, 153 N. Y. 596 122 

Cooney v. Glynn, 157 CaL 583 762 

Copple v. Aigeltinger, 167 CaL 706 709 

Cornish ▼. Wolverton, 32 Mont. 456 562 

Cotton States life Ins. Co. v. Mallard, 57 Oa. 65 666 

County of Sonoma v. Hall, 129 Cal. 659 301 

Courtney v. Standard Box Co., 16 Cal. App. 600 17 

Cowas-jee v. Thompson, 5 Moore, P. C. 165 676 

Cox ▼. McLaughlin, 76 Cal. 60 15, 16, 17 

Crandall r. Parka, 152 Cal. 772 506 

Crane v. Brannan, 3 CaL 192 431 

Cripe r. Cripe, 170 Cal. 91 520, 530, 538, 539, 540, 542 

Crossman v. Vivienda Water Co., 150 Cal. 575 136, 138 

Crowley v. Genesee Mining Co., 55 CaL 273 174 

Cudell v. Cleveland, 16 Ohio C. Bep. (N. S.) 374 44 

Cumberland Glass Mfg. Co. v. De Witt, 237 U. S. 447 83 

Cunningham v. Holmes, 66 Neb. 723 563 

Curtin v. Salmon River etc. Co., 141 CaL 308 176 

Qyelops L Works v. Chico Ice etc Co., 84 Cal. App. 10 174 

Dahlman v. Forstar, 55 Wis. 882 291 

Danford, Matter of, 157 CaL 425 465 

Daniels, Matter of, 140 CaL 885 308 

Davis t. Butler, 154 CaL 628 606 

Davis t. Chalfant, 81 CaL 627 432 

Davis v. Hearst, 160 CaL 143 543 

Davis-Henderson L. Co. v. Gottschalk, 81 Cal. 641 31 

Davison v. Maryland Casualty Co., 197 Mass. 167 329 

Deiter v. Kiser, 158 CaL 259 138 



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xvi Table of Cases Cited— Vol, 43. 

Del Campo v. Camarillo, 154 Cal 647 358 

De Martini v. Anderson, 127 Cal. 33 481 

Depue v. Miller, 65 W. Va. 120 274 

Deyoe v. Superior Court, 140 Cal 476 69 

Diamond Rubber Co. v. Harryraan, 41 Colo. 415 521 

Dilling v. Murray, 6 Ind. 324 58 

Dixon v. Bell, 19 Eng. Ruling Cas. 26 621 

Doak v. Bruson, 152 Cal. 17 431 

Doerr v. Fandango Lumber Co., 31 CaL App. 318 174, 176 

Dolbeer v. Livingston, 100 Cal. 617 155 

Doll v. Meador, 16 Cal. 315 386 

Dore v. Southern Pac. Co., 163 Cal. 182 430 

Doty v. Willaon, 47 N. Y. 580 148 

Driscoll v. Cable Ry. Co., 97 CaL 553 608 

Duckworth v. Watson ville Water etc. Co., 170 Cal. 433 209 

Duffy v. Hobson, 40 Cal. 240 749 

Dunham v. McMichael, 214 Pa. St. 485 543 

Dunphy v. Belden, 57 Cal. 427 52 

Dunstan v. Los Angeles Van & Storage Co., 165 Cal. 89 594 

Dupes, Tn re, 31 Cal. App. 698 68, 69 

Dupes v. Superior Court, 176 Cal. 440 68 

Dutton v. Christie, 63 Wash. 372 102, 103, 104, 105 

Dwelly ▼. Dwelly, 46 Me. 377 70 

Eads v. Kessler, 121 Cal. 244 767 

Eames v. Crozier, 101 Cal. 260 177 

Earhart v. Churchill Co., 169 CaL 728 759 

Easterbrook v. Farquharson, 110 CaL 311 15, 16, 17, 19 

Eaton v. Montgomery, 90 Cal. 307 709 

Eddy v. Simpson, 3 CaL 249 56 

Edclman, Estate of, 148 Cal. 233 782 

Ehrhart v. Mahony, 170 Cal. 148 449,451 

Edwards v. Arp, 173 Cal. 476 15, 20 

Elliott v. Fitchburg B. R. Co., 10 Cush. 191 58 

Ellis t. Rademacher, 125 Cal. 556 429 

Ellis v. Witmer, 148 Oal. 531 208 

English, In re, 122 Fed. 113 86 

Escondido Oil etc Co. v. Glaser, 144 Cal. 494 444 

Estes v. Estes, 79 Ind. 363 70 

Evans v. Merriweather, 3 Scam. (I1L) 492 58 

Evans v. Rounsa ville, 115 6a. 684 84 

Evans v. Staalle, 88 Minn. 253 84 

Evanston etc. Co. v. Castner, 133 Fed. 409 676 

Everett v. Qreat Northern R. B. Co., 100 Minn. 309 610 

Eustace v. Janus, 38 CaL 17 458,459 

Pair, Estate of, 132 Cal. 523 760 

Farmers' Nat. Gold Bank v. Wilson, 58 Cal. 600 130 

Farnham v. California Safe Deposit & Trust Co., 8 Cal. App. 266.. 28 

Faylor v. Faylor, 136 Cal. 92 759 

Felton v. Le Breton, 92 Cal. 457 583 

Fenn v. Clark, 11 CaL App. 79 608 

Fernandez v. Torraey, 121 CaL 518 372 

Fernandez v. Watt, 26 Cal. App. 86 300 

Ferrea v. Knipe, 28 Cal. 341 57 

Fidelity etc. Co. v. Industrial Ace. Com., 177 Cal. 614 727 

Field v. Austin, 131 Cal. 379 634 

First Nat. Bank v. Perris, 107 Cal. 55 31 

Fischer, Estate of, 189 Pa. St. 179 275 

Fleet v. Tichenor, 156 CaL 343 282 



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Table of Cases Cited — Vol. 43. xvii 

Fletcher y. Baltimore etc Co., 168 U. S. 135 617 

Floret r. Stone, 21 CaL App. 105 33 

Foorman ▼. Wallace, 75 Cal. 552 130 

Ford ▼. Bushard, 116 Cal. 273 140 

Ford ▼. Doyle, 44 Cal. 63o 115 

Frasai r. McDonald, 122 CaL 404 461 

French r. Petting ill, 128 Mo. App. 156 189 

Friend, In re, 134 Fed. 778 83 

Fuller ▼. Alturas School Diet., 28 Cal. App. 609 371 

Fnrtado ▼. Bird, 26 CaL App. 152 795,798 

Galbraith ▼. Wood, 124 Minn. 210 101, 102, 107, 108 

Garretson ▼. Pacific etc. Co., 146 Cal. 184 500 

Gatewood t. Gatewood (Ky.), 70 a W. 284 272 

Gay t. Gay, 146 CaL 237 115 

Gaynor, In re, 217 Mass. 86 727 

Geary v. Simmons, 39 Cal. 224 613 

General Conference Free Baptists ▼. Berkey, 156 CaL 466 345 

Gentle ▼. Britton, 158 Cal. 328 31, 32 

George t. Glass, 14 U. C. Q. B. 514 676 

Gessner y. Palmateer, 89 Cal. 89 771 

Gibbons y. Yosemite Lumber Co., 172 Cal. 714 121, 158 

Gilson v. Delaware Canal Co., 36 Am. St. Bep. 802, 817, note.... 610 

Girvin y. Simon, 116 Cal. 604 113 

Glass T. Hulbert, 102 Mass. 24 246 

Glen y. Kimbrough, 58 N. C. 173 275 

Glen t. Bice, 174 CaL 269 561,562 

Glock y. Howard, 123 Cal. 1 710 

Goldstone ▼. Merchants' etc. Co., 123 Cal. 625 615 

Goodrich v. Rutland etc Bank, 81 Vt. 147 148 

Goodwin y. Central Broadway Bldg. Co., 21 Cal. App. 376 446 

Graham v. Larimer, 83 CaL 173 181 

Grand Valley Irr. Co. y. Lesher, 28 Colo. 273 496 

Grannie v. Superior Court, 146 Cal. 245 432 

Green v. Duvergcy, 146 Cal. 379 220, 605 

Green v. Frahm, 176 Cal. 259 101, 102, 103 

Gregory v. Haynes, 13 Cal. 592 140 

Greig v. Riordan, 99 Cal. 316 174 

Grew' Appeal, 14 Pa. St. 463 273 

Gribble ▼. Columbus Brewing Co., 100 CaL 69 174 

Grogan v. Knight, 27 Cal. 515 387 

Gross y. Gross, 70 W. Va. 317 543 

Gunn v. Bank of California, 99 Cal. 352 753 

Gurnsey v. Antelope Creek etc. Co., 6 Cal. App. 387 313 

Hackett ▼. Richards, 13 N. Y. 138 463 

Hackleberry v. Sherlock Land & Cattle Co., 39 Cal. App. 764.... 672 

Hagerty v. Powers, 66 CaL 368 611, 615 

Hale v. San Bernardino etc. Co., 156 CaL 713 543, 548 

Halfman t. Spreen, 75 Iowa, 309 484 

Hall, Estate of, 154 Cal. 527 148 

Hall y. Arnott, 80 CaL 348 583 

Hall ▼. Hall, 174 Cal. 718 533, 542 

Haller ▼. Yolo Water & Power Company, 34 Cal. App. 317 324 

Hamilton ▼. Hubbard, 134 CaL 603 717 

Hamlin v. Pacific Elec. Ry. Co., 150 CaL 776 540 

Hanley y. California etc. Co., 127 Gal. 232 615 

Hansen v. Steinhoff, 139 Cal. 169 622 

Hardy v. Schirmer, 163 Cal. 272 541 

Hargrave v. Cook, 108 CaL 72 58 



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xviii Table of Cases Cith>— Vol. 43. 

Harlan ▼. Stuffenboem, 87 CaL 508 27 

Harper v. Gordon, 128 CaL 489, 491 585 

Harris ▼. Gibbins, 114 CaL 418 43, 44 

Harris v. Johnson, 174 Cal. 55 79 

Harrison v. McCormick, 89 Cal. 327 513 

Harvey y. Jftsk, 9 Cal. 94 434 

Hastings v. Devlin, 40 Cal. 358 387 

Hatton v. Gregg, 4 Cal. App. 545 725 

Haub v. Friermuth, 1 Cal. App. 556 282 

Havemeycr v. Superior Court, 84 Cal. 327 136, 473, 477, 478 

Hawkins v. Graham, 149 Mass. 284 688 

Hedley, Ex parte, 31 Cal 109 625 

Hegeler v. Comstock, 1 S. D. 138 562 

Heier v. Krull, 160 CaL 441 661 

Helm v. Martin, 59 Oal. 57 148 

Henderson v. Los Angeles T. Co., 150 Cal. 689 541 

Hendrick v. Bigger, 151 App. Div. 522 543 

Heney v. Sutro, 28 CaL App. 698 177 

Henry's Estate, In re, 198 Pa. 382 273 

Henry v. Continental etc. Assn., 156 Cal. 667 556 

Henry v. Phillips, 163 CaL 135 556 

Hertel v. Emireck, 178 Cal. 534 258 

Hesperia etc. v. Rogers, 83 Cal. 10 313 

Hibernia etc. Soc. v. Chi.rchill, 128 Cal. 634 51 

Hibernia etc. Soc. v. Lewis, 117 Cal. 577 51 

Hibernia Sav. & Loan Soc. v. Farnham, 153 Cal. 578 33 

Higgins v. Crawford, 2 Ves. Jr. 571 269 

Higgins v. San Diego Sav. Bk., 129 Cal. 184 370 

Hill v. Citv Cab etc. Co., 79 Cal. 188 141 

Hill v. Hid, 70 N. J. Eq. 107 273 

Hines v. Brode, 168 Cal. 507 357 

Hobson v. Hassett, 76 Cal. 203 96 

Hogle v. Franklin etc. Co., 199 N. Y. 388 617 

Hohenshell v. South Riverside etc. Co., 128 Cal. 627 484 

Horton v. City of Los Angeles, 119 Cal. 602 430 

Horton v. Dominguez, 68 Cal. 642 349 

House v. Piercy, 181 Cal. 247 587 

Houston v. Shear (Tex. Civ. App.), 210 S. W. 976 84 

Howard v. Hobson Co., 38 Cal. App. 445 17 

Hughes v. Silva, 42 Cal. App. 785 759, 762 

Humphrey v. Pope, 122 Cal. 253 289 

Humphrey v. Pope, 1 Cal. App. 374, 375 520, 540 

Humphrey v. Pope, 1 Cal. App. 376 298 

Humboldt Savings Bank v. McCleverty, 161 CaL 285 590 

Hunt v. Jones, 149 Cal. 297 496 

Hunter v. Watson, 12 Cal. 377 130 

Hussey v. Ryan, 64 Md. 462 461 

Hutchinson v. Cummings, 156 Mass. 329 462 

Hyde ▼. Boyle, 89 CaL 590 431 

Hyde v. Boyle, 105 Cal. 102 T 431 

Ichenhauser Co. v. Landrum's Assignee, 153 Kv. 316 345 

Illinois etc R. R. Co. ▼. Houchins, 121 Ky. 526 521 

Indiana etc. Goal Co. v. Neal, 166 Ind. 458 609 

International Text-book Co. v. Pigg, 217 U. S. 91 345 

Irvine v. Perry, 119 Cal. 352 590 

Isaacs v. Jones, 121 Cal. 257 217 

Italian-Swiss Colony v. Italian Vineyard Co., 158 CaL 252 594 

Ivey y. Kern County Land Co., 115 CaL 196 331 



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Table of Cases Citd>— Vol. 43. ziz 

Jackson v. Hooper, 76 N. J. Eq. 185 •, 10 

James t. Oakland Traction Co., 10 CaL App. 785 806 

Jameson t. Tully, 178 CaL 380 520,621 

Janman v. MeCusick, 166 CaL 522 753 

Jennings r. Bank of California, 79 CaL 323 174 

Jennings r. Jordan, 31 CaL App. 335 754 

Jensen y. Sweigert, 66 CaL 182 461 

J. Frank ft Co. v. New Amsterdam a Co., 175 CaL 293.. 321, 328, 327 

Johnson t. La Grave, 102 CaL 324 629 

Johnson v. State, 65 Fla. 492 214 

Johnson v. Superior Court, 63 CaL 578. 69 

Johnston v. Brown, 115 CaL 694 115 

Johnston v. Callahan, 146 CaL 212 431,432 

Jones ▼. Evans, 6 CaL App. 88 177 

Jones v. Jones, 91 Ind. 378 269 

Joost t. Dore, 27 CaL App. 729 90 

Jordan v. Grover, 99 CaL 194 181 

Jost r. Sullivan, 111 CaL 286 87 

Judge t. Kribs, 71 Iowa, 183 484 

Jndson v. Love, 35 CaL 463 137, 140 

Kady v. Purser, 131 CaL 552 130 

Kalis t. Shattuck, 69 CaL 596 461 

Karahadian v. Loekett, 33 CaL App. 418 - 709 

Keller v. Desmond, 63 CaL 517 434 

Kelly v. Henry Muhs Co., 71 N. J. L. 358 610 

Kelly t. Long, 18 CaL App. 159 189 

Kennedy v. Miller, 97 CaL 429,434 203, 862 

Kent v. Williams, 146 CaL 3 90 

Kerchoff-Cuzner M. & L. Co. v. Olmstead, 85 CaL 80 629 

Keyes v. Munroe, 266 Mo. 114 214 

Kibeb v. Superior Court, 17 CaL App. 720 731 

Kidd v. Laird, 15 CaL 161 56 

Kilborn, Estate of, 162 CaL 4 t 788 

Kimie v. San Jose etc. Co., 156 CaL 379 620 

Kinsel v. Ballon, 151 CaL 754 584 

Kittle r. Bellegarde, 86 CaL 556 140 

Kline v. Easton etc. Co., 148 CaL 287 767 

Knowles v. Sandercock, 107 CaL 629 584 

Kohl r. Lilienthal, 81 CaL 378 135 

Kramer v. Farmers' etc. Bank, 15 Ohio, 253 683 

Kuns t. California Trona Co., 169 CaL 348 177 

Kyle v. Craig, 125 CaL 116 218 

Lamb r. Lamb, 171 CaL 577 762 

Lambert r. Bates, 137 CaL 676 113 

Land, Estate of, 166 CaL 538 782 

Lang v. Lilley k Thurston, 161 CaL 295 134 

Lange v. Superior Court, 11 CaL App. 1 339 

Lange v. Waters, 156 CaL 142 370 

Langford, In re, 108 Gal. 608 788 

Lavinbnrg, 161 CaL 536 788 

Learned v. Tangeman, 65 CaL 334. 57 

Lee, In re, 177 CaL 690 255 

Lepard v. Michigan Cent. B. 06., 166 Mich. 373 609 

Le Boy v. Bayard, 3 Bradf. Surr. (N. Y.) 228 272 

Lewis v. McDaniel, 82 Mo. 577 282 

Liebrandt v. Sorg, 133 CaL 571 541 

Lindy v. McChesney, 141 CaL 351 260 

Linott w. BewJand, 119 CaL 453 141 



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Table of Cases Cited— Vol. 43. 



Livermore v. Webb, 58 CaL 489 670 

Livingston v. McDonald, 21 Iowa, 160 660 

Llewellyn. Iron Works v. Abbott Kinney Co., 172 CaL 210 172 

Lockwood r. Lockwood, 67 Minn. 476 543 

Los Angeles G. Assn. v. Los Angeles, 103 Cal. 461 660 

Louisville ft N. B. Co. v. Holland, 164 Ala. 73 610 

Lowe v. Superior Court, 165 CaL 708 137 

Luckart v. Ogden, 30 CaL 547 724 

Lyon v. Robertson, 6 CaL Unrep. 390 96 

MacDougaB t. Maguire, 85 CaL 274 521 

Mack v. Southbound B. E. Co., 52 S. C. 323 620 

MacMulIan v. Kelly, 19 CaL App. 700 759 

Mahoney v. Board of Education, 12 CaL App. 293 208 

Manley v. Berman, 60 Misc. Bep. (N. Y.) 91 466 

Mann v. Scott, 180 CaL 550 78 

Marchant y. Hayes, 120 CaL 137 81 

Mareucci v. Vowinckel, 164 CaL 693 792 

Mark Means T. Co. v. Mackenzie, 9 Ida. 165 770 

Marks v. Gates, 154 Fed. 481 122 

Marshall v. Jamieson, 42 U. C. ^ B. 115 676 

Martin v. Becker, 169 Cal. 301, 805 583, 584 

Martin v. Jett, 12 La. 501 660 

Martinovich v. Wooley, 128 CaL 143 458 

Marvin etc. v. Chambers, 12 Blatchf. 495 683 

Maryland Casualty Co. v. Omaha Electric L. ft P. Co., 157 Fed. 

514 328,829 

Maupin v. Solomon, 41 CaL App. 323 306, 532 

Mayer v. Stahr, 35 La. Ann. 57 51 

McBlain v. McBlain, 77 CaL 507 70 

McCall v. New York Life Ins. Co., 201 Mass. 223 190 

McCarren v. McNulty, 7 Gray (Mass.), 139 688 

McCormick v. Potter, 147 HL App. 487 189 

McCowen v. Pew, 18 CaL App. 302 709 

McCready v. Lindenborn, 172 N. Y. 400 468 

McCulloch v. Norwood, 58 N. Y. 562 137 

McCummins v. 8tate, 132 Wis. 236 796 

McDaniel v. Cummings, 83 Cal. 515 660 

McDevitt's Estate, 95 CaL 17 788 

McDougald v. Hulet, 132 Cal. 163 349 

McDowell v. Hyman, 117 Gal. 67 188 

McFadden v. Crawford, 39 CaL 662 16 

McGrory v. Pacific Elec. By. Co., 22 CaL App. 671 548 

Mclntyre v. Orner, 166 Ind. 57, 63 795, 796 

McKiernan v. Lenzen, 56 CaL 61..... 174 

McKinnell v. Hansen, 34 CaL App. 76 792 

McKune v. Santa Clara Y. M. ft L. Co., 110 CaL 480 608 

McLaughlin v. Knoblock, 161 CaL 676 113 

McLaughlin v. McLaughlin, 104 OaL 171 777 

McMillan v. Dana, 18 CaL 346 414 

McNee v. Donahue, 142 U. 8. 587 386 

McPhee, Estate of, 154 CaL 385 133 

McQnade v. Enterprise Brewing Co., 14 CaL App. 315 176 

Medbnry v. New York ft Erie R. R. Co., 26 Barb. (N. Y.) 564... 666 

Menut v. Boston etc. B. Co., 207 Mass. 12 610 

Merced Bank v. Casaccia, 103 CaL 645 52 

Merrill v. Hurley, 6 8. D. 592 562 

Merrill v. Peaslee, 17 N. H. 540 282 

Messenger v. Kingsbury, 158 CaL 611 397 

Metcalf t. Barker, 187 U. 8. 165 .*..,... 86 



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Table of Cases Cited — Vol. 43. xxi 

Meyer ▼. Lincolu Realty Co., 14 CaL App. 756 122 

Meyer v. Sullivan, 40 CaL App. 723 675, 676 

Michaels v. Jttshel, 169 N. Y. 381 101 

Miles v. Danforth, 37 HI. 157 713 

Milkman v. Ordway, 106 Mass. 232 122 

Miller t. Ash, 156 Cal. 544 271 

Miller v. Boyle, 43 Cal. App. 39 35, 37, 38 

Miller t. Western College etc., 177 HI. 280 148 

Miller & Lux v. Dunlap, 28 CaL App. 313 96 

Miller & Lux, Inc., t. Industrial Ace. Com.. 179 Cal. 764 727 

Milwaukee etc. By. Co. t. Kellogg, 94 U. 8. 469 620 

Minturn v. Baylis, 33 CaL 129 122 

Mitchell, In re, 120 CaL 886 52 

Mitchell v. Board of Education, 137 CaL 372 362 

Mitchell v. California 8. 8. Co., 154 CaL 731 133, 134 

Mitchell v. Sharon, 51 Fed. 424 281 

Mix v. Miller, 57 Cal. 856 16 

Modesto Creamery Co. t. Stanislaus etc Co., 168 CaL 289 574 

Montecito Valley Co. v. Santa Barbara, 144 Cal. 597 446 

Montgomery v. Peterson, 27 Cal. App. 671 358 

Moore t. Campbell, 72 CaL 253 349 

Moore v. Moore, 133 Cal. 489 556 

Moore v. Robinson, 92 HL 491 688 

Morcel, Estate of, 162 Cal. 188 788 

Mortgage Securities Co. v. Pfaffmann, 177 Cal. 109 441 

Morton, In re, 179 Cal. 510 465 

Mulcahy v. Buckley, 100 CaL 487 112 

Mullally v. Townsend, 119 CaL 47 112 

Mullen v. St. John, 57 N. Y. 567 461 

Multer t. Knibbs, 193 Mass. 556 533 

Munkers t. State, 87 Ala. 96 215 

Munroe v. Maryland Casualty Co., 48 Misc. Bep. (N. Y.) 183 329 

Murphy v. Hindman, 58 Kan. 184 291 

Mutual Ins. Co. v. Tweed, 7 Wall. (U. 8.) 52 621 

Myers v. Williams, 173 CaL 301 257, 258 

National k Providence Worsted Mills ▼. Frankfort Marine etc Ins. 

Co., 28 B. L 126 329 

Neto v. Conselho Amor etc., 18 Cal. App. 234 714 

Nevada Bank v. Dresbach, 63 Cal. 324 429 

Nevins v. Nevins, 68 Kan. 410 543 

Nichols T. Nichols, 147 Mo. 887 543 

Nicoll v. Weldon, 130 CaL 667 492 

Niosi t. Empire Laundry Co., 117 CaL 257 78 

Nolen v. Engstrum Co., 175 CaL 464 543 

Northern C. L Trust Co. v. Cadman, 101 Cal. 200 434 

Norton v. Bassett, 154 CaL 411 759 

Norton v. Bassett, 158 Cal. 427 622 

Norwood t. Kenfield, 80 CaL 394 696 

Nunes v. Morgan, 77 Cal. 427 511 

Oakman v. Belden, 94 Me. 280 533 

Ogilvie v. Bull, 5 Hill (N. Y.), 54 189 

Ohleyer v. Bunce, 65 CaL 544 429 

Oilfields Syndicate v. American Improvement Co., 256 Fed. 979... 86 

Orient Ins. Co. ▼. Beed, 81 CaL 146 372 

Orlandi v. Gray, 125 CaL 372 29 

Ortego v. Cordero, 88 Cal. 221 744 

Osborne v. O'Beilly, 43 N. J. Eq. 647 272 

Ourtler v. Thatcher, 152 CaL 739 157, 709, 710 



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xrii Table of Cases Cited— Vol. 43. 

Pacific Coast Casualty Co. t. General Bonding etc. Co.. 240 Fed. 

86 7 829 

Pacific Improvement Co. v. Jones, 164 Cal. 260 444 

Pacific Portland Cement Co. ▼. Beinecke, 30 Cal. App. 501 177 

Pacific State* Corp. v. Arnold, 23 Cal. App. 672 870, 666 

Page t. Kreker, 137 N. Y. 307 469 

Palmer t. Railroad Com., 167 CaL 163 56 

Parker t. Ash, 1 Vera. 256 269 

Parkin t. Grayson-Owen Co., 25 OL App. 269 540 

Parkside Realty Co. ▼. MacDonald, 166 CaL 426 688 

Paraonay. Copeland, 83 Me. 870 291 

Parsons t. Weis, 144 Cal. 410 432 

Pasadena Realty Co. v. dune, 34 CaL App. S3 792 

Pastene y. Pardini, 135 CaL 481 248 

Paxton t. Scott, 66 Neb. 385 84 

Pauly t. Panly, 107 OaL 8 447 

Payne t. Bensley, 8 CaL 260 769 

Pearson t. Brown, 27 CaL App. 125 154 

Peck y. Jenness, 7 How. (U. 8.) 612 51 

Peek v. Steinberg, 163 CaL 127 824 

Pedlar t. Stroud, 116 CaL 462 139 

People ▼. Barry, 94 CaL 484 250 

People t. Britton, 142 Cal. 10 250 

People t. Carroll, 80 CaL 153 566. 567 

People ▼. Cole, 141 Cal. 88 79 

People t. Creeks, 141 CaL 529 695 

People v. Delbos, 146 CaL 734 699,700 

People ▼. Dillman, 37 Cal. App. 415 484 

People t. Emerson, 130 CaL 562 250 

People t. Fick, 89 Cal. 149 214 

People t. German Bank, 126 App. Div. (N. 7.) 231 466 

People t. Hart, 153 CaL 261 68 

People t. Haselman, 76 Cal. 460 488 

People ▼. Hemple, 4 CaL App. 120 625 

People ▼. Hill, 123 CaL 571 455 

People t. Ho Kim You, 24 CaL App. 451 65 

People t. Jackson, 62 CaL 548 887 

People T. Johnson, 131 Cal. 511 695 

People t. Jones, 160 Cal. 358 65 

People t. Josselyn, 39 Cal. 393 455 

People t. Lawrence, 148 CaL 148 299 

People t. Liphardt, 105 Mich. 80 488 

People t. Matuszewski, 138 Cal. 533 61 

People t. McMahill, 4 Cal. App. 225 626 

People t. Medaini, 40 CaL App. 676 747 

People t. Mitchell, 94 CaL 550 677 

People t. Muhly, 11 CaL App. 129 455 

People t. Mullen, 7 Cal. App. 547 61 

People t. Noon, 1 CaL App. 44 250 

People t. Peck, 43 Cal. App. 638 768 

People t. Roach, 76 CaL 297 52) 

People v. Schiaffino, 40 CaL App. 675 747 

People t. Smith, 103 Cal. 563 281 

People t. Swist, 136 Cal. 520 79 

People t. Stratton, 25 CaL 242 338 

People t. Swalm, 80 CaL 46 250 

People ▼. Turner, 113 Cal. 278 281 

People v. Webber, 26 CaL App. 413 C3, 65 

People t. Wong Bow, 38 CaL App. 213 747 

People t. Young, 38 CaL App. 492 747 



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Tabu of Cases Cited — Vol. 43. xiiii 

Perkins ▼. Cartmel], 4 Harr. (Del) 270 271 

Pfister t. Wade, 56 CaL 46 872 

Phelps ▼. Grady, 168 CaL 73 506, 556 

Philadelphia Pickling Co. ▼. Maryland Casualty Co., 89 N. J.L.330. 326 

Phillips ▼. Campbell, 43 N. Y. 271 174 

Phillips ▼. Piney Coal Co., 53 W. Va, 543 273 

Pierce ▼. Merrill, 128 Cal 464, 472 371, 586 

Pierce ▼. Whiting, 63 Cal 540 414 

Pixley v. Western Pacific B. E. Co., 33 Cal. 184 174 

Piatt v. Southern Photo Material Co., 4 Ga. App. 159 609, 616 

Poiedori v. Newman, 116 Cal. 375 349 

Powers v. Braly, 75 Cal. 237 141 

Powers Dry Goods Co. v. Nelson, 10 N. D. 580 84 

Prefumo v. Russell, 148 Cal. 451 583 

Prentice ▼. Erskine, 164 Cal. 446 125 

Preston ▼. Hood, 64 CaL 405 415 

Preston v. Preston, 95 U. 8. 200 274 

Prince ▼. Lamb, 128 CaL 128 121 

Purcell v. St. Paul R. Co., 48 Minn. 134 620 

A*usey t. Gardner, 21 W. Va. 469 274 

Racine ▼. Morris, 201 N. Y. 240 610 

Ragland t. Wisrock, 61 Tex. 391 51 

Ramish v. Workman, 33 CaL App. ;9 103, 108 

Ranger t. Bacon, 3 Misc. Rep. (N. Y.) 95 466 

Rauer v. Hertweck, 175 CaL 280 615 

Read r. Sefton, 11 CaL App. 88 217 

Real t. County of Kern, 39 Cal. App. 723 848 

Rector t. Buckhart, 3 Hill (N. Y.), 193 461 

Reddington v. Pacific P. T. C. Co., 107 Cal. 324 420 

Reed t. Hiokey, 13 CaL App. 136 709 

Reed t. Reed, 6 Ind. App. 317 529, 533 

Rehkopf v. Wirz, 81 CaL App. 695 438 

Reynolds v. £. Clemens Horst Co., 35 CaL App. 711 670 

Res v. Summers, 34 Cal. App. 527 101, 103 

Rhodes v. State, 74 Fla. 230 214 

Richards ▼. Farmers' etc Bank, 7 Cal. App. 386 605 

Richvale Land Co. v. Johnson, 28 CaL App. 296 771 

Rider, In re, 96 Fed. 808 83 

Rider t. Clark, 132 CaL 887 461 

Riser v. Walton, 78 CaL 490 506 

Riverside etc. Co. ▼. Gage, 108 CaL 240 744 

Roach ▼. Caraffa, 85 CaL 436 759, 761 

Robben v. Benson, 37 Cal. App. 227 208 

Roberts ▼. Columbet, 63 CaL 22 388 

Robertson ▼. Robertson, 147 Ala. 311 148 

Robinson t. American Fish Co., 17 Cal. App. 212 16 

Robinson v. Robinson, 159 Cal. 203 71 

Robisonv. Mitchel, 159 CaL 581 629 

Rodgers v. Pacific Coast Casualty Co., 33 CaL App. 70 323, 327 

Roger Bros. Co. t. Beck, 43 CaL App. 110 799, 800, 801 

Rogers Dot. Co. r. Southern California etc. Inr. Co., 159 CaL 735.. 156 

Rowan t. Kirkpatrick, 14 HI. 1 713, 714 

Rudd v. Byrnes, 156 CaL 639 618, 622 

Rudel v. Los Angeles Co., 118 CaL 286 744 

Rudolph v. Hudson, 12 Okl. 516 562 

Ross t. Tuttle, 158 Cal. 226 709 

Salter v. Ives, 171 Cal. 780 749 

Samuels v. Ottinger, 169 CaL 209 437 



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xxiv Table of Cases Cited — Vol. 43. 

Sanderson, In re, 74 CaL 199 276 

San Francisco t. McGinn, 67 CaL 110 193 

San Francisco Gas etc Go. v. Superior Court, 155 CaL 30.... 780, 731 

San Francisco Mercantile Union v. Muller, 18 Gal. App. 174 600 

San Francisco T. Seminary r. Monterey County Gas etc Go., 179 

CaL 166 586, 587 

San Joaquin etc Inv. Go. r. Stevinson, 164 CaL 229 52 

San Pedro etc B. B. Co. t. City of Los Angeles, 180 Cal. 18 193 

Santa Monica L. & M. Co. v. Hege, 119 Cal. 376 27 

Saratoga Trap Rock Go. t. Standard Ace Ins. Co., 143 App. Div. 

(N. Y.) 852 329 

Sausalito Bay Land Co. v. Sausalito Improvement Co., 166 CaL 302.154 

Scadden Flat G. M. Co. r. Scadden, 121 CaL 33 500 

Scherhr v. Berkey, 166 CaL 157 584 

Schindler v. Green, 149 Cal. 752 27 

Schmidt v. Breig, 100 CaL 672 572 

Schroeder v. Jahns, 27 Cal. 274 759 

Scott v. Glenn, 98 Cal. 168 709 

Scott v. San Bernardino Valley etc Co.. 152 CaL 604 79 

Scott v. Superior Sunset Gil Co., 144 CaL 140 174 

Scott ▼. Wood, 81 Cal. 398 541 

Seal of Gold Mining Co. v. Slater, 161 CaL 621 232 

Seaver v. Fitzgerald, 23 Cal. 85 215 

Seeley v. San Jose Independent Mill & L. Co., 59 CaL 22 174 

Servis v. Servis, 172 N. Y. 438 529 

Seymour v. Oelrichs, 156 CaL 782 246 

Sferlazzo v. Oliphant, 24 CaL App. 81 231 

Sharon v. Sharon, 84 CaL 424 52 

Shaw v. State, 35 Tex. Cr. 394 566 

Shiver ▼. United States, 159 U. S. 493 397 

Siebe v. Hendy Machine Works, 86 Cal. 390 174, 431 

Siebe v. Joshua etc Machine Works, 86 Cal. 390 174, 431 

Siemers v. Eisen, 54 CaL 418 608 

Silva v. Hawn, 10 CaL App. 544 313 

Singerly ▼. Thayer, 108 Pa. 8t. 291 688 

Sioux Remedy Co. v. Cope, 235 U. S. 197 345 

Skaggs t. Emerson, 50 Cal. 3 189 

Smith v. Calloway, 7 Blackf. (Ind.) 86 269 

Smith v. Gentral etc. Ry. Co., 165 Ala, 407 421 

Smith v. Corbit, 116 CaL 587 57 

Smith v. Fargo, 57 Cal. 159 414 

Smith v. Golden State Syndicate, 43 CaL App. 346 802 

Smith v. Hollister, 32 Vt. 708 283 

Smith v. Randall, 6 Cal. 47 434 

Smith v. Smith, 62 Cal. 466 72 

Smith v. Smith, 173 CaL 725 258 

Smith v. Whittier, 95 CaL 279 620 

Smullen v. Phillips, 92 CaL 408 282 

Snell, In re, 125 Fed. 154 86 

Snowden v. Derrick, 14 Cal. App. 309 125 

Solomon R. Co. v. Jones, 30 Kan. 601 290, 291 

Southern California Lumber Co. v. Schmitt, 74 Cal. 625 30 

Southern Coal etc Co. v. Hopp, 133 HI. App. 239 610 

Southern Pac R. R. Co. v. Superior Court, 59 Cal. 475 655 

Southern Pac. Co. v. Von Schmidt D. Co., 118 Cal 368 444 

8paMing v. Chamberlain & Co., 130 Ga. 649 43 

Spanagel v. Reay, 47 Cal. 608 622 

Sparks v. Hess, 15 Cal. 186 449 

Speck v. Gray, 14 Wash. 589 543 

8preckels ▼. Nevada Bank, 113 CaL 272 129 



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Tablb of Cases Cited — Vol. 43. xxv 

Standard Oil Co. v. Slye, 164 Cal. 435 176 

Stanley v. Stanley, 32 Wash. 489 643 

State v. Valliant, 100 Mo. 69 338, 339 

Stehman v. Crull, 26 Ind. 436 269 

Stein v. Archibald, 151 Cal. 220 690 

Stein v. United Railroads, 159 Cal 368 608 

Stemler v. Bass, 153 Cal. 791 749, 751 

Stephens v. Pennsylvania Casualty Co., 135 Mich. 189 329 

Stephenson v. Southern Pac. Co., 93 Cal. 558 610, 618 

Stevens v. Selma Fruit Co., 18 Cal. App. 242 173, 666 

Stevinson v. Joy, 164 Cal. 279 154, 257 

Steward v. Hinkle, 72 Cal. 187 242 

Stierlen v. Stierlen, 18 Cal. App. 609 432 

Stock v. Inglis, 5 Asp. M. C. 294 676 

Stockton etc. Works ▼. Glenn etc. I. Co., 121 CaL 174 209 

8toughton v. Pasco, 5 Conn. 442 683 

Stratton v. Alleghaney Co., 245 Pa. St 519 44 

Stratton t. California Land etc. Co., 86 Cal. 353 157 

Street v. Hazard, 27 Cal. App. 263 721 

Stroud t. Thomas, 139 Cal. 274 96 

Stuart v. Haight, 39 Cal. 87 392 

8turgis v. Vanderbilt, 73 N. Y. 384 137 

Sturt ▼. MeUish, 2 Atk. 610 269 

Supreme Lodge v. Price, 26 Cal. App. 607 778 

Sullivan v. Creed, 2 Eng. Ruling Cas. 131 621 

Swan v. Talbot, 152 Cal. 142 224 

Swinnarton v. he Boutillier, 149 N. Y. 752 617 

Tait v. Mclnnes, 3 Cal. App. 156 213 

Tapia ▼. De Martini, 77 CaL 383 683 

Taylor, Ex parte, 87 CaL 94 458 

Taylor v. Morris, 163 Cal. 717 761 

Taylor v. Pacific Elec. By. Co., 172 CaL 638 540 

Taylor v. Western Pacific R. R. Co., 45 CaL 323 140 

Teller r. Bay etc. Dredging Co., 151 CaL 209 497 

Terry t. Megerle, 24 CaL 609 387 

Thayer v. Braden, 27 CaL App. 435 415 

Thompson v. Scholl, 32 CaL App. 4 750, 751 

Tiffany v. Pacific Sewer Pipe Co., 180 Cal. 700 688 

Timm ▼. Bear, 29 Wis. 254 58 

Tinkum, Ez parte, 54 Cal. 201 139 

Title Ins. etc Co. v. California Dev. Co., 168 CaL 397 133, 134 

Todd v. Union Cas. & Surety Co., 70 App. Div. (N. Y.) 52 323 

Tognazzini v. Jordan, 165 CaL 19 136 

Toland v. Man del], 38 Cal. 30 886, 387 

Tomlinson v. Ayres, 117 Cal. 568 429 

Trenton etc. By. Co. v. Cooper, 60 N. J. I* 219 521 

Truett r. Onderdonk, 120 Cal. 581 358 

Trumbull v. Trumbull, 71 Neb. 186 529, 530, 533 

Tucker v. Tucker, 74 Miss. 93 533 

Turney v. Morrissey, 22 CaL App. 271 137 

Union Collection Co. v. Oliver, 162 Cal. 755 133, 134 

Union Mills etc Co. v. Ferris, 2 Sawy. 176 57 

United States v. Hammond, 104 Fed. 862 83 

Yallejo etc. R. Co. v. Reed Orchard Co., 169 Cal. 562 538 

Yallejo High School Dist. v. White, 43 CaL App. 359 865 

Van Gorden v. Ormsby, 50 Iowa, 664.... 61 



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zzvi Table of Cases Citjsd— Vol. 43. 

Tan Tassell t. Heidt, 88 CaL App. 234 548 

Veal t. State, 116 Ga. 589 215 

Viera v. Atchison etc. By. Co., 10 OaL App. 267 541 

Vosburg v. Vosburg, 131 CaL 628 69, 70 

Voes v. Sylvester, 203 Maes. 233 189 

Wadman v. Burke, 147 CaL 854 509 

Wahlgren v. Market St. B. Co., 132 Cal. 656 620 

Walberg v. Underwood, 39 CaL App. 748 610 

Waldron v. Waldron, 45 Fed. 317 543 

Wallace v. Dinniny, 11 Misc. Bep. (N. Y.) 317 466 

Walters v. Mitchell, 6 CaL App. 410 218 

Ward t. Meredith, 220 I1L 66 795 

Warfield v. Lindell, 30 Mo. 272 291 

Warren Brothers Co. v. Boyle, 42 Cal. App. 246 45 

Watermolen v. Fox Biver etc. Co., 110 Wis. 153 420 

Watte, In re, 190 U. S. 1 93 

Weaver t. Carter, 28 OaL App. 241 540, 541 

Weaver v. Howatt, 161 Cal. 77 198 

Webb v. Moore, 136 Ky. 708 796 

Weinstock-Lnbin Co. v. Marks, 109 Cal. 529. .572, 573, 594, 595, 596 

Wells, Fargo & Co. t. Enright, 127 Cal. 660 174 

Wells-Fargo Co. v. Miner, 25 Fed. 533 872 

Werborn v. Austin, 82 Ala. 498 275 

West v. Prather & Co., 7 Cal. App. 81 444 

West Coast Safety Faucet Co. v. Wulff, 133 Cal. 315 130 

Westphal v. Neville, 92 UaL 545 96 

Whelan v. Swain, 132 Cal. 389 96 

White v. Sage, 149 Cal. 613 121, 157, 449 

White v. Schloerb, 178 U. S. 542 93 

White v. White, 82 CaL 427 484 

Wiekersham, Estate of, 153 Cal. 603 782 

Wiezorek v. Ferris, 176 Cal. 353 77 

Wilkes-Barre Bealty Co. v. Levy, 114 N. Y. Supp. 713 190 

Wilkesbarre Bealty Co. v. Powell, 86 Misc. Bep. (N. Y.) 321 469 

Willamette etc. Co. v. Los Angeles College Co., 94 Cal. 229 27 

Willey, Estate of, 140 Cal. 238 270 

Williams, Ex parte, 7 Cal. TJnrep. 301 567 

Williams v. Harter, 121 CaL 47 822 

Williams v. Southern Pac. Co.. 173 CaL 525 608, 609 

Williams * Williams, 20 Colo. 51 543 

Williamson v. Osenton, 220 Fed. 653 548 

Willis t. United States, 6 Ind. Ter. 424 215 

Wilson v. McCarty, 55 Md. 277 275 

Winter v. Belmont Mining Co., 58 CaL 428 130 

Withers v. Bonsfield, 42 CaL App. 304 586 

Wood r. Moulton, 146 CaL 317 660 

Woods v. Bank of Hayward, 10 Cal. App. 93 509 

Woodward v. Brown, 119 CaL 283 590 

Young r. Young, 80 N. Y. 422 148 

Zaliski v. Clark, 44 Conn. 218 688 

Zavelo v. Beeves, 227 U. S. 629 84, 85 

Zimmerman v. McMakin, 22 8. C. 372 282 

Zinwell Co. v. Ukowitz, 83 Misc. Bep. (N. Y.) 42 466 

Zipperlen v. Southern Pac. Co., 7 CaL App. 206 695 

Zollikofer, Estate of, 167 CaL 196 782 

Zoppettini v. Buckles, 167 CaL 27 428 



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CITATIONS— VOL. 43. 



CALIFORNIA, 

CONSTITUTION. 

Art IV, see. 1 474 

Art. VI, eec 4% 66, 291,745 

Art. VI, tee. 5 50, 839,340 

Art. XI, see. 8 362 

Art. XII, see. 16 331 

Art. XII, see. 23 338, 340, 841, 342 

Art.XllI,see. 1 193 

STATUTES. 

1851, p. 68. Attachment 769 

1852, p. 41. School Lands 379,381 

1857, p. 856. School Lands 382 

1858, p. 127. School Lands 383 

1858, p. 248. School Lands 383, 388 

1859, p. 338. School Lands 384 

1862, p. 401. Streets 45* 

1866, p. 854. 8chool Lands 384 

1867-68, p. 507. 8chool Lands 380,385 

1897, p. 201. Security Bonds for Materialmen, etc 550 

1907, pp. 746,747. Corporation License Tax 137 

1911, p. 1258. Lease of Lands from City 192 

1911, p. 1313. Mechanics' Liens 720 

1911, p. 1422. Security Bonds for Materialmen, etc 550 

1911, p. 2027. Vallejo Charter 361 

1913, p. 20. "Bed-light Abatement" 480, 481 

1913, p. 279. Workmen's Compensation 670 

1913, p. 283. Workmen's Compensation 418, 419 

1913, p. 306. Workmen's Compensation 422, 423, 424 

1913, pp. 307,308. Workmen's Compensation 422 

1913, p. 560. Tax Sales 348 

1913, p. 639. Vehicles 78 

1913, p. 649. Motor Vehicles 240 

1915, p. 397. Motor Vehicles 794,795,798 

1915, p. 115. Public Utiaties 340 

1915, p. 744. Trial Jury 702 

1915, p. 1079. Employers' Liability 672 

1915, p. 1106. Banks and Banking 48 

1915, p. 1552. Bakersfield Charter 351 

(xxrii) 



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xxviii 



Citations— Vol. 48. 



STATUTES— Continued. 

1917, p. ML Foreign Corporation! 844 

1917, p. 624. New Trial and Appeal 244 

1917, p. 665. Indeterminate Sentence 702 

1917 9 p. 831. Workmen'! Compensation 874,727 

1917, p. 836. Workmen 9 ! Compensation 727 

1919, p. 261. Appeals 792 

Deering's Gen. Lawa 1915, Act No. 2555. Municipal Charter 852 



CODE OF CIVIL PROCEDURE. 



TAG* 

•84 669 

869 225 

885 137, 138, 139, 140 

886 372, 713, 714 

405 344, 731 

478 431, 482, 622 

587 765 

688 765 

540 412 

664 474, 476 

580 429 

650 133 

674 86 

692 484 

698 484 

T26 

582, 583, 584, 585, 586, 737 

788 217 

751 828 

768 578 

989 569 

940 133 

941 183 

941a 133 

941b 133, 134 

941c 133 

943 428 

945 428 

953 792 

953a 133, 184, 792 

953b 792 

953c 72, 285, 792 

963 244, 429, 743 

1014 140 

1054 714 

1067 477 



S1OTION FA« 

1068 477 

1102 476 

1103 476 

1159 406 

1160 406 

1174 828 

1183 30, 868 

1187 25, 27, 628 

1192 81,82,719,720 

1269a 47,51 

1272 49 

1275 47,48,49,50, 52 

1327 781 

1443 269 

1552 62 

1586 825 

1615 276 

1622 269 

1686 ... 269 

1665 269 

1726 52 

1732 52 

1848 298 

1881 540 

1901 278 

1902 278 

1962 634 

1963 483 

1982 495 

2021 260, 261, 729, 730, 731 

2031 260 

2032 261 

2044 252 

2048 65 

2049 695, 696 

2052 65 



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Citations — Vol. 43. 



xxix 



CIVIL CODE. 



MOTION 
33 .. 
85 .. 

130 .. 

820a •< 



FACT 
. 410 
• 410 
. 71 
. 233 



824 12», 235 

836 234 

837 233 

847 233 

400 136, 138 



405 
406 
408 
410 
724 
822 
852 



344 
344 
344 
344 
760 
437 
761 



853 760, 761 



857 
1189 
1440 
1559 

1580 
1614 
1624 
1626 
1638 



760 
277 
451 
438 
175 
177 
245 
831 
871 



1691 220, 605 



SECTION PAGE 

1917 17, 20 

1927 188 

1942 100, 109 

1970 670 

2010 247 

2222 761 

2380 606 

2395 9 

2778 372 

2836 371, 587 

2844 587 

2845 586 

2874 767 

2920 766 

2941 680 

2988 767 

3049 766 

3122 177 

3281 20 

3287 17, 20 

3307 122 

3391 121, 158, 450 

3407 220 

8408 220 

3513 509, 578 

8533 197 



PENAL CODE. 



section fact 

211 643 

273f 608, 616 

319 566 

830 566, 567, 568 

330a 568 

470 281 

508 625 

518 643 



SECTION PACT 

954 702 

959 625 

971 307 

1012 625 

1108 452 

1127 401, 701 

1168 255, 708 

1185 625 



POLITICAL CODE. 



MOTION PAGE 

1584 202, 203 

1617 860 

1798 202 



SECTION PACT 

3414 378 

3415 378 

3494-3503 385 



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Citation*— Vol. 43. 



MCTIOH 
8607 


POLITICAL CODE— Continued. 

PAGE SECTION 
193 413ft 


PAOl 
211 


8617 


198 


4156 


838 


8898 


348 


4841 


211 


4187 


811 


4248 


£11 



WISCONSIN. 
Laws 1906, e. 305, eee. 4. Motor Vehicle*. 



798 



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REPORTS OF CASES 

■ or 



THE DISTBICT COUBTS OF APPEAL 



or 



STATE OF OALIFOKNIA. 



[Civ. No. 1081. Third Appellate District.— August 25, 1919.] 
A. V. KEYBS, Respondent, ▼. F. B. NIMS, Appellant 

[1] Appeal — Review of Findings ft Appellate Court — Evidence 
Considered. — In determining whether the findings of the trial 
eonrt are supported, the appellate court is required only to look 
to the testimony presented by the prevailing party and, if suffi- 
cient, it may disregard any adverse showing made by the other 
party. 

[2] Joint Adventures — Partnership Distinguished. — While a part- 
nership is ordinarily formed for the transaction of a general busi- 
ness of a particular kind, a joint adventure relates to a single 
transaction, although the latter may comprehend a business to be 
continued for a period of years. In a partnership, each partner 
embraces the character of both principal and agent, being the 
former when he acts for himself in the partnership; while in a 
joint adventure, no one of the parties thereto can bind the joint 
adventure. 

[3] Id.— Bights or Adventurers— Rules Governed by.— In an action 
to secure the dissolution of an alleged partnership between the 
parties and for an accounting, it is immaterial whether the rela- 
tion between the parties is that of a partnership or a joint ad- 
venture, or a limited partnership. The resemblance between a 
partnership and a joint adventure is so close that the rights as 
between adventurers are governed practically by the same rules that 
govern partnerships. 

2. Partnership distinguished from joint adventure, note, 115 Am 
St. Sep. 407. 

4SCW.Aot.-x (!) 



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2 Kbyes v. Nims. [43 Cal. App. 

[4] Id. — Right of Members to Sue at Law. — One party to a joint 
adventure may sue the other at law for a breach of the contract 
or a share of the profits or losses or a contribution for advances 
made in excess of his share, as where the adventure has been 
closed and a party thereto is entitle.: to a sum certain as his 
share of the adventure, but the right thus to sue at law does not 
preclude a suit in equity for an accounting. 

[6] L>. — Action fob Dissolution and Accounting — Partnership 
Pleaded — Belief Granted. — Where, in an action by a joint ad- 
venturer for a dissolution of an alleged partnership and for an 
accounting, the evidence is sufficient to warrant the trial court in 
finding and adjudging that the plaintiff is entitled to one-third 
of the profits realized from the joint enterprise which was the 
subject of the agreement between him and the defendant and to 
an accounting for the purposes of determining the extent or 
amount of such profits, such judgment and decree will be sus- 
tained on appeal notwithstanding the complaint alleges that the 
relation between the parties was a partnership whereas it was a 
joint adventure, 

[6] Id. — Effect of Contract Taking in New Party. — Where two 
persons enter into a partnership agreement for the purpose of 
carrying on a certain designated business, but subsequently A 
third person, with the consent of the two original members, ii 
given a one-sixth interest in the partnership by each of such 
members, the purpose of the partnership not being changed, the 
taking of such third person into such partnership does not con- 
stitute the making of such an agreement as would operate to 
supersede and abrogate the original agreement between the par- 
ties thereto. 

[7] Appeal — Question not Considered Through Oversight — Re- 
hearing not Necessary. — Where the appellate court, through 
oversight, fails to consider the question of interest allowed by the 
trial court, such matter may be considered and disposed of on 
application for a rehearing without ordering a rehearing. (On 
petition for rehearing.) 

[8] Joint Adventures — Action for Dissolution and Accounting — 
Bight of Plaintiff to Interest.— In an action by one party to 
a joint adventure for a dissolution of the relationship between the 
parties and for an accounting, it is not error to include in the 
judgment interest on the amount of money awarded to the plain- 
tin! from the date of the sale of the subject matter of the ad- 

4. Mutual rights and liabilities of parties to joint adventure, 
notes, 17 Ann. Cas. 1022; Ann, Oaa. 1912C, 202; Ann. Oas. 1914C, 
691; Ann. Oas. 1916A, 1210. 

8. Settlement of accounts between joint adventurers, note, Ann. 
Oaa. 1912C, 204. 



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Aug. 1919.] Keyes v. Nims. 3 

venture by the defendant, where the only question to be deter- 
mined by the court is the extent of the plaintiff's interest, that 
is, whether it is a one-half or a one-third interest, the facts gov- 
erning which are known to the defendant. (On petition for re- 
hearing.) 

APPEAL from a judgment of the Superior Court of 
San Joaquin County. George F. Buck, Judge. Affirmed. 

Meredith, Landis & Chester, Thos. S. Louttit, Gerald Beatty 
Wallace, Webster, Webster & Blewett and Louttit & Stewart 
for Appellant. 

Lafayette J. Smallpage and Scott Rex for Respondent. 

HART, J. — The action was brought to secure the dissolu- 
tion of an alleged partnership between the parties and for an 
accounting. A trial was had before the court sitting without 
a jury and judgment was entered dissolving the partneiship 
and awarding plaintiff damages, with interest and costs, 
amounting in the aggregate to $6,960. The appeal is by de- 
fendant from said judgment. 

Appellant contends that the evidence is insufficient to sup- 
port several of the findings of the court, the first finding at- 
tacked being numbered 1, which stated that the parties hereto 
"formed a partnership." 

The finding that the relation existing between the parties 
was that of a partnership was based upon a written instru- 
ment (hereinafter to be called the "Keyes-Nims contra ct") 
which is in the following language : 

"Stockton, California, September 26th, 1916. 

"It is hereby agreed between F. B. Nims of Stockton, 
California, and A. V. Keyes of Stockton, California, that all 
dealings and contracts entered into with the Samson Sieve- 
Grip Tractor Company of Stockton, California, after the 27th 
day of September, 1916, that each shall have an equal in- 
terest, that is, share and share alike. 

"P. B. Nims. 
"A. V. Keyes." 

It is argued by appellant that the above agreement did not 
contain the essential elements of a partnership agreement, 
and that the parties, at the time of the signing thereof, did 
not intend to become partners. It is also contended by ap- 



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Ebtes v. Nims. [43 Gal. App, 



pellant that the said Keyes-Nims contract was never acted 
upon so as to 4< launch" a partnership. The above proposi- 
tions will be considered in their order. 

The consideration of the points thus relied upon by appel- 
lant will be clarified by first presenting a brief statement of 
the facts leading up to the execution of the said instrument 
and of the subsequent dealings between the parties. 

The plaintiff testified that he had been engaged for about 
ten years in the business of selling investment securities and 
that, in 1916, he secured a contract from the Samson Sieve- 
Grip Tractor Company (hereinafter called the Samson Com- 
pany), under the terms of which he was to endeavor to sell 
one hundred and fifty thousand dollars' worth of the capital 
stock of the company on a ten per cent commission basis. On 
September 20, 1916, plaintiff presented to defendant a 
"form" letter of introduction from J. M. Kroyer, president 
of the Samson Company, and endeavored to interest defend- 
ant in the purchase of stock. Plaintiff had previously sug- 
gested to Mr. Kroyer the advisability of establishing a manu- 
facturing plant in the middle west. In the course of the 
conversation with defendant, plaintiff mentioned the matter 
of building a factory in the middle west. Defendant said that 
he had just returned from Michigan and that he had a friend 
there who was desirous of entering into a contract for the 
agency of some tractor company. .Plaintiff testified: "I told 
Mr. Nims at this time, 'Mr. Nims, I feel that I can get a 
contract from the Samson Company if I had some man with 
me who was financially responsible,' that I knew that the 
Samson Company would not give me a contract because 1 
did not have the means to carry out the idea that I had, 
and asked him if he was . . . and he said that he was, that 
he would go as strong as forty thousand dollars." Plain- 
tiff said that defendant requested him to take the matter up 
with the Samson people, which he did, with the result that, on 
September 26, 1916, the Samson Company addressed to 
plaintiff a letter in which it was stated that at a directors' 
meeting it was decided to enter into such an agreement if satis, 
factory arrangements could be made. The letter also made 
tentative proposals for the execution of a contract. Plaintiff 
immediately submitted this letter to defendant, its terms were 
discussed and defendant suggested that plaintiff write a 
counter-proposal, which he did. During this conversation 



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Aug. 1919.] Keyes v. Nims. 



plaintiff said: "Mr. Nims, would you mind signing some 
kind of a simple agreement that in case anything happened 
to us, you having the contract in your name as we have dis- 
cussed it, I will have something to show that I have an in- 
terest therein t" Defendant replied: "Certainly." Plain- 
tiff prepared the Keyes-Nims contract and it was signed by 
defendant. The witness testified that in several conversations 
he had with defendant they had talked generally about how 
the matter should be financed, lie testified: "I stated to 
Mr. Nims that I didn't have money enough at that time 
hardly to pay the expenses incurred in the sale of this stock, 
and that I would have to wait before I could put in any 
money until such time as I had sold that stock and derived 
the commissions therefrom." Plaintiff showed defendant a 
copy of his commission contract with the Samson Company 
and witness stated that defendant said n that he was willing 
to finance me until such time as I got in returns from the 
sale of this stock." 

A contract between the Samson Company and defendant 
was drawn up and plaintiff said he had four or five interviews 
with defendant in which its terms were discussed by them. 
The contract was executed on October 23, 1916. By its terms 
defendant was given the right to erect one or more plants 
and to sell tractors in certain designated territory in the 
United States and Canada. Certain payments by defendant 
to the company were specified, the first being two thousand 
five hundred dollars to be paid upon the signing of the con- 
tract. 

Plaintiff testified that, about the 15th of October, 1916, 
defendant said to him that he, defendant, had a friend, of 
the name of Mr. Clarke, whom he had taken the liberty to 
invite into the proposition. Two or three days later a meet- 
ing was held at the Hotel Stockton at which were present 
plaintiff, defendant, and C. D. Clarke. As to what then oc- 
curred plaintiff testified: "There was a general discussion 
regarding different methods that we should finance this com- 
pany in the middle west, and Mr. Nims told Mr. Clarke, in 
bo many words, that I would receive from the sale of the 
stock of the Samson Company something over ten thousand 
dollars; ... I had a ten per cent contract to sell one hun- 
dred and fifty thousand dollars ' worth of stock. I replied 
that was true, and followed that up by stating that I would 



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6 Keyes v. Nims. [43 Cal. App. 

be perfectly willing, when that stock was sold and I would re- 
ceive my money from it, to put in any amount that would be 
agreed upon by us gentlemen at a later date, five or ten 
thousand dollars. . . . Mr. Nims stated to Mr. Clarke that 
he had to take care of me until such time as I sold the 
stock . . . Mr. Clarke suggested that he would come in with 
us and put up his third and send a check in a few days. Mr. 
Nims said, 'Well, boys, I am going through with it anyway.' 
Mr. Clarke says, 'Be assured in a few days I am going to 
come in.' . . . During this conversation no mention was made 
of the contract between Mr. Nims and myself." 

It further appears, and the court found, that on or about 
October 17, 1916, and prior to the obtaining of the royalty 
contract from the Samson Sieve-Grip Tractor Company, the 
plaintiff and defendant, by mutual consent, both offered to 
C. D. Clarke one-sixth of their respective interests, that said 
Clarke accepted said offer, and that thereupon the interests 
of said partnership and its assets of said Clarke, plaintiff 
and defendant were equal, each acquiring a one-third thereof; 
"that, during the month of January, 1917, defendant, without 
the knowledge or consent of plaintiff, agreed to return to said 
Clarke all moneys which he had theretofore advanced toward 
the aforesaid partnership business, and in return therefor 
the said Clarke agreed, without the knowledge or consent of 
plaintiff, to assign to defendant his one-third interest in and 
to said partnership and its assets"; that during the month of 
April, 1917, the said agreement between said Clarke and the 
defendant was consummated in accordance with the terms 
thereof, and that thereupon the said Clarke ceased to have 
any interest in said partnership or its assets. 

On or about April 3, 1917, defendant sold to the Samson 
Company his royalty contract with the company and received 
the sum of twenty-two thousand five hundred dollars. When 
plaintiff learned of this fact he asked defendant what he was 
"to get out of it," to which defendant replied, "You don't 
get a thing." 

Upon an accounting, subsequent to the trial, it was stipu- 
lated that defendant received twenty-two thousand five hun- 
dred dollars; he was credited with two thousand five hun- 
dred dollars the payment made by him on account of tho 
contract, and $574.20, disbursements made by him, leaving 
net proceeds in his hands of $19,425.80. Plaintiff waived all 



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Aug. 1919.] Eeyes v. Nims. 



claims for expenses and disbursements made by him, and the 
judgment in his favor was for one-third of said $19,425.80. 

It is proper to say and briefly to show herein that the de- 
fendant's version of the transaction between him and the 
plaintiff was, in material particulars, wholly at variance with 
that of the latter. The defendant testified that, at the time 
of the conference at the Hotel Stockton, it was understood 
that he and plaintiff owned the contract jointly. "I guess," 
he continued, "there is no question as to Mr. Keyes being a 
partner up to that time. Mr. Clarke understood it so, so 
did I." Referring to conversations leading up to the execu- 
tion of the Keyes-Nims contract, witness said plaintiff told 
him "that he had a contract with the Samson Company by 
which he would make fifteen thousand dollars, and, outside 
of a thousand he wanted to pay on his house, he could put 
the entire balance into the business"; that as the expenses 
accrued each was to put in his share of the money. The 
witness said that he told plaintiff that Mr. Clarke was de- 
sirous of coming into the business; that plaintiff consented 
to Clarke coming in and "said we would divide it three 
ways, that we would each put up $833.33, which would have 
to be paid to the Samson Company within two or three days." 
As to the meeting at the Hotel Stockton, which defendant 
said was on October 17th, he testified: "It was discussed that 
we would raise a fund of either five or ten thousand dollars 
each as a nucleus upon which to start our new plant. Mr. 
Clarke said, 'Mr. Keyes, are you ready to put up this money!' 
Mr. Keyes says, 'Yes, I will put up my money right off, right 
away.' ... I said, 'Whether either one of you go in or not, 
I have decided I am going to take on this contract/ Mr. 
Clarke said, 'Anyone who doesn't put up his money doesn't 
get in.' Mr. Keyes said that was agreeable to him. He 
sanctioned that." Clarke and defendant each paid $1,250 of 
the first payment of two thousand five hundred dollars to the 
Samson Company. 

C. D. Clarke testified, regarding the meeting at the Hotel 
Stockton, as follows: "We discussed the financing of the eon- 
tract with the Samson Company. I said, 'Boys, I am going 
to pay this money anyhow; I am going to take care of the 
contract.' And we each agreed to pay our share at once; 
that is to say, I agreed and Mr. Keyes agreed. I said, 'I 
will take one-third of it.' Mr. Keyes said he would pay one- 



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8 Keybs v. Nims. [43 Cal. Appu 

third of it. The matter of failure to pay was brought up 
and I said, 'Who fails drops out. 9 Mr. Kieyes said, 'That is 
0. K.' " The witness said that defendant did not say at 
the meeting that he would carry plaintiff for his share of 
the money that was to be paid upon the Samson Company 
contract. 

[1] But, in determining whether the findings of the 
court are supported, we are required only to look to the 
testimony presented by the plaintiff and, if sufficient, we may 
disregard, in such consideration, any adverse showing made 
by the defendant. It cannot be doubted that the testimony 
of the plaintiff amply supports all the vital findings made 
by the trial court; hence, the following must be regarded 
and accepted as the established facts of the case: That the 
Keyes-Nims agreement, as given above, was made and entered 
into by and between the plaintiff and the defendant ; that the 
intention of the parties, as expressed or contemplated by said 
agreement, was, according to an admission by the defendant, 
to enter into copartnership with respect to all dealings and 
contracts which they might have or enter into with the Sam- 
son Sieve-Grip Tractor Company, and that they were each to 
have an equal interest in such dealings and contracts; that, 
after the said agreement had been made, one Clarke was 
invited to enter as a third party into the agreement, and upon 
the consent of the plaintiff as well as that of the defendant 
did join the two latter in the proposed arrangement as a 
party thereto ; that Clarke and the defendant advanced their 
respective proportions of the aggregate amount of money 
required to carry out the agreement, and that the defendant 
agreed to advance the plaintiff's part thereof upon the agree- 
ment and understanding that the plaintiff, upon receiving 
certain moneys he had in prospect, would repay the defendant 
the money so advanced for plaintiff. 

The theory of the respondent, and the complaint proceeds 
upon that theory, is that the relation between the plaintiff 
and the defendant as produced by the agreement was that 
of a partnership; and the court below so decided. Counsel 
further contends, however, that if, strictly, the relation so 
produced was not that of a partnership, it certainly was that 
of a joint adventure. 

It is obvious that the agreement, as orisrinally formed, con- 
templated that there should be a division between the plain- 



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Aug. 1919.] Keyes v. Nims. 9 

tiff and the defendant of the profits derived from the busi- 
ness or enterprise in which they agreed to jointly engage, 
and to this extent the relation created between them by the 
agreement bears the earmarks of a partnership, which, as 
defined by our Code, is an 4< association of two or more persons 
for the purpose of carrying on business together, and divid- 
ing its profits between them/' (Civ. Code, sec. 2395.) On 
the other hand, the agreement related to a single transaction, 
viz., the procurement of a contract from the Samson Com- 
pany whereby the plaintiff and defendant would be permitted 
and authorized to erect one or more plants and to sell said 
company's tractors in certain designated territory in the 
United States and Canada, the plaintiff and the defendant, 
as seen, to share equally in said contract and the profits ac- 
cruing therefrom. [2] It is said by the authorities that one 
of the distinctions differentiating a partnership from a joint 
adventure lies in the fact that, while a partnership is ordi- 
narily formed for the transaction of a general business of a 
particular kind, a joint adventure relates to a single transac- 
tion, although the latter may comprehend a business to be con- 
tinued for a period of years. It is also said that another feat* 
ure distinguishing a partnership from a joint adventure is the 
fact that a corporation incapable of becoming a partner may 
bind itself by contract for a joint adventure, the purposes 
of which are within those of the corporation. (23 Cyc, p. 
453.) There are other features which differentiate the two 
relations, among which may be mentioned the element of 
principal and agent which inheres in the partnership relation, 
each partner embracing the character both of a principal and 
agent, being the former when he acts for himself in the part- 
nership. (Story on Partnership, sec. 1; Jackson v. Hooper, 
76 N. J. Eq. 185, [74 Atl. 130, 135].) In a joint adventure, 
no one of the parties thereto can bind the joint adventure. 

[3] But there is a considerable amount of law upon this 
subject, the discussion of which here may well be regarded 
as academic, since it is a matter of absolutely no consequence, 
so far as the decision of this case is concerned, whether the 
relation created between the parties to this action is that of 
a partnership or a joint adventure, or a limited partnership, 
which we are inclined to believe it to be; for it is held by 
the cases that the resemblance between a partnership and a 
joint adventure is so close that the rights as between adven- 



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10 Kbybs v. Nims. [43 Cal. App. 

turers are governed practically by the same rules that govern 
partnerships. (15 Ruling Case Law, p. 500.) Accordingly, 
a joint adventurer, as a partner in a partnership may do, 
may sue in equity for an accounting of the profits flowing 
from the joint adventure. [4] It is true that one party 
in a joint adventure may sue the other at law for a breach 
of the contract or a share of the profits or losses or a con- 
tribution for advances made in excess of his share, as where 
the adventure has been closed and a party thereto is entitled 
to a sum certain as his share of the adventure, but the right 
thus to sue at law does not preclude a suit in equity for an 
accounting. (15 Ruling Case Law, p. 507.) 

[5] The complaint here proceeds, as we have stated, upon 
the theory that the agreement between the parties involved 
the establishment of a partnership relation, and the court's 
decision was according to that theory, the interlocutory judg- 
ment decreeing a dissolution of "said partnership," that 
plaintiff is entitled to one-third of the net profits realized 
from "said partnership business,' ' and that plaintiff have an 
accounting of said "partnership business" to determine the 
amount of said net profits, etc. Conceding that it is diffi- 
cult to determine with accuracy from the pleaded facts and 
the evidence, or the agreement itself, whether the relation 
created by said agreement was a partnership or a joint adven- 
ture relation, still it is, of course plain that either one or 
the other of those relations is thus disclosed, and, since the 
enforcement of the rights of the parties may be accomplished 
by or through the agency of remedies applicable and per- 
tinent alike to both relations, it is, as above suggested, a 
matter of no consequence here whether the relation between 
the parties be that of a partnership or that of a joint ad- 
venture. An accounting and a termination of the relation in 
either case may be had in a proceeding appropriate to such 
relief in a court of equity (Jackson v. Hooper, supra), and, 
therefore, if we assume that the relation between the parties 
was that of a joint adventure rather than that of a partner- 
ship, the decree herein comes as clearly within the issues 
made by the pleadings as though the complaint had speci- 
fically alleged that the agreement was a joint adventure. It 
follows that, whether the relation between the parties was 
that of a partnership or that of a joint adventure, the evi- 
dence is, upon its face, sufficient to have warranted the 



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Aug. 1919.] Ektbs v. Nims. 11 

court below in finding and adjudging, as it did find and 
adjudge, that the plaintiff was entitled to one-third of the 
profits realized from the joint enterprise which was the sub- 
ject of the agreement between him and the defendant and 
to an accounting for the purpose of determining the extent 
or amount of such profits. 

The second point made by the appellant is that the original 
partnership, if such it was, whereby the plaintiff and the 
defendant associated themselves together for the purpose ot 
securing the contract referred to in their written agreement 
was never "launched" — that is, the partnership as then 
formed at no time proceeded to or did carry out the purposes 
for which it was organized. 

The position of appellant with respect to that proposition 
may perhaps the better be stated in the language of his brief, 
viz.: "In the case at bar, the terms of the two contracts were 
inconsistent. There were two parties to the Keyes-Nims 
agreement. There were three parties to the Clarke agree- 
ment. Nothing was said in the Keyes-Nims agreement as ti 
what amount of money each of the parties was to advance, 
or when. A condition precedent to obtaining an interest 
in the Clarke agreement was the payment of $833.33 forth- 
with by each party who desired to 'come in.' Everything 
done by appellant in protecting the SamBon contract, and sub- 
sequently disposing of said contract, was in pursuance of the 
Clarke agreement. After giving Keyes a reasonable time 
within which to advance his $833.33, as stipulated in the 
Clarke agreement, he no longer considered that Keyes had an 
interest in the project. If Keyes had intended to rely on the 
original Keyes-Nims agreement, he should have declined to 
accept the three-cornered proposition made at the conference 
at the Hotel Stockton on October 17, 1916." 

This position involves an attack upon the findings that the 
interests of plaintiff and defendant in "such partnership, as 
originally formed," were equal, each being entitled to three- 
sixths interest, and that on or about October 17, 1916, and 
prior to the procurement of the royalty contract from the 
Samson Company, "plaintiff and defendant, by mutual con- 
sent, both offered to C. D. Clarke one-sixth of their respective 
interests"; that Clarke accepted said offer and that there- 
upon each of the parties to the agreement, plaintiff, defend- 
ant, and Clarke, owned a one- third interest "in said partner* 



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12 Keyes v. Nim8. [43 Cal. App. 

ship" and its assets. It also involves the question whether 
there is a variance between the plaintiff's pleading and the 
proof — that is to say, whether the agreement declared upon 
by plaintiff is the agreement proved. 

It is argued that, when Clarke was admitted into the part- 
nership or association, upon the terms then agreed upon, viz., 
that each should contribute an equal amount to finance the 
concern, an entirely new contract was made which superseded 
and abrogated the original agreement between plaintiff and 
defendant; that Eeyes having failed to pay his proportion 
of the amount which it was then agreed would be necessary to 
carry out the purpose of the association, he forfeited whatever 
rights he might have acquired in the new arrangement or 
agreement 

As has been shown, the plaintiff testified and the court 
found that when the agreement between him and the defend- 
ant was entered into it was agreed that he was to share 
equally in the profits, and that the defendant promised and 
agreed to advance for plaintiff his share of the expenses of 
the venture or partnership and also any other sums of money 
which might become due from plaintiff to the partnership, 
"until such time as plaintiff would be financially able to 
reimburse defendant for such advances." The plaintiff testi- 
fied, aa seen, that such was also the understanding and agree- 
ment between him and defendant at the time Clarke was 
brought into the arrangement or agreement. 

[6] It is clear that, so far as plaintiff's right to a share 
of the profits realized from the enterprise is concerned, it ib 
immaterial whether it be true or not that the circumstance 
of admitting Clarke into the association or partnership 
worked a new agreement which superseded and abrogated 
the original agreement between Eeyes and Nims. The origi- 
nal agreement by Nims that he would advance whatever sums 
of money that might become due to the partnership from 
Keyes was reaffirmed by him at the time Clarke entered into 
the agreement as a party thereto. Moreover, Clarke was ad- 
mitted into the partnership, if such it was, upon the consent 
and agreement of the plaintiff as well aa that of the defend- 
ant; hence, if it was a new agreement, it was one which 
was made by all the parties, including the plaintiff. But, 
if the effect of the original agreement was to create a partner- 
ship relation between Keyes and Nims, as we believe it was, 



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Aug. 1919.] Keyes v. Nims. 13 

the fact of the taking of Clarke into such partnership did 
not constitute the making of such an agreement as would 
operate to supersede and abrogate the original agreement be- 
tween Eeyes and Nims. The situation, upon Clarke enter- 
ing the partnership, was simply this: That Eeyes and Nims 
had entered into an agreement of partnership for carrying 
on a certain designated business, and before carrying out 
the purpose of the agreement, took into the partnership, 
already so established and formed, another party as a partner 
therein. There was nothing in the terms of the so-called 
"new agreement" different from those of the agreement be- 
tween Eeyes and I .ms, except that said parties disposed of 
certain of their interests to the new partner and entered into 
an understanding that each of the three should contribute 
equally to the financing of the enterprise, should share equally 
in the profits accruing therefrom, and bear equally the bur- 
dens thereof. In fact, no more can be said of the effect 
of taking Clarke into the partnership than that it was either 
a qualification of the original agreement, to which Eeyes as 
well as Nims actually subscribed, whereby another partner 
was taken in and the terms more definitely specified, or that 
it was merely an agreement subsidiary or ancillary to the 
original. 

The cases cited by appellant are not in point here because 
the facts thereof are materially variant from those of this 
case. For instance, in the case of Black v. Hunter, 169 CaL 
632, [147 Pac. 463], cited by appellant, the original agree- 
ment, which involved a combination or association of the 
parties thereto for the purpose of effectuating a sale of 
particular tracts of land to the county of Los Angeles, to be 
used by the county for the erection thereon of a hall of 
records, had been entirely abandoned by the parties after a 
futile effort by them to make a sale of the properties. It 
appears that the parties to said agreement were one Hunter 
and the appellant Black, who, having learned that Rowan & 
Co., real estate brokers, had other lands which they were 
trying to sell to the county, to be used for the same purpose, 
took said Rowan & Co., in with them and made them parties 
to their agreement, the purpose being to put an end to the 
rival propositions of said brokers. It was this agreement that 
was abandoned because of a failure to make the sale. Sub- 
sequently Hunter and Rowan & Co. entered into a contract 



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14 Keyes v. Nims. [43 Cal. App. 

whereby they agreed between themselves to secure the right 
to sell the same lands to the county and, if successful, to 
divide equally between themselves the commissions realized 
from the sale. The sale was effected by them, and they re- 
ceived the stipulated commissions, whereupon Black, who was 
not a party to the second agreement, brought suit to recover 
a share of the commissions, claiming that "the first contract 
was one of copartnership; that the second was not a sub- 
stitution for it, but merely took Rowan & Co. into the trans- 
action as an agent of the copartnership and, therefore, the 
cancellation of the second contract (and appellants admit 
that it is no longer in existence) did not abrogate the original 
agreement of copartnership." The supreme court, through 
Mr. Justice Melvin, held that the finding that the tripartite 
agreement had been terminated by the parties themselves and 
said agreement abandoned was fully sustained by the evi- 
dence. And, even if, as the appellant in that case contended, 
the original agreement had not been abrogated by the sub- 
sequent or tripartite agreement but was a part of the latter, 
the abandonment and cancellation of the tripartite agreement 
by all three parties thereto would necessarily have in- 
volved the abandonment and cancellation by said parties of 
the original agreement. 

But be that as it may, in this case there was not an aban- 
donment of the original agreement, by the acts of the parties 
themselves, as was true in the case above considered, nor 
was there any evidence or pretense that the agreement to 
which Clarke became a party was independent of any and 
all consideration of the original contract. Keyes had con- 
ceived and proposed the scheme to Nims, who, in writing, 
agreed with the former to enter upon its consummation with 
him upon the understanding that they should share equally in 
the profits resulting from it. Nims suggested to Keyes the 
advisability of "taking in Clarke," because the latter was 
able to assist in financing the proposed enterprise, and in 
taking him in, both Keyes and Nims acted with reference to, 
and in view of, the agreement between them as originally 
formed. They, in other words, merely brought Clarke into 
their agreement, as originally formed, as a party thereto with 
themselves. Indeed, there was nothing to take Clarke in on 
but the agreement, for the business itself to which the agree- 



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Aug. 1919.] Eeyes v. Nims. 15 

ment related had not been started or even the facilities for 
its operation obtained at that time. 

The other cases cited by the appellant in their facts bear 
no nearer analogy to the instant case than does the case of 
Black v. Hunter, above considered. The principles discussed 
in those cases are therein soundly applied, but the facts to 
which they are therein applied are entirely different from 
those with which we are here confronted . 

The judgment is affirmed. 

Chipman, P. J., and Burnett, J. f concurred. 

A petition for a rehearing of this cause was denied by the 
district court of appeal on September 24, 1919. and the follow- 
ing opinion then rendered thereon : 

HART, J. — In his petition for a rehearing the appellant 
calls our attention to the fact that, in our original opinion, 
we overlooked the proposition urged by him in the briefs that 
the court below erred in allowing the plaintiff interest on th« 
latter 's share of the amount for which the defendant sold 
the royalty contract with the Samson Company. [7] The 
failure to consider the question of interest was purely an 
oversight, and, as it is an important question herein, it should 
have been considered, but we do not see the necessity of 
granting a rehearing for that purpose, and we will, therefore, 
consider and dispose of the point on this application without 
ordering a rehearing. 

Counsel for appellant take the position that the demand de- 
clared upon by the plaintiff was uncertain or unliquidated, 
and that, therefore, it was error to include in the judgment 
against appellant interest on the amount awarded the plain- 
tiff from the date of the sale and the payment of the money 
to appellant, which was April 3, 1917, In support of this 
position there are cited many California cases, of which the 
leading ones are: Cox v. McLaughlin, 76 Cal. 60, [9 Am. St. 
Rep. 164, 18 Pac. 100] ; Ensterbrook v. Farquharson, 110 Cal. 
311, [42 Pac. 811], and Edwards v. Arp, 173 Cal. 476, [160 
Pac. 551]. 

The reason for the denial of interest on unliquidated de- 
mands is said to be "that the person liable does not know 
what sum he owes, and, therefore, can be in no default for not 



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16 Keyes v. Nims. [43 Cal. App. 

paying." (Cox v. McLaughlin, swpra.) But it is further 
said in that case: "We are not prepared to say, in general 
terms, that no interest in any case can be recovered in an 
action upon contract for an unliquidated demand. Mix v. 
Miller, 57 Cal. 356, decided since the adoption of the code, 
and McFadden v. Crawford, 39 Cal. 662, decided previously, 
attest the doctrine that in this state interest is allowable on 
such demands under some circumstances. These were cases 
in which the contract had been fully performed by the credi- 
tors, the fruits thereof accepted by the debtors, without ob- 
jection, and they were clearly in default, and in the latter 
case the only question was as to value." (Italics ours.) 
This language is approvingly adopted into the opinion in 
Easterbrooh v. Farquharson, 110 Cal. 317, [42 Pac. 811], 
supra. 

In the case of Robinson v. American Fish Co., 17 Cal. App. 
212, 220, [119 Pac. 388, 391], the defendant had agreed with 
the plaintiff and a number of assignors of the latter to pur- 
chase fish from them, to be delivered to the defendant in the 
city of San Francisco. Action was brought by plaintiff to 
recover the aggregate sum of $815.60, which amount repre- 
sented the demands of the plaintiff and his several assignors 
for fish delivered by them to defendant. The court awarded 
judgment to plaintiff in the total sum sued for, together with 
interest thereon at the legal rate of seven per cent per annum 
from the date of the delivery of the fish. In that case, on 
appeal, it was strenuously insisted that the demands declared 
upon were unliquidated and that the trial court, therefore, 
erred in allowing interest from the date of the delivery of the 
fish. There was a dispute therein as to whether the price 
agreed upon for the fish was a cent and a half or two cents 
per pound. This court, disposing of the question of interest 
in that case, said : 

"There is no merit in the contention that the plaintiff 
was not entitled to interest on the several pleaded claims from 
the twenty-third day of October, 1910— the day on which 
the fish mentioned in the complaint were sold and delivered 
to appellant. The quantity of fish sold to and received by 
appellant and the price to be paid therefor were definitely 
fix 'VI and known to appellant. It was not necessary, in other 
woimLs, to resort to evidence in court or to an accounting or 
by an accord between the parties to establish the amount due. 



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Asg. 1919.] Eetes v. Nims. 17 

To ttvc contrary, the amount was susceptible of ascertainment 
by simple computation. {Cox v. McLaughlin, 76 Cal. 60, [9 
Am. St. Rep. 164, 18 Pac. 100], and cases therein cited; 
Easterbrook v. Farquharson, 110 Cal. 311, 317, [42 Pac. 
811] ? Courtney v. Standard Box Co., 16 Cal. App. 600, [117 
Pac. 778].) Indeed, there seems to have been no dispute as 
to tho quantity of fish delivered to appellant by Meng, and 
while there was some controversy involving the price per 
pound which Junta agreed to pay therefor — that is, whether 
the price agreed upon was a cent and a half or two cents 
per pound — still the total amount due at either price was 
capable of ready ascertainment by mere computation, and, 
therefore, required no accounting to reach the precise sum 
due. As is said in Courtney v. Standard Box Co., 16 Cal. 
App. 600, [117 Pac. 778], so it is true here: 'Whether in- 
terest has been allowed upon the theory that compensation 
is thus awarded plaintiff for the use of his money, past due 
(Civ. Code, sec. 1917), or as damages for defendant's (appel- 
lant's) wrongful withholding of said money from plaintiff 
(Civ. Code, sec. 3287), in either case the allowance was 
perfectly proper.' " (We also call special attention to the 
Courtney case, cited above in the Robinson case.) It should 
be stated that a petition for a hearing of the Robinson case 
by the supreme court after judgment by this court was denied. 
The comparatively recent case of Howard v. Hobson Co., 
38 Cal. App. 445, [176 Pac. 715], was an action by one 
broker against another to recover one-half of the amount in 
txcess of that for which certain real estate was to be sold 
for the owner, an agreement having been entered into by and 
between the brokers whereby they were to divide equally be- 
tween themselves such excess amount Judgment went for 
the plaintiff, with legal interest from the date of the sale 
of the property by the other broker. The evidence disclosed 
that the expenses incident to the negotiation and consumma- 
tion of the sale of the property were to be deducted from the 
amount which the brokers were to receive as their compensa- 
tion for effecting the sale. The contention on appeal in that 
case as to interest was, among other objections urged against 
the allowance of interest, that the demand sued on was un- 
liquidated, and that, consequently, interest was not allowable 
prior to the date of the entry of judgment. That conten- 
tion was rejected, and, among other things, this court said: 

48 0*1. App.— % 



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18 Keybs v. Nims. [43 Cal. App. 

"As above stated, the moment that the sale of the ranch 
was fully effected and completed by the defendant, that 
moment the latter became indebted to the plaintiff in an 
amount equal to one-half of the net sum received by the de- 
fendant over and above that paid for the property to the 
owner of the ranch ; and at that moment of time the amount 
due the plaintiff became certain and definite or capable of 
becoming readily so by the simplest of arithmetical calcula- 
tion by the defendant of the difference between the 'excess 
amount' and the amount of the expense which it was neces- 
sary for it to incur to negotiate and consummate the sale. 
The defendant, of course, knew precisely what the expense 
of selling the ranch amounted to, and, of course, knew the 
'excess amount' received, by him from the sale over the pur- 
chase price. The amount due the plaintiff, therefore, con- 
stituted, within the meaning of the law, a liquidated de- 
mand." The supreme court, it should be remarked, denied 
a hearing in that case after judgment in this court. 

[8] In the present case the defendant, according to the 
findings, which are sufficiently supported, became indebted to 
the plaintiff in the sum to which the latter was entitled as 
a partner the moment that he (defendant) sold the royalty 
contract and received the money therefor. The plaintiff, it is 
true, sued for one-half of the amount received by the defend- 
ant for the royalty contract, while the court awarded him 
one-third of the amount only. But this did not make the 
demand uncertain or unliquidated. The defendant, it ap- 
pears, at all times had control and management of the en- 
terprise. He knew whether Clarke had or had not paid over 
his share of the amount agreed upon as the necessary total 
amount to launch the enterprise. The plaintiff appears to 
have had very little knowledge of what was going on in the 
prosecution of the end3 of the copartnership, and it is prob- 
able, having heard that Clarke had withdrawn from the con- 
cern, that he sued on the theory that Clarke had never paid 
over his share of the working capital of the firm, and was, 
therefore, as a matter of fact, never a partner, and hence con- 
ceived that he was entitled to one-half of the profits of the 
enterprise, or of the amount for which the defendant sold 
the royalty contract. But, whether the defendant was en- 
titled to one-half of the amount received for the royalty con- 
tract or to one-third only is entirely immaterial, so far aa 



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Aug. 1919.] Keyes t/. Nims. 19 

the question of interest is concerned. The defendant know, 
as we may assume from the findings, that the plaintiff had 
an interest in the partnership. What that interest was was 
a disputed question between them, but it was either a one- 
half or a one-third interest. As to this, then, the only ques- 
tion to be determined was as to the extent of the plaintiff's 
interest. Whether it was found to be one-half or only one- 
third, in either case the demand was certain, definite, and 
liquidated. 

The cases holding that interest is not allowable is where 
the demand is based upon a quantum valebat or a quantum 
meruit, in which it must be determined upon the evidence 
what the amount is, or where the amount of the demand must 
be determined by an accounting or by an examination of 
numerous accounts and counterclaims. This is not such a 
case, as we have shown. As stated, the amount of the de- 
mand here was ascertainable by a mere determination of the 
question whether the plaintiff's interest was one-half or only 
one-third in the partnership, and the defendant himself, if he 
knew the plaintiff had any interest at all, knew whether it was 
the one or the other. Therefore, when we consider the reason 
upon which is founded the rule that, generally speaking, in- 
terest will not be allowed on an unliquidated demand prior 
to the date of the entry of judgment therefor, viz., "that the 
person liable does not know what sum he owes, and therefore 
can be in no default for not paying," we readily perceive 
that the demand sued on here does not come within that rule 
— that is, that it is not unliquidated in the sense that interest 
is not payable upon it from the date the money was received 
by defendant. 

The case of Easterbrook v. FarquJiarson, supra, cited by the 
appellant, was where the plaintiff leased to the defendant's 
assignor certain real property, upon which the lessor was to 
and did erect a building, under an agreement that on the last 
day of the term of the lease the lessor would pay the lessee 
two-thirds of the appraised value of the building, to be as- 
certained by three appraisers, one of whom was to be selected 
by the lessor, one by the lessee, and the third by the two so 
selected. The two appraisers appointed by the parties failed 
to select a third, and themselves failed to agree upon the 
value of the building. Some six months thereafter, nothing 
further having been done in the matter of the appraisement 



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20 Keybs v. Niks. [43 Cal. App. 

of the value of the building, although the lessor and lessee in 
the meantime had considerable negotiations looking to an ad- 
justment of the matter, the lessor brought suit, setting forth 
the facts and the impracticability of securing an appraisement 
by the scheme agreed upon by him and the lessee, averring his 
readiness at all times to pay the defendant (lessee) two-thirds 
of the cash value of the building, and asking the court to 
determine the value of the building at the date of the termin- 
ation of the lease, and so fix the amount due from him to 
defendant. The trial court found the value of the building, 
and, while in its findings it did not fix upon the plaintiff 
or his appraiser the responsibility for failure to agree upon 
an appraisement, nevertheless allowed interest on the amount 
found to represent the value of the building from the date 
of the termination of the lease. The supreme court held that 
the allowance of interest from the date of the termination of 
the lease was erroneous, and said: "To entitle respondent to 
interest as damages he must bring himself within the terms of 
section 3287 of the Civil Code. That section awards interest 
to every person who is entitled to recover damages, certain, or 
capable of being made certain, by calculation, where the right 
of recovery is vested in him upon a particular day. But 
damages are the compensation for the unlawful act or omis- 
sion of another (Civ. Code, sec. 3281), and, as has been said, 
appellant had been guilty of no wrong. He went into court 
asking a settlement of his account with respondent, and under 
section 1917 of the Civil Code the sum bore interest only from 
tho day of its judicial ascertainment." 

It is plainly manifest that the above case is not in point 
here, and is no authority against the allowance of interest 
in the present case from the date the right of recovery was 
vested in the plaintiff, which was the time when the defend- 
ant received the money for the royalty contract. 

It is not necessary to review the case of Edwards v. Arp, 
173 Cal. 476, [160 Pac. 551], supra, also cited by appellant 
in the petition, it being only necessary to say that in its facts 
it presents an entirely different situation upon the question 
of interest from that we find here. 

The appellant further asks in his petition that the case be 
reopened for a further review of questions considered in the 
original opinion. We are satisfied with the views expressed 
and the conclusion announced in the former opinion as to the 



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Aug. 1919.] Mott v. Wright. 21 

legal nature of the agreement between the parties hereto and 
the effect of making Clarke a party to said contract. We may 
repeat, though, what we have already said, that we do not con- 
sider that the contract sued on is at variance with the one 
proved. The fact merely is, according to the result reached by 
the trial court from the proofs, that the plaintiff sued upon the 
theory that he had a larger interest in the partnership than 
he in fact was entitled to. Thus the situation is the same 
as where a party sues for a certain sum alleged to be due 
under a contract with the defendant, but the proof shows 
that he is entitled to judgment for a less sum than that de- 
manded by his complaint. Such a result, of course, does not 
mean that the plaintiff sued on one contract and proved and 
recovered on another. 

The petition for a rehearing is denied. 

Chipman, P. J., and Burnett, J., concurred. 



[Civ. No. 8007. Third Appellate District.— August 86, 1919.] 

PHILIP P. MOTT, Appellant, v. PRANK E. WRIGHT et al., 
Respondents. 

CHESTER E. KING, Appellant, y. PRANK E. WRIGHT 
et al., Respondents. 

A. R. MacSWAIN et al., Appellants, y. PRANK E. WRIGHT 
et al., Respondents. 

[1] Mechanics' Liens — Action to Foreclosi — Completion of Con- 
tract — Evidence, — In an action to foreclose a mechanic's lien, 
testimony that work or labor ceased on the building in question 
on a given date, that the last work necessary to be done on the 
building to complete the contract was performed on that date, 
and that the building was then completed and nothing more was 
to be done thereon, is equivalent to testimony that the contract 
was completed on that date, and from it the trial court was justi- 
fied in so finding, if it believed such testimony. 

£2] Id. — Cessation from Labor — Constructive Completion. — The 
cessation from labor by reason of the actual completion of the 
contract is not the cessation of labor which, under section 1187 



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22 Mott v. Wrtght. [43 Cal. App. 

of the Code of Civil Procedure, itself constitutes a constructive 
completion of the building or contract. 

[3] Id. — Conflicting Evidence — Finding — Appeal — Invalid Claims. 
Id an action to foreclose a mechanic's lien, testimony tending to 
show that the building was completed at a later date than that 
testified to by the witnesses for the defendants, and as found by 
the court, merely raises a conflict in the evidence upon that issue, 
and the trial court having resolved such conflict in favor of the 
defendants, the appellate court is concluded by its findings, and 
claims of lien not filed within ninety days of the date of com- 
pletion, so found, are ineffective. 

[4] Id. — Time fob Filing Claims — Substantial Completion. — All 
that the statute requires, to fix the time from which the right of 
lien claimants to file their liens begins to run, is that there be, 
so far as actual completion is concerned, a substantial completion, 
and, in this case, the testimony shows that there was such a com- 
pletion, if not more than that. 

[6] Id. — One Hundred and Twenty Day Rule — Application of. — 
The rule as to the one hundred and twenty days' period after 
cessation from labor within which claims may be filed has no 
application where there is an actual completion. 

[6] Id. — Occupation op Building During Performance of Work — 
Presumption of Completion. — Where the lien claimants do all 
their work after the occupation or use by the owner takes place, 
or while the owner is occupying or using the building, this occupa- 
tion or use is not such as raises a conclusive presumption of com- 
pletion under the statute. 

[7] Id. — Personal Liability of Owner — Want of Prtvity. — Where 
there is no contract, either express or implied, between the owner 
and the lien claimants for materials furnished and labor per- 
formed, such owner cannot be held personally liable therefor. 

[8] Id. — Performance at Request of Contractor — Pleading — Re- 
covery in Quantum Meruit. — Where, in an action to foreclose 
a mechanic's lien, it is alleged in the complaint that the labor 
bestowed upon and the materials furnished for the building were 
so bestowed and furnished in pursuance of the contract between 
the contractor and the owner and were bestowed and furnished 
at the instance of the contractor, and no issue as to the reason- 
able value of the labor and the materials is submitted in the form 
of a common count, no recovery can be had against the owner in 
quantum meruit. 

[9] Id. — Apportionment of Price — Contract Severable. — Where the 
agreed price for performing a given contnet is apportioned to 
each item according to the value thereof and not as one unit, *mch 
contract is not an entire one, but is severable. (On petition fur 
rehearing.) 



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Aug. 1919.] Mott v. Wright. 23 

APPEAL from a judgment of the Superior Court of 
Sacramento County. Charles 0. Busick, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

W. A. Oett and Johnson & Lemmon for Appellants. 

Devlin & Devlin for Respondents. 

HART, J. — The actions were brought to enforce me- 
chanics* liens and were consolidated for trial. Judgment was 
rendered in favor of plaintiffs against Prank P. Williams, the 
contractor, and in favor of Prank E. Wright, the owner, for 
his costs; and that the plaintiffs were not entitled to liens 
upon the premises described in the complaints. Hie appeal 
is by plaintiffs from the judgment. 

The owner, defendant Wright, entered into a contract with 
the contractor, defendant Williams, for the removal of a 
cottage from 11th and Streets, in the city of Sacramento, 
to 24th and L Streets, in said city, and for the raising of said 
cottage and constructing flats underneath the same. The 
liens in question are sought to be enforced against the lot on 
23d and L Streets. Work started on the flats about the 
middle of February, 1915, and continued without cessation 
until the twelfth day of May, 1915. Prom about March the 
owner occupied the upper portion of the building and later 
on tenants occupied the flats. 

It was found by the court that defendant Wright entered 
into a contract with defendant Williams, "which said contract 
was never recorded in the office of the county recorder of 
Sacramento County/ 1 under which said contractor agreed to 
construct said building; that no notice of completion of said 
building or contract and no notice of cessation of labor were 
recorded: "that the said building and said contract were 
completed on the twelfth day of May, 1915. That subsequent 
to said twelfth day of May, 1915, the plaintiff Chester E. 
King repapered a portion of the hallway of the building lo- 
cated on said premises. That the papering of said hallway 
had been completed by said plaintiff Chester E. Ring prior to 
the twelfth day of May, 1915, but said papering was defec- 
tively done by said plaintiff Chester E. King, whereby it 
became necessary for him to repaper a portion of said hall- 



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24 Mott v. Wright. [43 Cal. App. 

way. That the cost of repapering said hallway subsequent 
to the said twelfth day of May, 1915, was the sum of $2.40. 
That the condition of said hallway subsequent to the twelfth 
day of May, 1915, was a trivial imperfection in said work and 
was not such as would prevent filing of liens. That the cost 
of said repapering said hallway was trivial in comparison with 
the cost of the work and improvements that were done under 
said contract." 

The liens which are sought to be enforced were filed, re- 
spectively, August 12, 15, and 18, 1915. The complaints 
alleged the completion of the work on June 1st. 

It is strenuously argued by appellants that the finding that 
the building was actually completed on May 12, 1915, is un- 
supported by the evidence. The contractor testified that the 
last work he did was about May 28th or June 1st ; Mott, the 
plumber, said that he went to the building on June 2d to 
fix a water-pipe; and King, the painter and paper-hanger, 
testified that he worked personally on the building about the 
14th or 15th of May and that in the week ending May 29th 
one man worked there. King produced his " labor-book" 
showing the following entries: "May 15. Bert Renner. 
$2.50. May 29. Pape. $2.00.' ' The last item was ex- 
plained to have been for repairing in the hall where the 
plaster had burned through the paper. It was also explained 
that the men working for Mr. King turned in their time- 
cards every Saturday, showing the time they had worked 
during the week ; that the time-cards were destroyed and the 
total paid each man entered in the labor-book at the week- 
end. Consequently the item of May 15th covered work that 
may have been performed on any day between the 10th and 
15th, both inclusive, and the work shown by the item of May 
29th may have been done on any day between the 17th and 
29th, both inclusive. 

The testimony on behalf of respondent on this point was 
as follows: M. F. Trebilcox testified that the two lower flats 
were rented to tenants who took possession on April 1st. Mr. 
Dunn, one of the tenants, testified that he took possession on 
April 7th of the east lower flat; that at the time it was 
finished and ready for occupancy and there were no mechanics 
working in the building after that except, he believed, some 
painters were working on the garage, and he did not think 
they had finished upstairs; he thought the west flat was also 



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Aug. 1919.] Mott v. Wright. 25 

finished; that some carpenters were working "for maybe a 
week or more." Defendant Wright testified that he moved 
into the building the 1st of March ; that labor ceased on May 
12th and at that time there was no further work to be done 
on the property, either the upper part or the lower flats. 
Mr. Wright's wife corroborated his testimony. 

The discussion to follow will be the better understood by 
first reproducing herein the provisions of section 1187 of the 
Code of Civil Procedure pertinent to the points advanced 
here by the appellants. Said section provides that every 
person save the original contractor "claiming the benefit of 
this chapter [on the enforcement of liens of mechanics, 
laborers, and materialmen], within thirty days after he has 
ceased to labor or has ceased to furnish materials, or both; 
or at his option, within thirty days after the completion of 
the original contract, if any, under which he is employed, 
must file for record ... a claim of lien ..." The said sec- 
tion further provides: "Any trivial imperfection in the said 
work, or in the completion of any contract by any lien claim- 
ant, or in the construction of any buildings . . . shall not 
be deemed such a lack of completion as to prevent the filing 
of any lien; and, in all cases, any of the following shall be 
deemed equivalent to a completion for all the purposes of this 
chapter: the occupation or use of a building, improvement, 
or structure, by the owner, or his representative; or the ac- 
ceptance by said owner or said agent, of said building, im- 
provement, or structure, or cessation from labor for thirty 
days upon any contract or upon any building, improvement 
or structure or the alteration, addition to, or repair thereof ; 
the filing of the notice hereinafter provided for. The owner 
may, within ten days after completion of any contract, or 
within forty days after cessation from labor thereon, file fcr 
record in the office of the county recorder of the county where 
the property is situated, a notice setting forth the date when 
the same was completed, or on which cessation from labor oc- 
curred, together with his name and the nature of his title, 
and a description of the property sufficient for identification, 
which notice shall be verified by himself or some other person 
on his behalf. ... In case such notice be not so filed, then the 
said owner and all persons deraigning title from or claim- 
ing any interest through him shall be estopped in any pro- 
ceedings for the foreclosure of any lien provided for in this 



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26 Mott v. Wright. [43 Cal. App. 

chapter from maintaining any defense therein based on the 
ground that said lien was not filed within the time provided 
in this chapter; provided, that all claims of lien must be 
filed within ninety days after the completion of any build- 
ing, improvement or structure, or the alteration, addition 
or repair thereto." 

The appellants insist that the evidence without conflict shows 
that there was not an actual completion of the building under 
the contract on the twelfth day of May, 1915, but that there 
was only a constructive completion by cessation from labor 
on said day. But in this they are mistaken. [1] Wright, 
the owner, testified, it is true, that work or labor ceased on 
the building on the twelfth day of May, 1915. He also testi- 
fied, as seen, and Mrs. Wright corroborated him, that the 
last work necessary to be done on the building to complete 
the contract was performed on the twelfth day of May and 
that the building was then completed and nothing more was 
to be done thereon. Of course, that testimony was the equiva- 
lent of testimony that the contract was completed, and from 
it the trial court was justified in so finding, if it believed the 
testimony, as obviously it did. [2] Manifestly, there must 
have been a cessation of labor when the building was com- 
pleted according to the terms of the contract,but the cessation 
from labor by reason of the actual completion of the con- 
tract is not the cessation from labor which, under section 1187, 
itself constitutes a constructive completion of the building 
or contract. 

[3] There is, it is true, some testimony slightly tending to 
show that the actual completion occurred at a later date, 
which would render the liens effective, but this merely raised 
a conflict in the evidence upon that issue which the trial court 
resolved, as it was within its constitutional province to do, 
in favor of the defendants. This court is, as is well under- 
stood, concluded by the findings so made, and must accept 
as the fact that the building was actually completed according 
to the terms and requirements of the contract on the twelfth 
day of May, 1915. It follows therefore, that the appellants 
filed their claims too late to render them effective or of any 
force. 

[4] As to the work of repapering a portion of the hall- 
way on May 29, 1915, by Kinjr, who had the contract for 
papering the house, the uncontradicted testimony upon that 



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Aug. 1919.] Mora v. Weight. 27 

point shows that said work of repapering occurred after King 
had finished his contract. Wright, the owner of the house, 
called on King after the building had been in all respects com- 
pleted, and, informing him that there was a defect in the 
papering in the hallway, requested him (King) to repaper 
the defective part, and, as seen, on the twenty-ninth day of 
May, King did so. This work of repapcring required, ac- 
cording to the testimony, approximately two hours' time. If 
the testimony of King as to this matter is to be accepted, the 
defect in the papering was not due to any remissness or lack 
of proper skill or care on his part in doing the work origi- 
nally, but to some circumstance or fact subsequently occur- 
ring and over which he had no control; and if this be true, 
the work of repapering was as far removed from any con- 
sideration of the original contract as though the papering had 
naturally become defective from long use. But however that 
may be, it is clear that if the original papering was defec- 
tively done and the repapering was for that reason required 
to be done, it amounted to a trivial imperfection only in the 
work, within the meaning of that language in section 1187. 
-All that the statute requires, to fix the time from which the 
right of lien claimants to file their liens begins to run, is 
that there be, so far as actual completion is concerned, a 
substantial completion, and, in this case, the testimony shows 
that there was such a completion, if, indeed, not more than 
that. (Willamette etc. Co. v. Los Angeles College Co., 94 
Cal. 229, 237, [29 Pac. 629] ; Harlan v. Stufflebeem, 87 Cal. 
508, [25 Pac. 686] ; Santa Monica L. & M. Co. v. Hege, 119 
Cal. 376, 379, [51 Pac. 555] ; Schindler v. Green, 149 Cal. 752, 
754, [87 Pac. 626] ; Bianchi v. Hughes, 124 Cal. 24, 27, 
[56 Pac. 610] ; Jost v. Sullivan, 111 Cal. 286, 292, [43 
Pac. 896].) 

[6] The foregoing, of course, disposes of the proposition 
earnestly urged by the appellants that the completion was not 
actual but by cessation from labor, and that, therefore, they 
were entitled to file their liens at any time within one hun- 
dred and twenty days from the date of the cessation from 
labor, and that in that view their liens were seasonably filed 
under the law. But there is some intimation by appellants 
in their briefs that the one hundred and twenty days' limi- 
tation applies in all cases of completion, whether actual or 
statutory, and they cite as supporting that view the cases of 



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28 Mora v. Weight. [43 Cal. App. 

Buell v. Brown, 131 Cai. 158, [63 Pac. 167], and Farnham 
v. California Safe Deposit <b Trust Co., 8 Cal. App. 266, 
[96 Pac. 788]. 

In each of those cases the lien claimants relied upon a 
constructive completion of the contract by cessation from 
labor, and it was held that where a contract has not been 
actually completed but there was a constructive completion 
by cessation from labor for the period of thirty days, and 
no notice of such cessation had been filed by the owner with 
the office of the county recorder, lien claimants have ninety 
days from and after the expiration of the thirty days of ces- 
sation from labor within which to file their liens. In other 
words, in such case lien claimants relying on completion by 
cessation from labor are, like those relying on actual com- 
pletion, limited, as to the time within which they may file 
their liens, where the owner has failed or neglected within 
the prescribed period to file with the county recorder a notice 
of the cessation from labor, to ninety days from the time that 
there has been a completion by cessation from labor (thirty 
days from and after the time of such cessation) within which 
to file their liens, or one hundred and twenty days from 
the date of the cessation from labor. But, in this case, 
there was an actual completion, and the rule as to the 
one hundred and twenty days' period can have no 
application where there is an actual completion. The 
statute plainly provides that all claims of lien must 
be filed within ninety days after the completion of any 
building, improvement, etc., and, as a matter of fact, that 
provision, as above suggested, applies not only to cases of 
actual completion, but also to those of constructive com- 
pletion, including completion by cessation from labor, for in 
the latter case, as is obvious, there is no completion until 
there has been a cessation from labor for the period of thirty 
days, from and after which time the lien claimant has, by 
virtue of the estoppel arising against the owner upon his 
failure to file with the county recorder notice of the cessation 
from labor, ninety days within which to file his lien. 

Counsel for the respondents state in their brief that the 
appellants claim, for the first time on this appeal, that there 
was a constructive completion of the contract through occu- 
pation and use of the building by the owner. But counsel 
for appellant! make no such contention here. Indeed, in 



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Aug. 1919.] Mott v. Weight. 



their closing brief they positively declare that there is no 
ground afforded by the record for any such claim, and in 
this they are clearly right. The owner never ceased occupy- 
ing the building at any time pending the reconstruction or 
alteration thereof, except during the brief time the building 
was in the course of removal from Eleventh and Streets 
to Twenty-third and L Streets, in Sacramento. [6] The 
lien claimants here involved did all their work after the 
occupation or use by the owner took place, or while the owner 
was occupying and using the building. This, quite clearly, is 
not such an occupation or use as raises a conclusive presump- 
tion of completion under the statute. (Orlandi v. Gray, 125 
Cal. 372, 374, [58 Pac. 15] ; Boscus v. Waldmonn, 31 Cal. 
App. 245, 255, [160 Pac. 180].) 

[7] It is lastly contended that, because the materials and 
the labor were furnished with the knowledge and consent of 
Wright, an implied contract arose between the claimants and 
Wright, and that having received the benefit of the labor 
performed and the materials furnished, Wright ought in 
equity and good conscience to be held to be personally liable 
and compelled to pay the appellants their claims. There are 
two answers to this proposition, viz. : 1. As the court found, 
upon sufficient evidence, to be true, the materials and labor 
were furnished to Williams, the contractor, and, as is neces- 
sarily implied from that finding, the materials and the labor 
were not furnished to Wright. In other words, there was 
no contract, either express or implied, between the material- 
men and the laborers and the owner. There was, therefore, 
no privity of contract between the defendant Wright and the 
several lien claimants. Obviously, to sustain an action 
against Wright it must be upon the theory that he is per- 
sonally liable, and to render him personally liable, there must 
be shown to exist a contract, express or implied, or a con- 
tractual privity, between him and those claiming liens. [8] 
2. The complaints, in neither counts thereof, submit any issue 
as to the reasonable value of the labor and the materials in 
the form of a common count. It is true that the complaints 
are in two counts, but in both it is alleged that the labor 
bestowed upon and the materials furnished for the building 
were so bestowed and furnished in pursuance of the con- 
tract between the contractor and the owner and were be- 
stowed and furnished at the instance of the contractor. 



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80 Mott v. Wright. [43 Cal. App. 

There is no allegation in either count of the complaints that 
the materials were furnished for and the labor done on the 
building at the direct instance of Prank E. Wright, the 
owner, or at his instance at all. There is, in short, no at- 
tempt to rely upon a common count in the form of a quantum 
meruit. While the second count in each of the complaints 
alleges that the materials and the labor were "of the reason- 
able value of " the respective amounts of the several claims, 
the right to the enforcement of the payment of said claims 
is expressly and primarily based upon the contract between 
Williams and Wright and upon the theory that said materials 
and labor were furnished and bestowed at the instance of 
Williams, the contractor. 

The case of Southern California Lumber Co. v. Schmitt, 74 
Cal. 625, 626, [16 Pac. 516], was decided when section 1183 
of the Code of Civil Procedure provided that all contracts 
for work on buildings or other improvements, where the 
amount agreed to be paid thereunder exceeded one thousand 
dollars, should be in writing and filed by the owner in the 
office of the county recorder, in default of which the contract 
became wholly void and no recovery could be had thereon, 
and that in that case the work done and the materials fur- 
nished thereunder were to be deemed to have been done and 
furnished at the personal instance of the owner, and that 
laborers, mechanics, and materialmen doing work thereon and 
furnishing materials therefor should have a lien for the value 
thereof. Answering the argument made in that case that, 
notwithstanding that no liens were filed for the enforcement 
of the plaintiff's claim for furnishing materials for a build- 
ing constructed for the owner by a contractor, a personal 
judgment for the value of the materials could be entered and 
enforced against the owner, the supreme court said : 

"It is claimed, although no lien exists on the building as 
to the contractor, and those who may claim under him, and 
none as to the materialman, that nevertheless, according to 
section 1183 of the Code of Civil Procedure, the plaintiff 
ought to have had a personal judgment against Schmitt, with 
whom he never had any contract to furnish the building 
materials. . • . 

"We cannot agree with the appellant in a case where 
neither the contractor nor the materialman has filed any lien, 
such as is given them by statute, that under the section, 



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Aug. 1919.] Mora v. Wright. 31 

supra, a personal judgment for the value of the materials 
furnished may be had against the owner of the building, who 
did not purchase them, and who was under no contract with 
the materialman, either express or implied, to pay for them." 
(See, also, Dawes-Henderson L. Co. v. Oottschalk, 81 Cal. 
641, 647, [22 Pac. 860] ; Firsi Nat Bank v. Perris, 107 Cal. 
55, 64, [40 Pac 45] ; Marchant v. Hayes, 120 Cal. 137, 139, 
[52 Pac. 154].) 

The cases relied upon by appellants as supporting their 
position that they are entitled to a personal judgment against 
the owner of the building are: Castagnino v. Balletta, 82 
Cal. 250, [23 Pac. 127] ; Acme Lumber Co. v. Wessling, 19 
Cal. App. 406, [126 Pac. 167], and Gentle v. Britton, 158 
Cal. 328, [111 Pac. 9]. But the decisions in those cases pro- 
ceed upon a very much different state of facts from that with 
which we are confronted in this case. In Castagnino v. Bal- 
letta the action was by the contractor against the owner, be- 
tween whom and the former a contract had been entered into 
for the construction of certain buildings. The complaint 
declared upon two counts, one being for the foreclosure of 
a mechanic's lien and the other in indebitatus assumpsit, 
or a common count, founded upon the proposition that the 
original contract had been departed from in material respects 
in the construction of the buildings. That is not this case. 

In Acme Lumber Co. v. Wessling the action was for the 
foreclosure of a lien for work done under an oral and conse- 
quently an unrecorded contract between the contractoi and 
a tenant in possession of the real property upon which the 
improvement was made. It was made to appear that the 
owner had knowledge of the improvement being made on his 
premises, but that he failed to file the notice of nonresponsi- 
bility prescribed by section 1192 of the Code of Civil Pro- 
cedure, and it was, therefore, held that, by virtue of the terms 
of said section, it was to be presumed that the improvement 
was constructed or made at the instance of the owner of the 
premises, and said premises were subject to the lien filed for 
the materials and labor used in the work of improvement. 
But it is claimed or intimated that in that case the complaint 
proceeded upon a quantum meruit against the owner of the 
premises and that the appellate court held that it was proper 
to do so. But, even so, that case is not in point here, for the 
reason that between the plaintiff therein, who was the assignor 



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32 Mott v. Wright. [43 Cal. App. 

of the contractor, and the owner there existed a privity of 
contract, created by the terms of section 1192. 

Oentle v. Britton is another case where section 1192 was 
applied, the improvement having been made under a contract 
between the contractor and a party not the real owner of 
the premises npon which the improvement was made. The 
conditions pointed out by said section 1192 to render the 
premises subject to a lien for the labor and materials used 
in the improvement were found to exist in that case, hence 
an equitable lien was created on the premises to secure the 
payment of the value of the labor and materials. It is 
obvious that section 1192 has no application to the facts of 
this case. 

We have been shown no reason for disturbing the judgment, 
and it will, therefore, stand affirmed. 

Chipman, P. J., and Burnett, J., concurred. 

A petition for a rehearing of this cause was denied by the 
district court of appeal on September 25, 1919, and the fol- 
lowing opinion then rendered thereon : 

HART, J. — Appellants have filed a petition for rehearing 
in which several points are raised. [9] The first one is, 
that the contract in question was an entire and not a divis- 
ible one. The contract was made by Wright, the owner, with 
Williams, the contractor, and provided for the erection of a 
six-flat building upon a lot at Eleventh and Streets, in the 
city of Sacramento, for the consideration of nine thousand 
five hundred dollars. Said contract also contained the fol- 
lowing provision: 

"It is hereby agreed that in consideration of receiving the 
above contract, the party of second part will furnish plans, 
and superintend the moving and erection of flats under pres- 
ent house, the location to be 23rd and L sts., without com- 
mission or consideration, it being understood that this work 
is to be done at absolute cost to the owner. The cost of re- 
modeling not to exceed $1800 and moving not to exceed $125. 
He will also agree to superintend erection of garages and 
other work on lot which owner may desire under above con- 
ditions. " 



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Aug. 1919.] Mora v. Weight. 



The specific point made is, that the work on the Street 
property was not completed until June 4 or June 12, 1915, 
which is "the true date from which the tolling of the limi- 
tation of time within which liens may be filed is to be com- 
puted," and not May 12, 1915, the date of the completion of 
the work on the L Street property. 

In neither appellant's opening brief nor in his reply brief 
is there one word concerning the Eleventh and Streets 
property. Indeed, there seems from the record not to be 
any occasion for referring to that property, because there is 
nothing in the pleadings, nothing in the findings, nothing in 
the evidence, and nothing in the judgment having any refer- 
ence to the Street property except incidentally it is men- 
tioned by one of the witnesses. The liens were all filed 
against the Twenty-third and L Streets property and there 
was no issue in the case regarding the Street property. 
If questions can be raised for the first time in the petition for 
rehearing, there would never be an end to litigation. It has 
in many cases been held that where a case has been decided, 
a new point raised in appellant's reply brief or in the peti- 
tion for rehearing will not be considered. (Buena Vista OH 
Co. v. Park Bank of Los Angeles, 39 Cal. App. 716, [180 
Pac. 12] ; Camp v. Boyd, 41 Cal. App. 83, [182 Pac. 60] ; 
Exbernia Sav. & Loan Soc. v. Farnliam, 153 Cal. 578, [126 
Am. St. Rep. 129, 96 Pac. 9] ; Flores v. Stone, 21 Cal. App. 
105, [131 Pac 348, 351, 352].) However, in this case, we 
will consider the point raised. 

In 13 C. J., page 563, it is said: "If the consideration is 
single, the contract is entire, but if the consideration is 
either expressly or by necessary implication apportioned, the 
contract will be regarded as severable. . . . Where the por- 
tion of the contract to be performed by one party consists 
of several and distinct items, and the price to be paid is 
apportioned to each item according to the value thereof and 
not as one unit in a whole or in a part of a round sum, the 
contract will ordinarily be regarded as severable." 

In Elliott on Contracts (volume 4, section 3667) it is said : 
"A building, construction or working contract is entire and 
not divisible, where it is for an entire structure for a stated 
compensation. ... If the price is apportioned among the 
several items or to the different parts of one item, the con- 
tract will generally be construed as severable.' 9 

48 Oal. App.— f 



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84 Reid v. Botol [43 Cal. App. 

In the case at bar "the price was apportioned to each 
item according to the value thereof and not as one unit," 
and we hold that the contract was not an entire one, bnt was 
severable. 

As to the remaining points raised in the petition, that 
"provisions as to trivial imperfections were designed merely 
to prevent premature filing of liens" and that "slight work 
after substantial completion, done at request or with consent 
of owner or subcontractor, extends time for filing liens,' y we 
are satisfied with what is said in the main opinion. 

The petition for a rehearing will be denied, 

Chipman, P. J. f and Burnett, J., concurred. 

A petition to have the cause heard in the supreme co\irt> 
after judgment in the district court of appeal^ was denied by 
the supreme court on October 23, 1919. 

All the Justices concurred. 



[Gfr. No. 8087. First Appellate District, Division One. — August 26, 

1919.] 

JOHN EEID, Jr., Petitioner, v. THOMAS F. BOYLE, as 
Auditor, etc., Respondent. 

[1] Municipal Corporations — San Francisco — Employment of Citt 
Architect — Fixing Compensation on Percentage Basis. — Tho 
board of public works of the city and county of San Francisco 
has authority to employ a "city architect" to prepare plans and 
otherwise render services in connection with the erection of city 
buildings and to fix his compensation at a given percentage of 
the cost of construction, payable as the work progresses. Such 
person docs not become an employee or an officer of the city, in 
the ordinary sense, nor is he engaged in an employment requir- 
ing a fixed monthly compensation. 

PROCEEDING in Mandamus to compel the auditor of the 
City and County of San Francisco to audit a claim for ser- 
vices as architect. Writ issued. 

The facts are stated in the opinion of the court. 



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Aug. 1919.] Beid v. Boylb. 85 

Cullinan & Hickey for Petitioner. 
George Lull, City Attorney, for Respondent 
J. G. De Forest, Amicus Curia*. 

WASTE, P. J. — In this proceeding, as was the case in 
Miller v. Boyle, post, p. 39, [184 Pac. 421], the petitioner is 
seeking an alternative writ of mandate directed to the respond- 
ent as auditor of the city and county of San Francisco, re- 
quiring him to audit a claim in the sum of $180, alleged to 
be due as architect's fees for the preparation of preliminary 
studies for plans and specifications for a residence building, 
for the use of the chief of the fire department of the city 
and county. The facts are in all particulars, with one 
essential di (Terence, so similar to those presented in the 
Miller case, supra, that we will only state the additional 
matter in controversy. The two cases were argued and sub- 
mitted to us for decision upon the facts set forth in the 
petition and the law as raised by the demurrer. 

After the passage of the ordinance authorizing the board 
of public works, in its discretion, to obtain plans, drawings, 
specifications, and details for the erection of public buildings, 
referred to in the Miller case, the board of supervisors of 
the city and county, by resolution regularly adopted, directed 
the board of public works to prepare plans and specifications 
for a building suitable and adapted for residential purposes, 
for the chief engineer of the fire department of the city, and 
to submit the same, when so prepared, first to the board of 
fire commissioners, and then to the board of supervisors for 
approval and action thereon. Thereafter, by resolution, duly 
adopted, the board of public works appointed John Reid, Jr., 
the petitioner here, city architect. The resolution provides 
"that the duties of the city architect shall be to prepare plans 
and specifications for all public buildings, works, or improve- 
ments, for which the board of public works shall direct him 
to prepare such plans and specifications, and to supervise 
the construction of all public buildings, works, or improve- 
ments, the construction of which the board of public works 
shall direct him to supervise." The resolution also provides 
that the compensation of such city architect "shall be six 
per cent of the total cost of the construction of the respective 



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36 Reid v. Boyle. [43 Cal. App. 

public buildings, works, or improvements, plans and specifi- 
cations of which he shall so prepare, and the construction of 
which he shall so supervise; provided, however, that if he 
prepares the plans and specifications, when directed by the 
board of public works, as aforesaid, but is not directed to, 
or does not, supervise the construction of any particular 
public building, work, or improvement, his compensation in 
preparing such plans and specifications alone shall be four 
and one-half per cent of the total cost of the construction 
of such building, work, or improvement." The resolution 
then provides for partial payments as the work progresses, 
one-fifth of the entire compensation for the entire work to 
be paid upon the completion of the preliminary studies for 
plans and specifications for any particular public building. 
Until the actual cost of construction of any particular build- 
ing, work, or improvement, shall be ascertained, the payments 
on account of such compensation of the city architect shall 
be based upon the estimated cost of the construction. 

The resolution recites the authorization and direction to 
the board of public works, by the board of supervisors, to 
prepare plans and specifications for the fire chief's house, 
then directs the city architect to prepare plans and specifi- 
cations for that building, and superintend its construction, 
his compensation for such services to be six per cent of the 
total cost of the building, which total cost is estimated at 
twenty thousand dollars. Further direction to prepare plans 
and specifications for the Galileo high school is contained m 
the resolution. 

Immediately after the adoption of the resolution of the 
board of works last mentioned, the petitioner accepted such 
appointment as city architect, upon the terms stated in the 
said resolution, at once entered upon the performance of hie 
duties as such, and ever since has been, and now is, the duly 
appointed and acting city architect of the city and county of 
San Francisco. In the discharge of these duties he thereafter 
prepared and completed the preliminary studies for plans 
and specifications of the fire chief's residence, the estimated 
cost of the construction of which, when said preliminary 
studies were completed, was found to be fifteen thousand dol- 
lars. The preliminary plans were delivered to, and accepted 
by, the board of public works. One hundred and eighty 
dollars is the correct amount of the installment of the fee 



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'Aug. 1919.] Eetd v. Boyle. 37 

due under the terms of his employment, which, as in the case 
of Miller v. Boyle, supra, are the identical terras of employ- 
ment for architects engaged in the general practice of the 
profession of architecture in the city and county of San 
Francisco. 

[1] Under the provisions of the charter of the city and 
county of San Francisco (subd. A, sec. 11, art. XIII), the 
city architect is exempt from the provisions thereof relating 
to classification of employees by the civil service commission. 
The respondent in the instant case makes no contention, there- 
fore, that the civil service provisions of the charter apply to 
petitioner, but bases his refusal to audit the claim on the 
ground that it arises out of a fee and compensation of an 
architect computed upon the cost of the construction of a 
public building. In other words, as we understand it, re- 
spondent's contention is that, under the provisions of the 
charter, the city architect is an employee of the city under 
the appointment by the board of public works, and that his 
compensation must be a fixed salary, payable monthly. He 
relies upon section 1, chapter 4, article III, which, in part, 
reads: "The salaries and compensation of all officers, includ- 
ing policemen, and employees of all classes, and of all teachers 
in public schools, and others employed at fixed wages, shall 
be payable monthly.' 9 

No express provision is made by the charter of the city 
and county of San Francisco creating the office of city archi- 
tect. The only reference to such position found in the char- 
ter is its enumeration in the list of positions exempted from 
the civil service provisions. No salary is fixed and no method 
of compensation is provided. Assuming, therefore, that under 
its implied powers it created such an office, there still remains 
the question as to how the compensation attached to the office 
shall be paid. There seems to be a reasonable analogy be- 
tween the situation thus presented and the facts existing in 
the line of cases in which the right has been upheld of city 
councils and boards of supervisors of counties to employ 
special assistants, particularly for the rendition of legal ser- 
vices, and to compensate them by a certain amount of the 
amount recovered in litigation. We are not inclined to hold 
that the ordinance directing the board of public works, in 
its discretion, to obtain plans for public buildings of the city 
and the resolution of the board of public works appointing 



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39 Reid v. Boylb. [43 Cal. App. 

petitioner city architect can be held to make petitioner 
thereby an employee, or an officer of the city, in the ordinary 
sense, or an employment requiring a definite fixed monthly 
compensation. His duties are to prepare plans and specifica- 
tions only for such public buildings, works, or improvements 
as may be directed by the board of public works, and for a 
compensation already agreed upon and fixed by resolution. 
Until the board directs performance of the services, and they 
are performed, no claim arises against the city by virtue of 
the office. Nothing contained in oral argument, or in the 
briefs of the parties, causes us to waiver in our opinion that, 
under such circumstances, the board of public works adopted 
a reasonable and customary means of availing itself of the 
services of petitioner. Under the facts of the instant case 
the question whether or not petitioner holds the position 
styled "city architect" is a false quantity for consideration. 

No reason presents itself to us why the city was not em- 
powered by its charter to enter into the arrangement made 
with the petitioner. Having done so, through its authorized 
agency, the board of public works, and petitioner, with his 
own private organization, having performed his part of the 
contract, the fruits of which have been accepted by the city, 
petitioner is entitled to compensation for his work. 

If, in the judgment of the board of public works, which 
has full power and authority over such matters, the employ- 
ment of petitioner was proper and in accord with the conduct 
of such business in the community, the compensation agreed 
upon appearing to be just and reasonable, we see no reason 
why petitioner is not entitled to have his claim audited. 

What we said in the case of Miller v. Boyle, supra, disposes 
of all other contentions made by the respondent. 

Let the writ issue as prayed for. 

Bardin, J., pro tem., and Richards, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on October 23, 1919. 

All the Justices concurred. 



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Kng. 1919.] Miller v. Boylk. 



[CSv. No. 3089. First Appellate THstrict, Division One.— August 26, 

1919.] 

J. R. MILLER, Petitioner, v. THOMAS P. BOYLE, as 
Auditor, etc., Respondent. 

[1] Municipal Corporations — 8an Francisco — Erection op School- 
house — Employment op Architect. — Under the charter of the 
city and county of San Francisco, the board of public works is 
not bound to engage architects exclusively as "employees," at 
stated monthly salaries, or at a given per diem, but may engage 
an architect by special contract, to prepare plans and specifica- 
tions for use in connection with the erection of a schoolhouse at 
his own time and expense, for a stipulated fee based on the cost 
of the construction work to be planned and supervised by him. 

[2] Id. — Accomplishment of Given Result? — Means not Prescribed 
— Adoption op Reasonable Means — Powers op Municipal 
Boards. — When the charter permits a certain result to be accom- 
plished, but does not prescribe the means, any reasonable, or suit- 
able, means may be adopted. A municipal board not only has 
the powers expressly enumerated in the organic act, but also those 
implied powers which are necessary to the exercise of the powers 
expressly granted, except in the instances where such implied 
power is expressly, or impliedly, prohibited. 

[3] Id. — Employment op Architect upon Prevailing Terms — Rea- 
sonable Means — Letting op Contract to Lowest Bidder — 
Charter not Violated. — The employment by the board of public 
works of the City and County of San Francisco of a duly author- 
ized architect to prepare plans and specifications for use in con- 
nection with the erection of a schoolhouse, upon the terms and 
conditions prevailing in the community, constitutes the adoption 
of a reasonable and suitable means of accomplishing the required 
result, and is not in violation of the provisions of the charter 
requiring the awarding of contracts to lowest bidders. 

[4] Id. — Receipt op Benefits by Municipality — Estoppel to Deny 
Liability. — Where the board of public works of the city and 
county of San Francisco, acting under the general power granted 
it to erect schoolhouses, hires an architect to prepare the neces- 
sary plans and specifications, such municipality, after it has re- 
ceived the benefit of his labor and expenditure of time and 
money, may not be heard to say that he should not be com- 
pensated as agreed. 

4. Estoppel as applied to governmental bodies, note, 137 Am. St. 
Ecp. 354. 



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40 Miller v. Boyle. [43 Cal. App. 

PROCEEDING in Mandamus to compel the auditor of the 
City and County of San Francisco to approve a claim and 
demand for services as architect. Writ issued. 

The facts are stated in the opinion of the court 

Cullinan & Hickey for Petitioner. 

George Lull, City Attorney, for Respondent. 

J. G. De Forest, Amicus Curiae, 

WASTE, P. J.— This is an application hy the petitioner, 
who is a duly licensed, certified, and authorized architect, for 
an alternative writ, to be directed to the defendant as auditor 
of the city and county of San Francisco, requiring him to 
approve a claim and demand of petitioner for the sum of 
$1,205.66, alleged to be due as fees for services as architect, 
rendered the city and county. The claim was properly pre- 
sented and duly allowed and approved, until it reached the 
defendant, who declined to audit the same, upon the ground 
that the petitioner herein was not employed in accordance 
with the civil service provisions of the charter of the city 
and county of San Francisco, and that the claim is not for 
a regular, stated salary, or based on a per diem. He further 
contends that the contract for the preparation of the plans 
and specifications of the schoolhouse, and supervision of such 
construction, should have been let to the lowest bidder, in ac- 
cordance with the provisions of sections 14, 15, 16, 17, and 18 
of chapter 1 of article VI of the charter. The facts behind 
the application are admitted to be correctly set forth in the 
petition. The matter is submitted to this court on questions 
of law, raised by the demurrer of respondent. 

It appears that by ordinance of the board of supervisors 
of the city and county, the board of public works is authorized, 
in its discretion, to obtain plans, drawings, specifications, 
and details for the erection of public buildings for the city 
and county of San Francisco, to be erected under the super- 
vision and direction of the board of public works, and for that 
purpose to engage the services of architects, either by selec- 
tion or by competition. The method of competition in ease 
the architects, for the purposes specified in the ordinance, 



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Aug. 1919.] Miller v. Boyle. 41 

are selected by competition is to be determined by the same 
board. Likewise, that board is authorized to pay for the 
preparation of details, plans, and drawings and necessary 
supervision of the work of construction a sum which (in- 
cluding the cost of the preparation of the contract, plans, 
and specifications) shall not exceed six per centum of the 
entire cost of the building to be constructed. The ordinance 
further authorizes the board of works to enter into contracts 
with architects for the purpose of engaging the services 
therein contemplated. Another provision of the ordinance 
declares that nothing therein contained shall be deemed, or 
construed, as preventing the board of public works from ap- 
pointing a city architect, or such persons as that board may 
deem necessary, to perform architectural services for the 
city and county, or to inspect and supervise the construction 
of public bulidings, it being the intent and purpose of the 
ordinance, so it declares, to place in the discretion of the 
board of public works the manner and method of obtaining 
plans and specifications for public buildings, and the super- 
vision of the construction thereof. 

The board of education of the city, after proceedings duly 
and regularly had in that behalf, requested the board of 
public works to prepare plans and specifications for a certain 
schoolhouse, to be known as the Jefferson School, and to be 
constructed in and by the city and county. The board of 
public works thereupon, by resolution duly adopted, ap- 
pointed petitioner, the architect, to prepare plans and speci- 
fications for such schoolhouse at an estimated cost of con- 
struction of approximately one hundred thousand dollars, 
and in and by said resolution it was provided that the fee 
of petitioner for such services should be six per cent of the 
total cost of the construction of the said schoolhouse, and that 
the services of the petitioner should include the necessary 
supervision of construction. It was further agreed by and 
between the board of public works, acting for the city, and 
petitioner, prior to his entering into his work, that the fee 
of six per cent should be paid at certain times and amounts, 
one-fifth of the fee to be paid upon completion and approval 
of the preliminary studies for the plans and specifications of 
the schoolhouse. It was likewise agreed that until the actual 
cost of the construction of the schoolhouse should be asccr- 



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42 Miller v. Boyle. [43 Cal. App. 

tained the payments on account of petitioner's fee were to be 
based on the estimated cost of the construction thereof. 

Thereupon, petitioner prepared the preliminary studies for 
the plans and specifications of said schoolhouse. In the prep- 
aration of these studies for the plans and specifications peti- 
tioner used his own private office and materials and em- 
ployed draftsmen and assistants, paying the cost of said 
materials, and the wages of said draftsmen and assistants, 
out of his private funds. The estimated cost of the con- 
struction of the school, when the preliminary studies for its 
plans and specifications were completed, was $100,471.66. 
These preliminary studies for the plans and specifications 
were delivered to and accepted and approved by the board of 
education and the board of public works. Thereupon, peti- 
tioner presented, as before stated, to the proper officers of the 
city and county his bill and demand, in proper form, for 
$1,205.66. That claim the auditor refuses to approve. 

It appears as a fact in the case that the fee of six per cent 
of the actual cost of the construction of the Jefferson School 
is not greater than the compensation paid to architects on 
similar employment in the city and county, and is the 
reasonable value of such services petitioner agreed to render. 
The fee of six per cent, and the times and amounts of prog- 
ress payments, and the mode of payment, are the usual and 
customary mode, times, and amounts, respectively, of pay- 
ing architects in the city and county of San Francisco, 
whether said architects be employed by the said city and 
county or by private persons. 

The board of public works of the city and county of San 
Francisco has charge, superintendence, and control, under 
such ordinances as are from time to time adopted by the 
supervisors, of the construction of any and all public build- 
ings and structures under plans duly approved by the various 
departments, including all schoolhouses and fire department 
buildings, and the repair and maintenance of any and all 
buildings and structures owned by the city and county. 
(Charter of the City and County of San Francisco, subd. 6, 
sec. 9, c. 1, art. VI.) The same board has power to employ 
such clerks, superintendents, inspectors, engineers, surveyors, 
deputies, architects, and workmen as shall be necessary to a 
proper discharge of their duties under the article of the 
charter, and to fix their compensation; but no compensation 



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Aug. 1919.] Miller v. Boyle. 43 

of say of said persons shall be greater than is paid in the 
case of similar employments. (Charter, sec. 3, c. 1, art. VI.) 
[1] The first question to be decided in this case is, whether, 
by 1 his language of the charter, the board of works is bound 
to engage architects exclusively as " employees,' ' at stated 
monthly salaries, or at a given per diem, or whether it may 
engage an architect by special contract, to prepare plans and 
specifications at his own time and expense, for a stipulated 
fee based on the cost of the construction work to be planned 
and supervised by him. 

The board of public works may employ any number of 
architects, as it employs all needed clerical forces and work- 
men, necessary to a proper discharge of the duties imposed 
by the charter. It may also fix their compensation on a 
monthly basis. (Charter, sec. 1, c. 4, art. III.) Such archi- 
tects, when thus regularly employed, would, in our judgment, 
become employees of the city, and subject to the civil service 
provisions of the charter, except in the case of the city archi- 
tect, with which case we are not now dealing. However, we 
do not find anything in the charter provisions, or in the 
general law, as we understand it, which will prevent the 
board of public works, in its discretion, securing the services 
of skillful architects, in any special case, to prepare such 
plans and specifications as may be needed. [2] When the 
charter permits a certain result to be accomplished, but does 
not prescribe the means, any reasonable, or suitable, means 
may be adopted. A municipal board not only has the powers 
expressly enumerated in the organic act, but also those im- 
plied powers which are necessary to the exercise of the powers 
expressly granted, except in the instances where such im- 
plied power is expressly, or impliedly, prohibited. {Harris 
v. Gibbins, 114 Cal. 418-421, [46 Pac. 292].) 

The right to employ an architect and prepare plans and 
specifications, therefore, was incident to the general power of 
the city to erect schoolhouses. (Dillon on Municipal Corpo- 
rations, sec. 701; Spalding v. Chamberlain & Co., 130 Ga. 
649, [61 S. E. 533].) We find nothing in the charter which 
makes the employment of architects at a regular fixed salary, 
or per diem, the exclusive method by which the city might 
carry out this incidental power. The board of public works, 
clothed with general authority to construct and acting under 
the ordinance of the board of supervisors, had power to ac- 



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44 Miller v. Botul [43 CaL A pp. 

complish a certain result, which could not be accomplished 
by it without the employment of other agencies, to wit, of 
architects, to prepare the plans and specifications for such 
enx'tiMi. In this case, the charter not directly prescribing 
that such plans and specifications could only be prepared by 
such architects as might be regularly employed by the board 
of public works, it must be construed to afford opportunity 
for the adoption, as was said in Harris v. Oibbins, supra, 
"of any reasonable, and suitable, means.' 9 

[3] The claim of respondent that the contract between 
the board of public works and the petitioner should only 
have been awarded after compliance with the provisions of 
the charter relative to letting contracts to the lowest bidder 
has been disposed of adversely to his contention. The same 
cases also seem to establish that the board of public works, 
in employing a duly authorized architect, and upon the terms 
and conditions prevailing in the community, were adopting 
reasonable and suitable means, these decisions holding that 
the engagement of an architect to prepare plans and other- 
wise render services in connection with the erection of city 
buildings on a percentage basis is not in violation of the 
provisions of municipal charters requiring a written con- 
tract with the lowest and best bidders. "The reasonableness 
of such construction/' said the court in one of these cases, 
4 'is strikingly illustrated in the present case. An architect 
is an artist. His work requires taste, skill, and technical 
learning and ability of a rare kind. Advertising might bring 
many bids, but it is beyond peradventure that the lowest 
bidder might be the least capable and most inexperienced, and 
absolutely unacceptable. As well advertise for a lawyer, or 
civil engineer for the city, and intrust its vast affairs and 
important interests to the one who would work for the least 
money." (Cudell v. Cleveland, 16 Ohio C. Rep. (N. S.) 
374; Stratton v. Allegheny Co. et al., 245 Pa. St. 519, [91 Atl. 
894] ; City of Newport News v. Potter, 122 Fed. 321, [58 
C. C. A. 483] ; City of Houston v. Clover, 40 Tex. Civ. A pp. 
177, [89 S. W. 425].) 

It being admitted that the terms and conditions of com- 
pensation provided in the contract entered into between the 
petitioner and the city are just and reasonable, and are the 
usual terms and conditions covering the rendition of similar 



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Aug. 1919.] Mathews v. Savings Union B. & T. Co. 46 

services in this community, we are of the opinion that the 
petitioner is entitled to the relief sought. 

[4] Petitioner is also invoking the doctrine of estoppel, 
claiming that the city and county of San Francisco has re- 
ceived the benefit of his labor and expenditure of time and 
money, and should not now be heard to say that he should 
not be compensated. In view of the conclusion we have al- 
ready announced, it is not necessary to rest our decision upon 
that contention, but we are of the opinion that what we 
said in a very recent case (Warren Bros. Co. v. Boyle, 42 CaL 
App. 246, [183 Pac. 706] ), does apply to the facts of this case. 

Let the writ issue as prayed for. 

Bardin, J., pro tern., and Richards, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on October 23, 1919. 

All the Justices concurred 



[Civ. No. 2807. First Appellate District, Division Two.— August 26, 

1919.] 

MACK MATHEWS, Administrator, etc., Appellant, v. 
SAVINGS UNION BANK AND TRUST COMPANY 
(a Corporation), Defendant; STATE OP CALI- 
FORNIA, Respondent. 

[1] Statutory Construction — Taking of Property by Stati — 
Preservation of Constitutional Rights. — So obnoxious to the 
sense of justice is the suggestion that the state may take for its 
own use the property of one of its citizens, without compensation 
and without hearing, that, unless the language of a statute is ex- 
press and unmistakable, courts will not attribute to the co- 
ordinate law-making body the purpose of invading the common 
right and violating those fundamental constitutional provisions by 
which the individual is protected against arbitrary action on the 
part of the government. 



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46 Mathews v. Savings Union B. & T. Co. [43 Cal. App. 

[2] Banks and Banking — Unclaimed Deposits — Escheat to 8tatb 
— Construction op Statutes. — Section 1273 of the Code of Civil 
Procedure and section 15 of the Bank Act, as they were amended 
in 1915, which are correlative and which deal with bank deposits 
upon which, except for the accumulation of interest, neither de- 
posits nor withdrawals have been made for a period of twenty 
years, are not to be given the construction that title to such 
money passes to the state absolutely on the expiration of twenty 
years, without compensation to the owner and without notice and 
hearing. 

[8] Id. — Jurisdiction op Courts in Relation to Deposit. — After the 
expiration of such period of twenty years, jurisdiction to make 
any order in relation to such dormant deposits is not exclusively 
in the superior court of Sacramento County. Until suit is 
brought by the attorney-general in Sacramento County, the court 
having jurisdiction of an action by anyone for property which 
another without right withholds is open to the depositor, as well 
after as before the expiration of such period. 

[4] Id. — Bights op Attorney-general on Intervention — Power op 
Court to Determine Ownership. — The right given the attorney- 
general, under section 1269a of the Code of Civil Procedure, to 
intervene in any action involving the right to property which has 
escheated or is about to escheat to the state, does not carry with 
it the right to delay the trial of such action, nor change the posi- 
tion of the parties. He must take the suit as he finds it, and, 
jurisdiction having attached in the court in which such action is 
pending, such court should determine the issue of the ownership 
of the property, notwithstanding that, since the commencement of 
that action, the statutory suit has been commenced by the 
attorney-general in Sacramento County to determine that question. 

[6] Statutory Construction — General Rule. — Not only must a stat- 
ute be construed, if possible, to avoid unconstitutionality, but the 
construction must be consistent with sound sense and wise policy, 
and with a view to promoting justice. 

[6] Banking Law — Deposits Unclaimed por Twenty Years — Sub- 
sequent Action by Administrator — Judgment. — Where, after 
the expiration of the twenty-year period but prior to the bringing 
of the statutory suit by the attorney-general, tho administrator of 
the estate of a deceased bank depositor brings suit against the 
bank to recover the deposit, with accrued interest, the plaintiff 
is entitled to judgment, notwithstanding the attorney-general in- 
tervenes and claims the money on behalf of the state. 

2. Escheat of bank deposits, note, Ann. Cas. 1914B, 157. 
Constitutionality of statutes relating to disposition of old bank 
deposits, note, 1 A.L.S. 1054. 



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Aug. 1919.] Mathews v. Savings Union B. & T. Co. 47 

APPEAL from a judgment of the Superior Court of 
the City and County of San Francisco. E. P. Shortall, Judge. 
Reversed. 

The facts are stated in the opinion of the court. 

Lovett K. Fraser, Herbert V. Keeling and Ornbaun & 
Fraser for Appellant. 

TJ. S. Webb, Attorney-General, and Frank L. Querena, 
Deputy Attorney-General, for Respondent. 

BRITTAIN, J. — This appeal concerns the construction of 
sections 1269a and 1273 of the Code of Civil Procedure, and 
section 15 of the Bank Act, as they were amended in 1915. 
They relate to escheats of unclaimed bank deposits. The 
facts are admitted. 

In 1868, William Anderson deposited with the Savings 
Loan Society Bank of San Francisco, the predecessor of the 
defendant, one thousand five hundred dollars, which with the 
accumulations of interest grew to $12,525.12 by the 1st of 
January, 1917. Anderson died at his residence in Lake 
County in August, 1892. Under the provisions of section 15 
of the Bank Act the defendant made report to the state 
treasurer that for twenty years prior to the first day of 
January, 1917, there had been neither deposit nor withdrawal 
of funds from the Anderson account and no claim had been 
made nor address of the owner of the account filed within 
the twenty-year period. On March 16, 1917, the public ad- 
ministrator of Lake County was granted letters of adminis- 
tration on the estate of Anderson, and on the day following 
he made demand upon the bank for payment of the deposit 
account, which being refused, the administrator sued the 
bank at its place of business in San Francisco. The attorney- 
general intervened on behalf of the state. The judgment was 
against the plaintiff and in terms declared the money 
on deposit had escheated on January 1, 1917, nearly nine 
months before the judgment was entered. 

In this case there is no question of identity involved. The 
plaintiff as the administrator of the estate of the depositor 
stands in his shoes. His rights in regard to the money in 
question are neither greater nor less than those of the de- 



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48 Mathews v. Savings Union B. ft T. Co. [43 Cal. A pp. 

positor. If, on December 31, 1916, either the depositor or 
the administrator of his estate had made demand on the bank, 
it was obligated to pay, because the money then on deposit 
rightfully belonged to the depositor or his estate. If pay* 
ment had been refused, the superior court in San Francisco 
would have had jurisdiction of a suit against the bank, and 
upon the admitted facts its judgment must have been in favor 
of the depositor or his personal representative. Because 
the demand was not made until after January 1, 1917, the 
trial court determined, and the attorney-general here argues 
that the moneys escheated on that day, that the right of 
the depositor to the immediate payment no longer existed, and 
that this result flowed from the amendments of 1915. 

[1] So obnoxious to the sense of justice is the suggestion 
that the state may take for its own use the property of one 
of its citizens, without compensation and without hearing, 
that, unless the language of a statute is express and unmis- 
takable, courts will not attribute to the co-ordinate law-mak- 
ing body the purpose of invading the common right and 
violating those fundamental constitutional provisions by 
which the individual is protected against arbitrary action on 
the part of the government. The language of the statutes 
here in question requires no such interpretation. 

[2] Section 1273 of the Code of Civil Procedure and sec- 
tion 15 of the Bank Act are correlative. They deal with 
bank deposits upon which, except for the accumulation of 
interest, neither deposits nor withdrawals have been made for 
a period of twenty years. The Bank Act provides that the 
moneys in such deposits "which shall have remained un- 
claimed for more than twenty years . . . and where neither 
the depositor nor any claimant has filed any notice with such 
bank showing his or her present residence, shall . . . be de- 
posited with the state treasurer after judgment in the manner 
provided in the Code of Civil Procedure. (Stats. 1915, 
p. 1106.) The general language of the code section is the 
same, except that the last phrase reads, "shall . . . escheat 
to the state." (Code Civ. Proc, sec. 1273.) The section 
then provides that when the attorney-general shall learn of 
such deposits, he shall bring suit in the superior court in 
Sacramento County, and that upon the trial, "if it be de- 
termined that the moneys . . . are unclaimed as hereinabove 
stated, then the court must render judgment in favor of the 



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Aug. 1919.] Mathews v. Savings Union B. ft T. Co. 49 

state declaring that said moneys have escheated," and com- 
manding the bank to deposit the money with the state treas- 
urer thereafter to be dealt with as other escheated property. 

So careful is the state of the rights of its citizens that even 
after the adjudication, for a period of five years, any person 
not a party or a privy to the escheat judgment may sue the 
state to recover the money, and this time is extended to 
infants and persons of unsound mind for a period of one 
year after the removal of the disability. (Code Civ. Proc, 
sec. 1272.) 

In the suit commenced by the attorney-general any claim- 
ant may appear and present his claim of ownership. (Code 
Civ. Proc, sec. 1273.) The attorney-general argues that the 
only adverse claim which could prevail in the suit would be 
one based on the nonexistence of the very fact on which the 
suit is based, namely, that no claim had been made within 
the twenty years of dormancy. If this construction should 
be adopted, how unreliable would be the guaranty of justice 
contained in section 15 of the Bank Act, which provides that 
4 'any person interested may appear in such action and be- 
come a party thereto," and that "the court shall have full 
and complete jurisdiction over the state, and the said de- 
posits and of the person of everyone having or claiming any 
interest in the said deposits, or any of them, and shall have 
full and complete jurisdiction to hear and determine the 
issues therein, and render the appropriate judgment thereon." 
This language is most appropriate to provide for a real trial 
of the claim of interest or ownership, and it is equally in- 
appropriate to provide for a merely formal adjudication of 
the jurisdictional fact of nondemand for a period of twenty 
years. Just as the statute provides for a claim of ownership 
after the judgment, so does it provide for a claim of ownership 
after the attorney-general sues and before the judgment. Of 
course, a claim may be made by the owner against the bank 
at any time before the expiration of the twenty years. There 
necessarily must elapse a period of time between the expi- 
ration of the twenty years and the commencement of the 
state's suit What are the rights of the owner of the money 
during that intermission t 

[3] The attorney-general argues that after the expiration 
of the twenty years no court save that in Sacramento County 
has jurisdiction to make any order in relation to the deposit. 

48 0*1. App.— 4 



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50 Mathbwb v. Savings Unton B. & T. Co. [43 Cal. App. 

The Bank Act provides that when summons is issued under 
section 1273 of the Code of Civil Procedure the clerk shall 
also issue a special notice directed to all persons, requiring 
them to appear within sixty days after the first publication 
of summons to show cause why the money should not be 
paid to the state treasurer. This notice must be published 
with the summons, that is, for a period not less than four 
weeks. (Code Civ. Proc, sec. 1273.) Under the Bank Act 
it is not until the completion of publication that jurisdiction 
vests in the Sacramento court. The duties of the attorney- 
general are many, the demands upon his office are great. 
There may be most cogent reasons for delay in the bringing 
of suits of this nature. The suit in Sacramento concerning 
this deposit was not commenced until July 30, 1917, seven 
months after the expiration of the twenty-year period. 

Suppose the depositor had not died, but returning from a 
far country had been delayed by stress of weather, so that 
a demand which would have been honored on December 31st 
could not be presented until January 2d; suppose, further, 
that he was in sickness, that his family was in distress, or 
that the fund he had thriftily laid by against the day of his 
dire need alone would save him from the bankruptcy court; 
and, suppose the bank should pay him what rightfully was 
his, is it conceivable that the court in Sacramento would re* 
quire the bank again to pay the amount of the deposit to 
the state? If the bank should refuse to pay upon such a 
demand, as it did in this case, would the admitted owner 
of the deposit be compelled to wait until the attorney-general 
should find time or be willing to open the door of the Sac- 
ramento court so that he might as a defendant present his 
claim f Under such a rule he might be driven into bank- 
ruptcy, and he and his family become public charges. It 
would be no answer to say he might by the roundabout 
method of mandamus force the attorney-general to throw 
open the door of the Sacramento court. The rule that jus- 
tice shall not be denied is no more sacred than is that which 
declares it shall not be delayed. Until suit is brought by the 
attorney-general in Sacramento County, the court having 
jurisdiction of an action by anyone for property which an- 
ol her without risrht withholds is open to the depositor, as well 
after as before the expiration of the twenty-year period. In 
the exercise of its constitutional jurisdiction (Const., art. VI, 



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Aug. 1919.] Mathews v. Savings Union B. & T. Co. 51 

sec. 5) the superior court in San Francisco had power to en- 
tertain the suit of the plaintiff, and its jurisdiction having 
attached, it necessarily had power to determine the substan- 
tial rights of the parties before it. (Hibernia etc. Soc. v. 
Lewis, 117 Cal. 577, [47 Pac. 602, 49 Pac. 714] ; Peck v. 
Jenness, 7 How. 612, 624, [12 L. Ed. 841, see, also, Rose's 
U. S. Notes].) 

[4] In the present case, in view of the fact that the 
enactments of 1915 had received no judicial interpretation, 
the bank refused to pay, and upon suit being brought sub- 
mitted itself to the judgment of the court. Under the provi- 
sions of 1269a of the Code of Civil Procedure, the attorney- 
general intervened in this action. That section was adopted 
at the same session of the legislature at which the amend- 
ments under discussion were adopted, and no doubt to pro- 
tect the interests of the state in the contingency of a claim 
being made in the interim which must elapse in every in- 
stance between the report of the bank and the commencement 
of the suit in Sacramento County. It provides that whenever 
the attorney-general is informed that property has escheated 
or is about to escheat, he may commence an action on behalf of 
the state to determine its rights to the property, ' ' or may in- 
tervene on its behalf in any action . . . and contest the 
rights of any claimant or claimants thereto.' ' The statute 
does not say that upon his intervention the court in which 
the action is brought shall be divested of its jurisdiction 
pending the bringing and determination of another suit. 
There is no suggestion that any different rules of law shall 
apply to an intervention under this section of the code than 
those which ordinarily control in such cases. It has been 
broadly stated that the intervener must take the suit as he 
finds it. A better statement is that the intervention must 
not retard the principal suit, nor delay the trial of the action, 
nor change the position of the parties. (ITibernia etc. Soc. 
v. ChurcMll, 128 Cal. 634, [79 Am. St. Rep. 73, 61 Pac. 278] ; 
Van Gorden v. Ormsby, 55 Iowa, 664, [8 N. W. 625] ; 
Boyd v. Heine, 41 La. Ann. 393, [6 South. 7141 ; Mayer v. 
Stahr, 35 La. Ann. 57; Ragland v. Wisrock, 61 Tex. 391; 
Cdhn v. Ford, 42 La. Ann. 965, [8 South. 477].) The fact 
found by the court that after the commencement of this 
action the statutory suit was commenced by the attorney- 
general in Sacramento County had no bearing upon the de- 



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52 Mathews v. Savings Union B. & T. Co. [43 Cal. App. 

termination of this case. Jurisdiction having attached, the 
court should have determined the issue of ownership of the 
money. (Dunphy v. Belden, 57 Cal. 427 ; Sharon v. Sharon, 
84 Cal. 424, [23 Pac. 1100].) 

What has already been said concerning the question of 
jurisdiction applies equally to the substantial rights of the 
parties. A construction of section 1273 of the Code of Civil 
Procedure and section 15 of the Bank Act, by which title to 
money on deposit would pass to the state absolutely on the 
expiration of twenty years, without compensation to the owner 
and without notice and hearing before his property should 
be taken, would be intolerable. [5] Not only must a statute 
be construed, if possible, to avoid unconstitutionality, but the 
construction must be consistent with sound sense and wise 
policy, and with a view of promoting justice. (San Joaquin 
etc. Inv. Co. v. Stevinson, 164 Cal. 229, [128 Pac. 924] ; In 
re Mitchell, 120 Cal. 386, [52 Pac. 799] ; Merced Bank v. 
Casaccia, 103 Cal. 645, [37 Pac. 648].) 

[6] In the present case the identity and death of the 
depositor are admitted and the appellant is the administrator 
of his estate. As the personal representative of the depositor 
he was entitled to payment of the deposit at any time the 
admitted facts were established. (Code Civ. Proc, sees. 1552, 
1726, 1732.) The facts were established by the findings in 
this action to which the state was a party. Upon the facts 
found the plaintiff was entitled to judgment. This conclu- 
sion is in consonance with the reasons underlying the de- 
cision of the supreme court in the somewhat similar case of 
People v. Roach, 76 Cal. 297, [18 Pac 407]. 

The judgment is reversed. 

Langdon, P. J., and Haven, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied 
by the supreme court on October 23, 1919. 

All the Justices concurred, except Wilbur, J. 



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Aug. 1919.] Drake v. Tucker. 53 



[Ghr. No. 2891. Pint Appellate District, Division Two.— August 87, 

1919.] 

HARRY CLYDE DRAKE, Appellant, v. CHARLES L. 
TUCKER et al., Respondents. 

[1] Waters and Watkb Riohts — Running Water — Ripabian Rights. 
Riparian rights do not mean ownership in any special portion of 
the water of a stream until such water is actually taken and 
used. In running water there can be no absolute ownership. 

[2] lb. — Deed — Riparian Land — Reservation of Water — Construc- 
tion op. — Under a deed reserving to the grantors the amount of 
water "held, used and claimed" by the former owner of the prop- 
erty, such grantors are entitled to only such amounts of water as 
were used by such former owner, the rights in the remainder of 
the water, in the absence of other priorities, being governed by 
the law applicable to riparian owners. 

[3] Id. — Use op Water by Riparian Owners — Right to Irrigate. — 
A riparian owner may use the whole of the stream if it is neces- 
sary to satisfy his natural wants, and may consume all the water 
for his domestic purposes, including water for his stock, but if 
he desires to use it for irrigation or manufactures, and there be 
a lower proprietor to whom its use is essential to supply his 
natural wants, or for his stock, he must use the water so as to 
leave enough for such lower proprietor. Where the stream is 
small, and does not furnish more than sufficient to answer the 
natural wants of the different proprietors living on it, none of the 
proprietors can use the water for either irrigation or manufacture. 

[4] Id. — When Riparian Owner Entitled to Water — Right to Di- 
vert on Land op Upper Owner. — A riparian proprietor is en- 
titled only to the water after it reaches his land in its natural 
flow, and if in the natural flow of the stream there is insufficient 
water conducted to defendant's land for his uses, he has not, as a 
riparian owner merely, the right to go on the land of an upper 
proprietor and divert the water from there. 

[5] Id.— Division of Water in Proportion to Acreage — Proper 
Judgment. — As between the parties to the action, a judgment 

3. Riparian owner's right to use and detain water and to the 
natural flow of the stream, note, 79 Am. Dec. 638. 

Meaning of phrase "domestic purposes" in relation to riparian 
rights, notes, Ann. Cas. 1912B, 621; Ann. Cas. 1914D, 563. 

Nature of riparian rights and lands to which they attach, notes, 
9 Ann. Oat. 1235; Ann. Cas. 1913E, 709; Ann. Oas. 1917C, 1026. 

Correlative rights of upper and lower riparian proprietors gen- 
erally, note, 41 I*. R. A. To 7. 



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54 Drake v. Tucker. [43 Cal. App. 

dividing the balance of the water, after the natural wants of the 
parties are satisfied, between them for irrigation purposes in the 
proportion that the acreage of each bears to the entire acreage 
of their riparian lands, is proper and reasonable. 
[6] Evidxncb— - Construction of Written Instruments — Admissibil- 
ity of Parol Testimony. — When written instruments are not 
ambiguous, they may not be varied by parol testimony; and even 
though, during the course of the trial, the court considers certain 
instruments ambiguous, it does not commit error in refusing to 
allow the introduction of evidence of the negotiations and under- 
standings of the parties thereto at the time they were executed 
where, in arriving at its judgment, it does not treat the instru- 
ments as ambiguous, but construes them correctly without the aid 
of parol evidence. 

APPEAL from a judgment of the Superior Court of 
Napa County. A. B. McKenzie, Judge Presiding. Affirmed. 

The facts are stated in the opinion of the court. 

Clarenee N. Riggins for Appellant. 

John T. York and Percy S. King for Respondents. 

LANGDON, P. J.— This is an appeal by the plaintiff from 
a judgment of the superior court in and for Napa County, 
dividing the waters of Ritchie Creek between the plaintiff 
and the defendants. The principal question presented to 
this court is as to the construction of certain deeds in the 
record. The facts surrounding the execution of said deeds 
are briefly as follows: From 1867 to 1905 George W. Tucker, 
the father of the defendant Charles L. Tucker, owned 146 acres 
of land situated along Ritchie Creek, a map of which land is in 
evidence in this action. During a part of this time he sold 
about three thousand gallons per day of the water of said creek 
to the county, and in addition used what he required thereof 
for domestic purposes in and about his house and barn. In 
1905 he deeded his property to his children, who held it as 
tenants in common. One of the children died shortly there- 
after, and the remaining children partitioned the land among 
themselves by two deeds, which it is conceded were executed 
as a part of the same transaction, and which deeds are the 
key to the solution of the controversy here. In the first deed 
from Charles L. Tucker, one of the respondents here, and 
George H. Tucker, to their sisters, Lila J. Eachus and Martha 



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Aug. 1919.] Drake v. Tucker. 55 

A. Culver, a portion of the land was conveyed, which has 
since by mesne conveyances become the property of the plain- 
tiff. This land is higher on the stream than the defendants' 
land. The deed conveying it contains a clause granting to 
plaintiff's predecessors the right to the amount of water 
diverted by George W. Tucker at a point in Ritchie Creek 
specified therein. At the same time another deed was ex- 
ecuted by Eachus, Culver, and George H. Tucker to Charles 
L. Tucker, respondent, conveying an undivided three-quarter 
interest in the portion of the land now owned by defendant 
and containing a clause granting to said Charles L. Tucker the 
right to divert water from a point specified and situated upon 
the land now held by the plaintiff, after the amount formerly 
diverted by George W. Tucker had been reserved. Defend- 
ant has maintained this point of diversion up to the time of 
the action. Plaintiff has resided on his land for about four 
years and has diverted water from a point below defendant's 
said point of diversion until May, 1917, when plaintiff placed 
a five-inch pipe in the stream above defendant's point of 
diversion and diverted substantially all the water of the 
stream, so that the defendant was deprived of water necessary 
for domestic and irrigation purposes. Defendant removed 
the pipe-line of plaintiff so placed, and plaintiff sought an 
injunction. 

The clauses in the deeds upon which plaintiff and appellant 
bases his claim were construed by the trial court in a manner 
which is in accordance with our own conclusions. Defend- 
ant contends that as a riparian owner, he is entitled to his 
proportion of the water except as that right is modified by 
the deeds. The first deed in which Charles L. and George 
H. Tucker are the grantors and Lila J. Eachus and Martha 
A. Culver, plaintiff's predecessors in title, are the grantees, 
conveys: "All of the water right acquired, or the right to 
divert the waters of Ritchie creek acquired by George Tucker, 
the grantor of all the parties to this instrument, at any time 
in connection with the above described tract, or in connection 
with any other tract of which the foregoing tract was a part 
and which said water is now diverted at a point in Ritchie 
creek southwest of the most southerly point of the above 
described land." 

The second deed in which Lila J. Eachus, Martha C. 
Culver, and George H. Tucker are grantors and Charles L. 



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56 Drake v. Tucker. [43 Gal. App. 

Tucker, the defendant, is the grantee, contains the following 
language: "Granting to the said Charles L. Tucker the right 
to divert water from Ritchie creek at a point about four 
hundred and fifty feet southwest of the main county road, 
and below the point where P. Salmina & Co. now divert water 
from said creek ; it being understood and agreed that Charles 
L. Tucker shall only have the right and privilege of using 
and diverting the overflow from Ritchie creek after Lila J. 
Eachus and Martha A. Culver, or either of them, have used 
all of the water formerly held, used or claimed by George 
Tucker, the former owner of the 146 acre tract this day 
divided among the parties hereto, they may desire for any and 
all purposes, upon the land this day deeded to them, and 
after said F. Salmina & Co. has used its share of said water ; 
and it is understood and agreed that no right, title or interest 
in any water right of said George Tucker, or any water right 
acquired since said property was granted to the parties hereto 
is hereby granted." This deed reserves to the grantors only 
the amount of water formerly "held, used, or claimed" by 
George Tucker. The court admitted evidence of the amount 
of water used by George Tucker, and found that the amount 
was about three thousand gallons per day sold to the county, 
and sufficient water for his domestic uses about his home 
and barn, and the court therefore allowed the plaintiff such 
amounts before allowing the defendant any water at all, and 
after such amounts were taken by the plaintiff, if any water 
remained, the court allowed the defendant sufficient water for 
his domestic uses and divided the balance, if any, between 
the plaintiff and defendant for irrigation in the proportion 
that the acreage of each bore to the entire acreage of the 
riparian land. [1] The decisions are to the effect that in 
running water there can be no absolute ownership; that 
riparian rights do not mean ownership in any special por- 
tion of the water of a stream until such water is actually 
taken and used. (Kidd v. Laird, 15 Cal. 161, 179, [76 Am. 
Dec. 472] ; Eddy v. Simpson, 3 Cal. 249, 252, [58 Am. Dec. 
408] ; Palmer v. Railroad Com., 167 Cal. 163, 168, [138 Pac. 
997] ; 2 Parnham on Waters and Water Rights, pp. 1565, 
1566.) [2] In view of these decisions, the language of the 
deed is clear. George W. Tucker "held, used, and claimed" 
only the portion of the water actually taken and used by 
him, which amount was found by the court upon substantial 



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Aug. 1919.] Drake v. Tucker. 57 

evidence. The deed from Charles L. Tucker by which appel- 
lant claims the grantor deeded away his riparian rights must 
be construed in connection with the deed to him, as both are 
admittedly a part of the same transaction. We think the 
language of that deed bears out the construction placed upon 
it by the court. The deed contains a specification of the exact 
water conveyed by it in the words: "And which said water 
is now diverted at a point in Ritchie creek southwest of the 
most southerly point of the above described land." The evi- 
dence regarding the amount of water diverted at that point 
at the time the deeds were executed is in harmony with the 
judgment. 

As the deeds merely reserved to the plaintiff's predecessors 
such amounts of water as the court found were used by 
George Tucker — the rights in the remainder of the water of 
the creek, as between the plaintiff and the defendant, are 
governed by the law applicable to riparian owners. [3] In 
answer to appellant's contention that he is entitled to use 
the water for irrigation on his land before the defendant is 
entitled to any water at all for domestic or other uses, we 
quote the language found in the decision in the case of Alia 
Land & Water Co. v. Hancock, 85 Cal. 219, 230, [20 Am. 
St. Rep. 217, 224, 24 Pac. 645, 647] : "So far, the right of 
a riparian proprietor to the use of the water for purposes 
of irrigation at all has been assumed, rather than determined, 
and has been properly regarded as among the last, though 
perhaps not the least important, of his riparian rights; one 
that must be always held in subordination to the rights of 
all other riparian proprietors to the use of water for the 
supply of the natural wants of man and beast, extended to 
the occupants of each and every tract held as an entirety, 
bordering upon the stream, whatever its extent. These 
natural wants supplied and protected, the right to a reason- 
able use of the surplus water by the riparian proprietor in 
common with others in like situation, for purposes of irriga- 
tion, has been acknowledged and recognized, but it cannot 
be extended even by implication." (See, also, Smith v. C or- 
bit, 116 Cal. 587, [48 Pac. 725] ; Learned v. Tang em an 
et at, 65 Cal. 334, [4 Pac. 191].) What is a reasonable 
use depends upon all the facts and circumstances o? the case. 
(Ferrea v. Knipe, 28 Cal. 341, [87 Am. Dec. 12b] ; Union 
Mills etc. Co. v. Ferris, 2 Sawy. 176, [Fed. Cas. No. 14,371] ; 



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58 Drake v. Tucker. [43 Cal. App. 

Willing v. Murray, 6 Ind. 324, [63 Am. Dec. 3851 ; Elliot 
v. Fitchburg R. R. Co., 10 Cush. 191, at pp. 193, 194, [57 
Am. Dec. 85] ; Timm v. Bear, 29 Wis. 254, 265.) The court 
here heard evidence upon the needs of the parties, the nature 
of the land, the volume of the stream and its variation in 
this respect at different seasons, and we think properly de- 
cided that it would be an unreasonable use of the water under 
all the facts and circumstances for the plaintiff to use it for 
irrigation before the domestic uses of the defendant had been 
satisfied. The court, therefore, after reserving to the plain- 
tiff the amount reserved to him by the deeds, allowed him 
water for his domestic uses and then allowed to the defendant 
water for his domestic uses before allowing the plaintiff any 
water for irrigation. After the domestic uses of the de- 
fendant were satisfied, then the water was divided between 
the plaintiff and defendant for irrigation, having regard to 
the number of acres of riparian land owned by each. The 
case seems to fall within the rule announced in the case of 
Evans v. Merriweather, 3 Scam. (111.) 492, [38 Am. Dec. 
106], where it is said that a riparian owner may use the 
whole of the stream if it is necessary to satisfy his natural 
wants. He may consume all the water for his domestic pur- 
poses, including water for his stock, but if he desires to use 
it for irrigation or manufactures, and there be a lower pro- 
prietor to whom its use is essential to supply his natural 
wants, or for his stock, he must use the water so as to leave 
enough for such lower proprietor. Where the stream is 
small, and does not furnish more than sufficient to answer the 
natural wants of the different proprietors living on it, none 
of the proprietors can use the water for either irrigation or 
manufacture. 

[4] It is not contended that the land of the defendant 
is nonriparian land. As a riparian proprietor, he is entitled, 
it is true, only to the water after it reaches his land in its 
natural flow, and if in the natural flow of the stream there is 
insufficient water conducted to defendant's land for his uses, 
he has not, as a riparian owner merely, the right to gr » on 
the land of an upper proprietor and divert the water from 
there. (Anaheim Union Water Co. v. Fuller, 150 Cal., at 
p. 332. [11 L. H. A. (N. C.) 1062. 88 Pac. 978].) A riparian 
proprietor's title to the water begins only when it reaches 
his land. (Hargrave v. Cook, 108 Cal. 72, [30 L. B. A. 390, 



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Aug. 1919.] Drake i/. Tucker. 59 

41 Pac. 18] .) But in the present case, defendant does not rely 
npon his riparian right for the privilege of going upon plain- 
tiff 's land and diverting the water. The deed to him from 
plaintiff's predecessor in interest has facilitated the enjoy- 
ment of his riparian rights, and by virtue of the contract 
between the parties, as contained in said deed, defendant is 
given the right to divert water from Ritchie Creek at a certain 
point on plaintiff's land, after plaintiff has used for any 
purpose he may desire the amount of water "held, used, or 
claimed by George Tucker," the former owner, which amount 
has been found by the court and saved to the plaintiff. 

[5] With respect to the fractional division of the water 
for purposes of irrigation, there is no evidence before the 
court as to whether or not there are yet other lower riparian 
owners, but if there are, of course, the rights of such owners 
are not affected by this judgment. As between the parties 
hereto, the division seems to us proper and reasonable, and 
if there are other parties who have yet independent rights, 
in a proper proceeding the rights of the riparian proprietors 
now before the court may be declared to be subject to such 
rights of such third parties, but such adjudication would not 
change the relative rights of the parties hereto as between 
each other. 

Appellant objects to the holding of the trial court that 
certain land which was owned by the plaintiff but was 
divided from his main tract and from Ritchie Creek by a 
strip of land used for the operation of an electric railroad 
was nonriparian land. The fee to the strip of land occupied 
by the railroad had been granted to said company by plain- 
tiff's predecessor in title. It becomes unnecessary for us to 
pass upon this question of law, because, as pointed out by 
the respondent, this ruling was not injurious to the plain- 
tiff, for the reason that the court held that the land of both 
the plaintiff and defendant lying north of said railroad was 
nonriparian, and, as shown by the map, more of the defend- 
ant's land was thus held to be nonriparian than of the plain- 
tiff. As the water was divided in proportion to the acreage 
of riparian land held by each, after reserving certain amounts 
to the plaintiff, the plaintiff would have received less water 
had the court held this strip of land to be riparian. 

Appellant objects that he was not allowed to introduce evi- 
dence of the negotiations and understandings of the parties 



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60 People v. Williams. [43 Cal. App. 

to the deeds at the time they were executed. [6] The rule 
is, of course, beyond dispute that when written instruments 
are not ambiguous, they may not be varied by parol testi- 
mony. The plaintiff himself admits that he does not con- 
sider these instruments ambiguous, but relies upon certain 
language used by the court in the course of the trial which 
he contends shows that the court considered these instru- 
ments ambiguous. The answer to this contention is that in 
arriving at its judgment, the court did not treat the instru- 
ments as ambiguous, but construed them without the aid of 
parol evidence, and this court finds that construction to be 
correct. It cannot be held, therefore, that these instruments 
are ambiguous, requiring the aid of parol testimony for their 
interpretation. 
The judgment is affirmed. 

Haven, J., and Brittain, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied 
by the supreme court on October 23, 1919. 

All the Justices concurred. 



[Crim. No. 858. First Appellate District, Division One.— August 27, 

1919.] 

THE PEOPLE, Respondent, v. A. W. WILLIAMS, 

Appellant. 

[1] Criminal Law — Obdeb Denying Motion in Abbest of Judgment 
— Appeal. — An appeal does not lie from an order denying a 
motion in arrest of judgment. 

[2] Id. — Larceny — Impeachment of Complaining Witness — Con- 
flicting Statements — Peopeb Question. — In a prosecution for 
the crime of larceny, the complaining witness, on direct examina- 
tion, having testified that when the defendant returned to the 
room in question he asked the defendant to switch on the 
light, and on cross-examination having been asked if it was not 
a fact that when the defendant entered the room he switched on 
the light without being asked bv the witness so to do, and ti» 



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Aug. 1919.] Peoplb v. Williams. 61 

latter baring answered in the negative, he was then properly 
asked, "Did 70a state at the preliminary that yon asked him to 
tnrn on the light I* 
f3] Id. — Previous Inconsistent Statements by Complaining Wit- 
ness! — Cboss-exa mination — Impeachment — Foundation Unneces- 
sary. — In a prosecution for the crime of larceny, the complain- 
ing witness haying testified on cross-examination that he made no 
effort to hold the defendant a prisoner in his room after the dis- 
covery of the theft, it was proper to ascertain whether or not the 
witness had made previous inconsistent statements, not only upon 
that subject, but also relative to the events that occurred in his 
room and partially detailed upon his direct examination. And it 
was proper to endeavor to discover that fact from the witness 
himself, without the necessity of first laying the predicate re- 
ferred to in section 2052 of the Code of Civil Procedure. 

APPEAL from a judgment of the Superior Court of 
Fresno County, and from an order denying a new triaL 
H. Z. Austin, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

P. J. Rogers and F. M. Fulstone for Appellant. 

U. S. Webb, Attorney-General, John H. Riordan, Deputy 
Attorney-General, and R. L. Chamberlain for Respondent. 

BARDIN, J., pro tent. — The defendant was informed 
against for the crime of grand larceny. Upon his trial he 
was convicted of petit larceny and, having suffered a 
previous conviction of felony, which he confessed on arraign- 
ment, was sentenced to imprisonment in the state prison at 
San Quentin. He now appeals from the judgment of con- 
viction and an order denying his motion for a new trial, 
and also from an order denying his motion in arrest of 
judgment. 

[1] It will be unnecessary to comment further upon the 
attempted appeal from the order denying defendant's mo- 
tion in arrest of judgment than to say that there is no 
authority for such appeal. (People v. Matuszewski, 138 
Cal. 533, [71 Pac. 701] $ People v. Mullen, 7 Cal. App. 547, 
[94 Pac. 867].) 

No claim is made by the defendant that the verdict of 
the jury is not supported by the evidence, the grounds urged 
for the reversal of the judgment and order denying a new trial 



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62 People v. Williams. [43 Cal. App. 

beiag that the trial court erred in its rulings upon the ad- 
missibility of evidence upon three separate occasions, thereby 
committing error of such substantial weight as to entitle 
the defendant to a reversal of the judgment rendered 
against him, and to have this cause remanded for a new 
trial. 

The information alleges that the crime was committed on 
or about January 2, 1919. The errors complained of arose 
during the cross-examination of the complaining witness, 
Walker, who testified substantially as follows: That he be- 
came acquainted with the defendant about the middle of 
December, 1918, while both were in the employ of Wells- 
Pargo & Co. at Fresno, California. That about the first 
day of January, 1919, Walker stated to the defendant that 
he was making arrangements to go to Texas and intended 
going to the bank to withdraw some money. That shortly 
prior to the alleged theft defendant heard a third party 
state to Walker that he would pay him some money the 
following day, and that on January 2d, the day of the com- 
mission of the offense, the defendant inquired whether this 
money had been paid, to which inquiry, however, the prose- 
cuting witness answered in the negative. Walker further 
testified that on the afternoon and evening of January 2d, 
the prosecuting witness and the defendant drank intoxicat- 
ing liquors together, but were not intoxicated, and that 
night went to Walker's room in the Clark hotel to pass the 
night, although at that time the defendant had lodgings at 
another hotel. 

The testimony of Walker further shows that shortly after 
reaching the latter 's room they retired for the night, both 
occupying the same bed ; that when Walker disrobed he felt 
in his trousers pocket and ascertained that his pocketbook 
was there, folded his trousers, and left them on a suitcase 
near the head of his bed. At 5 o'clock that afternoon his 
pocketbook contained a fifty dollar Liberty bond, a twenty 
dollar bill, and a five dollar bill in currency of the United 
States, after which time its contents had not been disturbed. 

Ecfore retiring Walker locked the door of the bedroom, 
placed the key on the table, directing the defendant's atten- 
tion to the fact should he desire to go to the lavatory. 
Walker was awakened at five minutes to 2 o'clock A. M. 
of that night by the defendant unlocking the door from 



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Aug. 1919.] People v. Williams. 63 

outside of the room. Williams stepped inside the room and 
stated that he had been to the toilet, which was but two 
or three doors away and in the same hallway. He was 
fully dressed at the time. Walker then noticed that his 
trousers had been disarranged and had been moved from 
the suitcase, and he thereupon discovered that his pocket- 
book and its contents were gone. 

Walker further testified that he and the defendant re- 
mained in the room during the balance of the night, the 
defendant undressing and again retiring, while he, Walker, 
did not again retire. Shortly before 7 o'clock of the morn- 
ing of January 3d, one Keith, a fellow-roomer at the Clark 
hotel, came to Walker's room and was informed of the 
larceny of Walker's property. Keith stated to Williams 
that he had seen him down on H Street a little after 12 
o'clock, which Williams then admitted was true. 

[2] It was testified by Walker, on direct examination, 
that when the defendant returned to the room about 2 
o'clock A. M., under the circumstances already related, he 
was asked by Walker to switch on the light. On cross- 
examination the question was asked if it was not the fact 
that when the defendant entered the room at the time re- 
ferred to he switched on the light without being asked by 
the witness so to do, to which question the witness answered 
in the negative. This question then followed: "Did you 
state at the preliminary that you asked him to turn on 
the light?" The district attorney objected to the question 
as immaterial. The question was a proper one and the 
objection should have been overruled. (People v. Hart, 
153 Cal. 261, [94 Pac. 1042] ; People v. Webber, 26 Cal. 
App. 413, [147 Pac. 102].) And it must be assumed that 
such ruling would have immediately followed had not coun- 
sel for the defendant been apparently diverted from his 
purpose of making the above inquiry, for, instead of taking 
the ruling of the court upon the objection, he asked another 
and different question of the witness before the court had 
ruled upon the objection, thus in effect withdrawing the 
previous question. 

During the direct examination of the prosecuting witness 
this testimony was given: 

"Q. Was there anything said about where he would stay 
all night that night f (Referring to the night in question.^ 



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64 People v. Williams. [43 Cal. App. 

"A. Oh, I told him that — he had stayed there the night 
before — I told him, I says: 'I can't keep you over to-night; 
I says, 'I'm going to have company.' " 

Referring to this testimony, counsel for the defendant, on 
cross-examination, propounded the question which follows, 
which question was objected to as immaterial and the objec- 
tion properly sustained: 

"Now, just tell us who that party was and give us an 
opportunity to subpoena them right now." 

The truth or falsity of that statement would shed no 
light upon the issues before the court. In fact, if the state- 
ment was a pure fabrication, then it would seem to militate 
more against the defendant than be of benefit to him, for 
it would, to some extent, demonstrate the desire in the 
prosecuting witness' mind to rid himself of the company of 
the defendant. 

We pass now to the consideration of the last objection 
complained of. This objection is predicated upon the 
court's refusal to permit the prosecuting witness to answer 
another of the questions directed to the prosecuting witness 
on cross-examination. That witness had testified that he had 
made no effort to make the defendant a prisoner in his room 
prior to the arrival of the peace officers. These proceedings 
then took place: 

"Q. Is it not a fact that you told Mr. Beebe, the pro- 
prietor of the Mayer Hotel, where Mr. Williams stopped, a 
few days after the 2d, that you found this man in your 
room and that you held him at the end of a gun in the 
corner of the room until the police came? 

"Mr. Beaumont: Well, we object to that as irrelevant, 
incompetent, and immaterial and not proper cross-examina- 
tion, and an attempt to impeach the witness on a collateral 
and immaterial matter; and that the question is not properly 
founded for impeachment. 

"The Court: The objection is sustained. I think it is 
immaterial. 

"Mr. Rogers: If we call Mr. Beebe, will we be prevented 
from asking whether or not Mr. Walker made this statement 
to him, that he found him in the room and held him at the 
end of a gun until the police camef 

"The Court: The chances are you will, if it is objected 
to." 



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Aug. 1919.] People v. Williams. 65 

Mr. Beebe was subsequently called as a witness for the 
defendant and testified that the statement above referred 
to was in fact made by the prosecuting witness, but his tes- 
timony was, upon motion of the district attorney, stricken 
from the record, although the jury was not admonished to 
disregard it 

[3] The record discloses that during the direct exami- 
nation of the prosecuting witness he went into a detailed 
account of what happened in his room from the time the 
defendant returned there until morning, and during which 
time the defendant and the prosecuting witness were to- 
gether alone. It was proper to make full inquiry upon 
cross-examination as to any facts which had been referred 
to in the direct examination. (Code Civ. Proc, sec. 2048.) 
And, having testified on cross-examination that he made no 
effort to hold the defendant a prisoner under the circum- 
stances referred to, it was proper to ascertain whether or 
not the witness had made previous inconsistent statements, 
not only upon that subject, but also relative to the events 
that occurred in the room and partially detailed upon his 
direct examination. And it was proper to endeavor to dis- 
cover that fact from the witness himself, and without the 
necessity of first laying the predicate referred to in section 
2052 of the Code of Civil Procedure. (People v. Jones, 
160 Cal. 358, [117 Pac. 176] ; People v. Ho Kim You, 24 
Cal. App. 451, [141 Pac. 950] ; People v. Webber, 26 Cal. 
App. 413, [147 Pac. 102] ; Wigmore on Evidence, sec. 1023.) 

The court did not commit error in striking out the testi- 
mony of Mr. Beebe, the witness called for impeachment. It 
was received over the objection of the district attorney 
and was not properly founded for impeachment as required 
by section 2052 of the Code of Civil Procedure. But the 
trial court was in error in sustaining the objection of the 
district attorney to the question directed to the complaining 
witness relative to the alleged contradictory statement made 
to Mr. Beebe. The utmost latitude compatible with our 
rules of evidence should have been permitted in the cross- 
examination of that witness. The record shows other in- 
stances where the cross-examination was held within bound- 
aries more restricted than is usual under circumstances 
where the guilt of the defendant depends to a considerable 

4* Gal. App.— ft 



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66 People v. Williams. [43 Cal. App. 

extent, not only upon indirect evidence, but also upon the 
credibility of a single witness. 

A survey of the whole record of the case, however, which 
discloses ample testimony to warrant the conviction of the 
defendant, compels the conclusion that the error complained 
of has not resulted in a miscarriage of justice. The case 
seems to be one for the application of section 4% of article 
VI of the constitution of this state. It appears from the 
record that the defendant had been unduly inquisitive about 
the receipt of money by the complaining witness shortly 
before the commission of the offense. On the night of Jan- 
uary 2d he had pressed himself into companionship with 
Walker for the night, although he had lodgings at another 
hotel. Without arousing Walker from his slumber the de- 
fendant stealthily arose at about midnight, fully dressed 
himself, and went down upon the streets of Fresno, and 
was observed by two witnesses in front of the hotel where 
he had permanent lodgings. He returned to the room of 
the prosecuting witness, unlocked the door from the outside, 
entered, locked the door again, and stated to Walker that 
he had been to the toilet. Subsequently, and in the pres- 
ence of the officers, he admitted having made this false 
statement to Walker. Confronted with a witness who had 
seen him down on the street, he offered in explanation of 
such act that he had gone from Walker's room down upon 
the street to get a drink. He denied having any money 
in his possession other than fifteen dollars in currency and 
a few dollars in silver. It was only after a very careful 
search that a twenty dollar bill in currency was found con- 
cealed on the inside of his hatband. The Liberty bond was 
not found. 

The defendant did not take the stand, but sought to 
prove by other witnesses that Walker had been imbibing 
intoxicating liquors quite freely on the afternoon and eve- 
ning in question and that he had been consorting with a 
woman of questionable morals, and that he might have lost 
his money through her handiwork, rather than by any act 
of the defendant. The testimony intended to sustain such 
a theory, while redolent of days before the advent of the 
Red-light Abatement Act and of war-time prohibition, is 
weak and unconvincing, and in our estimate is entitled to 



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Aug. 1919.] Dupes v. Dupes. 67 

no more weight than that given it by the jury and trial 
court. 

The defendant's conduct, his admissions, his highly in- 
criminatory deceptions, coupled with the testimony of the 
witnesses for the prosecution, justify the conclusion reached 
by the jury, and make this a proper place to apply the sec- 
tion of the constitution referred to. 

The judgment and order denying a new trial are affirmed. 

Eichards, J., and Waste, P. J., concurred. 



[Civ. No. 2951. First Appellate District, Division One. — August 28, 

1919.] 

T. W. DUPES, Respondent, v. EUGENIA N. DUPES, 

Appellant. 

[1] Divorce—Violation or Court Order by Wife — Dismissal of 
Appeal. — An appeal by the wife from a judgment grantiDg the 
husband a divorce and awarding him the custody of the minor 
children will not be dismissed because of the violation by the 
wife of the terms of an order of the trial court regarding the 
custody of such children. 

f2] Id. — Findings — Evidence — Corroboration. — In this action for 
divorce, the findings of the trial court were responsive to the 
pleadings and were sufficiently supported by substantial evidence 
and, where necessary, were corroborated as required by section 
130 of the Civil Code, and the trial judge was fully warranted 
in his view of the merits of the case. 

[3] Id. — Extreme Cruelty — What Constitutes — Conclusion of 
Trial Court — Appeal. — The question whether acts and conduct 
constitute such cruelty as, under all the circumstances shown, war- 
rants the granting of a divorce, is of such a nature that the con- 
clusion of the trial court is necessarily entitled to great weight, and 
it is only where it is clear that it is without any substantial sup- 
port in the evidence that it will be disturbed on appeal. 

[4] Id. — Absence of One Spouse Without Knowledge or Consent 
of Other. — Whether or not any specific absence of one spouse 

3. Cruelty without violence as ground for divorce, note, 65 Am. 
St. Rep. 75. 

Habits or course of conduct of spouse as cruelty warranting 
divorce, note, Ann. Caa. 1918B, 480, 500. 



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68 Dupes v. Dupes. [43 Cal. App. 

from the family home without the knowledge or consent of the 
other constitutes extreme cruelty, depends entirely upon the facts 
and circumstances of each particular case. 
[6] Id.— Extreme Cruilty is Question of Fact.— Whether or not 
any particular acts or course of conduct constitutes extreme 
cruelty within the meaning of the law is a question of fact to 
be deduced from all the circumstances of each ease. 

APPEAL from a judgment of the Superior Court of 
Kern County. J. W. Mahon, Judge. Affirmed. 

The facts are stated in the opinion of the court 

MacKnight ft Fitzgerrell and P. N. Myers for Appellant 

E. J. Emmons, Chas. N. Sears and T. C. Gould for 
Respondent 

BARDIN, J., pro tern. — The plaintiff instituted an action 
against the defendant for divorce upon the ground of ex- 
treme cruelty. The defendant denied the allegations of 
cruelty and cross-complained against plaintiff, seeking a 
decree of divorce upon the grounds of extreme cruelty, 
habitual intemperance, and willful neglect. Judgment was 
for the plaintiff and he was awarded the custody of the 
two minor children of the parties. 

Two proceedings have already been disposed of by the 
higher courts of the state involving the custody of these 
children. (In re Dupes, 31 Cal. App. 698, [161 Pac. 276] ; 
Dupes ▼. Superior Court, 176 Cal. 440, [168 Pac. 888].) 

Before taking up the consideration of this appeal from 
the judgment of the lower court upon its merits, it will first be 
proper to dispose of a motion to dismiss the present appeal 
because of the claim of respondent that appellant has so 
interfered with the custody of said children, since taking 
the appeal, that she has placed herself in contempt of the 
order of the superior court of the county of Kern, sitting 
as a juvenile court, and ought not therefore be permitted 
to press her appeal to a conclusion upon its merits. 

[1] A number of reasons are urged for the dismissal of 
the appeal, but the only one meriting the particular atten- 
tion of this court relates to alleged willful and contumacious 
conduct on the part of the appellant with reference to the 
custody of the children of the parties to this action. 



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Aug. 1919.] Dupes v. Dupes. 



Briefly, the facts, stated in form of affidavit, surrounding 
such alleged misconduct of the appellant, which, since they 
are not denied, may, for the purpose of this discussion, be 
assumed to be true, are these: Very shortly after the deci- 
sion in Re Dupes, supra, the juvenile court of Kern County, 
by its order, caused these unfortunate children to be placed 
in the custody of the Children's Shelter of the city of 
Bakersfield, C. P. Badger, truant officer of that county, 
having direct charge of them, pending the hearing of a 
petition placed before it to have them declared wards of 
that court. Leave was given the appellant by the judge 
of the juvenile court to visit the children on January 17, 
1918, but, in violation of the terms of that permission and 
in contempt of the order of said juvenile court, the appel- 
lant took possession of said children and shortly thereafter 
removed them, it is believed, from the jurisdiction of the 
state of California, as the whereabouts of defendant and 
of the two children has ever since been unknown to plain- 
tiff and to said court, although plaintiff has expended a 
large amount of money and has been very diligent in en- 
deavoring to ascertain their whereabouts. 

The point made for the dismissal of the appeal is not 
different in principle from that urged for the dismissal of 
three appeals in the case of Vosburg v. Vosburg, 131 Cal. 
628, [63 Pac. 1009], and on the authority of that case the 
motion to dismiss the appeal must be denied. 

Not only are we guided to this end by the sound logic 
of that particular case, but also by the analogous case of 
Johnson v. Superior Court, 63 Cal. 578. And we may here 
add that consideration for the welfare of the minors and 
of their probable ultimate disposition, as well also the in- 
terest the state has in the maintenance of the marital state, 
require that appeals involving the merits of such actions 
should not be dismissed except upon clear authority so 
to do. 

In Deyoe v. Superior Court, 140 Cal. 476, [98 Am. St. 
Rep. 73, 74 Pac. 28], Mr. Justice Angellotti, speaking for 
the court, said: "While an action to obtain a decree dis- 
solving the relation of husband and wife is nominally an 
action between two parties, the state, because of its interest 
in maintaining the same, unless good cause for its dissolu- 
tion exists, is an interested party. It has been said by 



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70 Dupes v. Dupes. [43 CaL App. 

eminent writers upon the subject that such an action is 
really a triangular proceeding in which the husband and 
the wife and the state are parties." 

And in McBlain v. McBlain, 77 CaL 507, [20 Pac. 61], 
it is stated that: "The parties to the action are not the 
only people interested in the result thereof. The public 
has an interest in the result of every suit for divorce; the 
policy and the letter of the law concur in guarding against 
collusion and fraud; and it should be the aim of the court 
to afford the fullest possible hearing in such matters." 

The cases cited in support of the motion to dismiss the ap- 
peal are from other jurisdictions, and are directed to the contu- 
macious conduct of the husband relative to the payment of 
money for the prosecution of the wife's cause of action, or for 
alimony, or such kindred matters. As stated in the note to the 
case of Brown v. Brown, 22 Wyo. 316, [140 Pac. 829], in 51 
L. R. A. (N. S.) 1119: "Some of the courts lay down the rule 
that the proper remedy for failure to comply with an order 
of the trial court for the payment of counsel fees, etc., is by 
dismissal of the appeal or suspension of final judgment." 
(Citing cases.) 

But other courts have adopted rules analogous to and in 
support of the principle stated in Vosburg v. Vosburg, 
supra. (Eastes v. Eastes, 79 Ind. 363; Dwelly v. Dwelly, 
46 Me. 377.) 

Numerous charges of misconduct on the part of the wife 
are made in plaintiff's complaint, but the principal allega- 
tions thereof relate to defendant's departure from the home 
of plaintiff and defendant with one of their children of 
very tender years, under peculiar and unwarranted circum- 
stances, the plaintiff not being advised as to her whereabouts 
or that of the child until her return to Bakersfield after 
an absence of over four months; and that shortly after her 
return she suffered a miscarriage by reason of her own 
willful act, being actuated by the desire to conceal from 
plaintiff her sinful and adulterous conduct while away from 
him. The plaintiff also alleged in his complaint that the 
defendant permitted plaintiff's mother-in-law to exercise an 
immoral influence and control over her, subverting her mor- 
als, undermining her character, and causing her to pursue 
a course of apparent illicit intimacy with other men. 



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Aug. 1919.] Dupes v. Dupes. 71 

[2] It will serve no useful purpose to go into a detailed 
survey of the evidence produced to substantiate the hus- 
band's charges, and which the trial court by its findings 
found to be true, only a portion of which are here referred 
to. Suffice it to say, in a general way, that the findings 
are responsive to the pleadings and are sufficiently supported 
by substantial evidence and, where necessary, corroborated 
as required by section 130 of the Civil Code, and that the 
trial judge was fully warranted in his view of the merits of 
the case, so far as we can discover from the cold pages of 
the transcript. 

The plaintiff's charge, found to be true, that the wife 
had suffered a miscarriage by reason of a self-inflicted abor- 
tion, giving birth to a fetus of such growth as to preclude 
the belief that conception had taken place by reason of 
the accessibility of the plaintiff, was sufficiently corroborated. 
The probable age of the evacuated fetus was testified to by 
the surgeon called in to administer to defendant. The 
husband's testimony of the admission on the part of the 
wife as to the instrument which she had used was corrob- 
orated by the discovery by a third party of such instrument 
in defendant's home, which, by the testimony of another 
physician, was proven to be well suited to the operation 
complained of. 

[3] The following language from the learned author of 
the opinion in the case of Robinson v. Robinson, 159 Cal. 
203, [113 Pac. 155], is relevant to the present case: "The 
trial court was the exclusive judge of all questions of credi- 
bility of witnesses and weight of evidence, and must be 
assumed to have considered all the evidence given in the 
light of such rules as are laid down by the law for the 
guidance of court and jury in the determination of ques- 
tions of fact. It should further be borne in mind that the 
question whether acts and conduct constitute such cruelty 
as, under all the circumstances shown, warrants the grant- 
ing of a divorce, is of such a nature that the conclusion 
of the trial court is necessarily entitled to great weight, 
and it is only where it is clear that it is without any sub- 
stantial support in the evidence that it will be disturbed on 
appeal." 

The defendant has assigned a number of errors claimed 
to have been committed by the trial court in the admission 



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72 Duns v. Duna. [43 CaL App. 

and exclusion of evidence, and which, it is contended, war- 
rants a reversal of the judgment. 

The reporter's transcript of the testimony in this case 
embraces 852 pages of typewritten matter. No attempt was 
made to print in the briefs of the appellant any portion of 
the testimony relative to or having even the most remote 
bearing upon the alleged errors of the court with reference 
to rulings upon matters of evidence, as required by section 
953c of the Code of Civil Procedure. While this court does 
not feel under any compulsion to examine the very volu- 
minous record with reference to these alleged errors referred 
to in the briefs of appellant, it has, nevertheless, done so 
under the feeling that the welfare of two children is vitally 
concerned, and that this is an action in which the state is 
also an interested party, and that to require counsel now to 
file a supplement to appellant's brief would be to entail 
further delay. 

After a careful examination of each of such asserted 
grounds of error we cannot find error of any substantial 
weight. We are inclined to believe that there was too wide 
a departure from the issues of the case permitted in the ex- 
amination of witnesses relative to the character and conduct 
of the mother-in-law of plaintiff, but such error being upon 
a collateral matter is of no grave importance. 

The court did not commit error in admitting evidence in 
support of the allegation concerning defendant's departure 
from the family home. Smith v. Smith, 62 CaL 466, does 
not purport to establish a rule of evidence, nor attempt to state 
a positive rule of law to be applied to other like cases where 
the conditions are not identical. [4] Whether or not any 
specific absence of one spouse from the family home, with- 
out the knowledge or consent of the other, constitutes extreme 
cruelty, depends entirely upon facts and circumstances of 
each particular case. 

In the instant case, however, the mere absence of the de- 
fendant from the family home without plaintiff's consent is 
not made the basis of his cause of action. That is but a 
single element in the theory of plaintiff's case. 

[5] Whether or not any particular acts or course of con- 
duct constitutes extreme cruelty within the meaning of the 
law is a question of fact to be deduced from all the circum- 



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Aug. 1919.1 Dupes v. Dupes. 73 

stamps of filch case. (Barnes v. Barnes, 95 Cal. 171, [16 
L.R. A. 660, 30 Pac.298].) 

Certain of the findings of the court, beside that already 
stated, are made the object of attack as not having the proper 
support in the evidence. Commenting briefly upon these criti- 
cisms we may say that an examination of the record of the case 
shows such attacks to be without merit. There was sufficient 
evidence to show that the defendant left her home against 
the will and over the protest of the plaintiff; that the de- 
fendant's mother was an inmate of the home of plaintiff 
and defendant and was permitted to exercise an evil influence 
over her daughter; that in the absence of plaintiff, the de- 
fendant was in the habit of inviting men who were strangers 
to plaintiff to the home of plaintiff and defendant; that de- 
fendant was in the habit of frequenting dances and associat- 
ing with persons unknown to plaintiff; and that defendant 
suffered the miscarriage already referred to in order to con- 
ceal from plaintiff her condition of pregnancy for which plain- 
tiff was not responsible. These findings are sustained by 
the testimony of either the husband with proper corrobora- 
tion or by the testimony of other witnesses. 

The claim of counsel for defendant that the findings against 
the truth of certain of the allegations contained in her cross- 
complaint are not sustained by the evidence may be dismissed 
with the remark that, since the trial court was the judge of 
the credibility of the witnesses below, who gave conflicting 
testimony upon the subject of defendant's allegations, this 
court cannot now weigh the evidence in order to see where 
the preponderance of proof lay. 

The judgment is affirmed. 

Richards, J., and Waste, P. J., concurred. 



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74 Park v. Orbison. [43 Cal. App. 



[Civ. No. 3011. First Appellate District, Division One.— August 29, 

1919.] 

ANDREW PARK, Respondent, v. THOMAS J. ORBISON, 

Appellant. 

[1] Negligence — Collision of Automobile With Pedestrian — 
Finding — Evidence. — In this action for damages for personal in- 
juries received in a collision with an automobile, the defendant's 
negligence was clearly established, he having approached the cross- 
ing where the accident occurred driving on the wrong side of the 
street and at an excessive rate of speed, without sounding an/ 
warning, notwithstanding his view thereof was obscured. 

[2] Id. — Failure to Look Both Directions.— In such an action the 
plaintiff is not precluded from recovering because, having seen 
the lights of automobiles coming from both his left and his right 
before starting to cross the street, he did not keep a lookout for 
both approaching machines, but waited until he reached the center 
of the street before again looking to the right to observe the 
approach of cars from that direction. 

[3] Id. — Use of Public Streets — Duties of Pedestrians and 
Drivers of Vehicles. — While pedestrians walking across busy 
public streets are required to use ordinary care to see that they 
do not collide with or are run over by vehicles, drivers of vehicles 
likewise must use ordinary care to prevent injury to pedestrians 
under such circumstances. 

[4] Id. — Objectionable Answer — Remedy. — Where the question asked 
by counsel for the plaintiff is proper but a portion of the an- 
swer given is hearsay, or otherwise objectionable, the remedy is 
for counsel for defendant to make a motion at that time to strike 
out the objectionable portion of the answer. Having failed to 
avail himself of such remedy, the defendant may not be heard 
on appeal to complain of the admission of such testimony. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. Prank G. Pinlayson, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

8. Rights and duties of pedestrians in highways with respect to 
automobiles, note. 4 Ann. Gas. 400. 

Rights and duties of automobile driver toward pedestrians in 
highway, notes, 13 Ann. Gas. 464; 21 Ann. Cas. 652; Ann, Oaa, 
1916 E, 666; 24 L. R. A. (N. S.) 557. 



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Aug. 1919.] Park v. Obbison. 75 

Duke Stone for Appellant. 
Wheaton A. Gray for Respondent. 

BARDIN, J., pro tern. — Plaintiff was awarded a judgment 
for one thousand dollars for damages suffered by him through 
the alleged negligent operation of an automobile of the de- 
fendant at the intersection of Hill and First Streets, in the 
city of Los Angeles. The defendant denied negligence upon 
his part and in further defense to the action pleaded affirma- 
tively the contributory negligence of the plaintiff. 

The accident took place on the evening of December 16, 
1914, at about the hour of 7 o'clock P. M. and at a time 
when it was dark and stormy. The plaintiff was proceeding 
eastward on the south side of First Street and intended to 
cross Hill Street at its intersection with First Street. When 
he reached the outer edge of the sidewalk, and before step- 
ping out into Hill Street proper, he looked and listened for 
approaching vehicles coming from both directions on that 
6treet. He was carrying a typewriter in his hands at the 
time and laprobe over his shoulders. At about two hundred 
feet to the north of the intersection of the streets referred to 
the traffic on Hill Street is accommodated by two tunnels, one 
for the use of a railway and the other for the use of automo- 
biles and pedestrians. Plaintiff testified that he heard the 
sound of an automobile emerging from the tunnel to the north 
and coming toward him, and that he saw, near the intersec- 
tion of Hill and Second Streets, which would be to the 
south and approximately four hundred feet distant, the light 
of an automobile approaching from that direction. Estimat- 
ing that he had an abundance of time to cross the street 
without danger from the machine approaching from his right, 
he continued his journey across Hill Street, with his eyes 
fixed upon the machine approaching from his left, and which 
was close at hand. At the instant the plaintiff reached the 
center of Hill Street, which at that point is fifty-six feet 
wide from curb to curb, he looked to his right, that is, to the 
south, and saw the flare of the light of the automobile driven 
by the defendant, and attempted to escape the impending 
danger by stepping backward. When he first observed this 
machine it was distant, so plaintiff testified, about fifteen or 
twenty feet and coming rapidly toward him. Plaintiff heard 



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76 Park v. Orbison. [43 Cal. App. 

no warning of its approach and it is not claimed by the de- 
fendant that any such warning was given. The effect of 
its projected light was overcome by the light of the cars ap- 
proaching from the opposite direction. The particular street 
crossing was well lighted at the time by street lights. 

The plaintiff, unable to escape collision, was knocked down 
and received personal injuries for which, and for loss of 
earnings by reason thereof, the court awarded him judgment. 

The plaintiff, a lawyer and publisher by occupation, stated 
that he was, at the time of the accident, familiar with the 
terms of the statute regulating the use of motor-driven vehi- 
cles upon streets and highways and believed that he was ex- 
posed to no danger from any vehicle approaching from the 
south until he had passed the center of the street. 

It may be stated that the automobile tunnel already re- 
ferred to is situate at the east side of Hill Street, the west 
wall of which projects twenty-three feet out into the street 
By reason of this, all automobiles using this tunnel are ac- 
customed to make the east side of Hill Street in the near 
vicinity of the tunnel, the principally traveled part of that 
highway, such use extending to about the intersection of 
First Street, of which practice both parties to the action were 
familiar. 

The defendant testified that at the time of the accident he 
was traveling very slowly and on the right-hand side of the 
street. The evidence is sharply conflicting upon both these 
elements. An eye-witness to the accident estimated the speed 
of defendant '8 automobile at that time to be at the rate 
of from ten to twelve miles per hour, while the plaintiff 
testified the rate to be from fifteen to twenty miles per hour. 
If the offending machine traveled as far as four hundred feet, 
or substantially that distance, while the plaintiff was walking 
from the curb to the center of the street, a distance of twenty- 
eight feet, it follows that the speed of defendant's automo- 
bile had, at least immediately previous to the accident, been 
very rapid. It is very plainly shown by direct and indirect 
evidence produced at the trial that the defendant was not 
traveling on his right-hand side of the street as claimed, and 
that the plaintiff was struck while at a point west of tho 
center of Hill Street. 

[1] It appears very clear to us that the defendant did 
not operate his automobile at the time of the accident in a 



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Aug. 1919.] Park v. Orbison. 77 

careful and prudent manner and with due regard for the 
safety of pedestrians. His view of the crossing at the inter- 
secting streets was obscured and obstructed by reason of the 
condition of his windshield because of the falling rain, yet, 
notwithstanding this, he was traveling at a rate of speed in 
excess of one mile in six minutes. He blindly ran his machine 
across these intersecting streets where pedestrians might very 
well be expected to be. He did not see the plaintiff until 
it was too late to avoid striking him. He sounded no warn* 
ing of his approach at the street crossing. He was not 
traveling upon his right-hand side of the street as the statute 
and common usage required, and there was no obstruction 
or condition of the street requiring his departure from this 
rule of the road. The evidence abundantly supports the find- 
ings of the trial court as to the defendant's negligence. 

[2] It is insisted that the plaintiff should be precluded 
from recovering in this action for the reason that his conduct 
clearly established contributory negligence in that it was 
plaintiff's duty to keep a sharp lookout for the approach of 
vehicles coming from both directions and at all times and at 
every point while crossing the street ; and that, having seen the 
lights of automobiles coming from both his left and his right, 
he should have kept a lookout for both approaching machines, 
although he had not passed the center line of the street at 
the time of the accident. 

[3] While it is true that pedestrians walking across busy 
public streets are required to use ordinary care to see that they 
do not collide with or are run over by vehicles, it is likewise 
true that the drivers of vehicles must use ordinary care to 
prevent injury to pedestrians under such circumstances. 
(Brown v. Brashear, 22 Cal. App. 135, [133 Pac 505]; 
Wiezorek v. Ferris, 176 Cal. 353, [167 Pac. 234].) 

The scene of the accident was in the business section of 
a populous city. The plaintiff did as a prudent man would 
have done under like circumstances. He was justified in 
his belief that he had ample time to at least reach the center 
of Hill Street before there could be any danger coming from 
his right. He was warranted in believing that any machine 
approaching from that direction would, as required by law, 
and in conformity with the customary usage of the street at 
that particular place by reason of the local conditions well 



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78 Park v. Orbison. [43 Cal. App. 

known to both plaintiff and defendant, and already referred 
to, travel on the east side of Hill Street. And he further- 
more was entitled to the assurance that the driver of any 
vehicle approaching from his right would use such care and 
circumspection as the circumstances required, and that such 
machine would not approach at an excessive rate of speed 
nor endanger him without warning. (Vehicle Act 1913, 
sees. 12, 20 and 22, Stats. 1913, c. 326.) For the trial 
court to have held as a matter of law that the plaintiff's con- 
duct was such as to constitute negligence under the circum- 
stances set out would have required the adoption of a stand- 
ard of care and circumspection on the part of a pedestrian 
crossing intersecting streets not in accord with the customary 
use of streets by pedestrians under like circumstances, nor 
obedient to any rule of law which has been brought to our 
attention. 

The cases of Niosi v. Empire Laundry Co., 117 Cal. 257, 
[49 Pac. 185], and Brown v. Pacific Electric Ry. Co., 167 
Cal. 199, [138 Pac. 1005], do not justify the contentions 
made by appellant on this particular point. The question of 
whether the conduct of plaintiff, upon the occasion referred 
to, amounted to negligence or not is to be determined from 
the attendant circumstances. He was not bound to look and 
listen for approaching vehicles when he started across the 
street, regardless of the circumstances of his environment. 
There might well be circumstances when to fail to do so would 
amount to negligence. (Mann v. Scott, 180 Cal. 550, [182 
Pac. 281].) And for like reasons it cannot be said, as a 
matter of law, that plaintiff was negligent in not keeping a 
vigilant lookout for approaching machines coming from both 
directions before he reached the center of the street. 

But in the instant case the evidence shows that, whether 
required by any positive rule of law or not to look and listen 
for approaching vehicles coming from both directions before 
crossing the street, the plaintiff did in fact so act. It is true 
that he did not look to his right again until he reached the 
center of the street, but, as a reasonably prudent man, he 
was justified in this conduct by reason of the attendant cir- 
cumstances. Not only had he estimated that he had ample 
time to cross the street before he would be liable to any 
danger from the defendant's automobile on account of its 



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Aug. 1919.] Park v. Orbison. 79 

relatively great distance from him when he took up his 
journey across the street, but he had the right to assume that 
the driver of that machine would perform his duty and obey 
the law. (Harris v. Johnson, 174 Cal. 55, [Ann. Cas. 1918E, 
560, L. R. A. 1917C, 477, 161 Pac. 1155] ; Scott v. San Ber- 
nardino Valley etc. Co., 152 Cal. 604, [93 Pac. 677].) 

The question of plaintiff's alleged contributory negligence 
was a question for the trial court, and the following language 
from the somewhat similar case of Black well v. Renwick, 21 
Cal. App. 131, [131 Pac. 94], may well be applied to this case: 
"In this case, under the state of the evidence, as we have 
briefly summarized it, it became the duty of the court to de- 
termine the question as to the negligence of the defendant and 
as to whether plaintiff was, under all of the circumstances 
shown, guilty of contributory negligence, and with the con- 
clusion thereon made, under the authorities, an appellate 
court cannot interfere." 

[4] There is no merit in the claim that the court com- 
mitted error in admitting hearsay evidence when it permitted 
the plaintiff to testify as to the effect attacks of dizziness, 
stated to have resulted from the injury complained of, had 
upon his mental feelings. The question was a proper one, 
und not objected to. In answer to this question it was testi- 
fied that upon one occasion, a considerable time after the 
accident, when attacked by dizziness, plaintiff saw a former 
business associate with a broad smile upon his face, who 
asked the plaintiff " where he had gotten his drink." Coun- 
sel for the defendant was silent until the question had been 
fully answered and then said, "We object to that as incom- 
petent, irrelevant, and immaterial." The claim is now made 
that a portion of the answer was hearsay and was a con- 
clusion of the witness and too remote in time to be admissible 
at all. The proper remedy was for counsel for the defend- 
ant to have made a motion at the time this testimony was 
given to strike out the objectionable portion of the answer, 
if it contained any such matter. (People v. Swist, 136 Cal. 
520, [69 Pac. 223] ; People v. Cole, 141 Cal. 88, [74 Pac. 
547].) Having failed to avail himself of the remedy at 
hand, defendant may not now complain, even though the ob- 
jection made at the trial be now subject to amendment so as 
to include grounds of objection not then stated, which of 
course, cannot be granted. The portion of the answer now 



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80 American Improvement Co. v. Lilienthau [43Cal. App. 

criticised, while perhaps not directly responsive to the que* 
tion, was relevant and material to the issue of damages. 
The judgment is affirmed. 

Richards, J., and Waste, P. J., concurred. 



[Civ. No. 2929. First Appellate District, Division One.— August SO, 

1919.] 

AMERICAN IMPROVEMENT CO. (a Corporation), Re- 
spondent, v. E. R. LILIENTHAL et al., Defendants; 
W. P. HAMMON, Appellant. 

[1] Bankruptcy — Composition — Natube of. — A composition is a pro- 
ceeding under which a bankrupt may settle with his creditors, if 
the majority so agree, by the payment of a lump sum to be dis- 
tributed ratably among the general creditors, and such sum as 
may be necessary to pay priority claims and costs of the pro- 
ceedings. The proposed composition is presented to the court, 
and, after notice and hearing, if approved by the court, an order 
is made confirming the same. 

[2] Id. — Effect of Confirmation. — Confirmation of a proposed com- 
position is in effect a discharge. Its effect is to supersede the 
bankruptcy proceedings, and reinvest the bankrupt with all bis 
property free from the claims of his creditors. 

[3] Id. — Reinvestment of Bankrupt With Property. — While the 
bankrupt is reinvested with all his property by the composition, 
its effect in that regard is no more than to place it back in his 
hands as it was before the insolvency proceedings were instituted. 

[4] Id. — Relative Effect of Discharge and Composition. — The com- 
position has no more effect than a discharge would under the 
same circumstances. Both a discharge and a composition releases 
the bankrupt from all his provable debts, except those specified in 
section 17 of the Bankruptcy Act. A discharge, however, is not 
a payment or an extinguishment of the debts; it is simply a bar 
to all future legal proceedings for the enforcement of the debts 
or obligations discharged, except such as are by way of enforce- 
ment of a lien therefor, not itself invalid. The discharge has 
merely destroyed the remedy, not the indebtedness. 

[6] Id. — Valid Ltens not Discharged. — A valid lien, created on the 
property of the bankrupt more than four months before the filing 

6. Effect of discharge in bankruptcy upon real property liens, 
note, 42 L. ». A. (N. 8.) 292. 



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Aug. '19.] American Improvement Co. v. Lildsnthal. 81 

of the petition in bankruptcy, ii not affected by his discharge. 
The discharge does not operate to cast off good and valid liens, 
given or acquired for the debt, nor to prevent their enforcement. 
It is purely personal to the bankrupt. 
[6] Id. — Judgment Lien — Effect of Composition. — A judgment lien, 
obtained by filing a transcript of the judgment in the county re- 
corder's office of the county in which the bankrupt owns property 
not exempt from execution, is not destroyed by involuntary bank- 
ruptcy proceedings commenced more than four months after such 
filing, when a composition between the bankrupt and his credi- 
tors is reached and confirmed by the court, although such com- 
position releases the bankrupt from further personal liability to 
pay the judgment obtained against him. 

APPEAL from an order of the Superior Court of the City 
and County of Sun Francisco denying motions to stay and 
recall executions on a judgment and to discharge the judg- 
ment of record. James M. Troutt, Judge. Modified and 
affirmed. 

The facts are stated in the opinion of the court 

Charles W. Slack for Appellant. 

William P. Hubbard for Respondent. 

WASTE, P. J.— This is an appeal by W. P. Hammon, one 
of the defendants in an action commenced in the superior 
court of the city and county of San Francisco by the Ameri- 
can Improvement Company against E. R. Lilienthal and 
others, from a special order, made after final judgment in 
the action, denying the motions of the defendant Hammon 
to stay and recall executions on the judgment and to dis- 
charge the judgment of record. 

Judgment for the sum of $5,813.72 was recovered on 
October 19, 1916, against the defendants as guarantors of 
the payment of a promissory note executed by Northern 
Electric Railway Company and delivered to the plaintiff. 
Judgment was docketed on October 20, 1916, and a certified 
copy of the transcript of the docket was filed in the office of 
the county recorder of the county of Santa Barbara on 
November 8, 1916, at which latter date the defendant Ham- 
mon was the owner of certain real property, not exempt from 
execution, situated in that county. On the same date a tran- 

4SOai.App.— 4 



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82 American Improvement Co. v. Liliekthal. [43 Cal. App. 

script of the judgment was filed in the office of the county 
recorder of Placer County. The judgment is final, no part 
of it has been paid, and it has never been satisfied, unless 
by the composition in the bankruptcy proceedings, herein- 
after referred to. 

An involuntary petition in bankruptcy was filed against 
the defendant Hammon on September 27, 1917, in the dis- 
trict court of the United States for the northern district of 
California, southern division. Thereafter, Hammon filed in 
the bankruptcy proceedings an offer to pay the sum of two 
hundred and fifty thousand dollars in satisfaction of his 
liabilities. On August 31, 1918, the district court made an 
order confirming the composition, the offer having been ac- 
cepted by a majority, in number and amount, of the credi- 
tors. No order of adjudication of bankruptcy has ever been 
made in the proceedings. The plaintiff was included in the 
schedule filed by Hammon, in the bankruptcy proceedings, 
as one of the secured creditors. It has had full knowledge 
and notice of the proceedings, and of the composition, and 
the proceedings in relation thereto. It never filed any claim 
in the bankruptcy proceedings nor participated therein in 
any respect whatsoever. It received no money upon its judg- 
ment, under the composition or otherwise, and took no part 
in the composition. 

An execution on the judgment was issued on September 19, 
1918, directed to the sheriff of the county of Santa Barbara, 
and under it certain real property was advertised for sale. 
The property had been conveyed by Hammon to the Oil- 
fields Syndicate on September 6, 1917, less than one month 
prior to the filing of the petition in bankruptcy, and ten 
months after plaintiff's judgment lien attached. It was not 
included in the list of assets of the defendant scheduled 
therein. Executions on the judgment, directed to the sheriffs 
of Placer, Monterey, Fresno, and Alameda Counties, and of 
the city and county of San Francisco, were also issued on 
September 19, 1918, but no levies appear to have been made 
thereunder. 

Motions were made by the defendant Hammon, previous 
to the time appointed for the sale of the real property, to stay 
and recall the executions and to discharge the judgment of 
record on the ground that the judgment had been satisfied and 
discharged by the composition effected by Hammon with his 



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Aug. *19.] American Improvement Co. v. Lilientha.u 83 

creditors in the bankruptcy proceedings, and the lien of the 
judgment extinguished thereby. The motions were denied 
and from the order denying the motions this appeal is taken. 

One proposition is presented for consideration on this ap- 
peal : Is a judgment lien, obtained by filing a transcript of the 
judgment in the county recorder's office of the county in 
which the bankrupt owns property not exempt from execution, 
destroyed by involuntary bankruptcy proceedings commenced 
more than four months after such filing, when a composition 
between the bankrupt and his creditors was reached and con- 
firmed by the court? 

Concisely stated, it is the contention of appellant that the 
effect of the order of confirmation, made in the bankruptcy 
proceedings, was to discharge the bankrupt, Hammon, from 
his indebtedness to the plaintiff, and to revest in the bank- 
rupt the title to his property ; that the order of confirmation, 
being in effect a discharge, the bankrupt was released thereby 
from liability on the judgment, the lien of which was avoided, 
although obtained more than four months prior to the filing 
of the petition in bankruptcy. 

[1] A composition is a proceeding under which a bank- 
rupt may settle with his creditors, if the majority so agree, 
by the payment of a lump sum to be distributed ratably 
among the general creditors, and such sum as may be neces- 
sary to pay priority claims and costs of the proceedings. The 
proposed composition is presented to the court, and, after 
notice and hearing, if approved by the court, an order is 
made confirming the same. 

[2] Confirmation is in effect a discharge. (2 Remington 
on Bankruptcy, sec. 2349; Cumberland Glass Mfg. Co. v. 
De Witt, 237 U. S. 447, [59 L. Ed. 1042, 35 Sup. Ct. Rep. 
636, 34 Am. Bankr. Rep. 723, see, also, Rose's U. S. Notes J ; 
United States ex rel. Adler v. Hammond, 104 Fed. 862, 144 
C. C. A. 229, 4 Am. Bankr. Rep. 736] ; In re Friend, 134 
Fed. 778, [67 C. C. A. 500, 13 Am. Bankr. Rep. 597].) Its 
effect is to supersede the bankruptcy proceedings, and re- 
invest the bankrupt with all his property free from the 
claims of his creditors. (In re Rider, 96 Fed. 808, [3 Am 
Bankr. Rep. 179] ; sec. 70f, Bankrupt Act.) 

Section 14c of the Bankrupt Act provides: "The confirma- 
tion of a composition shall discharge the bankrupt from his 



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84 Amxbioan Improvement Co. v. Lilienthau [43Cal. App. 

debts, other than those agreed to be paid by the terms of the 
composition, and those not affected by a discharge/* 

[3] While the bankrupt is reinvested with all his prop- 
erty by the composition, its effect in that regard is no more 
than to place it back in his hands as it was before the in- 
solvency proceedings were instituted. Strictly speaking, no 
adjudication of bankruptcy having been made, defendant was 
never divested of his property. (Houston ▼. Shear (Tex. 
Civ. App.), 210 S. W. 976, [43 Am. Bankr. Rep. 462, 469].) 
[4] The composition has no more effect than a discharge 
would have under the same circumstances. Both a discharge 
and a composition releases the bankrupt from all his prov- 
able debts, except those specified in section 17 of the act. 
A discharge, however, is not a payment or an extinguishment 
of the debts; it is simply a bar to all future legal proceed- 
ings for the enforcement of the debts or obligations dis- 
charged, except such as are by way of enforcement of a lien 
therefor, not itself invalid. The discharge has merely de- 
stroyed the remedy, but not the indebtedness. (Zavelo v. 
Beeves, 227 U. S. 629, [Ann. Cas. 1914D, 664, 57 L. Ed. 
676, 33 Sup. Ct. Rep. 365, see, also, Rose's U. S. Notes]; 
2 Remington on Bankruptcy, sees. 2668, 2672.) [5] A valid 
lien created on the property of the bankrupt more than four 
months before the filing of the petition in bankruptcy is not 
affected by his discharge. (Evans v. Bounsaville, 115 Ga. 
684, [42 S. E. 100, 8 Am. Bankr. Rep. 236].) The discharge 
does not operate to cast off good and valid liens, given or 
acquired for the debt, either a lien by contract or by legal 
proceedings, nor to prevent their enforcement. It is purely 
personal to the bankrupt, (Evans ▼. Staatte, 88 Minn. 253, 
[92 N. W. 951, 11 Am. Bankr. Rep. 184] ; Powers Dry Goods 
Co. v. Nelson, 10 N. D. 580, [58 L. R. A. 770, 88 N. W. 703, 
7 Am. Bankr. Rep. 510] ; Paxton v. Scott, 66 Neb. 385, 
[92 N. W. 611, 10 Am. Bankr. Rep. 80].) [6] Undoubt- 
edly, the composition released Hammon from further per- 
sonal liability to pay the judgment obtained against him in 
the action, but it did not affect the security afforded by his 
lien. (Bassett v. Thakara, 72 N. J. L. 81, [60 Atl. 39, 16 Am. 
Bankr. Rep. 786].) 

Appellant contends that the judgment against him was 
satisfied by the composition; that as the Bankruptcy Act 
makes no provision concerning the existence of the lien of the 



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Aug. 19.] American Improvement Co. v. Jalonteu^u 85 

judgment, after the judgment itself has been discharged by 
composition, the lien was itself released and discharged 
thereby and ceased to exist. The cases already cited by us 
refute that contention. A discharge is not a payment or 
extinguishment of the debt. Only the remedy, not the in- 
debtedness, has been destroyed — the debt can no longer be 
enforced as a personal obligation. (Zavelo ▼. Reeves, supra.) 
Section 67c of the Bankruptcy Act provides the condition 
under which a lien, created by or obtained in any suit or 
proceeding in law or equity begun against a person within 
four months before the filing of a petition in bankruptcy, by 
or against such person, shall be dissolved by the adjudication 
of such person to be a bankrupt. Section 67f of the act 
provides that "all levies, judgments, attachments, or other 
liens, obtained through legal proceedings against a person 
who is insolvent, at any time within four months prior to 
filing of a petition in bankruptcy against him, shall be deemed 
null and void in case he is adjudged a bankrupt, and the 
property affected by the levy, judgment, attachment or other 
lien shall be deemed wholly discharged and released from the 
same and shall pass to the trustee as part of the bankrupt, 
unless the court" shall otherwise order. It will be noted that 
these provisions apply only to liens obtained within four 
months prior to the filing of the petition in bankruptcy, and 
only then, in the event that an adjudication in bankruptcy 
shall result. Nothing in the act to which our attention has 
been called makes any such provision as to judgments or liens 
obtained more than four months prior to the filing of the 
petition. To the contrary, the courts have held that, as to 
such lien another rule is applicable. 

Referring to section 67f, the United States supreme court 
has said: "In our opinion the conclusion to be drawn from 
this language is that it is the lien created by a levy, or a 
judgment, or an attachment, or otherwise, that is invalidated, 
and that where the lien is obtained more than four months 
prior to filing the petition, it is not only not to be deemed 
to be null and void, on adjudication, but its validity is 
recognized. When it is obtained within four months the 
property is discharged therefrom, but not otherwise. A 
judgment or decree in enforcement of an otherwise valid pre- 
existing lien is not the judgment denounced by the statute, 
which is plainly confined to judgments creating liens. If 



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86 American Improvement Co. v. Lilienthal. [43 Cal. App. 

this were not so the date of the acquisition of a lien by at- 
tachment, or creditor's bill, would be entirely immaterial." 
(Metcalf v. Barker, 187 U. S. 165, 174, [47 L. Ed. 122, 23 
Sup. Ct. Rep. 67, 71, see, also, Rose's U. S. Notes] ; see, 
also, In re Sncll, 125 Fed. 154; In re English, 122 Fod. 113; 
Oil fit Ids Syndicate v. American Improvement Co., 256 Fed. 
979, in the district court of the United States for the south- 
ern district of California, February 27, 1919.) 

It would seem, therefore, that the lien of plaintiff, having 
been obtained more than four months prior to the petition in 
bankruptcy filed against defendant, if otherwise valid, was 
not affected by the composition reached by defendant and 
his creditors in the bankruptcy proceedings. 

That the lien attached by filing the transcript of judg- 
ment in Santa Barbara County is not open to dispute. It con- 
tinued for two years from and after the date of filing (Code 
Civ. Proc, sec. 674), and had been in force for over eleven 
months when the petition in bankruptcy was filed. 

Appellant and respondent have devoted much time to a 
consideration of the question whether or not plaintiff was a 
secured creditor of defendant. Whether plaintiff is or is 
not a secured creditor would not, in our opinion, alter the 
relation of the parties toward each other in connection with 
plaintiff's right, under the present facts, to proceed to realize 
on its lien, which was preserved to it by the composition. 
No authorities have been cited to us holding that if it were 
a secured creditor it would be compelled, upon composition, 
to surrender its security to defendant. Such would be the 
practical result if plaintiff were not now allowed to enforce 
its lien. We are not here dealing with the right of a secured 
creditor to stand upon his right to a certain portion of the 
assets of the estate by virtue of some security upon property 
of the bankrupt, but with the right of a judgment lienor to 
enforce his lien, acquired by legal process, after he has been 
cut off from all further legal proceedings for the collection 
of his debt. 

When counsel for the appellant admits in his brief that 
"there is also no doubt that if a lien is acquired in legal pro- 
ceedings without the four months' period, the lien is not 
discharged by an adjudication of, and a discharge of the lien 
debtor in bankruptcy, there being no composition," he con- 



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Aug. 1919.] Murphy v. Bridge. 87 

cedes the respondent *s case. As we have before pointed out, 
the effect of a composition and a discharge is the same. 

No liens were acquired by plaintiff in the counties of 
Fresno, Monterey, or Alameda, or in the city and county of 
San Francisco, the transcript of the judgment not having 
been recorded in either. The cause is remanded to the lower 
court with instructions to recall and quash the execution 
issued to the sheriffs of Fresno, Monterey, and Alameda 
Counties and to the sheriff of the city and county of San 
Francisco. Otherwise the order of the lower court refusing 
to recall and quash the execution is affirmed. 

Richards, J., and Kerrigan, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied 
by the supreme court on October 28, 1919. 

All the Justices concurred. 



[Civ. No. 2810. First Appellate Distriet, Division One.— August 30, 

1919.] 

ELLA M. MURPHY, Respondent, v. ARTHUR F. BRIDGE, 
Administrator, etc., et al., Appellants. 

[1] Trusts — Holding Property as Security — Determination of 
Ownership in Previous Action — New Trial — Judgment not 
Res Adjudicata. — In an action in equity to have it adjudged 
that the legal title to the property in dispute was held by de- 
fendant's intestate in trust and as security for the debt of the 
husband of the plaintiff to said intestate, a judgment rendered 
in a previous action brought by a third party against all the 
parties to the case at bar, and relating to the same property, is 
not res adjudicata in the case at bar where a new trial was 
granted in such prior action, notwithstanding that in such prior 
action judgment was rendered against plaintiff in the case at bar 
and she did not make a motion for a new trial nor appeal from 
the judgment therein. 

[2] New Trial — Order in General Terms Granting — Effect of.— 
The effect of an order in general terms granting a new trial, 



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88 Murphy v. Bridge. [43 Cal. App. 

generally speaking, is to open up the entire case as to all the 
parties, regardless of the fact that some of them may not have 
moved for a new triaL 

APPEAL from a judgment of the Superior Court of 
Alameda County. Stanley A. Smith, Judge. Affirmed, 

The facts are stated in the opinion of the court. 
Haven & Athearn for Appellants. 

Edward C. Harrison and Maurice E. Harrison for Re- 
spondent. 

KERRIGAN, J. — This is an appeal from an interlocutory 
decree adjudging plaintiff to be the owner of the real prop- 
erty described in the complaint subject only to a lien of de- 
fendant, May E. Bridge, for the unpaid balance of a certain 
debt. The suit is one in equity, brought by plaintiff against 
Arthur F. Bridge and May E. Bridge, as administrators 
with the will annexed of F. W. Bridge, deceased, and May 
E. Bridge, individually, to have it adjudged that the legal 
title to the property in dispute was held by F. W. Bridge in 
his lifetime in trust and as security for the debt of Herman 
Murphy, husband of plaintiff, to F. W. Bridge. 

The complaint alleges that the debt has been practically 
all paid, and the prayer is that plaintiff be adjudged to be 
the owner in fee of the property, subject only to the lien of 
any unpaid balance upon the debt, and that an accounting be 
had to ascertain such balance, if any. Judgment went for 
plaintiff in conformity with her prayer. Defendants moved 
for a new trial, which motion was denied. From the inter- 
locutory decree defendants have appealed. 

The record title to the property in dispute is now in de- 
fendant, May E. Bridge, as the successor in interest of F. W. 
Bridge, deceased, having been distributed to her under a 
decree of partial distribution in the estate of F. W. Bridge, 
deceased. [1] The only ground upon which a reversal of 
the judgment is sought is the action of the trial court in 
rejecting as evidence the judgment-roll in an action entitled 
"Miller v. Murphy," in which action it is claimed the risrhts 
of the parties to the property in dispute have been definitely 



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Aug. 1919.] Murphy v. Bridge. 89 

settled, and that the judgment rendered therein is res ad- 
judicata in the instant case. 

The suit of Miller v. Murphy was one brought by the plain- 
tiff therein against Ella M. Murphy and Herman Murphy, 
her husband, and F. W. Bridge and others, as defendants, 
to have it determined that the title to the property here in- 
volved was held by F. W. Bridge subordinate to and subject 
to the claim of such plaintiff. In that action plaintiff herein 
and F. W. Bridge answered, denying generally all the allega- 
tions of the complaint. Defendant Bridge, in his answer, 
further alleged that he was the sole owner of the property, 
and prayed that it be adjudged that neither Miller nor 
defendants, Herman Murphy or Ella M. Murphy, had any 
interest therein. The court, after a trial of that case, found 
that defendant F. W. Bridge was the owner of the property, 
and that he did not hold the same subject to any claim of 
the plaintiff whatsoever, and that none of the other defend- 
ants had any right, title, or interest in the property. Ac- 
cordingly, it was adjudged and decreed that defendant F. W. 
Bridge was the owner thereof. Thereafter the plaintiff Miller 
moved for a new trial, which motion was granted. Plaintiff 
herein, Ella M. Murphy, made no such motion, nor did she ap- 
peal from the judgment. Beyond question the judgment was 
the one she desired, for the record herein discloses the fact that 
she and her husband co-operated with Bridge in procuring it. 
It is the appellant's contention that as between defendant F. 
W. Bridge and his codefendant, Ella M. Murphy, the judg- 
ment in the suit of Miller v. Murphy became final, and that 
the judgment definitely determined the status of the prop- 
erty involved as between them, for the reason that the sub- 
ject matter in that case was the same as the subject matter 
of the instant case, and that, therefore, the judgment ren- 
dered therein is res adjudkata in the case at bar. 

This contention presents two questions — first, Was the 
judgment as originally rendered in Miller v. Murphy an 
adjudication upon the claim of the plaintiff in this casef 
and, second, if it was, did the granting of a new trial in that 
case have the effect of entirely vacating the judgment as such 
an ad judication t 

The principles involved in the first question, namely, 
whether or not the pleadings in Miller v. Murphy raised an 
issue which was or could have been litigated between the 



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90 Murphy v. Bridge. [43 Cal. App. 

parties hereto, or whether or not they were adverse parties 
within the meaning of that term, are questions we do not 
deem it necessary to discuss or determine, for we are of the 
opinion that the order granting a new trial in Miller v. 
Murphy vacated and terminated the judgment rendered 
therein. 

[2] The order granting the new trial was general in its 
terms. The effect of such an order, generally speaking, is to 
open up the entire case as to all the parties regardless of 
the fact that some of them may not have moved for a new 
trial. (1 Hayne on New Trial and Appeal, sec. 167; Kent 
v. Williams, 146 Cal. 3, [79 Pac. 527]; Joost v. Dore, 27 
Cal. App. 729, [151 Pac. 29].) 

It is appellants' contention, however, that the rule applies 
only where the judgment is such that it could not be set 
aside as to one without being set aside as to all, and that 
the rule has no application where the judgment is severable. 
Conceding this to be true, no such situation is here pre- 
sented. The motion for a new trial and the order granting 
the same were both general in terms. The judgment was 
predicated upon the issues tendered between the plaintiff 
and all the defendants, and was rendered against all of 
them; and the subsequent order, general in its terms, grant- 
ing a new trial, vacated the entire judgment and had the 
effect of placing the parties in the position they held be- 
fore any trial had taken place. Undoubtedly, the parties 
herein could have litigated, under appropriate pleadings in 
the Miller case, the rights here involved, but no such relief 
was sought by them, they contenting themselves in that 
case with defeating the claim of the plaintiff therein. 

For the reasons given the judgment is affirmed. 

Waste, P. J., and Richards, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on October 28, 1919. 

All the Justices concurred. 



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Sept. 1919.] Gkeenb v. Mooke. 91 



[Civ. No. 2983. First Appellate District, Division One.— September 2, 

1919.] 

A. W. GREENE, as a Creditor, etc., Appellant, v. WM. H. 
MOORE, Jr., as Trustee in Bankruptcy, etc., Respondent. 

[1] Bankruptcy — Action by Creditor Against Trustee — Failure of 
Truster to Commence Action on Behalf of Estate — Insuffi- 
cient Complaint. — Tn an action by a creditor of a bankrupt on 
behalf of himself and other creditors against the trustee in bank- 
ruptcy for damages for refusal to commence an action against 
certain parties who are alleged to have seized and sold certain 
property of Baid bankrupt, and for the value of which said par- 
ties are said to be liable to his estate, the complaint does not 
state a cause of action where it fails to allege an abuse of the 
discretion with which the trustee is invested with respect to the 
bringing of actions in the interest and for the benefit of the 
estate. 

[2] Id. — Bringing of Actions on Behalf of Bankrupt Estate- 
Discretion of Trustee — Eights of Creditors. — The trustee in 
bankruptcy and not a creditor or any number of creditors is the 
sole judge of the matter of when or whether to bring Buch 
actions; and in the absence of an abuse of the discretion with 
which he is invested he is not subject to the dictation or con- 
trol of the creditors of the estate. 

[3] Id. — Jurisdiction of Federal Courts Exclusive — Remedy of 
Creditors. — While the proceedings in bankruptcy are pending in 
the federal court, the jurisdiction of that court over the assets of 
the bankrupt and the actions of the trustee in bankruptcy is ex- 
elusive. The remedy of a creditor is to apply to the federal 
court for relief from any neglect or refusal of the trustee to per- 
form his duty, and that court upon a proper showing will compel 
the trustee to proceed or remove him for his disobedience or 
neglect of duty. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. Grant Jackson, Judge. Affirmed. 

The facts are stated in the opinion of the court. 
E. M. Barnes for Appellant. 

1. Liability of trustee in bankruptcy for failure to collect assets, 
note, 16 I* bL A. (N. S.) 341. 



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92 Greene v. Moobb. [43 Cal. App. 

Bowen & Bailie, Norman A. Bailie and Frederick W. Lake 
for Respondent. 

RICHARDS, J.— This is an appeal from a judgment in 
favor of the defendant after an order sustaining his de- 
murrer to the plaintiff's complaint without leave to amend. 

The action is one brought by the plaintiff as one of the 
creditors of one R. B. Tolmie, a bankrupt, the plaintiff pur- 
porting to bring said action on behalf of himself and many 
other creditors of said bankrupt, though who or how many 
of these creditors there are, or by what authority the plain- 
tiff assumes to represent them, is not made to appear. The 
complaint alleges that the proceedings in bankruptcy of said 
Tolmie are pending in the United States district court of 
the southern district of California, wherein the said Tolmie 
has been duly adjudicated a bankrupt, and wherein the de- 
fendant herein has been, and still is, the duly appointed, 
qualified, and acting trustee of the estate of said bankrupt. 
The complaint further alleges that the plaintiff herein has 
demanded of such trustee that he commence a certain action 
against certain parties who are alleged to have seized and sold 
certain property of said bankrupt, and for the value of which 
6aid parties are alleged to be liable to said estate; that the 
defendant as such trustee has refused to commence said action, 
by which refusal the plaintiff and the other parties whom he 
assumes to represent have been damaged in the sum of 
$862.27, for which sum he prays judgment against said 
trustee. 

The defendant demurred to this complaint upon two main 
grounds: First, that said complaint did not state facts suffi- 
cient to constitute a cause of action ; second, that the court had 
no jurisdiction of the subject of the action. The court sus- 
tained this demurrer generally without leave to amend. 

[1] We are of the opinion that the judgment of the trial 
court rendered after making said order was proper for both 
of the reasons urged in said demurrer. The complaint failed 
utterly to show any abuse of the discretion with which the 
trustees of bankrupts are invested with respect to the bringing 
of actions in the interest and for the benefit of the estate. 
[2] He and not a creditor or any number of creditors is the 
sole judge of the matter of when or whether to bring such 
actions; and in the absence of an alleged abuse of the dia- 



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Sept. 1919.] Gebenb v. Moon. 93 

cretion with which he is invested he is not subject to the 
dictation or control of the creditors of the estate. (In re 
Baird, 112 Fed. 960; In re Columbia Iron Works, 142 Fed. 
234; Remington on Bankruptcy, sec. 900.) There being no 
averment in the complaint herein showing any abuse of this 
discretion, it failed to state a cause of action. 

[3] But the order of the court in sustaining said de- 
murrer without leave to amend is sustainable for another and 
stronger reason. The proceedings in bankruptcy were pend- 
ing in the federal court at the time this action was com- 
menced, and the defendant herein was then, and still is, the 
duly appointed officer of that court. The jurisdiction of the 
federal court over the assets of said bankrupt and over the 
actions of said trustee is exclusive, and the state courts have 
no jurisdiction over either during the pendency there of said 
proceedings, (Iu re Waits, 190 U. S. 1, [47 L. Ed. 933, 23 
Sup. Ct. Rep. 718, see, also, Rose's U. S. Notes] ; In re 
Anderson, 23 Fed. 482; White v. ScJdoerb, 178 U. S. 542, 
[44 L. Ed. 1183, 20 Sup. Ct. Rep. 1007].) None of the cases 
cited by the appellant holds to the contrary. The remedy of 
a creditor in such a case as this is complete; he may apply 
to the federal court for relief from any neglect or refusal 
of the trustee to perform his duty, and the court upon a 
proper showing will compel him to proceed or remove him 
for his disobedience or neglect of duty. The exclusive 
jurisdiction to thus control its officer rests with said court. 
It follows that the order of the trial court sustaining the 
defendant's demurrer without leave to amend was proper. 

The judgment is affirmed. 

Waste, P. J., and Kerrigan, J., concurred. 



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94 Simpson v. Smith, [43 Cal. App. 



[Civ. No. 2156. First Appellate District, Division One.— September 8, 

1919.] 

M. L. SIMPSON et al., AppeUants, v. ELSIE SMITH, 

Respondent. 

[1] Promissory Notes — Consideration — Extinguishment op Prior 
Bights. — The extinguishment of a promissory note executed by 
the husband prior to his marriage, the consideration for which 
passed solely to him, constitutes a sufficient consideration for the 
promise of the wife to pay a new note executed by both of them. 

[2] Findings — Evidence — Appeal. — Every intendment should be in- 
dulged in favor of the findings of the trial court, and they should 
not be overthrown on appeal unless it clearly appears that the 
conclusions reached are without the support of substantial 
evidence. 

APPEAL from a judgment of the Superior Court of 
[Alameda County. James G. Estep, Judge Presiding. Re- 
versed. 

The facts are stated in the opinion of the court 

Fitzgerald, Abbott & Beardsley for Appellants. 

L. B. Weinmann for Respondent. 

BARDIN, J., pro tern. — Plaintiffs, who are husband and 
wife, brought this action to recover a judgment for the bal- 
ance due of the principal and interest of a promissory note 
made by defendant and her husband, E. S. Smith, since de- 
ceased, dated April 20, 1912, and payable one day after 
date "to M. L. Simpson or S. E. Simpson." The defendant, 
who had judgment below, denies liability upon two grounds : 
(1) That there was no consideration for the promise of the 
defendant, and (2) that the signature of defendant to said 
note was procured under duress and through the undue 
influence of plaintiffs and the husband of the defendant. 

The court found, in effect, among other facts, that the 
defendant did not, for value received, execute to the plain- 
tiffs the promissory note sued upon ; that the defendant had 
never received any consideration of any nature whatsoever 
for signing said promissory note; that there was no consid- 



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Sept. 1919.] Simpson v. Smith. 95 

eration for defendant signing said note; and "that no det- 
riment of any kind or nature was suffered by the plaintiffs 
... or either of them by reason of said instrument." 

The affirmative allegations contained in defendant's an- 
swer relative to the charge that plaintiffs procured the de- 
fendant's signature to the note in question through duress 
and undue influence were adopted by the trial court in its 
findings a& true, yet there is no evidence whatever in the 
record which sustains such findings. They are so clearly 
unsupported by the evidence that they were probably made 
through inadvertence. 

From a review of the evidence adduced at the trial and which 
was believed by the trial court to warrant the finding that 
there was no consideration for the promise of defendant 
contained in the promissory note sued upon, we discover the 
following germane and uncontradicted facts: 

[1] The note in suit was the outgrowth of the demands 
of plaintiff M. L. Simpson for the payment of a prior prom- 
issoiy note, then due and unpaid, made by the husband of 
defendant and presumably payable, as stated in respondent's 
brief, to both plaintiffs. The prior note was made previous 
to defendant's marriage, and the consideration therefor had 
passed solely to the said husband of defendant and she was 
not obligated in any manner under it. Under pressure of 
plaintiff M. L. Simpson for payment of the first note, or 
that its payment be secured, the note in suit was drawn, 
dated, and signed by the husband of defendant and he 
thereupon handed the note to defendant for her signature. 
Several days later, and after its maturity, she affixed her 
signature to the face of the note and returned it to her hus- 
band, who thereafter delivered it to the plaintiffs with the 
understanding that it replace the first note. 

It does not appear from the evidence that the defendant 
participated directly in the arrangement whereby the ante- 
cedent debt was discharged by the execution of the new 
note, other than by signing the note in suit and delivering 
it to her husband. Some two years thereafter the present 
action was begun to enforce the payment of the balance due 
and unpaid on the note last executed. 

It is contended by the defendant that, since the note in 
suit was not delivered until after its maturity, it became, 
in legal effect, 4 demand note which the parties might sue 



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96 Simpson v. Smith. [43 Cal. App. 

upon as soon as delivered; and that, therefore, no detri- 
ment or prejudice was suffered by the plaintiffs, for there 
could be no enforceable forbearance to sue under the cir- 
cumstances, and, that since the element of forbearance to 
sue was not present, there was no consideration for the 
promise of the defendant. 

But this theory eliminates the real consideration for the 
execution of the note in suit. The consideration for the sig- 
nature of the defendant to such note is not grounded upon 
the forbearance of either of plaintiffs to sue upon an ante- 
cedent debt, but instead, upon the extinguishment of the 
prior note of the husband of defendant. The relinquishment 
of all rights under that note constituted such a detriment 
and prejudice to the rights of the plaintiffs as to provide a 
sufficient consideration to support the promise of the defendant 
to pay the note sued upon. (Stroud v. Thomas, 139 Cal. 274, 
[96 Am. St. Rep. Ill, 72 Pac. 1008] ; Lyon v. Robertson, 6 
Cal. Unrep. 390, [59 Pac. 990] ; Hobson v. Hassett, 76 Cal. 
203, [9 Am. St. Rep. 193, 18 Pac. 320] ; MUler <& Lva v 
Dunlap, 28 CaL App. 313, [152 Pac. 309] ; Civ. Code, 
sec. 1605.) 

In Stroud v. Thomas, supra, the court used the following 
language: "The contention of the appellant that a pre-exist- 
ing debt is not a sufficient consideration for the execution of 
a note, so far as the sureties thereon are concerned, where 
the obligation for the pre-existing debt is canceled upon the 
delivery of the new note, does not merit discussion. It is well 
settled that such a consideration is sufficient as a foundation 
for the promise of the sureties, as well as that of the princi- 
pals." 

Counsel for the respondent places undue reliance upon the 
cases of Westphal v. NeviUs, 92 Cal. 545, [28 Pac. 678], 
and Whelan v. Swain, 132 Cal. 389, [64 Pac. 560]. We per- 
ceive nothing in those cases contained which is in disagree- 
ment with the views herein expressed. In Westphal v. 
NeviUs, supra, it was held that the detriment to the plaintiff 
by reason of time given to make payment of an antecedent 
debt was sufficient consideration to support the promise of 
the appellant. The effect of the relinquishment of rights 
under an antecedent note or iebt was not involved. And, 
in the case of Whelan v. Swain, supra, the consideration 
supporting a promissory note was based not only upon a for- 



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Sept 1919.] Curtis v. Arnold. 97 

bearance to sue, but also because "the old note was sur- 
rendered. " 

[2] While we are aware that every intendment should be 
indulged in favor of the findings of a trial court, and that 
they should not be overthrown on appeal unless it clearly 
appears that the conclusions reached are without the support 
of substantial evidence, yet, in this particular case it clearly 
appears from the uncontradicted testimony adduced at the 
trial that the consideration for the signature of the defendant 
to the note sued upon was the relinquishment by plaintiffs 
of rights under the prior note referred to. 

The findings of the trial court to the effect that there was 
no consideration for the execution of the note in suit by the 
defendant is without sufficient support in the evidence. The 
resulting judgment cannot, therefore, be upheld. 

Judgment reversed and a new trial ordered* 

Richards, J., and Waste, P. J., concurred. 



[Civ. No. 2957. First Appellate District, Division One.— September fl, 

1919.] 

FANNIE SLATER CURTIS, Appellant, v. ELLA H. 
ARNOLD, Respondent. 

[1] Landlord and Tenant— Deposit or Security— Termination or 
Lease— Bight to Return or Deposit. — Where money is deposited 
as security for the payment by the lessee of the rent, upon the 
termination of the lease the lessee is entitled to a return of the 
sum deposited, less the amount of the rent due and unpaid at the 
time of the termination. 

[2] Id.— Payment or Bonus fob Lease— Bight or Lessee to Be- 
cover. — If the sum is paid by the lessee as a bonus, as an in* 
dependent consideration, to induce the lessor to make the lease, a 
cancellation of the lease by the lessor for any cause which justi- 
fies the act wiU not entitle the lessee to receive back any part 
of the sum so paid, in the absence of some stipulation in the 
lease permitting her to do so. 

[8] lb. — Amount Paid at Time or Execution or Lease — Termina- 
tion or Lease for Nonpayment or Bent — Bight or Lessee to 
Recover Money — Construction or Agreement. — Under the terms 

43Cul. App.— 7 



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98 Curtis v. Arnold. [43 Cal. App. 

of a lease providing that "for and in consideration of the ram of 
three thousand dollars, the receipt whereof is hereby acknowl- 
edged," the lessor "agrees to make and enter into, and does make 
and enter into," a lease of a certain building to be erected for a 
period of ten years from and after the completion of the build- 
ing at a stated total rental payable in given monthly installments, 
the first month's rent being free, nothing being said as to the 
amount of rent to be paid for the last five months of the term, 
and that in the event of the termination of the lease prior to the 
expiration of the ten-year term, for any reason or cause, except a 
breach of covenant by the lessee, the lessor will pay to the lessee 
the sum of three thousand dollars, with interest, provided, how- 
ever, that if such termination shall occur during the last five 
months of said term, the amount so payable shall be reduced at 
the rate of $925 per month for each of said months as shall have 
expired prior to said termination, and providing further that if 
the lessee shall comply with the terms, conditions, and covenants 
of this lease, he shall have the use of the premises free during 
the last five months of the term, said free rent being conditioned 
upon the full performance of all the terms of said lease by the 
lessee during the entire ten-year term, upon the lessees moving 
out of the premises less than four years after the completion and 
taking possession thereof, following notice from the lessor to pay 
the monthly installment of rent then due and unpaid within throe 
days or deliver possession of the premises, such lessee is not en- 
titled to recover any portion of the fund paid to the lessor at the 
time of the execution of the lease. 
[4] Id. — Provision as to Repairs — Making or by Lessee— Right to 
Recoup Losses Out op Rent. — Under a lease providing that the 
lessor, at her own cost and expense, shall repair, or cause to be 
repaired, any defects in said premises due to construction which 
shall appear during the first twelve months after the completion 
and acceptance of the building, the lessee is not entitled to re- 
coup her losses of money for repairs made by her after the ex- 
piration of such twelve-month period from the rent of the 
premises as such rent becomes due. 

APPEAL from a judgment of the Superior Court of 
the City and County of San Francisco. Daniel C. Deasy, 
Judge. Affirmed. 

The facts are stated in the opinion of the court. 

E. H. Countryman for Appellant. 

Burrell G. White and John Ralph Wilson for Respondent. 



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Sept 1919.] Cubits v. Arnold. 99 

WASTE, P. J. — The plaintiff appeals from a judgment, 
and asks for a review of the order denying a motion for a 
new trial. The controversy involves the sum of three thou- 
sand dollars, on deposit under the terms of a written lease 
dated March 7, 1910, between defendant, as lessor, and 
Charles Loeffler, as lessee. The interests and rights of the 
lessee have been transferred to plaintiff. 

The first paragraph of the lease reads as follows: 

"For and in consideration of the sum of three thousand 
dollars ($3,000) gold coin of the United States of America, 
the receipt of which is hereby acknowledged, Ella H. Arnold, 
of the City and County of San Francisco, State of California, 
agrees to make and enter into, and does hereby make and 
enter into, to and with Charles Loeffler of the same place the 
following lease, upon the terms and conditions herein specified, 
to wit." 

Then follows an ordinary lease made and entered into be- 
tween the parties, under the terms of which the lessor agrees 
to erect a certain five-story, class C, building in accordance 
with plans and specifications therein particularly referred to, 
for a period of ten years, from and after the date of com- 
pletion of the building, at the total rental, or sum, of one 
hundred and two thousand five hundred dollars, in monthly 
payments (the first month's rent being free) of $875 per 
month, for the first five years of the lease, and $925 for the 
next four years and seven months of the term. Nothing is 
said in the lease as to the amount of rent to be paid by the 
lessor for the last five months of the term. 

It was expressly covenanted in the lease that the lessor 
should, at her own cost and expense, keep the roof and ex- 
terior of the premises in good order, condition, and repair 
during the term of the lease, and should likewise, at her 
own cost and expense, repair or cause to be repaired any 
defects in the premises which should appear during the first 
twelve months after the completion and acceptance of said 
building, if the defects resulted from the settling of the walls, 
shrinkage of timbers, defective plumbing, or other defects due 
to construction. 

It was further stipulated in the lease that, otherwise than 
as above stated, the lessor, after taking possession of the prem- 
ises, should keep and maintain the interior of the same in 
good order, condition, and repair during his occupancy, the 



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100 Curtis v. Arnold. [43 Cal. App. 

injury thereto or destruction thereof by the act of God or 
the elements or other cause beyond the control of the lessee 
being excepted. The lessee expressly waived all rights to 
make repairs of said premises at the expense of the lessor, as 
provided in section 1942 of the Civil Code of the state of Cali- 
fornia. 

A further stipulation in the lease is: 

"That in the event of the determination of this lease prior 
to the expiration of the ten year term hereby demised, for any 
reason or cause, except a breach of covenant by the lessee, 
the lessor will pay to the lessee the sum of three thousand 
($3,000) dollars in gold coin of the United States of America, 
together with interest thereon from the date of the com- 
pletion of said building, at the rate of four (4%) per cent 
per annum, compounded annually, provided however, that if 
such termination shall occur during the last five months of 
said term, the amount so payable shall be reduced at the 
rate of nine hundred and twenty-five ($925) dollars per 
month for each of said months as shall have expired prior to 
said termination. It is understood and agreed that this lease 
shall not be assigned without the written consent of the lessor. 
It is understood that if the lessee shall in all respects fully 
comply with the terms, conditions and covenants of this lease, 
he shall haye the use of the above described premises, herein 
leased for the last five months of the term herein named and 
provided, free of rent, and said free rent is conditioned upon 
the full compliance with the performance of all conditions 
and covenants of this lease by said lessee both before and 
during the said last five months hereof. ' ' 

The building was completed and possession taken by 
the lessee on or about the thirty-first day of December, 1910. 
The rent for the month of September, 1914, was not paid. 
Defendant served on plaintiff a notice, requiring him to pay 
the rent within three days or deliver possession of the prem- 
ises. Plaintiff moved out of the premises within the period 
given, and defendant, in writing, accepted the keys and 
possession of the leased property. 

During plaintiff's occupancy of the house, certain struc- 
tural defects in the building developed, and plaintiff, after 
calling the attention of the defendant to these matters, ex- 
pended certain sums of money in making repairs. Plaintiff 
brought this action for the recovery of the three thousand 



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Sept. 1919.] Curtts v, Arnold. 101 

dollars, and interest, paid by her assignor to defendant, under 
the provision of the lease that has been referred to. Defend- 
ant filed an answer and cross-complaint for the amount of the 
rent for the month of September, 1914. Plaintiff, in answer 
to the cross-complaint, asserted the right to offset the claim 
for the rent for that month by the sum of money she ex- 
pended in making the repairs to the premises hereinbefore 
and hereinafter referred to. At the trial defendant dismissed 
her cross-complaint, leaving as the only issue to be tried by 
the court the question of the right of plaintiff to recover the 
three thousand dollars. The court eventually held that by 
the failure of plaintiff to pay the rent in cash for September, 
1914, she had so violated the covenants of the lease that, 
under its terms, she was not entitled to recover that amount, 
and gave judgment for defendant. The decision of the main 
issue of the case, to wit, the right of the plaintiff to recover 
the sum of three thousand dollars, turns upon the determina- 
tion of the status of that fund now in the hands of defend- 
ant Appellant steadfastly maintains that the amount was 
deposited with the lessor as security for the performance of 
the covenants of the lease; that, therefore, it was not for- 
feited to the lessor by reason of the failure on the part of the 
lessee to pay the rent accrued for September, 1914. She 
relies upon Green v. Frahm, 176 Cal. 259, [168 Pac. 114], and 
Rez v. Summers, 34 Cal. App. 527, [168 Pac. 156]. Defend- 
ant claims that it was paid to defendant by the original lessee 
as an additional consideration, or bonus, as an inducement to 
defendant to make the lease. If either of these claims finds 
support in the pleadings or evidence, the decision of the case 
presents but little difficulty. [1] If the money was de- 
posited as security for the payment by the lessee of the rent, 
it is clear that upon the termination of the lease the plain- 
tiff would be entitled to a return of the sum deposited, less 
the amount of rent due and unpaid at the time of the termi- 
nation. (Green v. Frahm, supra; Rez v. Summers, supra; 
Caesar v. Rubinson, 174 N. Y. 492, [67 N. B. 58] ; Michaels 
v. Fishd, 169 N. T. 381, [62 N. E. 425] ; Galbraith v. Wood, 
124 Minn. 210, 213, [Ann. Cas. 1915B, 609, 50 L. R. A. 
(N. S.) 1034, 144 N. W. 945].) [2] If the three thousand 
dollars was paid by the lessee as a bonus, as an independent 
consideration, to induce defendant to make the lease, it is 
equally clear that a cancellation of the lease by the landlord 



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102 Curtis v. Arnold. [43 Cal. App. 

for any cause which justifies the act would not entitle plain- 
tiff to receive back any part of the sum so paid, in the absence 
of some stipulation in the lease permitting her to do so. (OaU 
braith v. Wood, 124 Minn. 210, 214, [Ann. Cas. 1915B, 609, 
50 L. R. A. (N. S.) 1034, 144 N. W. 945] ; Dutton v. Christie, 
63 Wash. 372, [115 Pac. 856].) 

In the first of the cases relied upon by appellant, Qreen 
v. Frahm, the language of the lease is that "Cohn hereby 
deposits with Frahm the sum of $3,000, receipt of which is 
hereby acknowledged, said sum of $3,000 to be maintained by 
Frahm as a guaranty that Cohn will pay the rent as herein 
provided, and in the manner herein specified, and will keep 
and perform each and every covenant herein contained to be 
performed by Cohn, and in the event of the failure of Cohn 
to pay the rent, or to keep or perform any of the covenants 
herein contained, to be performed by Cohn, then and in that 
event, the said sum of $3,000 shall become forfeited unto 
Frahm. On the other hand, if Cohn paid the rent herein 
reserved, then and in that event, the sum of $3,000 shall be 
returned to Cohn, at the end of the term hereinbefore created, 
or at any sooner termination thereof. Frahm agrees to pay 
Cohn four per cent interest on the sum of $3,000, to be paid 
annually." Another clause provided that in case of any 
termination of the lease through any fraud or neglect of Cohn, 
then the three thousand dollars reserved should be repaid to 
him with interest. Cohn defaulted in payment of rent. 
Frahm instituted proceedings in unlawful detainer against 
him, and, upon obtaining judgment, was put into possession 
of the property. Cohn, by his assignee, began an action 
against Frahm to recover the three thousand dollars, which, 
in pursuance of the terms of the lease, had been deposited by 
Cohn with Frahm at the time of the execution thereof. The 
judgment was for plaintiff, and Frahm appealed. The 
supreme court held that the above-quoted provision of the 
lease naturally divided itself into two parts : One, a provision 
that the three thousand dollars deposited with Frahm was to 
be a guaranty for performance by Cohn of the covenants of 
the lease, including the payments of rent ; the other that, in 
the event of the failure of Cohn to perform any of said 
covenants, the said money should become forfeited to Frahm ; 
that the provision for a forfeiture upon the failure of Cohn 
to pay the rent was either a penalty, or a provision that 



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Sept. 1919.] Curtis v. Abnold. 103 

the three thousand dollars war to he liquidated damages for 
the breach of the covenants, and in either aspect the provi- 
sion was void. (Oreen v. Frdhm, supra.) The other part of 
the clause, providing for the deposit of the three thousand 
dollars as a security for the payment of rent, was held by 
the supreme court to be for a legal purpose, and in all respects 
valid and enforceable, and that Frahm had a legal right, in 
ease of the failure of Cohn to pay rent, to retain the three 
thousand dollars and apply it on the rent until the same was 
exhausted; that he did not choose to do this, however, but 
immediately began proceedings for the restitution of the 
premises and the recovery of the rent due, and had succeeded 
in obtaining judgment for both, also for cancellation of the 
lease; that, under these circumstances, he must be admitted 
to have repudiated the security, and to have waived the right 
to retain the three thousand dollars as security for the pay- 
ment of rent subsequently accruing; that the sum as deposited 
was to be considered as money held by Prahm as bailee, for 
the use of Cohn, and due demand having been made for its 
return, the plaintiff was entitled to recover. In Rez v. Sum- 
mers, also relied upon by appellant, the court found "that 
the sum of eight hundred dollars was received by the lessor 
as being in full payment for rent for the last two months of 
the term. But the payment was not absolute and uncondi- 
tional, since it was also agreed that in certain contingencies 
this money would be returned to the lessee, and in that part 
of the contract the eight hundred dollars was referred to 
as 'security. ' " 

In neither of the foregoing cases were the facts similar to 
those of the case at bar. In the instant case, for and in con- 
sideration of the sum of three thousand dollars, the receipt of 
which was acknowledged by the lessor, she agreed to make and 
enter into the lease to plaintiff's assignor. 

This, to our mind, brings the case squarely within the ruling 
of Ramish v. Workman, 33 Cal. App. 19, [164 Pac. 26], and 
Button v. Christie, supra. In the first of these cases the pro- 
vision of the lease was that the lessees would pay to the 
lessor, as a further consideration for the lease, in addition 
to the rent therein reserved, the sum of seven thousand two 
hundred dollars, receipt of which was acknowledged by the 
lessor. There was a further proviso that if the lessees should 
pay the rent reserved, when same became due under the lease, 



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104 Cubtis v. Arnold. [43 Cal. App. 

and should well and truly perform and observe all the cov- 
enants and agreements contained in the lease on their part 
to be performed during the first nine years, seven months, 
and twelve days, and the lease should not be terminated by 
the re-entry of the lessor as in the lease provided, within that 
period, the lessor should credit said sum of seven thousand 
two hundred dollars so paid by the lessees upon the last four 
months and eighteen days 1 rent due under the lease. After 
taking possession under the lease, the lessees made default 
and were evicted. The lessor also commenced an action to 
recover rent for the period during which the premises were 
held and occupied by the lessees. The defendants, by answer 
and cross-complaint, set up the deposit of seven thousand two 
hundred dollars, made as hereinbefore indicated, and prayed 
for its return. Judgment went for the plaintiff, and the 
defendants appealed, insisting, as does the appellant here, 
that, notwithstanding the plain language in which the pro- 
vision of the lease is couched, "the meaning of which, to our 
minds," said the appellate court, "admits of no controversy,' ' 
the payment of seven thousand two hundred dollars should 
be construed as security for the payment of the rent reserved 
during the time ending with their eviction, and any dam- 
ages sustained by plaintiff; that when the landlord elected to 
evict defendants from the premises for nonpayment of rent, 
he waived all claims to the fund except in so far as it was 
necessary to apply it in payment of rent then due and accrued. 
In its decision the court said: 

"As stated in Dutton v. Christie, 63 Wash. 373, [115 Pac. 
857], where a similar question was involved: 'We cannot 
agree with this contention without in effect writing a new 
contract for the parties.' Clearly, the seven thousand two 
hundred dollars was paid for a ten-year lease of the premises, 
upon the conditions and terms specified therein. Defendants 
parted with the money, not as a penalty or as security, but as 
a payment the consideration for which was the execution of 
the lease on the part of plaintiff. The title thereto passed 
absolutely to the lessor, unaffected by the fact that he agreed, 
upon the performance of certain conditions by defendants, 
to give them credit therefor. The conditions were never per- 
formed by defendants, and hence they could have no claim 
to the fund. The authorities which appellants cite in support 
of their contention all appear to have been cases where the 



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Sept 1919.] Curtis v. Arnold. 105 

deposit was made with the lessor upon the execution of the 
lease 98 security for the payment of the rent, and in such 
cases, upon the lessor evicting the tenants, it is uniformly 
held that he cannot assert claim to the amount so deposited, 
over and above rent due, with damages sustained. The cases 
cited by appellants involve deposits made as 'a guaranty, ' 
'as indemnity,' as 'a penalty,' 'for security,' etc., and hence 
are readily distinguished from the case at bar. This view 
finds full support in the case of Button v. Christie, 63 Wash. 
373, [115 Pac. 857], 

"The provisions of the lease in question hereinbefore quoted 
should be interpreted in accordance with the plain import 
of the language used, and thus construed it is clear that the 
parties intended the seven thousand two hundred dollars to 
be in the nature of a bonus or additional consideration paid 
the lessor as an inducement to make the lease upon the terms 
and conditions therein contained; and, as stated, the fact 
that upon the performance of all the covenants and agree- 
ments contained in the lease to be performed by the lessees 
during the first nine years, seven months, and twelve days 
of the term thereof, he promised in effect to release them 
from the payment of rent at the rate of one thousand five 
hundred dollars per month for the last four months and 
eighteen days of the term so demised, furnishes no reason for 
appellants' contention." 
A rehearing of this case was denied by the supreme court 
The facts in Dutton v. Christie, supra, are very similar to 
those under consideration here. The respondent in that case 
let to the appellants certain premises in the city of Seattle, 
for the period of five years, under a written lease by which 
it is provided that the rental of the premises should be $750 
every month in advance. It was stated in the first paragraph 
of the lease that it was made "in consideration of the cov- 
enants of the second parties (appellants) hereinafter set forth, 
and of the sum of fifteen hundred dollars ($1,500) now paid 
to the first party by the second parties, the receipt of which 
is hereby acknowledged." In a subsequent paragraph of the 
lease it was stated that the "above payment of fifteen hun- 
dred dollars ($1,500) now made shall, in the event of the full 
and faithful performance of this contract by the second 
parties, be credited in payment of rent for the last two months 
of said term; but otherwise soid payment this day made shall 



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106 Curtis v. Arnold. [43 Cal. A pp. 

belong to first party as a part of the consideration to them 
for the execution of this lease." The lessees defaulting, the 
lessor brought an action to recover the unpaid rent. Judg- 
ment was rendered against the lessees, who appealed, claim- 
ing that the judgment should have been in their favor for 
the difference between the advance payment of one thou- 
sand five hundred dollars and the amount of the unpaid 
rent, earnestly insisting that the one thousand five hun- 
dred dollars so paid in advance was merely intended as 
a deposit in the nature of a penalty for any failure on 
their part to carry out the terms of the lease. "We can- 
not agree with this contention," said the supreme court 
of Washington, "without in effect writing a new con- 
tract for the parties. In the beginning of the lease the 
parties have declared that the lease is given in considera- 
tion of the covenants of the second parties and of the pay- 
ment of one thousand five hundred dollars. The lease was 
certainly a legally sufficient consideration for the payment. 
If there had been no further mention of this money, there 
could be no question of the respondent's ownership of it. 
Does the added stipulation that this payment shall, in the 
event of full performance of the contract by the second 
parties, 'be credited in payment of the rent for the hist two 
months of said term, but otherwise said payment this day 
made shall belong to the first parties as a part of the considera- 
tion to them for the execution of this lease' change the 
nature of this payment from consideration to penalty! We 
think not. It is declared to be a part of the consideration 
in the beginning, and this clause reiterates the same thing. 
In both instances the ownership of the respondent therein is 
affirmed. This is not changed ^y hi. 1 agreement to apply this 
sum in payment of the rent for the last two months of the 
terms in the event of the appellants fully performing their 
contract. It was only by Ahot performance that they could 
assert any claim upon this noney. They must earn it." 

"Provision is sometimes made in a lease for the payment 
in advance of the rents of the last or later periods of the 
lease, and such a provision has been held not to be a security 
merely for the lessee's performance of his agreements in the 
lease, but purely a payment of rent in advance, and therefore 
may be retained by the lessor though he terminates the lease 



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Sept 1919.] Cubtb v. Arnold. 107 



for the default of the lessee as provided for in the lease." 
(16 R. 0. L. 931.) 

A ease bearing directly on this phase of the question which 
we are now considering is Galbraiih v. Wood, supra, where 
the supreme court of Minnesota was called upon to determine 
the status of a payment made upon the execution of a lease 
under circumstances not far dissimilar from the facts in the 
case at bar. At the time of the execution of the lease there con* 
sidered the lessee agreed to pay the lessor the sum of twenty 
thousand dollars "as an advance payment on the rent," which 
advance he agreed to keep good during the first five years 
of the lease, with the privilege of reducing the rent at the 
rate of $6,666.66 per year for the third, fourth, and fifth 
years of the term. On motion of defendants the lower court 
dismissed the action brought by the assignee in bankruptcy of 
the lessee, after default of the latter, to recover the money so 
deposited, and in which it was contended that the fund was but 
a guaranty for the payment of rent to be made by the lessees 
during the terms of the lease. On appeal the higher court 
held that the claim of plaintiff, that the money was de- 
posited as security, was not sustained by the pleadings or 
evidence, and also found a lack of anything in the pleadings 
or evidence to support its claim that the money was paid as 
a bonus or independent consideration to induce the making 
of the lease. It was decided that it was no more than an 
advance payment of rent, and affirmed the ruling of the 
lower court. 

It requires but a short mathematical calculation to demon- 
strate that it would be improper to hold that the three thou- 
sand dollar fund under consideration here may be regarded 
as an advance payment for the rent of the leased premises 
for the last five months of the term, which was for the full 
period of ten years, at the agreed monthly rental of $875 
per month for the first five years (no rent being charged for 
the first month), and $925 for four years and seven months. 
The credited rent is the exact amount specified in the lease, 
to wit, one hundred and two thousand five hundred dollars. 
At the rate of $925 per month, the rent for the last five 
months of the term for which no rent is otherwise provided 
would aggregate $4,625. The sum of three thousand dollars 
at four per cent per annum, compounded annually for ten 



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108 Cubtis v. Arnold. [43 Cal. App. 

years, the term of the lease, would approximate just about 
that amount. Furthermore, the stipulation in the lease that 
the lessor will repay to the lessee the sum of three thousand 
dollars, with interest, on the date of the completion of the 
building, is effective only in the event of the termination of 
the lease prior to the expiration of the ten-year term thereby 
demised, for any reason or cause, except a breach of covenant 
by the lessee (the italics are ours), and the stipulation further 
provides that if such termination shall occur during the last 
five months of said term, the amount so repayable shall be 
reduced at the rate of $925 per month, for each of said months 
as shall have expired prior to said termination. 

[3] From the facts of the present case, and our review 
of the foregoing authorities, we reach the conclusion that 
plaintiff in this action is not entitled to recover any portion 
of the fund of three thousand dollars paid at the time of the 
execution of the lease. If the money be regarded as given 
in consideration of the covenants of the lease when paid, the 
title thereto passed to the lessor (Rarnish v. Workman, 
supra; Dutton v. Christie, supra); if it is to be regarded 
merely as an advance payment of rent, the lessor is entitled 
to retain it. (Oalbraith v. Wood, supra. See, also, citations 
tinder this case, found in 50 L. R. A. (N. S.) 1034; Ann. Cas. 
1915B, 609, 613.) 

An examination of the authorities cited by appellant bear- 
ing on this point of the case, and its allied questions, dis- 
closes that they were dealing with instances in which the 
money sought to be recovered was deposited as security for 
the payment of rent, and the performance of the conditions 
and covenants of the lease, and, in our view, they are not in 
point as applied to the lease we are called upon to construe in 
this case. 

[4] Appellant also asks for a reversal of the judgment in 
the case at bar upon the contention that defendant, upon the 
terms of the lease, had agreed to make repairs which we have 
before referred to, and had failed and refused to do so ; and 
that as they were made by plaintiff, she had a right to recoup 
her losses of money in making such repairs from the rent of 
the premises as it became due. The stipulation of the lease, 
however, is that the lessor, at her own cost and expense, shall 
repair, or cause to be repaired, any defects in said premises 
due to construction which shall appear during the first twelve 



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Sept 1919.] Curtis v. Abnold. 109 

months after the completion and acceptance of said building. 
The building was completed and accepted on or about the 
thirty-first day of December, 1910, and no notice of any de- 
fects was given until January, 1913. By the terms of the 
lease, therefore, the lessor was not obligated to make such 
repairs. As to other work claimed by plaintiff to have been 
done by her in repairing the building, it appears not to have 
been performed until nearly one year and five months after 
the completion of the building. Plaintiff contends that she 
was called upon to make certain necessary repairs during her 
occupancy of the building, which it was the duty of the de- 
fendant to make. 

"If it be assumed that under ordinary circumstances the 
defendant should be credited with such an expenditure as a 
payment on account of the rent, provided such expenditure 
was not greater than one month's rent of the premises, in 
view of the provisions of section 1942 of the Civil Code, the 
complete answer to any such claim in this case is to be found 
in the provisions of the lease, whereby the lessee 'hereby 
waives all rights to make repairs of said premises at the 
expense of the lessor as provided in section 1942 of the Civil 
Code of the state of California.' " (Arnold v. Krigbaum, 
169 Cal. 147, [Ann. Cas. 1916D, 370, 146 Pac. 424].) 

It follows, therefore, that the action of the trial court in 
striking out much of plaintiff's evidence, and in refusing to 
admit other evidence relative to these repairs, was proper. 
The court was correct in its action in denying the motion for 
a new trial. 

The judgment is affirmed 

Richards, J., and Kerrigan, J., concurred 

A petition for a rehearing of this cause was denied by the 
district court of appeal on October 2, 1919, and a petition 
to have the cause heard in the supreme court, after judgment 
in the district court of appeal, was denied by the supreme 
court on October 28, 1919. 

All the Justices concurred 



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110 Rogers Brothers Co. v. Beck. [43 Cal. App. 



[Civ. No. 2997. First Appellate District, Division One. — September 2, 

1919.] 

ROGERS BROTHERS COMPANY et al., Respondents, v. 
JOHN H. BECK et al., Appellants. 

[1] Street Law — Action to Foreclose Lien — Admission of Assess- 
ment, Diagram, and Warrant — Sufficiency of Foundation. — In 
an action to establish and foreclose the lien of a street assess- 
ment, the production of a witness who testified that he was one 
of the employees of the city clerk of the city in which said street 
improvement had been done, and who in that capacity produced 
and fully identified the records containing the assessment, warrant, 
and diagram of the street superintendent of the city, and further 
testified that these were to his knowledge part of the official 
records of said street superintendent's office, and that they were 
kept in the city clerk's office, was sufficient to furnish the requi- 
site foundation for the introduction in evidence of such records. 

[2] Id. — Allegation of Corporate Existence — Insufficient De- 
nial — Proof Unnecessary. — In such action, the plaintiffs hav- 
ing alleged that they were corporations duly organized and exist- 
ing under and by virtue of the laws of the state of California, 
the denial of such allegation based on the want of information 
and belief upon the subject was insufficient and amounted to an 
admission of the alleged fact; hence no evidence was required to 
prove such averment. 

[8] Id. — Refusal of Leave to Amend Answer — Discretion not 
Abused. — In such action, it was not an abuse of discretion to re- 
fuse the defendants leave to file an amended answer during the 
progress of the trial of the case, and more than ten months after 
the filing of their answer, where no sufficient reason was given 
for the delay. 

[4] Id. — Appeal — Insufficient Record. — Where leave to file an 
amended answer during the progress of the trial of a case is re- 
fused, but the record on appeal does not contain a copy of the 
proposed amended answer, the appellate court has no means of 
knowing its contents, and hence cannot determine whether or not 
the trial court should in any event have permitted it to be filed, 
nor whether its refusal to do so was error. 

[6] 3d. — Unfairness and Fraud in Doing Work — Pleading — Evi- 
dence. — Where, in an action to establish and foreclose the lien of 
a street assessment, the only unfairness or fraud alleged in the 
answer of the defendants related solely to the progress of the 
work and had reference to matters which were properly the sub- 
ject of correction by appeal to the city council, whose decision, 
in the absence of fraud on the part of said council or its mem- 



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Sept. 1919.] Rogers Brothers Co. v. Beck. Ill 

ben in the hearing of said appeal or the rendition of such de- 
cision, is final and conclusive upon the parties entitled to take 
said appeal, the court did not commit error in sustaining the 
plaintiffs' objection to questions or proofs offered by the defend- 
ants in an endeavor to show fraud in the doing of the public 
work upon which the assessment in question was predicated. 

APPEAL from a judgment of the Superior Court of 
Imperial County. W. H. Thomas, Judge Presiding. 
Affirmed. 

The facts are stated in the opinion of the court 

James E. O'Keefe and C. H. Van Winkle for Appellants. 

Crouch & Crouch for Respondents. 

RICHARDS, J. — This appeal is from a judgment based 
upon a verdict in the plaintiffs' favor in an action to es- 
tablish and foreclose the lien of a street assessment. 

The appellants make several points upon appeal. [1] The 
first of these consists in their contention that the trial court 
erred in overruling their objection to the introduction in evi- 
dence of the assessment, diagram, and warrant of the street 
superintendent upon the ground that no proper foundation 
had been laid for their introduction. The plaintiffs have 
produced a witness who testified that he was one of the em- 
ployees of the city clerk of the city of Imperial, in which said 
street improvement work had been done, and who in that 
capacity produced and fully identified the records contain- 
ing the assessment, warrant, and diagram of the street super- 
intendent of the city, and who further testified that these were 
to his knowledge part of the official records of said street 
superintendent's office, and that the said records were kept 
in the city clerk's office. This testimony was entirely suffi- 
cient to furnish the requisite foundation for the introduction 
in evidence of these records. It is not necessary for the legal 
custodian of a public record in every case to be present in 
court to identify it. This may be done by any witness who 
can speak from his own knowledge in identifying the docu- 
ments as the official records of the office from which they are 
produced, as such, and hence the ruline of the court was 
proper in admitting the assessment, diagram, and warrant in 
question in evidence. 



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112 Rogers Brothers Co. v. Beck. [43 Cal. App. 

[2] The next contention of appellants requiring attention 
is that the offered proof of the fact that the plaintiffs, Rogers 
Bros. Company and 0. & C. Construction Company, were 
corporations was insufficient, but this objection is without 
merit, for the reason that the corporate existence and char- 
acter of these two plaintiffs were alleged to be that of corpo- 
rations organized and existing under and by virtue of the 
laws of the state of California. The defendants' denial of 
these averments was based on the want of information and 
belief upon the subject. This was an insufficient denial, and 
amounted to an admission of the alleged fact ; hence no evi- 
dence was required to prove these averments of the plaintiffs' 
complaint. (Bartlett Estate Co. v. Fraser, 11 Cal. App. 373, 
[105 Pac. 130] ; Mulcahy v. Buckley, 100 Cal. 487, [35 Pac. 
144] ; Mullally v. Towiisend, 119 Cal. 47, [50 Pac. 1066].) 

[3] The next contention of the appellants is that the trial 
court committed an abuse of discretion in refusing the de- 
fendants leave to file an amended answer during the progress 
of the trial of the case. This action was commenced on Jan- 
uary 3, 1915 ; the answer of the defendants was filed on March 
5, 1915; the cause came on for trial on January 17, 1916. 
The amended answer was not proffered for filing until the 
trial of the cause had proceeded up to the point where the 
plaintiffs had fully put in their case. No sufficient reason 
was given for the defendants 1 delay in seeking to amend their 
answer, and this of itself would have been a sufficient ground 
for the court's refusal to permit the same to be filed. [4] 
But aside from this, the record herein does not embrace a 
copy of the proposed amended answer, and this court has no 
means of knowing its contents, and hence cannot determine 
whether or not the trial court should in any event have per- 
mitted it to be filed, nor whether its refusal to do so was 
error. 

[5] The next contention of the appellants is that the trial 
court was in error in sustaining the objection of the plain- 
tiffs to questions asked or proofs offered by the defendants in 
an endeavor to show fraud in the doing of the public work 
upon which the assessment in question is predicated. In so 
far as these questions asked or proof offered were based upon 
the averments of the original answer of the defendants herein 
we are satisfied that no foundation is therein laid for the 
introduction of such evidence, since the only unfairness or 



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Sept 1919.] Johnson v. Nelson. 113 

fraud therein alleged relates solely to the progress of the work, 
and has reference to matters which are properly the subject of 
correction by appeal to the city council, whose decision, in the 
absence of fraud on the part of said council or its members 
in the hearing of said appeal or the rendition of such decision, 
is final and conclusive upon the parties entitled to take said 
appeal {Oirvin v. Simon, 116 Cal. 604, [48 Pac. 720] ; 
McLaughlin v. Knobloch, 161 CaL 676, [120 Pac. 27] ; Lam- 
bert v. Boies, 137 Cal. 676, [70 Pac. 777].) 

In so far as the appellants' contention as to the existence of 
fraud on the part of the city council or its members in the 
hearing or determination of said appeal is concerned, it may 
be stated that possibly such an issue was presented by the 
amended answer which the defendants vainly sought to file ; 
but since the said amended answer has not been embraced in 
the record before us, we are unable to say whether such an 
issue was so tendered, and hence cannot determine whether the 
court was in error in its refusal to admit such offered proofs. 

No question being presented, the judgment is affirmed. 

Waste, P. J., and Kerrigan, J., concurred. 



[dr. No. 8004. First Appellate District, Diyision One.— September fi v 

1919.] 

PETBB JOHNSON, Respondent, y. HEDVIO NELSON 
et aL, Appellants. 

[1] Executions— Prsmatubb Motion to Set Aside Return of Sale 
— Bight to Renew Motion. — In an action to foreclose a mort- 
gage, an order denying a motion, made prior to the return of sale 
by the sheriff, to vacate snch return and directing a new order of 
tale to be issued, does not render the matter res adjudicata as to 
a second motion made for the same purpose after such return of 
sale has been made. 

12] Id. — Res Adjudicata— Doctrine not Applicable to Motions. — 
The doctrine of re* adjudicata does not apply to motions, the 
matter of their renewal being in the discretion of the trial court 

2. Rule of res adjudicata as applicable to motions in pending 
action, note, Ann. Oas. 1914D, 074. 
48 Oal. App.— 8 



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114 Johnson v. Nelson. [43 Cal. App. 

[3] ID. — UNSATISFACTORY RETURN BY SHERIFF — 8ETTINO ASIDS EX 

Parte. — A trial court, having had brought to its attention that 
the sheriff, as its officer, has made an equivocal and unsatis- 
factory return upon an order of sale issued to him in an action 
to foreclose a mortgage, and that the same was unsatisfied, has 
full power ex parte to sot aside such return and direct a new 
order of sale to be issued and executed. 

APPEAL from an order of the Superior Court of Los 
Angeles County setting aside a sheriff's return of sale and 
directing a new order of sale to be issued. Pat R. Parker, 
Judge Presiding. Affirmed. 

The facts are stated in the opinion of the court. 

John F. Poole and Wra, Lewis for Appellants. 

Charles J. Kelly and D. A. Stuart for Respondent. 

RICHARDS, J. — This is an appeal from an order made 
after final judgment setting aside a sheriff's return of sale 
for the foreclosure of a mortgage and directing a new order 
of sale to be issued. 

The facts are undisputed and are as follows: The mort- 
gage was duly foreclosed and a decree of sale of the mort- 
gaged premises made and entered, and an order of sale duly 
issued thereon and placed in the hands of the sheriff for exe- 
cution. On the day on which the sale was advertised to take 
place the plaintiff and also one of his attorneys were present 
at the time and place of sale; the plaintiff personally made a 
bid of an amount somewhat less than the total sum then due. 
His attorney also on his behalf made a bid of the total sum 
due. There were no other bidders. A misunderstanding 
arose between the sheriff and the plaintiff as to the sum 
actually bid, the sheriff insisting that he had struck off the 
property for the amount of the plaintiff's personal bid. 
Thereupon, and before the sheriff had made any return 
of sale, the plaintiff moved the court for an order vacating 
and setting aside the sale. When this motion came on for 
hearing, the sheriff not yet having made his return of sale, 
the court denied the motion. Thereafter the sheriff made his 
return of sale which, while reciting the fact that the property 
was sold, returned the order of sale as wholly unsatisfied 



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Sept 1919.] Johnson v. Nelson. 115 

Thereupon the plaintiff moved the court to set aside this 
return of sale and direct a new order of sale to be issued. 
Upon the hearing of this motion the court granted the same, 
and from its order to that effect this appeal has been taken. 

[1] The first point urged by the appellants is that the 
trial court had no jurisdiction to make the order appealed 
from, for the reason that the first order of said court deny- 
ing the plaintiff's motion to vacate the sheriff's return of 
sale rendered the matter res adjudicaia, and hence the court 
had no power to grant the plaintiff's second motion to set 
aside the return of sale. The point is utterly without merit 
for two reasons: First, that the two motions are dissimilar 
in the important respect that at the time the plaintiff 's first 
motion was made no return of sale had yet been made by the 
sheriff, and the motion was therefore premature and doubtless 
was denied for that reason; while said return of sale was 
on file when the second motion was made, presenting an 
entirely different situation to the trial court; [2] and the 
second reason why the point is without merit is that under 
the settled practice in this state the doctrine of res adjudicaia 
does not apply to motions, the matter of their renewal being 
in the discretion of the trial court. (Ford v. Doyle, 44 Cal. 
635; Bowers v. Cherokee Bob, 46 Cal. 279 ; Johnston v. Brown, 
115 Cal. 694, [47 Pac. 686] ; Gay v. Gay, 146 Cal. 237, [79 
Pac. 885].) 

The next contention of the appellants is that the court was 
in error in granting the motion in question because all of 
the proper parties to the action had not been served with 
notice of the motion. This appeal has been taken by a number 
of persons other than the original mortgagor and main defend- 
ant in the action. The record before us does not contain any 
of the pleadings or proceedings in the case prior to the mak- 
ing and entry of the decree of foreclosure, and we have, there- 
fore, no means of knowing except from the terms of said 
decree who the defendants in the action were, or what issues 
were presented by them, or in what way any of them may 
have been interested in the proceedings in the case subse- 
quent to the entry of the decree of foreclosure and issuance of 
the order of sale. The record before us, however, discloses that 
a number of these appealing defendants appeared upon the 
hearing of said motion to set aside the sheriff's return of sale, 
and at that time made no objection that they themselves had 



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116 Morgan v. Dibble. [43 Cal. App. 

not been duly served with notice of said motion, and only 
objected because some other unnamed and unidentified de- 
fendants had not been served with such notice. The only 
evidence offered in support of said objection was the original 
notice of trial of the cause, which showed that there were quite 
a number of defendants who had at that time been served 
with such notice; but as to what interest they may have had 
in the case, particularly after the final decree of foreclosure, 
we are left entirely in the dark. In a word, it is nowhere 
made to appear how these defendants have been injuriously 
affected by the fact that some defendants other than them- 
selves and whose interest is not disclosed were not served with 
notice of the motion to set aside the sheriff's return of sale. 

[3] In addition to the foregoing considerations the fact 
that trial courts have control of their process, and that the 
trial court in this particular case, upon having brought to 
its attention the fact that the sheriff, as its officer, had made 
an equivocal and unsatisfactory return upon the order of sale 
which had been issued to him, and that the same was un- 
satisfied, would have had full power ex parte to set aside such 
return and direct a new order of sale to be issued and exe- 
cuted, brings this case perilously near the point of being a 
frivolous appeal. 

No error appearing upon the face of the record before us 
the order is affirmed. 

[Waste, P. J., and Bardin, J., pro tern., concurred. 



[Civ. No. 2987. First Appellate District, Division One. — September 

2, 1919.] 

JOSEPH B. MORGAN, etc., et al., Respondents, v. HORACE 
P. DIBBLE et al., Appellants. 

[1] Vendor and Vender— Action foe Specific Performance—Con- 
tract o» Sale Inequitable — Belie] 1 . — Id this action to revise and 
specifically perform an agreement for the sale and purchase of 
real property, and for damages in the event specific performance 
could not be had, the court having found that the land agreed 
to be sold to defendant was worth less than the sum agreed to 
be paid, and the contract therefore inequitable, was correct in 



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Sept 1919.] Morgan v. Dibbia 117 

denying plaintiffs a decree in specific performance. Such a decree 
cannot be supported in the absence of a finding that the con- 
tract was just and reasonable, and the consideration adequate. 

[2] Id.— -Recovery or Damages.— While there are contracts, perfectly 
▼slid, which a court of equity will not set aside for any unfair- 
ness, but which are so unfair that specific performance will not 
be decreed, the party being left to his reme<1y at law, an action 
to recoTer damages in lieu of specific performance lies not at law, 
but in equity, for the right to such damages depends upon the 
right to specific performance, and is not available until the latter 
it established; therefore, in this action, the trial court having 
determined that plaintiffs were not entitled to a decree in specific 
performance, judgment for damages should not have been entered 
against the defendants. 

[3] Id. — Breach or Contract to Purchase Real Property — Dau- 
AOE3 — Improper Items. — The measure of damages for the breach 
of an agreement to purchase an estate in real property, as pro- 
scribed by section 3307 of the Civil Code, does not include such 
items as cost of certificate of title to the land, commission for 
obtaining the loan covered by the first mortgage which was agreed 
to be assumed by the defendants, or the agent's commission for 
making the sale. 

[4] Id.— Provision With Reference to Mortgages — Contract too 
Uncertain. — A contract for the sale and purchase of real prop- 
erty containing a provision that the purchasers "shall assume a 
first mortgage of five thousand dollars due on or before five years 
from date, it being further understood that no payment shall be 
made on the principal until at least one year shall have elapsed, 
and any payment shall be made on any regular interest pay-day. 
Interest on said $5,000 to be at the rate of 8% payable semi- 
annually," and, further, that the purchasers shall "assume a sec- 
ond mortgage" made payable to a given individual of $19,700, pay- 
able on or bofore ten years from date, interest payable at 7% per 
annum payable semi-annually, is not sufficiently definite and cer- 
tain to support an action in specific performance. 

[5] Id. — Bight or Wat for Pipeline — Provision Indefinite. — A 
provision in such contract that the vendors shall "give a right of 
way for a pipe-line from Fifth St over the eastern boundary of 
five acre Lot 8," is so indefinite as to amount to no covenant 
at all. 

[0] Id. — Option Provision Uncertain.— A provision in such contract 
that "this agreement includes an option by which" the vendors 
"may purchase lot 6 of block 145 during the next six months for 

2. Damages in lieu of specific performance, note, 20 L. R> A. 
752, 



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118 Morgan v. Dibble. [43 Cal. App. 

the ram of four thousand dollars to be deducted from the second 
mortgage," is likewise uncertain. 

[7] Id. — Esceow Instructions as Part of Agreement. — In this 
action to revise and specifically perform an agreement for the 
sale and purchase of real property, the instruction prepared by 
the title company which the parties directed it to use as its "in- 
structions for this exchange," constituted neither a separate 
agreement of sale nor a supplemental part of the first agreement. 

[8] Id. — Performance of Conditions by Vendors — Unsupported 
Finding — Evidence. — In this action the finding of the lower court 
that plaintiffs had performed, or were in position to perform, all 
the terms of the contract imposed on them, was not supported by 
the evidence, which showed that the first mortgage on the ranch 
executed by plaintiffs was not for the term provided in the agree- 
ment, that their land was subject to public easements which could 
not be removed, and that they executed a lease on the property 
extending beyond the time when the exchange was to be made. 

[9] Id.— Agreement to Make Good Title — Knowledge of Bights or 
Way — Waiver of Fulfillment. — Where the vendors were in ex- 
press terms obligated to make good title (except as to encum- 
brances specified), as a condition of sale, even actual knowledge 
by the purchasers of the true status of the rights of way would 
not, while the contract remained executory, be deemed to imply a 
waiver of substantial fulfillment of the condition for title. 

[10] Id. — Inability of Vendors to Perform — Bight of Vendees to 
Rescind. — Where, at the time of the execution of the sale and at 
the time when it should have been performed, the title to the 
vendors' land was incurably defective by reason of public servi- 
tudes, a cloud which in the nature of things they could not re- 
move by ordinary methods of business negotiation, the purchasers 
were entitled to rescind at any time. 

APPEAL from a judgment of the Superior Court of 
San Diego County. W. A. Sloane, Judge. Reversed. 

The facts are stated in the opinion of the court. 

Leroy A. Wright and Thomas D. McLean for Appellants. 

Henry A. Hunter for Respondents. 

WASTE, P. J.— This is an action to revise and specifically 
perform an agreement for the sale and purchase, or, more 
properly speaking, an exhange, of real estate, and for dam- 
ages, in the event specific performance cannot be had. Plain- 
tiffs, so they allege, agreed to sell, and the defendants agreed 



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Sept. 1919.] Morgan v. Dibble. 119 

to buy, a tract of land in Imperial County, and certain shares 
of stock of Imperial Water Company, No. 1, located on said 
land and appurtenant thereto, for the sum of thirty thou- 
sand seven hundred dollars. As part payment of the pur- 
chase price the defendants agreed to convey to plaintiffs 
real property in San Diego County, which plaintiffs agreed 
to accept at the mutually agreed price of six thousand dollars. 
As another part payment of the purchase price defendants 
agreed to assume a first mortgage of five thousand dollars, 
payable on or before August 1, 1914, with interest at the rate 
of eight per cent per annum, passable semi-annually, which 
plaintiffs agreed to execute upon the Imperial County prop- 
erty. As the balance of the purchase price the defendants 
agreed to assume a second mortgage on the same property, 
made payable to Bert Morgan, one of the plaintiffs, in the 
sum of nineteen thousand seven hundred dollars, payable on 
or before ten years from date, with interest at the rate of 
seven per cent, payable semi-annually. 

The contract was to be performed within sixty days from 
its date. 

The contract contained a stipulation that the Imperial 
Valley ranch should be free and clear of all encumbrances, 
other than the two mortgages just noted, except the last in- 
stallment of taxes for the fiscal year 1914-15. In this con- 
nection plaintiffs alleged in their complaint that, at the tiitoe 
of the execution of the contract, it was mutually agreed au/X 
understood that the Imperial County property should be con- 
veyed by the plaintiffs subject to rights of way then exist- 
ing thereon, but that, through inadvertence and mistake, the 
agreement failed to so express the true agreement of the 
parties. 

The plaintiffs alleged their readiness and ability, at all 
times, and full performance on their part, but that defend- 
ants had refused to comply with the terms of the agree- 
ment; that the consideration for the agreement was ade- 
quate, and the same was, as to the defendants, just and 
reasonable. The defendants, answering, admitted the exe- 
cution of the agreement, but denied that it constituted a 
valid contract of sale; denied that the right of way clause 
was the result of mistake or inadvertence; denied perform- 
ance on the part of the plaintiffs; and denied that the con- 
sideration for the agreement as to them was adequate, or 



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120 Moboan v. Dibble. [43 Cal. App. 

that the contract was reasonable or just. It was alleged in 
the answer that the minds of the parties never met in the 
execution of the agreement; that it had been abrogated by 
other proposals and offers, never accepted by defendants; 
that plaintiffs by their acts had worked a rescission of the 
contract, which, it was further alleged, had been obtained 
by fraud, and misrepresentation, as to the value of the 
Imperial Valley ranch, the character and nature of its sur- 
face, and of its soil, and its adaptability for irrigation and 
subdivision purposes. 

The trial court found that the contract of sale was made 
as alleged by plaintiffs, and that subsequently an agreement 
supplemental to and a part of the original contract was 
entered into by the parties. In its findings it construed 
the two agreements together and thereafter refers to them 
as the "agreements." This supplemental agreement will be 
referred to hereafter as the "escrow instructions." The 
court made no finding on the issue raised by the pleadings 
as to the mistake alleged to have been made in the original 
contract relative to the rights of way, but did find that 
the assent of the defendants to the agreements was not ob- 
tained by the misrepresentation of the plaintiffs, nor under 
the influence of any mistake. It further found that the 
plaintiffs had performed, or offered to perform, all on their 
part to be done, and that they at all times had been ready, 
willing, and able to so do, but that defendants had on their 
part refused. The sufficiency of the evidence to support 
these findings will be considered later. 

Continuing, the court found that "defendants herein have 
received an adequate consideration for said agreements, and 
that said agreements were and now are as to said defend- 
ants just and reasonable." After other declaration of facts, 
the court then finds: "That the land agreed to be sold, 
and purchased by said defendants, under said agreements, 
was, and is, worth a sum less than the sum of thirty thou- 
sand dollars, as specified in said agreements, and that said 
price is excessive, and the contract inequitable, and that on 
account, and solely by reason thereof, specific performance 
should be denied to plaintiffs." These findings are fatally 
inconsistent. 

The court also found that plaintiffs, relying on the agree- 
ments entered into between themselves and defendants, had, 



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Sept. 1919.] Moboan v. Dibblb. 121 

"in order to fulfill their part of said contract, necessarily 
incurred certain expenses, as follows": certificate of title to 
their land, $150; commission for obtaining the loan, covered by 
the first mortgage to be assumed by defendants, one hundred 
dollars; and for the agent's commission for making the sale, or 
exchange of the property, one thousand two hundred dol- 
lars, all to their damage in the sum of $1,450. As conclu- 
sion of law the court found that plaintiffs were not 
entitled to specific performance, but were entitled to judg- 
ment against defendants, and each of them, for the 
sum of $1,450, and costs of suit. Such judgment was 
thereupon entered and defendants appeal. No appearance 
was made in this court on the part of respondents, and no 
brief has been filed in their behalf, although the transcript 
on appeal was filed February 1, 1917, and appellant's open- 
ing brief was filed within thirty days thereafter, as required. 
Such palpable neglect on the part of those supposedly inter- 
ested, in the matter in litigation, leads us to assume that 
they have no faith in the righteousness of the judgment 
secured by them in the lower court. Our examination of 
the record lends confirmation to this conclusion. 

[1] The trial court having found that the land agreed 
to be sold to defendants was worth less than the sum agreed 
to be paid, and that the price of thirty thousand dollars 
was excessive, and the contract therefore inequitable, was 
correct in denying plaintiffs a decree in specific perform- 
ance. Such a decree cannot be supported in the absence of 
a finding that the contract was just and reasonable and the 
consideration adequate. (Civ. Code, sec. 3391; Gibbons v. 
Yosemite Lumber Co., 172 Cal. 714, 716, [158 Pac. 196].) 
[2] Appellants contend that under the findings the court 
should not have awarded the plaintiffs damages. There are 
contracts, perfectly valid, which a court of equity will not 
set aside for any unfairness, but which are so unfair that 
specific performance will not be decreed. (White v. Sage, 
149 Cal. 613, 615, [87 Pac. 193].) In such cases the party 
is left to his remedy at law. (Agard v. Valencia, 39 Cal. 
292, 302; Prince v. Lamb, 128 Cal. 128, 129, [60 Pac. 689].) 
The right to pecuniary compensation in lieu of specific per- 
formance "assumes, of course, a sufficient contract, perform- 
ance or an offer to perform by the plaintiff, and every other 
element requisite, on his part, to the cognizance of his case 



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122 Morgan v. Dibble. [43 Cal. App. 

in chancery." {Milkman v. Ordway, 106 MJass. 232, 254.) 
There is no authority for holding that equity can grant 
damages unless some case of equitable relief is made out 
also, to which the damages would be applicable or subsid- 
iary. (Bourget v. Monroe, 58 Mich. 563, 566, [25 N. W. 
814].) An action to recover damages in lieu of specific 
performance lies not at law, but in equity, for the right 
to such damages depends upon the right to specific perform- 
ance, and is not available until the latter is established. 
(Cooley v. Lobdell, 153 N. Y. 596, 603, [47 N. E. 783].) 
A court of equity will not grant pecuniary compensation, 
in lieu of specific performance, unless the case presented 
is one for equitable interposition. (Marks v. Gate*. 154 
Fed. 481, [12 Ann. Cas. 120, 14 L. R. A. (N. S.) 317, 321, 
83 C. C. A. 321].) "In other words, the ancillary power 
to award compensatory damages can only be exercised in a 
case where the equitable relief prayed for might have been 
given. ' ' ( Clark v. Bosario Mining dk Milling Co., 176 Fed. 180, 
189, [99 C. C. A. 534].) Judgment for damages, therefore, 
should not have been entered against the defendants. [3] 
Furthermore, the items of the damages, included in the 
court's findings, as the basis for the judgment, do not fall 
within the provisions of section 3307 of the Civil Code, which 
provides the measure of damages caused by breach of an 
agreement to purchase an estate in real property. 

[4] The original agreement of sale falls short of the re- 
quirements necessary to support an action in specific per- 
formance, which can only be granted when the contract is 
definite and certain. (Meyer v. Lincoln Realty Co., 14 Cal. 
App. 756, 757, [113 Pac. 333] ; Mintum v. Baylis, 33 Cal. 129.) 
It is not definite and certain in all its terms. The agreement 
provides that the defendants shall "assume a first mortgage 
of five thousand dollars due on or before five years from date, 
it being further understood that no payment shall be made 
on the principal until at least one year shall have elapsed, 
and any payment shall be made on any regular interest 
pay-day. Interest on said $5,000 to be at the rate of 8% 
payable semi-annually," and, further, the defendants shall 
"assume a second mortgage made payable to Bert Morgan 
of $19,700, payable on or before ten years from date interest 
payable at 7% per annum payable semi-annually." While, 
as was said in Carr v. Howell, 154 Cal. 372, 378, [97 Pac 



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Sept. 1919.] Morgan v. Dibblb. 123 

885, 888], "the fact that mortgages sometimes or even usually 
contain other terms and covenants than here presented does 
not render the contract uncertain," we are of the opinion that 
there is such a dearth of facts in the contract here under con- 
sideration, relative to the property, included in the mortgages, 
the parties to whom and by whom executed, whether already 
executed or to be executed, the terms of the notes or other evi- 
dence of indebtedness, to be given, if any, the matter of partial 
payments, and whether said mortgages did actually or were to 
date from the date of their execution, or from the date of the 
contract, as to render the contract uncertain in that partic- 
ular. 

[5] The provision in the contract that the plaintiffs shall 
"give a right of way for a pipe-line from Fifth St. over the 
eastern boundary of five acre Lot 3" is so indefinite as to 
amount to no covenant at all. [6] The further stipulation 
that "this agreement includes an option by which" plaintiffs 
1 'may purchase Lot 6 of Block 145 during the next six months 
for the sum of Four Thousand Dollars to be deducted from 
the second mortgage,' ' is likewise uncertain. 

[7] The document which the parties direct the abstract 
company to use "as your instructions for this exchange' 9 
cannot, in our judgment, be considered as a separate agree- 
ment of sale, or a supplemental part of the first agreement. 
The instructions were prepared by the title company, accord- 
ing to the evidence of plaintiff J. B. Morgan, "for the purpose 
of carrying out the contract," and in express terms "relate 
back to date of August 1st to correspond with a certain agree- 
ment of sale and purchase made and entered into on said last- 
mentioned date between the parties hereto." They were not 
signed by respondent Joseph B. Morgan until some time after 
the expiration of the sixty-day period within which the con- 
tract of sale, or exchange, could be consummated, and after 
the respondents had withdrawn their deed and certificate 
of title from the escrow. The respondents and he had utterly 
failed to reach an agreement respecting a number of matters 
connected with the transaction, which they had made sub- 
ject to treaty and further negotiation after the signing of 
the original agreement. His object in signing the instructions 
appears to have been the result of a belated attempt to put 
defendants in default for failing, as plaintiffs at first con- 



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124 Morgan v. Dibble. [43 Cal. App. 

tended, and alleged in their original complaint, to carry out 
the terms of the escrow instructions. 

The plaintiffs abandoned all reliance on the escrow in- 
structions, as a contract of sale, or exchange, very early in the 
case. In their amended complaint on which they went to 
trial they omitted all reference to it, and relied solely on 
the original agreement. During the trial they sought and 
secured its introduction in evidence in order "to show that 
the escrow instructions mention the rights of way, and that 
defendants had actual knowledge of their existence." It was 
not until the lower court intimated that it would grant the 
motion of defendants for a nonsuit that plaintiffs asked and 
were granted permission, we think improperly, to set it up 
by an amendment to their complaint. From all the evidence 
the court should have granted the motion for the nonsuit. 

[8] Appellants also contend that the finding of the 
lower court, that plaintiffs had performed, or were in 
position to perform, all the terms of the contract im- 
posed on them is not supported by the evidence, and 
that in fact plaintiffs could not perform, because of the 
following facts: That the first mortgage on the Imperial 
Valley ranch executed by plaintiffs was not for the term 
provided in the agreement; that their land was subject to 
public easements which could not be removed, and that the 
plaintiffs executed a lease on the property extending beyond 
the time when the exchange was to be made. We think this 
contention of appellant must also be upheld. 

After the respective parties had each visited and inspected 
the other '8 land, they met to discuss the details of the ex- 
change. The agreement was there read and explained, "tak- 
ing each line at a time. " All parties being satisfied therewith, 
it was signed and deposited with an abstract company, to- 
gether with certain escrow instructions, signed by all the 
parties, excepting Bert Morgan, one of the plaintiffs, who did 
not affix his signature thereto within the sixty days allowed 
for performance of the contract, and until long after a serious 
disagreement had arisen between the parties, and according 
to appellant, after there had been a mutual rescission of the 
contract. Plaintiffs also executed and deposited with the 
abstract company a first mortgage on their property for five 
thousand dollars in favor of one George Birkett, but payable 
in three instead of five years, as required in the contract 
The trial court found, and the evidence satisfies us, that this 



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Sept. 1919.] Morgan v. Dibblb. 125 

departure from the original stipulation was agreed to by 
defendants. 

In the original contract, as before stated, the stipulation 
relating to title to plaintiffs' property is that it is to "be 
free and clear of all other encumbrances" than the two 
mortgages specified and taxes for the fiscal year 1914-15. In 
the escrow agreement the stipulation is that it shall be free 
from all encumbrances other than taxes, and the mortgages 
provided for in the contract of sale except: "2. The rights of 
way for roads, ditches and canals now of record." About 
ten acres of the land were shown by the evidence to be 
covered by rights of way for a railroad, a canal system and 
county roads. Appellants contend that nowhere in the record 
does it appear that these rights of way were ever recorded. 
This appears to be so. Our examination and conclusion in 
this regard is confirmed by the statement of the lower court 
made during the trial. If the lower court, in deciding the 
case, was proceeding on the theory that the defendants bad 
actual notice of these easements, it seems to have overlooked its 
own opinion, expressed during the trial, that such was not 
the case, particularly as to the railroad and parts of the 
county roads. Plaintiff Bert Morgan testified he did not 
call the attention of the defendants to these easements before 
the agreements were entered into. The evidence indicates 
that defendants did not know of the extent and location of 
these easements until about the time of the trial. [9] 
Since the respondents were in express terms obligated to make 
good title (except as to encumbrances specified), as a con- 
dition of sale, even actual knowledge by the purchasers of the 
true status of the rights of way would not be deemed, while 
the contract remained executory, to imply a waiver of sub- 
stantial fulfillment of the condition for title. (Snowden v. 
Derrick, 14 Cal. App. 309, 314, [111 Pac 757] ; Prentice v. 
Erskine, 164 Cal. 446, 450, [129 Pac. 585].) [10] At the 
time of the execution of the contract of sale, and when it 
should have been performed, the title to plaintiff's land was 
incurably defective by reason of the public servitudes, a cloud 
which in the nature of things plaintiffs could not remove 
by ordinary methods of business negotiation. Defendants 
could have rescinded at any time. (Prentice v. Erskine, 1G4 
Cal. 446, 449, [129 Pac. 585].) 

This defect in the vendor's title made it impossible for the 
plaintiffs to perform. 



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126 American T. ft B. Co. v. Union S. Co. [43 Cal. App. 

Plaintiffs, after the agreements with defendants were en- 
tered into, also executed a lease of their land and delivered 
possession thereunder to third parties, who continued in such 
occupancy and were on the land at the time of the trial of 
the action. The time within which possession might be re- 
gained by plaintiff was a matter of some conjecture, depend- 
ing upon the action of the lessees in possession. 

Plaintiffs were, therefore, not in position to, and were never 
able to, perform their contract. The finding of the trial court 
to the contrary is not supported by the evidence. 

The judgment is reversed. 

Richards, J., and Kerrigan, J., concurred. 



[Qt. No. 3002. Krst Appellate District, Division One.— September S, 

1919.] 

AMERICAN TRUST AND BANKING COMPANY (a 
Corporation), Appellant, v. UNION SECURITY COM- 
PANY (a Corporation), Respondent. 

L. P. LOWE, Intervener, Cross-complainant and Respond- 
ent, v. AMERICAN TRUST & BANKING COMPANY 
(a Corporation), Cross-defendant and Appellant; 
UNION SECURITY COMPANY (a Corporation), 
Cross-defendant and Respondent. 

[1] Corporations — Pledge of Stock — Entry or Transaction upon 
Corporation Books — Rights op Pledgee. — A person who acquires 
stock in pledge has the right to compel the corporation to cause 
the nature of the transaction to be so entered upon its books as 
to show the names of the pledgor and the pledgee, the number or 
designation of the shares, and the date of the transfer. 

[2] Id. — Indorsement and Delivery op Certipicate — Validity op 
Transfer. — Under section 324 of the Civil Code, as interpreted 
by the supreme court, a transfer of stock by indorsement and 
delivery of the certificate is valid against all but innocent pur- 
chasers and transferees in good faith for value, and without 
notice. Actual notice to such an intending purchaser by one hav- 
ing a prior claim upon the stock, even though his claim be not 
noted in the books of the corporation, is sufficient. 

TS] Id.— Purchase op Stock at Execution 8ale — Want op Notice 
op Prior Assignment as Pledge — Right to have Shares Kb- 
issued. — A purchaser of stock at an execution sale under his own 
judgment, without actual or constructive notice of the previous 



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Sept 1919.] American T. ft B. Co. v. Union S. Co. 127 

assignment of such stock by tbe judgment debtor, in whose name 
it stands on tbe books of tbe corporation, to a third person as 
security for an antecedent indebtedness, takes the stock dis- 
charged of the lien of such pledgee, and is entitled to have the cer- 
tificate of such shares reissued to him as such purchaser. He is 
a bona fide purchaser in good faith, for value, and without notice. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. John M. York, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

Gray, Barker & Bowen, Donald Barker and Arthur R. 
Smiley for Appellant. 

Swanwick & Donnelly for Respondent Union Security Com- 
pany. 

Goodwin & Morgrage for Respondent L. P. Lowe. 

WASTE, P. J.— Plaintiff brought this action against the 
Union Security Company, seeking to compel defendant to 
enter a transfer of certain shares of its own stock upon its 
books, showing ownership therein in plaintiff, and to issue 
to plaintiff a certificate therefor. From the chronological 
statement of the facts, it appears that one Brown, the owner of 
seventy shares of the capital stock of defendant, Union Secur- 
ity Company, indorsed a certificate of this stock, and delivered 
it to the plaintiff as a pledge and security for an obligation 
held by plaintiff against the corporation, of which Brown 
was president. Plaintiff took no steps to have the records 
of the Union Security Company show the transfer or its in- 
terest in the said stock as pledgee until long after the rights 
of intervener and cross-complainant Lowe had attached to said 
stock as hereinafter stated. 

After the delivery of the stock certificate and pledge, one 
Randall commenced an action in the superior court of Los 
Angeles County against Brown, and caused an attachment to 
be regularly issued and levied upon the said seventy shares 
of stock, then standing in the name of Brown on the books 
of the Union Security Company. Judgment was entered in 
this action in favor of Randall against Brown, and execution 
upon the said judgment was issued and levied upon the said 
seventy shares of stock still standing in Brown's name on the 



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128 American T. & B. Co. v. Union S. Co. [43 Cal. App. 

books of the company. The sheriff of Los Angeles County duly 
sold said stock to Randall in satisfaction of his judgment, and 
delivered a certificate of sale thereof in regular form. Ran- 
dall had no notice or knowledge of plaintiff's equities in the 
stock until long after his purchase at the execution sale in 
satisfaction of the judgment against Brown and receipt of 
the certificate of sale from the sheriff. He promptly pre- 
sented this certificate to the Union Security Company, and 
demanded transfer of the said seventy shares in his name on 
the books of the company. As the company had no knowledge 
of any adverse interest in, or claim to, the stock it issued to 
Randall a certificate for seventy shares of its capital stock, in 
lieu of said certificate, standing on its books in the name of 
Brown. 

Randall thereafter indorsed and delivered said certificate 
of stock to Lowe, the intervener, who also took the same 
without notice. 

Some time thereafter the certificate of stock which Brown 
had delivered as a pledge to plaintiff was sold and assigned 
to plaintiff in satisfaction of the debt for which it was held 
as security. Plaintiff presented the certificate with the as- 
signment thereof to the Union Security Company and de- 
manded the transfer of such shares be made to defendant 
upon the books of said company. The Union Security Com- 
pany refused to comply with the demand, and plaintiff com- 
menced this action to compel it to do so. L. P. Lowe inter- 
vened in the action, and, by cross-complaint against plaintiff 
and defendant, alleged, in substance, the foregoing facts, 
which at the trial were stipulated as the facts of the case. 
Judgment was entered in favor of Lowe, adjudging him to be 
the owner of the stock. Plaintiff moved for a new trial, 
which was denied, and now appeals from the judgment. 

Succinctly stated, the question for the court on this appeal 
is, whether or not a bona fide purchaser at an execution sale 
of stock standing in the name of a judgment debtor on the 
books of the corporation is protected in the purchase against 
a prior pledgee holding a certificate evidencing said stock as 
security for an antecedent indebtedness of the judgment 
creditor. The lower court answered this question, we believe, 
correctly, in the affirmative. 

[1] When plaintiff acquired the stock in question in 
pledge from Brown, it had a right to compel the Union 



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Sept 1919.] American T. & B. Co. v. Union S. Co. 129 

Security Company to cause the nature of the transaction to 
be so entered upon its books as to show the names of the 
pledgor and the pledgee, and the number or designation of 
the shares, and the date of the transfer. (Spreckels v. Ne- 
vada Bank, 113 C*l. 272, 277, [54 Am. St. Rep. 348, 33 
L. R. A. 459, 45 Pac. 329].) As was said in that case: 
"All this may be done to the full protection of the pledgee's 
rights without the surrender of the certificates, their can- 
cellation, and the issuance to him of new ones, and, when done, 
the pledgee would be fully protected against a subsequent 
purchaser, who would be charged with the constructive notice 
which the entries upon the books of the corporation import ; 
and, upon the other hand, there would be preserved to the 
pledgor all the rights incident to his ownership under the 
pledge." 

[2] Section 324 of the Civil Code provides that shares of 
stock m^y be transferred by indorsement and delivery of the 
certificate, but that such transfer is not valid except between 
the parties thereto until same is so entered upon the books of 
the corporation, as to show the names of the parties by and 
to whom transferred, the number or designation of the shares, 
and the date of the transfer; it has been determined by the 
decisions of the supreme court of this state, interpreting these 
provisions, that even without entry upon the books of the 
corporation, such a transfer is valid as against all but inno- 
cent purchasers and transferees in good faith for value, and 
without notice. Actual notice to such an intending purchaser 
by one having a prior claim upon the stock, even though his 
claim be not noted in the books of the corporation, is suffi- 
cient. (Spreckels v. Nevada Bank, supra, and cases cited.) 
[3] In the case at bar the subsequent purchaser at the exe- 
cution sale had no actual notice, nor constructive notice, which 
the entries on the books of the corporation, referred to in the 
decision just quoted, would have imported. We are of the 
opinion, therefore, that plaintiff omitted to take an ordinary 
business precaution as well as to perform its duty when it 
failed to cause a proper entry of the transaction between itself 
and defendant's pledgor, Brown, to be entered upon the books 
of the Union Security Company for its protection, as the 
section of the code referred to contemplated. 

Lowe, as the purchaser at the execution sale under his 
judgment, without notice of the previous assignment of the 

40 Ori. App.— 



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130 Nbzik v. Colb. [43 Cal. App. 

seventy shares of stock to the plaintiff, took the stock dis- 
charged of the plaintiff's lien (Farmers 9 Nat. Oold Bank v. 
Wilson, 58 CaL 600), and was entitled to have the certificate 
of such shares reissued to him as such purchaser. (West 
Coast Safety Faucet Co. v. WvXff, 133 Cal. 315, 316, [85 Am. 
St. Rep. 171, 65 Pac. 622].) 

Lowe, purchasing the stock at a sale under his own judg- 
ment, without actual or constructive notice of alleged defects 
in the title thereof, was a bona fide purchaser for value. 
(Kady v. Purser, 191 Cal. 552, at 559, [82 Am. St. Rep. 391, 63 
Pac. 844] ; Foorman v. Wallace, 75 CaL 552, [17 Pac. 680] ; 
Hunter v. Watson, 12 Cal. 377, [73 Am. Dec. 543].) The 
rule as to a bona fide purchaser applies to sales of corporate 
stock. (Anglo-California Bank v. Grangers 9 Bank, 63 Cal. 
359; Winter v. Belmont Mining Co., 53 Cal. 428.) Within 
the rule announced intervener Lowe was a bona fide purchaser 
in good faith, for value, without notice. 
The judgment is affirmed. 

Richards, J., and Kerrigan, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied 
by the supreme court on October 28, 1919. 

All the Justices concurred. 



[Civ. No. S018. First Appellate District, Li vision One. — September 8, 

1919.] 

JOHN NEZIK, Respondent, v. WALTER D. COLE et al., 

Appellants. 

[1] Appeal — Alternative Method — Undertaking. — Under the nen 
and alternative method of appeal provided by sections 941a, 941b, 
and 941c of the Code of Civil Procedure, enacted in 1907, an 
undertaking is not required. 

[2] Id. — Perfecting of Appeal— Preparation op Record.— Under the 
new and alternative method of appeal, the party aggrieved, in 
order to perfect an appeal, is only required to file the notice of 
appeal provided for by section 941b of the Code of Civil Pro- 



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Sept. 1919.] Nezik v. Colb. 131 

eedure. Having thus properly taken an appeal, be is not required 
to have a reporter's transcript of the proceedings made up and 
prepared as provided by section 953a of the same code, but may 
cause to be duly prepared and settled a bill of exceptions, con- 
taining the usual statement of the matters occurring at the trial, 
in accordance with section 650 thereof. 

[3] Corporations — Expiration of Term — Dissolution. — A corpora- 
tion is dissolved at the expiration of the term of its corporate 
existence. 

[4] D)w — Term of Corporate Existence — Power to Shorten. — A 
corporation has power to shorten the term of its corporate exist- 
ence by an amendment to its articles of incorporation, even if 
the practical result of such abbreviation amounts to almost an 
immediate dissolution. 

[6J Id. — Effect of Dissolution — Capacity to Sue or be Sued — 
Abatement of Pending Actions. — Except as otherwise provided 
by statute, the effect of the dissolution of a corporation is to 
terminate its existence as a legal entity, and render it incapable 
of suing or being sued as a corporate body, or in its corporate 
name. It is dead, and can no more be proceeded against as an 
existing corporation than could a natural person after his death. 
There is no one who can appear or act for it, and all actions 
pending against it are abated, and any judgment attempted to be 
given against it is void. 

16] Id. — Section 400, Civil Code, Construed — Necessity for Sub- 
stitution of Successors or Representatives. — Section 400 of 
the Civil Code does not have the effect of continuing the exist- 
ence of a corporation after dissolution so as to render it capable 
of defending actions in its corporate name. It is, therefore, 
necessary that, if the action continue at all, its successors or 
representatives, under section 400, be properly brought in on 
motion, as provided in section 385 of the Code of Civil Procedure. 

[7] Id. — Dissolution After Service of Process — Inability to 
Appear— Power of Counsel to Continue to Act. — Where, after 
service of process but prior to appearance, a corporation defend- 
ant is dissolved, the subsequent filing of demurrers and answer in 
its name and purporting to be in its behalf are a nullity; and the 
action of counsel, who may have had authority to represent such 
defendant prior to the termination of the period of its legal 
existence, cannot, so far as that party is concerned, vitalize any 

8. Period of existence of private corporation, note, 33 L. E. A. 
577. 

5. Abatement of action by or against corporation in absence of 
a saving statute by expiration of charter, note, 32 L. E. A. (N. S.) 
446. 



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132 Nezik v, Cole. [43 Cal. App. 

proceedings taken in the abated aetion after the corporation 
eeases to exist 

[8] Id.— Dissolution of Ooepobation Defendant—How Brought to 
Attention or Ooubt— Remedy or Plaintijt. — The dissolution or 
death of a corporation defendant after service of process bnt 
prior to appearance, like the death of any other party to a pend- 
ing action, can only be brought to the attention of the court on 
proper suggestion made by someone other than the defunct cor- 
poration. If the plaintiff intends to secure a judgment, en- 
forceable against the persons who were the directors of the cor- 
poration prior to and at the time it ceased to exist, he should 
have them substituted under section 885 of the Code of Civil 
Procedure as parties in place of the corporation, after the latter 
has become functut officio. 

[9] Id. — Amendment or Pleadings — Substitution or Parties — 
Notice.— The substitution of one party for another by order of 
court is not such an amendment of a pleading as is required to 
be made on notice or to be engrossed otherwise than to be en- 
tered in the minutes of the court 

[10] Do. — Substitution or Defendants — Substantial Compliance 
With Code Requirements. — In this action for damages for per- 
sonal injuries, the notice of motion served on counsel who bad 
represented the corporation defendant prior to the termination of 
its existence as a legal entity and the order of the court direct- 
ing that the proposed amended and supplemental complaint be 
filed and made of record in the case, and further directing tLjt 
the defendants named in said amended and supplemental com- 
plaint, who had been the directors of the corporation prior to 
and at the time it ceased to exist, have and were given twenty 
days from date of a service of a copy of such order in which to 
plead thereto, constituted a substantial compliance with section 
885 of the Code of Civil Procedure, and operated to bring about 
a substitution of said directors as defendants in lieu of the de- 
funct corporation. 

[11] Id. — Substitution or Parties — Notice. — One substituted in a 
cause must be duly notified of the fact of his being made a party 
before he can be affected by notices or proceedings in the action. 

[12] Id. — Want or Notice or Appearance — Judgment Invalid. — 
Where, after the bringing of the action and the service of pro- 
cess, but prior to appearance, the corporation defendant censed to 
exist as a legal entity, and the persons who were the directors of 
the corporation prior to and at the time it ceased to exist as a 
legal entity were substituted as defendants in lieu thereof, but 
there was no service upon or authorized appearance by or in be- 
half of such substituted defendants, the default entered in the 
action against them was unauthorized, and the judgment en- 
tered thereon vnid. 



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Sept. 1919.] Nezik v. Comb. 133 

APPEAL from a judgment of the Superior Court of 
Inyo County. Wm. D. Dehy, Judge. Reversed. 

The facts are stated in the opinion of the court. 

Thomas, Beedy & Lanagan for Appellants. 

Edmon G. Bennett, Chas. E. Barrett, W. A. Lamar and 
Piatt & Sanford for Respondent. 

WASTE, P. J. — Appeal from a judgment, entered after 
default, awarding damages in the sum of $17,688 for personal 
injuries. 

Within the time when an appeal may be taken appellants 
filed with the clerk of the court in which the judgment was 
entered a notice stating the appeal from the same and served 
a similar notice on the attorneys for the adverse party. 
They did not, however, within five days after service of the 
notice of appeal, file the undertaking, or, in lieu thereof, make 
the deposit of money with the clerk as required by sections 
940 and 941 of the Code of Civil Procedure, and no waiver 
of the same was ever made or filed. Neither did appellants, 
in lieu of preparing and settling a bill of exceptions, pur- 
suant to the provisions of section 650 of the same code, file 
with the clerk the notice required by section 953a thereof, 
requesting that a transcript of the proceedings be made up 
and prepared. 

On the contrary, appellants caused to be duly prepared and 
settled a bill of exceptions, containing the usual statement 
of the matters occurring at the trial. Respondent moves to 
dismiss the appeal upon the ground that no undertaking on 
appeal having been given or deposit in lieu thereof made, 
this court has no jurisdiction of the cause, for the reason that 
no appeal has been perfected in the manner or form pre- 
scribed by law. 

The motion is without merit. [1] The new and alterna- 
tive method of taking appeals provided by sections 941a, 941b, 
and 941c of the Code of Civil Procedure, enacted in 1907, 
dispenses with the necessity of an undertaking. (Estate of 
McPhee, 154 Cal. 385, [97 Pac. 878] ; Mitchell v. California 
8. 8. Co., 154 Cal. 731, [99 Pac. 202] ; Union Collection Co. 
▼. Oliver, 162 Cal. 755, [124 Pac. 435] ; Title Ins. etc. Co. ▼. 



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134 Nezik v. Colb. [43 Cal. App. 

California Dev. Co., 168 Cal. 397, 402, [143 Pac. 723].) 
Section 941b provides that the notice of appeal when filed 
"shall, without further action on the part of the appellant, 
transfer the cause for decision and determination to the higher 
court." "That this appeal was perfected under the new 
method there can be no question. Appellant filed his notice 
and that was all that was required to perfect it." (Mitchell 
v. California etc. S. 8. Co., supra.) [2] The fact that a bill 
of exceptions was prepared in place of the reporter's tran- 
script authorized by section 953a has no bearing upon the 
question. The latter section has to do with the preparation of 
the record on appeal. An appeal having been properly taken 
in compliance with either the old or the alternative method, 
the record may be made up in any way permitted by the 
code. (Lang v. LUley & Thurston, 161 Cal. 295, [119 Pac. 
100] ; Union Collection Co. v. Oliver, supra.) 

The motion to dismiss the appeal is denied. 

The original complaint in this action was filed July 8, 1914, 
against the Pacific Coast Borax Company, then a corporation, 
incorporated for a period of fifty years from and after July 
5, 1912. It was alleged that plaintiff had suffered severe 
personal injuries by reason of the negligence of defendant 
in failing on two separate occasions to furnish him a safe 
place in which to work. After obtaining time by stipulation 
within which to plead, on September 18, 1914, counsel, who 
later specially appeared in the action for appellants, filed a 
general and specific demurrer, purporting to be interposed on 
behalf of the Borax Company. At the hearing on demurrer 
the same counsel orally suggested to the trial court that the 
corporation defendant had ceased to exist, and moved for a 
dismissal of the action, which was denied. The demurrer 
was overruled and an answer was filed on April 26, 1915. 

From the answer it appeared that on September 8, 1914, 
which date was prier to the appearance of the company in 
the action by proceedings duly taken to that end, the corpo- 
ration had amended its articles by changing the term for 
which it was to exist from fifty years to two years, two months 
and seven days from and after the date of its incorporation. 
In other words, the life of the company had expired on Sep- 
tember 12, 1914, six days before the demurrer purporting to be 
on its behalf was filed in this action. 



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Sept 1919.] Nezie v. Cole. 135 

After the service of notice thereof by plaintiff on the at- 
torneys who first made the purported appearance in the action 
on behalf of the Borax Company, the court granted permis- 
sion to plaintiff to file an amended and supplemental com- 
plaint, naming as defendants the appellants, who were alleged 
to be the directors of the Pacific Coast Borax Company prior 
to and at the time it ceased to exist as a corporation. The 
amended and supplemental complaint set forth the origi- 
nal causes of action, the facts relating to the termination of 
the life of the corporation, and that the directors thereof 
(appellants) had thereby become its trustees, with full power 
and authority to settle its affairs. The prayer of the amended 
and supplemental complaint was for recovery "of and from 
the said defendants" of the amount claimed as damages by 
reason of the personal injuries. The court ordered that the 
defendants named therein be given twenty days from the date 
of service of a copy of the order so fixing the time in which 
to plead. 

No summons or any notice that the appellants so alleged 
to be directors of the Pacific Coast Borax Company prior to 
and at the time it ceased to exist had been made defendants 
in the action was served on the defendants, or either of them, 
or upon any attorney of record other than upon the attorneys 
who first appeared and filed the demurrer and thereafter the 
answer before referred to. Except in the same manner, no 
service was made of the court's order fixing the time within 
which defendants might plead to the amended and supple- 
mental complaint. 

The defendants not appearing, judgment by default was 
entered against them in the amount prayed for. Thereupon, 
the defendants specially appearing by counsel for the purpose, 
made a motion, supported by affidavits of merit and as to 
the facts, for an order setting aside the default judgment and 
all subsequent proceedings. The motion was based on the 
facts, substantially set forth herein, and the further fact that 
no one of the defendants was a director of the Borax Company 
at the time it ceased to exist. No counter-showing was made 
by the plaintiff. The court denied the motion and appellants 
have appealed from the judgment. 

[3] A corporation is dissolved at the expiration of the 
term of its corporate existence (Kohl v. Lilienthal, 81 Cal. 
378, 386, [6 L. E. A. 520, 20 Pac. 401, 22 Pac. 689]). 



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136 Nezik v. Cole. [48 Cal. App. 

[4] The Pacific Coast Borax Company had power to shorten 
the term of its corporate existence by an amendment to its 
articles of incorporation, even if the practical result of such 
abbreviation amounted to almost an immediate dissolution. 
(Tognazzini v. Jordan, 165 Cal. 19, [Ann. Cas. 1914C, 655 
130 Pac. 879].) [5] "It is settled beyond question that, 
except as otherwise provided by statute, the effect of the 
dissolution of a corporation is to terminate its existence as a 
legal entity, and render it incapable of suing, or being sued 
as a corporate body, or in its corporate name. It is dead, 
and can no more be proceeded against as an existing corpo- 
ration than could a natural person after his death. There 
is no one who can appear or act for it, and all actions pending 
against it are abated, and any judgment attempted to be 
given against it is void." (Crossman v. Vivienda Water Co., 
150 Cal. 575, 580, [89 Pac. 335].) Where there is no statute 
providing for the continuance of the corporation itself after 
dissolution, for the purpose of settling its affairs, provision is 
generally made for the doing of this by others. We have such 
a provision in this state. Section 400 of the Civil Code 
provides: "Unless other persons are appointed by the court, 
the directors or managers of the affairs of a corporation at 
the time of its dissolution are trustees of the creditors and 
stockholders or members of the corporation dissolved, and 
have full power to settle the affairs of the corporation." Be- 
fore the supreme court was called upon to construe the pro- 
vision of the act of the legislature relating to the forfeiture of 
charters by corporations for failure to pay license taxes, to 
which we will shortly refer, section 400 was held to be ap- 
plicable in all cases of dissolution, whether voluntary or in- 
voluntary. (Havemeyer v. Superior Court, 84 Cal. 327, 365, 
[18 Am. St. Rep. 192, 10 L. E. A. 627, 24 Pac. 121] ; Cross- 
man v. Vivienda Water Co., supra.) Construing that section 
in the last-mentioned case the court said : "There is no statute 
of this state that authorizes the commencement or continuance 
of an action against the corporation after its legal death. 
We have no statute similar to that of several states, providing 
that in the event of the dissolution of a corporation its ex- 
istence shall be continued either indefinitely or for a specified 
time for the settlement of its affairs. Statutes similar to 
our section 400 of the Civil Code above quoted do not have 
the effect of continuing the existence of the corporation as 



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Sept 1919.1 Nezik v. Cole. 137 

cestui que trust, or otherwise, so as to render it capable of 
defending actions in its corporate name. (Thompson on 
Corporations, see. 6739; Clark & Marshall on Private Cor- 
porations, sec. 333; Sturgis v. Vanderfolt, 73 N. Y. 384.) 
If section 385 of the Code of Civil Procedure, providing that 
an action does not abate by the death or any disability of a 
party, if the cause of action survives, is applicable to the 
case of a corporation, it does not authorize the continuance 
of the action against the corporation itself, but allows the 
action to be continued only against the 'representative or 
successor in interest,' brought in on motion." (McCulloch 
v. Norwood, 58 N. Y. 562, 568; see, also, Judson v. Love, 
35 Cal. 463.) 

Respondent, nevertheless, contends that the lower court 
having acquired jurisdiction over the defendant and the sub- 
ject matter oi the action by reason of the service of summons, 
continued to entertain and hold such jurisdiction, regardless 
of the fact that subsequent to such jurisdiction attaching the 
corporation voluntarily ceased to exist, and that, while the 
directors might properly be substituted as parties defendant, 
such substitution was not essential to a continuance of the 
action. He cites three cases as supporting this proposition: 
Lowe et at. v. Superior Court of Los Angeles County, 165 
Cal. 708, [134 Pac. 190, 192] ; Brandon v. Umpqua Lumber 
& Timber Co., 166 Cal. 322, [136 Pac. 62] ; Turney v. Morris- 
sey, 22 Cal. App. 271, [134 Pac. 335]. An important dis- 
tinction must be made in the consideration of these decisions. 
Each deals with facts arising under the provisions of the 
special act of the legislature relating to the payment of the 
license tax by corporations and cases of forfeiture under its 
provisions. By reference to the above statute, and acts 
amendatory thereof, we find that the provision of section 10a 
of the act of 1907 (Stats. 1907, pp. 746, 747), so strongly 
relied on by respondent, is restricted by the title of the act to 
"making provision for settling the affairs of corporations 
where said tax has not been paid," and by the language 
of the provision itself, to "cases of forfeiture under the pro- 
visions of this act." 

As we read the cases relied on by respondent, they merely 
determine that, since the amendment of 1907 to the act in 
question, an action pending against a corporation which has 
forfeited its charter by reason of failure to pay its license 



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138 Nezik v. Cole. [43 Cal. App. 

tax, shall not abate by reason of the forfeiture, but may be 
continued and prosecuted or defended in the corporate name, 
the control and management of the action, so far as the 
corporate interests are concerned, being in the directors or 
managers in office at the time of the forfeiture, they being the 
trustees of the corporation, its stockholders or members. 
(Brandon v. Vmpqua Lumber Co., supra.) We find nothing 
in any of said decisions, read in connection with the statute 
under which the cases arose, which may properly be said to 
remove this case, and cases like it, from the operation of 
the well-established general principles so succinctly stated in 
the authorities from which we have quoted. [G] As was so 
well pointed out by the chief justice in the Crossman case, 
supra, section 400 of the Civil Code, already quoted, does 
not have the effect of continuing the existence of a corpora- 
tion after dissolution so as to render it capable of defending 
actions in its corporate name. It was, therefore, necessary 
that if the action could continue at all that its successors or 
representatives, under section 400, be properly brought in on 
motion, as provided in section 385 of the Code of Civil Pro- 
cedure. 

[7] Assuming the correctness of the recital in the judg- 
ment in this case, that the Pacific Coast Borax Company was 
regularly served with process, the filing of the demurrers and 
answer in its name and purporting to be in its behalf, was 
a nullity. So far as the dead corporation itrelf was concerned 
there could be no admission or estoppel. It could no longer 
be served with process, could not appear, could not itself 
admit anything nor authorize anyone else to do so for it. It 
was legally dead. (Crossman v. Vivienda Water Co., supra.) 
The action of counsel, who may have had authority to rep- 
resent the defendant company prior to the termination of 
the period of its legal existence, could not, so far as that 
party was concerned, vitalize any proceedings taken in the 
abated action after the corporation ceased to exist. Any sub- 
sequent service on them by the plaintiff of the notice of motion 
to file the amended and supplemental complaint, the notice 
that such pleading had been filed, and of the time granted the 
substituted defendants within which to plead thereto, was not 
effectual, so far as any interest of the defunct corporation was 
concerned. (Deiter v. Riser, 158 Cal. 259, 262, [110 Pac 



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Sept. 1919.] Nam v. Colb. 139 

921] ; Bell v. San Francisco Savings Union, 153 Cal. 64, 69, 
[94 Pac. 225] ; Pedlar v. Stroud, 116 Cal. 462, [48 Pac. 371].) 

Unless, therefore, it can be shown that some other course 
was followed, the result of which was to properly bring the 
appellants into the action, after which, by due service or vol- 
untary appearance, they were subjected to the jurisdiction of 
the court, the respondent will have failed to maintain his 
position here. [8] From the very nature of things the dis- 
solution or death of the defendant, like the death of any other 
party to a pending action, could only be brought to the at- 
tention of the court on proper suggestion made by someone 
other than the defunct corporation itself. (Combes v. Reyes, 
89 Wis. 297, [46 Am. St. Rep. 839, 27 L. R. A. 369, 62 N. W. 
89].) If the plaintiff intended to secure any judgment in 
this case, enforceable against these appellants, he should have 
had them substituted under section 385 of the Code of Civil 
Procedure as parties in place of the corporation, after the 
latter had become functus officio. (Ex parte Tinkum, 54 
Cal. 201, 203.) 

The notice of motion given by the plaintiff for permission 
to file the amended and supplemental complaint was based 
upon the notice itself and upon all the records, pleadings, and 
files in said action. The verified proposed amended and 
supplemental complaint was attached to, and by apt reference 
made a part of, the notice and motion. There was on file in 
the action the purported answer of the Borax Company, which 
was duly verified by one purporting to have been the secre- 
tary of the corporation prior to and at the time it ceased to 
legally exist. It fully appeared in both of these verified 
pleadings that the defendant corporation was legally dead. 
It was alleged in the verified proposed amended and supple- 
mental complaint that "immediately prior and at the time of 
said dissolution" appellants, naming them, "were the duly 
elected, qualified, and acting board of directors of said corpo- 
ration, and that they, as such directors are now the legally con- 
stituted and authorized trustees, representatives, and succes- 
sors in interest of said corporation, and trustees of the credi- 
tors, stockholders, and members of said corporation, with full 
power and authority to settle the affairs of said dissolved cor- 
poration, and to appear in and defend this action, and as such 
are true and proper defendants herein.' ' 



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140 Nunc v. Col* [43 Cal. App. 

This notice of motion was not served on any of the appel- 
lants personally. It was addressed to the defendant Borax 
Company and to the attorneys who had purported to repre- 
sent it in the earlier proceedings in the action. It was served 
on these attorneys and on no one else. [9] It seems to be 
the well-settled rale that the substitution of one party for 
another by order of court is not such an amendment of a 
pleading as is required to be made on notice or to be engrossed 
otherwise than to be entered in the minutes of the court. 
(Kittle v. Bellegarde, 86 Cal. 556, 562, [25 Pac. 55] ; Taylor 
v. Western Pacific R. R. Co., 45 Cal. 323, 337.) 

[10] No record appears in the transcript from which we 
may gather that a formal order was made and entered in the 
minutes of the court, either in substance or in haec verba, 
substituting the appellants as parties defendant in the place 
and stead of the Borax Company. We are of the opinion, 
however, that the notice of motion and the order of the court 
directing that the proposed amended and supplemental com- 
plaint be filed and made of record in the case, and further 
directing that the defendants named in said amended and 
supplemental complaint have and were given twenty days 
from date of a service of a copy of this order in which to 
plead thereto, constituted a substantial compliance with sec- 
tion 385 of the Code of Civil Procedure, and operated to bring 
about such substitution. (Taylor v. Western Pacific R. R. 
Co., supra; Campbell v. West, 93 Cal. 653, [29 Pac. 219] ; 
Ford v. Bushard, 116 Cal. 273, 276, [48 Pac. 119].) Fur- 
thermore, there is a recital in the judgment regarding the 
substitution of the defendants which, liberally construed, 
would show, whether with formality or not, the suggestion of 
the dissolution of the original defendant and a continuance 
of the action, or a revival of it, against the appellants. 
(Gregory v. Haynes, 13 Cal. 592.) 

[11] One substituted in a cause must be duly notified of the 
fact of his being made a party before he can be affected by 
notices or proceedings in the action. (Judson v. Love, 35 Cal. 
463, 469.) "A defendant appears in an action when he 
Answers, demurs, or gives the plaintiff written notice of his 
appearance, or when an attorney gives notice of appearance 
for him." (Code Civ. Proc, sec. 1014.) None of these 
things was done in the instant case. The attorneys for the 
dissolved corporation defendant were never authorized to and 



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Sept 1919.] Blackburn v. Marplb. 141 

never appeared as attorneys of record in the cause for appel- 
lants so as to waive service of the amended and supplemental 
complaint or notice of its filing and of their time to answer. 
Service on them alone, as we have pointed out, was a nullity 
after the Borax Company ceased to exist. Prior to their 
appearance to move to set aside the default and judgment, 
which was special for that particular purpose, and in no 
sense a general appearance in the cause (Powers v. Braly, 75 
CaL 237, 239, [17 Pac 197]), they never appeared in the 
action for the appellants at all. Proper service of the notice 
that appellants had been substituted as parties defendant in 
the action, and of the amended and supplemental complaint, 
not having been made on the appellants their rights were 
not affected by the subsequent proceedings. 

[12] It follows, therefore, that as there was no service 
upon, or authorized appearance by or in behalf of the defend- 
ants, the default entered in the action against the appellants 
was unauthorized, the judgment entered thereon was void and 
must be reversed. (Linott v. Rowland, 119 Cal. 453, [51 
Pac. 687] ; HM v. City Cab etc. Co., 79 Cal. 188, 191, [21 
Pac. 728] ; Altpeter v. Postal Tel. & Cable Co., 26 Cal. App. 
705-713, [148 Pac. 241].) 

The judgment is reversed and the cause remanded, with 
directions to the trial court to vacate and set aside the default 
of the defendants, with permission granted to them to plead to 
the amended and supplemental complaint, as in the original 
order therefor provided. 

Richards, J., and Kerrigan, J., concurred* 



[Civ. No. 2988. First Appellate District, Division One. — September 8, 

1919.] 

FREDERICKA L. BLACKBURN, Respondent, v. R. S. 
MARPLE, Appellant 

[1] Niglioenob — Automobile Collision — Findings — Evidence.— In 
this action for damages for personal injuries Buffered by plaintiff 
as the result of a collision between two automobiles, the findings 
of the trial court that the defendant was guilty of negligence m 



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142 Blackburn v. Marple. [43 Cal. App. 

the operation of bis car and that the elaim of the defendant that 
the plaintiff's husband was guilty of contributory negligence could 
not be sustained, were abundantly supported by the evidence. 
[2] Id. — Approach op Intersecting Way — Obstruction of View — 
Reduction op Speed — Question op Fact. — The question as to the 
distance away from an intersecting road with an obstructed view 
when a driver upon the highway going at an otherwise legal rate 
of speed should reduce his speed to ten miles an hour under the 
provisions of subdivision 6 of section 22 of the Moter Vehicle 
Act of 1913, is necessarily a question of fact in each individual 
ease to be determined by the trial court according to such par- 
ticular circumstances as the kind of car the operator was driving, 
the speed at which he was previously going, the brake control of 
the car, and the nature of the obstruction to his view of the in- 
tersecting road. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. Lewis R. Works, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

Tanner, Odell & Taft for Appellant. 

Porter C. Blackburn for Respondent. 

RICHARDS, J. — This is an appeal from a judgment in 
favor of the plaintiff in an action for damages for personal 
injuries suffered by the plaintiff as the result of a collision 
between two automobiles. 

The facts of the case, as summarized from the findings of 
the trial court, are as follows: On July 14, 1915, at about 
the hour of 6:30 P. M., the plaintiff was riding in a Ford 
automobile, being driven by her husband along the state high- 
way leading from Whittier to Fullerton, going in an easterly 
direction at a speed not in excess of twenty miles per hour, 
and was approaching the point upon said highway where a 
public road known as the La Habre road enters it from the 
south. The state highway and the La Habre road are each 
about sixty feet wide at this point, each having a paved center 
of about 18 feet in width. At the point of entrance of the 
La Habre road the latter makes two long curves, one turn- 

2. Effect of speed and application of speed regulations on lia- 
bility for collision between automobiles at or near corner of street* 
•r highways, note, L. R. A. 191CA, 747. 



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Sept 1919.] Blackburn v. Marplb. 143 

ing into the highway to the left going west, and the other 
turning into the highway to the right going east, and the 
triangle at the point of entrance caused by their separation 
being unpaved but oiled and subject to travel. The private 
property on each side of the La Habre road at its said point 
of emergence into the highway is well grown up in orange 
trees standing within four feet of the property line, and 
forming quite an obstruction to the vision either of the high- 
way or of the road by persona approaching the point of 
contact upon either thoroughfare. There were also some 
electric light poles at said point further obstructing this line 
of vision. As the plaintiff's husband, driving the car in 
which she was seated, approached the said point of emergence 
of the La Habre road, and was, as is variously stated, at 
from one hundred and fifty to two hundred feet west of 
said point, he observed an Overland car, operated by the de- 
fendant, turning into the state highway on the westerly curve 
of the La Habre road, and immediately turned his Ford car 
to the right of the center of the highway going east, and 
slowed down his speed to eight miles an hour. The defendant 
proceeded on said curve until he had arrived at about the 
center of the state highway when, instead of proceeding on 
the course which would have taken his machine to the right 
of the center of said highway going west, he suddenly turned 
his car to the left, and without slowing down proceeded to 
turn directly across the course of the car in which the plain- 
tiff was riding. The plaintiff's husband, seeing this action, 
turned his car farther and farther to the right until he was 
forced off of the paved portion of the highway and on to 
the dirt strip along it and into the edge of the adjacent 
orange orchard, where his car was struck by the defendant's 
car, and badly damaged, and the plaintiff was severely injured 
by the impact. 

The trial court, the cause having been tried without a jury, 
found from the foregoing facts that the defendant was guilty 
of negligence in the operation of his car, and that the claim 
of the defendant that the plaintiff's husband was guilty of 
contributory negligence could not be sustained, and accord- 
ingly rendered judgment in the plaintiff's favor for the sum 
of one thousand dollars damages, from which the defendant 
prosecutes this appeal* 



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144 Blackburn v. Mabplb. [43 Cal. App. 

[1] From our examination of the testimony, and partic- 
ularly of the exhibits before us, we are entirely satisfied that 
the findings of the trial court, of which the foregoing is a 
brief summary, are abundantly supported by the evidence in 
the case, and that in point of fact the real cause of the collision 
was that given by the defendant himself to the plaintiff's 
husband, and also to several bystanders immediately after the 
accident that, "he got rattled and lost control of the 
machine. " [2] The only contention of the defendant which 
saves him from the penalty which would otherwise be justly 
imposed for taking a frivolous appeal is his contention that 
the plaintiff's husband was guilty of contributory negligence 
as a matter of law for a violation on his part of the provi- 
sions of subdivision 6 of section 22 of the Motor Vehicle Act 
of 1913 in force at the time of said accident, which required 
that persons operating motor vehicles on the public highways 
of this state should operate or drive their cars at no greater 
speed than one mile in six minutes "where the operator's 
view of the road traffic is obstructed upon approaching an 
intersecting way." This point made on behalf of the appel- 
lant is also devoid of merit for two reasons: First, the ques- 
tion as to the distance away from an intersecting road with 
an obstructed view when a driver upon the highway going at 
an otherwise legal rate of speed should reduce his speed to ten 
miles an hour under the said provisions of said act is neces- 
sarily a question of fact, in each individual case to be de- 
termined by the trial court according to such particular cir- 
cumstances as the kind of car the operator is driving, the 
speed at which he was previously going, the brake control 
of the car, the nature of the obstruction to his view of the 
intersecting road, etc. ; and the point is without merit for the 
second reason, which is that, according to the evidence in the 
case, which fully sustains the finding of the court, the plain- 
tiff's husband was from one hundred and fifty to two hun- 
dred feet west of the point of emergence of the La Habre road 
going at a rate of speed not in excess of twenty miles an 
hour when he first discovered the defendant's car coming 
into the highway, and that he immediately reduced his speed 
to eight miles an hour, and took a position on the highway 
which would have led to an entire avoidance of the accident 
if the defendant had not, to employ his own language, "got 
rattled and lost control of his car," with the result that he 



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Sept. 1919.] Gould v. Van Horns. 145 

crossed over unexpectedly to the wrong side of the highway 
and there ran the plaintiff's conveyance down in spite of the 
driver's utmost effort to avoid a collision. 
Judgment affirmed. 

Waste, P. J., and Bardin, J., pro tern., concurred. 



[CSr. No. 2092. Tint Appellate District, Division One.— September 4, 

1919.] 

WILL D. GOULD, Executor, etc., Appellant, v. E. B. VAN 
HORNE, Respondent. 

[1] Gifts — Intent of Po.nob — Finding — Evidence. — In this action to 
recover a ram of money alleged to be due from defendant to 
the estate of plaintiff's testate, there was sufficient evidence to 
support the finding of the trial court to the effect that it was 
the testate's intent to make an absolute gift of the money to 
defendant 

[2] Id. — Payment of Interest — Return of Part of Principal — 
Original Intent not Defeated. — Where such intent to make an 
absolute gift existed, it would not be defeated by the further fact 
that the donor required of the donee that he pay her interest on 
the sum given during her lifetime, nor even by the fact that he 
gave her back some of the principal at her request. 

[3] Id. — Admissibility of Decimations of Donor. — In determining 
the intent of the donor, declarations made by her both before and 
after the transaction are admissible as tending to show a gift. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. John W. Shenk, Judge. Affirmed 

The facts are stated in the opinion of the court. 

Will D. Gould, in pro. per., James H. Blanchard and 
Bordwell & Mathews for Appellant 

George Beebe and J. Marion Wright for Respondent. 
1 1 

1. What constitutes good gift of debt of donee, note, Ann. Caa. 
1915A, 18. 

48 0al.App. — 10 



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146 Gould v. Va-n Hornb. [43 Cai. App. 

RICHARDS, J. — This is an appeal from a judgment in 
favor of the defendant in an action brought by the plaintiff 
as executor of the last will and testament of Mary M. Shaw, 
deceased, to recover the sum of $17,250.66, alleged to be due 
from said defendant to the estate of said deceased upon his 
promissory note. The defendant's amended answer set up 
that there was no consideration for said note, and further set 
forth the circumstances under which the note had been signed 
as the basis for the defendant's claim that it was executed 
under a mutual mistake of the parties. 

The facts of the case as developed at the trial are substan- 
tially these: In the month of April, 1911, Mary M. Shaw 
was and for some years prior thereto had been a woman of 
considerable means residing in Los Angeles; the defendant 
had, during such time, been a real estate and general busi- 
ness agent in said city, and as such had been looking after 
the business interests of said Mary M. Shaw, who had come 
to have great confidence in him and to display a strong liking 
for him. For some time prior to the month of April, 1911, 
said Mary M. Shaw had signified to the defendant and said 
to other persons that she intended to make a gift to the defend- 
ant of the sum of twenty thousand dollars, which sum was 
to be derived from the collection of one of her outstanding 
mortgages when the same should be paid. On a certain day 
in April, 1911, she came into the defendant's office with a 
check for the full amount of said mortgage, together with 
about $700 in interest, and handed the check to the defendant, 
saying, "Van, here is that check that I have been waiting 
for some time to give you ; everything has been paid off and 
I want you to take it." She also stated to several other 
people about the office at the time that she was giving the 
defendant the money outright as a gift, and also gave as a 
reason therefor that she thought as much of him as she would 
of a son, and that he had done as many things for her as a 
son could do, and that her relations would get everything 
she had after she died and were just waiting for her to die. 
At various times thereafter up to the time she did die in the 
year 1913 she repeated these statements to various persons. 
The evidence also showed that at the time she handed the 
check to the defendant she refused to take any writing from 
him upon the ground that it was his money, but said that she 
would like him "to pay interest on it during her lifetime, 



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Sept. 1919.] Gould v. Van Horne. 147 

and if she wanted any additional sums at any time she needed 
it I would take and advance it to her." The record shows 
that from time to time thereafter the defendant gave the 
decedent sums of money, and particularly shows that she 
asked the defendant for some money in the year 1912, and 
that he then paid her the sum of one thousand dollars, and 
at the time of doing so had her sign a receipt drawn by him- 
self showing that of the sum then paid $646.25 was the in- 
terest up to May 24, 1912, and $353.75 was to be applied 
upon principal, leaving $16,646.23 yet due on principal. 
Upon the death of Mary M. Shaw the plaintiff herein, who 
had been her attorney for a number of years and who was 
named in her will as her executor, was duly appointed as 
such upon the probate of her will, and after qualifying as 
such executor had an interview with the defendant with 
respect to this money, which he asserted was an asset of the 
estate and for which he threatened to bring suit unless the 
defendant would execute a note to the estate for the balance 
claimed to be due. The defendant protested that the decedent 
had made a verbal gift to him of the money, but the executor 
stated that he was legally liable for it "by reason of the 
fact that the defendant had no writing to show," and also 
on account of the existence and terms of the receipt above 
referred to. The defendant, who had known the plaintiff 
as an attorney and personally for many years and had much 
confidence in his ability and integrity, and who also did not 
wish to be sued, finally signed the note which forms the 
basis of this suit. Upon the trial of the case the defendant 
and his witnesses testified to the foregoing state of facts. 
The trial court made its findings in conformity to the fore- 
going facts, and rendered its judgment accordingly in the 
defendant's favor. 

[1] The plaintiff, upon this appeal, urges three main 
grounds for a reversal of the case. The first of these is that 
the facts as shown are insufficient to support the finding of 
a gift inter vivos to the defendant, but at most are merely 
evidence of an intent on the part of the deceased to make a 
gift to take effect upon her death. Much of the appellant's 
argument upon this point is devoted to a discussion of the 
weight of the evidence, but as to this we think that there was 
sufficient evidence, if believed by the court, to sustain its 
finding to the effect that it was the donor's intent to make 



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148 Gould v. Via* Hornr. [43 Cal. App. 

an absolute gift of the monqy in question to the defendant. 
[2] If such was her intention it would not be defeated 
by the further fact that she required of the defendant that 
he pay her interest on the sum given during her life- 
time, nor even that he give her back some of the principal, 
if desired. (Robertson v. Robertson, 147 Ala. 311, [10 Ann. 
Cas. 1051, 3 L. R. A. (N. S.) 774, 40 South. 104] ; Goodrich 
v. Rutland etc. Bank, 81 Vt. 147, [17 L. R. A. (N. S.) 181, 
69 Atl. 651] ; Doty v. WUlson, 47 N. T. 580; Young v. Young, 
80 N. Y. 422, [36 Am. Rep. 634] ; Miller v. Western College 
etc., 177 111. 280, [69 Am. St. Rep. 242, 42 L. R. A. 797, 52 
N. E. 432].) 

[S] The appellant incidently urges an objection to the 
testimony of certain witnesses as to subsequent declarations 
of the decedent as to her intention in giving the defendant 
the money in question; but this objection has no merit since 
it is well settled that in determining the intent of a donor dec- 
larations made by her both before and after the transaction 
are admissible as tending to show a gift (Calkins v. Equitable 
B. & L. Assn., 126 Cal. 531, [59 Pac. 30] ; Estate of Hall, 
154 Cal. 527, [98 Pac. 269] ; Helm v. Martin, 59 Cal. 57). 

The final contention of the appellant is that the trial court 
erred in permitting the plaintiff while upon the witness-stand 
to be asked in cross-examination, over the plaintiff's objection, 
the following question: "Would you have gotten Mr. Van 
Home to sign this note, plaintiff's Exhibit 1, if you had been 
in possession of the facts which you now havef " The witness 
answered "No. n While it seems to be conceded that the ques- 
tion was improper, it is to be noted that the case was on trial 
before the court sitting without a jury, and that the testi- 
mony of the defendant and his several witnesses as to the 
circumstances attending the gift was without contradiction; 
and hence that the trial court if he believed this testimony had 
abundant evidence before him to sustain his findings regard- 
less of what the mental attitude of the plaintiff, either before 
or after the institution of the action, might be. Under such 
conditions we do not think that the error, if such it be, 
sufficiently prejudicial to justify a reversal of the case. 

Judgment affirmed. 

Bardin, J., pro tern., and Waste, P. J., concurred. 



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Sept. 1919.] Bishop v. Barndt. 149 



[&y. No. 2982. First Appellate District, Division One. — September 4, 

1919.] 

ADA M. BISHOP, Appellant, v. ELIZABETH J. BARNDT 
et al., Respondents. 

[1] Vendor and Vendee — Contract fob Sale of Real Property — 
Acceptance of Overdue Payments — Suspension and Revival of 
Right of Forfeiture. — Where time is made the essence of a con- 
tract for the payment of money, end this covenant is waived by 
acceptance of installments after they are dne with knowledge of the 
facts, such conduct will be regarded as creating only a temporary 
suspension of the right of forfeiture, which may be restored by 
giving a definite and specidc notice of an intention to enforce it 

[2] Id. — Agreement of Vendees to Sell to Third Person — Privity 
of Contract With Original Vendor. — A purchaser of property 
under an installment contract, by entering into a contract of sale 
of said property to a third person, creates no privity of contract 
or estate between such third person and the original vendor with- 
out assigning his interest, in whole or in part, under the original 
contract of purchase. 

[3] Id. — Action to Declare Forfeiture — Parties — Removal of 
Cloud from Title. — Such third person having placed her contract 
to purchase of record, upon default of the vendees under the origi- 
nal contract of purchase, the original vendor was entitled to make 
her a party defendant in an action to declare a forfeiture of the 
rights of the original vendees and to have such cloud removed. 

[4] Id. — Sufficiency of Notice to Restore Right of Forfeiture — 
Duty to Notify Third Party. — In this action by the vendor to 
declare a forfeiture of the rights of the vendees in and to certain 
real property under an agreement of sale, the plaintiff, by the 
acceptance of installments after they were due, having worked a 
temporary suspension of the right of forfeiture, the notice given 
to the real party in interest under the agreement of sale was suffi- 
cient to revive and restore all plaintiff's rights under her contract. 
It was not necessary that she also give notice to the third person 
with whom her vendee has entered into an agreement of sale of 
such property to which she was not a party. 

[5] Id. — Failure to Comply With Notice — Forfeiture of Rights 
Under Contract — Decree— Equity. — When the vendor gave the 
vendees a reasonable time to pay the money due under their con- 
It Vendor's acceptance of payment tendered after time specified as 

waiver of provision making time of essence of cou tract, note, 9 

A. I* IL 996. 



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150 Bishop v. Babndt. [43 Cal. App. 

tract of purchase, they should have met the requirements of the 
notice, and when they did not they forfeited all their rights under 
the contract in accordance with the terms therewith; and in an 
action brought for that purpose, the vendor was entitled to a de- 
cree that all their rights thereunder were at an end, in the 
absence of some equitable showing to excuse their failure to 
comply with the terms thereof. 
[6] Id. — Specific Performance — Adequacy of Consideration — Just- 
ness AND BEASONABLENES8 OF CONTRACT — PLEADING AND PROOF. — 

In this action by the vendor to quiet her title to certain property 
agreed to be sold, the original vendees being in default in the 
payments, the court committed error in decreeing specific perform- 
ance of the contract of sale in favor of one of the defendants, a 
third person to whom such vendees had contracted to sell sueh 
property, it not being alleged in the answer of such defendant 
that the consideration to be paid plaintiff was adequate, or that 
the original contract of sale was just and reasonable, and no evi- 
dence was introduced npon this subject, and no finding made in 
regard to it 

APPEAL from a judgment of the Superior Court of 
Orange County. W. H. Thomas, Judge. Reversed. 

The facts are stated in the opinion of the court. 

Hartley Shaw for Appellant. 

G. P. Adams and John C. Stick for Respondents. 

WASTE, P. J. — This, in form an action to quiet title, is, 
in effect, one to declare a forfeiture of the rights of all the 
defendants in and to the real property in question. The facts 
of the case appear from the findings, fully supported by the 
testimony. 

By an agreement of sale, made on February 6, 1913, the 
plaintiff agreed to sell, and the defendant, Elizabeth J. 
Barndt, agreed to buy, the land in question for the sum of 
one thousand three hundred dollars, payable one hundred dol- 
lars upon the execution of the agreement, four hundred 
dollars on March 1, 1914, four hundred dollars on March 1, 
1915, and four hundred dollars on March 1, 1916, with in- 
terest at the rate of seven per cent per annum, payable semi- 
annually, the buyer to pay all taxes after March 1, 1913. 
This contract, almost immediately after its execution, was 
assigned and transferred to defendant Stick, and, together 



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Sept. 1919.] Bishop v. Babndt. 151 

with said assignment on the back thereof, was recorded in the 
office of the county recorder of Orange County, but not until 
May 29, 1915, just before this action was commenced. Time 
is the essence of the contract. 

On August 14, 1913, defendant Stick sold the property 
under another contract to defendant Beulah B. Coward for 
the sum of two thousand four hundred dollars, on account of 
which defendant Coward had paid the sum of $1,863.81 before 
trial of the action. 

The initial payment of one hundred dollars, due under 
plaintiff's contract, was paid at the time of the execution of 
the agreement. The four hundred dollar installment on ac- 
count of principal, due March 1, 1914, and the various pay- 
ments on account of interest, falling due prior to February 
6, 1915, were paid by defendant Stick. None of these pay- 
ments were made when due, but at various dates thereafter, 
and each was received and accepted by the plaintiff without 
any objection on her part. At the time the suit was com- 
menced — July 23, 1915 — the payment of interest due on Feb- 
ruary 6, 1915, and the four hundred dollar installment on 
account of principal, due March 1, 1915, had not been paid 
to plaintiff. Plaintiff had also paid certain taxes, assessed 
against the property, which had not been repaid. 

Prior to the bringing of the action, no notice of any de- 
linquency of any payment, or demand for the payment of the 
same, was made, or served, upon defendants Stick or Coward. 
Plaintiff never gave to the said defendants, or either of them, 
any notice that she would, or did, insist upon the provisions 
of the agreement between herself and Barndt, as to time 
being the essence of the agreement, or that she would declare 
a forfeiture of her contract with defendant Barndt, although 
she became aware of the existence of the agreement between 
defendants Stick and Coward in June, 1915, about one month 
before bringing this action. 

The court found that defendants Stick and Coward were 
ready, willing, and able to pay to the plaintiff all moneys due 
under the contract between herself and the defendant Barndt. 
Those defendants, in open court, in keeping with this finding, 
offered to pay the amount, together with all taxes paid by 
plaintiff, and costs of suit, upon the condition that plaintiff 
convey the title to the premises to either of them, and deliver 
to the grantee a certificate of title, as provided in the original 



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152 Bishop v. Barndt. [43 Cal. App. 

contract. Defendant Stick, by stipulation filed in the action, 
consented to the transfer being made directly to the defendant 
Beulah Coward. Plaintiff declined to accept the tender and 
convey the property. Counsel for the respective parties, by 
stipulation, then agreed that the amount due upon principal 
and interest, under the contract between plaintiff and defend- 
ant Barndt, provided the same was then in force, amounted 
at that time to $901.87 ; that the taxes paid by plaintiff on 
said premises, including interest, amounted to $13.20, and that 
plaintiff's costs amounted to $19.95, making the total of 
principal, interest, taxes and costs the sum of $935.02. The 
defendants Stick and Coward then made tender of that 
amount in open court to the plaintiff, and the tender was 
refused. In lieu of the payment of the money into court, 
pending the final determination of the action, it was stipulated 
that the amount be deposited with a trustee, to hold the same, 
with proper instructions as to its disposition. 

As its conclusion of law from the foregoing facts, the court 
found that plaintiff was entitled to recover of and from the 
defendants John C. Stick and Beulah Coward the above 
amount, upon her executing and delivering a proper deed and 
certificate of title, and, also, that the defendants in the action 
were entitled to a judgment and decree that plaintiff execute 
such conveyance to defendant Coward, and furnish proper 
certificate of title. Judgment and decree was entered in 
accordance with the findings. It was further decreed that, in 
the event said plaintiff refused to make such deed of con- 
veyance and furnish such certificate of title within forty days 
from the date of the judgment, the clerk of the court make, 
execute and deliver to the defendant Coward such conveyance 
for and on behalf of plaintiff, and obtain and turn over the 
certificate of title, as directed. Plaintiff has appealed. 

The judgment and decree of the lower court, if it is to be 
upheld, must rest upon tha legal effect of its findings, that 
all of the payments on the contract between plaintiff and 
defendant Beulah Coward, other than the initial payment of 
one hundred dollars, were made at various dates after the 
same became due, according to the terms of the contract, and 
were received and accepted by plaintiff without objection upon 
her part. From this conduct on the part of plaintiff, the 
trial court apparently reached the conclusion that plaintiff 
had waived the default, and failure to comply strictly and 



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Sept 1919.] Bishop v. Babndt. 153 

punctually with the conditions of the agreement to such an 
extent that plaintiff had induced the purchaser and assigns, in 
reliance thereon, to alter their course as to strict and punc- 
tual compliance with the contract. There is no finding to 
this effect. 

In addition to the facts outlined above, as found by the trial 
court, it appears from the evidence that Gail E. Moon, who 
was made a defendant, and answered generally, denying the 
allegations of the complaint, was the real vendee in interest 
in the contract between plaintiff and defendant Barndt. On 
May 18, 1915, and before she knew of the claim of defendant 
Coward to an interest in the property in litigation, plain- 
tiff directed her attorney to send a letter to Moon. In this 
communication, after calling attention, by apt reference, to 
the contract between plaintiff and Mrs. Barndt, counsel said : 

"I understand that you are the present owner of this con- 
tract, and this is to notify you that the sum of $400.00 due 
under the terms of said contract March 1st, 1915, has not been 
paid, and that the interest has not been paid beyond August 
6th, 1914. 

"Ton are hereby notified that unless the sums due under 
this contract are paid within fifteen days from date hereof, 
Mrs. Bishop will exercise the rights conferred upon her by 
the contract, which recites that time is the essence thereof, 
and will declare all your rights under said contract to be 
forfeited, and will not recognize herself as being under any 
further obligation to perform said contract." 

No attention was paid by defendants to this notice, and the 
amounts due were not tendered or paid to plaintiff. After 
waiting two months plaintiff commenced her action to quiet 
title. 

Upon the foregoing admitted facts, the first question that 
arises is as to what were the rights of the respective parties 
on May 18, 1915, the date of plaintiff's letter to defendant 
Moonf On that date the defendants were more than three 
months in default in respect to the semi-annual installment of 
interest due under the contract, for the six preceding months, 
and nearly three months in default as to the payment of the 
installment on principal due March 1, 1915. According to 
the strict letter of the agreement, making time the essence 
thereof, the vendees under the contract were then subject 
to the penalty of having their contracts canceled and of a 



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154 Bishop v. Bakndt. [43 Cal. App. 

forfeiture of the payments which they had theretofore made, 
unless, as contended by defendants, the plaintiff, by receiving 
without objection the several payments which the defendants 
had tardily made, can be held, by her action in so doing:, to 
have waived her right to insist upon the strict letter of the 
contract. Defendants claim that plaintiff is no longer en- 
titled to take advantage of their past delinquencies, so as to 
either declare the contract canceled because of them, or to 
claim a forfeiture of such payments as she had theretofore 
received without objection, when they were not made on the 
dates fixed by the contract. In urging this contention they 
rely, among many others, upon Peamon v. Brown, 27 Cal. 
App. 125, 129, [148 Pac. 956] ; Boone v. Templeman, 158 Cal. 
290, 295, [139 Am. St. Rep. 126, 110 Pac. 947] ; Stevinson v. 
Joy, 164 Cal. 279, 285, [128 Pac. 751] ; Sausalito Bay Land 
Co. v. Sausalito Improvement Co., 166 Cal. 302, 307, [136 
Pac. 57]. 

These cases support respondents 9 contention, as being the 
correct rule under proper circumstances. Our attention has 
not been called, however, to any cases holding that the vendor 
may not by proper steps revive such right of forfeiture after 
default. [1] On the contrary, it is the law that where time 
is made the essence of the contract for the payment of money, 
and this covenant has been waived by acceptance of the in- 
stallments after they were due, and with knowledge of the 
facts, such conduct will be regarded as creating only a tempo- 
rary suspension of the right of forfeiture, which may be 
restored by giving a definite and specific notice of an in- 
tention to enforce it. (Stevinson v. Joy, supra; Boons v. 
Templeman, supra.) As was said in the latter case, "The 
simple act of receiving a payment after the date when the 
payee was bound to accept it, without more, is no excuse for 
laches as to future payments. The effect of the acceptance is 
exhausted upon the payment made, and as to those following, 
the provisions of the contract are left to operate with unim- 
paired force." This court, in Brown v. Pearson, supra, took 
note of this power, resting in a vendor to revive and restore 
the right to a forfeiture under contracts wherein time is made 
the essence thereof. In speaking of the notice given in that 
case the court said: "The utmost effect, under the foregoing 
rule [relating to waiver by accepting past due payments] 
which would be given to it would be that of a notification to 



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Sept. 1919.] Bisjiop v. Barndt. 155 

the vendees that the vendor intended thereafter to insist upon 
a strict compliance upon the terms of the contract; and, that 
unless within a reasonable time the vendees paid up their 
deficiencies and thereafter made their payments strictly in 
accordance with the time conditions of their contract, the 
forfeiture clause would be enforced." 

Appellant contends that she has complied with all the re- 
quirements of the rules laid down by the cases we have cited, 
in that ample notice of default and forfeiture was in fact 
given. She relies upon the notice contained in the letter of 
May 18th, sent by her attorney to the defendant Moon. This 
letter, as will be noted, was sent after the assignment from 
Barndt to Stick, and the execution of the separate contract 
between Stick and Miss Coward, and before plaintiff had 
knowledge of the latter's claim to an interest in the property. 
Appellant's first contention in this regard is that Moon was 
still the owner and holder of all the rights under the origi- 
nal contract, and that service of the notice upon him was 
sufficient within the application of the established rule. In 
making this contention she relies, first, upon the fact that the 
assignment by Mrs. Barndt was executed and delivered in 
blank, the name of John C. Stick, as assignee, having been 
inserted thereafter, and, for the law to sustain the proposi- 
tion, cites Arguello v. Bowrs, 67 Cal. 447, [8 Pac. 49]. In 
that case it was held that a deed, in which the name of the 
grantee was left blank by the grantor at the time of its exe- 
cution and afterward inserted without his authority, did not 
convey any interest, nor become sufficient to pass title because 
the grantee entered into possession and paid the purchase 
price. We have no such state of facts in the present case. 
Mrs. Barndt signed the assignment in blank, with the knowl- 
edge of the defendant Moon, the real party in interest, and 
he, in turn, delivered the contract to defendant Stick, who 
appears to have at all times conducted the entire transaction 
for and on his behalf. Thereafter, the name of Stick was 
written into the assignment with Moon's knowledge and con- 
sent, and apparently for the purpose of carrying out some 
arrangement between the two. Moon was estopped to deny 
that the assignment, as delivered to Stick, was valid, duly 
executed, and binding upon him (Dolbeer v. Livingston, 100 
Cal. 617, 621, [35 Pac. 328]), and appellant, who was not 
a party to the assignment, cannot complain. 



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156 Bishop v. Barndt. [43 Cal. App. 

Appellant's second point in support of her contention that 
the notice given to Moon was amply sufficient to revive her 
right of forfeiture, is that, notwithstanding the assignment 
by the latter to Stick, Moon was in reality the owner of all 
the rights conferred by the contract. This suggestion is en- 
titled to more serious consideration. The testimony bearing 
on this subject is neither full nor elucidating, and some of 
it is hearsay. But the only inference which can safely be 
drawn from the evidence is that appellant is correct in her 
contention. There is absolutely no showing to the contrary. 
Notwithstanding that the trial court found that defendants, 
Barndt and Moon, had no right or interest in the real prop* 
erty, we are fully satisfied from the statements made by Stick 
to plaintiff and the admissions contained in his letters to her 
and from the testimony of Moon that Stick and Moon were 
one in interest in the contract. Moon testified that Stick 
acted as his representative in dealing with Miss Coward. 

Appellant's contract bound her, on receiving the payments 
at the time and manner therein mentioned, to deliver a cer- 
tificate of title showing the property free from encumbrances, 
and execute and deliver to the buyer or her assigns a good 
and sufficient deed thereof. She contends, however, that de- 
fendant Coward was not an assignee of the contract, and in 
no way party thereto; that there was no privity between 
plaintiff and her, and that Miss Coward was not entitled to 
the notice to perform, and is not now in position to enforce 
the contract. Appellant is correct in this contention. While 
defendant Stick had an ostensible equitable interest in the 
land acquired by the assignment of the Barndt contract, 
which he had the right to contract to convey to Miss Coward 
(Rogers Dev. Co. v. Southern California etc. Inv. Co., 159 
Cal. 735, 739, [35 L. R. A. (N. S.) 543, 115 Pac. 934]), she 
was a stranger to the plaintiff. Her agreement with Stick 
was a separate and independent contract, without any refer* 
ence to the contract between plaintiff and Barndt, and plain- 
tiff was not required to take any notice of it. [2] Stick, 
by contracting to sell to Miss Coward, could not create a 
privity of contract or estate between her and plaintiff with- 
out assigning his interest, in whole or in part, under the 
original contract. Plaintiff, without such assignment, and 
notice of it, was entitled to stand upon her contract with her 
vendee regardless of any subcontract the latter might make. 



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Sept. 1919.] Bishop v. Baendt. 157 

The contract between defendant Stick and Miss Coward did 
not operate as an assignment of the contract between plain- 
tiff and Barndt. Miss Coward assumed no obligations under 
that agreement toward plaintiff so as to bring herself into 
privity with her. This being so, she acquired no rights under 
the contract, and, having no rights, consequently there was 
nothing to forfeit. [3] Her claim, however, operated as 
a cloud upon the title of plaintiff which she was entitled to 
have removed in this form of action. (Stratton v. California 
Land etc. Co., 86 Cal. 353, 360, [24 Pac. 1065].) 

[4] The notice served by plaintiff on defendant Moon 
was, in our opinion, under the disclosed facts of this case, 
sufficient to revive and restore all plaintiff's rights under her 
contract, and she is now entitled to stand upon its terms. 
[5] When she gave the defaulting vendees a reasonable time 
within which to pay the money due thereunder, they should 
have met the requirements of the notice. When they did 
not they forfeited all rights under the contract. Plaintiff 
is doing no more than to insist that under the terms of the 
contract defendants have no further rights thereunder, but 
have forfeited all such. Her action to quiet title amounted 
to no more than the calling of the defaulting vendees into 
court to show why it should not be decreed that, under the 
terms of the contract, all their rights thereunder were at an 
end. In the absence of some sufficient equitable showing to 
excuse their failure to comply with the terms of the contract, 
which defendants failed to make, the plaintiff was entitled to 
such decree. (Oursler v. Thatcher, 152 Cal. 739, 745, [93 
Pac. 1007].) Defendants were not entitled to the finding 
made by the trial court that the contract between plaintiff 
and Mrs. Barndt was still in force and effect. It is a find- 
ing against fact The finding that the contract made between 
defendants Stick and Miss Coward was still in force and effect 
is a finding on an immaterial issue. 

[6] Specific performance in this case was decreed upon 
the answer of defendant Coward. Even though she were 
in position to seek such relief, her answer does not state suffi- 
cient facts, for it is not alleged therein that the consideration 
to be paid plaintiff for the land is adequate, or that the 
Barndt contract is just and reasonable. (White v. Sage, 149 
Cal. 613, 614, [87 Pac. 193].) No evidence was received 
upon this subject, and there is no finding in regard to it. 



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158 Findley v. Lindsay. [43 Cal. App. 

A decree for specific performance cannot be supported in the 
absence of allegation and finding that the contract was just 
and reasonable, and the consideration adequate. (Civ. Code, 
sec. 3391; Gibbons v. Tosemite Lumber Co., 172 CaL 714, 
716, [158 Pac. 196].) 
The judgment is reversed. 

Richards, J., and Kerrigan, J., concurred. 



[Civ. No. 2980. First Appellate District, Division One. — September 4, 

1919.] 

M. W. FINDLEY et al., Respondents, v. LYCURGUS LIND- 
SAY, Appellant. 

[1] Pleading — Action on Note and Contract — Admission of Exe- 
cution and Default — Failure to Raise Material Issue. — 
Where, in an action on a promissory note and contract which called 
for the payment by the defendant to the plaintiffs of a stated 
sum as the purchase price of certain shares of the capital 
stock, the answer of the defendant admitted all the allegations 
of the complaint with respect to the purchase of said stock and 
the execution of the note and contract, but denied for want of 
information and belief an averment in the complaint to the effect 
that the trustee mentioned in the contract had assigned and 
transferred to the plaintiffs the note in question after the maker's 
default according to the terms and requirements of said contract, 
which assignment and transfer it was the duty of the said trustee 
pro forma to make upon the plaintiffs' demand after such default, 
according to the express agreement of the defendant in said con- 
tract, the default of the defendant not being denied, no material 
issue was presented. 

[2] Id.— Refusal of Leave to File Amended Answer — Discretion 
of Trial Court. — In such action the trial court committed no 
error or abuse of discretion in refusing defendant leave to file an 
amended answer at the time of trial, which was four months 
after his original answer was filed, where the affidavit offered in 
support of such motion presented no sufficient reason as an excuse 
for the defendant's delay in presenting his amended answer, and 
the proposed amended answer presented no sufficient averments 
of fraud in respect to the transaction in the course of which 
said note was executed by the defendant to constitute a defense 
thereto* 



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Sept. 1919.] Pindley v. Lindsay. 159 

[3] Id. — Frivolous Appeal — Penalty. — In this action, it being 
obvious that the whole procedure of the defendant bad been 
marked with a deliberate design to delay the operations of jus- 
tice in respect to the enforcement of his just and legal obliga- 
tion, the judgment was affirmed with an added penalty of five 
hundred dollars imposed upon the appellant for the taking and 
prosecution of a frivolous appeal. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. Leslie R. Hewitt, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

A. L. Abrahams, C. W. Pricke and W. I. Gilbert for 
Appellant. 

Edwin A. Meserve and Shirley E. Meserve for Respondents. 

RICHARDS, J. — This is an appeal from a judgment in 
favor of plaintiff in an action to recover the sum of fifteen 
thousand dollars with interest, attorneys' fees and costs, al- 
leged to be due upon a promissory note of the defendant. 

The only question presented upon this appeal is as to 
whether the trial court erred in denying the defendant's 
application to amend his answer at the time of the trial of 
the case. 

That this is one of the most flagrant instances of abuse of 
the processes of justice for purposes of delay and of a frivo- 
lous appeal which has come within our purview the following 
undisputed facts will show: The plaintiffs commenced this 
action on May 13, 1916, by filing their complaint upon a 
promissory note and contract which were set forth therein 
and which called for the payment to the plaintiffs of the sum 
of fifteen thousand dollars by the defendant as the purchase 
price of 1,287% shares of the capital stock of the Independent 
Sewer Pipe Company and four shares of the capital stock of 
the Pacific Tile and Terra Cotta Company. [1] On 
June 26, 1916, the defendant filed his answer herein admitting 
all the allegations of the complaint with respect to the 
purchase of the said stock and the execution of the note and 
contract, but denying for want of information and belief an 
averment in the complaint to the effect that the trustee men- 
tioned in the contract had assigned and transferred to the 



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160 Findlet v. Lindsay. [43 Cal. App. 

plaintiffs the note in question after the maker's default ac- 
cording to the terms and requirements of said contract, which 
assignment and transfer it was the duty of the said trustee 
pro forma to make upon the plaintiffs 9 demand after such 
default, according to the express agreement of the defendant 
in said contract. As the defendant's default was not denied 
it would seem that this sole denial of the defendant for want 
of information and belief did not present a material issue. 
The plaintiffs, nevertheless, moved the court on July 3, 1916, 
to set the cause for trial. The defendant appeared in opposi- 
tion to said motion by one of his attorneys of record, who 
announced in court that he intended to file an amended answer 
setting up fraud in the obtaining of said note. The court 
set the cause for trial on October 25, 1916, in order to allow the 
defendant ample time to prepare, serve, and file said amended 
answer if he so desired. A few days before the said date of 
trial an assistant in the office of an attorney, who was not one 
of the attorneys of record for said defendant, made an effort 
to have the trial of the cause further postponed on the ground 
that his principal expected to be employed to try the cause 
on behalf of the defendant. This effort was unsuccessful. 
On the morning of October 25, 1916, when the cause was called 
for trial, one of the attorneys of record for the defendant 
appeared to suggest that another of his attorneys of record 
could not be present, but had arranged with the above-men* 
tioned attorney who was not of record to try the cause, and 
the latter could not do so because he was engaged in a trial 
in another court. The court's attention was then called to the 
fact that said last-named absent attorney was not an attorney 
of record in the case, and furthermore that no amended 
answer had ever been served or filed. The attorney of record 
for the defendant who was then present in court, and who had 
previously announced the defendant's purpose to present such 
an amended answer, made no statement or offer indicating 
that the defendant intended or desired to amend his pleading, 
whereupon the court set the cause peremptorily for trial for 
the hour of 1 o'clock P. M. of said day. At said hour the 
aforesaid attorney not of record for the defendant was present 
to ask a further postponement of the case, which request the 
court refused to grant. The trial then proceeded, and after 
a witness for the plaintiff had been sworn, one of the attorneys 
of record appeared with an affidavit and amended answer of 



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Sept. 1919.] Pindlby v. Lindsay. 161 

the defendant which he then asked leave to file. The affidavit 
presents no sufficient reason whatever as an excuse for the 
defendant's delay in presenting his amended answer, and the 
amended answer presents no sufficient averments of fraud 
in respect to the transaction in the course of which said note 
was executed by the defendant to constitute a defense thereto. 
The court, after an examination of said affidavit and answer, 
refused permission to the defendant to file the same and 
ordered the trial to proceed. The defendant presented no 
evidence upon the further hearing of the case, and judgment 
accordingly went for the plaintiff for the recovery of the full 
amount due upon the note, with counsel fees and costs. 
The defendant appealed to the supreme court, the notice of 
appeal being filed on November 15, 1916. The appellant's 
opening brief was filed February 16, 1917. The respondents' 
brief, filed March 19, 1917, directed attention to the fore- 
going facts as disclosed by this record, and urged that the 
appeal was frivolous and taken for delay. No reply brief 
on behalf of the appellant has ever been filed. The cause 
was transferred to this court for hearing on May 19, 1919, 
and was set for argument on August 11, 1919. No appear- 
ance was made by appellant on said date, and the cause was 
submitted without argument for decision. 

[2] As to the merits of the ease it is obvious that the 
trial court committed no error or abuse of discretion in re- 
fusing defendant leave to file his belated and insufficient 
amended answer; and it appears to us equally obvious that 
the whole procedure of the defendant herein, from the time 
of his first appearance in the case down to the present mo- 
ment, has been marked with a deliberate design to delay the 
operations of justice in respect to the enforcement of his just 
and legal obligation, and to persist in and consummate such 
purpose by the taking and prosecution of a frivolous appeal. 

[3] The judgment is affirmed with the added penalty of 
five hundred dollars hereby imposed upon the appellant for 
the taking and prosecution of a frivolous appeal 

.Waste, P. J., and Bardin, J., pro tern., concurred. 

48 Oal. App.— u 



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162 Commercial S. Co. v. Modesto Drug Co. [43 Cal. App. 



[CIt. No. 1956. Third Appellate District.— September 5, 1919.] 

COMMERCIAL SECURITY COMPANY (a Corporation), 
Appellant, v. MODESTO DRUG COMPANY (a Corpo- 
ration), Respondent 

[1] Corporations — Instrumentality of Individual for Transaction 
of Business — Liability or Each for Act of Other. — Where it 
appears that a corporation is but the instrumentality through 
which an individual for convenience transacts a particular busi- 
ness, not only equity, looking through form to substance, but the 
law itself, will bold such corporation bound as the owner of the 
corporation might be bound, or conversely, hold the owner bound 
by acts which bound his corporation. 

[2] Id. — Creation or Obligation by Agent — Failure to Comply 
With By-law — Liability of Corporation. — Where an obligation 
ia created by the duly authorized agent of a corporation for such 
corporation, where most if not all of its capital stock is held and 
owned by one person, and the obligation is one the making of 
which is within the corporate powers of the corporation, and the 
act of making it is, therefore, not ultra vires, the corporation will 
be held bound to and liable for the proper execution of the terms 
of the obligation, notwithstanding it may be shown that the act 
of making the agreement was not in strict accord with the 
adopted rules or the by-laws of the corporation with respect to 
such matters. 

[3] Id. — Officer in General Control of Affairs — Powers Con- 
ferred by General Authority. — A corporation is an artificial 
person, and where it is organized for commercial purposes, its 
president or general manager, or whoever may be given immediate 
direction or control of its affairs is its agent, empowered, unless 
expressly restricted to the performance of certain specified acts, 
to do anything which naturally and ordinarily has to be done to 
carry out its paramount purposes; and where authority to do 
some particular act, which is included in the ordinary affairs of 
such corporation, is not specifically given to any particular officer, 
and the performance of which is not specifically inhibited to the 
person authorized to manage its affairs generally, the intention 
of the board of directors to confer upon the person or officer in 
whom is vested the immediate direction or control or management 
of the affairs of such corporation authority to perform such par- 
ticular act will be inferred from the general authority so given. 

[4] Id. — Ostensible Authority of Agent — Rights of Third Par- 
ties. — Where an officer of a corporation is held out to be pos- 
of power to perform all acts involved in its ordinary or 



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Sept 1919.] Commercial S. Co. v. Modesto Dbuo Co. 163 

usual business, the law will not permit third parties to suffer 
from such acts of such officer by the plea of the corporation that 
the ostensible authority of such officer was not in fact conferred 
upon him. 

[6] Id.— Acceptance of Benefits — Ratification— Estofpel.— -In this 
action on two promissory notes executed by the president and 
manager of the defendant corporation, the act of such corpora- 
tion in accepting the benefits of the agreement entered into by 
such president and manager amounted to a consent to all the 
obligations thereof and if, therefore, there was not thereby in law 
a ratification of the transaction, the corporation was, by its act 
of accepting the benefits of the obligation, estopped from denying 
the binding force thereof upon it. The legal effect of either 
ratification or estoppel in such a case is precisely the same. 

[6] Negotiable Instruments — Consideration Presumed from Writ- 
ing — Knowledge of Infirmity — When Innocent Purchaser 
Protected. — A written instrument is itself presumptive evidence 
of a consideration, and where there is not in the possession of the 
purchaser of a promissory note knowledge of any infirmity in the 
paper on the score of consideration, or of facts, which, when fol- 
lowed with reasonable diligence, would lead to the discovery of 
such infirmity, and no fraud in the transaction resulting in the 
execution of the note is shown or claimed, the purchaser, if he 
has exchanged value for the note, will be protected as an inno- 
cent purchaser for a consideration, and so may enforce payment 
thereof. 

[7] Corporations — Seal not Affixed — Want of Authority — Evi- 
dence. — The fact that the seal of the corporation was not affixed 
to the notes is neither conclusive evidence of a want of authority 
for the execution thereof for the corporation, nor a circumstance 
sufficient to create even a suspicion that the notes were wanting 
in a consideration, or that their consideration had failed at the 
time of their transfer to the plaintiff. 

[8] Id. — Effect of Seal — Proof of Authority by Parol. — Corpora- 
tions of all kinds may be bound by their contracts not under 
seal. The seal of a corporation itself performs no further or 
greater function than to import prima facie verity of the due 
execution by the corporation of written obligations. The fact 
that such contracts were duly authorised by the corporation may 
be shown by paroL 

5. Ratification of unauthorized contract entered into by officer 
by acceptance and retention of benefits, note, 7 A L. B, 1446. 

7. Effect of failure to affix seal to instrument executed by cor- 
poration, note, Ann. Cas. 19 15 A, 1064. 



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164 Commercial S. Co. v. Modesto Drtjo Co. [43 Cal. App. 

[9] Negotiable Instruments — Transfer by Bill of Sale — Notice 
or Infirmity. — The fact that the plaintiff took a bill of sale of 
the notes with a guaranty from the payee that they would be 
paid, in lieu of the customary indorsement in such a case, does 
not constitute a circumstance sufficiently significant to justify a 
suspicion that the notes were not all that they on their face pur- 
ported to be. Such may have been the uniform custom and policy 
of the plaintiff. 

[10] Id. — When Burden of Proof on Purchaser. — It is only where 
fraud or illegality in the inception of a promissory note is shown 
that the burden is upon the purchaser of such an obligation to 
prove that he purchased the note before maturity, in good faith, 
for value, in the usual course of business. 

APPEAL from a judgment of the Superior Court of 
Stanislaus County. L. W. Pulkerth, Judge. Reversed. 

The facts are stated in the opinion of the court. 

Scott Bex for Appellant. 

Hawkins & Hawkins for Respondent. 

HART, J. — Plaintiff, an Illinois corporation, brought the 
action against defendant, a California corporation, to recover 
judgment on two promissory notes, each for four hundred 
dollars, dated December 4, 1915, payable to the Partin Manu- 
facturing Company and alleged to have been duly indorsed 
and delivered by the payee to plaintiff prior to maturity. 
Judgment was in favor of defendant, from which judgment 
plaintiff prosecutes this appeal. 

The Modesto Drug Company was engaged in the retail drug 
business in the city of Modesto. The capital stock of the 
corporation, with the exception of one share, was owned 
equally by J. T. Skow and D. W. Morris. Mr. Skow was a 
pharmacist and was president of the defendant corporation. 
He was called as a witness for plaintiff and testified that he 
was manager of the business, discharged the general duties 
pertaining to the conduct of the business, bought and sold 
goods, and had charge of the advertising. 

In the fall of 1915 Skow had some negotiations with a 
representative of the Partin Manufacturing Company, of 
Memphis, Tennessee, and, on the 4th of December, 1915, a 
contract in the form of a letter addressed to the Partin 



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Sept 1919.] Commercial S. Co. v. Modesto Drug Co. 165 

Manufacturing Company was signed "Modesto Drug Co., 
Purchaser, by J. T. Skow," and also contained the signature 
of the salesman of the Partin Company. Portions of said 
contract are as follows: 

"Please ship to us at your earliest convenience by freight 
f . o. b. factory the following goods as described below : 

"Capital prize, 2 passenger roadster. The purchaser is to 
deliver to the winner in this trade campaign the winner's 
choice of the following automobiles: Partin-Palmer, Monroe, 
Chevrolet. . . . 

"Second prize, one ladies bracelet watch. . . . Third prize, 
one three piece French Ivory toilet set." Fourth and fifth 
prizes were named and ten dinner-sets. Advertising matter 
to be furnished by the Partin Company was specified. 

"(1) The undersigned purchaser warrants that his sales 
for the past twelve months were $20,000. On this warranty 
of sales, Partin Manufacturing Company hereby agrees to 
increase the purchaser's sales and collections not less than 
$12,500. in the next twelve months. Partin Mfg. Co. agrees 
to refund 6 cents on every dollar the purchaser falls short 
of the $12,500. increase and agrees to send their bond to 
purchaser's bank in the sum of $800. to guarantee this 
agreement guaranteed by some surety company or bank satis* 
factory to company. Partin Mfg. Co. reserves the right to 
increase the number of premiums, without cost to the pur- 
chaser, if in their opinion it is necessary to bring about the 
above guaranteed increase. Partin Mfg. Co. agrees to send 
a bank certificate of deposit to purchaser's bank for $400. 
to be held by purchaser's bank as a guaranty that Partin 
Mfg. Co. will deliver the automobile chosen by the winner in 
this campaign. Partin Mfg. Co. agrees to send a personal 
representative to assist in getting candidates and helping 
start this trade campaign." 

There followed stipulations on the part of the purchaser 
as to the receipt of goods, making reports, etc. "The at- 
tached notes are executed and tendered in settlement of this 
order, and Partin Mfg. Co. is authorized to detach the same 
on acceptance of this order." 

The notes in suit, attached to the above instrument, had been 
cut therefrom prior to the commencement of the action. The 
first note reads as follows: 



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166 Commercial S. Co. v. Modesto Drug Co. [43 Cal. App. 

"P.O. Modesto, Calif. 

4 'December 4, 1915. 
"$400.00 

"Five months after date for value received we promise 
to pay to the order of Partin Manufacturing Company In- 
corporated Four Hundred Dollars Union Savings 

Bank, Modesto, California. 

"Modesto Drug Co. 
"By J. T. Skow." 

(Eight cents revenue stamps attached.) 

The second note was identical with the first except that it 
was payable six months after date. 

Witness Skow testified that the representative of the Partin 
Company explained to him the methods by which the de- 
fendant's business was to be increased, consisting of adver- 
tising, voting contests for prizes, etc. 

The court found that the defendant did not execute or 
deliver to the Partin Manufacturing Company the notes in 
question or any promissory notes; that J. T. Skow made and 
delivered the notes in suit, but was not authorized by the 
Modesto Drug Company so to do and had no power or au- 
thority to execute them; that the Modesto Drug Company 
never at any time ratified the execution of said notes "and 
is not estopped from denying the execution of said written 
instruments by J. T. Skow"; that the consideration for said 
promissory notes and the contract above referred to has failed ; 
that the Partin Manufacturing Company did not ship at any 
time to the Modesto Drug Company any automobile or any of 
the other articles mentioned in said contract; "that the con- 
sideration for said obligation has fully failed"; that at the 
time plaintiff acquired said promissory notes "it had knowl- 
edge of facts sufficient to put it on guard and to require it 
to make inquiry as to the authority of J. T. Skow to execute 
said written instruments and as to the consideration given 
therefor." 

Appellant contends that the notes were the notes of the 
defendant corporation; that if they were executed without 
authority, the execution and the delivery of the notes were 
ratified by defendant, and that appellant is a bona fide pur- 
chaser of the notes. 

The by-laws of the defendant corporation were introduced 
in evidence. Article IV thereof provided: "The directors 



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Sept 1919.] Commercial S. Co. t». Modesto Drug Co. 167 

shall have power ... to incur indebtedness. . . . The terms 
and amount of such indebtedness shall be entered on the 
minutes of the board, and the note or obligation given for the 
same, signed officially by the president and secretary, shall 
be binding on the corporation. . . . The president . . . shall 
sign . . . all contracts and other instruments of writing which 
have been first approved by the board of directors.' ' 

On April 7, 1916, while the advertising and voting contest 
was still being carried on, Skow sold all his shares of the 
capital stock of the defendant corporation to Moms, who 
signed an instrument stating: "I do hereby agree to pay all 
of the outstanding bills and accounts of the Modesto Drug 
Company and to save and hold harmless the said J. T. Skow 
from all indebtedness now due or owing, including current 
bills, notes and notes for advertising." Witness Skow testi- 
fied that the words "notes for advertising" in said instrument 
referred to the notes in suit. 

On the same day Morris wrote the Partin Manufacturing 
Company the following letter: "I have purchased all the 
interest of J. T. Skow in the Modesto Drug Company, from 
which company you hold two notes. I have agreed with Mr. 
Skow to pay all notes due from the corporation and he de- 
sires me to let you know of this fact, and I hereby notify 
you that I will pay said notes." 

Skow testified that before he signed the notes he discussed 
the matter with Morris and that the latter said: "Well, if 
you think it is a good thing, go ahead." Morris denied hav- 
ing made this statement. 

The deposition of Roland A. Crandall, president of the 
plaintiff corporation, was read in evidence. He deposed that, 
in the month of January, 1916, he purchased for the plain- 
tiff, from the Partin Manufacturing Company, certain notes, 
including those in suit, paying therefor 92.71 per cent of their 
face value. 

D. W. Morris, called as a witness for the defendant, testi- 
fied that he and Skow owned, in an equal amount, all the 
shares of the stock of the defendant, except one share, which 
was in the name of a lawyer by the name of J. M. Walthall ; 
that Skow, who was president of defendant, was a pharma- 
cist by profession and had at all times active management 
of the business of the corporation, buying the goods and 
making all contracts for and on behalf of the defendant; 



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168 Commercial S. Co. v. Modesto Drug Co. [43 Cal. App. 

that he (Morris) spent practically all of his time in and about 
the store of the defendant and acted with Skow in an ad- 
visory capacity with respect to the business. Morris denied 
the statement of Skow that the latter, before the making of the 
contract with the Partin Company, discussed with him the 
proposition involving said contract, but admitted that Skow 
did tell him of the making of said contract the next day 
after it was entered into and executed. He further testified 
that the board of directors of defendant never held a meet- 
ing for the purpose of authorizing Skow to sign the notes; 
that the Partin Manufacturing Company did not furnish to 
the winner of the contest an automobile and that he (witness) 
gave the winner a check for $545 in lieu thereof; that one of 
the prizes, an ivory set, was so inferior that witness replaced 
it with another set taken from the stock in the store; that 
some of the sets of dishes were sent to the defendant; that 
the certificate of deposit and bond mentioned in the contract 
were never furnished by the Partin Company. On cross- 
examination Morris testified that he thought there was some 
delay on the part of the Partin Company in getting the 
advertising scheme started, but "the matter was in his 
(Skow's) hands. He had signed the contract with them and 
I paid very little attention to it. Q. In your conversation 
with Mr. Skow when this subject was under discussion, did 
he state to you or inform you in any way of the extent of 
the financial obligation that the company had incurred or 
was supposed to have incurred — that is, the amount of itt 
A. Yes, sir. Q. And so you knew that there was out- 
standing what was or what might be a financial obligation 
to this Partin Manufacturing Company to the extent of eight 
hundred dollars? A. Yes; he told me that at the time he 
signed the contract. ... Q. He did give you to understand 
that payment would have to be made in the course of a few 
months ? A. I suppose he did. He told me he had the time 
extended. He had had the contract changed. Q. Yes; the 
printed contract, he gave you to understand, had been changed 
at his instance? A. Yes. Q. Did he state to you or inform 
you at that time that the obligation was evidenced in the form 
of a note or notes? A. He told me that he had signed the 
notes." Morris testified that he addressed the following 
letter to the Partin Manufacturing Company, at Memphis 
Tenn., under date of January 12, 1916, and mailed the samr 



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Sept 1919.] Commercial S. Co. v. Modesto Drug Co. 169 

on said date: "Dear Sirs: We have not heard anything from 
you regarding the starting of the contest. We wish to get 
action on it as soon as possible, as some of our competitors 
have heard of what we are going to do. We have a tentative 
list of candidates ready for you." The said letter was 
signed, " Modesto Drug Co., by D. W. Morris." The witnecs 
said that the Partin Co. forwarded to defendant some of the 
prizes they agreed to provide it with, but that in quality they 
did not measure up to the agreement. He also testified that 
the company had sent one of its employees (a woman) to 
Modesto to assist Skow in prosecuting the contest; that that 
party accompanied Skow through the country about Modesto 
and assisted him in "stirring up" an enthusiastic interest 
among the people in the contest; that later a man by the 
name of Prindville was sent to Modesto by the Partin Com- 
pany to assist in making the contest a success, but that he 
remained in Modesto but a few hours. On the twenty-fifth 
day of April, 1916, a letter signed "Modesto Drug Co., by 
D. W. Morris," was addressed and mailed by Morris to the 
Partin Company, and in that letter Morris stated that "we 
have not had a word from you regarding the contest for a 
long time," and further said that "Mr. Skow, who is no 
longer connected with the Modesto Drug Co., and who has 
been actively engaged in the conduct of the campaign, informs 
us that he wrote you some three weeks ago that some action 
would be necessary to put some life into the campaign. The 
time is now getting short and some quick action is necessary. 
• . . Expecting to hear from you at once, we are," etc. To 
that letter, the Partin Company replied, by letter under date 
of May 14, 1916, and after therein acknowledging receipt of 
Morris' letter of April 25th and stating that "we note that 
you state that Mr. Skow is no longer connected with your 
firm," the letter proceeded, in part: "We would be glad to 
have you send the names and addresses of your candidates 
who are in the campaign and also let us know about how active 
each candidate is and we will be glad to write them a special 
letter. We would be glad to have you do a little personal 
work with your candidates and explain to them that the close 
of the campaign is drawing near and that someone must get 
busy and win this car. If you think that by offering a 
vacuum cleaner to the public at large — to the one estimating 
the nearest correct amount of the votes cast the last month in 



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170 Commercial S. Co. v. Modesto Drug Co. [4# Cal. App. 

your campaign, would help the campaign, we wil 1 be glad 
to express you one of these vacuum cleaners immediately. 
In the meantime, we hope your campaign will show a great 
improvement and we would like to hear from you by return 
mail." 

On further cross-examination, Morris repeated that, at the 
time he purchased Skow's stock in the defendant, he and 
Skow discussed between them the notes executed and de- 
livered to the Partin Company by the defendant or Skow. 
"Q. And it was in view of the existence of those two out- 
standing notes," counsel for the plaintiff asked Morris, "that 
at that time you executed and delivered to Mr. Skow those 
two papers which have been offered in evidence here this 
morning by me, marked plaintiff's exhibits 1 and 2, which 
your counsel showed you heret A. Yes." (The exhibits, 1 
and 2, referred to were the agreement between Skow and 
Morris setting forth the consideration and conditions for the 
sale of the former's stock to the latter and the letter written 
by Morris to the Partin Company, after said sale, informing 
said company that he had assumed liability for the payment 
of the notes in question.) 

The above statement of the testimony and of the undis- 
puted facts, to which may be added the further statement 
that it appears in the evidence that the increase of sales 
during the time the contest was in progress amounted to about 
two thousand five hundred dollars, is sufficient for the pur- 
poses of the consideration and decision of the points involved 
in this appeal. 

The learned trial judge, in deciding the case, filed a written 
opinion, which has been incorporated in the record here. 
Therein he based the decision of the controversy upon the 
grounds : 1. That the notes were not those of the defendant ; 
2. That there was a failure of consideration for the notes, 
and in this particular connection it is argued both in the 
judge's opinion and in the respondent's brief that the plain- 
tiff, at the time of purchasing the notes, had knowledge of 
facts sufficient to put it upon inquiry as to the consideration. 

The argument advanced in support of the proposition first 
above stated is that, since the notes were made and delivered 
by Skow without any formal action of the board of directors 
of the defendant authorizing the notes to be issued and de- 
livered or the contract upon which they were made and de- 



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Sept 1919.] Commercial S. Co. v. Modesto Drug Co. 171 

livered to be executed, the notes cannot be held to be legal 
obligations of the defendant. 

The evidence shows — indeed, it is admitted — that, at the 
time the transaction constituting the basis of this litigation 
took place, Skow and Moms were, practically, the defendant 
— that is, the corporation itself. They owned all the stock but 
one single share, which, as is often so with so-called "close 
corporations," was put in the name of attorney Walthall 
undoubtedly for the sole working purposes of the corporation. 
There can be absolutely no doubt that, when making the con- 
tract and the notes in question, Skow was not acting for him- 
self individually, except in so far as he was interested in the 
defendant as a stockholder, but was acting as agent of the 
defendant in his capacity as its president and manager. The 
sole purpose of the contract was, obviously, to build up or 
increase the volume of the business of the defendant and not 
to benefit a business in which he was interested other than as a 
stockholder in the defendant corporation. As a matter of fact, 
and to all practical intents and purposes, Skow and Morris 
were partners in the business of the defendant, although in 
legal contemplation they were, under the name of the defend- 
ant, a corporation. And the situation, in its legal aspect, was 
in no way changed by the act of Morris in purchasing the stock 
of Skow, except in the fact that Morris thus himself prac- 
tically became the corporation. The corporation was a mere 
instrumentality adopted originally by Skow and Morris, and 
perpetuated by the latter when he became the sole owner of 
all the stock therein, through which they could the more con- 
veniently transact their business. The defendant, as we have 
shown, received the benefits, whatever they were, flowing from 
the agreement in consideration of which the notes were given, 
and Morris was informed by Skow of the making of the agree- 
ment and of the terms thereof, according to his own testimony, 
the day following that upon which the agreement was made. 
He made no protest or objection against the agreement or the 
making thereof by Skow, and thus he approved and ratified 
the act of Skow, the president and manager of the defendant, 
in making the agreement. Here, then, we have a case where a 
party, serving in the dual capacity of president and manager 
of what well may be termed a " one-man M corporation, has 
made an agreement for and in behalf and in the name of the 
corporation, undoubtedly believing in good faith that in so 



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172 Commercial S. Co. v. Modesto Drug Co. [43 Cal. App. 

doing he was acting as the agent of said corporation, duly 
authorized to make such an agreement, and where said agree- 
ment or the act of making it has been tacitly, or by quies- 
cence, acquiesced in by a party who, with said president 
and manager, owns practically all the stock of the corporation, 
after he has been put in possession by said manager of knowl- 
edge of the making of the agreement and of its terms and 
object, and where the corporation has received certain of the 
benefits flowing from said agreement. The question may be 
asked: May a corporation, whose capital stock is entirely 
owned, practically, by two persons, one of whom, being in the 
active management of the business of such corporation, has 
made an agreement for the benefit of the corporation and the 
other of whom has virtually indorsed or by conduct ratified 
it, refuse performance of its obligations under the agreement ? 
Having received the benefits, or some of them, of an agree- 
ment obviously made for it and for its benefit (and ostensibly 
by it), with the consent and concurrence of the owners of 
substantially all its capital stock, will a corporation be per- 
mitted to dodge or escape liability for obligations arising upon 
such agreement by the plea that the contract was made with- 
out observance of the formal requisites or prerequisites pre- 
scribed by its charter or by-laws with respect to the making 
of contracts! The answer to these questions may be found 
in the principles of equity and justice applicable to such 
a case as we have here. Indeed, it would be deemed a hard 
rule or one of more than mere unsubstantial technical texture 
if the courts could not consistently break through it and so 
hold that a corporation is bound by a contract made under 
such circumstances as characterized the making of the contract 
in the present case. [1] But the books are replete with 
cases holding that where it appears that a corporation is but 
the instrumentality through which an individual for con- 
venience transacts a particular kind of business, "not only 
equity, looking through form to substance, but the law itself, 
would hold such a corporation bound (where contracts are 
made under its name under circumstances similar to those 
here) as the owner of the corporation might be bound, or, con- 
versely, hold the owner bound by acts which bound his 
corporation." (Llewellyn Iron Works v. Abbott Kinney Co., 
172 Cal. 210, 214, fl55 Pac. 986], and the many cases cited 
therein.) It is hardly necessary to do more herein than to 



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Sept 1919.] Commercial. S. Co. v. Modesto Drug Co. 173 

refer to the Llewellyn-Abbott case and the many cases cited 
therein as supporting that proposition. [2] It will suffice 
to say that in those cases it is held that where an obligation 
is created by the duly authorized agent of a corporation for 
such corporation, where most if not all of its capital stock 
is held and owned by one person, and the obligation is one 
the making of which is within the corporate powers of the 
corporation, and the act of making it is, therefore, not ultra 
vires, the corporation will be held bound to and liable for 
the proper execution of the terms of the obligation, notwith- 
standing that it may be shown that the act of making the 
agreement was not in strict accord with the adopted rules or 
the by-laws of the corporation with respect to such matters. 
But there is another rule, applicable to all corporations and 
which we think has application to the present case, which is 
stated in Stevens v. Selma Fruit Co., Inc., 18 Cal. App. 242, 
250, [123 Pac. 212, 215], as follows: 

" There is in the record before us no evidence from which 
it appears that any particular officer of the defendant was 
specifically authorized by the board of directors to execute 
promissory notes for and on its behalf. The very nature of 
commercial corporations, of which the defendant is a type, 
requires that the authority to transact their usual or ordi- 
nary business affairs shall be vested in some one or more 
persons. [3] A corporation is an artificial person, and 
where it is organized for commercial purposes its president 
or general manager or whoever may be given immediate 
direction or control of its affairs is its agent, empowered, 
unless expressly restricted to the performance of certain speci- 
fied acts, to do anything which naturally and ordinarily has 
to be done to carry out its paramount purposes; and where 
authority to do some particular act, which is included in the 
ordinary affairs of such a corporation, is not specifically 
given to any particular officer, and the performance of which 
is not specifically inhibited to the person authorized to manage 
its affairs generally, the intention of the board of directors to 
confer upon the person or officer in whom is vested the im- 
mediate direction or control or management of the affairs of 
such corporation authority to perform such particular act will 
be inferred from the general authority so given. [4] And 
where, as was clearly the case here, an officer of a corporation 
is held out by such corporation to be possessed of power to per- 



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174 Commercial S. Co. v. Modesto Drug Co. [43 Cal. App. 

form all acts involved in its ordinary or usual business, the law 
will not permit third parties to suffer from such acts of such 
officer by the plea of the corporation that the ostensible author- 
ity of such officer was not in fact conferred upon him. (Ifc- 
Kiernan v. Lemen, 56 Cal. 61 ; Phillips v. Campbell, 43 N. Y. 
271; Seeley v. San Jose Independent MUl & Lumber Co., 59 
Cal. 22, 24; Bank of Eealdsburg v. Bailhache, 65 Cal. 327, 
332, [4 Pac. 106] ; Jennings v. Bank of California, 79 Cal. 
323, 328, [12 Am. St. Rep. 145, 5 L. R. A. 233, 21 Pac. 
852] ; Oreig v. Riordan, 99 Cal. 316, 323, [33 Pac. 913] ; 
Bates v. Coronado Beach Co., 109 Cal. 160, 162, [41 Pac. 
855] ; Wells, Fargo & Co. v. Enright, 127 Cal. 669, 672, 
[49 L. R. A. 647, 60 Pac. 439] ; Siebe v. Bendy Machine 
Works, 86 Cal. 390, 392, [25 Pac. 14].)" 

In Brown v. Crown Gold Milling Co., 150 Cal. 376, 387, 
[89 Pac. 87], it is said: "The majority of the board having 
knowledge of the facts, it was not necessary, to conclude the 
company defendant in favor of plaintiff, that his employment 
should be ratified at a regular meeting of the board. It 
was sufficient that the majority of the board individually were 
advised of the terms of the employment of plaintiff by Mr. 
Doe, and took no measures to disaffirm as directors that em- 
ployment. (Pixley v. Western Pacific R. R. Co., 33 Cal. 184, 
186, [91 Am. Dec. 623] ; Crowley v. Genesee Milling Co., 55 
Cal. 273, 275; Gribble v. Columbus Brewing Co., 100 Cal. 
69, 72, 73, [34 Pac. 527] ; Scott v. Superior Sunset Oil Co., 
144 Cal. 140, [103 Am. St. Kep. 72, 77 Pac. 817].)" (See, 
also, Cyclops I. Works v. Chico Ice etc. Co., 34 Cal. App. 10, 
14etseq., [166 Pac. 821].) 

In Doerr v. Fandango Lumber Co., 31 Cal. App. 318, 325, 
[160 Pac. 406, 409], this court said: "Indeed, the proposition 
that ratification of a contract, the making of which is un- 
authorized by one of the principals, may be effectuated by a 
recognition, however informally, of the agreement and the 
obligations arising by virtue thereof, is elementary. A 
familiar and common application of this doctrine is to be 
found in those cases where an agent, in making a contract for 
his principal, transcends the scope of his authority as such, 
and the principal, after the contract has been made, although 
not at that time legally bound by its terms, does some act rec- 
ognizing the validity of the agreement — as, for instance, ac- 
cepting some of the benefits or assuming some of the burdens 



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Sept 1919.] Commercial S. Co, v. Modesto Drug Co. 175 

thereof. In such cases, quite obviously, the principal will 
be deemed from his acquiescence in the contract to have 
ratified the unauthorized act of his agent, and will be held 
to its terms and conditions, notwithstanding that he has not 
in express language or in a formal manner ratified the con- 
tract. The case here comes within the principle thus re- 
ferred to. The giving of the mortgage was not an ultra vires 
act, and there is no claim that it was. If the act involved 
the making of an invalid contract, it was, as shown, merely 
because of the manner in which it was attempted to perform 
the act or make the contract, and, like any other contract, it is 
capable of being ratified by conduct or a recognition in some 
manner of the obligation.' * 

Morris himself testified, as seen, that Skow was the presi- 
dent of the corporation and the manager of it and its busi- 
ness; that he (Morris) knew nothing of the drug business or 
of the profession of pharmacist, and that the entire manage- 
ment of the concern in all its aspects was in the hands of 
Skow, although he (Morris) was about the establishment 
much of the time and acted with Skow in an advisory capacity. 
Thus it is clear that the corporation was not only under the 
immediate control and management of Skow but that he was 
held out as such to the public, with authority to transact for 
the corporation all the usual and ordinary business matters 
coming within its purposes and objects. Certainly, it will 
not be denied that Skow possessed general authority to trans- 
act and carry out such business matters of the defendant as 
in his judgment would tend to increase the volume of the 
business of the corporation and thereby augment its income 
and profits. 

[5] It is not material to inquire whether the acceptance 
of benefits arising from an obligation, the making of which 
was in excess of the authority of the party receiving and ac- 
cepting such benefits, amounts to a ratification or has the 
effect merely of creating an estoppel whereby the acceptor will 
be precluded from setting up the plea of want of authority 
to make the obligation to relieve himself of the burden im- 
posed upon him by the obligation. The legal effect of either 
ratification or estoppel in such a case is precisely the same. 
Our Civil Code, section 1589, declares in effect that in such 
case there is a ratification. But, bo that as it may, if we 
were to be driven from the position in this case to which 



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176 Commercial S. Co. v. Modesto Drug Co. [43 Cal. App. 

the facts firmly affix as, viz., that the transaction culminating 
in the execution of the agreement and the notes concerned 
here represents practically the corporate act of the defendants, 
it being, admittedly, a transaction within the scope of its 
corporate powers, we would, nevertheless, find ourselves 
buttressed by unimpeachable reason in holding that the act 
of the defendant in accepting the benefits of the agreement 
amounted to a consent to all the obligations thereof and if, 
therefore, there was not thereby in law a ratification of the 
transaction, the defendant is, by its act of accepting the bene- 
fits of the obligation, estopped from denying the binding force 
thereof upon it. In other words, an estoppel by conduct, or 
in pais by reason of the conduct of the defendant in accepting 
the benefits of the agreement for which the notes were given, 
was raised against the right of the defendant to object to the 
enforcement of the notes on the ground that their execution 
and delivery had not been duly authorized by the defendant. 
(Curtin v. Salmon River etc. Co., 141 Cal. 308, 312, [99 Am. 
St. Rep. 75, 74 Pac. 851], and cases cited therein; and, also, 
Doerr v. Fandango Lumber Co., 31 Cal. App. 318, 324 et 
seq., [160 Pac 406] supra; McQuade v. Enterprise Brewing 
Co., 14 Cal. App. 315, 318, [111 Pac. 927] ; Standard Oil Co., 
v. Slye, 164 Cal. 435, 446, [129 Pac. 589].) 

We should now pay brief attention to the conduct of Morris 
with respect to the transaction involved herein at and after 
the time he purchased the stock of Skow, and thus practically 
became the sole owner of the corporation. We have shown 
that Morris admitted that Skow told him of the fact of enter- 
ing into the agreement and of the terms thereof the day fol- 
lowing that upon which the transaction was completed, and 
that Morris made no objection or protest of any kind against 
the transaction, being evidently accustomed to defer, as to 
such matters, to the judgment of Skow, who was the active 
manager of the defendant. We now again call attention to the 
conditions as set forth in their agreement, upon which the 
sale of Skow '8 stock to Morris was made. In that agreement, 
Morris expressly assumed liability for all the outstanding 
debts and obligations of the defendant, including the notes 
in question. Not only that, but he later addressed to the 
Partin Company a letter in which he stated that he had pur- 
chased Skow's stock and that he had assumed liability for the 
payment of the notes in suit. When that letter was written 



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Sept 1919.] Commercial S. Co. v. Modesto Drug Co. 177 

he was, as stated, the sole owner of practically all the stock 
of the defendant. Can it for a moment be doubted from all 
this that Morris expressly affirmed and confirmed, not alone 
for himself but for his corporation, the agreement made by 
Skow for the corporation and all its terms T He not only 
expressly recognized tbe agreement as a valid and legal one 
in all respects, but likewise assumed the obligations created 
thereby; and it would amount to a mere play upon words to 
construe the expressions contained in his letter to the Partin 
Company as evidencing an intention to recognize and confirm 
the agreement as anything other than what it purports to be, 
viz., the agreement of the defendant, made for and on its 
behalf for the sole benefit of its business. 

[6] The foregoing is a sufficient reply to the contention 
that the notes in suit were not supported by a consideration, 
although, so far as the plaintiff is concerned, it would be a 
matter of no consequence whether there was in point of fact 
a consideration supporting the notes, if it purchased the notes 
for value without knowledge of such want of consideration 
at the time of such purchase. A written instrument is itself 
presumptive evidence of a consideration (Civ. Code, sec. 
1614), and where there is not in the possession of a 
purchaser of a promissory note knowledge of any infirm- 
ity in the paper on the score of consideration, or of facts, 
which, when followed with reasonable diligence, would lead to 
the discovery of such infirmity, and no fraud in the trans- 
action resulting in the execution of the note is shown or 
claimed, the purchaser, if he has exchanged value for the note, 
will be protected as an innocent purchaser for a consideration, 
and so may enforce payment thereof. (Civ. Code, sec. 3122; 
Kum v. California Trona Co., 169 Cal. 348, [146 Pac. 883] , 
Pacific Portland Cement Co. v. Reinecke, 30 Cal. A pp. 501, 
[158 Pac. 1041] ; Heney v. Svtro, 28 Cal. App. 698, [153 
Pac. 972] ; Jones v. Evans, 6 Cal. App. 88, [91 Tac. 532] ; 
Eames v. Crosier, 101 Cal. 260, [35 Pac. 873].) 

But there is really no claim made that the notes in ques- 
tion were not executed and delivered to the Partin Company 
for a sufficient consideration. It is the contention, though, 
and the court so found, that there was a failure of considera- 
tion and that, when the plaintiff purchased the notes it had 
knowledge of facts sufficient to put it upon inquiry as to the 
consideration and thus have had disclosed to it not only that 

43 0*1. App. — is 



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] 78 Commercial S. Co. v. Modesto Drug Co, [43 CaL App. 

the consideration for the notes had failed but that the obli- 
gations were not those of the defendant corporation. The 
facts referred to are that the notes in question did not bear 
the corporate seal of the defendant, that Skow did not sign the 
contract by or under his official designation, and that the 
plaintiff, instead of taking the notes by the usual or customary 
indorsement in the case of the transfer of title to negotiable 
instruments, required a bill of sale of them, with a guaranty 
that they would be paid. The fact of the absence of the 
seal, it is contended, was sufficient to inspire in the plaintiff 
distrust as to the legal integrity of the obligations, and the 
circumstance last mentioned, it is said, negatives the theory 
that the plaintiff took the notes in good faith. These propo- 
sitions, for reasons to be given, are not important to the deci- 
sion of this case, but they are vigorously pressed, and we 
will briefly notice them. 

[7] We attach no significance to the fact that to the notes 
the seal of the defendant was not affixed. The fact is neither 
conclusive evidence of a want of authority for the execution 
of the notes for the corporation, nor a circumstance sufficient 
to create even a suspicion that the notes were wanting 
in a consideration or that their consideration had failed at 
the time of their transfer to the plaintiff. 

[8] It is now the rule, generally, if not universally, rec- 
ognized and followed throughout the American states as well 
as in England, that corporations of all kinds may be bound 
by their contracts, not under their seals. The rule in former 
times was (as the cases show) that a corporation could not 
express its will, or enter into a contract, except through an 
instrument under seal, executed by a duly constituted agent 
(Thompson on Corporations, 2d ed., sec. 1920.) The modern 
and by far the more sensible rule is, however, that the seal 
of a corporation itself performs no further or greater function 
than to impart prima facie verity of the due execution by the 
corporation of written obligations — that is, it merely stands as 
prima facie evidence that the contracts made by corporations 
were executed by their authority — and no longer is a seal 
held to be indispensable to the execution of valid contracts 
by corporations. It is a matter of common knowledz* that 
many contracts made by corporations and unattested t»y their 
seals are enforced. The books are full of such cases. Ti*e 
fact that such a contract was duly authorized by a corporatism 



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Sept 1919.] Commercial S. Co. v. Modesto Drug Co. 179 

may be shown by parol. There is, therefore, nothing in the 
fact that a contract purporting to be that of a corporation is 
not authenticated or attested by its seal which would neces- 
sarily justify even a suspicion that it was not executed by 
authority of the corporation. [9] Nor, in our opinion, does 
the fact that the plaintiff took a bill of sale of the notes with 
a guaranty from the Partin Company that they would be 
paid, in lieu of the customary indorsement in such a case, 
constitute a circumstance sufficiently significant to justify a 
suspicion that the notes were not all that they on their faee 
purported to be. We, therefore, do not concur in the view of 
the trial judge that that fact negatives the theory that the 
plaintiff took the notes "in due course of business before 
maturity for value and without notice.' ' The plaintiff, it 
appears, is in the business of buying negotiable paper, and 
it may be that it is its uniform custom and policy to require 
a bill of sale of notes purchased by it with a guaranty that 
the obligations are valid and will be paid. Indeed, one might 
acquire the ownership of such obligations without knowl- 
edge of whether the makers thereof were solvent and able 
to meet them, and in such case it would only be good business 
judgment to demand a guaranty or some protection against 
loss in case they proved worthless obligations for any reason. 
We do not know what actuated the plaintiff in thus forti- 
fying itself against loss in the transaction, but we think it 
clear that that circumstance itself was not such as to indicate 
that the plaintiff was not an innocent purchaser of the notes 
for value. 

But, as above stated, the matter just considered we do not 
deem of any particular consequence, so far as the decision here 
is concerned. The proposition that the notes were not those 
of the defendant we disposed of in the outset of this dis- 
cussion and nothing further need be said of it, although we 
may well add to what we have already said on that question 
that, even if the plaintiff had made an inquiry into the ques- 
tion of the validity of the notes the result would only have 
been to discover that Skow was the president and the manager 
of the defendant; that, acting as such, he made the agree- 
ment and the notes for defendant and for the sole benefit of 
its business, and that the agreement and the obligations aris- 
ing thereupon against the defendant were approved by Morris, 
who, with Skow, owned practically the entire capital stock 



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180 Commercial S. Co. v. Modesto Drug Co. [43 Cal. App. 

of the defendant; that the defendant's business increased to 
some extent in volume as a result of the action of the Partin 
Company under the agreement. Knowledge of these facts by 
the plaintiff, when it bought the notes, would not, of course, 
have made it any the less an innocent purchaser for value. 

With regard to the matter of the alleged failure of consid- 
eration, as to which it is claimed that the plaintiff, when it 
bought the notes, had knowledge of facts sufficient to put it 
upon inquiry to ascertain whether the consideration had then 
failed, it is to be said that there is no evidence in the record 
showing or tending to show that there was such failure. 

The evidence, without conflict, shows that the plaintiff 
purchased and became the owner of the notes before their 
maturity, and before the contract between the defendant and 
the Partin Company had been completed. In other words, 
the plaintiff bought the notes before the purpose of the agree- 
ment was accomplished and while the steps essential to the 
accomplishment of that purpose were still in progress. If, 
then, there was a failure of consideration for the notes, it was, 
of course, in the failure of the Partin Company to comply 
with the terms of the contract between it and the defendant, 
and, therefore, such failure of consideration occurred, if at 
all, long after the plaintiff became the owner of the notes. 
The correspondence between Morris and the Partin Company, 
in which the former complained to the latter of its inertness 
in the matter of prosecuting the prize contest, took place sub- 
sequently to the time at which the plaintiff bought the notes. 
In brief, as above stated, the contract, in consideration of 
which the notes were issued, was still in process of execution 
on the part of the Partin Company at the time the plaintiff 
purchased the notes, and there was not then nor could there 
have been, either a total or even partial failure of considera- 
tion. Of this fact it may be that the plaintiff was aware at 
the time it bought the notes, but if it was without knowledge 
of the fact and for any reason had prosecuted an investi- 
gation to determine the legal status of the notes, it would 
thus have readily learned that fact and still have learned 
no valid reason why it should not have purchased the notes 
and acquired title thereto by the transfer free from any 
infirmity, so far as consideration was concerned. 

The cases cited by respondent, of which there are many, we 
have examined and found to be very different from this case 



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Sept 1919.] Commercial S. Co. v. Modesto Drug Co. 181 

as to the facta. For instance, in the case of Bums v. Bauer, 
37 Cal. App. 251, [174 Pac. 346], fraud was charged, proved, 
and found as characterizing the very transaction eventuating 
in the execution and delivery of the note sued on therein; 
and not only was that true, but the court found upon ample 
evidence that the plaintiff, a lawyer, who was the assignee 
of the note, was familiar with facts extrinsic to the note itself 
which were of a most suspicious character and which, if 
followed up with reasonable diligence, would have disclosed 
that the note was procured by the corporation to which it 
was given through false and fraudulent representations. In 
fact, it was found that the attorney for the plaintiff was the 
secretary of the corporation in whose favor the note was exe- 
cuted at the time the note was procured, and it was further 
found that plaintiff, while making inquiry as to the ability 
of the maker to pay the note (and it was also found by the 
court that the maker was amply able to pay it), made no 
inquiry as to whether said note was valid. [10] And, in 
this connection, we may add, though we conceive it to be of 
no special importance in view of the views of the transaction 
involved herein we have expressed, that it is only where fraud 
or illegality in the inception of a promissory note is shown 
that the burden is upon the purchaser of such an obligation to 
prove that he purchased the note before maturity, in good 
faith, for value, in the usual course of business. The rule, 
indeed, applies to a case only where there has been an illegal 
consideration and not where there has been a valid considera- 
tion and it has failed. This is clearly shown by the reason 
upon which the rule proceeds, as it is formulated by the 
authorities, viz.: "The presumption is (in case of fraud or 
duress, etc., in the procurement of the note) that he who has 
been guilty will part with the note for the purpose of enabling 
some third party to recover upon it for his benefit ; and such 
presumption operates against the holder, and it devolves upon 
him to show that he gave value for it. So where the note was 
given for a distinctly illegal consideration.' ' (Parsons on 
Notes and Bills, 188, 189; Graham v. Larimer, 83 Cal. 173, 
178, [23 Pac. 286] ; Jordan v. Grover, 99 Cal. 194, 195, [33 
Pac. 889] ; Bailey v. Bid well, 13 Mees. & W. 73, 32 Eug. 
L. & Eq. 134.) 

It is, of course, clear that this case does not come within 
the above-coasidoreu rule. Here, as the evidence indisputably 



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182 North Pac. S. S. Co. v. Terminal Inv. Co. [43 Cal. App. 

shows, and, indeed, as is in effect conceded to be the fact, 
the notes involved were not procured by fraud or duress or 
without a valid consideration. It is also clear, as we have 
pointed out, that the plaintiff acquired ownership of the 
notes for value before their maturity and before there could 
have been a failure of the consideration for which they were 
given. 

We conclude, upon the record before us, that to deny the 
right of plaintiff to recover upon these notes would mean a 
failure of justice. 

The judgment is, therefore, reversed and the cause r» 
mandecL 

Chipman, P. J., and Burnett, J., concurred. 



[Civ. Nos. 2954 and 2961. First Appellate District, Division One.— 
September 5, 1919.] 

NORTH PACIFIC STEAMSHIP COMPANY (a Corpo- 
ration), Appellant, v. TERMINAL INVESTMENT 
COMPANY (a Corporation), Respondent. 

[1] Landlord and Tenant — Deprivation or Enjoyment of Substan- 
tial Portion o» Demised Premises — Construction of Findings. 
In this action by a tenant to have a lease declared rescinded, the 
effect of the finding of the trial court "that plaintiff has nut suf- 
fered, or sustained, any material or substantial damage in any 
amount of money, or thing whatever, by reason of all, or any, of 
the acts complained of by plaintiff, and found by the court to 
have been done by defendant," when read with the finding as to 
the acts done, or suffered to be done, by the defendant, was that 
plaintiff was not deprived of a substantial as distinguished from 
an insignificant or inconsequential portion of the demised premises, 
or, in other words, deprived of the beneficial enjoyment of a sub- 
stantial portion thereof. 

[2] Id.— Necessity fob Actual Ouster — When Bulb Inapplicable. 
Where the lessee is not deprived of the beneficial enjoyment of a 
sul^luutial portion of the leased premises, the rule that "it is not 
necessary that there should be an actual ouster, to constitute an 
eviction, for any act of the lessor which results in depriving the 
lessee of the beneficial enjoyment of the premises will constitute 
an eviction," does not apply. 



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Sept 1919.] North Pac. Si S. Co. v. Terminal In v. Co. 183 

(3J Id. — Obstruction of Passageway by Other Tenants — Trespass. 
In this action by a tenant to have a lease declared rescinded, the 
act* of defendant's tenants, who occupied the adjoining premises, 
in obstructing the passageway, or "open space," leading to plain- 
tiff's premises by banging and displaying therein a cafe lunch- 
sign, two feet wide, and about six feet in height, during certain 
hours of the day, amounted to no more than a mere trespass. 

[4] Id. — Trespass not Breach of Covenant. — No acts of molestation, 
even if committed by the landlord himself, or by a servant at his 
command, amount to a breach of the covenant of quiet enjoyment 
and possession, unless they are more than a trespass. 

[5] Id. — Passing Trespass — Eviction. — A mere passing trespass can- 
not operate to so oust a tenant of his possession as to amount to 
an eviction or a dispossession. 

[6] Id. — Inducement for Making Lease — Obstruction of -Passage- 
way — Findings not Inconsistent. — In this action by a tenant to 
have the lease declared rescinded, the findings of the trial court 
to the effect that the continued existence of the passageway, or 
"open space," leading to the leased premises was a material part 
of the consideration for the obligation of plaintiff under said 
lease, and constituted a material inducement to plaintiff to enter 
into the same, and that the obstruction of such passageway for a 
period of not exceeding twenty-one days did not work a failure 
of any material or substantial part of the consideration to plain- 
tiff for its lease, and that plaintiff had sustained no substantial 
or material injury or damage by reason of the obstruction, or by 
reason of any of the acts complained of, were not inconsistent 
and contradictory. 

[7] Id. — Rescission — Revival by Lessor. — The principle of law that 
after the lessee has determined to rescind the contract, and given 
notice to the lessor that the lease is ended by reason of the lat- 
ter^ failure to comply with its terms, the termination of the lease 
is complete, and the lessor cannot thereafter by any act of its 
alone renew the lease by removing the cause of the alleged evic- 
tion by the lessor, is applicable only where the lessee has good 
cause for rescission. 

[8] Id. — Eviction— Right of Rescission.— An eviction must be estab- 
lished before the right of rescission of the lease springs into 
being. 

[9] Id. — Waot of Eviction — Abatement of Trespass — Evidence.-— 
In this action by a tenant to have a lease declared rescinded, the 
trial court having found that an eviction had not occurred by 

3. Constructive eviction resulting from positive overt act of 
landlord, potes, 7 Ann. Cas. 593; 19 Ann. Cas. 690; 7A.L.&, 1103. 



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184 North P*aS.S. Co. v. Terminal Inv. Co. [43Cal. App. 

reason of tho sets of trespass committed by the other tenants, 
was right in permitting the defendant to show the circumstances 
nnder which the trespass was abated. 

APPEALS from a judgment of the Superior Court of the 
City and County of San Francisco and from an order denying 
a motion for an order vacating and setting aside said judg- 
ment George £. Crothers, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

Aitken, Olensor & Clewe and Aitken, Glensor, Clewe ft 
Van Dine for Appellant 

J. P. Langhorne for Respondent 

WASTE, P. J.— This action was brought by plaintiff, the 
tenant, to have a lease declared rescinded, because it claimed 
to be deprived of a material part of the consideration, which 
had failed, so it is alleged, through the fault of the lessor. 
Judgment was entered for the defendant. There are two 
appeals, one (No. 2954) from the order denying plaintiff's 
motion to vacate the judgment, and the other (No. 2961) an 
appeal from the judgment. By stipulation, the appeals are 
considered together. 

Defendant's assignor leased to plaintiff the premises, No. 
60 Market Street, San Francisco, to be used as a ticket-office, 
for the term of eight years and eight months, commencing 
July 1, 1913, and ending February 28, 1922. At the time the 
negotiations for the lease were begun, a dividing wall of the 
building between the leased premises and a cafe and cigar- 
stand, occupying No. 48 Market Street, immediately adjoin- 
ing, extended to a column at the street line. Before taking 
the lease, plaintiff insisted that the entrance be changed by 
cutting out two feet of this dividing wall next to the column 
from floor to ceiling, so that there would be two entrances, 
or vestibules, at No. 50 Market Street — one opening directly 
on Market Street, as before, and a new one opening into and 
across the adjoining premises, occupied by the cigar-stand. 
The lessor acceded to these requirements, and the change was 
made. The purpose of plaintiff in obtaining the second en- 
trance was to gain tho advantage of having its premises, dis- 
plays, and advertising matter more readily seen by passers-by. 



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Sept 1919.] North Pao. S. S. Co. v. Terminal Inv. Co. 185 

Plaintiff alleged, as ground for rescission, that defendant 
caused and permitted the tenant of the adjoining premises, 
No. 48 Market Street, to obstruct this passageway, or "open 
space," by hanging and displaying therein a cafe lunch-sign, 
two feet wide, and about six feet in height, during certain 
hours of the day. It claimed that by reason of such obstruc- 
tion the consideration for its obligation under the lease failed 
in a material respect 

It was testified to by witnesses on behalf of plaintiff that 
on account of the position of the open passageway formed 
by the alteration the door and a window of the premises being 
thereby placed in better view of and more easily seen by 
people walking out Market Street from the ferry, this passage- 
way and the view of the place thus gained through the open 
space were much more important in plaintiff's estimation than 
the regular entrance on Market Street and the Market Street 
windows. It was because of its advertising value that plain- 
tiff insisted on having the vestibule made. 

On January 28, 1918, plaintiff, with the consent of de- 
fendant, sublet the premises to be used as a photographic 
gallery, with the understanding that if the business was not 
a success, the subtenants might move out. When the sub- 
tenants inspected the premises before renting, there was no 
obstruction of the passageway. When it appeared on the first 
day of their tenancy, the photographic people complained to 
plaintiff because of its being there. Plaintiff requested de- 
fendant to remove the sign. Defendant did not do so, and 
after a few days the subtenant, complaining that the sign, 
when in position, rendered their premises dark, and deprived 
them of their advertising space, demanded of plaintiff the 
return of the rent that had been paid by them, and on its 
being refunded, they moved out. 

The trial court found that the continued existence of said 
open space, and said right of way, and unobstructed view 
by passers-by, through and across said space, and of said 
portion of the corridor was and were a material part of the 
consideration for the obligation of plaintiff under said 
lease, and constituted a material inducement to plaintiff to 
enter into the same; that plaintiff would not have entered into 
the lease had it not included the right of such unobstructed 
view through and across said open space. It further found 
that the obstruction in the open space complained of by 



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186 North Pao. S. S. Co. v. Terminal Inv. Co. [43 Cal. Appt 

plaintiff, and which consisted of a sign, advertising the lunch 
in the caf6 at No. 48 Market Street, was placed by the sub- 
tenant of defendant within the interior boundaries of tha 
vestibule and entrance from Market Street to the catt; that 
the sign which was first placed in that position on the twenty- 
fifth day of January, 1918, was only maintained over and 
across the open space from about 11 o'clock to 2 P. M. of each 
day; that the sign was placed across the open space without 
the knowledge or consent of defendant, which had no knowl- 
edge of the fact until the fifth day of February, 1918, when 
plaintiff first complained to defendant about the matter; 
that defendant at first declined to take any action in the 
matter, but upon further investigation on the fifteenth day of 
February, 1918, caused the caf6 people to remove the sign 
from the passageway, and thereafter it was kept entirely free 
from any obstruction whatever, and that plaintiff was fully 
notified that the obstruction had been removed from the open 
space, and that same was unobstructed. 

Two days before receiving this notification, however, plain- 
tiff had delivered its notice of rescission. 

The court further found that the obstruction of the open 
passageway for a period not exceeding twenty-one days did 
not work a failure of any material or substantial part of the 
consideration to plaintiff for its lease, and that plaintiff had 
sustained no substantial or material injury or damage by 
reason of the obstruction, or by reason of any of the acts 
complained of. Judgment in favor of the defendant followed. 

In explanation of its action in first declining to take steps 
to have the offending caf6 sign removed from the passage- 
way, after complaint made by plaintiff, the defendant, before 
plaintiff served its notice of rescission, took the ground that 
the opening in the partition wall was made after plaintiff 
took possession. After notice of rescission was served, and 
after investigating and finding that the opening existed at 
the time the lease to plaintiff was made, it took steps to cause 
its tenant at No. 48 Market Street to remove the sign com- 
plained of. It so notified plaintiff, and refused to rescind 
the lease or accept surrender or possession of the premises. 

In support of the finding that no material or substantial part 
of th<* consideration to plaintiff failed, because of the obstruc- 
tion of the open space by the cafe sijjn, respondent first points 
out that the lease was for a period of eight years and eight 



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6ept 1919.] North Pac. S. S. Co. v. Terminal Inv. Co. 187 

months, and the obstruction continued but a portion of the 
day for about twenty-one days, being promptly removed 
after defendant had opportunity to look into the matter. Re- 
spondent in the next place relies upon the evidence intro- 
duced at the hearing, consisting of a number of photographs 
and diagrams, the testimony of a number of witnesses, and 
the view of the premises had by the court during the trial. 
While there was evidence on the part of plaintiff that but for 
the construction of the passageway leading into the vestibule 
at No. 48 Market Street, plaintiff would not have leased the 
premises, and that the existence of such passageway was of 
material benefit in the way of giving better light to the store, 
and affording a more open view of the place by pedestrians 
approaching from the east along Market Street, there was a 
strong counter-showing that the passageway in the east wall, 
two feet wide, afforded but little light, sight, and passageway 
into the place ; that obstruction of this open space would only 
interfere with the view of persons coming from the east along 
Market Street, into a very small window, and the door of the 
store, until such time as they had passed the column on the 
edge of the sidewalk before referred to; that the space was 
too small for an entrance and was rarely used as such; that 
in addition to the small window and the door there are three 
other windows, one quite large, giving ample light and sight 
into the premises, and that the original vestibule to the store 
is five feet wide, ample for the purposes for which it was and 
is intended, and has always been used for the main entrance. 
Furthermore, before the place was occupied by the tenants, 
who moved out on account of the alleged injury caused by the 
display of the caf6 sign, the premises had been empty for 
some time, and it was while the store was vacant that the 
caf6 people first put up the lunch-sign on a board hung on 
hooks in the passageway. On the evidence, therefore, the 
lower court was justified in finding as it did that no material 
injury was done to plaintiff. 

Appellant's chief contention is that the amply supported 
findings of the lower court to the effect that the existence 
of the open passage was a material inducement in the matter 
of the lease of the premises, and the other finding that by 
reason of the obstruction of the same passage in the manner 
complained of, plaintiff suffered no material detriment, are 



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188 North Pao. S. S. Co. v. Terminal Inv. Co. [43 Cal. App. 

diametrically opposed and so fatally inconsistent as to require 
a reversal of the judgment. 

There can be no quarrel with appellant's statement of the 
law applying generally to the right of rescission in cases of 
contracts induced through fraud, mistake, and false repre- 
sentations. Those principles are not applicable to the case 
in hand. We cannot find that either fraud, mistake, or false 
representations entered into the inducements which led plain- 
tiff to enter into the contract. The covenant on the part of 
the lessor, which, if not expressed in the lease, was implied, 
was that plaintiff should have the quiet enjoyment and posses- 
sion of the premises during the continuance of the term. ( Civ. 
Code, sec. 1927; McDowell v. Hyman, 117 Cal. 67, 70, [48 Pac. 
984].) The act complained of, therefore, arises out of the 
interference by defendant with the enjoyment by plaintiff 
of the open space or passage under circumstances amounting, 
so appellant contends, to a forcible eviction from the premises. 

[1] While the trial court has not found in so many words 
that there was no eviction from a substantial portion of the 
demised premises, it did find "that plaintiff has not suffered, 
or sustained, any material or substantial damage in any 
amount of money, or thing whatever, by reason of all, or any, 
of the acts complained of by plaintiff, and found by the 
court to have been done, or suffered to be done by defendant." 
This finding must be read with the other finding that defend- 
ant did not "fail or refuse to maintain said open space, and 
to allow plaintiff to have said right of way, and said unob- 
structed view through and across said open space, and said 
portion of said corridor, or allow said open space to be closed 
or obstructed to a height of more than six feet, or to any 
height or at all, or at any time, during the business, or other 
hours of each day," except "that such caf6 sign was so placed 
by Mollenhauer & Co., on or about the 25th day of January, 
1918, and was only placed and kept over and across said open 
space from about 11 o'clock A. M. until about 2 P. M. of each 
day," until "on said 15th day of February, 1918, said Mollen- 
hauer & Co. did remove its caf6 sign from said" open space 
"and did leave the same entirely free from any obstruction 
whatever." When so read together, we are of the opinion 
that the effect of the findings must be that plaintiff was not 
deprived of a substantial as distinguished from an insignifi- 
cant or inconsequential portion of the demised premises, or, in 



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Bept. 1919.] Nobth Pag. S. S. Co. u Terminal Inv. Co. 189 

other words, deprived of the beneficial enjoyment of a sub- 
stantial portion thereof. [2] If it was not, the rule that 
"it is not necessary that there should be an actual ouster, to 
constitute an eviction, for any act of the lessor which results 
in depriving the lessee of the beneficial enjoyment of the 
premises will constitute an eviction 1 ' (Agar v. Winslow, 123 
Cal. 587, 593, [69 Am. St. Rep. 84, 56 Pac. 422] ; Skaggs v. 
Emerson, 50 CaL 9) does not apply. (Kelly v. Lang, 18 Cal. 
App. 159, 163, [122 Pac. 832].) 

[3] If the interference with plaintiff's possession was no 
more serious than the findings indicate (and the sufficiency 
of the evidence to justify the findings is well established in 
our minds), the act of defendant's tenant can amount to no 
more than a mere trespass. [4] And it is the settled rule 
that no acts of " molestation, even if committed by the land- 
lord himself, or by a servant at his command, amount to a 
breach of the covenant, unless they are more than a trespass." 
(Taylor's Landlord and Tenant, 9th ed., sec. 309.) The de- 
fendant at all times during its long lease enjoyed possession 
and occupancy of these premises, including the use of the open 
space in the dividing wall, except for the trifling period 
during which it was interfered with by the act of defendant's 
tenant in displaying the caf£ sign during lunch hours. 

"It most certainly cannot be justly said that this act 
amounted to an eviction of the defendant from a substantial 
portion of the demised premises, and should, therefore, oper- 
ate as a suspension or extinguishment of the rent. (Taylor's 
Landlord and Tenant, sec. 309; Ogilvie v. Bull, 5 Hill 
(N. Y.), 54.) [5] A mere passing trespass cannot operate 
to so oust a tenant of his possession as to amount to an evic- 
tion or a dispossession." (Kelly v. Long, supra.) 

[6] The two findings of the lower court, therefore, are 
not inconsistent and contradictory. While the quiet enjoy- 
ment and use of the passageway may have been an induce- 
ment to plaintiff to enter into the lease, the act of defend- 
ant, as found by the court, was a mere trespass, which did 
not constitute such a breach of the implied warranty of the 
lease as to work a failure of consideration, or amount to an 
ouster or eviction from any substantial portion of the prem- 
ises, causing plaintiff material injury or loss. (McCormick v. 
Potter, 147 111. App. 4S7, 491 ; Vass v. Sylvester, 203 Mass. 
233, 240, [89 N. E. 241] ; French v. PetUngUl, 128 Mo. App. 



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190 North Pao.S.S. Co. v. Terminal Inv. Co. [43Cal. App. 

156, 161, [106 8. W. 575] ; Wilkes-Barre Realty Co. v. Levy, 
114 N. Y. Supp. 713.) 

[7] Plaintiff first complained to defendant about the 
offending sign on February 5th. Defendant on the next day 
declined to act, on the ground that the opening in the wall 
had been made after the lease entered into by plaintiff, and 
for the benefit of the tenant occupying No. 48 Market Street. 
On further investigation it caused the sign to be removed on 
February 15th, and on the 16th so notified the plaintiff, who 
had served its notice of rescission on the 14th. Appellant 
contends, therefore, that any act of the defendant, after notice 
of rescission given, was ineffectual to revive a lease thereto- 
fore rescinded by one of the parties. It contends that as it 
had determined to rescind the contract, and had given notice 
to defendant that the lease was ended by reason of its failure 
to comply with its terms, the termination of the lease was 
complete, and defendant could not by any act on its part 
alone renew the lease by taking away the sign and thus re- 
moving the cause of the alleged eviction. Undoubtedly such 
principle of law is applicable in cases in which the ouster or 
eviction is established. An examination of those cases, how- 
ever, will disclose that under the facts of each the lessee or 
tenant had good cause for rescission. Such was the holding 
in McCall v. New York Life Ins. Co., 201 Mass. 223, [21 
L. R. A. (N. S.) 38, 87 N. E. 582, 584], cited by appellant. 
There the lease was for the entire fourth floor of a building 
for a term of five years. The landlord agreed to keep the 
elevators in the building in repair and running. During the 
first year of the tenancy the elevators caused trouble. The 
evidence showed that they stopped at all hours of the busi- 
ness day, and remained so for from fifteen minutes to one- 
half of the day, sometimes at the top and sometimes between 
floors, holding the passengers imprisoned and unable to get 
out. The tenant abandoned the premises and moved out. 
The landlord sued for rent, claiming under the written lease. 
The tenant defended on the ground that he had been evicted. 
The court found that the faulty elevator service rendered the 
building practically unfit for the defendant's business. In 
approving judgment for the defendant, on appeal, the court 
said: "Findings would have shown an eviction at the election 
of the lessee, and it might rightfully abandon the premises 
and decline to pay further rent. (Citing cases.) Since the 



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Sept 1919.] Oakland v. Albers Bros. Milling Co. 191 

** i .ii m 

tenant was evicted by the landlord he is not obliged to return, 
even if the cause of the eviction be removed; and no right 
to rent exists except upon a voluntary return of the tenant.' ' 

[8] This case well illustrates the distinction between the 
cases relied on by appellant, and the cases already cited by us, 
which hold that an eviction must be established before the 
right to a rescission of the lease springs into being. 

[9] The trial court, in this case, having found against the 
plea of the plaintiff, that an eviction had occurred, was right 
in permitting the defendant to show the circumstances under 
which the trespass was abated. 

The order by which the lower court denied plaintiff's 
motion for an order vacating and setting aside the judgment 
therein, and entering another and different judgment (No. 
2954) is affirmed. 

The judgment appealed from (No. 2961) is affirmed. 

Eichards, J., and Bardin, J., pro tern., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied 
by the supreme court on November 3, 1919. 

All the Justices concurred. 



[Cfv. No. 8985. First Appellate District, Division One.— September 5, 

1919.] 

CITY OF OAKLAND (a Municipal Corporation), Appellant, 
v. ALBERS BROS. MILLING CO. (a Corporation), Re- 
spondent. 

[1] Taxation— Leas* of Lands from City — Construction of Im- 
provements — Ownershif — Exemption from Taxation. — Improve- 
ments constructed in accordance with the terms of a lease with a 
municipal corporation upon lands granted by the state to such 
municipality in trust for certain purposes under the provisions of 
an act of the legislature approved May 1, 1911 (Stats. 1911, 
p. 1258), are not subject to taxation where it is expressly pro- 
Tided in the lease that such improvements when so constructed 
and remain the property of the municipality. 



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192 Oakland v. Albebs Bbob. Milling Co. [43 Cal. App. 

APPEAL from a judgment of the Superior Court of 
Alameda County. Edgar T. Zook, Judge Presiding. 
Affirmed. 

The facta are stated in the opinion of the court 

Ezra W. Decoto, District Attorney, James M. Koford, 
Assistant District Attorney, H. L. Hagan, City Attorney, and 
John J. Earle, Assistant City Attorney, for Appellant. 

Sullivan ft Sullivan and Theo. J. Roche and Louis V. 
Crowley for Respondent 

Fitzgerald, Abbott ft Beardsley, Amid Curiae. 

RICHARDS, J.— [1] This action was instituted by the 
city of Oakland to collect from the defendant certain taxes 
alleged to be due said city. The cause was submitted to the 
trial court for decision upon an agreed statement of facts 
which may be summarized as follows : On February 16, 1916, 
the plaintiff and the defendant entered into a certain written 
lease of certain lands upon the western waterfront of the 
said city of Oakland, the same being a portion of the public 
lands granted by the state to the city of Oakland in trust for 
certain purposes under the provisions of an act of the legis- 
lature approved May 1, 1911 (Stats. 1911, p. 1258). By the 
terms of said lease the lessee was to construct certain sub- 
stantial buildings and improvements consisting of a dock and 
warehouse, which were to be used by it during its tenancy 
of the premises, for which the lessee was to be repaid by 
a system of warehouse and dockage charges as specified in 
said lease, it being expressly provided therein that "The said 
dock and warehouse when so constructed shall become and 
remain the property of the lessor.' ' It was upon these spe- 
cific improvements that the tax officials of the city of Oakland 
undertook during the fiscal year 1917-18 to levy and collect 
the taxes which are the subject of this suit, and the sole 
question presented to the trial court, and to this court upon 
appeal, is as to whether the said improvements upon the said 
public property of the plaintiff is subject to taxation. The 
trial court held that it was not, and rendered its judgment 



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Sept 1919.] Oakland v. Albers Bros. Milling Co. 193 

accordingly in the defendant's favor. From such judgment 
the plaintiff prosecutes this appeal. 

The case upon which the appellant chiefly relies to sustain 
its contention upon this appeal is the case of San Francisco v. 
McOinn, 67 Cal. 110, [7 Pac. 187]. A careful examination 
of that case convinces us that it has no application to the 
case at bar, the essential difference between the two cases 
being that in the former case the court based its ruling that 
the defendant therein, who had placed the improvements in 
question upon the lands of the city of San Francisco, was 
to be held to be their owner for the purposes of taxation; 
while in the case at bar the improvements in question are 
expressly made the property of the city of Oakland, and hence 
the defendant herein could not have for any purpose any 
ownership in them. Under the express provisions of section 
1 of article XIII of the state constitution, and also of section 
3607 of the Political Code, the property of a municipal corpo- 
ration in this state is not the subject of taxation. In the 
presence of these constitutional and statutory provisions it is 
needless to cite the earlier cases showing that this is and has 
long been the settled law of this state ; but in the recent case 
of San Pedro etc. R. R. Co. v. City of Los Angeles, 180 Cal. 
18, [179 Pac. 393], the supreme court declared void an at- 
tempted assessment of a breakwater built by a lessee of sub- 
merged public lands, as "improvements," holding that while, 
as conceded by the parties in that case, the breakwater was 
not an "improvement " within the meaning of section 3617 
of the Political Code, even if it were so considered to be, it 
would be such an improvement as would become fixed to the 
realty itself, "the fee of which was in the state, and hence 
not subject to assessment" 

Judgment affirmed. 

Waste, P. J., and Bardin, J., pro tern., concurred. 

4S 0*1. App.—U 



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194 MoKenzie v. Nichelinl [43 Cal. App. 



[Civ. No. 2844. First Appellate District, Division One.— September 5, 

1919.] 

RODERICK McKENZIE, Respondent, v. A. NICHELINI 
et al., Appellants. 

[1] Public Lands — Re-establishment or Government Corners — Use 
of Proportional Method— Not Controlling on State Courts. — 
The proportional method in re-establishing government corners as 
laid down by the surveyor-general of the United States is for the 
guidance of United States deputy surveyors in running lines in 
which the government is interested, and cannot control a state 
court in its choice of means for establishing the point where the 
government surveyor originally placed a section or quarter-section 
corner, when that question properly arises within its jurisdiction. 

[2] Id. — Case at Bab— Location of Corners Without Use of Pro- 
portional Method. — In this action involving the location of the 
dividing line between the north and south halves of a certain 
quarter-section of land, the trial court was justified in locating the 
quarter-section corners in question as it did without resort to the 
proportional method. 

APPEAL from a judgment of the Superior Court of 
Napa County. Henry C. Gesford, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

Albert A. Molfino, Percy S. King, Charles L. McEnerney 
and Leo J. McEnerney for Appellants. 

John T. York for Respondent. 

RICHARDS, J.— The plaintiff, being the owner of the 
south half of the northwest quarter and the north half of 
the southwest quarter of section 24, township 8 north, range 
4 west, Mount Diablo base and meridian, brought an action in 
ejectment against the defendants, who claimed ownership of 
the south half of the last named quarter-section but who 
had entered into possession of land by virtue of such claim 
which, according to the plaintiff, constituted part of the north 
half of said southwest quarter. 

The court, after a lengthy trial, in which much evidence 
was taken of surveyors and others as to monuments, witness 
trees, courses, distances and topography, found in favor of 



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Sept. 1919.] McKenzib v. Nichelini. 195 

the plaintiff, and gave judgment accordingly. The defend- 
ants appeal, their main contention being that the finding of 
the court as to the location of the plaintiff's land upon which 
its judgment is based is wholly unsupported by the evidenca 
and is contrary thereto. 

The deciding factor in the case, as admitted by the appel- 
lants, is the location of the line dividing the north and south 
halves of the southwest quarter of section 24 above referred 
to. According to the contention of the appellants, the true 
method for locating this line is first to find the legal center 
of the section — a point, as they remark, which is not set by 
the government surveyor, but which is found by running a 
straight line from the quarter-section corner on the north 
boundary of the section to the quarter-section corner on the 
south line thereof, and then by intersecting this line by one 
drawn from the quarter-section corner on the west side of 
the section to the opposite quarter-section corner on the cast, 
the point of intersection of these two lines being the legal 
center of the section. Having thus obtained the interior 
boundaries of the four quarters of the section the north and 
south halves of the southwest quarter will be found by sim- 
ilarly intersecting that quarter-section by an east and west 
line equidistant from its north and south boundaries, to do 
which it is, of course, necessary to know in addition to the 
points already obtained the quarter corner on the south 
boundary of the section (identical with the southeast corner 
of the southwest quarter) and the southwest corner of the 
section (identical with the same corner of the quarter-sec- 
tion). It is the appellants' contention that the evidence 
offered by the plaintiff shows that the lines were not ran 
in this manner, from which they argue that the court's find- 
ing as to the location of the line in dispute is not supported 
by the evidence. 

It will be observed, however, that given a section of land 
80 chains square the southwest quarter thereof will be bounded 
by four straight lines, each 40 chains in length, one running 
from the southwest corner to the west quarter corner of the 
section; a second running from the said southwest corner to 
the south quarter corner; a third running from the west 
quarter corner easterly and parallel to the last-mentioned line, 
and the fourth running from the quarter corner on the 
south northerly and paralleling the first-mentioned line. The 



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196 MoKknzib v. Nioheld^l |43 CaL App. 

north and south halves of this quarter-section will be found 
by running a line from 4 point 20 chains north of the south- 
west corner to a point 20 chains north of the southeast corner 
thereof. And since the dispute between the parties to this 
appeal is only as to the location of the line between the 
north and south halves of the quarter-section involved in its 
relation to north and south the degree of extension easterly 
or westerly of this line becomes immaterial, for no right of 
appellants to land to the east or west of this quarter-section 
is in question, and the judgment of the court has not ejected 
them from any land so located. 

Turning now to the evidence upon which the court based 
its finding as to the relative location of the north and south 
halves of this quarter-section, there is testimony in the record 
that the entire section is approximately 80 chains from north 
to south; that the plaintiff's surveyor for the purpose of 
locating the plaintiff's land started at the southwest corner 
of the section, which corner he had known as the established 
government corner for many years; from that point he ran 
north 20 chains and there located the westerly end of the line 
dividing said southwest quarter into north and south halves ; 
from there he ran 40 chains north, and there located the 
westerly end of the line dividing the northwest quarter of 
the section into north and south halves; to ascertain the pre- 
cise direction in which he should run the north and south 
boundaries of plaintiff's land (having ascertained that there 
were no established government corners on the east side of the 
section now to be found) he measured the whole township line 
from south to north between townships 3 and 4, the eastern 
boundary of section 24 being part of this line, and finding 
it seven chains short of the correct distance, he prorated 
the deficiency between the six sections on the east side of the 
township, which gave him as the direction in which the north 
and south boundaries of section 24 should be run a course 
north 83 degrees east. He accordingly ran two such lines 40 
chains in length for the north and south boundaries of plain- 
tiff's land, and joined the eastern extremities of these lines 
by a line parallel to the western boundary already described 
This direction of north 83 degrees east, however, was not ac- 
cepted by the court as correctly locating the plaintiff's land. 
The government field-notes of certain lines of the section in 
question were in evidence, among them the south boundary 



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Sept 1919.] McKenztb v. NiCHCum. 197 



thereof, which was a line run due east from the southwest 
corner of the section; and from testimony as to the topog- 
raphy of the land traversed by a line run east from said 
corner the court concluded that such testimony was sufficient 
to establish as the true direction of said south boundary a 
line due east as given in said field-notes, and in its findings 
adopted this direction for the north and south boundaries of 
plaintiff '8 land, the latter of which is the dividing line between 
plaintiff and defendants. It further appears that the north- 
west corner of this section as established by the government 
could not be found; but that a line drawn from the corner 
common to sections 14, 15, 22 and 23 (located one mile west of 
section 24) to a point on the east line of the township between 
said section 24 and section 19 in the adjoining township, 
located with reference to its relation to a known govern- 
ment corner further east, would pass through or very 
close to a point 80 chains north of the southwest corner 
of section 24, the distance called for by the field-notes for 
the northwest corner of the section. If we regard the 
north boundary of the section as being coincident with the 
eastern half of this line (and it is the only testimony in the 
record with reference to its location) a line drawn from 
the quarter corner on the north boundary of the section to the 
corresponding corner on the south boundary would be some- 
what longer than 80 chains. If this excess were divided be- 
tween the four equal parts of this line it would place the 
eastern extremity of the line dividing the north and south 
halves of the section a trifle to the north of where the court 
found it to be; but the error is so small that we think it is 
a case for the application of the legal maxim "The law dis- 
regards trifles' 9 (Civ. Code, sec. 3533), and not of sufficient 
magnitude to warrant a reversal of the case. 

The appellants' contention that the finding of the trial 
court as to the location of plaintiff's land is not supported 
by the evidence is also based upon the assertion that the south- 
east, northeast, and southwest corners, as also of all the 
quarter corners of section 24, are lost corners, which should 
be re-established by the proportional method in order to locate 
the line in dispute in this action. It is not necessary to 
agree with the appellants that the re-establishment of all of 
these lines is necessary in order to correctly locate the line 
in dispute, but their contention may be considered with ref er- 



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198 McKenzib v. Nichblini. [43 Cal. App. 

ence to those corners which the trial court used in reaching 
its conclusion and which it found by methods other than that 
urged by appellants, viz., the quarter corners on the west 
and south sides of the section, and the section's legal center 
point. 

[1] It may first be said that we think the appellants' con- 
tention as to the duty of the trial court to resort to the 
proportional method in re-establishing government corners is 
entirely too broad. The rule in this respect as laid down by 
the surveyor-general of the United States is for the guidance 
of United States deputy surveyors in running lines in which 
the government is interested. It cannot control a state court 
in its choice of means for establishing a fact, to wit, the point 
where the government surveyor originally placed a section 
or quarter-section corner, when that question properly arises 
within its jurisdiction. But this rule of the general land 
office is itself but a statement in detail, and perhaps an ex- 
tension of a rule long followed by the courts of the country 
generally. In Weaver v. Howatt, 161 Cal. 77, 84, [118 Pac. 
519, 522], our own supreme court has indicated the extent to 
which it will follow the rule. It is there said: "It is not 
the province of the court to determine where the corner should 
have been fixed. This is not an action to vacate the govern- 
ment survey. It must be assumed that the line was measured 
and the monuments set. Their positions as set fix the rights of 
the parties regardless of the inaccuracy of the measurements 
and the errors in distance found in the field-notes. The trial 
court must ascertain as near as may be where this monument 
was set by the government surveyor. If the exact spot cannot 
be found it must if possible decide from the data appearing 
in evidence its approximate position, and the proportional 
method is to be used only when no other reasonable method 
is possible, and it must be so used that it does not contradict 
or conflict with the official data that are not impeached, and 
which when not impeached confine the position within certain 
limits. The application of the proportional method must 
in that case be also confined to the same limits. 19 

[2] In the case at bar the trial court was apparently 
satisfied that the evidence in the case afforded the means of 
locating the quarter corners on the west and south sides of 
the section without resorting to the proportional method ; and 
a comparison of the government field-notes with the testimony 



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Sept. 1919.] West v. Board op Education. 199 

of witnesses relative to the topography of the country trav- 
ersed by the government surveyor in reaching and placing 
these points does not enable us to say that it was not justi- 
fied in locating these corners as it did without resorting to 
the method claimed by the appellants to be compulsory under 
the circumstances here presented. 

The appellants make the further point that the court failed 
to find upon a material issue, namely, the claim by the plain- 
tiff, denied by the defendants, of ownership of land in the 
south half of the southwest quarter of the same section ; but 
as the court granted the plaintiff no relief under this claim, 
and the point is made by the appellants for the first time in 
their closing brief filed after the oral argument of the case, 
we do not feel called upon to give it consideration. 

For the reasons stated the judgment is affirmed. 

Waste, P. J., and Kerrigan, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied 
by the supreme court on November 3, 1919. 

All the Justices concurred 



[Civ. No. 3101. Second Appellate District, Division One.— September 

6, 1919.] 

JOHN FRANKLIN WEST, Petitioner, v. BOARD OP 
EDUCATION OF THE PASADENA HIGH SCHOOL 
DISTRICT and the PASADENA CITY HIGH SCHOOL 
DISTRICT OF LOS ANGELES COUNTY et al., Re- 
spondents. 

[1] Municipal Corporations — Freeholders' Charter — Appointment 
of Superintendent or Schools — Term or Office. — Where a free- 
holders' eharter provides under the title "Department of Educa- 
tion" that "in all matters not specifically provided for in this char- 
ter the board (of education) shall be governed by the provisions 
of the general law relative to such matters," and such charter is 
silent as to the term for which the superintendent of schools 
should be elected, its provisions only authorizing the board of 



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200 West v. Board of Education. [43 CaL App. 

•dncatlon, at its discretion to "appoint a superintendent of 
schools, and prescribe the duties and fix the salary of such super- 
intendent," it follows as a natural and necessary deduction that 
the electors in adopting such charter, and the legislature in ratify- 
ing it, intended that the duration or term of office of the superin- 
tendent of schools should be controlled by the general statute, 
which fixes the term at four years. 

PROCEEDING in Mandamus to compel respondents to 
permit petitioner to exercise the duties of the office of super- 
intendent of schools. Writ issued. 

The facts are stated in the opinion of the court 

Woodruff ft Shoemaker for Petitioner. 

James H. Howard for Respondents. 

A. J. Hill, County Counsel, Amicus Curiae. 

JAMES, J. — Mandate to compel respondents to permit 
petitioner to exercise the duties of the office of superinten- 
dent of schools of the Pasadena City School District and the 
Pasadena City High School District, and to require respond- 
ents to draw a warrant in petitioner's favor for the sum of 
$375 in payment of his salary as such superintendent for the 
month of July, 1919. 

On the 24th of June, 1919, the board of education of the 
city of Pasadena held a regular meeting, there being three of 
the five members constituting the board present. These three 
members unanimously adopted a resolution or motion for the 
employment of petitioner to be superintendent of schools for 
the city of Pasadena for the term of four years, beginning 
July 1, 1919, at a salary of four thousand five hundred dollars 
per annum, payable monthly. On July 2d an adjourned 
meeting of said board was regularly held, the same three 
members being present, and it evidently being the apprehen- 
sion that the action on the 24th of June was not expressed 
with sufficient formality in the resolution then adopted, the 
board adopted the following further resolution : 

4 • Resolved, that the action of this Board on Tuesday, the 
24th day of June, 1919, in declaring that the contract of 
employment then existing between this Board and Dr. Jere- 
miah M. Rhodes expired by its terms on June 30, 1919, and 



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Sept 1919.] Whbt v. Board of Education. 201 

in appointing .Jt.hn Franklin West of San Diego, Superinten- 
dent of the City Sehcols of the Pasadena City School District 
and the Pasadena City High School District, for a term of 
four years, beginning the first day of July, 1919, and ending 
on June 30, 1923, be and the same is hereby ratified and 
approved; and 

"Be it resolved further that in event the legality of the 
action of this Board taken on the 24th day of June, 1919, in 
filling the office of Superintendency of Schools for the en- 
suing term, should be questioned upon any ground whatever, 
then this Board will and does here now at this meeting ap- 
point the said John Franklin West as Superintendent of the 
Pasadena City School District and the Pasadena City High 
School District, for the term of four years, commencing on 
the first day of July, 1919, and ending on the 30th day of 
June, 1923, at a salary of Four Thousand Five Hundred 
Dollars ($4500) per annum, payable monthly; and 

"Be it further resolved that the Vice-President and Clerk 
of this Board be and they are hereby empowered and directed 
to enter into a contract of employment with the said John 
Franklin West in the name and on the behalf of this Board 
under and in pursuance of these resolutions." 

Petitioner having been notified of the action taken by the 
board at its meeting on the date first mentioned, under date 
of June 25, 1919, dispatched to the said board a telegram 
accepting the employment in the words following: "Accept 
the appointment as city superintendent of your schools, on 
terms and conditions stated in your telegram.' ' The office 
of superintendent of schools had theretofore been filled by 
Jeremiah M. Rhodes, whose term (being of four years' dur- 
ation) expired on June 30, 1919. On July 7, 1919, the in- 
coming board of education organized, an election having 
changed the personnel only as to one member, that one out- 
going member being one of those who had participated in the 
election of petitioner as superintendent. The new board, 
voting three to two, proceeded to adopt a resolution attempt- 
ing to rescind all of the action of the preceding board in 
the matter of the employment of petitioner as superinten- 
dent of schools. The petition shows that petitioner has 
been in attendance, ready and offering to perform the duties 
of the office of superintendent of schools, and that the board 
of education has refused him that right and refused to award 



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202 West v. Board op Education. [43 Cal. App. 

to Mm any payment for his services under the alleged con- 
tract of employment. That the meeting of the outgoing board 
at which the resolution employing petitioner was adopted 
was regular and that the number attending and voting thereat 
was sufficient, is not questioned, and indeed could not be. 
The resolution first adopted was sufficient in form to express 
contractual terms, if accepted by petitioner. The employ- 
ment as offered was promptly accepted and upon acceptance 
being made a binding contract arose, unless by reason of the 
law the action taken was in some particular unauthorized. 
We do not decide that the action taken before the expiration 
of the term of the superintendent attempted to be retired was 
premature. Even though it be conceded that there was no 
authority in the board to employ petitioner until his prede- 
cessor's term had actually expired, it does appear that the 
board, by the resolution adopted on the 2d of July, made a 
complete and second resolution wholly covering the same 
matter. Petitioner, as has been noted, thereafter appeared 
and tendered his services and offered to fill the position, so 
that it matters not, in our opinion, whether we say the em- 
ployment was made under the resolution of June 24th or 
that of July 2d. The main argument of counsel is directed 
to the point as to whether in cities operating under free- 
holders' charters the general laws of the state are applicable 
and govern in all school matters; or whether the charter 
provisions affecting such questions govern exclusively. The 
fact is first pointed to that it is provided in section 1793 of 
the Political Code, that "City superintendents of public 
schools, elected by city boards of education, shall be elected 
for a term of four years, ..." Assuming that the general 
law is applicable, this express provision having been incorpo- 
rated in the code relative to the term of the superintendent 
of schools, petitioner contends that the board had the right 
to make an engagement for the four years specified. Re- 
spondents contend that the charter provisions are exclusively 
applicable and that those charter provisions do not authorize 
the board of education to make employment for such a length 
of time as was attempted to be done. In this connection it 
is urged that section 1584 of the Political Code (appropriate 
action having been taken thereunder) aids in defining the 
charter provision as being exclusive. It is shown by the 
agreed statement of facts that such action has been taken as 



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Sept. 1919.] West v. Board of Education. 203 

is mentioned in section 1584. That section provides that 
where there has been an appropriate action in the direction 
required, "then the electors of such school district shall be 
deemed to have submitted to be governed in all matters re- 
lating to the management of public schools within such school 
district or high school district as fully and to all intents and 
purposes as though the electors of such school district or high 
school district had by their votes elected to be governed by 
the provisions of such charter." The section in brief pro- 
vides for the question to be submitted to the electors as to 
whether the charter provisioas shall govern, and provides 
that where the electoi-s have participated and voted at any 
school election held subsequent to the adoption of and under 
the provisions of the charter, the same effect shall follow as 
though the question had been specially submitted and an 
affirmative vote made. Petitioner contends that if the section 
last mentioned purports to disassociate all general statutes 
from connection with school affairs of a chartered city, then 
it is unconstitutional for the reason that the school system is 
a state system, and not a municipal affair, and is controlled 
by general laws unless there is an absence of legislation upon 
the subject; citing Kennedy v. Miller, 97 Cal. 429, [32 Pac. 
558]. Also, Mahoney v. Board of Education, 12 Cal. App. 
293, [107 Pac. 584], and other cases which generally define 
the school system as being a state matter and not falling 
within the class of "municipal affairs." [1] We are not 
inclined to follow counsel through the various phases of this 
argument because it seems to invite unnecessary labor, in that 
the charter provisions of the city of Pasadena relating to 
the school department contain nothing by which it may be 
said the authority of the board of education to employ a 
superintendent for a fixed term is prohibited. We find upon 
that subject, under the title of "Department of Education," 
article 16 of the charter, the following sections: "Sec. 6. 
The Board of Education may, at its discretion, appoint a 
Superintendent of Schools, and prescribe the duties and 
fix the salary of such Superintendent. Sec. 7. In all matters 
not specifically provided for in this Charter the board shall 
be governed by the provisions of the general law relative to 
such matters." It then appears that no attempt is made in 
the charter to limit the term of the superintendent of schools 
authorized to be elected by the board of education. Acting 



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204 Robben v. Benson. [43 Cal. App. 

under the authority alone of the charter provision, and con- 
ceding without deciding that it has exclusive effect, we would 
find no difficulty at all in sustaining the contract made with 
petitioner for four years' employment. But furthermore, the 
charter being silent as to the term for which the superinten- 
dent should be elected, and its provisions only authorizing the 
board of education "to appoint a superintendent of schools, 
and prescribe the duties and fix the salary of such superin- 
tendent, " it follows as a natural and, we think, necessary 
deduction that the electors in adopting the charter, and the 
legislature in ratifying it, intended that the duration or term 
of office of the superintendent of schools should be controlled 
by the general statute, which fixes the term at four years. 
Looked at from any angle that the argument assumes, we 
think that the contract of petitioner was made with full au- 
thority and must be upheld. 

Peremptory writ is ordered to be issued as prayed for, 
petitioner to have his costs. 

Conrey, P. J,, and Shaw, J., concurred. 



[Civ. No. 201S. Third Appellate District.— September 8, 1919.] 

WILLIAM B. ROBBEN, Plaintiff and Respondent, v. MRS. 
I. M. BENSON et al., Defendants and Appellants; OSCAR 
C. SCHULZE, INC., Intervener and Respondent. 

[1] Appeal— Law of Gabs— New Trial — Different Facts. — The law 
of a ease determined by an appeal does not apply to a new trial 
of the ease in which substantially different facts are presented. 

[2] Deeds — Mistake in Name or Grantee — Bemedt to Correct. — 
Where a mistake has occurred in the name of a grantee in a deed 
which Is essential to a title and which appears both in the deed 
and the record thereof, a suit to quiet title against the claims of 
grantee named is essential to the perfecting of the record title; 
but where the deed contains no mistake, the only mistake being in 
the recording of it, the owner cannot in good faith swear that 
there is an outstanding claim and the necessity for maintaining 
such an action disappears. 

[3] Appeal— Law or Case — Sufficiency or Abstract of Title — Sub- 
sequent Trial— Admission of New Facts.— In an action involv- 



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Sept 1919.] Robbbn v. Benson. 205 

lug the sufficiency of the record title to certain property as shown 
by the abstract furnished, the opinion of the district court of 
appeal, declaring the necessity for the bringing of an action to 
quiet title in the vendor as against the grantee named in a cer- 
tain deed as recorded to establish of record that the conveyance 
was made to such vendor's predecessor instead of the grantee 
named, will not prevent such vendor on a subsequent trial from 
showing by evidence, which was not before the district court of 
appeal, that the deed in question was not important. 

[4] Id.— Finding not Questioned— Taken as True.— Where the suffi- 
ciency of the evidence to sustain a finding of the trial court is 
not questioned in any way the finding is to be taken as true on 
appeal. 

[5] Id. — Duty of Appellant — Objections Considered. — It is the 
duty of the appellant to point out the evidence or the lack of 
evidence showing a finding assailed is unsupported. The court on 
appeal will look only to the objections argued. 

[6] Names— Idem Sonans — Rebuttal of Prima Facie Case. — Names 
which have the same pronunciation do prima facie designate the 
same persons, but the prima facie case so shown is liable to be 
much shaken by tLe slightest proof of facts which produce a 
doubt of identity. 

[7] Id. — Admissibility or Parol Evidence. — Where the case permits 
parol evidence, such testimony may show two names to be within 
the rule although there is considerable difference in spelling. 

[8] Id. — Similarity of Sound — Province of Court and Jury.— If 
two names spelled differently, necessarily sound alike, the court 
may as a matter of law pronounce them to be idem sonant; but 
if they do not necessarily sound alike, the question whether they 
are idem sonans is a question of fact for the jury. 

[9] Id. — Addition of Letter "S." — Generally, the addition of a letter 
"s" to one of the two names considered takes them without the 
rule of idem sonant. 

[10] Id.— Relevancy of Facts in Regard to Title.— The facts in 
regard to the title of property as shown by the records would be 
quite as conclusive as an aid in determining the question of 
identity as would be the clearest kind of parol testimony intro- 
duced in those cases where the court is in doubt as to whether 
two names which are very similar, though somewhat differently 
spelled, have substantially the same pronunciation and designate 
the same person. 

6. Idem sonans, note, 100 Am. St. Bep. 322. 

9. Addition or omission of final "s" as affecting application of 
doctrine of idem sonans, notes, Ann. Oaa, 1918A, 851; 62 L. B. A. 
(N. S.) 937. 



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206 Eobbbn v. Benson. [43 Cal. App. 

[11] Id. — Emcr of Instrument of Record — Absence of Adverse 
Claims. — In judging whether a title is affected by an instrument 
of record purporting to show an interest outstanding in another 
H is permissible to show that no claim has ever been asserted by 
such other person. 

[12] Id. — Case at Bar — Similarity of Names — Same Individual — 
Finding. — In this action, although the two names, "B. W. 
Bobbins," and "B. W. Robben," were not strictly within the rule 
of idem aonans, considering the great resemblance between them, 
the fact that they both appear in connection with the same title, 
and that during a period of thirty -eight years there had been no 
adverse claim to the property, the record would leave no reason- 
able doubt in regard to the title, and a finding that the two 
names represented different persons would not be sustained. 

[13] Quieting Title — Intervention by Lien Claimant. — In an ac- 
tion to quiet title, a person claiming a judgment lien on the prop- 
erty may be permitted to intervene. 

APPEAL from a judgment of the Superior Court of 
Solano County. W. T. O'Donnell, Judge. Affirmed. 

The facta are stated in the opinion of the court. 

R. L. Shinn and A. L. Hart for Appellants. 

W. U. Goodman for Plaintiff and Respondent. 

F. F. Marshall for Intervener and Respondent 

W. A. ANDERSON, J., pro tern. — This is in form an action 
to quiet title brought by the vendor against the vendees upon 
an alleged forfeiture by the vendees under a contract for the 
sale of real property, and the main point urged by appellants 
for a reversal of the judgment is that the law of the case 
has been violated. It is also urged that intervention should 
have been denied. 

The complaint contains two counts. The first count is in 
the usual form employed in an action to quiet title. The 
second count alleges that on December 6, 1911, the plain- 
tiff, William B. Robben, made an agreement with the de- 
fendants, Mrs. I. M. Benson, Alt. G. Smith and E. W. Benson, 
whereby plaintiff agreed to sell to the defendants the north- 
west quarter of section 30, township 7 north, range 2 east, 
Mount Diablo base and meridian, for twenty-one thousand 



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Sept. 1919.] Robbbn v. Benson. 207 

six hundred dollars, payable in installments. The contract 
is set out in the complaint. 

The plaintiff agreed to furnish an abstract. The contract 
stated: " Second parties are to be given 15 days in which to 
examine said abstract and report upon the same ; in the event 
title to said premises shall be found to be defective, the said 
first party is to be given a reasonable time in which to perfect 
the same." The contract did not in terms provide that time 
should be the essence thereof; it declared the vendees' rights 
would be forfeited for failure to comply with its terms. It 
gave the vendees immediate possession. It is further alleged 
in the second count of the complaint that on December 6, 
1914, there was due on the contract $4,176 and that this 
sum has not been paid, and that under the terms of the con- 
tract the rights of the vendees have become forfeited. 

Defendants' answer first denies all the material averments 
of the first count of the complaint. It is admitted defendants 
claimed an interest in the property. In their answer to the 
second count of the complaint the defendants deny that on 
December 6, 1911, any sum became due under the contract. 
They admit that they paid nothing on that date, but they 
deny that any sum was due. The defendants filed a cross- 
complaint in which they set up the contract, and allege they 
had entered into the possession of the land; that they had 
fully performed all of the conditions of the contract ; that up 
to December 1, 1914, the plaintiff had failed to furnish a com 
plete or any abstract of title to the land, although the same 
was demanded on that date; that on or about December 18, 
1914, the plaintiff furnished an abstract which was defective 
and which was objected to on the grounds that it showed the 
record title to the property was vested in one B. W. Bobbins, 
and that the United States patent to the lands failed to 
Bpecify any township or range, and that there was a like 
omission in a certain deed from William T. Smith to W. D. 
Vail; that after the objections were made to the abstract 
plaintiff refused to make correction of the deed from Smith 
to Vail or to obtain a conveyance from B. W. Bobbins or to 
quiet his title; that after the first examination of the ab- 
stract by defendants and their noting of their objections 
thereto and their return of the abstract to the plaintiff for 
correction of the title, the plaintiff again returned it to the 
defendants, and from a re-examination of said abstract by 



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209 Robben v. Benson. [43 Cal. App. 

defendants it was ascertained that the abstract had been 
falsified so that it was made to appear that no conveyance 
to B. W. Bobbins had ever been recorded, that the abstract 
failed to show record title to the land; that complaint was 
made, but that plaintiff refused to furnish any other or addi- 
tional abstract. The cross-complaint alleged the amounts paid 
on the purchase price of the land and the amounts expended 
on the property during defendants* possession; it alleged 
possession of the property had been surrendered, and prayed 
for a recovery of the moneys paid and expended. 

The answer to the cross-complaint denied that there was 
any failure to furnish a complete abstract of the title, or 
that the title was defective, or that there was any refusal 
to procure a decree quieting title, and alleged that it clearly 
appeared from the abstract that Robbins had no interest in 
the land. Plaintiff denied that the abstract was falsified or 
that the defendants refused to accept it, or that plaintiff 
had refused to do anything further with respect to the title. 

At the trial it was conceded that the defect in the patent- 
ing of the lands had been remedied, and the defendants as- 
serted that the defect upon which they relied was the record 
of the deed from Vail to Robbins and what had transpired 
in regard thereto. 

The case has been twice tried. On each trial plaintiff 
prevailed. The first judgment was reversed (37 Cal. App. 
227, [173 Pac. 766]). The judgment entered on the second 
trial, like that entered on the first trial, provided that if the 
defendants did not pay the amounts due under the con- 
tract within a time specified, their rights in the property 
would be forfeited. 

The point relied on for a reversal is that the former opinion 
is the law of the case. In this contention appellants over- 
look the difference between the record of the case as first 
presented and as now presented. The bill of exceptions used 
on the first appeal did not contain all of the evidence offered 
on the first trial; it did not contain the abstracts offered in 
evidence; it contained a recital in regard to the abstracts 
which narrowed the court's consideration of the case to a 
particular point. 

[1] The law oF a case determined by an appeal does not 
apply to a new trial of the case in which substantially differ- 
ent facts are presented. {Ellis v. Witmer, 148 Cal. 531, [83 



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Sept 1919.] Robben v. Benson. 209 

Fac. 800J ; Stockton etc. Works v. Glens etc. 1. Co., 121 CaL 
174, [53 Pac. 565] ; Duckworth v. Watsonville Water etc. 
Co., 170 Cal. 433, [150 Pac. 58].) The difference in facts 
here is not so much a difference between the evidence received 
on the first and that received on the second trial, as it is a 
difference between the evidence offered at the first trial and 
the record of the same presented to the court on the first 
appeal. 

The former opinion of the district court of appeal recites 
that in order to show complete title it became necessary for 
the plaintiff to show a conveyance from one W. D. Vail to 
B. W. Robben; that the abstract showed a conveyance made 
on November 8, 1876, from W. D. Vail to B. W. Robbina; 
that this instrument was recorded on November 10, 1876; 
that after the abstract was returned to the plaintiff the at- 
torney for the plaintiff, together with the abstracter, went 
to the office of the county recorder of Solano County, and, 
on December 14, 1914, the recorder changed the record so 
that the word < 'Robbins M was made to read "Robben"; that 
thereupon the abstract was changed so that it appeared a 
deed had been made by the said Vail to the said Robben 
and that such deed had been recorded; that the defendants 
had examined the record showing the change and had objected 
to the title, and that plaintiff had refused to do anything 
further in the way of furnishing an abstract. 

The evidence on the second trial shows that the record of 
the first recording of the deed was changed as stated, lines 
being drawn through the name "Robbins," and the word 
"Robben" being written above; the initials of the recorder 
and his deputy were written in the margin of the record. 
The original deed was produced when the change was made. 
The testimony shows the parties making the change thought 
the course pursued was proper. The character of the change 
is evident from the record, a photographic copy of which is 
set out in the reporter's transcript. As hereinafter shown, 
the original deed was later re-recorded. 

It is conceded in the briefs that the record on the former 
appeal contained the statement next quoted, with respect to 
the abstract or abstracts furnished to defendants by the 
plaintiff : 

"The entire abstract was filed in evidence, marked 'Plain- 
tiff's Exhibit B,' and as filed showed perfect record title in 

43 Cal. App.— 14 



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210 Robben v. Benson. [43 Cal. App. 

the plaintiff. One of the essential muniments of title appear- 
ing in said abstract was a deed purporting to have been 
executed by W. D. Vail to B. W. Robben, dated Nov. 8, 1876, 
and recorded Nov. 10, 1876, in Book 63 of Deeds, page 117. 
The said deed as appearing in said abstract did not show 
anything with reference to any ehange or correction of the 
record of the same in Book 69 of Deeds, page 117, since the 
date of its said recordation." 

On the last trial the court made a finding as to the record 
title of plaintiff, which is to the effect that the record of the 
deed to B. W. Bobbins was not a part of the chain of title 
to plaintiff's lands. This finding is based upon evidence 
which was not before the district court of appeal, except to 
the extent shown by the quotation last set forth. 

In the former opinion it was also stated that, after com- 
plaint was made as to the change in the record of the deed 
to B. W. Robbins, "The plaintiff refused to have anything 
more to do with the abstract, but it does appear that on 
or about the 15th of January, 1915, a conveyance from Vail 
to Robben was taken to the recorder's office and recorded. 
However, the existence of this conveyance and of the fact 
of its being placed of record was not called to the attention 
of the defendants, nor does it appear that any supplemental 
abstract was furnished by the plaintiff to the defendants 
showing the devolution of title from Vail to Robben. The 
matter appears to have remained in statu quo until about 
April 5, 1915, when the plaintiff began this action to quiet 
title to the premises iiwolved." This statement was in 
accordance with the record of the case as presented to the 
court. On the second trial the exact facts were shown with 
respect to furnishing supplementary abstracts, and on this 
appeal these facts and these abstracts are brought up, and 
the record is not curtailed by the brief recital set forth in 
the record of the former appeal. (The entire record relat- 
ing to the evidence on the former appeal contained 25 pages, 
and on this appeal it numbers 312 pages.) 

In regard to the showing as to title, the former opinion 
points out that on the trial of the case and for the purpose 
of showing title to the property, the plaintiff introduced in 
evidence the original deed from W. D. Vail to B. W. Rohhen, 
dated November 8, 1876, and recorded November 10, 1876, 



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Sept. 1919.] Robben v. Benson. 211 

and re-recorded January 15, 1915. The court, in the former 
opinion, declares: 

"There does not appear to be any testimony showing that 
the existence of this deed was called to the attention of ap- 
pellants until its introduction in evidence." 

The testimony of P. P. Marshall, who was acting as the 
attorney for plaintiff, was offered on the second trial. It 
showed the furnishing to defendants of a supplementary ab- 
stract showing the re-recording of this deed. 

This court, in its former opinion, recognized the rule that 
defendants were entitled to a title fairly deducible of record 
as well as good title in fact ; it held that the county recorder 
was not authorized to make the change in the record. The 
court further declared: "The re-recording of the deed from 
Vail to Robben on January 15, 1915, and exhibit thereof to 
the defendants, would have laid a foundation for maintain- 
ing an action wherein, all proper parties defendant having 
been joined, judgment might have been entered by the trial 
court, finding plaintiff's title valid, quieting any claims of 
B. W. Robbins to said premises, establishing of record that 
the conveyance purporting to be made to Robbins was in fact 
made to Robben, and decreeing performance by the appellants 
within a reasonable time or suffer the alternative of a for- 
feiture.' ' The court then pointed out that the plaintiff had 
not elected to pursue the course suggested, but had, in effect, 
elected to treat the contract as ended by bringing suit to quiet 
title. The court ruled that defendants, having surrendered 
possession, were entitled to a return of the money they had 
paid out; that the defendants' motion for a nonsuit should 
have been granted ; that the trial court should have proceeded 
to determine the amount the defendants were entitled to 
recover. 

It distinctly appeared on the second trial of the case that 
this original deed bore indorsements of the county recorder 
made in conformity with sections 4137 and 4138 (formerly 
sections 4241 and 4242) of the Political Code, showing that 
it was the deed which had been recorded on November 10, 
1876, in book 63 of deeds, page 117. The indorsements of the 
county recorder, made upon this original deed, specified the 
time of recordation and the place thereof, and these indorse- 
ments are shown in the supplementary abstracts covering the 
second recording of the instrument. On the second trial 



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212 Eobben v. Benson. [43 Cal. App. 

of the case it was shown that this abstract was furnished to 
defendants, and it also appeared that the evidence before 
the trial court on the first trial of the case showed the same 
thing. Defendants on receiving the abstract showing the fore- 
going facts never called for the production of the original 
deed. They made general objection that title had not been 
shown. The original deed was introduced as an exhibit on the 
trial of the case, and the grantee is therein named W. B. 
Eobben. 

It is true that in the first opinion of this court it was, 
in effect, declared that there should have been not only re- 
recording of the deed from Vail to Bobben and the exhibit 
thereof to the defendants, but that there should also have 
been a suit to quiet title against the claims of Bobbins. [2] 
While authorities were not cited in support of the position 
that such an action was necessary, there are authorities to 
the effect that where a mistake has occurred in the name of 
a grantee in a deed which is essential to a title and which 
appears, both in the deed and in the record thereof, an action 
of the kind suggested by this court is essential. (Walters 
v. Mitchell, 6 Cal. App. 410, [92 Pac. 315].) The case last 
cited suggests that a suit in rem will reach such an outstand- 
ing claim. But where the plaintiff, as here, has found the 
original deed, and it is obvious to him that the deed con- 
tains no mistake, but that the mistake is in the first record- 
ing of it, he could not in good faith swear there was an out- 
standing claim. But the necessity for maintaining such an 
action as that referred to disappears, in view of the finding 
of the trial court, based on evidence offered on the second 
trial of the case. Finding VIII, made by the trial court on 
the second trial of the case, is as follows : 

"That the complete chain of title of record in said property 
vested in plaintiff Is as follows: 

"U. S. Patent to William T. Smith; 

4 'Deed from William T. Smith and Mary Smith, his wife, 
to W. D. Vail; 

"Deed from W. D. Vail to Bank of Dixon; 

"Deed from Bank of Dixon to W. B. Robben ; 

"The Court finds that B. W. Bobbins never had any title 
to said land, record or otherwise. 

"The Court finds that at one time subsequent to conveying 
said land to Bank of Dixon, W. D. Vail made and executed 



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Sept 1919.] Robben v. Benson. 213 

a deed conveying said land to B. W. Robben ; said deed was in- 
correctly recorded by the County Recorder copying said name 
Robben as Bobbins; said deed from Vail to Robben was 
subsequently correctly recorded in the office of the County 
Recorder of Solano County and the re-recording of said deed 
set forth in said abstract which was furnished to defendants 
on or about the 4th day of March, 1915; that plaintiff 
through mesne conveyances, all of which appear of record 
and are set forth in said abstract, obtained whatever title 
the said B. W. Robben might have had to said land." 

The foregoing finding evidently proceeds on the theory that 
Vail deeded to the bank before the recording of the so-called 
deed to Bobbins, that the bank continued to hold title, and 
later, and during the time defendants were objecting to the 
record of the title, proceeded to convey the title to the plain- 
tiff herein. The original abstract showed the deed to the 
bank, and a supplementary abstract showed the deed from the 
bank to the plaintiff herein. The evidence showed these 
abstracts were furnished to defendants. It further appears 
that neither of these deeds constituted any part of the evi- 
dence as supplied to the district court of appeal on the first 
hearing. The present appeal is upon a reporter's transcript, 
which contains all the abstracts furnished defendants. 

Appellants refer neither to testimony nor to the absence 
of testimony for the purpose of showing that the foregoing 
finding is not supported by the evidence. [S] Their sole 
point is that what the district court of appeal said in its 
opinion on the former trial in regard to the importance of the 
record of the so-called deed to Robbins and the remedy to be 
pursued to clear the record of a possible claim under that 
deed was binding on the trial court. Certainly the former 
opinion did not preclude respondent from showing by evi- 
dence, which was not before the district court of appeal, that 
the so-called deed to Robbins was not important. [4] As 
stated, the sufficiency of the evidence to sustain the finding 
of the trial court, hereinbefore quoted, is not questioned in 
any way, and this being so, the finding is to be taken as true 
on appeal. (Brovelli v. Bianchi, 136 Cal. 612, [69 Pac. 416] ; 
Kyle v. Craig, 125 Cal. 116, [57 Pac. 791] ; Tait v. Mclnnes, 
3 Cal. App. 156, [84 Pac. 674].) [5] These cases establish 
that it is the duty of the appellant to point out the evidence 
or the lack of evidence showing a finding assailed is unsup- 



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B14 Robbbn v. Benson. [43 Cal. App. 

ported, and that the court on appeal will look only to the 
objections argued. This finding referred to evidently de- 
pends upon evidence consisting of pages of the abstracts 
which were no part of the record on the first appeal, and this 
being true, and the finding being unassailed, it is deter- 
minative of the case. 

In view of the evidence offered at the second trial we would 
be compelled to hold that if finding VIII of the trial court 
could be disregarded and plaintiff were compelled to rely 
upon the record of a deed to Kobbins, his title would be 
good and fairly deducibie of record. It is true that the 
former opinion of the court conclusively determines that 
"B. W. Bobbins" and "B. W. Robben," are not within the 
rule of idem so nans. [6] Names which have the same pro- 
nunciation do prima facie designate the same persons. "But 
this prima facie case so shown is liable to be much shaken 
by the very slightest proof of facts which produce a doubt of 
identity. A well-known writer seems to state the rule on this 
point very acceptably and clearly: 'The probative force of the 
inference of identity from similarity of names is greatly 
diminished in force, even to the vanishing point, by intro- 
ducing into the consideration of the matter facts inconsistent 
with the truth of the administrative assumption that similar 
names identify a single individual.' 2 Chamberlayne, Mod. 
Law of Ev. 1191." (Keyes v. Munroe, 266 Mo. 114, [180 
S. W. 863].) The following is a further explanation of the 
rule: "In the case of Johnson v. State, 65 Fla. 492, [62 
South. 655J, Mr. Justice Taylor, who delivered the opinion 
of the court, said: 'Where two names are presented to the 
consideration of the court, the inference that they designate 
the same individual is strong in proportion as the difference 
between the two are slight; and conversely, the inference of 
identity is weak as the points of difference between the two 
names are numerous and marked.' " (Rhodes v. State, 74 
Jbla. 230, 176 South. 776 J.) |7] Where the case permits 
parol evidence, such testimony may show two names to be 
within the rule although there is a considerable difference in 
spelling. (People v. Fick, 89 Cal. 149, [26 Pac. 759].) The 
part which parol evidence may play in establishing identity 
of pronunciation and hence identity of persons is further 
explained in the case next quoted from. In Commonwealth 
v. Wairen, 143 Mass. 568, 110 N. E. 178, it was said: "The 



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Sept. 1919.] Robbkn v. Benson. 215 

province of the court and jury in cases like the present is 
governed by the following rule: [8] 'If two names spelled 
differently, necessarily sound alike, the court may as matter 
of law pronounce them to be idem sonans; but, if they do 
not necessarily sound alike, the question whether they are 
idem sonans is a question of fact for the jury.' " In M withers 
v. State, 87 Ala. 96, 16 South. 358], Clopton, J., said: 
"Though this is strictly a question of pronunciation when 
raised by demurrer, it may be treated as a question of law; 
but in such case the judgment of the court should express 
the conclusion of law from facts or rules of which judicial 
notice may be taken. When there is no generally received 
English pronunciation of the names as one and the same, and 
the difference in sound is not so slight as to be scarcely per- 
ceptible, the doctrine of idem sonans cannot be applied with- 
out the aid of extrinsic evidence, unless when sound and power 
are given to the letters as required by the principles of pro- 
nunciation, the names may have the same enunciation on 
sound." {Veal v. State, 116 Ga. 589, 142 S. E. 705J.) The 
court proceeded to specify names that, as matter of law, had 
been held within the rule, as follows: "Blankenship" and 
"Blackership," "Owens D. Havely" and "Owen D. Hav- 
erly," "Hudson" and "Hutson," "Jeffers" and "Jeffries." 
It held that "Witt" and "Wid" were the same as matte* 
of law. The names "Pomp Burton" and "Pomp Burden" 
are within the rule. {Burton v. State, 10 Ala. App. 214, 
165 South. 91].) Also "Robert" and "Roberts." {Willis 
v. United States, 6 Ind. Ter. 424, [98 S. W. 147].) [9] 
Generally, however, the addition of a letter "s" to one of the 
two names considered takes them without the rule. (29 Cyc. 
276.) The footnotes at page 274 show cases in which the 
use of the letter is not controlling. Among the cases is 
cited Seaver v. Fitzgerald, 23 Cal. 85, in which the names 
"Seaver" and "Sea vers" were declared to be substantially 
the same. The case is cited in Brum v. lvins, 154 Cal. 17, 
[129 Am. St. Rep. 137, 96 Pac. 876]. If, in the days when 
neither deeds nor the records thereof were typewritten, a 
deed had been made to D. C. Seaver and recorded as a deed 
to D. C. Seavers, and the transaction had stood unassailed 
for forty years, D. C. Seaver and his successors dealing with 
the property, and D. C. Seavers and his successors not ap- 
pearing at all in the record of title for a period of forty 



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216 Robben v. Benson. |43Cal. App. 

years, we think that although it could be held that such names 
are slightly without the rule of idem sanans, the record facts 
in regard to the title, coupled with the great similarity in 
names, would leave no substantial uncertainty as to the 
identity of the persons designated by the different names. 
[10] The facts in regard to the title as shown by the 
records would be quite as conclusive as an aid in determin- 
ing the question of identity as would be the clearest kind 
of parol testimony introduced in those cases where the court 
is in doubt as to whether two names which are very similar, 
though somewhat differently spelled, have substantially the 
same pronunciation and designate the same person. 

An examination of the abstract of title shows that the 
deed in question was made November 8, 1876. The consider- 
ation recited was seventeen thousand dollars. The property 
was evidently of considerable value. The records show that 
after November 8, 1876, no person by the name of B. W. 
Robbins ever dealt with the lands, that B. W. Robben did 
deal with the lands, that no suit to quiet title against him 
was filed, that the estate of his successor in interest, Dorotha 
Robben, was duly administered upon in Solano County and 
that the property in question was appraised and accounted 
for as a part of the estate of Dorotha Robben, and was 
distributed to the heirs of Dorotha Robben, who, in turn, 
granted to the present plaintiff, W. B. Robben. The identity 
in sound between Robben and Robbin appears from the ab- 
stract. Crop mortgages made by one of the Robben heirs are 
signed "F. W. Robben," the body of the instruments and 
certificates of acknowledgment showing "P. W. Robbin." 
No claim is asserted of record by B. W. Robbins at any time, 
nor is any claim asserted of record by any one purporting to 
be his successor. During the long period of thirty-eight years, 
no one by the name of W. B. Robbins, and no one appearing 
to claim through W. B. Robbins, has exercised any act of 
ownership over the property. The silence of the record in 
this respect speaks as loudly as any words. [11] In judg- 
ing whether a title is affected by an instrument of record 
purporting to show an interest outstanding in another it is 
permissible to show that no claim has ever been asserted by 
such other person. This was held in a case in which it was 
contended that an ancient bond for a deed showed a cloud 



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Sept 1919.] Eobbbn v. Benson. 217 

on title. (Read v. Sefton, 11 Cal. App. 88, [103 Pac. 1095] .) 
[12] In this case such evidence bears directly on the point 
considered. The initials of the two names are the same ; the 
first syllable of the two names is the same, and all that holds 
them apart is the letter "a," a letter not always preventing 
the application of the role of idem sonans as matter of law. 
The two names appear in connection with the same title. 
Considering the transactions with regard to the title in ques- 
tion, as shown by the record and covering a period of thirty- 
eight years, and considering the great resemblance between 
the two names, B. W. Bobbins and B. W. Robben, there 
would be no substantial reason for saying the two names rep- 
resented different persons, even though the two names did not 
fall strictly within the rule of idem sonans. The entire record 
would leave no reasonable doubt in regard to the title, and a 
finding on any other theory would not be sustained. 

[13] The trial court permitted Oscar C. Schulze, Inc., 
a corporation, to intervene. The company filed a complaint 
in intervention against the various defendants, setting up a 
claim to the interest of defendants in the property based 
upon judgment liens alleged to have been obtained in various 
actions heretofore prosecuted. The appellants cite the case of 
Isaacs v. Jones, 121 Cal. 257, [53 Pac. 793, 1101], as deter- 
mining the intervention was improper. The case is not in 
point. A person claiming a judgment lien on real property 
comes within section 738 of the Code of Civil Procedure. 
Such a person may sue to remove a cloud on the title to the 
property (32 Cyc. 1334). 

It follows, therefore, that the judgment of the trial court 
should be affirmed, and it is so ordered. 

Chipman, P. J., and Burnett, J., concurred. 



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218 Hegel v. Hannas. [43 Cal. App. 



[Civ. No. 3059. 8econd Appellate District, Division One. — September 8, 

1919.] 

KATE HEGEL, Respondent, v. GRACE B. HANNAS et al., 

Appellants. 

[1] Rescission — Construction of Code Sections. — Sections 1691, 
3407, and 3408 of the Civil Code, which relate to the rescission of 
contracts, must be construed together. They are not mere statu- 
tory law, but are declaratory of well-understood principles of 
equity. 

[2] Id. — Return op Parties to Statu Quo — Equity. — It is not an 
invariable rule that the rescission of a contract obtained by fraud 
will be denied merely upon the ground that the parties cannot be 
placed in statu quo. If equity can still be done between the par- 
ties, courts will grant relief to the defrauded party. 

[3] Id. — Exchange of Real Properties — Knowledge of Fraud — 
Making of Cropping Agreement — Action to Rescind— Decree. — 
Where one party to an exchange of real properties enters into a 
short-term cropping contract covering the land received by her 
prior to knowledge that the representations made to her were un- 
true, in a subsequent action to rescind the contract of exchange, 
provisions in the decree that the property conveyed by the plaintiff 
to the defendants be reconvcyed to the plaintiff, that upon that 
conveyance the plaintiff deliver to the defendants a reconveyance 
of the property conveyed by the defendants to the plaintiff, and 
that the plaintiff also deliver to the defendants an assignment in 
writing conveying to the defendants all her rights and interest in 
and under the cropping agreement and also to all crops raised 
on said land under said agreement, are sufficient to restore the de- 
fendants to substantially the same position in which they would 
have been if the rescinded conveyances had not been made. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County, and from an order denying a motion 
to vacate said judgment and enter a different judgment. 
Prank G. Pinlayson, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

R. T. Quinn for Appellant. 

Charles J. Kelly and D. A. Stuart for Respondent. 

2. Duty to place other party in statu quo on rescission of eon- 
tract, note, 30 L. B. A. 44. 



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Sept. 1919.] Hegel v. Hannas. 219 

CONRET, P. J.— The defendants appeal from the judg- 
ment and from an order denying their motion for an order 
vacating the judgment and for an order to amend and 
correct the conclusions of law and to enter a judgment for the 
defendants instead of the judgment rendered in favor of 
the plaintiff. 

Both appeals raise the same question. The action was 
brought to rescind an exchange of real property between the 
plaintiff and the defendants. Upon evidence the sufficiency 
of which is not disputed, the court found that the transaction 
was tainted by fraud on the part of the defendants and that 
the plaintiff is entitled to rescind. Finding XI reads as 
follows: "That after the plaintiff obtained possession of the 
land described in exhibit C and before she knew that the 
representations made to her by said Heber, which are herein- 
before found to be untrue, were in fact untrue, she made a 
cropping contract of said land for cropping purposes for the 
period of one year from the eleventh day of January, 1918, to 
and with one Manuel Dueso, and by the terms of this cropping 
contract said Manuel Dueso has the right to go upon said 
land for the purpose of raising crops thereon until January 
11, 1919, that under the terms of said cropping contract said 
Manuel Dueso has raised a crop of barley hay, and has now 
growing on said land a crop of beans ; that one of the condi- 
tions of said cropping contract is that the plaintiff is to 
receive one-fourth of each of these crops, but has not yet re- 
ceived any part of either of them, but one-fourth of said 
hay crop is on said land ready for delivery by said Manuel 
Dueso. That said land has no buildings or improvements 
thereon, and is only adapted to agricultural purposes, such 
as provided for in said cropping contract; that said cropping 
contract was an ordinary and proper use thereof; that other- 
wise than as provided by said cropping contract the plain- 
tiff is able to surrender full possession of said land to the 
defendants; that the defendants are entitled to the one-fourth 
part of said crops that would have gone to the plaintiff 
under said cropping contract ; that the making of said crop- 
ping contract, and the keeping of the land in cultivation 
thereunder, was beneficial to said land, otherwise it would be 
in an uncultivated condition and weeds would have grown 
thereon and reduced the value of said land; said cropping 



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220 Hbgel v. Hannas. [43 Cal. App. 

contract has increased the value of said land, and, therefore, 
the defendants are not entitled to any other compensation 
on account of the right outstanding in said Manuel Dueso 
to go upon and use said land up to January 11th, 1919, 
than said one- fourth of said crop.' 9 The court ordered that 
the property conveyed by the plaintiff to the defendants be 
reconveyed to the plaintiff. It ordered that upon that re- 
conveyance the plaintiff deliver to the defendants a recon- 
veyance of the property conveyed by the defendants to the 
plaintiff, and that the plaintiff also deliver to the defendants 
an assignment in writing conveying to the defendants all her 
rights and interest in and under the Dueso lease, and also 
to all crops raised on said land under said lease. 

[1] Section 1691 of the Civil Code provides that the party 
rescinding a transaction "must restore to the other party 
everything of value which he has received from him under 
the contract; or must offer to restore the same, upon condi- 
tion that such party shall do likewise, unless the latter is 
unable or positively refuses to do so." Sections 3407 and 
3408 of the Civil Code are as follows: "§ 3407. Rescission 
cannot be adjudged for mere mistake, unless the party against 
whom it is adjudged can be restored to substantially the same 
position as if the contract had not been made. ' ' * ' § 3408. On 
adjudging the rescission of a contract, the court may require 
the party to whom such relief is granted to make any com- 
pensation to the other which justice may require." 

Appellants contend for a strict application of the fore* 
going provisions of section 1691, and claim that the subse- 
quent provisions above quoted cannot be applied until it is 
first shown that the plaintiff has fully and absolutely com- 
plied with section 1691. We do not agree with this contention. 
The three sections must be construed together. They are 
not mere statutory law, but are declaratory of well-understood 
principles of equity. [2] "It is not an invariable rule that 
the rescission of a contract obtained by fraud will be denied 
merely upon the ground that the parties cannot be placed in 
statu quo. If equity can still be done between the parties, 
courts will grant relief to the defrauded party.' ' (Green v. 
Duvergey, 146 Cal. 379, 389, [80 Pac. 234, 238].) [3] It 
is our opinion that the provisions as made in the decree in 
this case are sufficient to restore the defendants to substan- 



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Sept 1919.] Bakbkb v. Superior Court. 221 

tially the same position in which they would hare been if the 
rescinded conveyances had not been made. The Dueso lease 
was made for such a short time and upon such terms that 
the existence of such lease does not prevent the plaintiff and 
the court acting in this matter from doing substantial justice 
to the defendants, while at the same time the plaintiff's un- 
doubted right to a rescission is enforced. 
The judgment and order are affirmed. 

Shaw, J., and James, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on November 6, 1919. 

All the Justices concurred. 



[dr. No. 890$. Second Appellate District, Division One.— September 8, 

1919.] 

E. M. BARBER, Petitioner, v. THE SUPERIOR COURT OP 
SAN DIEGO COUNTY et al., Respondents. 

[1] Equity — Jurisdiction — Adjustment of All Bights. — Where 
equity has acquired jurisdiction for one purpose it will retain that 
jurisdiction to the final adjustment of all differences between the 
parties arising from the cause of action presented. It is the duty 
of a court of equity, when all the parties to the controversy are 
before it, to adjust the rights of all and leave nothing open for 
further litigation. 

[2] Estates of Deceased Persons — Obtaining of Final Decbeb 
Thbouoh Fraud — Expiration of Tike for Belief in Probate 
Court — Equity.— Where the decree settling a final account and 
distributing the estate of a deceased person has been fraudulently 
obtained but no opportunity remains by appeal or motion to obtain 
relief therefrom, the powers of a court of equity are at once 
available. 

[S] Id. — Acoountino — Jurisdiction of Equity Court. — Where an 
action ia brought in equity to set aside a decree settling a final 

L Bale that equity assuming jurisdiction for one purpose will 
retain it for all purposes, note, Ann. Oaa. 1912A, 803$ exceptions to 
rule, note, 116 Am. St. Sep. 877. 



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222 Barber v. Superior Court. [43 Cal. App. 

account and distributing the estate of a deceased person on the 
ground that it was obtained through fraud, it being alleged that 
the final account of the administrator was false and fraudulent, 
and that he failed to account for a large amount of the assets of 
the estate, and falsely credited himself with sundry sums for 
which in fact he was not entitled to receive credit, and an account- 
ing is prayed, such accounting may be made in the equity court; 
and the payment of the money found to be due into the hands of 
the new representative of the estate by the defaulting representa- 
tive will constitute a protection against all claimants. 
[4] lb. — Action Against Former Administrator — Parties. — Under 
appropriate circumstances, an administrator may, in his own name, 
for the use and benefit of all parties interested in the estate, 
maintain a suit for an accounting against a former administrator; 
and in such an action, the administrator is the only necessary 
party plaintiff. 

PROCEEDING in prohibition to prevent the setting aside 
of a decree settling a final account and distributing the estate. 
Writ denied. 

The facts are stated in the opinion of the court. 

Thomas, Beedy & Lanagan and Patterson Sprigg for Peti- 
tioner. 

Bisehoff & Thompson for Respondents. 

CONREY, P. J. — The petitioner applied for a writ of pro* 
hibition commanding respondents to refrain from certain 
threatened proceedings in an action numbered 26,366 and 
entitled Ostergard, Administratrix, et al. v. E. M. Barber 
and United States Fidelity and Guaranty Company. An al- 
ternative writ was issued. Respondents' return is in the 
form of a demurrer, which rests upon the ground that the 
facts alleged are not sufficient to entitle petitioner to the 
demanded relief. 

Barber was administrator of the estate of James Oster- 
gard, deceased. His final account and petition for settlement 
and distribution of that estate were filed on the tenth day 
of September, 1914, in the superior court of San Diego 
County. On the twenty-ninth day of that month the account 

4. Action by administrator against predecessor for accounting, 
note, 108 Am. St Bap. 428. 



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Sept. 1919.] Babbek v. Superior Court. 



223 



was approved by order of court, and a decree of final dis- 
tribution followed in due course. On the sixth day of July, 
1916, the letters of administration of Barber were revoked. 
On the eighth day of July, 1916, Ingina Ostergard was ap- 
pointed administratrix of said estate. 

Thereafter, Ingina Ostergard, as administratrix, together 
with Victoria Jensen* Mary Larsen, and Ingina Ostergard, 
claiming to be the only heirs at law of James Ostergard, de- 
ceased, and claiming to be the only persons interested in his 
estate, commenced said action No. 26,366. In that action 
facta were alleged showing that said final account of Barber 
as administrator was false and fraudulent, and that in fact 
he failed to account for a large amount of the assets of the 
estate, and falsely credited himself with sundry sums for 
which in fact he was not entitled to receive credit ; that the 
time within which an appeal might have been taken or any 
application for relief made, as against said order and decree 
in the probate proceeding, had expired before the alleged 
fraudulent acts of Barber were discovered by the plaintiffs. 
Plaintiffs demanded that said order and decree be vacated; 
that a true account be made, and prayed for such other and 
further relief as is agreeable to equity. 

The petition herein shows that on the twenty-second day of 
March, 1919, in said action No. 26,366, findings of fact were 
entered, and conclusions of law thereon which were in favor 
of the plaintiffs; that the court proposes not only to set aside 
said order and decree in the probate proceeding, but also has 
made an order fixing a certain date for an accounting to be 
made by said Barber, before the court in said action No. 
26,366. 

By his petition herein said E. M. Barber seeks to prevent 
respondent from proceeding with such proposed accounting, 
in that action. His contention is that the settlement of such 
an account is within the exclusive jurisdiction of the superior 
court as a probate court, exercisable solely by a proceeding 
in the matter of the estate of James Ostergard, deceased, and 
that, therefore, the court in the equity case having set aside 
the order and decree formerly made, its sole further juris- 
diction will be limited to the power to decree that a further 
accounting be made in the probate proceeding. This conten- 
tion presents the only question now before us. 



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224 Babbeb v. Superior Court. [43 Cal. A pp. 

[1] 1. It is an established rule that " where equity has 
acquired jurisdiction for one purpose it will retain that juris- 
diction to the final adjustment of all differences between the 
parties arising from the cause of action presented. It is, 
indeed, the duty of a court of equity, when all the parties to 
the controversy are before it, to adjust the rights of all and 
leave nothing open for further litigation." (Swan y. Talbot, 
152 Cal. 142, [17 L. R. A. (N. S.) 1066, 94 Pac. 238].) 

[2] 2. Let it be assumed that until the decree settling 
the final account of Barber as administrator and distributing 
the estate had been made, and until that decree had become 
final by expiration of the time within which an appeal there- 
from might have been taken, the court in probate had ex- 
clusive jurisdiction over all matters of accounting by the 
administrator. But when that time had expired, and no op- 
portunity remained by appeal or motion to obtain any relief 
against such decree, the powers of a court of equity were at 
once available if the decree had been fraudulently obtained; 
and those powers became active instead of latent, for the very 
reason that then the ordinary course of procedure within 
the limits of probate jurisdiction could not be used to afford 
the demanded relief. At the time when action No. 26,366 was 
instituted the court acquired jurisdiction over the subject 
matter thereof. Unless there is some peculiar limitation in 
the nature of the case, whereby the usual chancery powers 
are curtailed, we are certain that an accounting may be made 
in that action, and a decree entered granting complete relief 
between the parties before the court. 

[8] 3. Petitioner contends that there is a reason why the 
accounting must be had in the probate court, in this, that the 
proposed decree will necessarily reopen the administration of 
the estate, by setting aside the decree of settlement of account 
and final distribution; that a new decree, based upon a new 
report, notice, and hearing, will be required in that proceed- 
ing; that, perchance, additional claimants to some interest in 
the estate will be unearthed; that such additional claimants 
being not before the court in the action in which it is now 
proposed to take an accounting, Mr. Barber will thus be ex- 
posed to two several attacks upon his administration where 
only one should be required. Counsel for petitioner say: 
4 'If the present case proceeds to a judgment, Mr. Barber will 



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Sept. 1919.] Bahbeb v. Supebiob Court, 225 

have to pay to the plaintiffs the amount found due from 
him on an accounting. This will not protect him, because the 
probate court has not determined to whom the estate of James 
Ostergard is to go." This contention is not sound. Barber 
can satisfy any decree entered against him by paying the 
required sum into the hands of the administratrix, who is a 
plaintiff in the action, and as such administratrix will be 
responsible for the money so received. The court in its find- 
ings has declared, presumably upon sufficient evidence, that 
the plaintiffs are the only heirs at law, persons, and parties 
interested in the estate. With all his years of acquaintance 
with this estate and its affairs, petitioner does not anywhere 
suggest a claim that this finding is untrue. He rests upon the 
bare possibility that some new claimant might appear when 
the administration of the estate is about to be closed; and 
so raises this cloud, less substantial than ether, as a wall to 
limit the jurisdiction of a court of equity. [4] If there be 
some remaining unknown claimant, he has been represented 
by the administratrix as plaintiff in action No. 26,366. If 
section 369 of the Code of Civil Procedure applies to such 
an action — and we think that it does — she was the only neces- 
sary plaintiff in that action. "An administrator may, in 
his own name, for the use and benefit of all parties interested 
in the estate, maintain actions on the bond of an executor, 
or of any former administrator of the same estate." (Code 
Civ. Proc, sec 1586.) There appears to be no good reason 
why the administrator may not, with like effect, under ap- 
propriate circumstances, maintain a suit for an accounting 
against a former administrator. 

For the foregoing reasons an order has been entered deny- 
ing the application for a peremptory writ and directing that 
this proceeding be dismissed. 

Shaw, J., and James, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on November 6, 1919. 

All the Justices concurred 

4»0*LA*p— it 



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226 Chasb v. Peters. [43 Cal. App. 



[<Hv. No. 2991. 8eeond Appellate District, Division One.— September 8, 

1919.] 

CHARLES A. CHASE, Respondent, v. HOMER H. 
PETERS, Jr., et aL, Defendants; PETERS INVEST- 
MENT COMPANY (a Corporation), et aL, Appellants. 

[1] Unlawful Detainer — Judgment — Retention of Possession — 
Time to Make Tender of Bent Due — Appeal. — Under section 
1174 of the Code of Civil Procedure, tender of the amount of rent 
found to be due should be made within Ave days after entry of 
judgment in an action in unlawful detainer, where retention of 
possession is desired; and the time for making such tender is not 
extended by the taking of an appeal from such judgment, not- 
withstanding the judgment is modified by striking therefrom the 
amount found to be due the plaintiff for taxes, which plaintiff 
sued for in a separate count, no order of reversal being made as 
to the remainder of the judgment 

APPEAL from a judgment of the Superior Court of 
San Diego County. W. A. Sloane, Judge. Affirmed* 

The facta are stated in the opinion of the court 

Riley ft Heskett and Wright & McEee for Appellants. 

James E. Wadham, James S. Bennett and Frank J. Macoxn- 
ber for Respondent. 

JAMES, J. — This is an appeal taken by the Peters Invest- 
ment Company, 4 corporation, and certain other persons 
named, who are designated as trustees of said corporation. 
The appeal is from an order of the superior court refusing 
an application for an order to restore the Peters Investment 
Company to the possession of certain real property from which 
it had been ousted by process authorized under a judgment 
for unlawful detainer. For convenience, we will designate 
the appellant in this case under the general name of Invest- 
ment Company. 

Prior to May, 1917, the Investment Company held posses- 
sion of the real property in question under an assignment 
made by the lessee of the plaintiff. Default had been made 
in the payment of the rental fixed by the lease and the lessor 



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Sept 1919.] Chase v. Peters* 227 

had also been compelled to pay certain taxes which under 
the lease the lessee had agreed to discharge. An action for 
the unlawful detainer of the property was brought, after a 
due notice given to the lessee and the Investment Company 
to either pay the rental or surrender possession of the prem- 
ises. In that action there were two counts or causes, in one 
of which was contained a statement of the several installments 
of rental which were due and unpaid. In the second cause 
of action there were detailed various amounts which the 
lessor had paid on account of the tax charges. The Invest- 
ment Company did not deny that the rental charges had ac- 
crued as alleged, but insisted that there could be no recovery 
for taxes paid by the lessor, because that cause of action was 
improperly joined to the cause of action for the unlawful de- 
tainer of the property. The court made findings of fact which 
separately and distinctly found the various amounts of rental 
which were due, and separately the items of tax charges that 
had been paid by the lessor. After the entry of judgment 
in May, 1917, no stay having been granted and five days 
having elapsed from the entry of the judgment, writ of res- 
titution was issued and the lessor was restored to the posses- 
sion of the premises leased. The Investment Company ap- 
pealed, and this court held that there could be no recovery 
for taxes paid in an action for the unlawful detention of 
real property. The cause of action under which that re- 
covery was had being separately stated in the complaint, and 
the findings being complete upon the matter of the rental 
charges due, the judgment on appeal was to the effect only 
that the judgment of the lower court be modified by striking 
therefrom the amount which the superior court had found to 
be owing to the plaintiff on account of the tax charges. The 
opinion rendered on that appeal more fully states the facts 
of the case than we have included in the foregoing statement. 
(See Chase v. Peters et al, 37 Cal. App. 358, [174 Pac. 117].) 
Upon the going down of the remittitur in that case the In- 
vestment Company, within five days after the remittitur had 
been received in the clerk's office of the county of San Diego, 
made application to the superior court to be restored to posses- 
sion of the real property upon payment of the amount of rent 
which the judgment of the court had fixed. It is from the 
order denying that application that this appeal is taken. 



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228 Chase v. Peters. [43 Cal. App. 

In section 1174 of the Code of Civil Procedure, which refers 
to the form and substance of a judgment in an unlawful de- 
tainer suit, it is provided: "When the proceeding is for an 
unlawful detainer after default in the payment of rent, and 
the lease or agreement under which the rent is payable has not 
by its terms expired, execution upon the judgment shall not 
be issued until the expiration of five days after the entry of 
the judgment, within which time the tenant, or any subtenant, 
or any mortgagee of the term, or any other party interested 
in its continuance, may pay into court, for the landlord, the 
amount found due as rent, with interest thereon, and the 
amount of the damages found by the jury or the court for the 
unlawful detainer, and the costs of the proceedings, and 
thereupon the judgment shall be satisfied and the tenant be 
restored to his estate ; but if payment as here provided be not 
made within the five days, the judgment may be enforced for 
its full amount, and for the possession of the premises. In 
all other cases the judgment may be enforced immediately." 
[1] It is the contention of the Investment Company on this 
appeal that the five days mentioned in the provision quoted 
did not commence to run as against it, because of the appeal 
taken, until after remittitur had been returned. Under the 
facts of the case as they have appeared, we think that the 
Investment Company was not entitled to the relief asked and 
that its application came too late. If it had desired to retain 
possession of the premises, it should have made tender into 
court of the amount of rent found due, as the section provides, 
within the five days after the judgment was entered. There 
was no order of reversal made as to that judgment. In fact, 
we have noted that the Investment Company did not dispute 
the amount claimed by the lessor on account of rent. The 
case appears to us to be in all respects the same as though 
the judgment appealed from in the former suit was a judg- 
ment for rent only and that that judgment had been affirmed 
upon appeal. In such a case there would seem to be no room 
to argue that the defaulting tenant was given a continuing 
right to be restored to possession of the premises from which 
he had been ousted, all during the period consumed by the 
appeal and for five days after remittitur had been returned. 
This was clearly not the intent of the legislature; such a 
construction of the statute would work a hardship against 
a lessor seeking to rid himself of a tenant who would not pay 



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Sept 1919.] Whitcomb v, Giannini. 229 

his rent, for it would compel the landlord to hold the property 
in readiness to be restored during the whole time that was 
consumed by the taking of the appeal and until the deter- 
mination thereof. This, to our minds, would be directly con- 
trary to the whole design of the special remedy provided 
against defaulting tenants of real property. 
The order appealed from is affirmed. 

Conrey, P. J., and Shaw, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on November 6, 1919. 

All the Justices concurred. 



[CIt. No. 2313. Second Appellate District, Division One.— September 8, 

1919.] 

C. S. WHITCOMB, Respondent, v. PRANK GIANNINI 

et al., Appellants. 

[1] New Trial — Order Denying Motion — Appeal — Dismissal. — An 
order denying a motion for a new trial not being appealable, an 
attempted appeal therefrom should be dismissed. 

T2] Corporations — Adjournment of Meeting — Notice to Directors. 
Where at a meeting of the board of directors of a corporation 
regularly held, a majority of the directors being present, action to 
adjourn to a later date was regularly taken, notice to the direc- 
tors of the adjourned date was not necessary. 

[3] Id. — Time for Holding Meeting— Effect of Holding at Later 
Hour. — The fact that the minutes of the meeting on such 
adjourned date showed that the directors assembled at 1 P. M. 
instead of 10 A. M., as ordered by the resolution of adjournment 
previously made, did not affect the regularity of its acts trans- 
acted at that meeting. In the absence of a showing to the con- 
trary, it must be assumed that the directors met aa soon as a 
quorum had assembled after the hour of 10 A. M. 

2. Sufficiency of notice of meeting of directors, note, Ann. Oaa. 
1914D, 662. 



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230 Whitoomb v. Giannini. [43 Cal. App. 

[4] Id. — Valid Assessment — Postponement of Sale — Iehegularity— 
Bight of Stockholder. — Where the assessment was not invalid, 
and the stockholders were given notice of their delinquencies, the 
passage of a resolution postponing the date of sale and provid- 
ing for notice of such delinquency at a meeting of the board of 
directors not regularly noticed, one member of the board being 
absent, constituted but an irregularity within the provisions of 
section 347 of the Civil Code which provides that a stockholder, in 
order to recover stock thus sold for delinquency assessments, must 
bring his action within six months of such sale. 

[5] Id. — Joint Ownership of Stock — Notice to Record Owner. — 
Even though the corporation had knowledge that the stock was 
owned jointly by two persons, it was only bound to give notice of 
the assessment to the one in whose name the stock stood of record 
on its books. 

[6] Id. — Sale for Delinquency — Purchase by Director — Action to 
Recover — Breach of Trust. — In this action brought to recover 
certain shares of corporate stock alleged to have illegally been 
made the subject of a sale for delinquent assessment and been 
bought by one of the directors of the corporation, the fact's alleged 
and proven failed to show a case where the relation of such 
director to the stockholder was of such a confidential character 
as to make it a breach of faith or trust should he be permitted 
to purchase the stock. 

APPEAL from a judgment of the Superior Court of 
Tulare County, and from an order denying a new trial. 
W. B. Wallace, Judge. Appeal from order denying new trial 
dismissed. Judgment reversed. 

The facts are stated in the opinion of the court. 

E. I. Peemster and Middlecoff & Feemster for Appellants. 

Bradley & Bradley for Respondents. 

JAMES, J. — This action was brought to recover ten shares 
of corporate stock, or the value thereof, which plaintiff 
alleged had been illegally made the subject of a sale for a de- 
linquent assessment. Plaintiff had judgment, from which the 
defendants appeal. [1] There was also an appeal attempted 
to be taken from an order denying to defendants a new 

6. Purchase of stock by director as affected by fiduciary relation to 
stockholder, notes, Ann. Oaa, 1918B, 241; X* R. A. 1016B, 708. 



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Sept 1919.] Whitcomb v, Gianninl 231 

trial; but as that order was not appealable, the appeal there- 
from should be dismissed. 

The contentious of the plaintiff, which were upheld by 
the trial court, were, first, that the meeting of the directors at 
which the assessment was levied was not legally called in that 
the directors were not given written notice of the time and 
place of hearing; second, that a subsequent meeting of the 
directors, at which a resolution was adopted postponing the 
sale of stock upon which the assessment had become delin- 
quent, was illegally held in that the directors were not 
given written notice of the time and place of hearing; 
third, that the plaintiff as a stockholder never received 
a notice, nor was any sent to him, advising him of the de- 
linquency ; fourth, that defendant Giannini, who was the pur- 
chaser of the stock at the delinquency sale, being a director 
of the corporation the stock of which was then being sold, 
was ineligible and disqualified to bid at such sale. It ap- 
peared in evidence that the 4th of August, 1914, was the day 
regularly set by the by-laws of defendant corporation for the 
holding of the regular monthly directors' meeting. There 
were seven directors, all of whom were present except one on 
the day of this regular meeting. The directors present, after 
the meeting was convened, adjourned the regular meeting to 
August 11th, at 10 A. M. The minutes of the meeting of the 
directors, held on the eleventh day of August, showed that 
the meeting convened at 1 P. M., instead of 10 A. M., and 
that all directors again were present except one. The sec- 
retary of the corporation testified that he had given written 
notice by letter to this director, and that he had received a 
telephonic communication from the director stating that he 
would be unable to attend the meeting. There was no evi- 
dence offered to contradict this latter showing as to the 
notice having been given in writing to the absent director of 
the meeting of August 11th. No showing was made on the 
part of the plaintiff that the regular meeting of August 4th 
was illegally called or held, and if notice of that meeting 
was required to be given, it must be presumed in the 
absence of a contrary showing that such notice was given. 
(Sferlazzo v. Oliphant, 24 Cal. App. 81, at p. 86, [140 Pac. 
289] .) [2] The meeting of August 4th being regularly held 
and a majority of the directors being present and the action 
to adjourn to the later date of August 11th having been regu- 



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232 Whitcomb v. Giannini. [43 Cal. App. 

larly taken, no notice to directors of the adjourned date was 
necessary. See Seal of Gold Mining Co. v. Slater, 161 Cal. 621, 
[120 Pac. 15], where it is said : " A director receiving notice of 
a meeting was bound to know that a quorum might adjourn, 
and that business might be transacted at the adjourned meet- 
ing. And this is in accordance with the general rule, which 
is that no notice of adjournment of a meeting regularly called 
need be given." (Citing authorities.) Hence, not only was 
no notice required to be given to any director of the time 
and place for the holding of the adjourned directors' meeting, 
but the evidence without dispute shows that the only director 
absent on August 11th was notified in writing. [3] The 
fact that the minutes of the meeting showed that the directors 
assembled at 1 P. M., instead of 10 A. M., as ordered by the 
resolution of adjournment previously made, seems to us not 
to be material, for the reason that, in the absence of evi- 
dence to the contrary, it may be presumed that the directors 
met as soon as a quorum had assembled after the hour of 
10 A. M., and especially in view, too, of the fact that no 
showing was made that the absent director appeared at 10 
o'clock and failed to remain because of the lack of a quorum. 
He had previously notified the secretary that he would not 
appear. The directors' meeting of August 11th, at which 
the resolution was adopted levying the assessment against 
the stock of the defendant corporation, was, therefore, duly 
held and legally noticed and called. That the resolution levy- 
ing the assessment was sufficient in form and substance is 
not disputed. In this resolution it was declared that the 
assessment levied thereunder should become delinquent on 
the sixteenth day of September, 1914, and that all delinquent 
stock on which the assessment had not been paid should be 
sold on the fifth day of October, 1914, at 2 o'clock P. M. On 
the first Tuesday in September, that being the time fixed by 
the by-laws for the holding of the regular monthly directors' 
meeting, a quorum was not present Minority directors at- 
tempted to adjourn until September 2d. On September 2d 
a quorum was present and an adjournment was taken to 
September 17th. Five directors were present at the meeting 
of September 17th and an adjournment was again taken 
to October 3d. At the meeting of September 17th, at which 
there were present all but two directors, a resolution was 
adopted providing for the publication of a notice giving the 



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Sept 1919.] Whitoomb v, Giannini. 233 

names of those delinquent and the stock held by them, and 
giving notice of sale which was to take place on the 5th of 
October, 1914, as previously determined in the resolution 
levying the assessment. At the October 3d meeting, at which 
all directors were present except one, the absent director being 
the director who is defendant here, Giannini, a resolution was 
adopted postponing the date of sale from October 5th to 
November 4th f and providing for publication of notice of 
such extension or postponement. We have already concluded 
that the proceedings up to and including the levying of the as- 
sessment were regularly taken and had, and the record fur- 
ther shows that subsequent proceedings, up to and including 
the date of delinquency as fixed in the resolution last referred 
to, were all completed as required by law. The resolution 
ordering the assessment contained complete direction for the 
publication of the necessary notice of sale for delinquencies 
(Civ. Code, sec. 337), and the publication of that notice, it 
is admitted, was had in accordance with the direction of the 
resolution. 

[4] The question as to whether the meeting of October 
3d was regularly called and held, that being the meeting at 
which the resolution was passed postponing the date of sale 
to November 4th, is next entitled to consideration. If all of 
the directors had been present at that meeting there would 
have been no question as to the legality of the action taken, 
regardless of the matter of notice having been given to any 
of them. (Civ. Code, sec. 320a.) It may be assumed that 
the court was correct in finding, as it inferentially did, that 
the requisite notices were not given of the meeting of October 
3d. The assessment, as has been noted, was not invalid ; the 
stockholders had notice of their delinquencies; hence, we 
think that the irregularity, if such it be, was one included 
within the provisions of section 347 of the Civil Code, which 
provides that a stockholder must in such case bring his action 
within six months after the date of sale. This action was 
commenced by the filing of a complaint on February 21, 1916; 
the sale of the stock was made in November, 1914. Assuming 
that the plaintiff as stockholder received all the necessary 
notices and that, as we have already decided, the levying 
of the assessment was regularly done, plaintiff's action would 
be too late. 



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234 Whitoomb v. Oiannini. [43 Cal. App. 

[5] There is next to be considered the question as to 
whether at the times material to the levying of the assessment 
and making of the sale plaintiff was in fact a stockholder in 
defendant corporation and, if so, whether he was charged 
with notice. It is admitted by the defendants that no special 
notice was given to the plaintiff of the levying of the assess- 
ment, as required by section 336 of the Civil Code; that is, 
no notice was given to him other than such notice as might 
be imparted by that published in the newspaper. Admittedly 
the giving of notice by publication alone under the section of 
the code cited would not be sufficient. The ten shares of 
stock referred to in this controversy were originally issued 
to one Hall and had never been transferred from Hall to 
any person upon the books of the corporation up to and in- 
cluding the date of sale as made under the assessment. It 
seems that the defendant corporation was engaged in the 
business of furnishing a certain form of power to its stock- 
holders. After Hall secured his stock he parted with some 
interest in land, which was affected by the stock, to this 
plaintiff, and the certificate of stock was taken to the office 
of defendant corporation and the person in charge notified 
of the fact that Whitcomb had become the owner of an 
undivided interest in the stock. There was testimony that 
the secretary of the corporation took the original certificate 
and, after the name of Hall appearing therein, wrote the 
name of this plaintiff. Plaintiff testified that he was the 
joint owner with Hall of the stock up to the time that Hall 
transferred his entire interest to the plaintiff. Under the 
issues made by the pleadings we must assume that this latter 
transfer was made after the sale for delinquent assessment. 
We have noted that the stock was never transferred upon the 
books of the corporation, it is shown that notice of the as- 
sessment was given to Hall, the record owner, and that none 
was given to the plaintiff. As far as can be gathered from the 
record the interest acquired by Whitcomb, the plaintiff, both 
in the property of Hall and in the stock of defendant corpo- 
ration, which was useful principally in connection with that 
property, was in the nature of a partnership interest. Plaintiff 
in his testimony insisted that the interest was a joint interest, 
and if we are to assume that the corporation, because of the 
fact, as it appeared, that it had knowledge that both Whit- 
comb and Hall were being dealt with in connection with the 



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Sept. 1919.] Whitoomb v. Giannini. 235 

power furnished to the land, is estopped from denying that 
plaintiff held a stockholder's interest in the corporation, then 
we think that it is logically to be concluded that notice to 
Hall was notice to Whitcomb. We are strongly inclined to the 
conclusion that as the stock had never been transferred on 
the books of the corporation the latter was not bound to 
recognize Whitcomb as a stockholder when it gave notice of the 
assessment levied. While it is true that Whitcomb stated 
in his testimony that he asked the secretary to see that the 
books were changed, he made no request at any time to have 
any specific number of shares of stock assigned to him, or 
for any new certificate to be issued to him, but went away 
content with the writing in of his name after Hall's on the 
original certificate, after stating to the secretary that he had 
become " jointly' * interested in the stock with Hall. Section 
324 of the Civil Code provides that stock may be transferred 
upon the books of the corporation, and provides that "until 
the same is so entered upon the books of the corporation as 
to show the names of the parties by whom and to whom 
transferred, the number of the certificate, the number or 
designation of the shares, and the date of the transfer," such 
transfer, except as between the parties, should not be valid. 
Under the facts shown we conclude, first, that assuming the 
plaintiff to have been a stockholder of defendant corporation 
and of whom defendant corporation was bound to take notice, 
the interest in the stock being a joint interest, notice to Hall 
of the delinquent assessment was notice to him. Secondly, 
that it is not correct to assume that the corporation was com- 
pelled to take notice of the plaintiff's interest in the stock, 
but that relying upon its records, there appearing not to 
have been a transfer made from Hall to plaintiff, the only 
notice that was required to be expressly given of the levying 
of the assessment was notice to Hall. [6] The claim made 
and to which countenance was given by the trial judge, that 
Giannini, being a director at the time of the levying of the as- 
sessment and the sale made, was ineligible and disqualified 
from bidding at the sale or of purchasing stock sold thereat, 
we are not prepared to sustain. The facts shown in no way 
illustrate a case where the relation of the director to the stock- 
holder was of such a confidential character as to make it a 
breach of faith or trust should he be permitted to purchase 
the stock. 



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Blackburn v. Marple. [43 Cal. App. 

In our opinion, the trial judge was in error in the making 
np of his conclusions as to the rights of the plaintiff. 

The appeal from the order denying defendants' motion for 
new trial is dismissed. The judgment is reversed. 

Conrey, P. J., and Shaw, J., concurred. 



[Civ. No. 2298. 8econd Appellate District, Division One. — September ft, 

1919.] 

OLIVER V. BLACKBURN, Respondent, v. R. S. MARPLE, 

Appellant. 

[1] Negligence— Automobile Collision — Action rat Damages — Evi- 
dence — • Findings — Appeal.— This actfon for damages alleged to 
have been suffered through the negligence of the defendant in the 
operations of his automobile whereby it was caused to collide with 
an automobile operated by the plaintiff, on the evidence, was 
peculiarly one which called for the judgment of the trial court 
upon the question as to the negligent act of the defendant, and 
the trial court having solved the question in favor of the plaintiff, 
the appellate court could not say from the transcript of the evi- 
dence, that the findings of the trial court were in any way un- 
supported by the evidence. 

[2] Id.— Approach of Intersecting Way— Operation and Control op 
Motor Vehicle— Construction or Law.— The intent of the Motor 
Vehicle Law, in requiring that the operator of a motor vehicle, 
upon approaching an intersecting way where the view is obstructed, 
must not travel at a greater rate of speed than ten miles an 
hour, is that it shall be brought to the speed indicated by the 
time it shall reach the intersecting way in order that it may be 
fully under control of the operator; and in this action it cannot 
be said that plaintiff violated the provisions of such statute, he 
having been traveling at the rate of about twenty miles per hour, 
his machine being under control, but having slowed down to about 
eight miles per hour at the time his machine was struck by the 
defendant's machine, he not having yet entered upon the intersect- 
ing way. 

2. Effect of speed and application of speed regulations on liability 
for collision botwoen automobiles at or near corner of streets or high- 
ways, note, L, E. A. 1916A, 747. 



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Sept 1919.] Blackburn v. Marplr. 237 

[S] Id. — Last Clbab Chance. — Under the facts of this ease there was 
nothing which would make the doctrine of the last dear chance 
applicable to either party. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. Lewis R. Works, Judge. Affirmed. 

The facts are stated in the opinion of the court 

Tanner, Odell & Taft for Appellant 

Porter C. Blackburn for Respondent 

JAMES, J. — Plaintiff was awarded judgment for the sum 
of $350 against this appellant on account of damages alleged 
to have been suffered through the negligent acts of the de- 
fendant R. S. Marple. The particular act of negligence 
alleged was that said defendant so operated an automobile 
driven by him as to cause it to collide with an automobile 
which was then being operated by the plaintiff. The appeal 
is taken from the judgment. 

The particular facts upon which the judgment was entered 
are quite fully embraced in the findings of the trial judge, 
the most material portions of which we quote: "That on the 
fourteenth day of July, 1915, at or about the hour of 6:30 
P. M., while it was still light, the plaintiff was driving a 
Ford automobile along a public highway known as the state 
highway, leading from the town of Whittier to the town of 
Fullerton, in an easterly direction, about one mile east of the 
county line of Los Angeles and Orange Counties. That the 
plaintiff was driving his Ford car at a speed of twenty miles 
per hour. That the plaintiff was seated in the front seat 
of his car with a small child on his right side, and that his 
wife and two small children were seated in the rear scat 
That the state highway runs in an easterly and westerly 
direction at the above-mentioned place, and that there is an 
intersecting highway that enters the said state highway from 
the south, known as the La Habra road, and that the said 
La Habra road intersects the said state highway by two long, 
sweeping curves, one curve turning into the said state high- 

3. Origin, function, and mode of operation of the last clear chance, 
note, 55UB.A. 418. 



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238 BlajCkburn v. Marplb. [43 Cal. App. 

way to the left and one curve turning into the said state 
highway to the right as the said La Habra road approaches 
the intersection with the said state highway. That the said 
La Habra road does not cross the said state highway. That 
in the center of the two sweeping curves and at the junction 
with said state highway there is a triangular piece of ground, 
which is not paved but subject to travel, being oiled and 
rolled. That the said state highway and the said La Habra 
road are about 60 feet wide, with a paved portion in the center 
of 18 feet, and that said highways are used by the public 
for travel. That there is a row of electric light poles on the 
south side of the said state highway near the property line, 
and a row of orange trees about four feet south of the south 
property line. That the plaintiff, who was driving his Ford 
car, on approaching the said intersection of the two highways, 
saw an Overland car, driven by the defendant, approaching 
the said state highway by the long sweeping curve that 
branches from the said La Habra to the left as the said 
state highway is approached from the south. That the plain- 
tiff saw the approaching Overland touring car turning into 
the said state highway, and immediately turned to his right, 
and slowed his Ford car down to eight miles per hour. That 
the defendant also slowed his car down, but after he had 
arrived at about the center of the said state highway, and 
his car was approaching the north side of said state highway, 
he turned his car abruptly to his left, and continually turned 
the same to his left, with the same pointed in a southwesterly 
direction and toward the south side of the said state high- 
way. That the defendant drove his car in such a negligent 
manner that the same was pointed and directed toward the 
side of the plaintiff's machine near its front. That the plain- 
tiff kept turning his machine to his right and to the south 
of the said state highway, whereupon he was forced to 
turn off the said state highway into an orange orchard, within 
about two feet of an electric light pole, and under the 
branches of an orange tree, and the plaintiff's machine was 
struck by the front end of the defendant's machine on the 
left side and near its front." 

Appellant's contentions may be briefly stated under two 
heads: (1) That under the evidence the court was not justified 
in making findings against appellant; (2) that, conceding that 
the evidence showed negligence upon the part of appellant, 



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Sept. 1919.] Blackburn v. Marpltb. 239 

the evidence also showed contributory negligence upon the 
part of the plaintiff. There was a conflict in the evidence 
concerning the manner in which the accident occurred ; hence 
as to findings made under such evidence the conclusions of 
the trial judge must be here treated as final. Appellant has 
argued that under all of the evidence it must be concluded 
that it was impossible that the accident could have happened 
in the manner described by the plaintiff. After carefully 
examining the printed transcript of the testimony heard, we 
cannot agree with this contention. Plaintiff testified that he 
was traveling easterly along a straight road and that two 
hundred feet away from where the intersecting road upon 
which the defendant was traveling emerged he observed the 
defendant and immediately slowed down his machine, he then 
being upon the extreme right of the highway, and that the 
defendant, instead of keeping to the right and making the 
turn along the curve of the intersecting road, turned toward 
the left; that the plaintiff guided his machine off from the 
highway into the soft dirt on the right-hand side thereof and 
that the defendant's car collided with him. The point of 
collision was not within any part of the intersecting highways, 
but was about opposite the most westerly point of the inter- 
secting curve. A physician, who was traveling in an auto- 
mobile immediately behind the plaintiff, testified that the 
plaintiff was on the right side of the road and that he (the 
witness) saw the automobile of the defendant emerge from the 
road intersecting at the right and that the defendant's vehicle 
passed across the front of the plaintiff's machine and ap- 
peared in view at the left thereof and that the collision oc- 
curred immediately thereafter. There was testimony of 
several witnesses that the appellant stated immediately after 
the accident that he had become confused, and had thought 
that the plaintiff intended to travel directly eastward, and 
that he (appellant) turned to the left to allow the machine 
of the plaintiff to go on at his right. [1] On the evidence 
the case was peculiarly one which called for the judgment of 
the trial court upon the question as to the negligent act of ap- 
pellant, and we find nothing at all appearing in the transcript. 
of the evidence which would justify us in the conclusion that 
the findings of the trial judge are in any way unsupported 
by the evidence. 



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240 Blackburn v. Marplb. [43 Cal. App. 

The findings of the trial court further negative the claim 
of appellant that the plaintiff had been guilty of contributory 
negligence proximately causing or contributing to cause the 
accident. Appellant cites us to a provision of the motor 
vehicle law, found in the Statutes of 1913, at page 649, which 
requires that the operator of a motor vehicle, where the view 
is obstructed, upon approaching an intersecting way must not 
travel at a greater rate of speed than ten miles an hour. 
Just previous to the accident plaintiff had been traveling at 
the rate of about twenty miles per hour. The evidence 
showed that his machine was under control and he himself 
testified that upon observing the appellant two hundred feet 
away, emerging from the intersecting road, he slowed down 
his machine and kept to the right. When he was struck by 
appellant 's automobile his machine was traveling about eight 
miles per hour. At that point, as we have before noted, he 
had not entered upon the intersecting way. [2] The intent 
of the law, as we view it, in restricting the speed at which 
a motor vehicle may travel at such a point, is that it shall 
be brought to the speed indicated by the time it shall reach 
the intersecting way in order that it may be fully under 
control of the operator. It cannot be said under the evidence 
that it was established that the plaintiff violated the provision 
of the statute cited. The case of Cook v. Miller, 175 Cal. 
497, [166 Pac. 316], cited on behalf of appellant, was not 
the same in its facts as the case here presented. [3] Neither 
was there anything in the facts under the evidence which 
would make the doctrine of the last clear chance applicable to 
either party. 

The judgment appealed from is affirmed. 

Conrey, P. J., and Shaw, J., concurred 



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Sept. 1919.] San Joaquin L. & P. Co. v. Barlow. 241 



[Civ. No. 2294. Second Appellate District, Division One. — September 8, 

1919.] 

SAN JOAQUIN LIGHT & POWER COMPANY (a Corpo- 
ration), Respondent, v. C. H. BARLOW, Appellant. 

[1] Assumpsit — Electricity Furnished Under Contract — Corre- 
spondence as Evidence op Beasonable Value. — In an action 
upon a common count for the reasonable value of electric current 
delivered by plaintiff to the defendant, correspondence between 
the parties authorizing the plaintiff to deliver electricity and to 
charge therefor at a stated rate is admissible to prove that the 
rate charged was reasonable, although such correspondence proved 
a contract price. 

[2] Id. — Exclusion op Evidence — Formal Ruling and Exception 
Implied. — In this action to recover the reasonable value of electric 
current delivered by plaintiff to the defendant, although no ques- 
tion was formally propounded to the witness on cross-examination, 
as to the reasonableness of the rate charged, with a ruling thereon 
from which under the statute an ezeception would be implied, the 
statements of the court to the effect that the only issue was as to 
the amount of current furnished, and that it did not see that there 
was any open question as to the reasonableness of the rate, to 
which counsel for defendant, without any direct exception, re- 
sponded that on the ruling of the court he would not ask any 
further questions on cross-examination as to the reasonableness of 
the rate, was equivalent to such formal ruling and exception. 

[3] Id. — Curtailment op Cross-examination — Prejudicial Error. — 
In such action, the refusal of the court to permit the only witness 
produced by plaintiff on the subject of the reasonable value of 
the electricity furnished to defendant to be cross-examined for the 
purpose of testing his qualifications as a witness on the question 
of reasonable value, and for the purpose of showing that the 
charge was not reasonable, was prejudicial error. 

[4] New Trial — Order Denying — Appeal. — Where the court's order 
denying a motion for a new trial was made after the right of 
appeal from such orders had been taken away by amendment of 
the statute, an appeal therefrom will be dismissed. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County, and from an order denying a new trial. 
Fred H. Taft, Judge. Judgment reversed; appeal from 
order denying new trial dismissed. 

The facts are stated in the opinion o? the court. 

48 Cal. App.— 16 



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242 San Joaquin U ft P. Co. v. B a blow. [43 Cal. App. 

Frank P. Doherty for Appellant 
Stuart M. Salisbury for Respondent. 

CONREY, P. J.— In this action the plaintiff seeks to re- 
cover the sum of $655.20 upon a common count for the alleged 
reasonable value of electric current delivered by plaintiff to 
the defendant. From a judgment awarding the demanded 
sum of money the defendant appeals. 

The plaintiff introduced in evidence certain correspondence 
between the parties, constituting a contract which authorized 
the plaintiff to deliver electricity and to charge therefor at 
a Rtated rate. The evidence further shows that a stated 
quantity of electric current was delivered, and that the 
amount due therefor, when computed in the manner and at 
the rate named in the contract, is the sum demanded in this 
action. Simpson, a clerk whose duty it was to compute 
charges from meter readings brought into plaintiff's office, 
testified for the plaintiff, and stated that the several charges 
n *de were reasonable charges for the service rendered. 

The errors claimed and relied upon, as we glean them from 
tfie briefs of appellant's counsel, are as follows: (1) That 
the letters were not admissible to prove a contract price, 
because the plaintiff's complaint counts upon reasonable value 
and not upon a contract price; (2) That the court erred in 
preventing cross-examination of Simpson for the purpose of 
testing his qualifications as a witness on the question of reason- 
able value, and for the purpose of showing that the charge 
was not reasonable. 

[1] 1. Although the letters received in evidence proved a 
contract price, they by virtue of that fact were also evidence 
tending to prove that the rate charged was reasonable. "A 
promise to pay a specific sum is some evidence of value." 
(Steward v. Hinkle, 72 Cal. 187, 191, [13 Pac. 494, 495].) 
"Where an express contract has been fully performed by 
plaintiff and nothing remains to be done under the contract 
but the payment of money by defendant, and plaintiff sues 
on indebitatus assumpsit instead of on an express contract, 
the contract is admissible as evidence of the amount due, and 
it is the best evidence of such amount, and prima facie es- 
tablishes it." (5 Corpus Juris, 1409.) 



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Sept. 1919.] San Joaquin L. & P. Co. v. Barlow. 243 

[2] 2. On cross-examination of Simpson, after some ques- 
tions had been asked and answered, relating to the conditions 
under which the service was to be rendered, and for the stated 
purpose of reaching the question of what was a reasonable 
rate, counsel for plaintiff objected that defendant could not 
go into these matters, on the ground that defendant, by enter- 
ing into the contract, was estopped to question the reasonable- 
ness of the rate. After discussion, the court announced that 
"the only issue here is of them furnishing the amount for 
which they are charging." Mr. Doherty: "You mean no 
further testimony allowed on the proposition of whether or 
not the rate fixed by them was a reasonable rate under the 
issue of their pleadings t" The Court: "I don't see that 
there is any open question there.' ' On the ruling thus made, 
defendant's counsel refrained from further cross-examination 
on the reasonableness of the rate. 

To the statement made by the court, and without any 
direct exception, counsel responded, "Well, on the ruling of 
the court, then, I will not ask any further questions on cross- 
examination as to the reasonableness of the rate." 

Although no question was formally propounded, with a rul- 
ing thereon from which under the statute an exception would 
be implied, the record made, as above stated, was equivalent 
to such formal ruling and exception. (Pastene v. Pardini, 
135 Cal. 431, [67 Pac. 681].) 

[3] The court erred in thus cutting off, substantially at 
its beginning, the cross-examination of Simpson on the subject 
of reasonable value of the electricity furnished to defendant. 
The effect of the ruling was to leave his testimony, as given 
on direct examination, unaffected by any additional state 
ments by which it might have been modified on the cross- 
examination. No other witness on the subject was produced 
by plaintiff, and this evidence had such an important bearing 
on the fact at issue, that the defendant was seriously pre- 
judiced by the court's refusal to allow the cross-examination 
to proceed as indicated. 

[4] As the court's order denying defendant's motion for 
a new trial was made after the right of appeal from such 
orders had been taken away by amendment of the statute 



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244 Standing v. Morosoo. [43Cal. App. 

(Code Civ. Proc., sec. 963, [Stats. 1917, p. 624]), the appeal 
from that order is dismissed. 
The judgment is reversed. 

Shaw, J., and James, J., concurred. 

A petition for a rehearing of this cause was denied by the 
district court of appeal on September 30, 1919. 



[CSt. No. 1879. Second Appellate District, Division One. — September 8, 

1919.] 

HERBERT STANDING, Appellant, v. OLIVER MOROSCO, 

Respondent. 

[1] Statute of Frauds — Contracts not in Writing — Estoppel to 
Assert Statute — Unconscionable Injury. — The mere omission to 
insist that a writing be made, or reliance only upon the unfulfilled 
promise of the other to put the agreement in writing, is not suffi- 
cient to protect the party insisting upon the fulfillment of the 
alleged contractual obligation. Ue must be misled by the other 
to his prejudice; and not only must sufficient facts appear to show 
a representation (by words or conduct) on the part of the de- 
fendant that he did not intend to resort to a plea of the statute, 
but the other party must have so altered his position as that he 
would be made to suffer loss or unconscionable injury. If no such 
injury or loss is shown, the reason for the rule of estoppel fails 
and the excepted case is not established. 

[2] Id. — Term of Employment — Construction or Memorandum. — 
Where a memorandum with reference to one's employment con- 
tains no words fixing the term of service, but the compensation is 
to be paid at a weekly rate, the term should be construed as be- 
ing from week to week. 

[3] Id. — Promise to Execute Contract — Sufficiency of Parol. — A 
promise to execute "the usual theatrical contract" would be of no 
more potency when expressed in writing than by parol. 

[4] Id. — Contract for Personal Services — Action for Breach — In- 
sufficient Allegations of Estoppel. — In this action for damages 

1. Estoppel to plead statute of frauds, note, 134 Am, 8L Rap. 173. 

3. Bight to discharge employee where contract of hiring specifies no 
term but fixes compensation at a certain amount per day, week, month 
or year, notes, 11 A. I* B. 469; 51 I* B. A. (N. 8.) 629. 



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Sept 1919.] Standing v. Moboboo. 245 

alleged to have been sustained by the plaintiff through the re- 
fusal of the defendant to use and pay for the services of the 
plaintiff after having employed him for a period of one year as 
an actor to appear in plays produced by the defendant, the com- 
plaint did not make out a case entitling the plaintiff to enforce 
his contract, which was not in writing and, therefore, admittedly 
within the statute of frauds. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. Curtis D. Wilbur, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

Paul W. Schenck and Joseph Citron for Appellant. 

Scarborough & Bowen for Respondent 

JAMES, J. — The demurrer of defendant on general and 
special grounds was sustained to the third amended complaint 
of the plaintiff and leave to further amend was denied. Judg- 
ment of dismissal followed, from which plaintiff appealed. 

The cause of action attempted to be alleged was one for 
damages sustained by the plaintiff through the refusal of the 
defendant to use and pay for the services of the plaintiff after 
having employed him as an actor to appear in plays produced 
by the defendant in his theater at Los Angeles. Plaintiff 
alleged that the engagement was for a period of one year. 
It is respondent's contention that the complaint in its allega- 
tions showed a case falling within the statute of frauds, and 
that plaintiff could not recover because the term of employ- 
ment was not fixed in any writing. An agreement which 
is not to be performed within one year from the making 
thereof, in order to be valid, must be expressed in writing. 
(Civ. Code, sec. 1624, subd. 1.) In order to avoid the effect 
of the statute, it is appellant's position that there was such 
part performance of the contract shown as to raise an estoppel 
against respondent, preventing him from questioning the 
validity of the contract or its enforceability. The rule re- 
ferred to is an equitable one which holds it to be a fraud 
under some circumstances to permit a party to make the de- 
fense that a contract w void or unenforceable because not in 
writing. [1] Every person is advised of the plain require- 
ment of the statute, and the mere omission to insist that a 
writing be made, or reliance only upon the unfulfilled promise 



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246 Standing v. Morosco. [43 Cal. App. 

of the other to put the agreement in writing, is not sufficient 
to protect the party insisting upon the fulfillment of the 
alleged contractual obligation. He must be misled by the 
other to his prejudice ; not only must sufficient facts appear 
to show a representation (by words or conduct) on the part of 
the defendant that he did not intend to resort to a plea of 
the statute, but the other party must have so altered his posi- 
tion as that he would be made to suffer loss or unconscionable 
injury. If no such injury or loss is shown, the reason for the 
rule of estoppel fails and the excepted case is not established. 
(See Browne on Statute of Frauds, 5th ed., sec. 457; Glass 
v. Hulbert, 102 Mass. 24, [3 Am. Rep. 418], both cited in 
Seymour v. Oelrichs, 156 Cal. 782, [134 Am. St. Rep. 154, 
106 Pac. 88].) The complaint of plaintiff shows: That in 
December, 1912, plaintiff was employed as an actor in the 
city of New York by defendant at the weekly salary of 
two hundred dollars, and that he had been engaged for a 
certain play. (How long this play was to run, or for what 
period of time plaintiff was under contract at two hundred 
dollars per week, is not alleged.) It is alleged that defendant 
promised and agreed that if plaintiff would reduce his salary 
to $150 per week and remove to Los Angeles, defendant would 
employ him for a period of one year; that defendant prom- 
ised to execute a contract in writing employing plaintiff for 
one year; that plaintiff accepted the agreement, relying 
wholly upon the representations made, and "refused to accept 
other employment which had been tendered him, and other- 
wise injuriously changed his position and removed to the city 
of Los Angeles.' ' (What the compensation or term of service 
would have been under the alleged employment offered, or how 
plaintiff's position was "injuriously changed," does not ap- 
pear.) There is the further allegation that plaintiff's wife 
remained in New York, "as was agreed," and disposed of 
plaintiff's home and household furniture, and that two months 
after plaintiff came to Los Angeles his wife c&me also, and that 
the transportation was furnished to her by defendant; that 
on the fifteenth day of March, after plaintiff had been em- 
ployed in Los Angeles by defendant for two and one-half 
months at $150 per week, defendant discharged plaintiff and 
refused to accept his offered services; and refused to "com- 
plete the execution of the said contract of employment which 
the said defendant promised and agreed at various times to 



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Sept 1919.1 Standing v. Morosco. 247 



deliver to the plaintiff, and repudiated his promises and rep- 
resentations made to this plaintiff." It is further alleged 
that defendant knew that a detrimental change of position 
and situation on the part of plaintiff would be necessary in 
the event plaintiff relied on defendant's said promises and 
representations; that the said promises and representations 
of the defendant were made with the knowledge and with the 
intent that they should be relied on by plaintiff and the 
change in his position thereby induced. A written memo- 
randum, alleged to have been signed by defendant in New 
York, was set forth. It was in the following words: 
"Mr. Standing, 

44 1 will pay you one hundred and fifty ($150.00) dollars 
per week in Los Angeles for the length of your engagement 
there, under the terms of the usual theatrical contract. 

44 As you have reduced your salary with me I will be very 
glad to pay the transportation and sleeper of Mrs. Standing 
two mo's hence to Los Angeles. 

"This will hold good only when we execute regular contract, 
O. M. (Signed) 

44 Tours very truly, 

44 0. Morosco.' ' (Signed) 

[2] The memorandum contains no words fixing the term 
of service. The compensation was to be paid at a weekly rate; 
hence the term should be construed as being from week to 
week. This without reference to section 2010, of the Civil 
Code, which imposes that rule of construction upon contracts 
for the employment of a " servant." A servant is defined 
in the preceding section to be one employed to render per- 
sonal service 4 * otherwise than in the pursuit of an indepen- 
dent calling," and one who remains entirely under the direc- 
tion and control of his master. It is not alleged what "the 
terms of the usual theatrical contract" were — they may have 
related wholly to matters of detail. And so the writing does 
not help the complaint except to show that the defendant 
agreed to execute "the usual theatrical contract." [3] This 
promise would be of no more potency when expressed in 
writing than by parol. 

[4] We cannot conclude that the case alleged is one show. 
ing that plaintiff is entitled to enforce his contract, which 
is admittedly within the statute of frauds. That he suffered 
detriment because of any action taken by him and in reli- 



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248 People v. Wagner. [43CaLApp. 

ance upon the promises of defendant, the facts alleged do 
not show. Neither monetary loss nor great personal incon- 
venience can be presumed to have resulted to him. His 
property in New York may have been disposed of at a profit ; 
the other employment tendered him may have been undesir- 
able, of short duration, or covered by small prospective com- 
pensation. The change of residence from New York to Los 
Angeles may have been an agreeable one. The contract that 
plaintiff relinquished under which he was receiving two hun- 
dred dollars per week, may have been one for weekly em- 
ployment only. Assuming against the pleader, as we must, 
all facts reasonably consistent with the facts alleged, but ad- 
verse to the plaintiff, it cannot be said the complaint makes 
out a case entitling the plaintiff to the relief sought. 
The judgment appealed from is affirmed. 

Conrey, P. J., and Shaw, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on November 6. 1919. 

All the Justices concurred, except Wilbur, J., and Lennon, 
J», who did not participate. 



[Crim. No. 853. First Appellate District, Division Two. — September 8, 

1919.] 

THE PEOPLE, Respondent, v. GEORGE WAGNER, 

Appellant. 

[1] Criminal Law— Burglary— Intent — Evidence. — The question of 
criminal intent is one to be determined by the jury from all the 
evidence; and where, as in this prosecution for burglary, the evi- 
dence produced by the state is believed by the jury and is suffi- 
cient to support the verdict, any conflict between the evidence of 
the defendant and that produced by the state must be resolved 
against the defendant. 

APPEAL from a judgment of the Superior Court of 
the City and County of San Francisco. Prank II. Dunne, 
Judge. Affirmed. 



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Sept 1919.] People v. Wagner. 249 

The facts are stated in the opinion of the court. 

Ralph Starke, Bradley V. Sargent and Vincent Surr for 
Appellant. 

U. S. Webb, Attorney-General, and John H. Riordan, 
Deputy Attorney-General, for Respondent. 

BRITTAIN, J.— The appellant was convicted on an in- 
formation charging burglary by entering "the house, room, 
apartment, tenement, shop, warehouse, store and building" of 
Michael Logue,in San Francisco. The only question is re- 
garding the sufficiency of the evidence to show burglarious 
intent. 

Logue, the complaining witness, operated a saloon. Back 
of the saloon ran a passageway, on which opened the living 
apartments he occupied with his wife. From the passageway 
also opened a washroom, from which there was a door to an 
alleyway. Evidently there was another door leading either 
from the passageway or the washroom to an inclosed yard. 
Shortly before 10 o'clock on the night in question the appel- 
lant, a stranger, entered the saloon and was served with liquor. 
About 10 o'clock the saloon was closed by Logue. He went 
to his living apartments across the hall, and, after closing 
the door from the passageway to the living apartments, he 
retired with his wife. The door was fitted with a Tale spring 
lock, which, the evidence showed, automatically locked the 
door when it was tightly closed. Logue testified that he had 
slammed the door. Shortly before midnight Logue was 
awakened by his wife, who said something unusual was oc- 
curring in the corridor. He arose and on going to the door 
leading to the passageway found it open and saw the appellant 
standing there. He slammed the door and he testified the 
appellant then tried to shove the door in, and that the appel- 
lant made some exclamation, which Logue described as a 
" yell of disappointment/' Logue immediately went into 
another room, the back one of the living apartments, and paw 
the appellant trying to get over the fence from the yard. 
The appellant then ran out of the alleyway. Logue tele- 
phoned to the police station, and after a few minutes ac- 
companied an officer to Daly City, where the appellant was 
arrested, after having been identified by Logue. At that 



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250 Psoplb v. Wagner. [43Cal. App. 

time the appellant had whitewash on the upper portion of 
his clothing, which it was claimed was from the fence of the 
yard. The officer testified that when the appellant was ar- 
rested, in response to a statement of the officer that Logue 
claimed he had committed burglary at his residence, he said, 
"You have the right man — I am the man." 

On behalf of the appellant it is argued that under the pre- 
sumption of innocence which attends the accused, and in view 
of the silence of the record as to the appellant leaving the 
saloon after he was served with drinks, the state failed to 
show a burglarious intent on the part of the appellant. It 
is argued that he may have gone into the corridor under the 
influence of liquor, and on coming to his senses after the 
saloon was closed, he was simply trying to find a way out 
of the corridor. The appellant relies on the rule announced 
in People v. Barry, 94 Cal. 484, [29 Pac. 1026], and People 
v. Britton, 142 Cal. 10, [100 Am. St. Rep. 95, 75 Pac. 314] 
The defendant took the stand on his own behalf and testi 
fied that on the day in question he had been drinking. 

[1] The question of criminal intent is one to be determined 
by the jury from all the evidence. (People v. Swalm, 80 Cal. 
46, [13 Am. St. Rep. 96, 22 Pac. 67] ; People v. Noon, 1 Cal. 
App. 44, [81 Pac. 746] .) The evidence that the locked door of 
the living apartments was opened ; that the appellant was dis- 
covered at the door, and concerning his statement to the 
arresting officer, was believed by the jury who heard the testi- 
mony. It was sufficient to support the verdict, and any con- 
flict between the evidence of the appellant and that produced 
on behalf of the state on appeal must be resolved against 
the appellant {People v. Emerson, 130 Cal. 562, [62 Pac 
1069].) 

The judgment is affirmed. 

Langdon, P. J., and Nourse, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on November 6, 1919. 

Angrellotti, C. J. f Shaw, J., Lawlor, J., and Wilbur, J., 
concurred. 



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Sept. 1919.] People v. Razo. 251 



[GrioL No. 864. First Appellate District, Division Two. — September 11, 

1919.] 

THE PEOPLE, Respondent, v. RAMON RAZO, Appellant. 

[1] Criminal Law — Robbery — Limitation op Cross-examination — 
Power of Court. — The trial court has the power to exercise a 
reasonable control over the cross-examination of a witness; and in 
this prosecution for the crime of robbery the court properly ex- 
cluded certain questions directed toward the matter of whether the 
prosecuting witness actually had the coins alleged to have been 
taken from him, where this matter had already been testified to 
repeatedly by such witness upon his cross-examination. 

[2] Id. — Discussion of Cass With Prosecuting Witness — State- 
ments of District Attorney in Argument — Misconduct— Error 
not Prejudicial. — In his argument to the jury, statements of the 
district attorney of his own knowledge, as distinguished from the 
summing up of the testimony of the prosecuting witness, that such 
witness had not talked the case over with him, would be mis- 
conduct upon his part, but not such prejudicial error as to warrant 
a reversal of the judgment where the repeated unequivocal state- 
ments of the witness were that he did not talk the case over with 
the district attorney and his testimony was uncontradicted on this 
point 

APPEAL from a judgment of the Superior Court of 
Alameda County. James O. Quinn, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

Milton W. Sevier and George M. Naus for Appellant 

U. S. Webb, Attorney-General, and John H. Riordan, Dep- 
uty Attorney-General, for Respondent 

LANGDON, P. J. — This is an appeal by the defendant from 
a judgment of conviction of the crime of robbery. The ap- 
pellant presents three points upon the appeal. We shall 
discuss them in the order in which they are urged. The first 
is that the cross-examination of the complaining witness Scott 
upon a vital fact was improperly and unnecessarily limited 
by the trial court. Scott testified that on November 14, 1918, 
at about 10 o'clock in the evening, he was walking along the 
street in Oakland when he was attacked by the defendant 



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252 People v. Razo. [43 Cal. App. 

and another person; that the defendant knocked him down 
and cut him with a knife and the other person searched his 
pockets and took from them two coins, a five and ten cent 
piece. Appellant argues that as it was necessary for the state 
to prove that the defendant actually took some property from 
Scott, that, therefore, the question of whether Scott actually 
had the coins becomes decisive. He urges that the excluded 
questions were directed toward this matter and should have 
been allowed. But this matter was testified to repeatedly by 
Scott upon his cross-examination. He said he had a Cana- 
dian dime and a nickle in his pocket when he left his home, 
a few moments before the attack ; that he looked at the coins 
before leaving home, and that he knew they were there ; that 
he had his hand in his pocket and felt such coins as he was 
walking on the street and up to the moment of the attack; 
that his pockets were good and that the money could not 
have rolled out in the struggle on the sidewalk. Scott was 
a negro Pullman porter. It is true that he did not always 
answer questions as directly as might have been desired ; but 
his examination discloses no effort to evade, but merely the 
difficulties which come from a lack of precision in speech 
and in thought, the natural consequences of lack of training. 
It is evident that he had difficulty in comprehending the 
exact meaning of many of the questions, and this in itself 
made it necessary for many questions to be asked a number 
of times. The court permitted this, and it seems to us that 
the cross-examination is very complete and comprehensive. 
Appellant contends that he should have been allowed to ask 
five certain questions. It is not necessary to discuss the 
relevancy of each of these questions here. In so far as they 
were relevant and proper cross-examination, their substance 
was covered several times in the course of the cross-examina- 
tion. It appears that the direct examination of Scott covers 
seven typewritten pages in the record, while the cross-ex- 
amination covers over fifty pages. [1] The trial court has 
the power to exercise a reasonable control over the cross- 
examination of a witness (Code Civ. Proa, sec. 2044), and 
we think that was all that was done in this case. 

[2] The second point urged by appellant is that the 
deputy district attorney was guilty of misconduct in his 
argument to the jury. The facts relating to the incident 
complained of are that the attorney for the defendant upon 



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Sept. 1919.] People v. Razo. 253 

cross-examination asked the complaining witness several 
times if he had talked the case over with the deputy district 
attorney, to which he replied that he had not. In reply to 
further questions, Scott stated that he had gone to the office 
of the deputy district attorney at the close of the trial on 
the first day and had remained there a short time, but they 
had not talked about the case; that during the three or four 
minutes that he remained in the office of the deputy district 
attorney, said deputy was talking to someone else and he 
(Scott) was waiting for him to finish talking. In his argu- 
ment to the jury, the deputy district attorney referred to 
the attempts of counsel for the defendant to impute to him 
improper practices in the preparation of his witnesses for 
the trial; he admitted that he had talked with all the wit- 
nesses in the case with whom he had had an opportunity to 
talk, as a regular and customary part of his duty. He con- 
tinued as follows: "I say, frankly, and very gladly, that 
every witness that I could get my hands on who was going 
on the stand, told me definitely what his testimony was going 
to be, because I wanted to know what the testimony was 
going to be." At this point he was interrupted by the 
counsel for the defendant, who objected to these remarks for 
the alleged reason that they contradicted the testimony of the 
witness Scott, who had testified that he did not talk with 
the deputy district attorney. The deputy district attorney 
then, in reply to this objection, explained his remark to the 
jury by saying: "I said every witness that I could get my 
hands on; I could not get my hands on Mr. Scott" At- 
torney for the defendant then called attention to the testi- 
mony of Mr. Scott, saying: "And Mr. Scott's further testi- 
mony was that he was in Mr. Agncw's room, with the door 
closed." To which the deputy district attorney answered: 
"The testimony of Mr. Scott was that he had not talked the 
case over with me at all; he came to my room intending to 
talk it over with me, but I was busy and did not talk it over 
with him." Appellant contends that this statement of the 
deputy district attorney, explaining why he did not talk 
to Scott, was outside of the record and corroborated the wit 
ness, and was, therefore, improper. As the statement appears 
in the record it is susceptible of being construed as a state- 
ment of the testimony of Mr. Scott, and as such it is sustained 
by the record, for we find upon cross-examination that Scott 



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254 People i>. Bazo. [43 Cal. App. 

testified as follows: "Q. Where did you go with him, after 
you went through that door! A. Out in his office. Q. Into 
his office! A. Yes, sir. Q. What did he talk about in there, 
the weather — what did he talk about! A. Talked about 
nothing. Q. Didn't talk about anything. How long were 
you in the room with him! A. About three or four minutes. 
Q. What did he do during the time you were in his office 
three or four minutes! A. He was talking to someone else." 
And again: "Q. What were you doing during the three or 
four minutes, or whatever time it was, that you were in Mr. 
Agnew's office yesterday evening! A. I was waiting for him 
to get through talking/' Scott also testified that he went to 
the office of the deputy district attorney for the purpose 
of discussing the case. 

It does not seem to be an improper summing up of this 
testimony to say that "the testimony of Mr. Scott was that he 
had not talked the case over with me at all ; he came to my 
room intending to talk it over with me, but I was busy and did 
not talk it over with him." However, let us assume that the 
appellant's construction of this remark is correct and that the 
deputy district attorney was not referring in the latter part 
of the sentence to the testimony of Scott on the stand, but was 
stating his own knowledge of the subject. While clearly this 
would be misconduct upon his part, yet such misconduct, we 
think, under the special circumstances of this case, would not 
be such prejudicial error as to warrant a reversal. Appel- 
lant's argument is based upon an insistence that the fact of 
whether or not the witness Scott talked with the deputy dis- 
trict attorney was important to the defendant's case. But 
we have the repeated, unequivocal statement of Scott that he 
did not talk to him. There is a presumption that follows the 
testimony of every witness that such witness speaks the 
truth, and this witness remains uncontradicted on this point. 
Both Scott and the deputy district attorney admitted that 
they wished to talk to one another about the case. Scott testi- 
fied that he went to the office of said deputy for the purpose 
of talking about the case and the deputy district attorney 
stated in his argument to the jury that he talked with every 
witness in the case that he could "lay his hands on," and 
would have talked with Scott if he had had the opportunity. 
The reason why this avowed intention and desire on the pai t 



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Sept 1919.] Baysidb Land Co. v. Phillips. 255 

of both was not carried out cannot have any bearing upon the 
matter one way or the other. 

The last point made by the appellant is that the judgment 
is erroneous because the indeterminate sentence law (Pen. 
Code, sec. 1168), under which it is imposed, is unconstitu- 
tional. It is unnecessary for us to discuss this question, be- 
cause it has been passed upon in In re Lee, 177 Cal. 690, 
[171 Pac. 958], which upholds the validity of this section as 
to offenses committed after its enactment. 

The judgment is affirmed. 

Nourse, J., and Brittain, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied 
by the supreme court on November 10, 1919. 

All the Justices concurred. 



[Civ. No. 8042. First Appellate District, Division Two. — September 12, 

1919.] 

BAYSIDE LAND COMPANY (a Corporation), Appellant, 
v. MRS. EVA PHILLIPS et al., Respondents. 

[1] vendor and vendee — failure to make payments as agreed — 
Acceptance of Less Than Amount Due — Waiver and Revival 
or Bight of Forfeiture. — Where the vendees do not make pay* 
ments punctually, and the vendor for nearly two years indulges 
them in this and accepts payments from time to time of less than 
the whole amount due at the time of such payments, such conduct 
operates as a waiver of that clause of the agreement making time 
the essence thereof, and creates such a temporary suspension of 
the right of forfeiture as can only be restored by giving definite 
and specific notice of an intention to enforce it. 

[2] Id. — Bevtval of Bight of Forfeiture — Burden of Proof — Evi- 
dence—Finding. — In this action by the vendor to quiet title to 
certain real property in which the defendants claimed an Interest 

1. Vendor's acceptance of payment tendered after time specified as 
waiver of provision making time of essence of contract, note, 9 
A. L. & 996. 



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256 Baybide Land Co. v. Phillips. [43 Cal. App. 

under a contract of purchase, the plaintiff having conceded the 
waiver of the right of forfeiture, the burden was on him to show 
a revival of the terms of the contract by proof of a definite and 
specific notice of the intention to enforce it; and as the evidence 
on this issue was evasive, indefinite, and conflicting, the trial court 
was justified in its finding that such notice was not given. 
[8] Id. — FuLuax to Give Notice — Findings on Other Issui3 Imma- 
terial. — In such action, the plaintiff having thus waived the right 
of forfeiture and having failed to prove the revival of that right, 
the trial court having found that notice of the intention to enforce 
the terms of the contract was not given, failure of the court to 
find on other issues became immaterial whore a finding on each of 
those issues in favor of the plaintiff would not support a judgment 
in its favor. 

APPEAL from a judgment of the Superior Court of 
Orange County. W. H. Thomas, Judge. Affirmed. 

The facts are stated in the opinion of the court 

Bordwell & Mathews for Appellant. 

Evans, Abbott & Pearce for Respondents. 

NOUBSE, J. — Action to quiet title to real property in 
which defendants claim an interest by reason of a written 
contract, entered into between the parties hereto, by which 
plaintiff agreed to sell and defendants agreed to buy said 
property. The trial court rendered judgment in favor of 
defendants, from which plaintiff appeals. Said contract was 
found by the court to have been executed on or about August 
28, 1913. The provisions material to this appeal are as 
follows: "Said lot being sold for the sum of seven hundred 
($700) dollars gold coin of the United States, and the said 
parties of the second part, in consideration of the premises, 
agree to pay to the said party of the first part the said sum 
of seven hundred ($700) dollars, as follows, to wit: The sum 
of seventy ($70) dollars, cash, receipt whereof is hereby ac- 
knowledged; the further sum of ten ($10) or more dollars on 
or before the twenty-eighth day of each and every month here- 
after until the full amount of principal with interest on de- 
ferred payments has been fully paid ; all to bear interest from 
date until paid at the rate of six (6) per cent per annum, 
payable and compounded semi-annually. And the said 



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Sept 1919.] Baysidb Land Co. v. Phillips. 257 

parties of the second part agree to pay all state and county 
taxes, and assessments of whatsoever nature, which may be- 
come due on the premises above described. It is further 
agreed that time is of the essence of this contract, and in the 
event of a failure to comply with the terms hereof, by the 
said parties of the second part, said party of the first part 
shall be released from all obligations in law or equity to con- 
vey said property, and the said parties of the second part 
shall forfeit all right thereto." 

Appellant contends that defendants 9 interest in said con- 
tract, and in the land therein involved, terminated on the 
twenty-seventh day of November, 1915, by reason of the ex- 
ercise of the forfeiture clause therein contained. Defend- 
ants, on the other hand, deny plaintiff's right to exercise such 
forfeiture by reason of the waiver of that provision of the 
agreement. 

It appears from the record that on November 27, 1915, the 
total amount paid on said contract was $177.43, principal 
and interest ; that on said date there was a total delinquency 
of $231.15, made up as follows : Nineteen principal payments, 
amounting to $190; accumulated interest, amounting to 
$35.18; delinquent taxes, covering a period of two years, 
amounting to $5.97. It also appears that the last payment 
on the contract, amounting to $7.50, was made July 30, 
1915; that some time subsequent to that date (the time is 
not otherwise fixed by any evidence) Mrs. Harmer, one of the 
defendants, attempted to make a further payment of five 
dollars, but that plaintiff refused to accept it, stating 
that the contract had been canceled November 27, 1915 ; that 
on March 20, 1916, defendants offered plaintiff a check for 
$290, the full amount then delinquent, but that plaintiff 
refused to accept the same. 

[1] Appellant concedes that " defendants did not make 
payments punctually, and plaintiff for nearly two years in- 
dulged them in this and accepted payments from time to time 
of less than the whole amount due at the time of such pay- 
ments. " Plaintiff likewise concedes that such conduct oper- 
ated as a waiver of that clause of the agreement making time 
the essence thereof, and created "such a temporary suspen- 
sion of the right of forfeiture as could only be restored by giv- 
ing definite and specific notice of an intention to enforce it." 
(Stevinson v. Jay, 164 Cal 279, 285, [128 Pac. 751] ; Myeri 

4S0»LApp.— If 



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259 Batsidb Land Co. v. Phillips. [43 Cal. App. 

v. Williams, 173 Cal. 301, 304, [159 Pac. 982] ; Burmester v. 
Horn, 35 Cal. App. 549, 552, [170 Pac. 674] ; Boone v. Temple- 
man, 158 Cal. 290, 297, [139 Am. St. Rep. 126, 110 Pac. 947].) 
Plaintiff, however, insists that such notice was given to de- 
fendants and that the provision making time the essence of 
the contract was thereby revived. Defendants deny the re- 
ceipt of such notice and contend that the contract was still in 
force March 20, 1916, when plaintiff refused to accept the 
amount due thereunder. [2] The trial court found that 
the " plaintiff corporation has never given notice of cancel- 
lation or voidance of said contract.' ' Having conceded the 
waiver of the right of forfeiture, the burden was on the ap- 
pellant to show a revival of the terms of the contract by proof 
of a definite and specific notice of the intention to enforce 
it. As to this the evidence was evasive, indefinite, and con- 
flicting, and the trial court was justified in making the 
finding above noted. • » ■ 

[3] A finding on this issue alone, taken with the conces- 
sions of appellant, is sufficient to support the judgment. 
Having thus waived the right of forfeiture and failed to 
prove the revival of that right, the failure of the court to 
find on other issues becomes immaterial on this appeal. 
(Hertel v. Emireck 178 Cal. 534, [174 Pac. 30] ; Smith v. 
Smith, 173 Cal. 725, [161 Pac. 495].) A finding favorable to 
appellant on each of these issues would not support a judg- 
ment in its favor in view of the general finding of want of 
notice. 

The judgment is affirmed. 

Langdon, P. J., and Brittain, J., concurred. 



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Sept 1919.] Eades v. Los Angeles Rt. Corporation. 259 



[Civ. No. 3031. First Appellate District, Division Two. — September 15, 

1919.] 

HERBERT EADES, a Minor, etc., Respondent, v. LOS 
ANGELES RAILWAY CORPORATION (a Corpora- 
tion), et al., Defendants; LOS ANGELES RAILWAY 
CORPORATION (a Corporation), Appellant. 

[1] Costs — Items fob Taking Depositions. — Items for taking deposi- 
tions are proper disbursements to put into a cost bill unless they 
are unnecessary or for some special reason should not be allowed. 

[2] In. — Deposition of Plaintipp — Proper Item upon Cost Bill. — 
The expense of taking the deposition of the plaintiff is a proper 
item upon the cost bill and should be allowed where the taking of 
the deposition was regular in all particulars, as provided by the 
Code of Civil Procedure, and there is no denial of the allegation 
in the affidavit that this deposition was necessary for the trial of 
the action. 

[3] Id. — Deposition Taken Without Notice— Expense not Allow- 
able. — A deposition of one of the defendants taken upon stipula- 
tion of counsel for the different defendants is not admissible in 
evidence against the plaintiff where the latter was given no notice 
of the taking of such deposition and he was not represented at 
the taking thereof; and the plaintiff may not be charged with the 
expense of taking such deposition as costs. 

APPEAL from an order of the Superior Court of 
Los Angeles County taxing costs. Grant Jackson, Judge. 
Modified and affirmed. 

The facts are stated in the opinion of the court. 

Gibson, Dunn & Crutcher and Norman S. Sterry for 
Appellant. 

E. B. Drake for Respondent. 

LANGDON, P. J. — This is an appeal from an order of the 
superior court made after judgment in favor of the defendant 
Los Angeles Railway Corporation, the appellant here, which 
order granted the motion of plaintiff to tax costs and struck 
from the cost bill of said defendant an item of $8.50 for the 
taking and transcribing of the deposition of plaintiff, and au 
item of "$17 for the taking and transcribing of the deposi- 



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260 Eadbs v. Los Anckles Ry. Corporation. [43 Gal. A pp. 

tion of P. C. Punk, one of the defendants. The motion to 
tax costs was made upon the grounds that the items were 
not taxable under the law and that the deposition of F. C. 
Funk was taken without the notice or knowledge of the 
plaintiff. Upon the hearing of the motion the parties stipu- 
lated as to all material facts, from which stipulation it ap- 
pears that the deposition of plaintiff was taken by the defend- 
ant and appellant under and by virtue of the provisions of 
subdivision 1 of section 2021 of the Code of Civil Procedure, 
said deposition having been taken upon stipulation of all 
of the parties to the said action. It also appears that the 
deposition of P. C. Funk was taken upon a stipulation entered 
into between counsel for defendant Funk and counsel for 
defendant Los Angeles Railway Corporation, the appellant-, 
but that the counsel for plaintiff did not sign said stipulation 
and had no notice of the taking of said deposition, and plain- 
tiff was not represented at the taking thereof. 

In addition to the stipulations regarding these facts, upon 
the hearing of said motion, the appellant filed an affidavit 
of its counsel to the effect that both depositions were neces- 
sary to the preparation and trial of its case. No evidence 
was offered by the plaintiff to contradict this affidavit, and 
the motion to tax costs was not made upon the ground that 
the depositions were not necessary. 

[1] It is stated to be the rule that items for taking depo- 
sitions are proper disbursements to put into a cost bill 
unless they are unnecessary or for some special reason should 
not be allowed. (Lindy v. McChesney, 141 Cal. 351, 353, 
[74 Pac. 1034] ; California etc. Co. v. SchiapparPietra, 151 
Cal. 732, 745, [91 Pac. 593].) [2] The taking of the depo- 
sition of the plaintiff, being regular in all particulars, as 
provided by the Code of Civil Procedure, and there being no 
contradiction of the allegations in the affidavit that this 
deposition was necessary for the trial of the action, the ex- 
pense of taking the same was a proper item upon the cost 
bill and should have been allowed. 

[3] As to the expense of the deposition of the defendant 
Funk, we think the action of the trial court was proper. It 
is true that section 2021 of the Code of Civil Procedure pro- 
vides for the taking of a deposition of a party to an action. 
However, section 2031 of the Code of Civil Procedure, pro- 
vides how such deposition may be taken "on serving upon the 



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Sept 1919.] Pr*tt v. Pratt. 261 

adverse party previous notice of the time and place of ex- 
amination," together with a copy of an affidavit showing 
that the ease is within the provisions of section 2021, Section 
2032 of the Code of Civil Procedure provides that when a 
deposition is regularly taken in the manner provided therein, 
it may be used by either party upon the trial or other pro- 
ceeding against any party giving or receiving the notice. 
It being admitted that no notice was given to the plaintiff 
of the taking of this deposition, such deposition was not en- 
titled to be admitted in evidence as against him. It is stated 
in the affidavit of the appellant that at the trial the plain* 
tiff objected to the introduction of the deposition upon this 
ground. As this deposition was not regularly taken so as 
to make it admissible in evidence against the plaintiff, it 
would seem to follow that plaintiff may not be charged with 
it as costs. 

The order appealed from is modified by allowing the item 
of $8.50, the expense of taking the deposition of plaintiff, thus 
increasing the amount of costs allowed to appellant from 
$47.70 to $56.20. Aa modified, the order appealed from is 
affirmed, the appellant to pay its own costs. 

Brittain, J., and Nourse, J., concurred. 



[Civ. No. 2012. Third Appellate District.— September 15, 1919.] 

WILLIAM H. PRATT, as Administrator, etc., Appellant, v. 
JENNIE S. PRATT, as Administratrix, etc., Respondent. 

[1] Estates of Deceased Persons — Action Against Representa- 
tive of Estate of Deceased Administrator — Performance of 
Official Duty — Presumption. — In this action against the repre- 
sentative of the estate of a deceased administrator for moneys 
collected by the latter as such administrator and alleged not to 
have been accounted for, it must be presumed, in view of the 
absence of positive evidence to the contrary and the lapse of the 
great number of years, that the deceased administrator performed 
his official duty, that he acted honestly and in good faith, and 
that if any money was due, it was paid. Such presumption is 
not affected by the provisions of the statute in relation to the ad- 
ministration of estates. 



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262 Pratt v. Pba/tt. [43 Cal. App. 

[2] Id, — Bight aw Admihistbato* to 8ettle With Sole Her With- 
out Administration. — Where there was no real estate, no credi- 
tors, and no controversy as to the be*rs, the father of the de- 
ceased, between whom and the administrator a relation of trust 
and confidence existed, being the sole heir, it cannot be said thai 
it was the duty of the administrator in any event to pursue the 
course indicated by sections 1443, 1622, 1636, and 1665 of the 
Code of Civil Procedure. While that would have been the more 
regular procedure, and would have afforded him greater security, 
there was nothing unreasonable or illegal in his settling with 
his father without the formality of the ordinary administration 
of estates, his determination being subject to review by the court 
at the instance of any interested party. 

[3] Id.— Laches — What Constitutes — Lapse of Time. — Laches, un- 
like the statute of limitations, is not a mere matter of time. It 
involves and implies some other circumstance or circumstances that 
would render inequitable the enforcement of the claim, such as 
ft change in the relation of the parties or the condition of the 
property that is deemed a justification for the denial of any re- 
lief. The great lapse of time, especially if the claimant has 
knowledge of the existence of his right, however, is often held 
sufficient to create the presumption or implication of another fact 
of an equitable nature, and thus to justify a decision against the 
claimant. 

[4] Id. — Right of Heir to Compel Settlement of Estate. — An heir 
has the right to invoke the aid of the court to compel the ad- 
ministrator to settle the estate within the statutory time. 

[5] Id. — Evidence — Instrument Acknowledged Outside State — 
Sufficiency of Objection to. — An objection to the admission in 
evidence of a power of attorney executed in England on the 
ground that it was not properly acknowledged must be specific in 
order to put the person offering it on proof of its propor 
acknowledgment. An objection to its admission on the ground 
that it was not acknowledged as required by the laws of this 
state is not sufficient. 

[6] Id. — Payment of Claim — Death of Witnesses — Effect of 
Lapse of Time — Evidence — Finding. — The facts that the only 
parties who could have positive knowledge of the payment or 
nonpayment of the money from the administrator to the father 
were dead, and that but slight evidence with reference thereto 
was offered on both sides, justified the trial court in its conclu- 
sion that owing to the great lapse of time evidence could not be 
secured as to the payment or nonpayment of the claim. 

[7] Id. — Laches — Discretion of Trial Judge. — There is no hard-and- 
fast rule as to the length of time that would bar such an action 
as this* Much depends upon the peculiar circumstances of the 



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Sept 1919.] Pra/tt v. Pratt. 263 

ease, a large discretion being confided to the trial judge, and the 
disposition of an appellate court is and should be to respect that 
discretion and not to interfere with his conclusion unless mani- 
festly an injustice has been done. 

APPEAL from a judgment of the Superior Court of 
Stanislaus County. L. W. Fulkerth, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

Hawkins & Hawkins for Appellant. 

J. M. Walthall for Respondent. 

BURNETT, J.— George Pratt died on the twelfth day of 
June, 1876. On the first day of July following, his brother, 
Samuel Pratt was appointed the administrator of his estate 
by the probate court of the county of Stanislaus. Samuel 
Pratt thereupon qualified as such administrator and immedi- 
ately collected from two certain banks the sum of $850, which 
the said George Pratt, deceased, had deposited therein, but 
he took no further steps in the administration of, nor did 
he account to, said estate for the moneys he received. On 
the fourteenth day of January, 1915, the said Samuel Pratt 
died and on the fifth day of February, 1915, letters of ad- 
ministration of his estate were issued to respondent. On the 
twenty-fifth day of October, 1915, plaintiff was appointed 
administrator of the estate of said George Pratt, deceased, 
and he thereupon presented a claim against the estate of 
Samuel Pratt in favor of the estate of George Pratt for said 
money, with compound interest, the total amount of the claim 
being over eleven thousand dollars. It was rejected by the 
said administratrix and suit was immediately brought thereon. 
The said George Pratt left as his sole heir at law, his father, 
Samuel Pratt, Sr., who was and always remained a resident 
of England. He also left several brothers and sisters in that 
country and one brother, the plaintiff herein, who, after the 
death of George, the exact time not being shown, came to 
California. There is no positive evidence that said Samuel 
Pratt ever made any accounting or paid any money to his 
father, the only showing as to any money transactions be- 
tween him and the other members of the family consisting of 



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264 Pratt v. Pratt. [43 Cal. App. 

his sending a few small sums of money to his sisters in 1913 
and 1914. 

The grounds for the trial court's judgment in favor of the 
defendant are disclosed by the following findings : "The court 
finds that the said Samuel Pratt collected certain sums of 
money belonging to the estate of George Pratt, deceased, 
to wit, said sum of $850, that he never accounted to the said 
estate therefor, but that he received and held a power of 
attorney from his father, Samuel Pratt, Sr., who was the 
sole heir of said George Pratt, deceased, to collect said money 
and pay the same to his father, and the court finds that the 
presumption is that said Samuel Pratt accounted to said 
father for said money collected, and from said presumption 
the court finds that said money was paid by Samuel Pratt to 
his father, Samuel Pratt, Sr. ; that the said Samuel Pratt, Sr., 
deceased, did not die for twenty-three years after the deatb 
of said George Pratt, deceased, and that during said time had 
knowledge of the death of said George Pratt, deceased, and 
the appointment of said Samuel Pratt as administrator of his 
estate during all of said years ; that almost immediately after 
the death of said George Pratt, deceased, the said father exe- 
cuted and forwarded to the said Samuel Pratt said power 
of attorney; that during no time during said time of said 
thirty-eight years did said plaintiff make any demand upon 
said Samuel Pratt for an accounting as administrator of the 
estate of George Pratt, deceased; that no demand was made 
upon said Samuel Pratt for an account as such administrator 
during his lifetime. That there is on file in the estate of said 
George Pratt, deceased, no demand or request for an account- 
ing by the said plaintiff, or anyone else, filed during the life- 
time of said Samuel Pratt 

"That after the said letters were issued to the said Samuel 
Pratt, he took no further steps to settle said estate, and that 
no further steps have been taken in said estate and that none 
were taken any time prior to the fourteenth day of January 
1915, at which date the said Samuel Pratt died, and that no 
inventory and appraisement were ever filed in said estate from 
the time of the appointment of the said Samuel Pratt as such 
administrator until his death and that no claims have been 
filed against said estate. 

"That the evidence is insufficient to show that no money out 
of the money of said estate of George Pratt, deceased, was 



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Sept 1919.] Pra..tt v. Pratt. 265 

paid oat for sickness op burial; that evidence cannot be ob- 
tained by reason of the long lapse of time between the death 
of said George Pratt, deceased, and the institution of this 
action to establish any allegation in the pleadings, for the 
reason that the said Samuel Pratt, the person having full 
knowledge of the matters, and all other persons from whom 
information can be had, are dead; that the evidence is in- 
sufficient to establish what disposition was made of any 
moneys or property belonging to said estate of George Pratt, 
deceased, which might have or did come into the hands of 
said Samuel Pratt as administrator of said estate; that the 
evidence is insufficient on account of the great lapse of time 
since the death of said George Pratt, deceased, and the ap- 
pointment of Samuel Pratt as his administrator, and the 
death of all those possessed of the knowledge of such fact, 
to establish the allegation in the complaint that the money 
alleged to have been collected by said Samuel Pratt for or on 
account of the estate of George Pratt, deceased, was never 
paid to any of the heirs of the said George Pratt, nor ex- 
pended for the benefit of the estate of George Pratt, nor paid 
to any other person in interest for the estate of George Pratt 
or otherwise, or that it was never paid out to anyone else, 
or that it was used for the benefit of said Samuel Pratt. 

"The court, therefore, finds from the foregoing facts, that 
said Samuel Pratt accounted to and paid over to said Samuel 
Pratt, Sr., the father of said George Pratt, deceased and the 
sole heir of said George Pratt, deceased, all sums of money 
to which he, the said Samuel Pratt, Sr., would have become en- 
titled to, or was entitled to from said estate." 

As conclusions of law the court made the additional find- 
ings: "That said action is barred on account of the laches 
of the plaintiff, and each and all of the heirs of Samuel 
Pratt, Sr., in demanding an accounting of the said Samuel 
Pratt as administrator of the estate of George Pratt, deceased. 

"That the said claim of the plaintiff as administrator of 
the estate of George Pratt, deceased, against the estate of 
Samuel Pratt, deceased, is a stale claim and not enforceable 
against the estate of Samuel Pratt, deceased. 

"That on account of the great lapse of time since the ap- 
pointment of said Samuel Pratt as administrator of the estate 
of George Pratt, deceased, the said Samuel Pratt is presumed 



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266 Pratt v. Pra/tt. [43 Cal. App. 

to have duly accounted to the heirs of said George Pratt and 
to have paid their distributive shares in said estate." 

It thus appears that four considerations entered into the 
decision of the lower court, namely, the failure of proof on 
the part of plaintiff, the presumption of payment by Samuel 
Pratt to his father, the stateness of the claim and the laches 
of said plaintiff and the other heirs of Samuel Pratt, Sr. 

As to the first, it may be said that the record herein fur- 
nishes a striking demonstration of the difficulty of proving 
a fact after the lapse of so many years. And in considering 
this phase of the case, it must be deemed a fair inference 
that the parties presented all the evidence that was avail- 
able. We cannot say that there is an entire absence of evi 
dence of the failure of Samuel Pratt to properly account with 
his father. However, it is meager, and, in view of the exclu- 
sive province of the trial judge, acting in place of a jury to 
determine the probative force of the testimony, we think no 
appellate court would be justified in holding that a fair con- 
sideration of the evidence should have led the lower court 
necessarily to the conclusion that Samuel Pratt had not paid 
his father all that the latter was entitled to. In regarding the 
point we must remember that, while it was shown, and the 
court found that Samuel Pratt had collected $850, there is 
no evidence whatsoever as to the expense of the last illness 
of George Pratt or of his funeral, or of the administrator's, 
or the attorney's fee in the administration of the estate. 
Respondent claims $350 to be a reasonable amount for these 
items. Ordinarily, such expenses would be equal to that 
amount. Of course, it is impossible to say positively how 
much, if anything, was paid out for any or all these matters, 
and in the absence of any evidence whatever as to this con- 
sideration, the trial court would necessarily be in doubt as 
to the amount left in the hands of Samuel Pratt to be paid 
over to his father. 

But, assuming that the burden of proof was upon respond- 
ent to show how much, if anything, was paid for these pur- 
poses, and in the absence of any showing to that effect, the 
court was bound to charge the estate of Samuel Pratt, de- 
ceased, with the full amount, which was collected, the inquiry 
then arises, whether the evidence was such that the court 
should have found that it was not paid to Samuel Pratt, Sr. 



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Sept 1919.] PRAflr v. Pjutt. 267 

The testimony on this point in behalf of appellant was brief 
and we may herein set it out. John Radley testified that he 
had known Samuel Pratt since 1875, that they were working 
together in June, 1876. 44 Samuel Pratt's brother, Qeorge 
Pratt, got hurt and Samuel Pratt got a message to come up, 
and he went. He returned the next day. He then told me 
that his brother was hurt very bad and he didn't think he 
would live very long. Samuel Pratt was running the header 
for Mr. Wardrobe and he said he came back to keep his 
job and he said that he had hired a man to take care of his 
brother. His brother soon hereafter died." After stating 
that Samuel told him that he collected over seven hundred 
dollars from the Stockton and Merced banks belonging to his 
brother, George, the witness proceeded: "I once asked him if 
he had sent the money to his father and he told me no, but 
he was going to. We had several conversations in regard 
to it. The last time I asked him about it he said he had put 
that money to interest so it would draw more money and he 
would send it later on to his father. He told me he knew 
where he could buy 160 acres of land and he asked my opinion. 
Afterward he bought the land." He also stated that Samuel 
Pratt never told him anything as to whether his father had 
made a demand for the money. Plaintiff offered in evidence 
a mortgage on certain lands in Stanislaus County, dated 
November 3, 1876, made by James Berry to Samuel Pratt 
to secure the sum of $1,850 and a satisfaction thereof on 
October 24, 1879. A deed from one Emeline Daggett to 
Samuel Pratt reciting a consideration of one thousand dollars 
and dated October 12, 1878, was also introduced in evidence. 

Oeorge Squire then testified: "I knew Samuel Pratt for 
ten years, from 1873 to 1883. He told me that George Pratt 
asked him to collect certain moneys, $950 or $960, and send it 
to his father. The money was in the savings bank at Stock- 
ton and Merced. What I know about the matter was what 
I learned from being his nearest neighbor and what he told 
me himself. I know he had the money. He bought with it 
three quarter-sections of the town of Oakdale. One of the 
quarters was purchased from me." 

The trial court might well hesitate to find from the fore- 
going that Samuel Pratt violated his trust and withheld from 
his father any money to which he was entitled. The incidents 
concerning which the witnesses testified were held in the un- 



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Pbatt t>. PfcAflT. [43 Cal. A pp. 



certain grasp of memory reaching back nearly forty years, 
and this circumstance was, of course, significant in the deter- 
mination of their credibility. That after such a period of 
time they could state with accuracy what was said and done 
concerning a matter in which they had no personal interest, 
might well challenge credulity. It is well to remember in 
this connection that the substitution or elimination of a 
single word of the conversation, or the addition of a slight 
incident, might present the consideration in an entirely 
erroneous light. Moreover, it is admitted that Samuel Pratt 
did not conceal from these witnesses the fact that he had 
money in his possession belonging to his father and he ex- 
pressed his intention of sending it to him. This, at least, 
tends in some degree under the circumstances to negative 
the theory of a dishonest purpose. In fact, the only incident 
detailed by the witnesses lending any support to the claim 
that Samuel Pratt failed to settle with his father was the 
purchase of land to which they testified. But as to this, in 
the first place, it may be said, there is nothing to show that 
he did not have money of his own. That he had some is 
quite apparent, indeed, from the amount invested. That he 
also purchased the land with his own money would be pre- 
sumed, were it not for the said testimony of George Squire 
that Samuel Pratt "bought with the money three quarter- 
sections in the town of Oakdale." But this testimony is 
quite unsatisfactory in the absence of any further explanation 
and it is more significant for its omissions than for what 
was stated. When the land was bought does not appear, the 
deed not being offered in evidence, nor how much was paid 
for it, nor how long it was retained by Samuel Pratt. Fur- 
thermore, the statement of the witness undoubtedly involved 
his mere opinion from what was told him by said Pratt and 
his neighbors. Again, his credibility was for the trial judge 
and we cannot say that he was not justified in attaching 
little, if any, importance to this testimony. 

[1] But according it full credit, would the lower court be 
required to find from this circumstance that the money was 
not paid to Samuel Pratt, Sr. t We think not. A more just 
and reasonable inference would be that the son was moved by 
an honest and filial purpose to increase his father's posses- 
sions, that he was successful in his endeavor, and that in due 
jtime he transferred the money with its increase to its rightful 



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Sept. 1919.] Pratt v. Pratt. 269 

owner. We repeat, the record contains some evidence, though 
alight, as we view it, of the dereliction of Samuel Pratt, Jr., 
in the premises, but not of sufficient probative force for us to 
hold that the lower court was bound to find that there was 
no payment. How would the case then stand, and, partic- 
ularly, what presumption should be indulged? Clearly, we 
think, that Samuel Pratt, Jr., performed his official duty and 
that he acted honestly and in good faith. A contrary pre- 
sumption would impute to him not only a violation of the 
obligations of his trust, but an utter indiif erence to the compel- 
ling impulses that usually characterize such relation of kin- 
ship, and, more than that, the actual commission of a crime. 
This is not to be permitted, especially in view of the great 
nunber of years that had elapsed. The whole record, we 
are persuaded, justifies the presumption and the conclusion 
that, if any money was due, it was paid. 

Many cases of similar import are found in the books and 
some of them determine that the presumption of settlement 
should be indulged where it is not overcome by satisfactory 
evidence to the contrary. In Jones v. Jones, 91 Ind. 378, the 
right to a settlement had existed for about twenty years and 
the court said: "This was a stale demand. In the absence 
of evidence to the contrary, the presumption would be it 
had been paid. Even in cases of chancery jurisdiction, to 
which the statute of limitation is not a bar, a court of equity 
will presume that a stale demand has been paid. (Parker 
v. Ash, 1 Vern. 256; Sturt v. Mellish, 2 Atk. 610; Higgins v. 
Crawford, 2 Ves. Jr. 571; Smith v. Calloway, 7 Blackf. 
(Ind.) 86; Stehman v. Crvll, 26 Ind. 436.) " 

Nor do we think this presumption is affected by the pro- 
visions of the statute in relation to the administration of 
estates. It is true that the Code of Civil Procedure provides 
that an administrator must make and return to the court 
a true inventory and appraisement of the estate (sec. 1443) ; 
when required by the court or upon application of any per- 
son interested, he must render an account (sec. 1622) ; upon 
the hearing of the accounts, the heirs may contest all matters 
included therein (sec. 1636) ; and final distribution of the 
estate can be had only upon final settlement of the accounts 
of the administrator, at which time the court ascertains who 
are the persons entitled to the estate (sec. 1665). 



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270 Pratt v. Praot. [43 CaL App. 

[2] In view of the failure of Samuel Pratt, Jr., to comply 
with these various provisions of the statute it is contended 
that he had no right or authority to pay out any money to 
his father, and, hence, the presumption would be that he acted 
accordingly. But it must be remembered that the only parties 
interested in the regularity of the proceedings are the admin- 
istrator himself, the creditors and the heirs, and each case 
must be considered in the light of its own peculiar facts. 
Herein there was no real estate and we must take it for 
granted that there were no creditors, unless, perhaps, on 
account of the last illness and funeral expenses of the brother ; 
that there was no controversy as to the heirs ; that a relation 
of trust and confidence existed between the administrator and 
his father; that the son believed, and had reason to believe, 
that no question would ever arise as to the integrity of his 
conduct; that he knew how much his father was entitled to, 
and believed that he could, with safety, settle with him with- 
out incurring any further expenses of administration. 

It can hardly be said that it was his duty in any event to 
pursue the course indicated by said provisions of the code. 
That would have been the more regular procedure, and it 
would have afforded him greater security, but if the facts 
existed as we have supposed, there was nothing unreasonable 
or illegal in his settling with his father without the formality 
of the ordinary administration of estates, and we deem it 
not improbable that he followed the shorter way. His de- 
termination was, of course, subject to review by the court 
at the instance of any interested party, but we must suppose 
that he felt amply protected and that the heir was satisfied. 

In the Estate of Willey, 140 Cal. 238, [73 Pac. 998], the 
executors, in an account rendered by them, sought to have 
themselves credited with certain advance payments made by 
them to certain beneficiaries named in the will, without ob- 
taining an order of court, and it was held that the trial 
court properly retired those items from the account to be 
considered when the petition for distribution was heard. 
Therein was involved the construction of the terms of a will, 
and a controversy existed between the interested parties, 
which the court was called upon to review in the regular course 
of the administration of the estate. The executors could not 
by iheir action preclude the court from determining the con- 
troversy at the proper time and, manifestly, as it was stated: 



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Sept 1919.] Pratt v. Pratt. 271 

"When an executor undertakes to construe the provisions 
of a will or to make payments thereunder in anticipation of 
the decree of distribution he does so at his peril." While 
the facts herein distinguished this case from that, still it may 
be conceded that, if said Samuel Pratt made a settlement with 
his father without an order of court, he did so "at his peril," 
and that he could not thereby forestall an accounting in court, 
yet under the circumstances of this case we deem it not an 
unreasonable inference that he did make such settlement, be- 
lieving that he was justified in so doing, and we think it can- 
not be said that thereby he violated his duty or transgressed 
any provision of the law. 

The findings as to the staleness of the claim and the laches 
of plaintiff may be considered together, as they are closely 
related. [3] Appellant is clearly right in the contention 
that laches, unlike the statute of limitations, is not a mere 
matter of time. It involves and implies some other circum- 
stance or circumstances that would render inequitable the 
enforcement of the claim. This may be a change in the re- 
lations of the parties or the condition of the property that is 
deemed a justification for the denial of any relief. It may 
be added, though, that the great lapse of time, especially if the 
claimant has knowledge of the existence of his right, is often 
held sufficient to create the presumption or implication of 
another fact of an equitable nature, and thus to justify a 
decision against the claimant. As to the character of this 
defense and the reasons for its recognition and enforcement, 
it is sufficient to refer to the carefully considered opinion 
written by Justice Hart and adopted by the supreme court 
in the case of Miller v. Ash, 156 Cal. 544, [105 Pac. 600]. 

To illustrate, however, the peculiar views of various courts 
concerning situations similar to the one before us, we may cite 
some instances of the application of the doctrine of " stale- 
ness' ' and "laches." 

In Perkins v. Cartmell, 4 Harr. (Del.) 270, [42 Am. Dec. 
753], a legacy was involved for which no demand had been 
made for thirty years and the court said: "This suit is 
barred by lapse of time independently of the statute of limi- 
tations, upon the presumption of payment and satisfaction, 
which presumption is not rebutted. The defense founded 
upon mere lapse of time and the staleness of the claim, in 
cases where no statute of limitation directly governs the cas.% 



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272 Pratt v. Pratt. [43CaLApp. 

is said by Judge Story (2 Com. on Eq. Jur., see. 1520, 
p. 904), to be a defease peculiar to courts of equity. Upon 
general principles of their own, independently of the statutes 
of limitation, they have always discountenanced laches and 
neglect; and refused their aid to stale demands where the 
party has slept upon his right, or acquiesced for a great 
length of time. After a considerable lapse of time, they 
refuse to interfere, from considerations of public policy, and 
the difficulty of doing entire justice when the original trans- 
actions have become obscure by time and the evidence may be 
lost" 

There was something like twenty years' delay in demanding 
an accounting in the case of Osborne v. O'Reilly, 43 X. J. Eq. 
647, [12 AtL 377], and the court said: "This great delay 
might have justified the court in dismissing the complainant s 
bill without looking at the merits. It certainly requires of 
the court to take care that the dangers of injustice, which 
always attend the investigation of facts long since transpired 
are not overlooked, and that before disturbing the status ac- 
quiesced in by both parties for so many years very convincing 
evidence of the propriety of a change shall be adduced." 

In Le Boy v. Bayard, 3 Bradf. Sur. (N. Y.) 228, it was 
held that the lapse of twenty-nine years since the administra- 
tion of the estate commenced is sufficient to excuse a formal 
inventory and account. 

In Calhoune's Appeal, 39 Pa. St. 218, the court determined 
that since the devisee and her heirs knew for twenty-five years 
of the mismanagement of the estate but required no account- 
ing nor sought any relief they were not entitled to the aid 
of a court of equity, after having so slept on their rights, 
the court saying, however: "Had there been ignorance of 
facts or legal disabilities to account for the extraordinary 
neglect of legal remedies on the part of the appellants, their 
inaction might have been excused, but nothing is shown or 
suggested by way of excuse." 

In Oateivood v. Qatewood's Adnix. (Ky.), 70 S. W. 284, 
ten years after the death of an administrator suit was brought 
against bis estate for a sum claimed to have been retained by 
him belonging to plaintiff, the claim boin<r thirty years old, 
and it was held that the claim was stale and not enforceable 
in equity. 



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Sept. 1919.] Pratt v. Pratt. 273 

In Hill v. HM, 70 N. J. Eq. 107, [62 Atl. 385], the court 
of chancery held that the lapse of seventeen years was suffi- 
cient to bar an application for an accounting of an adminis- 
trator. The court declared that the complainants were 
"chargeable with notice that they were entitled to a prompt 
accounting, which is precisely the remedy which they are here 
asking. Not only do they not allege their ignorance in these 
matters, but it is quite impossible to believe that they were 
so far indifferent to their pecuniary rights as not to be in- 
formed that the time had arrived when they were entitled to 
receive from their father's estate more than they did actually 
receive unless the same was absorbed in the payment of debts. 
The complainants, then, are chargeable with resting on their 
rights for about seventeen years without the least excuse 
whatever. In the meantime it is fair, I think, to infer that 
the vouchers and papers relating to the estate, which must 
have been in the hands of their uncle, John, have been lost 
or mislaid, and are not now available to the answering de- 
fendant." 

In Be Henry 's Estate, 198 Pa. 382, [48 Atl. 274], it was 
held that an application for an accounting of an administrator 
was barred by the lapse of eighteen years, the court saying 
that the case was "made much stronger by reason of the 
death of the person whose liability to account is now as- 
serted." Therein the court cites with approval the case of 
Or ess' Appeal, 14 Pa. St. 463, wherein an account was re- 
fused after the lapse of eighteen years "not because of either 
presumption of payment or settlement, but because it re- 
sulted altogether from the unwarrantable negligence of the 
party to call for an account without offering any sufficient 
reason accounting for the delay." 

In Phillips v. Piney Coal Co., 53 W. Va. 543, [97 Am. St. 
Rep. 1040, 44 S. E. 774] , a delay of ten years was held suffi- 
cient to bar an action to reform a deed, and the court declared 
that a party who seeks to avoid the charge of laches in such 
case "should set forth in his bill specifically what were the 
impediments to an earlier prosecution of his claim, how he 
came to be so long ignorant of his rights, and the means used 
by the respondent to fraudulently keep him in ignorance ; and 
how and when he first came to a knowledge of the matters 
alleged in his bill ; otherwise the chancellor may justly refuse 
to consider his case, on his own showing without inquiring 

43 Oal. App. — 18 



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274 Pratt v. Pbmt. [43 Cal. App. 

whether there is a demurrer or formal plea of the statute of 
limitations contained in the answer." 

In Preston v. Preston, 95 U. S. 200, [24 L. Ed. 494, see, 
also, Rose's U. S. Notes], the suit was brought twenty-five 
years after the right accrued and the court said: "The 
delay of one to this extent in prosecuting his rights under 
a contract is, except under special circumstances not existing 
here, such laches as disentitled him to the aid of a court of 
equity." 

In Pusey v. Gardner, 21 W. Va. 469, it was held that a 
court of equity will not set aside a deed, made by a daughter 
to her father immediately before her marriage, conveying 
her remainder in land, in which the father had a life estate, 
upon the ground of undue influence after an interval of 
thirty-five years and after the death of the father, though 
the claim of the daughter is not barred by the statute of 
limitations, where the case is not a clear one and there are no 
circumstances which sufficiently account for the delay. 
Therein was quoted the following statement from Kerr on 
Fraud and Mistake, section 305: "Lapse of time, when it 
does not operate as a positive statutory bar, operates in equity 
as an evidence of assent, acquiescence or waiver." 

Other cases to the same effect are available, but they need 
not be cited. 

Appellant finds comfort in certain other decisions, which 
he claims to be essentially in conflict with the cases upon which 
respondent relies. But it can hardly be said that they teach 
another doctrine, although some of them present a different 
view of the burden of proof. One of them is the carefully 
considered case of Depue v. Miller, 65 W. Va. 120, [23 L. R. A. 
(N. S.) 775, 64 S. E. 740], wherein the West Virginia 
supreme court of appeals declared it to be a sound doctrine 
that "mere forbearance to compel rendition of a just debt 
or other right, the existence of which is clear beyond doubt, 
does not prejudice the party from whom it is due, and it is not 
inequitable to enforce rendition thereof after long delay ; but 
if the length of time be long enough in itself, or with the aid 
of circumstances and conduct to satisfy the chancellor that the 
plaintiff had abandoned his right before he brought suit 
to enforce it, his demand will be regarded as stale and lost 
by laches." However, the court, held that the claim therein 
was fully proven by documentary evidence under circum- 



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Sept 1919.] Pratt v. Pratt. 275 

stances not in any way operating to the prejudice of the de- 
fendants and tending to negative the inference of intent on 
the part of plaintiff to abandon or relinquish his right, and 
concluded that the delay in the assertion of the right for a 
period of less than twenty years would not bar relief. 

In Glen v. Kimbroiigh, 58 N. C. 173, the action was held not 
to be barred by the lapse of thirty-four years, but the deci- 
sion was based upon the ground that there was no repre- 
sentative of the estate against which the action could be 
brought. The court, however, recognized the rule to be that 
after the lapse of a long period of time a presumption will 
arise "of payment or satisfaction or abandonment; but this 
presumption is one of fact, and is rebuttable, and where it 
appears it has not been settled, or where it appears there was 
no one with the legal power to make a settlement, the presump- 
tion is rebutted." 

In the Estate of Fischer, 189 Pa. St. 179, [42 Atl. 8], the 
main question was as to the validity of a certain relea.se, and 
it was justly held that the lapse of seventeen years did not 
bar the claimant from seeking to avoid the effect of said 
release on the ground that she imperfectly understood English, 
did not comprehend the meaning of the terms employed, and 
was induced to execute it by reason of certain threats which 
were made. It was in view of these circumstances that the 
court said: "There is nothing, therefore, left to sustain the 
plea of laches but mere lapse of time ; and that is clearly in- 
sufficient." 

In Wilson v. McCarty, 55 Md. 277, it was held that the 
orphan's court had jurisdiction to compel a surviving exe- 
cutor to return assets of the estate or recover them where they 
could be recovered even where an account called final had been 
allowed and some fourteen years had elapsed since such ac- 
count. The court said this could be done within a reasonable 
time, and "what is reasonable time depends upon the peculiar 
circumstances of each case, and the character of the correc- 
tion to be made." 

In Weriorn v. Amtin, 82 Ala. 498, [8 South. 280], the 
court recognized the presumption of payment from the lapse 
of twenty years in the case of a trust but held that it was 
overcome by evidence to the contrary. 

In Branch v. Hanrick, 70 Tex. 731, [8 S. W. 539], suit was 
brought August 11, 1885, against one who had been appointed 



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276 Pratt v. Pea/it. [43 Cal. A pp. 

administrator of an estate in 1867. The action was by one 
claiming a distributive share of the estate, who sought to 
compel an accounting by the administrator. The latter & in- 
tended that by virtue of a certain statute of Texas, the ad- 
ministration of the estate was conclusively presumed to have 
been closed, but the supreme court held that said statute had 
been repealed and that it was proper to show that such settle- 
ment had not been made. 

The important question in Re Sanderson, 74 Cal. 199, [15 
Pac. 753], was whether the executor had been negligent as 
to the collection of a certain note, he having made no excuse 
for his failure. The matter was covered by section 1615 of 
the Code of Civil Procedure, providing that "no executor or 
administrator is accountable for any debts due to the de- 
cedent, if it appears that they remain uncollected without his 
fault." The supreme court properly held that the statute 
of limitations did not run against the continuing trust of the 
executor, and that in case the debt was not collected, the 
statute imposed upon him the burden of showing that it was 
without his fault. 

In Bremmerly v. Woodward, 124 Cal. 568, [57 Pac. 561], 
the action was brought for an accounting about eleven years 
after the last account had been rendered. It is plain, though, 
that no final accounting could have been enforced against 
Woodward during the disability of the minors, the will con- 
taining this provision: "Whenever one of my children comes 
of age or shall be entitled to his or her share of the estate 
then remaining in the hands of my executors, and they are 
hereby directed and authorized to deliver up such child's 
portion by a fair division made of the land belonging to the 
estate." It seems that the youngest minor reached his ma- 
jority only about one year before the suit was brought. So, 
the case is hardly in point here. It is true that the court 
said: "To show an honest execution of the trust it was in- 
cumbent upon Woodward to show what he did with the 
moneys. In the absence of such showing I think we must 
conclude that he did not use them for the estate." That was 
a proper rule to apply under the peculiar circumstances of 
the case. Besides, the evidence and pleadings of the parties 
were such that the lower court could hardly have concluded 
otherwise than in favor of plaintiff, the serious question on 
appeal being as to the sufficiency of the finding of Wood- 



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Sept 1919.] Pratt v. Pratt. 277 

ward's neglect to invest the trust money and as to the amount 
of interest that should be charged against him. 

But appellant claims that the lower court without warrant 
assumed or found certain circumstances to exist which are 
essential to the support of the conclusion that plaintiff and 
the other heirs were chargeable with laches. One of these, 
namely, in relation to the fact that no inventory was filed nor 
other step taken in the administration of the estate, we have 
already noticed. [4] We may add that it was undoubtedly 
the right of the heir to invoke the aid of the court to compel 
the administrator to settle the estate within the statutory 
time. 

Again, it is claimed that the evidence does not show that 
the heirs had knowledge of the death of George Pratt and of 
the condition of his estate. The only heir, as we have seen, 
for twenty-three years was his father, and power of attorney 
from him to Samuel Pratt, Jr., dated July 11, 1876, was re- 
ceived in evidence in which he referred to "my late son 
George Pratt, deceased." [5] It is true that an objection 
was made by appellant to the introduction of this instrument 
on the ground that "the deed and certificate is not in con- 
formity with our statute and that the execution is insufficient, 
and that the acknowledgment is not in the form required 
to prove the signature of a signer to a document, and that it 
is not duly authenticated as required by the laws of the state 
of California, and it does not show that it has ever been acted 
upon as genuine and its custody has not been explained and 
it does not appear that it has ever been treated as a genuine 
document." The power of attorney purported to be exe- 
cuted in England and acknowledged before Cad. E. Palmer, 
a notary public of Barnstaple, in the county of Devon, and 
had the seal of his office attached. This notary certified that 
Samuel Pratt appeared before him "and acknowledged the 
said letter of attorney to be his act." To this with the seal of 
his office was annexed the certificate of the United States 
consul at Bristol, England, "that the foregoing signature 
and seal are the true and genuine signature and seal of Cad- 
waloder Edwards Palmer, a notary public, residing at Barn- 
staple, in the county of Devon, England." Section 1189 of 
our Civil Code specifies the general form of the certificate 
of acknowledgment, but adds: "Provided, however, that any 
acknowledgment taken without this state in accordance with 



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278 Pratt v. Praot. [43 Cal. A pp. 

the laws of the place where the acknowledgment is made, shall 
be sufficient in this state; and provided further, that the 
certificate of the clerk of a court of record of the county or 
district where such acknowledgment is taken, that the officer 
certifying to the same is authorized by law so to do, and that 
the signature of the said officer to such certificate is his true 
and genuine signature, and that such acknowledgment is taken 
in accordance with the laws of the place where the same is 
made, shall be prima facie evidence of the facts stated in the 
certificate of said clerk." Since the instrument was exe- 
cuted in England, it was, therefore, necessary that it be ac- 
knowledged according to the law of that country. But if it 
was not so acknowledged, or there was any claim to that effect, 
such specific objection should have been made. The only ob- 
jection in that respect was that it was not acknowledged as 
required by the laws of this state. We may add that the 
certificate contemplated by said proxHso is not required to 
be attached to the acknowledgment. If attached, it affords 
prima facie evidence of the proper acknowledgment of the 
instrument, but, in its absence, other evidence of compliance 
with the requirement of the foreign law may be offered as 
provided by sections 1901 or 1902 of the Code of Civil Pro- 
cedure. Appellant should have made the specific objection 
to put the respondent to such proof. 

But, regardless of this instrument, it is not to be supposed 
that the father for over twenty years was ignorant of the 
death of his son. The presumption that "things have hap- 
pened according to the ordinary habits of life" would justify 
the inference that he made inquiry and ascertained from his 
son, Samuel, that George had passed away. As to William, 
the plaintiff, the evidence shows that he lived for some years 
in the county of Stanislaus, wherein the latter was appointed 
administrator of the estate of his brother, George, and it 
would be quite unreasonable to assume that he was ignorant 
of the situation. If he had not known of the death of George 
or of the father, of course, he would have so testified when 
he was on the stand. The fact that he was not interrogated 
concerning it is quite sufficient under the peculiar circum- 
stances of the case to lead to the conclusion that he had such 
knowledge. We may add that his failure to excuse his delay 
of fifteen years after the death of his father and nearly 



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Sept. 1919.] Carl v. MoDougal. 279 

a year after the death of his brother, Samuel, before in- 
stituting this action is equally significant. 

[6] It is also claimed that there is no sufficient support 
for the finding that owing to the great lapse of time evidence 
could not be secured as to the payment or nonpayment of 
the claim. It is true that counsel on both sides seemed some- 
what reluctant to question the witnesses, the examination hav- 
ing been apparently very brief ; but the evidence showed with- 
out doubt that the only parties who could have positive 
knowledge of the fact were dead, and this, considered with 
the circumstance that such slight evidence was offered on 
both sides, would appear to justify the court's conclusion 
that the evidence was not available. 

[7] Speaking generally, we think it must be said that 
there is no hard-and-fast rule as to the length of time that 
would bar such an action as this, that much depends upon 
the peculiar circumstances of the case; that a large discretion 
is confided to the trial judge, and the disposition of an ap- 
pellate court is, and should be, to respect that discretion and 
not to interfere with his conclusion unless manifestly an in- 
justice has been done. When we recall all the circumstances 
to which we have adverted, we cannot say that the decision 
was wrong. The responsibility for determining the question 
rested with the court below, and we think we are bound by 
the findings. The judgment is, therefore, affirmed. 

Hart, J., and Chipman, P. J., concurred. 



[Civ. No. 3039. First Appellate District, Division Two.— September 16, 

1919.] 

MARCEL CARL, Respondent, v. D. McDOUGAL, as 
Administrator, etc., Appellant. 

[1] Criminal Law — Forgery — Intent to Defraud Essential Ele- 
ment. — In criminal prosecutions for forgery, the intent to defraud 
is not only an essential element of the crime of forgery, but it 
an essential element of every indictment for forgery. 



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280 Carl v. McDougal. [43 CaL App. 

[2] Slanotb— Chaio* of Foegsbt — Action fob Damages — Pleading. 
The charge of forgery necessarily includes all the element* of the 
crime; therefore, in an action for damages for slander, it Is suffi- 
efent to allege in the complaint that the defendant aeensed the 
plaintiff of having forged the former's name as the indoreer of 
a certain check, without alleging that the slanderous words were 
used with the intention of charging that the plaintiff had forged 
the indorsement intending thereby to defraud. 

[3] Id. — Definition of Foboebt — Proper Instruction. — In such 
action the court did not commit error in defining to the jury the 
offense of forgery, it having previously properly instructed them 
that they must determine whether or not the defendant charged 
the plaintiff with the crime of forging his name to a check. If 
such a charge was made, it was slanderous. 

[4] Id. — Sufficiency of Proof. — In such action, the charge of slander 
is sufficiently proved by testimony that the defendant, in speaking 
of the plaintiff, said to one person that "He forged a cheek on 
me," and to another that "He had a check which he forged his 
name to it." Slander is established if enough of the words 
alleged as constitute the sting of the charge and contain the 
poison to the character are substantially proved. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. Curtis D. Wilbur, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

P. P. Oster and Peyton H. Moore for Appellant. 

W. C. Shelton for Respondent. 

BRITTATN, J. — In a suit against Theodore Wicscndanger 
the plaintiff, Marcel Carl, was awarded a verdict for three 
hundred dollars actual and seven hundred dollars punitive 
damages for slander. Wiesendanger appealed from the judg- 
ment entered upon the verdict. After the death of the ap- 
pellant, upon suggestion, the administrator of his estate was 
substituted. 

The complaint was in two counts, and in it the plaintiff 
in substance alleged the defendant had to two different per- 
sons, then the employers of the plaintiff, on the same day 

8. Sufficiency of complaint in action for slander wU.h respect to 
averments of publication and of time and place, note, Ann. Cas. 
1918B, 604. 



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Sept. 1919.] Cabl v. McDougal. 281 

but at different times accused the plaintiff of having forged 
the defendant's name as the indorser of a certain cheek. 
The appellant makes six specifications of error, which may 
best be discussed in what appears to be their logical order. 
They are closely related and all refer to the allegation that 
the defendant said: "Mr. Carl is a forger. He has forged 
my name to a check and I have a lithographed copy of the 
check in my 00106.' ' 

[1] In criminal prosecutions for forgery, the intent to 
defraud is not only an essential element of the crime of 
forgery, but is an essential element to every indictment for 
forgery. (People v. Turner, 113 Cal. 278, [45 Pac. 331] ; 
People v. Smith, 103 Cal. 563, [37 Pac. 516].) [2] In 
reliance upon this strict rule of criminal pleading, the ap- 
pellant contends the complaint in the present case was 
fatally defective, in that it contained no allegation that the 
slanderous words were used with the intention of charging 
that the plaintiff had forged the indorsement intending 
thereby to defraud. If the words were slanderous, the in- 
tention with which they were used is immaterial, except, 
possibly, upon the question of exemplary damages. The rule 
relied upon by the appellant binds him. The charge of 
forgery necessarily includes all the elements of the crime. 
If the defendant accused the plaintiff of forgery or said 
the plaintiff had forged a check, he accused the plaintiff of 
a felony. It is not necessary that the language used should 
be chosen with the technical nicety required in an indictment. 
(Mitchell v. Sharon, 51 Fed. 424, 425.) Under the contention 
of the appellant none but those trained to observe the tech- 
idealities of criminal procedure would be able to slander their 
neighbors, and they would know how to limit their statements 
so they might do the wrong and avoid its consequences. 
Where one accuses another of having forged his name to a 
check, the language can mean nothing other then that the 
person accused has been guilty of a felony. 

[3] The appellant contends the court erred in instruct- 
ing the jury that in order to enable them to determine whether 
the language used by the defendant amounted to an accusa- 
tion of the crime of forgery, he would define for their pur- 
poses the offense of forgery, and, in further instructing them 
that "Section 470 of the Penal Code provides in effect that 
every person who with intent to defraud signs the name of 



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282 Carl v. McDougau [43 Cal. App. 

another person or of a fictitious person, knowing that he has 
no authority so to do, to a check, commits a forgery/ ' The 
appellant argues that there was no allegation in the complaint 
that the language used was to be construed in any other 
manner than according to its plain and literal meaning, and 
that it was the duty of the trial court to construe the lan- 
guage. This the court did in defining forgery. He had previ- 
ously properly instructed the jury that they must determine 
whether or not the defendant charged the plaintiff with the 
crime of forging his name to a check. If such a charge was 
made, it was slanderous. (Childers v. San Jose Mercury, 
105 Cal. 284, [45 Am. St. Rep. 40, 38 Pac. 903] ; Swollen 
v. Phillips, 92 Cal. 408, [28 Pac. 442].) 

[4] The appellant contends there was a fatal variance 
between the words alleged and those proved. Neither of the 
two witnesses to whom the statement was made testified that 
the defendant said, "Mr. Carl is a forger," but one testified 
the defendant said of Carl: "He forged a check on me," and 
the other, that the defendant said: "He had a check which 
he forged his name to it." The appellant relies on those 
cases which hold that in a civil suit for slander the plaintiff 
must prove the use of the slanderous words, and that it is 
unavailing that the jury imputes a slanderous meaning to 
other words. (Fleet v. Tiehenor, 156 Cal. 343, [34 L. R. A. 
(N. S.) 323, 104 Pac. 458] ; Haub v. Friermuth, 1 Cal. App. 
556, [82 Pac. 571].) The rule is unquestionable and was 
properly applied in those cases. In the Fleet case the charge 
was that the defendant had said the plaintiff "stole" certain 
jewelry. The evidence was that the defendant said the plain- 
tiff had "taken" the jewelry. The word "taken" does not 
imply the commission of a crime. The statement that a man 
has forged a check can imply nothing else. The appellant 
testified he had not made the statement. The jury believed 
the other witnesses. The statements of the plaintiff's wit- 
nesses were within the rule that slander is established if 
enough of the words alleged are substantially proved as con- 
stitute the sting of the charge and contain the poison to the 
character. (Fleet v. Tichenor, 156 Cal. 346, [34 L. R. A. 
(N. S.) 323, 104 Pac. 458] ; Smith v. Hollister, 32 Vt. 708; 
Lewis v. McDaniel, 82 Mo. 577 ; Merrill v. Peaslee, 17 N. H. 
640; Zimmerman v. McMakin, 22 S. C. 372, [53 Am. 
Rep. 7U 



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Sept. 1919.] De Bock v. Db Bock. 283 

The appellant claims the court erred in refusing to give 
two requested instructions and in giving another. His argu- 
ment on those points is based upon the same grounds and the 
same rules and authorities which have been discussed. An 
examination of the record and all the instructions leads to 
the conclusion that the instructions given were fair to the 
defendant, complete and in accord with the law that in such 
actions enough of the words alleged must be proved to contain 
the sting of the charge and that all the words charged need 
not be proved. 

The judgment is affirmed. 

Langdon, P. J., and Nourse, J., concurred. 



[Civ. No. 1896. Third Appellate District.— September 17, 1919.] 

CATHERINE M. DE BOCK, Respondent, v. AUGUST 
DE BOCK et al., Appellants. 

[1] Appeal — Alternative Method — Printing of Record in Brief.— » 
The legislature did not intend, by the enactment of section 953c 
of the Code of Civil Procedure, relating to the taking of appeals 
under the alternative method, that the appellant should be re- 
quired to print in his brief all the testimony appearing in the 
record, or even all the testimony relating to the points urged by 
him for a reversal, but only such portions of the record as he 
desires "to call to the attention of the court." 

[2] Alienation op Affections — Action for Damages — Sufficiency 
op Complaint. — In an action for damages for the alienation of 
the affections of the former husband of the plaintiff, the com- 
plaint is sufficient where in very plain and direct language it 
charges the formation of a conspiracy by the defendants having 
for its object the alienation from the plaintiff of the affections 
of her former husband and thereby to deprive her of his protec- 
tion, assistance, and consortium, that such conspiracy was actually 
executed or carried out by the defendants, and that by reason of 
the wrongful acts of the latter the plaintiff lost the love and 

2. Action by wife for alienation of affections, notes, 6 Ann. Caa. 
tJ61; 14 Ann. Cas. 47; Ann. Cas. 1912C, 1179; Ann. Cas. 1916C, 74S; 
4 L E. A. (N, S.) 613; 29 L. B. A. (N. S.) 842; L. B. A. 1916A, 
67. 



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284 De Bock v. De Bock. [43Cal. App. 

affection and the consortium of her said former husband, 
although, in addition thereto, it contains some matters which are 
wholly immaterial to, and have no necessary connection with, the 
cause of action pleaded and which might properly be stricken 
from the complaint on motion. 

[S] Id. — Cause or Estrangement — Contradiction of Matters in 
Previous Action for Divorce — Estoppel. — In such action the 
plaintiff is not estopped from denying certain facts alleged in her 
former complaint in a previous action against her husband for 
divorce with reference to the cause of the estrangement. The 
parties to the two actions are not the same, and the subject 
matter of the two actions is entirely and wholly different. 

[4] Id. — Evidence— Former Divorce Complaint Admission Against 
Interest. — In such action for damages for alienation of the affec- 
tions of the former husband of the plaintiff, the complaint in the 
action for divorce previously brought by the plaintiff against the 
husband can perform no other office than that of evidence of an 
admission upon the part of the plaintiff that the material facts 
stated in such divorce complaint, which was verified, were true. 
It is not, of course, conclusive evidence of the truth of the facts 
so stated, and may be rebutted, but it constitutes an admission 
against interest which may, and should be, considered in the de- 
termination of the issues of fact in the subsequent action. 

[5] Id. — Judgment — Sufficiency of Evidence. — In this action for 
damages for alienation of the affections of the former husband 
of plaintiff, the evidence, which was entirely of circumstances, 
while not legally sufficient to justify a verdict against the defend- 
ant to whom such former husband had transferred his love and 
affection, was sufficient to warrant a verdict against the other 
defendants, who were relatives of such former husband. 

[6] Id. — Feelings of Husband and Wife Toward Each Other — Evi- 
dence of Conversations Admissible. — In such action, evidence of 
conversations between the husband and wife is admissible to in- 
dicate their feelings toward each other. 

[7] Id. — Proper Question — Improper Matters in Answer — Remedy. 
Where a proper question is put but the answer thereto contains 
matters which are not properly admissible, the proper and only 
remedy of the party aggrieved is to move to have such improper 
matter stricken out. A mere objection to such testimony is not 
sufficient to preserve the right of the objecting party to have the 
question raised reviewed on appeal. 

8. Conspiracy to alienate affections, note, 3 L. E. A. (N. 8.) 470. 

4. Evidence in action for alienation of affections, notes, Ann. 
Cas. 1916C, 751; Ann. Cas. 1917D, 484; Ann. Oas. 1917E, 1020, 1029. 



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Sept. 1919.] Da Boos v. Db Bock. 289 

[8] Id.— Objection to Testimony — Failubx to Strike Out Fully— 
When not Error, — Error of the court in failing to fully strike 
out all the testimony to which an objection was made can hare 
resulted in no prejudice to the party making the objection where 
the same fact as shown by the testimony not stricken out was 
testified to by the witness without objection. 

[0] Id. — Refusal of Bight to Cross-examine Plaintiff— Appeal- 
Error. — It cannot be said on appeal that the trial court committed 
error in refusing the request of the defendants to cross-examine 
the plaintiff in reference to a conversation with her husband where 
the purpose or purport of the question to be asked was not made 
known to the trial court and the defendants did not ask the ques- 
tion of the witness directly that it might be made a proper sub- 
ject of review. 

[10] Id. — Objections to Testimony by Trial Judge. — Except in un- 
usual eases, the trial judge should not make an objection to m 
question asked and then sustain his own objection. 

APPEAL from a judgment of the Superior Court of 
Sacramento County. Charles 0. Busick, Judge. Reversed 
in part ; affirmed in part 

The facts are stated in the opinion of the court. 

Jay L. Henry and C. E. McLaughlin for Appellants. 

P. H. Johnson and Irving D. Gibson for Respondent. 

THE COURT.— We adopt the following portion of our 
opinion on the former hearing of this cause : 

"The appeal is prosecuted by defendants, under the al- 
ternative method, from a judgment against them in the sum 
of five thousand dollars. 

" It is stated in appellants 9 opening brief that the action 
was brought 'to recover damages from defendants, for en- 
ticing, inducing and persuading plaintiff's husband to desert 
and abandon her,' while respondent maintains that the cause 
of action is 'for the alienation of the affections of Louis De 
Bock, husband of respondent. 9 

[1] "Preliminarily, respondent contends that this court 
is precluded from considering the points urged for reversal 
for the reason that appellants have failed to comply with the 
provision of section 953c of the Code of Civil Procedure, 
which provides that 'the parties must, however, print in 



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286 Dk Bock v. Db Bock. [43 CaL App. 

their briefs or in a supplement appended thereto, sneh por- 
tions of the record as they desire to call to the attention of 
the eourL' The trial of this case occupied six days and the 
reporter's transcript contains 752 typewritten pages. Appel- 
lants' opening brief consists of 125 printed pages, practically 
one-half of which are devoted to a reproduction of the testi- 
mony which they claim is sufficient fairly and lucidly to pre- 
sent to this court the points upon which they rely, and we 
think their briefs sufficiently comply with the terms of the 
section to compel onr consideration of the points raised on 
the appeal- That the legislature did not intend, by the en- 
actment of said section, that the appellant in a ease should 
be required to print in his brief all the testimony appearing 
in the record, or even all the testimony relating to the points 
nrged by him for a reversal, is indubitably shown by the use 
of the phrase 'such portions of the record. * 

"The points first urged for a reversal by the appellants 
concern the complaint and the effect of certain allegations 
of the complaint in an action for divorce instituted by the 
plaintiff against Louis De Bock and determined prior to the 
time at which the present action was commenced, and they 
are: 1. That the complaint fails to state a cause of action; 
2. That there is a variance between the facts alleged in the 
complaint in the divorce action and those set forth in the 
complaint in this action with respect to the cause or causes 
culminating in the separation of and estrangement between 
the plaintiff and her former spouse; that the plaintiff is 
concluded by the facts alleged in her divorce action and is, 
therefore, estopped from contradicting them in this action. 
In other words, the contention is that the plaintiff, having 
charged certain specified misconduct against her former hus- 
band in her divorce complaint, is conclusively bound by the 
averments so made, and, therefore, will not be permitted to 
say in the complaint in this action that the charge so made 
was not true. 

"The decision of these points will require, of course, a con- 
sideration of the complaint in this action and (as to the 
asserted estoppel) also a consideration of the complaint in 
the action by the plaintiff against the said Louis De Bock for 
a divorce. 

"The complaint heroin alleges: That plaintiff and Louis 
De Bock intermarried at Sacramento 'on the twenty-fifth day 



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Sept. 1919.] Db Bock v. Db Book, 287 

of January, 1905, and ever since have been and now are 
husband and wife, and up to about the month of June or 
July of the year 1914, lived happily together as such husband 
and wife. That the conjugal affection, support, protection, 
care, comfort, and consortium of the plaintiff's said husband 
was and is a valuable property right to which plaintiff is 
entitled. 'That said Louis De Bock, on or about the first day 
of August, 1914, with the intent at such time to desert and 
abandon this plaintiff, wrongfully, willfully and voluntarily 
separated from plaintiff and then and there deserted and 
abandoned this plaintiff, 1 by reason of which plaintiff is now 
living separate and apart from her husband. That, by 
reason of said alleged wrongful acts, which are reproduced, 
plaintiff was compelled to bring an action for divorce against 
her husband which resulted in an interlocutory decree of 
divorce being entered on September 12, 1914. 'That some 
time about the month of June, 1914, and prior to the day of 
the said desertion and abandonment of plaintiff by her hus- 
band, the said defendants willfully, wrongfully, wickedly, 
maliciously, and injuriously combined, conspired, confed- 
erated and agreed and contrived, intending thereby to injure 
this plaintiff and to deprive her of the affection, support, 9 
etc., of her husband, and 'said defendants by reason of said 
agreement and conspiracy, wrongfully, maliciously, willfully 
and wickedly behaved and conducted themselves continuously 
ever since said time, toward thi* plaintiff in an unkind, incon- 
siderate, unsociable, cruel, and inhuman manner, thereby 
gradually undermining and wholly destroying this plaintiff's 
happiness, peace of mind, and greatly injuring and impairing 
her health; said conduct . . . continually growing worse and 
more cruel, until by reason thereof, and in conjunction with 
the conduct of her husband . . . plaintiff suffered great and 
grievous mental anguish and pain' and she became sick and 
confined to her bed. That in execution of said conspiracy 
said defendants wrongfully, etc., continuously until about 
the first day of August, 1914, 'enticed, induced, begged, per- 
suaded, and urged' her husband 'to deprive this defendant 
of all the things which it was the duty of said Louis De Bock 
to furnish this plaintiff as his wife, and to abandon and desert 
her and live separate and apart from her, and to refuse to 
live with her and to neglect her and keep her away from his 
said home and the home of these defendants, and for him- 



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288 Da Bock v. De Bock. [43 Cal. App. 

•elf to remain and live with the defendants, August De Bock 
and his said wife, Ella De Bock, where defendant, Millie 
Fisher was, and is, a frequent visitor. 9 That said Louis De 
Bock did, on or about August 1, 1914, 'by reason of, and on 
account of, and as a result of the arts, wiles, designs, blan- 
dishment, machinations, and persuasion, in pursuance of said 
agreement and conspiracy . . . entirely desert and abandon 
this plaintiff and ever since said time has continued to desert 
and abandon her, and has during all of said times persis- 
tently and continuously neglected and refused to furnish 
this plaintiff all the things which' it was his duty to furnish 
her. That said defendants, 'combining, conspiring, confeder- 
ating and agreeing, and willfully, wickedly,' etc., 'intending 
then and there to injure this plaintiff, to reduce her to 
penury and deprive her of the affection, support,' etc., of her 
husband, about the months of June, July, and August, 1914, 
'absolutely and entirely alienated, estranged, and destroyed 
the affection of her husband for her 'and alienated the affec- 
tions of said Louis De Bock from plaintiff, and did illegally 
persuade, entice, and abduct said Louis De Bock from plain- 
tiff, whereby the plaintiff has wholly lost and been deprived of 
the assistance, comfort,' etc., of her husband, to which plain- 
tiff was entitled and otherwise would have had 'but for the 
illegal persuasion, conversation, and the said enticement, 
abduction, and doings and actions of the said defendants.' 
It was alleged that plaintiff had thereby been damaged in the 
sum of fifteen thousand dollars, and judgment was prayed 
for that amount. 

"There was introduced in evidence the judgment-roll in the 
case of Catherine M. De Bock v. Louis De Bock, being the 
action for divorce referred to in the complaint. It appears 
therefrom that, on September 12, 1914, the complaint in said 
divorce action was filed in the superior court of the county 
of Placer, in which county the parties resided ; that the an- 
swer of the defendant was filed, a trial of the action was had 
and findings and an interlocutory decree of divorce on the 
ground of cruelty were entered on the same day, the decree 
also providing for alimony to be paid the plaintiff and for 
a division between the parties of certain real and personal 
property. A final decree of divorce was entered in the action 
on September 28, 1915. 



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Sept. 1919.] Db Book v. De Book. 289 

[2] "There was no demurrer to the complaint in this 
action, but even in the face of a general demurrer we would 
hold the foregoing allegations sufficient in the statement of 
a cause of action in a case of this character. The eighth 
paragraph in very plain and direct language charges the 
formation of a conspiracy by the defendants having for its 
object the alienation from the plaintiff of the affections of 
her former husband and thereby to deprive her of his pro- 
tection, assistance, and consortium, that such conspiracy was 
actually executed or carried out by the defendants, and that by 
reason of the wrongful acts of the latter the plaintiff lost the 
love and the affection and the consortium of her said former 
husband. A complaint in substantially the same language was 
held good in Humphrey v. Pope, 122 Cal. 253, [54 Pac. 847]. 
It is true that the complaint contains some matters which are 
wholly immaterial to, and have no necessary connection with, 
the cause of action pleaded, unless they may be regarded as 
explanatory by way of inducement of the cause stated; but 
where, as here, the complaint contains averments which do 
state a cause of action, it cannot be held bad even under a 
demurrer, albeit it does also contain matters having no con- 
nection with or in no way tending to explain the facts con- 
stituting the cause of action or how or in what manner such 
facts came into existence. If the matters referred to are 
nonessential or redundant, they could have been stricken 
from the complaint on motion, in which case the complaint 
would, as stated, still state a cause of action against the 
defendants for the alienation of the affections of plaintiff's 
husband. 

[S] "Nor is there any merit in the contention that the 
plaintiff is estopped in this action from denying certain facts 
alleged in her complaint in the suit for divorce against Louis 
De Bock. This contention arises from the fact that the plain- 
tiff in the complaint in the divorce action charged that her 
then husband treated her in a cruel and inhuman manner 
for a period of more than one year 'next immediately pre- 
ceding the commencement' of the action for divorce, particu- 
larizing therein certain occasions upon which acts of cruelty 
were practiced upon her by said Louis De Bock and speci- 
fically describing the nature thereof, some of which acts (it 
was alleged) having been committed in the month of August 
immediately preceding the month in which the action for 

48 OaL App<— 19 



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290 Db Bock v. Db Bock. [43 Cal. App. 

divorce was instituted, whereas, in the present action, the 
plaintiff alleges in her complaint that she and her former 
husband 'up to about the month of June or July, 1914, 
lived happily together as husband and wife.' 

4 'It is, of course, elementary that estoppels bind only parties 
and privies. An estoppel by judgment can only arise and 
be invoked where the subject matter of the litigation and the 
parties are the same. Strangers to the suit or those not 
privies in law to the parties thereto are not precluded under 
the doctrine of estoppel from setting up rights which, as to 
them, have not been adjudicated in the action. While the 
eFtoppel sought to be invoked here is said to be an estoppel 
arising upon and in the pleadings, yet, if this were true, 
we can perceive no logical reason for holding that in effect the 
attempt here is not to invoke an estoppel by judgment, since 
the findings of the court in the divorce action are in strict ac- 
cord with the facts stated in the complaint therein, and cer- 
tainly, if the plaintiff is upon the doctrine of estoppel fore- 
closed the right to deny in this action the trnth of the facts al- 
leged in her divorce complaint, a fortiori, should she be like- 
wise handicapped by the judgment in the divorce action, which 
involves a definitive and conclusive adjudication of the facts 
as pleaded by her, so far as is concerned the cause of action so 
stated as against her former husband. But be that as it 
may, it is very clear that, since the parties to the present 
action were not parties to the divorce action and the subject 
matter of the two actions is entirely and wholly different, 
the principle that an estoppel will not lie in such circum- 
stances is equally applicable whether the claimed estoppel 
arises in the pleadings or by virtue of the judgment. [4] 
It follows that the complaint in the divorce action can per- 
form no other office in this action than that of evidence of an 
admission upon the part of the plaintiff that the material 
facts stated in her divorce complaint, which was verified, are 
true. It is not, of course, conclusive evidence of the truth of 
the facts so stated and may be rebutted, but it constitutes 
an admission against interest which may qnd should be con- 
sidered in the determination of the issues of fact in the sub- 
sequent action. 'A verified petition filed in one case by a 
party is competent evidence against such party on the trial 
of another case as a statement or admission, but is not con- 
elusive and carries nothing of estoppel.' (Solomon R. Co., v. 



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Sept 1919.] Db Book v. Db Book. 291 

Jones, 30 Kan. 601, [2 Pac. 657]. See, also, Parsons v. Cope- 
land, 33 Me. 370, [54 Am. Dec. 628] ; Murphy v. Hindmam* 
58 Kan. 184, [48 Pac. 850] ; Warfield v. Lindell, 30 Mo. 
272, [77 Am. Dec. 614] ; Clemens v. Clemens, 28 Wis. 637, 
[9 Am. Rep. 520]; 16 Cyc. 1050; Freeman on Judgments, 
sec. 417a; Black on Judgments, sec. 608; Dahlman v. Forster, 
65 Wis. 382, [13 N. W. 264].) 

"The remaining and by far the more important problems 
submitted for solution here involve the question whether the 
verdict derives sufficient support from the evidence and the 
further question whether certain rulings upon the evidence 
were erroneous and, if erroneous, whether prejudicial in 
their effect upon the substantial rights of the defendants. 

"Although, as seen, the briefs contain portions of the 
testimony, the writer has performed the decidedly operose 
task of reading all the testimony, which comprises approxi- 
mately seven hundred pages of typewritten matter. This 
burden was assumed because of the claim that the evidence 
is wholly insufficient to support the verdict, and that a number 
of errors in the admission and exclusion of certain evidence 
was committed at the trial, and, because, if they were errors, 
we are required to determine whether or not a miscarriage 
of justice has followed from those errors (Const., art. VI, 
sec. 4%) — a question which can be determined in this case 
only after an examination of the evidence. 

"It is, of course, entirely out of the question to essay a 
reproduction herein, even in substance, of all the testimony 
which was received and presented to the jury. All that can 
be done or which, in our opinion, it is necessary to do, is 
to state in a concise form all of what may be termed the 
controlling facts — that is, all those facts which, in any view 
or under any possible interpretation, may be said to afford 
or tend to afford support to the cause of action stated in 
the complaint. This we will now proceed to do. 

"The defendant, August De Bock, spoken of as 'Gus,' is 
a brother of Louis De Bock, and defendant, Clara E. De Bock, 
referred to in the record as 'Ella/ is the wife of August. 
Defendant, Millie Fisher, for many years had been an inti- 
mate friend of her codcfendants. She first met Louis De 
Bock and the plaintiff in 1912, when she visited their house 
in company with Ella De Bock. Louis De Bock was an 
engineer in the employ of the Southern Pacific Company. 



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292 Db Bock v. De Bock. [43 Cal. App. 

"There was testimony tending to show that plaintiff and 
her husband lived happily together for a period of over nine 
years, from their marriage in 1905 until the spring of 1914. 
They lived mostly at Roseville and Blue Canyon, in Placer 
County. During the period above mentioned Louis De Bock 
treated his wife in a kind and affectionate manner. He 
would kiss both her and her mother, who lived with her part 
of the time, when he left the house to go on his run. Plain- 
tiff testified that in about March, 1914, her husband became 
cool and indifferent toward her; that in June, 1914, he went 
to Colfax to work, leaving her at Blue Canyon, and that 
about the first of August he deserted her. She also said 
that defendants had always been friendly toward her and 
had visited her frequently until in the summer of 1914, when 
they ceased visiting her and became very indifferent and cool 
toward her. Some time in the month of August, 1914, plain- 
tiff and her mother visited Ella De Bock and Millie Fisher 
at the house of said Ella in Blue Canyon and had a con- 
versation with them. Plaintiff spoke of a letter written by 
Ella De Bock and asked why she had written it. Defendant 
Ella said that she had written, saying that plaintiff and 
her husband were having trouble. Plaintiff testified: 'She 
started in about my husband and she said that I was a fool 
to put up with him the way he was carrying on, and that 
he was low and dissipated, and she was sure he was running 
around with fast women, and she said that I was a superior 
woman to him; she said: 'The only thing left for you to do 
is to get a divorce; if I were you I would go away off to 
Los Angeles, where I never would come in contact with him 
again. You could take him to the desert of Sahara, and he 
would never be any different 9 Asked by plaintiff if she 
was sure her husband was running around with fast women, 
defendant, Ella, said that 'she didn't know it for a fact, but 
was sure of it . . . She said: 'I would take my maiden 
name back. 9 Plaintiff testified that defendant, Fisher, spoke 
up and said that she admired Ella for the way that she 
took the thing; that when she first met my husband she 
thought he was a pretty good-looking fellow; but she said, 
'Now, he is low and dissipated, degraded looking, 9 and she 
said: 'Kate, yon are a fool to put up with anybody like 
that; there is too many men in the world, 9 and she says: 
f I could get one any time, but no man for me, I advise 



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Sept. 1919.] De Bock v. De Bock. 293 

you to get a divorce.' Plaintiff said that, in July, 1914, 
at the house of Ella De Bock, in Roseville, she had a con- 
versation with her husband in which she asked him, 'What 
is the matter with you, Lou, anyway f Why are you treating 
me this way?' to which he replied, 'Kate, the only way for 
you and I to get along is for me to quit my job, and for us to 
go off where my folks will never know where we are.' Plain- 
tiff said: 'Why do you talk that way! . . . My folks aren't 
trying to separate us.' At about the same time, at Roseville, 
plaintiff's husband told her he was not going to live with 
her any more, and said: c If you don't think you have got 
grounds enough to get a divorce, I will get a woman and let 
you catch me with her'; and plaintiff said he told her 'he 
had been running around with fast women, and all that sort 
of thing; he wouldn't live with me any longer.' She said 
that she had tried to get him to come back to her, even after 
she had filed her complaint for divorce, but that he said: 
'It has gone this far, let it go through.' Plaintiff said that 
when she would go to the train to see her husband, if Gus 
and Ella De Bock were there he would hardly speak to her, 
but that when she would go the next day, if he was alone, 
he would get off the engine and kiss her and be himself 
again. 

"Mrs. Rose Gray testified that very often she and Ella 
De Bock discussed the plaintiff and that on one occasion said 
Ella stated that 'the only way Lou could get rid of her 
was to take her meal ticket away from her.' It appeared that 
plaintiff had a painting which she had taken to Sacramento 
to have valued and Ella said to the witness that 'she didn't 
care if she got a hundred thousand dollars for the picture, 
just so she got out of the family, and let the De Bocks 
alone; that Gus said he would give her five dollars if she 
would take her maiden name back'; that plaintiff's influence 
was so strong over her husband 'that they would have to move 
away until this thing was put through.' At one time, speak- 
ing of the Gaminetti case, Ella said to witness 'that she 
didn't blame Drew Caminetti at all, if he was in love with the 
girl, and that his own father upheld him, and that if she 
were in Lou's shoes, she would do the same.' 

"Louis De Bock first met defendant, Fisher, in 1912, when 
she, with Ella De Bock, visited the home of himself and wife 
at Blue Canyon and remained there about eight or nine days. 



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294 Db Bock v. Db Bock. [43 Cal. App. 

They made them another visit of two or three days' length 
in 1913. In the same year, Ella Dc Bock had a cottapre at 
Truckce, where Miss Fisher was her guest. Louis De Boek 
visited them every Saturday night for about two months. 
He testified that in 1914 he saw Miss Fisher one evening in 
Oakland at his sister's house and later the same year he met 
her again in Oakland. 

"During the month of July, 1914, Mrs. Ella De Bock wrote 
to Mrs. Rose Gray, who lived at Blue Canyon, requesting 
her to secure a house for her at the canyon during the summer 
months and not to let plaintiff know of it. Mrs. Gray 
secured a house and Mrs. Ella De Bock and Miss Fisher 
occupied it from the middle or latter part of July. Miss 
Fisher testified she had always been friendly with plaintiff 
and had visited at her house until the summer of 1914, but 
that at that time 'we were requested by Mrs. Gus De Bock 
to stay away from there, not mix in our family affairs.' At 
about this time, Ella De Bock and Miss Fisher kept their 
clothes on most of one night without retiring in order to be 
sure of meeting the respondent's husband as he passed 
through on his run at 4 o'clock in the morning. He dis- 
mounted from the engine and hugged and kissed both of 
them. On one occasion Clara E. De Bock met Louis De Bock 
at a train and 'patted him on the face in an affectionate 
way.' From June 15 to July 5, 1914, Louis De Bock roomed 
at the house of Mrs. Jessie M. Wales, at Colfax. Louis was 
then the fireman on the locomotive engine of which Mrs. 
Wales' husband was the engineer. While stopping at the 
Wales', Louis received one or more letters from the defend* 
ant, Fisher, signed 'Millie,' and he spoke of her on those 
occasions as 'My Mill,' and called her his 'pal' and friend. 
On one occasion Louis showed Mrs. Wales some samples which 
he said were samples of Millie's dresses and that she [Millie] 
had sent them to him. 

4 'In August, 1914, defendant, Gus De Bock, went to plain- 
tiff's house to get Louis De Bock's hunting clothes. She 
said he told her that four men, including himself and her 
husband, were going on a hunting trip ; that no women were 
going along. The three defendants went by train to Reno 
and were there met by Louis De Bock. From Reno the 
four of them, with a man named Judd, started in an auto- 
mobile belonging to Gus De Bock and drove to Sacramento. 



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Sept. 1919.] De Bock v. De Book. 295 

The party stayed two days in Sacramento, Louis De Bock 
stopping at a hotel and the defendants going to the home 
of the mother of Mrs. Ella De Bock. The defendants and 
Louis De Bock then went in the automobile to Nelson, Chico, 
Oroville, and Lincoln, remaining one night in each place. 
They had a camping outfit with them, but the testimony was 
that they did not camp out at any time. The auto trip 
consumed about a week. 

"We have now presented herein the salient facts brought 
out by the testimony. There are many other facts in the 
record of the same general character of those embraced in 
the foregoing statement to which we have not considered it 
necessary to make specific reference herein for the purpose 
for which the evidence is to be considered here. 

"It must, of course, be conceded, in view of the verdict, 
that, notwithstanding thai the plaintiff in her divorce com- 
plaint under oath declared that 'for more than one year next 
immediately preceding the commencement of the foregoing 
action, defendant has treated plaintiff in a cruel and inhuman 
manner/ etc., specifying times and places when and where 
such acts of cruelty were committed, she and her former 
husband, down to a few weeks prior to the commencement 
of said divorce suit, lived amicably and happily together, 
never prior thereto having had anything more than those 
inconsequential misunderstandings which are common among 
married people and which are mere temporary outbursts, 
generally not followed by serious results. These further facts 
are, from the verdict, to be conceded as having been es- 
tablished : That from the date of the intermarriage of Louis 
De Bock and the plaintiff, in the year 1905, down to about 
a year prior to the date of their separation by divorce, the 
defendants, Gus and Clara E. De Bock, were on uniformly 
friendly terms with the plaintiff; that at about the time 
indicated they turned against the plaintiff, the defendant, 
Gus De Bock, having developed a feeling of intense hatred 
for her; that both Gus and Clara E. De Bock were at the 
least agreeable to if not anxious for a permanent separation 
of the plaintiff and Louis De Bock ; that Gus and Clara De 
Bock, as well as Louis De Bock, were very much attached 
to Millie Fisher, and that the latter reciprocated that senti- 
ment as to all those three persons; that both Gus and Louis 
De Bock almost invariably, upon returning from their runs 



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296 Db Bock v. Db Book. [43 Cal. App. 

(Gus being also a locomotive engineer in the employ of the 
S. P. Co.), greeted both Clara E. De Bock and Millie Fisher, 
upon meeting them on those occasions, in a very affectionate 
manner, often kissing the women; that Gus De Bock, Clara 
E. De Bock, Millie Fisher, and Louis De Bock, between them- 
selves arranged the outing in the automobile, mentioned 
above, and that (it may reasonably be inferred) it was the 
purpose of all of them to make the plaintiff believe that the 
party constituting the 'outing party' was to consist entirely 
of men — that no females were to be members thereof. It is 
further to be conceded that it is fairly and reasonably in- 
ferable from the evidence that Gus and Clara E. De Bock 
had discussed with Louis De Bock the proposition of a perma- 
nent legal separation between himself and the plaintiff. In 
a word, it is the duty of this court to assume that every word 
of the evidence as to the acts and conduct of the defendants 
in connection with the plaintiff and Louis De Bock is absolute 
verity," and so viewing the record, what shall we conclude 
as to the sufficiency of the evidence to support the verdict! 

"Unquestionably, the theory upon which the complaint pro- 
ceeds is that there existed between Louis De Bock and Millie 
Fisher a mutual sentiment of love and affection; that Louis, 
having transferred his affections from the plaintiff to Miss 
Fisher, desired to be freed from the then insuperable legal 
obstacle in the way of making that young woman his wife; 
that Gus and Clara De Bock, being greatly attached to Miss 
Fisher and having conceived a deep feeling of animosity 
against the plaintiff, joined Miss Fisher (and perhaps Louis 
De Bock) in a scheme the consummation of which would be 
the divorcement of the plaintiff and Louis and the subsequent 
intermarriage in due legal time of the latter and Miss Fisher. 
At the time of the trial of this case— over two years after the 
plaintiff was divorced from her former husband — Louis De 
Bock and Millie Fisher had not intermarried. There is no 
direct evidence that they ever intended to intermarry or that 
they were more than good friends. There Is no evidence 
that they ever maintained improper relations with each other, 
unless it is to be declared that the fact that he, as did 
Gus De Bock, in the presence of his wife, often kissed her 
when he met her affords an inference of meretricious rela- 
tions between them, a proposition abhorrent to decent and 
right thinking. But let it be assumed that Louis De Bock 



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Sept. 1919.] Db Bock v. De Bock. 297 

was 'in love* with Millie Fisher, that she loved him and that 
as a consequence Louis lost all love and affection for his 
wife; yet the truth remains that there is no direct evidence 
that that condition was not brought about wholly and solely 
through the conduct and acts of Louis himself. In other 
words, if it be true that there was generated and developed 
in the hearts of Louis De Bock and Miss Fisher a mutual 
sentiment of love and affection sufficient to overcome and 
destroy the love and affection which Louis once had for the 
plaintiff, the evidence, while perhaps having a slight tendency 
to the contrary, does not clearly show but that Louis himself 
was the wooer and not the wooed, and that he himself took 
the initiative in bringing about that state of feeling or senti- 
ment between them. In short, the record discloses very slight 
evidence, the effect of which is to negative the proposition that 
Louis De Bock's whole conduct toward Millie Fisher was his 
own voluntary act, uninfluenced by any active interference 
on her part. (Buchanan v. Foster, 23 App. Div. 542, [48 
N. T. Supp. 732, 735].)" 

[5] Upon further consideration we have reached the con- 
clusion that not only is the evidence against Millie Fisher 
very slight, but that it is not legally sufficient to justify a 
verdict against her. 

"The evidence is obviously stronger against the De Bock 
defendants than it is against Miss Fisher. But the evidence 
against all the defendants is entirely of circumstances. There 
is no direct evidence that the conduct and acts of any of 
the defendants constituted the cause of the abandonment 
by Louis De Bock of his wife or his loss of affection for her," 
but considering all the circumstances disclosed by the record, 
we think it cannot be said that the verdict as to the De Bocks 
is unwarranted. 

In cases like this, depending for their support entirely upon 
circumstantial evidence, the task of the reviewing court is 
more difficult than in those instances wherein the verdict 
rests, in part at least, upon the direct testimony of wit- 
nesses. This circumstance furnishes an additional reason why 
we have given this record such deliberate consideration, de- 
voting especially close attention to the questions whether the 
verdict is supported, and whether any prejudicial error was 
committed by the trial court in its rulings upon the admissi- 
bility of evidence. 



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298 Db Bock v. Db Bock. [43 Cal. App. 

As to the sufficiency of the showing to support a rational 
inference in favor of plaintiff we have already declared our 
judgment. It remains to notice the other specifications of 
alleged error, and of these only five are regarded of suffi- 
cient gravity to require specific attention. 

1. The record shows the following proceedings while the 
plaintiff was on the stand: "Mr. Johnson: Q. In July, 1914, 
when you were visiting Ella De Bock at Roseville, did you 
have a conversation with your husband at that timet A. 
Yes. Q. Well, what was it? A. Well, I asked him what was 
the matter with him and he told me — we had — we took a 
walk; he had not been treating me right, for quite a while, 
and we took a walk and Ella De Bock, she went out some 
place, and him and I took a walk, and I asked him: 'What 
is the matter with you, Lou, anyway? Why are you treat- 
ing me this way ? And he said, Kate, the only way for me to 
get along,' — Mr. Wachhorst (Interrupting) : 'We object to 
that as irrelevant, incompetent and immaterial. ' The Court : 
'It will be admitted for the purpose of showing the relations 
existing between the witness and her husband; not for the 
purpose of binding the defendants, except as it would show 
the relations. Go on* — A. Well, we took a walk, and I asked 
him what was the matter with him that he was treating me 
the way he was, and he said: 'Kate, the only way for you 
and I to get along, is for me to quit my job, and for us to 
go off where my folks will never know where we are — never 
find out where we are.' I said: 'Why do you talk that way t 
My folks aren't trying to make trouble with me* — I asked 
it of him — and I said: 'You do not want to quit your posi- 
tion/ and I said to him: 'If you feel that way why don't 
you quit?' and he said: 'No, I will take a lay-off.' And I 
said, 'My folks aren't trying to separate us.' He said: 
'That is just the way it stands.' " The point of the objection 
is that "the defendants could not be prejudiced by any dec- 
laration, act, or omission of plaintiff or her husband not 
made in their presence." (Code Civ. Proc., sec. 1848; 
Humphrey v. Pope, 1 Cal. App. 376, [82 Pac. 223] ; Basilars 
v. Parker, 146 Cal. 529, [80 Pac. 707].) 

It is quite obvious, however, that the only portion of the 
answer that could possibly prejudice the defendants was the 
statement in reference to their going away "where my folks 
will never know where we are." But a sufficient answer to 



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Sept. 1919.) Db Book v. De Book. 299 

appellants 9 criticism of this is, that no motion was made to 
strike it out. [6] The question itself was concededly proper, 
as evidence of conversations between the husband and wife 
was admissible to indicate their feelings toward each other. 
Hence, any objection to the question would have been prop- 
erly overruled. But, if it may be said that the objection 
of appellants made in the midst of the answer can be con- 
sidered as a motion to strike out, then, it is quite apparent 
that the motion was properly denied, since she had up to 
that time said nothing whatever to connect appellants in the 
slightest degree with any trouble between herself and her 
husband. [7] The proper practice in such cases is well 
settled, and it is sufficient to refer to the decision of the 
supreme court in the case of People v. Lawrence, 143 Cal. 
148, [68 L. R. A. 193, 70 Pac. 893]. Therein it is said: 
"Under such circumstances, where it is not apparent from 
the question itself that the response thereto will, upon any 
theory of the case, be inadmissible, an objection alone to the 
question will be of no avail, but the party must, when the 
inadmissible evidence is for the first time disclosed by the 
answer, move to have it stricken out. This is the proper and 
only remedy, and the appellant here having failed to avail 
himself of such a motion is not in a position to predicate 
error merely upon a question which, upon its face, did not 
show that the testimony to be given in response to it would 
necessarily be inadmissible,' 9 Moreover, the court in its rul- 
ing limited the consideration of the evidence to the single 
purpose of indicating the relation of the parties, and we 
must presume on appeal that it was considered by the jury 
only for that purpose. 

2. Complaint is made of the testimony of a Mrs. Wales 
that Louis De Bock told her either in June or July, 1914, 
that he had received two letters from the defendant Fisher. 
But the court struck out this evidence in the following lan- 
guage: "As to the letters which Lou De Bock told her he 
received from Millie Fisher, why the motion will be granted. 
It is hearsay, anything that is told her, and her only informa- 
tion is what he told her — is hearsay." Furthermore: "The 
court instructs the jury that as the court has granted the 
motion to strike out that portion of the witness' testimony 
wherein she stated what Louis De Bock had told her 
concerning letters, and what he told her concerning whom 



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300 Db Bock v. Db Bock. [43 Cal. App. 

the letter was from; but as to the letters which she saw 
herself and read, and the testimony will be one letter; that 
stands, and is not stricken out." Appellants contend that 
there is some uncertainty as to this ruling. But it is clear 
that everything that was said by Louis De Bock was stricken 
out. There was nothing left of any importance in the answer 
to the question, to which an objection had been made. The 
one letter to which the court refers was undoubtedly the 
one concerning which she testified without objection when she 
was asked the question : "Did Lou De Bock ever give you any 
letters to mail to Millie !" and she answered, "One." Fur- 
thermore: "What did you do with it?" and she answered: 
"I burned it." [8] But, if we concede that the court did 
not fully strike out the testimony to which an objection was 
made, it is quite apparent that it resulted in no prejudice to 
appellants, since the same fact was shown without objection. 
(Fernandez v. Wait, 26 Cal. App. 86, [146 Pac. 47] ; 3 
Corpus Juris, 815.) 

3. The situation is similar in reference to the ruling of the 
court as to a conversation between plaintiff and one Bob 
Wales as to said correspondence. If error was committed, 
it was clearly without prejudice for the reason already stated. 

Besides, the contents of the letters were not shown, and it 
cannot be assumed that there was anything therein of a com- 
promising or improper character, or that the jury was in- 
fluenced against any of the defendants by the mere circum- 
stance that Lou De Bock had corresponded with Miss Fisher. 

4. It is urged that the court erred in refusing a request 
of appellants to cross-examine the plaintiff in reference to 
a conversation with her husband. The request itself was 
somewhat indefinite, being in the following language: "Well, 
now, your Honor, in regard to Ben Smith, may I ask the 
question regarding a conversation along the same lines with 
her husband!" The reference to "Ben Smith" may be 
understood when we recall that appellants had unsuccessfully 
attempted to question the witness about a conversation with 
said Ben Smith. [9] If appellants desired to interrogate 
plaintiff concerning a conversation with her husband, they 
should have put the inquiry in more precise terms. It does, 
indeed, appear that the court did not so understand the ques- 
tion. Again, they should have asked the question of the 
witness directly to make it the proper subject of review. 



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Sept. 1919.] Db Bock v. Db Bock. 301 

Moreover, the question does not purport to be in reference to 
any quarrel, disagreement or dissension between her and her 
husband. If such was the purpose of the question, it should 
have been disclosed to the court. In County of Sonoma v. 
HaU, 129 Cal. 659, [62 Pac. 213], objections were sustained 
to certain questions upon cross-examination. It was con- 
tended on appeal that the questions should have been allowed 
for a certain purpose, not evident on the trial, but the 
supreme court said: "If such was the purpose of the ques- 
tions, a direct question should have been asked in such manner 
as to show the aim of counsel." 

Again, assuming that counsel desired to ask the witness 
concerning a controversy about her having been in a hospital 
at Sacramento, it may be said that the husband testified 
fully as to the conversation, and it thus appears that the 
conversation did not amount to a quarrel, and the fact that 
they lived together for six years thereafter is quite satis- 
factory evidence that said conversation did not cause their 
separation. 

5. Plaintiff was asked on cross-examination concerning a 
"disagreeable conversation" with her husband about one 
Schultz. [10] The trial judge made an objection to the ques- 
tion and then sustained his own objection. Such procedure is 
not to be commended except in unusual cases. Counsel for 
respondent seem to have been amply able to fully protect 
the interests of their client, and they should have been per- 
mitted to make whatever objection they deemed advisable. 
But what has been said in reference to the preceding matter 
will apply to this question which related to an occasion of six 
years prior to the separation of the parties. And whatever 
discord was thereby created was clearly condoned and for- 
gotten in the subsequent six years of felicitous marital re- 
lation. 

Some complaint is made of certain criticism made by the 
trial judge of one of the witnesses and of the counsel for 
appellant. It may be admitted that the stricture should 
not have been indulged in, but the jury was fully and clearly 
instructed to disregard everything said by the court along 
that line and we must assume that the instruction was fol- 
lowed. 

The judgment as to Millie Fisher is reversed and as to 
the other defendants it is affirmed. 



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Db Bock v. De Bock. [43 Cal. A pp. 

HART, J. — As the writer of the former opinion filed in 
this cause, and in view of the fact that we have reached a 
different conclusion from that arrived at on the former con- 
sideration of the case, I deem it proper to explain that in the 
original consideration I was misled by the lack of clearness 
of the record as to the action of the court with respect to 
certain evidence to which objections were, in my opinion, 
well taken, and which I conceived to be, in view of the slight- 
ness of the proof against the defendants, sufficiently prejudi- 
cial to require a reversal of the judgment as to all the de- 
fendants. Upon a reconsideration of the rulings upon which 
the reversal by the former opinion was ordered, however, I 
find, as the present opinion shows, that the court struck out 
all the damaging portions of certain testimony to which ob- 
jection was made and that, as to other testimony, which I 
held to be erroneous and prejudicial, no motion was made to 
strike it out after it had been given, although there was an 
objection made to it after it got into the record. As the 
main opinion shows, in such circumstances — that is, where 
a proper question elicits from a witness improper testimony — 
the remedy is by a motion to strike out such testimony, a 
mere objection to it not being sufficient to preserve the right 
of the objecting party to have the question so raised reviewed. 
Other rulings as to other testimony which appeared to my 
mind to be prejudicially erroneous are disposed of satis- 
factorily to me in the present opinion of the court. 

I desire further to add that, after a fuller consideration 
of the case, I am still convinced that the judgment should 
not stand against the defendant, Fisher. While it appears 
that the three defendants were close friends and companions, 
and that Louis De Bock was also very friendly with Miss 
Fisher, it was not made to appear that the latter did or said 
anything calculated to cause an estrangement between the 
plaintiff and her husband, or that she had or entertained any 
feeling of animosity or unkindness toward the plaintiff. 
There is no evidence tending to show that Miss Fisher ever 
attempted to persuade Louis to desert his wife or ever said 
anything to Louis or any other person in the least deroga- 
tory of the personal character of the plaintiff. There is, 
in short, nothing in the evidence tending in the slightest 
degree to connect Miss Fisher with a conspiracy to which the 
defendants, De Bock, might have been parties, the object of 



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Sept. 1919.] Db Bock v. De Bock. 303 

which was to cause a separation and divorce between the 
plaintiff and Louis De Bock. The fact that Miss Fisher was 
on intimate terms of friendship with her codefendants and 
Louis De Bock is without special significance in the absence 
of proof that she had committed acts or uttered words calcu- 
lated to influence Louis against the plaintiff, and which were 
designed by her to cause the alienation from plaintiff of 
Louis' love and affection. There are, it is true, some circum- 
stances from which the conclusion might justly follow that 
Louis De Bock and Miss Fisher were "in love with each 
other,' ' but, conceding that to have been the case, there is no 
evidence showing or tending to show that Miss Fisher was 
responsible for that state of the affairs between them. In 
other words, putting it in the language of the main opinion, 
it was not made to appear but that Louis himself "was the 
wooer and not the wooed," and that but for what might 
have been, so far as the record discloses, his undue attentions 
to her, wholly initiated and persistently prosecuted by him, 
she would not have given him any serious thought as an 
unholy suitor for her affections. These observations are, 
of course, based upon the assumption that a reciprocal senti- 
ment of love had developed between Louis and Miss Fisher, 
a fact as to which the evidence is by no means clear and 
convincing, since, after all, the evidence as to the relations 
between Louis and Miss Fisher and the sentiments they en- 
tertained for and toward each other is justly capable of the 
interpretation that their relations at all times were only those 
which commonly exist and are entertained between mere 
friends or between persons entertaining no thought of each 
other beyond that which is motivated by a mere ordinary 
sentiment of friendship. 

But it is not necessary to discuss this matter further. I 
am satisfied, from a thorough examination of the record, 
that no case was made against Miss Fisher, and for the 
reasons stated in the main opinion I concur in the reversal 
of the judgment as to the defendant, Fisher, and in its 
affirmance as to the defendants, De Bock. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied 
by the supreme court on November 14, 1919. 

All the Justices concurred. 



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304 People v, Sartobx [43 Cal. App. 



[Grim. No. 862. Pint Appellate District, Division Two.— September 17, 

1919.] 

THE PEOPLE, Respondent, v. RICHARD SARTORI, 

Appellant 

[1] Criminal Law — Bobbery — Complicity of Defendant — Evidence 
— Verdict. — In this prosecution for the commission of a robbery, 
although the defendant on trial was not present at the time the 
crime was committed, the jury was justified in concluding from 
all the surrounding circumstances that be participated in the 
crime. 

[2] Id. — Want of Direct Proof of Conspiracy — Inference Proper. 
Under the circumstances which occurred, the jury was justified in 
drawing an inference of guilt of the crime of robbery, although 
the prosecution failed to prove a conspiracy through the testi- 
mony of the codefenilant8, who had pleaded guilty, and there was 
direct uncontradicted evidence in behalf of the defendant that 
no conspiracy existed. 

[3] Id. — Proof of Detailed Plan not Necessary. — In a prosecution 
of several defendants for the commission of a robbery, it is not 
necessary for the prosecution to prove that a detailed plan of the 
robbery had been arranged among them. 

APPEAL from a judgment of the Superior Court of 
Fresno County. M. F. McCormick, Judge. Affirmed. 

The facts are stated in the opinion of the court 

Frank Curtin and Carl E. Lindsay for Appellant. 

U. S. Webb, Attorney-General, and R. L. Chamberlain for 
Respondent. 

NOURSE, J. — Defendant was charged, together with his 
codefendants SasselH and Gatti, with the crime of robbery, by 
taking from the possession of one Joe Ponti a certain sum 
of money by force and fear. Defendants Sasselli and Gatti 
both entered pleas of guilty. The defendant Sartori stood 
trial, was convicted by the jury, and prosecutes this appeal. 
The sole ground for reversal urged in his behalf is that the 
evidence is insufficient to justify the verdict of conviction. 

The undisputed facts are that this defendant first met Ponti 
in a saloon in Fresno one evening at about 6:30 o'clock; that 



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Sept 1919.] People v. Sabtoei. 305 

Ponti had just recently arrived from Stockton ; that the two 
had several drinks together at the bar, where Ponti displayed 
considerable money; that the other two defendants were in 
the same saloon drinking at the same bar; that defendant 
Sartori left Ponti for a short time and went out to the side- 
walk, where he met Sasselli, to whom he said he "had a friend 
inside, from Stockton ; he has eighty dollars ; saw him buy a 
drink, and he changed a twenty dollar gold piece." It then 
appears that after more drinks were had Sartori suggested 
to Ponti that they go out and have some tamales. As they 
stepped outside of the saloon he urged Ponti to get into 
Sasselli 's automobile, which was standing near by, saying he 
would follow on his bicycle. Ponti, Sasselli, and Gatti drove 
off in the automobile and Sartori followed for a few blocks 
on his bicycle. Sasselli, driving the machine, turned into the 
country, and when several miles out of town he and Gatti 
forcibly took Ponti *s money from him, put him out of the 
machine and turned back to town. 

On their way back Gatti gave Sasselli fifty dollars, telling 
him he had taken seventy-five dollars from Ponti and that 
twenty-five dollars, half of that given to him, was for Sartori 
and half for himself. When they reached town Gatti got 
out of the machine and Sasselli proceeded a few blocks until 
he picked up Sartori, to whom he handed twenty-five dollars, 
telling him that Gatti had taken seventy-five dollars from 
Ponti and had given him fifty dollars to be divided between 
Sartori and himself. Thereafter Sartori went to the saloon 
where he first met Ponti, and, as he entered, overheard Ponti 
relating his experiences to the proprietor and accusing "the 
man with the bicycle." Sartori stepped up, and as to what 
then occurred the testimony of the proprietor of the saloon 
shows: "Sartori comes in and he says to Ponti, 'I am the man 
with the bicycle'; and so Ponti says, 'I will go up to make my 
own complaint and to fight it out,' and Ponti asked me what 
place was the police headquarters, and I show him; and 
Sartori says, 'If you want to go out there, I will show you; 
I will go with you/ And so when it started that way and 
Sartori says, 'If you put me in the complaint, I will fix 
you'; and Ponti says, 'Never mind/ he says, 'I am going 
to make my own complaint'; and so Sartori tells him again, 
'I will fix you.' At the same time he hit him and he fell 
on the floor." 

48 0*1. App.-— 20 



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People v. Sabtorl [43 Cal. App. 

[1] It is undisputed that this defendant was not present 
at the time the crime was committed. To show his partici- 
pation in the crime the prosecution relies upon the following 
circumstances: That he endeavored to make himself very 
agreeable to the complaining witness as soon as he learned 
that he had money to spend; that he told his codefendant 
Sassclli that the complaining witness had eighty dollars ; that 
he urged the complaining witness to go out to get something 
to eat and then persuaded him to get into the automobile 
of Sasselli ; that he accepted twenty-five dollars of the money 
taken from the complaining witness, which represented one- 
third of the profits of the robbery ; and that when this defend- 
ant re-entered the saloon and heard the complaining witness 
telling of the robbery and placing the blame on the man 
with the bicycle that he immediately asserted his innocence, 
although still retaining his share of the spoils, and attacked 
the complaining witness when he learned that a criminal 
charge was to be laid against him. This defendant attempts 
to explain the receipt of the money from Sasselli by saying 
that Gatti owed him money, but his testimony was far from 
convincing, and, like the rest of his story, came from a man 
showing a guilty knowledge of the entire affair. After a 
careful examination of the entire record it is difficult to see 
how the jury could have reached any other verdict than that 
returned. 

[2] -Appellant, attacking the verdict, insists that, as the 
prosecution failed to prove a conspiracy through the testimony 
of Sasselli and Gatti, the jury was not justified in drawing 
an inference of guilt under the circumstances which oc- 
curred. The argument is that, where direct uncontradicted 
evidence is introduced to show that no conspiracy existed, 
the jury is not warranted in drawing the inference of the 
existence of such conspiracy from the facts proved, citing 
Mawpin v. Solomon, 41 Cal. App. 323, [183 Pac. 198]. But 
if the rule of that decision is as stated by appellant, then it 
cannot be the rule in criminal cases. If it were, there could 
be no conviction on circumstantial evidence if the defendant 
or anyone in his behalf took the stand and directly denied the 
commission of the crime. 

[3] In the instant case the defendant is charged as a 
principal on the theory that, although not present at the time 
of the robbery, he did aid and abet in its commission* (Pen. 



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Sept 1919.] Estate op King. 307 

Code, sec. 971.) It is not necessary for the prosecution to 
prove that a detailed plan of the robbery had been arranged 
among the three parties. No conversation may have been 
necessary between Sartori and Sasselli or between Sartori 
and Qatti. Sartori gave the information regarding: Ponti's 
possession of the money, and urged him to get into Sasselli 's 
antomobile with Gatti on the representation that they were 
going to have something to eat. 

All of the circumstances lead inevitably to the conclusion 
that the defendant participated in the fruits of the crime with 
guilty knowledge and criminal intent. The jury chose to 
follow the only inference that could be reasonably drawn 
from these circumstances rather than the denials made by 
those jointly charged with the crime. 

The evidence as outlined is sufficient to support the verdict, 
and the judgment is affirmed. 

Langdon, P. J., and Brittain, J., concurred. 



[CSt. No. 2910. First Appellate District, Division Two. — September 18, 

1019.] 

In the Matter of the Guardianship of the Person and Estate 
of PHEBE B. KING, Incompetent. 

[1] Guardian and Ward — Conflicting Evidence — Finding — Appeal. 
Where, in a proceeding for the appointment of a guardian, the 
evidence is conflicting, bnt enough appears to support the findings 
of the trial court that the person in question is not incompetent 
and that no fraud had been practiced upon her, the judgment will 
be affirmed on appeal. 

[2] Id. — Death of Alleged Incompetent — Dismissal of Appeal. — 
If, on such an appeal, the statement contained in a letter pre- 
sented to the appellate court before which such appeal is pending 
to the effect that the alleged incompetent had died pending the 
appeal, and asking that the matter be submitted, is sufficient as a 
suggestion of death, the ordinary course would be to dismiss the 
appeal. The effect of such a dismissal would be the same as an 
affirmance of the judgment. 

1. Right of applicant to appeal in proceedings to appoint guard- 
ian for incompetent person, note, 15 L. B. A. (N. S.) 436. 



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808 Estate of King. [43 Cal. App. 

APPEAL from a judgment of the Superior Court of 
Fresno County. H. Z. Austin, Judge. Affirmed. 

The facts are stated in the opinion of the court 

N. Lindsay South and Everts & Ewing for Appellant. 

Harris & Harris and C. W. Trabing for Respondent. 

BRITTAIN, J.— While Phebe R. King, aged eighty-three, 
was living with one of her sons, other children petitioned 
for the appointment of a guardian, alleging she was incom- 
petent and subject to fraud, which they further alleged was 
being practiced upon her. The petition was denied. [1] 
The appeal was based wholly on the claimed insufficiency of 
the evidence to support the findings that she was not incom- 
petent and that no fraud had been practiced. The evidence 
was conflicting and enough appeared to support the findings. 
In such a case the judgment will be affirmed. (Matter of 
Daniels, 140 Cal. 335-337, [73 Pac. 1053].) 

[2] When the matter was called for argument a letter 
from counsel for the appellants was presented. It contained 
a statement that Mrs. King had died pending the appeal, and 
asked that the matter be submitted. If the statement in 
the letter was sufficient as a suggestion of death, the ordinary 
course would be to dismiss the appeal. The effect of such 
a dismissal would be the same as an affirmance of the judg- 
ment 

The judgment is affirmed. 

Langdon, P. J., and Nourse, J., concurred. 



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Sept. 1919.] Tubneb v. Bush* 309 



[GIt. No. 2006. Third Appellate District —September 10, 1910.] 

RAYMOND J. TURNER et al., Appellants, v. P. B. BUSH 
et al., Respondents. 

[1] Waters and Watkr Rights — Title by Prescription — Burden 
of Proof— Findings — Evidence — Appeal. — The rule that the bur- 
den is upon the party who claims certain water rights by pre- 
scription to clearly prove by competent evidence all of the ele- 
ments essentia] to such title is especially for the guidance of the 
trial court. If there is any substantial evidence in the record on 
appeal from which a rational inference may be drawn that the 
various elements of prescriptive right exist, the appellate court is 
bound by the findings of the trial court. 

[2] Id.— Case at Bar — Title by Prescription — Conclusions of 
Trial Court 1 — Legal Justification for* — In this action brought 
to secure a permanent injunction to prevent the defendants from 
using or from interfering with the use by plaintiffs of one-third 
of the waters of a certain creek, there was legal justification for 
the conclusion that defendants and their predecessors in interest 
used all the water continuously, openly, and under a claim of 
right for at least five years and, therefore, acquired a title by 
prescription. 

APPEAL from a judgment of the Superior Court of 
Modoc County, and from an order denying a new trial, 
Clarence N. Raker, Judge. Affirmed, 

The facts are stated in the opinion of the court 

Sharp & Ilenderson, Dodge & Barry and N. J. Barry for 
Appellants. 

Daly B. Robnett for Respondents. 

BURNETT, J. — The action was brought to secure a perma- 
nent injunction to prevent the defendants from using or 
from interfering with the use by plaintiffs of one-third of the 
waters of a certain South Deep Creek, which is a natural 
stream of water in Surprise Valley, Modoc County. Plain- 
tiffs based their claim upon an alleged prior appropriation 

2. fosentials of title to water by prescription, note, 93 Am. St. 
Bap. 719. 



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310 Turner v. Bush. [43 Cal. App. 

by the patentee of their lands, one Jacob F. Bittner, and in 
a separate count set up the claim of title by prescription. 
Defendants answered separately and denied all the material 
allegations of the complaint except the ownership of the lands 
by plaintiffs, and they filed a cross-complaint in which they 
claimed all the waters of said creek, first by virtue of prior 
appropriations, second by adverse user for the prescriptive 
period of five years, and defendant Bush made a further 
claim to said waters of said stream as riparian proprietor. 
Judgment was for defendants and the appeal is by plaintiffs 
from said judgment and from the order denying their motion 
for a new trial. There is really no controversy over the Bush 
claim to one-third of the water, the evidence all showing that 
he was and is entitled to it, and, therefore, concededly, the 
judgment as to him must be affirmed. The only dispute is 
as to the two-thirds of the water claimed by defendant K. M. 
Lester, plaintiffs insisting that they are entitled to one-half 
of that two-thirds, it being admitted by them that said de- 
fendant owns and is entitled to the use of the other one-half, 
or one-third of the whole flow. There was no evidence of 
any appropriation of any of the water by said Jacob F. Bitt- 
ner, so that it may be said there was a failure of proof as 
to this allegation of the complaint. It appeared, however, 
that for more than thirty years prior to March 15, 1912, all 
the lands involved herein and all the waters of said creek 
were owned and used by one Christopher T. Sharp. There 
is evidence that said Sharp used and appropriated said water 
equally for the irrigation of said three tracts, and, hence, the 
contention is made by appellants that one-third of said flow 
became appurtenant to the land now belonging to plaintiffs 
and passed with the deed to George Turner and Sallie C. 
Turner executed by said Sharp on said March 15, 1912, and 
thereafter to plaintiffs through the deed executed to them by 
said George Turner and Sallie C. Turner on the first day of 
May, 1915. This is the theory upon which plaintiffs relied 
in the court below. In that respect there was a departure 
from the scheme of the complaint, but no objection was made 
to the course pursued and it cannot be urged now as a suffi- 
cient reason for the affirmance of the judgment. In opposi- 
tion to this claim of plaintiffs it was the contention of defend- 
ants, especially defendant Lester, that Sharp reserved the 
water right attached to the land convoyed to plaintiffs' pre- 



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Sept. 1919.] Turner v. Bush. 311 

deccssors in inton»>t, and transferred the entire water right in 
and to the use of said stream to the defendants or their 
grantors. This claim was and is based upon the peculiar 
language of the deeds executed by Sharp to the respective 
parties on said March 15, 1912, and also certain parol evi- 
dence of the intention of the parties, which was allowed over 
the objection of appellants. It may be said that it is at least 
questionable whether the lower court's ruling as to the ad- 
missibility of this evidence was correct, and also whether there 
is sufficient competent evidence to support the finding of the 
court that "said Jacob F. Bittner did not, nor did any other 
grantor of plaintiffs, ever divert from said stream into any 
ditch by means of any dam, or otherwise, or by means of 
any ditch, or otherwise, convey an amount of water equal to 
one-third of the greatest flow of the waters of said stream, 
or convey any amount of the waters of said stream to or 
upon the above described lands of plaintiffs." We think, 
though, that we may forego the consideration of these and 
some other questions discussed by counsel. We reach this 
conclusion by virtue of the fact that the court found that 
defendants have acquired a title by prescription to all the 
waters, and that there is sufficient evidence, as we are re- 
quired to view it, to support said finding. It will not be 
disputed that this finding in connection with the undisputed 
facts is sufficient upon which to base the judgment and that, 
if supported, it renders immaterial other findings to which 
objection is made. 

[1] In considering the sufficiency of the evidence to 
support said finding we are not unmindful of the rule as thus 
stated in Clarke v. Clarke, 133 Cal. 667, [66 Pac. 10] : 
"The burden is upon the party who claims by prescription 
to clearly prove by competent evidence all of the elements 
essential to such title. The user must have been adverse 
to the true owner and hostile to his title. It must have been 
actual, continued, open, and under a claim of right. It must 
have all the elements necessary to acquire title by adverse 
possession ... It must, in some way, be asserted in such 
manner that the owners may know of the claim." But that 
rule is especially for the guidance of the trial court. The 
principle which controls us is that if there is any substan- 
tial evidence in the record from which a rational inference 
may do drawn that said elements of prescriptive right exist, 



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812 Turner v. Bush. [43 CaL App. 

then this court as an appellate tribunal is bound by the find- 
ing of the trial court. 

It is also to be remembered that the initiation of the " ad- 
verse possession " could not be earlier than March 15, 1912, 
nor could it continue beyond the month of June, 1917, that 
being the time when this controversy over the ownership of 
the water arose. But as seen this period covers more than 
five years. 

[2] With these preliminary observations, we herewith set 
out the principal evidence upon which is based the claim of 
title by prescription. 

One W. A. Mickle, who was the immediate predecessor 
in interest of defendant K. M. Lester as to a portion of her 
lands and who managed the lands which Mr. Bush then 
owned and afterward sold to Miss Lester, testified in part as 
follows: "From March 15, 1912, I continued to own the land 
until about the first of April, I think it was 1917. I occupied 
the land from March 15, 1912, to April, 1917. During that 
time I was familiar with the Bittner Pre-emption. In 1912 
Stewart had it leased. George Turner, I think, was the owner 
of it. From 1912 until 1917 I used water on the land that 
was conveyed to me. I got the water from South Deep Creek. 
I used it continuously, for the purpose of irrigating alfalfa, 
grain, garden, and orchard. The waters were necessary for 
the watering of crops on the land. I am familiar with the 
Sharp Pre-emption. During the time that I had charge of the 
land, I had charge of the portion of the Sharp Pre-emption 
that Mr. Bush had purchased and I used a portion of the 
water of South Deep Creek on that land. My use was open. 
Whenever I wanted water I took it. I do not think anyone 
was living on the Bittner land [land of plaintiffs] the first 
year. Mr. Stewart was living on the adjoining land and 
had it leased. During the year 1912 neither Stewart nor 
Turner used any water on the Bittner land from South Deep 
Creek to my knowledge. The ditch that they used to take 
the water to the Bittner tract is not far from my house and 
I had occasion to cross the ditch frequently and I crossed 
the ditch occasionally and observed it and they used water 
through that ditch that season. I cannot give the exact date 
but it was early in the spring, shortly after I moved on the 
place. I think John Stewart turned the water into the ditch. 
Prior to the water being turned into the ditch I had a con- 



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Sept 1919.] Turner v. Bush. 313 

versation with Mr. George Turner, who was then owner of 
the Bittner land. He came to my place and asked me if I 
would go with him up to Mr. Stewart 9 s place and tell him 
to turn the water from South Deep Creek down through that 
place, as he wanted to take the water to what was known as 
the big Turner ranch. He had just sold that ranch to Mr. 
Alvord, and he wanted the water on it in order to make a 
good showing on that place. / told him that I was not using 
the water and that we would both go up there, and then we 
went to Mr. Stewart and told him to take the water and 
run it down there, which he did. I cannot tell exactly how 
long the water ran down there because I was busy. I had 
plowing to do and I could not use the water. It might have 
run down there a week or two weeks. "When I got my plow- 
ing done I took the water and irrigated my alfalfa and grain. 
I turned all of the water off of the Turner ranch and used 
it on the land I had leased from Mr. Bush and on the land 
I owned. . . . / used all the water from South Deep Creek 
except the one-third that went to the Dodson lands [lands of 
defendant Bush] continuously on the lands described in the 
deed to me and the deed to Mr. Bush from 1912 to 1917, 
without interference or interruption by anyone. . . . During 
the time I was farming the Sharp land I bought, and that 
which Bush bought, I used all the water in South Deep Creek 
on those lands, except one-third that went to the Dodson 
place, and I used it continuously, openly, notoriously and 
under claim of right. No one interfered with me, except 
through my permission and I asked no one's permission to 
use it." The foregoing would justify the trial court's find- 
ing under the doctrine of Ournsey v. Antelope Creek etc. Co., 
6 Cal. App. 387, [92 Pac. 326] ; Silva v. Hawn, 10 Cal. App. 
544, [102 Pac. 952] ; Hesperia etc. v. Rogers, 83 Cal. 10, 
[23 Pac. 196], and many other decisions. 

It is true that in the cross-examination of the witness he 
qualified his testimony by stating that it did not apply to 
the year 1917, so that, if there were no other testimony of a 
similar nature extending over a sufficient period in 1917 to 
complete the five years, it might be said that the time was 
too short. But one A. E. Sweet testified, among other things, 
as follows: " During the year 1917 I have been running the 
land formerly owned by Bush and now by Miss Lester, and 
I have used water from South Deep Creek this year. Had 



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814 Turner v. Bush. [43 CaL App. 

two-thirds of it, as near as I could guess, and Hussa took 
over the other one-third for the Bush lands, that is, the 
Dodson land. Raymond Turner was using water from South 
Deep Creek this year some time about the first of June. 
I think it was the first day of June it was turned on. I 
turned it all away." W. A. Hussa testified that for three 
years he had been living on the Dodson land and "during 
the times that I have been there Miekle took two-thirds of the 
water and I took one-third. He took two-thirds of the water 
to his place and the Bush place and I took the other one- 
third to the Dodson place." 

We may add that there is further evidence in the record 
that the use of said water by plaintiffs was permissive and 
that defendants used it as if it belonged to them, and since 
there is no controversy as to the payment of the taxes, we 
are satisfied that there is legal justification for the conclusion 
that defendants and their predecessors in interest used all 
the water continuously, openly, and under a claim of 
right for at least five years and, therefore, acquired a title 
by prescription. 

The judgment and order are, therefore, affirmed. 

Chipman, P. J., and Hart, J., concurred. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on November 17, 1919. 

All the Justices, except Olney, J., concurred. 



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Sept 1919.] Tulare Co. Power Co. v. Pacific S. Co. 315 



[Civ. No. 1991. Third Appellate District— September 20, 1919.] 

TULARE COUNTY POWER COMPANY ( a Corporation), 
Respondent, v. PACIFIC SURETY COMPANY (a Cor- 
poration), Appellant. 

[1] Liability Insurance — Assumption of Control of Litigation — 
Waiver of Notice of Accident. — The conditions of a liability 
insurance policy that "upon the occurrence of an accident, the 
assured shall give immediate written notice thereof with the full- 
est information obtainable at the time/' being intended primarily 
to afford opportunity to the insurer promptly to take charge of a 
defense, are waived where the insurer does assume control of the 
litigation growing out of the accident 

[2] Id. — Assumption of Control by Insured— Affirmance of Judg- 
ment on Appeal— Violation of Policy. — It cannot be said that 
the insured violated a condition of the policy by taking complete 
control of the motion for a new trial in an action brought against 
it for damages, where counsel for the insurer was present at and 
participated in the trial and the judgment in such aetion was 
affirmed on appeal. 

[S] Id. — Partial Control by Insured — Want of Interference — 
Waiver of Breach. — In the absence of some complaint that the 
attorneys for the insured, who had been permitted to take part 
in the case, interfered with the insurer's conduct of the defense 
in the action for damages, the faet that the latter did not have 
full and exclusive control of the defense did not militate against 
the rule that by assuming such control they waived the prior 
breach of conditions by the insured. 

[*] Id. — Action upon Policy — Performance — Waiver of Perform- 
ance — Construction of Findings. — Where, in an action upon a 
liability insurance policy, both the faet of performance of all the 

^ " i 

1. Construction and effect of condition in employers' liability in- 
surance policy requiring insured to give insurer notice of accident, 
notes, 11 Ann. Oas. 258; Ann. Oas. 1914A, 271. 

Delay in giving notice of claim under employers' indemnity 
policy, notes, 38 L. B. A. (N. 8.) 62; 47 L. R. A (N. 8.) 1213; 
IV. R. A. 1918D, 445; L. B. A. 1918E, 114. 

Waiver of provision in accident insurance policy requiring notice 
of injury or death to be given within certain time, note, Ann. Cas. 
1917A, 114. 

2. Validity and construction of provision in employers* liability 
insurance contract giving insurer control of settlement, note, Ann. 
Oas. 1918C, 405. 



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316 Tulare C<x Power Co. v. Pacific & Co. [43 Cal. A pp. 

conditions of the policy by the insured and the fact of waiver of 
performance of the conditions of the policy by the insurer, with 
the facts and circumstances constituting such waiver, are alleged 
in the complaint, a finding that plaintiff "performed all the condi- 
tions of said policy" may be considered as surplusage, if the evi- 
dence justifies the further finding of waiver on the part of de- 
fendant The findings of the trial court are to receive such a 
construction as will uphold rather than defeat its judgment, 

[6] Id. — Accident Dubino IdR OF Polict. — Where the accident in 
question happened during the period of the policy it was imma- 
terial that the installation of the wires which caused the accident 
occurred two months prior to the issuance of the policy, or that 
the insurer may not have learned of the date of installation of 
the plant until after the trial of the action growing out of the 
accident 

[6] Id. — Payment or Judgment. — The judgment against the insured 
having become final and a lien upon its property, the payment 
thereof partly by the insured personally and the balance by the 
purchaser of its property, who withheld the amount paid from 
the purchase price, constituted payment within the provision of 
the policy that "No action shall lie against the company for any 
recovery under this policy, unless it shall be brought by the 
assured for loss or expense actually sustained and paid in money 
by the assured in satisfaction of a judgment after trial of the 
issue." 

[7] Id. — Construction or Policy. — A contract of indemnity is to be 
strictly construed, and the contract of indemnity measures the 
rights of the parties thereto, and consequently, the liability of 
the indemnitor. 

[8] Id. — Interest Accruing Pending Appeal— Recovery rt Insurer. 
Interest on the judgment recovered against the insured from the 
date of its entry and pending an appeal therefrom does not con- 
stitute "expense" incurred in defending the action, or "costs," 
within the meaning of the provision in a liability insurance policy 
that, in the event of any suit brought against the assured to en- 
force a claim for damages covered by the policy, the insurer "will 
defend such suit, whether groundless or not, in the name and on 
behalf of the insured/' and that "the expense incurred by the 
company in defending such suit, including costs, if any, taxed 
against the assured, will be borne by the company whether the 
judgment is for or against the assured." 

[9] Id. — Interest Recoverable. — An insured who pays a judgment 
for the full amount limited in a liability policy indemnifying 
against actual loss, or a judgment for a smaller amount than such 
limited sum, can recover the sum with interest only from the time 
of such payment 



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Sept. 1919.] TuiiARE Co. Power Co. v. Pacific S. Co. 317 

[10] Id. — Recovery of Attorneys' Fees. — The insured is not entitled 
to recover attorneys' fees paid to its counsel where the insurer 
notified the insured that it would defend the action, and did de- 
fend it, and the participation therein by the insured's attorneys 
was by the insurer's permission and was not required by vhe terms 
of the policy. 

[11] Id. — Venue of Action. — In this action upon a liability insurance 
policy, the court having found from the facts set forth in the affi- 
davit filed by plaintiff that the contract was made in Tulare 
County and was to be performed therein, and the business of 
plaintiff having been conducted in that county and the liability 
of the defendant under the policy having arisen therein, the 
court properly denied the defendant's motion for a change of 
venue to the county where it maintained its principal place of 
business. 

APPEAL from a judgment of the Superior Court of 
Tulare County. W. B. Wallace, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

Denson, Cooley & Denson and Cooley & Lachmund for Ap- 
pellant. 

Middlecoff & Peemster for Respondent 

Chickering & Gregory, Lilienthal, McKinstry, Raymond, 
Haber & Pirebaugh and Redman & Alexander, Armci Curiae. 

HART, J. — The action was brought by plaintiff to recover 
upon a liability insurance policy, issued by defendant, dated 
June 18, 1913. Judgment was entered in favor of plaintiflE 
for $5,460, with interest and costs, from which judgment 
defendant prosecutes this appeal. 

From the allegations of the complaint it appears that plain- 
tiff was a California corporation doing business in the county 
of Tulare and "between noon on the sixteenth day of June, 
1913, and noon on the sixteenth day of June, 1914, was en- 
gaged in the business of operating and maintaining an electric 
light and power plant* f in said county, together with extension 
lines and service connections, etc. "That on said eighteenth 
day of June, 1913, said defendant made its contractor's public 
liability policy of accident insurance," a copy of which was 
attached to and made part of the complaint, to portions of 
which we shall hereinafter refer. It was further alleged and 



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318 Tulare Co, Power Co. v. Pacdto S. Oo. [43 Cal. App. 

found that, "on the eighteenth day of June, 1913, said de- 
fendant delivered said policy of insurance to this plaintiff, 
and plaintiff paid the full amount of the premium provided 
for in said policy of insurance, to said defendant." It was 
found that said premium was paid to defendant on or about 
the third day of January, 1914, "and defendant waived the 
payment thereof prior to such time and waived any defense 
it had to said policy by reason of said premium not being 
paid prior to the time it was so paid." 

On the tenth day of July, 1913, one L. C. Bergen was 
being furnished for hire by plaintiff with electricity for light- 
ing and power on certain property in Tulare county and 
4 'in order to use said power said L. C. Bergen maintained 
on said lots a well for irrigating purposes, and an electric 
motor and pump and pump-house"; that plaintiff had erected 
along the south line of said premises a line of poles and a 
system of wires known as "primary" wires, "charged with 
a dangerous and life-destroying force and current of elec- 
tricity, ... to wit: six thousand six hundred volts"; 
that the motor was to be operated by 220 volts and 
the lights by 110 volts; that, to reduce said six thou- 
sand six hundred volts to 220 and 110 volts, respec- 
tively, transformers and ground wires were "supplied, fur- 
nished, installed and erected at said pumping plant" by 
plaintiff, the system of wires, switches, etc., being known as 
"secondary" wires. On said 10th of July, 1913, said Bergen 
descended into the pit in which said pump was located for 
the purpose of inspecting said pumping plant; at that time 
"there was a dangerous, unusual, and excessive current of 
electricity passing from said 'primary' wires and into the 
drop cord and electric light which hung in the pit of said 
pumping plant, . . . rendering said drop wire and electric 
light highly dangerous to handle, and that this dangerous 
condition was at said time unknown to said Bergen and un- 
known to this plaintiff." Bergen came in contact with the 
drop wire and light and was instantly killed, without any 
fault on his part. 

It was alleged in the complaint and found by the court that 
"upon the occurrence of said accident, and as soon there- 
after as plaintiff was informed thnt a claim was made against 
plaintiff on account of said accident, plaintiff did, to wit, 
on the sixteenth day of September, 1913, give immediate 



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Sept 1919.] TuiiABE Co. Power Co. v. Pacific S. Co. 319 

written notice thereof with the fullest information obtain- 
able at the time to the defendant's head office at San Fran- 
cisco; and at the same time by the said notice gave like notice 
of the making of said claim on account of said accident." 
The notice above referred to was in the form of a letter, 
signed by Drew & Drew, Attorneys, Fresno, addressed to the 
defendant at San Francisco, and read as follows: "You are 
hereby notified that on September 3rd, 1913, Mrs. Sarah B. 
Bergen, as administratrix of the estate of L. C Bergen, de- 
ceased, has through her attorneys . . . made a claim against 
the Tulare County Power Company (assured under policies 
Nos. C. P. 2347 and C. B. 4212), for and on behalf of her- 
self and the minor children of said deceased [naming them] 
for the death of said L. C. Bergen, claiming that the death of 
said deceased was caused by coming in contact with a drop 
cord in the pit of the pumping plant belonging to the de- 
ceased. The attorneys have not made claim for any partic- 
ular amount. We are serving this notice on your company 
under the provisions of your policy. Mr. Bergen met his 
death some time in July, but this is the first direct intimation 
that we have of any claim against the company for his death." 
On September 17, 1913, the defendant replied to the above 
letter as follows: "You are hereby advised that the above 
policies have been canceled upon the books of this company 
by reason of the nonpayment of premiums thereunder and 
that the same have been void and of no effect from date of 
issue." 

On December 8, 1913, Sarah E. Bergen, as admin- 
istratrix of the estate of L. C. Bergen, deceased, com- 
menced an action against plaintiff, in the superior court of 
the county of Tulare, in which she asked for fifty thousand 
dollars damages on account of the death of her husband 
Summons was duly issued and a copy of the complaint and 
summons was served on plaintiff and, on December 11, 1913, 
plaintiff forwarded to defendant, at San Francisco, said 
summons and complaint. On December 27, 1913, defendant 
wrote the following letter to Messrs. Holley & Holley, Visalia : 
"In Bel: L. C. Bergen vs. Tulare County Power Co. Our 
Mr. W. B. Renton has made a thorough investigation of the 
facts surrounding the nonpayment of premium in this case 
and this office is in receipt of his report thereon, in view of 
which this company will, upon receipt of the Tulare County 



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320 Tulaeb Co. Power Co. v. Pacific S. Co. [43 Cal. App. 

Power Company's check for earned premium in the amount 
of $572.08 due from 6/16/13 to 9/16/13, be pleased to rein- 
state this policy without prejudice. We enclose bill for this 
amount. For this purpose, we will ask you to have assured 
return to us at once the papers in the case." On December 
29, 1913, Holley & Holley wrote plaintiff as follows: "I have 
received a letter from the Pacific Surety Company this morn- 
ing offering to reinstate the liability policies in that company 
which were written and effective June 16th, 1913, and which 
were canceled for nonpayment, upon the payment of the 
earned premium from June 16th to September 16th. As I 
understand it, this contemplates the assumption of all liability 
under these policies from the date of their issuance, includ- 
ing the case of L. C. Bergen vs. your Company which has 
been filed for action, on which case the Pacific Surety Com- 
pany formerly denied liability. . . . You will understand that 
if you accept the proposition, you will be relieved of all 
expense in connection with the defense of this case of Ber- 
gen , s. M Upon receipt of said last-mentioned letter, plain- 
tiff paid to defendant the amount of premium demanded by 
it. On March 3, 1914, defendant wrote plaintiff: "This 
letter will serve to notify you that policy No. C. P. 2374, 
issued to you on June 16th, 1913, and subsequently canceled, 
has been reinstated as of the date of issue, and is in full 
force and effect." 

It was then found that thereupon plaintiff rendered to 
defendant all assistance in plaintiff's power in the protection 
of its interest; that defendant, in the name of plaintiff and 
on its behalf, filed an answer to the Bergen complaint; that 
a trial of said action was had and judgment was given therein 
in favor of the administratrix for the sum of twelve thousand 
five hundred dollars and $160 costs. Further facts, appear- 
ing from the record, will be adverted to in the discussion of 
the points raised upon the appeal. 

[1] 1. It is first contended by appellant that plaintiff 
failed to perform the first condition of the policy, namely: 
"Upon the occurrence of an accident, the assured shall give 
immediate written notice thereof with the fullest information 
obtainable at the time," and that plaintiff failed to give 
immediate notice of the claim "with full particulars," as re- 
quired by the policy. 



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Sept 1919. ] TuiiABB Co. Power Co. v. Pacific S. Co. 321 

The court found "that the defendant waived any defense 
which it had herein by reason of the failure and neglect of 
said plaintiff to give immediate written notice of said ac- 
cident." 

We think this point is disposed of in favor of plaintiff 
by the case of /. Frank & Co. v. New Amsterdam C. Co., 
175 Cal. 293, where it is said, on page 298, [165 Pac. 927, 
930] : "Of course the conditions of the policy requiring notice 
to the home office of probable liability are intended primarily 
to afford opportunity to the insurer promptly to take charge 
of a defense. Such requirements are reasonable and just, 
but they are waived when, as in this case, the insurer actually 
does assume control of the litigation growing out of the ac- 
cident." 

[2] 2. It is claimed "that plaintiff violated condition 2 of 
the policy, in that it took complete control of one of the legal 
proceedings in the Bergen litigation, namely, the motion for 
new trial, and did not even notify us of the date of the 
hearing of the motion." 

The following facts were stipulated to by the respective 
parties at the trial: "That at the time of hearing of the 
motion for new trial in the Bergen case, Denson, Cooley & 
Denson, E. I. Peemster, and A. E. Cooley were acting as 
attorneys on behalf of the defendant in said action, and that 
no notice of the time of said hearing was given by said E. 1. 
Feemster, to Denson, Cooley & Denson or to A. E. Cooley, 
and that neither Denson, Cooley & Denson nor A. E. Cooley 
took part in the argument of said motion for new trial, but 
said motion for new trial was argued for the defendant in 
said action solely by said E. I. Feemster; that the reason 
that E. I. Feemster did not notify Denson, Cooley & Den- 
son or A. E. Cooley of the time set for the hearing of said 
motion for new trial, was that he believed it would be a 
useless tax upon the time of said A. E. Cooley to go to' 
Visalia from San Francisco for that purpose, and that said 
E. I. Feemster believed that the trial court would refuse 
the motion for new trial and pass the matter up to the 
appellate court for decision." 

As seen, the action of Bergen v. Tulare County Pouter Com- 
pany was commenced on December 8, 1913, and the summons 
and complaint were sent to the Surety Company on Decem- 
ber 11th. Between that date and the 27th of December, 

48 Oftl. App.— 21 



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322 Tulabe Co. Power Co. v. Pacific S. Co. [43 Cal. App. 

defendant was denying any liability on account of the death 
of Bergen. Before the date when the defendant announced 
that it would defend the action, the Power Company had 
appeared therein and filed a demurrer to the complaint. On 
January 17, 1914, Denson, Cooley & Denson of San Francisco, 
by A. E. Cooley, wrote to Peemster & Walker, at Visalia, the 
attorneys for the Power Company, suggesting that an 
amended demurrer to the complaint be filed, and stating: 
"We shall be glad to co-operate in every manner in the 
defense of this action." An amended demurrer was filed 
and overruled and an answer was filed on behalf of the de- 
fendant by "Feemster & Walker, Denson, Cooley & Denson, 
attorneys for defendant." Mr. Cooley was present and par- 
ticipated in the trial, and the decision of the supreme court 
(173 Cal. 709, [161 Pac. 269]) shows him to have been one 
of the attorneys for the appellant on the appeal. 

In Williams v. Harter, 121 Cal. 47, 52, [53 Pac. 405], the 
appellant made the point that the trial court arbitrarily de- 
nied his motion for a new trial without hearing or consider- 
ing the grounds urged in support thereof. The supreme court 
refused to consider the point because not properly brought 
before it, but said: "Besides, the real and only question is, 
Did the court err in denying the motion!" 

The supreme court having affirmed the judgment in the 
Bergen case, we think, under the authority of the above- 
cited case, that it becomes immaterial whether Denson,. Cooley 
& Denson were notified of the date set for the hearing of the 
motion for new trial. 

3. It is next urged that "no waiver of breach of conditions 
was proved, and none could have been under a complaint 
alleging due performance by plaintiff of all conditions of the 
policy." 

In this connection, the allegations of the complaint, which 
the court found to be true, were: "And this plaintiff has 
duly performed aU the conditions of said policy of insurance 
upon its part to be performed. That defendant herein 
through its own attorneys and counselors at law controlled 
all said legal proceedings, and had charge of the trial of 
said action, and tried the same. And this plaintiff alleges 
that by reason of the facts herein alleged the defendant 
waived and excused any further notice of said accident, and 
waived any and all defenses it might have had herein." 



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Sept. 1919. ] Tulare Co. Power Co. v. Pacific S. Co. 323 

In /. Frank & Co. v. New Amsterdam C. Co., supra, it is 
stated in a syllabus: "When an insurance company, with full 
knowledge of all the facts, enters into negotiations and rela- 
tions with the assured, recognizing the continued validity 
of the policy, the right to a forfeiture for any previous de- 
fault which may be asserted is waived." 

In Rodgers v. Pacific Coast Casualty Co., 33 Cal. App. 
70, [164 Pac. 1115], it was also held that "where an insurance 
(Company . . . takes charge of and assumes exclusive control 
of an action brought against the insured for damages for 
.injuries from ... an accident, it recognizes a liability, if 
lit fails to defend successfully, to pay the assured the amount 
of the judgment not exceeding the amount stipulated in the 
policy." 

[3] Appellant attempts to distinguish those cases from the 
one at bar because here the insurance company did not have, 
while in the cited cases it did have, "full and exclusive 
control" of the litigation. In the Frank case the attorney 
for the insurance company invited the attorney for the in- 
sured to participate in the preparation and trial of the case, 
but he refused to do so. In the present case, Mr. Cooley, 
in the letter to plaintiff's attorneys suggesting that an 
amended demurrer to the complaint be filed, wrote: "Inas- 
much as the plaintiff has sued for very much more than the 
policy limit of the Pacific Surety Company, we presume the 
defendant will want to employ its own attorneys to represent 
it in the trial of the action. This is customary, and permis- 
sion is always granted by the Pacific Surety Company to 
the assured to do so." The attorneys for the Power Company 
consented to act and thereafter did act in conjunction with 
the attorneys for the Surety Company in the conduct of the 
case. Aside from the matter of the argument of the motion 
for new trial, appellant makes no claim that plaintiff's at- 
torneys interfered with their conduct of the defense in the 
Bergen case. While appellant's attorneys may not have had 
"full and exclusive control" thereof, the absence of any com- 
plaint that the defense was interfered with by plaintiff's 
attorneys would seem to indicate that the point now made is 
.without merit. 

Appellant cites Todd v. Union Cos. & Surety Co., 70 App. 
Div. 52, [74 N. Y. Supp. 1062], wherein it is stated: "If he 
[the plaintiff] has performed, then that fact must be alleged 



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Tulabb Co. Power Co. v. Paoific S. Co. [43 Cal. App. 

without qualification. If he has not performed, for the 
reason that defendant waives performance, then the conditions 
waived and the facts and circumstances constituting such 
waiver must be alleged." Peek v. Stienberg, 163 Cal. 127, 
133, [124 Pac. 834], is also cited to the same effect. [4] 
As seen, in the present case, both the fact of performance 
and the fact of waiver, "with the facts and circumstances 
constituting such waiver," were alleged. 

" The findings of the trial court are to receive such a con- 
struction as will uphold rather than defeat its judgment." 
(Holler v. Yolo Water & Power Co., 34 CaL App. 317, 
[167 Pac. 197].) The finding that plaintiff "performed all 
the conditions of said policy" may be considered as sur- 
plusage, as the evidence fully justifies the further finding of 
waiver on the part of defendant, and this disposes of the 
further contention of appellant that said findings are in- 
consistent. 

4 Appellant complains that the finding that "Feemster 
ft Walker, Denson, Cooley ft Denson, and Chas. E. Bush, 
Esq., were all acting as the legal representatives of both 
said Tulare County Power Company and Pacific Surety Com- 
pany and were co-operating in the defense of said action 
under the terms of said insurance policy," is inconsistent 
with the further finding that E. L. Feemster, in making the 
motion for new trial, "was representing the Pacific Surety 
Company, and not the Tulare County Power Company." 

We cannot see that these findings are inconsistent, but if 
it be conceded that they are, we do not perceive how any 
harm could have resulted to the defendant therefrom. 

5. The point is made that there is no evidence supporting 
certain of the findings essential to the support of the judg- 
ment. The findings referred to we have already considered 
in connection with the consideration of other points urged 
as grounds upon which a reversal of the judgment should 
be ordered. We will not enter herein upon an analytical 
examination of the evidence for the purpose of showing, as 
easily it may thus be shown, that there is no merit in this 
point. It is enough to say that there is but one of the find- 
ings of which it is asserted that there is no evidence to support 
them which might justly be held to be amenable to that criti- 
cism, and that finding is the one to the effect that plaintiff 
had performed all the conditions of said insurance policy 



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Sept. 1919.] Tulabb Co. Power Co. t/. Pacific S. Co. 325 

imposed upon it; but as to that finding it is, as above sug- 
gested, immaterial whether it does or does not derive support 
from the evidence, since the court also found, upon ample 
evidence, that the defendant had waived any breach of 
any of the conditions of the insurance policy of which the 
plaintiff might have been guilty and also waived any defense 
which might have been based upon any such breach. 

[5] 6. It is next argued that "the policy did not cover 
this accident because no premium was received based upon the 
compensation paid the employees of plaintiff who negligently 
installed the Bergen plant. 9 ' 

The argument is that the installation of the wires on the 
Bergen plant "was made three months prior to the accident 
and the premium was based upon the pay-roll from June 
16, 1913; . . . that none of the compensation paid prior to 
the issuance of the policy entered into the computation of 
the premium. No consideration passed from plaintiff to 
defendant to cover insurance for negligence occurring prior 
to the issuance of the policy." 

The policy agreed to indemnify the assured "against loss 
or expense arising or resulting from claims upon the assured 
for damages on account of bodily injuries, including death 
therefrom, accidentally suffered, or alleged to have been 
suffered, during the period of this policy, by any person or 
persons not employed by the assured by reason of the opera- 
tion of the business described in the schedule . . . when such 
injuries or death result from accident occurring within the 
period hereinafter mentioned." 

The accident in question happened "during the period of 
this policy," and we think it entirely immaterial that the 
installation of the wires which caused the accident occurred 
two months prior to the issuance of the policy. Nor is it 
material that defendant, as is the claim, may not have learned 
of the date of the installation of the plant until after the 
trial of the Bergen case. The fact, if known to the defendant 
before the trial, could not have excused the Power Company 
from liability for the accident and could have availed defend- 
ant nothing, because its liability was for accidents occurring 
during the life of the policy. 

[6] 7. Section 3 of the policy reads as follows: "No 
action shall lie against the company for any recovery under 
this policy, unless it shall be brought by the assured for loss 



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326 Tulabb Co. Poweb Co. v. Pacific S. Co. [43 Cal. App. 

or expense actually sustained and paid in money by the 
assured in satisfaction of a judgment after actual trial of the 
issue, nor unless such action be brought within one year after 
such payment." 

There was introduced in evidence an agreement, of date 
June 30, 1915, between Tulare County Power Company and 
Mt. Whitney Power & Electric Company, supplemented by 
an agreement of August 2, 1915, whereby said Mt. Whitney 
Company purchased the properties of the Tulare County 
Power Company, and wherein it was recited that the judg- 
ment in the Bergen case was a lien upon said properties and 
that the balance due the Tulare Company under said agree- 
ment of sale should not be paid by the Mt. Whitney Company 
until said judgment and lien had been fully satisfied of 
record. 

It appeared that the Mt. Whitney Company paid fourteen 
thousand dollars of the Bergen judgment and the Tulare 
Company paid $1,036.10 thereof. It is claimed by appel- 
lant that this payment by the latter company does not 
constitute the payment provided in said section 3 of the 
policy. 

Appellant cites Philadelphia Pickling Co. v. Maryland 
Casualty Co., 89 N. J. L. 330, [98 Atl. 433]. There a policy 
of insurance was issued by the defendant to "Philadelphia 
Pickling Co.," which was in reality Sallie Wittenberg, she 
having adopted that trade name. One Chambers, an employee, 
was injured in the assured 's factory and brought suit and 
recovered judgment. After the verdict and before final 
judgment, Sallie Wittenberg transferred her business to the 
plaintiff, Philadelphia Pickling Co., a corporation, which took 
over the assets and assumed the liabilities of the trade name, 
including the Chambers claim. The policy was attempted 
to be passed by a parol transfer and delivery, but at the 
time of the incorporation of the plaintiff the policy had 
expired. The corporation paid the Chambers judgment and 
brought the action against the surety company to recover 
the money paid. Said the court: "Clearly, the appellant 
cannot recover as the assured under the policy. The diffi? 
culty, however, is this : Sallie Wittenberg never suffered any 
loss. She never paid any money. The money that was paid 
was paid by the present appellant, the Philadelphia Pickling 
Company, Incorporated. . . . There was no loss under the 



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Sept 1919.] Tulabb Co. Power Co. v. Pacific S. Co. 327 

policy. While it is true Sallie Wittenberg had assigned 
her cause of action, she could not assign any loss, for she 
had already had that loss made good to her by the Phila- 
delphia Pickling Company, not by way of indemnity, but 
as a part of the purchase price of the property." 

The facts in the case at bar differ from those in the above 
case in the following particulars : The assured here did suffer 
loss; there was loss under the policy; the assured did not as- 
sign its cause of action, but itself prosecuted the suit. The 
check of the Mt. Whitney Company for fourteen thousand 
dollars was drawn to the order of plaintiff and bore the en- 
dorsement that it was in full satisfaction of the Bergen lien. 
This check, together with one of the plaintiff for $1,036.10, 
was delivered to the county clerk and by him to Mrs. Bergen. 
It is said, in J. Frank & Co. v. New Amsterdam C. Co., supra: 
"It is therefore immaterial to the insurance carrier how or 
when that corporation [plaintiff] obtained the money or the 
credit which enabled it to pay Cousins [judgment creditor] 
the amount due." And it was said, in Rodgers v. Pacific 
Coast Casualty Co., supra, that when the judgment against 
the assured became final, the liability of the insurer became 
fixed, and it would have been competent for the assured to 
assign her claim against the insurer to the judgment creditor 
in satisfaction of the judgment. 

We can see no merit in the point under discussion. 

8. Appellant contends that the court erred in allowing 
interest from the date of the entry of the Bergen judgment 
and in allowing plaintiff's attorneys 9 fees. 

This contention must be sustained. [7] A contract of 
indemnity is to be strictly construed, and the contract of 
indemnity measures the rights of the parties thereto, and 
consequently, the liability of the indemnitor. The defendant 
here agreed to indemnify the plaintiff "against loss or ex- 
pense arising or resulting from claims upon the assured for 
damages/ 9 etc., to the extent of five thousand dollars in the 
case of bodily injuries or death to one person, etc. In addi- 
tion, the indemnitor agreed that, in the event of any suit 
brought against the assured to enforce a elaim for damages 
covered by the policy, it "will defend such suit, whether 
groundless or not, in the name and on behalf of the insured," 
and that "the expenses incurred by the company in defending 
such suit) including costs, if any, taxed against the assured. 



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328 Tularb Co. Power Co. v. Pacific S. Co, [43 CaL App. 

will be borne by the company whether the judgment is for 
or against the assured/ 9 

[8] It is claimed by the respondent that interest upon 
the judgment is a part of the costs or expenses of the litiga- 
tion. But this cannot be so. The "costs" referred to in 
the contract of indemnity refer to the costs of defending the 
suit for the recovery of damages against the assured, and cer- 
tainly it cannot reasonably be said that interest on the judg- 
ment recovered against the assured is any part of the cost nec- 
essarily incurred or to be incurred in defending the action in 
which said judgment was obtained. As stated, the assured 
is bound by the limitation as to reimbursement prescribed 
by the contract of indemnity, and obviously the allowance 
of interest on the judgment from the date of its entry and 
pending the appeal therefrom would result in extending the 
liability of the indemnitor beyond the amount to which the 
contract of indemnity expressly limits such liability. This 
conclusion as to interest is supported by the cases generally. 

In Maryland Casualty Co. v. Omaha Electric L. & P. Co., 
157 Fed. 514, 519, [85 C. C. A. 106], the United States cir- 
cuit court of appeals of the eighth district, considering the 
precise point under discussion in an action on bond such as 
the one involved herein, said: "Is the interest accrued after 
the original judgment was rendered, and pending the appeal 
to the supreme court, an expense or outlay incident to de- 
fending the suit, and when paid by the assured does it 
constitute a loss within the meaning of the policy f In 
answering this question we must not forget that the matter 
resides in the domain of contract, and that the contract 
measures the rights of the parties. They agreed that defend- 
ant's limit of liability should be five thousand dollars, except 
as it might be increased by failure on its part to pay the 
costs of making the defense. The interest, in our opinion, 
is not a part of such cost. It may be remotely related to 
the delay occasioned by making a defense, in that if no appeal 
had been prosecuted and no supersedeas secured, the judg- 
ment as an indirect result would probably have been paid 
and no interest would have accrued. But this is a forced 
and unnatural view to take. An agreement to pay the cost 
of making a defense in the common and well-understood 
acceptance of the term fairly and reasonably contemplates 
the attorney's fees, court costs, stenographer's fees, and other 



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Sept 1919. ] Tulare Co. Power Co. v. Pacific S. Co. 329 

expenditures, necessary and directly required to present the 
defense, and does not include the collateral and indirect 
results of doing so." (See, also, Pacific Coast Casualty Co. 
v. General Bonding & Casualty Ins. Co., 240 Fed. 36, [153 
C. C. A. 72, 77] ; Davison v. Maryland Casualty Co., 197 
Mass. 167, [83 N. E. 407]; Munro v. Maryland Casualty 
Co., 48 Misc. Rep. 183, [96 N. Y. Supp. 705] ; National & 
Providence Worsted Mills v. Frankfort Marine & Plate Class 
Ins. Co., 28 R. I. 126, [66 Atl. 58] ; Stephens v. Pennsylvania 
Casualty Co., 135 Mich. 189, [3 Ann. Cas. 478, 97 N. W. 686].) 

[0] The sum of the rule as to interest in such cases is 
this: That an assured who pays a judgment for the full 
amount limited in a liability policy indemnifying against act- 
ual loss, or a judgment for a smaller amount than such limited' 
sum, can recover the sum with interest only from the time of 
such payment, but that interest accruing on the judgment] 
pending an appeal therefrom is not an expense of defending ( 
the action. The case of Saratoga Trap Rock Co. v. Standard 
Accident Ins. Co., 143 App. Div. 852, [128 N. T. Supp J 
822], sets forth and elaborately examines the reasons for the 
disallowance of interest upon a judgment pending an appeal' 
therefrom or before the judgment has become final (which 
occurs only when the judgment has been affirmed by the 
appellate court) in a case, like the one involved herein, in 
which a security company has bound itself to indemnify 
the judgment debtor against loss by reason of such judgment. 
The case is an instructive one on the proposition, but it is 
not necessary to do more than refer to it herein. 

Counsel for respondent declare that interest ought to be 
allowed upon the judgment for the reason that the defendant, 
by exercising its right of appeal in the Bergen case, delayed 
the payment of the judgment and thus permitted the interest 
to accumulate thereon. A similar position was taken in 
Maryland Casualty Co. v. Omaha Electric L. & P. Co., 157 
Fed. 514, [85 C. C. A. 106], and was disposed of by the 
court in said case as follows: "The argument of plaintiff's 
counsel that the defendant, by exercising its right of appeal, 
and by superseding the execution of the judgment pending 
that appeal, caused the accumulation of interest in question, 
and thereby created an additional charge against the plain- 
tiff for which it should be held responsible as a loss to the 
plaintiff, is more specious than sound. The fallacy rests 



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330 Tulabb Co. Powbe Co. v. Pacific S. Co. [43 Cal. App. 

in a failure to recognize the advantage which the appeal 
gave the plaintiff. By reason of it plaintiff was permitted 
to retain and use the five thousand dollars, which otherwise 
would have been paid out by it. The value of the use is 
equal to the accrued interest, that being only a consideration 
paid for the use of money or for forbearance in demanding 
it when due. Accordingly, the assured lost nothing by the 
delay occasioned by the appeal or by paying the interest which 
accumulated pending the appeal. The assured stood after 
paying the interest exactly as it would have stood if it 
had paid the judgment of five thousand dollars on January 
3, 1902, when originally rendered. Nothing was lost by the 
appeal, as the interest ultimately paid was neutralized by 
the use and enjoyment of the money before that time." 

The judgment in the Bergen case was rendered and en- 
tered on the twenty -third day of May, 1914, and was paid 
by the plaintiff herein on February 1, 1917. It follows that 
interest on the judgment between those dates is not recov- 
erable by plaintiff. 

[10] The attorneys' fee of $250, awarded by the judg- 
ment to plaintiff's attorneys, should not be allowed. The 
fact is that the Surety Company notified plaintiff that it 
would defend the Bergen action and did defend it, and the 
participation therein by plaintiff's attorneys was by defend- 
ant's permission and was not required by the terms of the 
policy. Indeed, the evidence clearly enough shows that the 
part taken in said action by the attorneys for the plaintiff 
was wholly voluntary and gratuitous on their part More- 
over, in a letter of January 17, 1914, to Feemster & Walker, 
attorneys of the plaintiff, Mr. Cooley, one of defendant's at- 
torneys, wrote that the expense of plaintiff's attorneys was 
"to be borne by the assured." 

[11] 9. It is lastly contended that the court erred in 
denying defendants' motion for a change of venue. 

The affidavits upon which the motion was made showed 
that defendant was a resident of and had its principal place 
of business in San Francisco; that the insurance policy was 
made and countersigned in San Francisco and was to be 
performed there; that it was customary amongst insurance 
companies to make payments to the persons insured at th© 
home office, or principal office, of such companies. 



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Sept 1919. ] Tui^arb Co. Poweb Co. v. Pacific S. Co. 331 

Respondent contends that the action was properly tried in 
Tulare County, because the contract was made and was to 
be performed, the liability sued on arose and the breach oc- 
curred in said county. (Const., art. XII, sec. 16.) 

Section 1626 of the Civil Code reads: "A contract in 
writing takes effect upon its delivery to the party in whose 
favor it is made, or to his agent." 

In answer to the affidavit made on behalf of defendant on 
the application to change the place of trial, H. H. Holley 
deposed as follows: "That at the time of the execution and 
delivery of the policy No. C. P. 2374, . . . affiant was the 
agent of defendant Pacific Surety Company, through whom 
said policy was solicited and delivered; that said policy was 
received by affiant in Visalia, Tulare County, by mail from 
the head office of said defendant, and affiant acting as the 
agent of defendant personally delivered said policy to said 
plaintiff in Tulare County; and during the time affiant was 
the agent of said defendant, it was the practice and custom 
of defendant to pay its losses occurring in Tulare County 
by sending drafts to affiant, as its local agent, and affiant 
would thereupon deliver said drafts personally to the bene- 
ficiaries of defendant's policies, who suffered losses." 

It is true that a different state of facts was set up in the 
affidavits filed by defendant, but the court did not hold with 
it. Under the authority of Ivey v. Kern County Land Co., 
115 Cal. 196, 201, [46 Pac. 926], the court was justified in find- 
ing, from the facts set forth in the Holley affidavit, that the 
contract was made in Tulare County and was to be performed 
therein. The business of plaintiff was conducted in that 
county and the liability of the defendant under the policy 
arose therein. 

The judgment should be modified by eliminating there- 
from the sum of $250, attorneys' fees, and the sum of 
$1,017.80, interest on the sum of $5,460 from May 23, 1914, 
to February 1, 1917, and, as so modified, the judgment is 
affirmed. 

Chipman, P. J., and Burnett, J., concurred, 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied by 
the supreme court on November 17, 1919, and the following 
opinion then rendered thereon : 



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832 Yolo Water etc. Co. v. Superior Court. [43 Cal. App. 

THE COURT.— The application for a hearing in this court 
after decision by the district court of appeal of the third 
appellate district is denied. 

In so far as the claim of interference by the respondent 
in the matter of the motion for new trial is concerned, we 
base our denial of a hearing in this court upon the finding 
of the trial court substantially to the effect that Mr. Feem- 
ster represented appellant, which we believe, under all the 
circumstances shown by the record, to be sufficiently sup- 
ported by the evidence. 

All the Justices concurred. 



[Civ. No. 2084. Third Appellate District.— September 22, 1919.] 

YOLO WATER AND POWER COMPANY (a Corporation), 
Petitioner, v. THE SUPERIOR COURT OF LAKE 
COUNTY et al., Respondents. 

[1] Prohibition — Pleading — Sufficiency or Complaint. — The qnes- 
tion of the sufficiency of a complaint to state a cause of action 
cannot be tested on an application for a writ of prohibition. Its 
sufficiency as a pleading is to be determined by the court in which 
it is filed. 

[2] Injunction — Magnitude of Interests Involved — Effect on 
Powers of Trial Court. — While the amount of damages that 
would accrue should a preliminary injunction be issued in a given 
case is a proper matter for the consideration of the lower court 
in exercising its discretion in granting or refusing to grant the 
temporary injunction, the size of the interest involved is not a 
factor in determining the power of such court to hear and decide 
the matter. 

[3] Id. — Existence of Good Defense— Jurisdiction. — The existence 
of facts constituting a good defense on the merits to an applica- 
tion for a writ of Injunction does not oust the court in which 
such action is pending of the power to hear and decide the case. 

[4] Jurisdiction — Unauthorized Suit— Remedy of One Aggrieved.— 
If the district attorney, or anyone else, brings ao action that the 
law does not permit him to bring, the court in which it is brought 
has jurisdiction still to dispose of it. The proper procedure of the 
one aggrieved is by motion to dismiss, uud not by application for 
a writ of prohibition. 



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Sept. 1919.] Yolo Water etc. Co. v. Superior Court. 333 

£5] Id. — Jurisdiction of Superior Court — Power of Legislature to 
Take Away. — The jurisdiction of the superior eourt is con f erred 
by the constitution and cannot be taken away by any act of the 
legislature. Jurisdiction is the power to hear and determine, and 
does not depend upon the regularity of its exercise, nor upon the 
rightfulness of the decision made by the court. 

[6] Id. — Injunction Proceedings Against Public Utilities — Effect 
of Constitutional Provisions.— The superior court has jurisdic- 
tion to hear and determine a suit brought in the name of the people 
against a public utility to enjoin it from committing a public 
nuisance. The equity powers of that court, as conferred by section 
6 of article VI of the constitution, are not limited by the provi- 
sions of section 23 of article XII of the constitution, which states 
what are public utilities and provides for their control and regula- 
tion by the Railroad Commission. 

[7] Id. — Power of Railroad Commission to Avail Itself of Court 
Processes — Not Inconsistent With Right in Others.— The 
powers conferred by the constitution upon the Railroad Commission 
to supervise and regulate public utilities and to bring suits to 
enforce its orders and compel public utilities to obey the law is 
not inconsistent with the power conferred upon superior courts to 
entertain injunction suits instituted by others than the commis- 
sion against the public utilities. This express power to avail it- 
self of eourt processes and writs was conferred upon the commis- 
sion so that its power in this regard might not be questioned in 
any litigation. 

APPLICATION for a Writ of Prohibition to prevent the 
Superior Court of Lake County and M. S. Sayre, Judge 
thereof, from proceeding to hear and determine a petition 
for an injunction. Writ denied. 

The facts are stated in the opinion of the court 

C. E. McLaughlin, C. P. McLaughlin, Arthur C. Huston, 
B. B. McMillan and Theodore A. Bell for Petitioner. 

H. B. Churchill and Robert Duncan for Respondents. 

TEE COURT.— The opinion filed in this matter on the 
seventh day of August, 1919, ruling upon the demurrer to 
the petition is vacated and set aside and the following opinion 
of the court in said matter is hereby substituted therefor: 

The application is for a writ of prohibition to prevent said 
court and the judge thereof "from hearing, entertaining, 



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334 Yolo Water arc. Co. v. Superior Court. [43 Cal. App. 

passing upon, proceeding with, trying and deciding' ' any 
and all matters and issues in a certain action pending in 
said court wherein the people of the state of California is 
plaintiff and the said Tolo Water and Power Company is 
defendant. The petition herein shows that said company 
constitutes a public utility, engaged in the sale, rental, and 
distribution of water for irrigation; that in pursuance of 
said purpose it is diverting and distributing the waters of 
Clear Lake flowing down Cache Creek for the irrigation of 
certain farming neighborhoods in the counties of Yolo, Colusa, 
and Solano, amounting to more than two hundred thousand 
acres; that said lands are owned by several hundred different 
proprietors and are planted and devoted to various agri- 
cultural products ; that artificial irrigation is needed for the 
proper growth and maturity of these different crops; that 
there is no other source from which sufficient water can be 
obtained to irrigate these lands; that for the purpose of 
conserving, storing, and distributing said waters said peti- 
tioner has constructed a large concrete dam across Cache 
Creek, a natural outlet of said Clear Lake, at a point just 
where the waters of Clear Lake are discharged into said 
Cache Creek, and has incurred other expenses, in the aggre- 
gate of over two million dollars, for the improvement and 
development of its irrigation system, the acquisition of prop- 
erty and other purposes connected with the scheme for 
which the company was incorporated and is being operated. 
It further appears that on the third day of July, 1919, 
the district attorney of Lake County filed a complaint in the 
superior court of said county in the name of the people of 
the state of California against petitioner, in which it alleged 
that the defendant therein has committed, and is about to 
commit, a public nuisance in taking said waters from said 
Clear Lake, and the plaintiff prayed for the issuance of a 
preliminary and, also, for a final injunction "restraining and 
enjoining said defendants from building any dam across 
the arm or slough of Clear Lake at the point where the 
pumps of said defendant are now located, or any other point 
in said arm or slough, and from dredpring or deepening or 
widening said slough or arm of said lake, or from lowering 
Grigsby riffle at the end of said arm or slough, and from 
drawing off the wnt^r*? of said lake any faster than the 
would naturally flow therefrom." Notice was given 



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Sept. 1919.] Yolo Water etc. Co. v. Superior Court. 335 

petitioner for the hearing of a motion for the issuance of 
said preliminary injunction on the eighteenth day of July, 
and it is alleged that said court and the judge thereof will 
proceed to hear, entertain, and determine said motion, and 
that, if said injunction be granted, the petitioner will be 
unable to carry on its business and will be unable to supply 
water for the irrigation of the lands within its system, result- 
ing in the destruction of crops and entailing a loss thereby 
to the owners of over a million dollars. 

It further appears that during the year 1918 the govern- 
ment of the United States, acting through its food commission, 
urged, advised, and requested many persons producing crops 
of rice to increase the acreage of land devoted to such pro- 
duction in order to supply the needs of the government of 
the United States and its allies in the war with Germany 
and other central powers; that in pursuance of said advice 
more than ten thousand acres of land subject to irrigation 
from petitioner's system were planted in rice with the under- 
standing that said food commission would take all necessary 
steps to secure water for the irrigation of said lands, and 
to this end, at the instance of said food commission, the 
Railroad Commission of the state of California directed and 
permitted petitioner to install a pumping plant and system 
which would enable it to pump water from Clear Lake to 
its canals, ditches, aqueducts, and other utilities for the 
purpose of supplying sufficient water for the irrigation of 
said ten thousand acres of rice to such an extent that the 
level of said lake would be and was reduced to more than 
1.9 feet below the low- water mark thereof; that as a result 
of this reduction it became necessary to refill said lake to the 
ordinary low-water mark before any water would, without 
pumping, be available for distribution and sale to said per- 
sons during the irrigation season of 1919. It further appears 
that this would have been supplied by the ordinary rain- 
fall if the seasons had been normal, but that in consequence 
of the unusual lack of rain in the years 1917, 1918, and 1919, 
it was necessary for petitioner to use pumps to supply the 
water for the irrigation of said lands and thereby lower the 
surface of the lake about twelve inches below the low-water 
mark of said lake. It further appears that at the time the 
owners of the land devoted to rice culture were preparing 
their lands for planting rice, it was believed that there would 



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336 Yolo Water etc. Co. v. Superior Court. [43 Cal. App. 

be sufficient water to supply petitioner's system during the 
year 1919 without the necessity of resorting to pumping from 
said lake, but after said persons bad made preparation to 
plant they were advised and informed that there would 
not be sufficient water to irrigate the rice without pumping, 
and thereupon said persons consulted and conferred with the 
Railroad Commission and with petitioner, and said Rail- 
road Commission issued a letter permitting and directing 
said petitioner to pump water from said Clear Lake dur- 
ing the year 1919 for irrigation of said land, should such 
pumping become necessary in order to irrigate and mature 
crops on the lands supplied with water from the system 
of petitioner, and they also conferred with the board of 
supervisors of Lake County, and the members thereof, and 
were informed and lead to believe that there would be no 
objection to, nor interference with, pumping water necessary 
to mature and irrigate their crop during the year 1919. 

The foregoing recital of the allegations of the petition 
herein, though not complete, is deemed sufficient to point 
the application of the legal principles upon which the parties 
hereto rely. It may be stated that the questions for our 
determination arise from said petition and a general de- 
murrer thereto. 

An opinion was filed by this court and an order entered 
overruling the demurrer to the petition and directing that 
an alternative writ issue returnable before this court on the 
fifteenth day of September, 1919. In the meantime respond- 
ents filed a petition for a rehearing, which was denied. In 
the opinion filed denying the petition for a rehearing, we 
said: 

"The order made in overruling the demurrer is obviously 
not a final judgment in the case and respondents will have 
an opportunity, upon the return of the alternative writ, not 
only to traverse any and all allegations of the petition, but 
also to present whatever views they may desire upon the 
sufficiency of the petition itself. We assure respondents 
that the whole matter will be re-examined in the light of 
all the reasons and authorities that may be presented by 
counsel on both sides.' ' 

The case now stands submitted for final consideration 
and decision and we avail ourselves of the opportunity to 
re-examine the entire controversy. Before proceeding to a 



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Sept. 1919.] Yolo Water etc. Co. v. Superior Court. 337 

discussion of the merits of the case it is deemed proper to 
dispose of some matters that seem to be collateral to the 
real issues involved. 

1. In the argument of counsel for petitioner much space 
is occupied in an analysis of the allegations of the complaint 
filed in the superior court of Lake County, the object appar- 
ently being to show that it does not contain sufficient facts 
as the basis for equitable relief. 

[1] The question of the sufficiency of the complaint to 
state a cause of action cannot be tested on an application for 
a writ of prohibition. Its sufficiency as a pleading is to be 
determined by the court in which it is filed. 

[2] 2. The amount of damages that would accrue to peti- 
tioners and to the land owners it is serving with water, should 
a preliminary injunction be issued, is a proper matter for 
the consideration of the lower court in exercising its dis- 
cretion in granting or refusing to grant the temporary in- 
junction, and, doubtless, will be given its full and proper 
weight and force in reaching a decision, but the size of the 
interest involved is not a factor in determining the power 
of the superior court to hear and decide. 

3. It is alleged in the petition that the Railroad Commission 
authorized the petitioner to do the very acts of which plain- 
tiff is now complaining, and it is argued that a public 
nuisance cannot exist in acts that are warranted by law, 
and, therefore, petitioner should have the writ asked for. 

If it be true in fact that the Railroad Commission author- 
ized the acts complained of, and if it be the law that such 
authorization prevents the acts from becoming a nuisance, 
then petitioner has a good defense to be presented in the 
superior court. 

As to whether the Railroad Commission could lawfully 
authorize the acts to be done and whether such authorization 
would be a defense, we neither express nor intimate any 
opinion. All we decide is that these are matters for the 
consideration of the superior court, uninfluenced by any ex- 
pression in this opinion. 

[3] The existence of facts constituting a good defense 
on the merits to an application for a writ of injunction does 
not oust such court of the power to hear and decide the case. 
With these matters disposed of, we now address ourselves 
to the merits of the case. 

48 Oal. App.— 42 



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838 Yolo Wateb etc. Co. v. Superior Court. [43 Cal. A pp. 

I. 

The real gravamen of the petitioner's complaint is not 
that the superior court of Lake County has not equity juris- 
diction to hear and decide an injunction suit against a 
public utility, but that the district attorney has no power 
conferred upon him by law to institute the action. This is 
apparent from the opening sentence of his written argument, 
wherein he says: " Petitioner earnestly insists that section 
751 of the Code of Civil Procedure and section 4156 of the 
Political Code, giving the district attorney of a county power 
to commence an action in the name of the state of California 
to abate a public nuisance, were repealed, as far as public 
utilities are concerned, by section 23, article XII, of the 
constitution as amended in 1911 and 1914 and the Public 
Utility Act of 1911 and 1915." 

The power of the district attorney to commence an action, 
and the power of the court to dispose of it after it has been 
begun, are entirely distinct matters, and to mingle them in 
the discussion but leads to confusion of thought. A law 
taking away from a party the power to start a suit is not 
a law diminishing the powers conferred upon the court by the 
constitution and cannot possibly have that effect. [4] If 
the district attorney, or anyone else, brings an action that 
the law does not permit him to bring, the court in which 
it is brought has jurisdiction still to dispose of it, and anyone 
aggrieved has his proper remedy in the court in which it 
is pending by motion to dismiss. This has always been 
recognized as the proper procedure instead of applying for 
a writ of prohibition. 

Thus, in People v. Stratton, 25 Cal. 242, the attorney- 
general of the state brought a suit to have declared void 
certain patents granted by the Governor of the state to 
the defendants. The defendants, believing that the attorney, 
general was not authorized to institute such action, made a 
motion to dismiss the same upon that ground. The motion 
was granted by the district court and an appeal taken there- 
from to the supreme court. This seems throughout to be 
recognized as the proper practice in a case where it is 
claimed the law did not authorize the plaintiff to bring the 
action. 

In Bishop v. Superior Court, 87 Cal. 233, [25 Pac. 437], 
the court said: "Upon this proposition, the case of State v. 



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Sept. 1919.] Yolo Water etc. Co. v. Superior Court. 339 

Valliant, 100 Mo. 59, [13 S. W. 398], seems to be much in 
point. We quote the statement as to what the case was, 
and as to what the court said on the subject, from petitioner's 
reply brief: 'A certain railroad company sought to condemn 
part of the track of another, by proceedings taken in the cir- 
cuit court of St. Louis. The defendant company applied for 
a writ of prohibition, on the ground that the statutes and 
ordinances of St. Louis did not authorize the exercise of 
jurisdiction in eminent domain there invoked in favor of 
the company invoking it.' Upon the application for prohi- 
bition, the court held 'that the circuit court of St. Louis had 
jurisdiction of the proceedings to appropriate property to 
public use, in the exercise of the right of eminent domain, 
in a proper case, is unquestioned and unquestionable; but 
the substance of the petitioner's contention here, as well as 
the ground on which they, as defendants, resisted the pro- 
ceedings in the circuit court, is that the statutes and ordi- 
nances do not authorize the exercise of such jurisdiction 
in behalf of the Southern Railroad Company. We are of 
the opinion that the question thus raised is not a proper one 
for our decision upon this application.' " 

II. 

"Has the superior court of the state jurisdiction to hear 
and determine a suit brought in the name of the people of 
the state of California against a public utility to enjoin it 
from committing a public nuisance, said suit being instituted 
by the district attorney of the county at the request of the 
board of supervisors thereof 1" 

[5] "The jurisdiction of the superior court is conferred 
by the constitution and cannot be taken away by any act 
of the legislature." (City of Tulare v. Hearne, 126 CaL 
226, [58 Pac. 530].) "The jurisdiction of any court is 
the power to hear and determine, and does not depend upon 
the regularity of its exercise, nor upon the rightfulness of 
the decisions made by the court." (Lange v. Superior Court, 
11 Cal. App. 1, [103 Pac. 908].) The constitution of Cali- 
fornia, in section 5 of article VI, provides: "The superior 
court shall have original jurisdiction in all cases in equity." 

The suit pending in the superior court of Lake County 
against the petitioner for an injunction is a suit in equity, 
and that court has jurisdiction to hear and determine it, 



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840 Yolo Water etc. Co. v. Superior Court. [43 Cal. App. 

unless it has been divested of such jurisdiction by some pro- 
vision of the state constitution. 

[6] Petitioner claims that the power of the superior court 
to hear and determine this particular suit against a public 
utility has been taken away from it by virtue of certain 
provisions found in section 23 of article XII of the state 
constitution and of section 75 of the Public Utility Act, 
[Stats. 1915, p. 115]. 

Section 23 of article XII of the constitution states what 
are public utilities, and is broad enough to embrace petitioner, 
and as to such declares them to be "subject to such control 
and regulation by the Railroad Commission as may be pro- 
vided by the legislature," and it further provides: "The 
Railroad Commission shall have and exercise such power and 
jurisdiction to supervise and regulate public utilities, in the 
state of California ... as shall be conferred upon it by the 
legislature, and the right of the legislature to confer powers 
upon the Railroad Commission respecting public utilities is 
hereby declared to be plenary and to be unlimited by any 
provision of this constitution. Prom and after the passage 
by the legislature of laws conferring powers upon the Rail- 
road Commission respecting public utilities, all powers re- 
specting such public utilities vested in boards of supervisors, 
or municipal councils, or other governing bodies of the sev- 
eral counties, ... in this state, or in any commission created 
by law and existing at the time of the passage of such laws, 
shall cease so far as such powers shall conflict with the 
powers so conferred upon the Railroad Commission." 

We discover nothing in this constitutional provision that 
limits in any way the equity powers of the court as con- 
ferred by section 5 of article VI of the constitution. 

The phrase "all powers respecting public utilities vested in 
boards of supervisors or other governing bodies shall cease so 
far as such powers conflict with the powers conferred upon the 
Railroad Commission" does not purport to nor does it lessen 
the jurisdiction of the court to hear and determine this in- 
junction suit. Courts are not "governing bodies" of counties 
within the sense in which that term is used in the constitu- 
tion, nor are they classed as "bodies." The section of the 
constitution declares that "the right of the legislature to con- 
fer additional powers upon the Railroad Commission is plen- 
ary and unlimited by any provision of the constitution." 



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Sept. 1919.] Yolo Water sto. Co. v. Superior Court. 341 

In pursuance of the powers given to it by section 23 of 
article XII, the legislature passed a Public Utility Act, and 
section 75 of this act provides that if a public utility is 
doing or about to do anything contrary to law, or any rule 
or requirement of the commission, it shall direct the attorney 
of the commission to commence an action in the proper court, 
in the name of the people of the state, for the purpose of 
having such violation or threatened violation stopped or pre- 
vented either by mandamus or injunction. 

It is claimed that this section gives the commission the 
right and power to bring suits for injunction against public 
utilities, and that such power so vested in it is inconsistent 
with the power of a county to institute such suit. With 
this conclusion we are unable to agree. The purpose and 
intent in enacting section 75 is obvious. 

[7] The Public Utility Act invests the board of railroad 
commissioners with large powers in the control of public 
utilities, and gives it power to fine and punish for contempt. 
But the commission is not a court and has not complete 
court machinery. It was seen that cases might arise where 
punishments for contempt and fine would not accomplish 
the objects sought, that writs of mandamus and injunction 
might be needed, and such writs the commission had no power 
to issue. It might become necessary for it to avail itself 
of the equity powers of the courts. Without express authority 
granted by the legislature to so do, the question of its 
right to bring suit might be raised in any litigation arising. 
Anticipating such contingency, express power was conferred 
upon the commission to avail itself of court processes and 
writs, so that its power in this regard might not be ques- 
tioned. This grant of a right to the commission to bring 
injunction suits is not at all inconsistent with the continu- 
ance of said right in others who may feel aggrieved by the 
acts of a public utility. 

Powers conferred by the constitution upon the Railroad 
Commission to supervise and regulate public utilities and to 
bring suits to enforce its orders and compel public utilities 
to obey the law is not inconsistent with the power conferred 
upon superior courts to entertain injunction suits instituted 
by others than the commission against public utilities. To 
so hold will not create any conflict between the courts and 
the commission, because in all such suits the courts will be 



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342 W. W. Kimball Co. v. Read. [43 Cal. App. 

bound and guided and controlled in all respects in entertain- 
ing and deciding or dismissing them as much by section 23 
of the constitution and the Public Utility Act as by any 
other provision of the law. 

These views are further strengthened by the language of 
section 74 of the Public Utility Act, wherein it is said: "This 
act shall not have the effect to release or waive any right 
of action by the state, the commission, or any person or cor- 
poration for any right, penalty or forfeiture which may have 
arisen or accrued or may hereafter arise or accrue under any 
law of this state." This section would seem to put a fitting 
ending to all discussion. 

The demurrer to the petition for a writ is sustained and 
the writ denied. 

A petition to have the cause heard in the supreme court, 
after judgment in the district court of appeal, was denied 
by the supreme court on November 21, 1919. 

All the Justices concurred. 



{Civ. No. 2919. First Appellate District, Division Two.— September 22, 

1919.] 

,W. W. KIMBALL COMPANY (a Corporation), Appellant, 
v. ALICE READ, Respondent. 

[1] Foreign Corporations — Action on Assigned Contract — Re- 
pealed Code Section Inapplicable — Unsupported Judgment. — 
In this action in replevin by a foreign corporation on an assigned 
conditional lease contract covering a piano, the purchaser having 
defaulted in her payments, sections 405, 406, 408, and 410 of the 
Civil Code were clearly inapplicable, they having been repealed 
before the action was instituted and before the assignment of 
the contract of sale to plaintiff was made; therefore, the find- 
ings of the trial court based upon the noncompliance with these 
repealed sections of the code do not support the judgment of dis- 
missal. 

[2] Id. — Engaging in Interstate Business — Bight to Maintain or 
Defend Actions— Statute Inapplicable. — The statute relating to 
the right of forcigu corporations to maintain or defend actions in 



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Sept. 1919.] W. W. Kimball Co. v. Read. 343 

this state is inapplicable to foreign corporations engaged wholly 
in interstate commerce and not doing any intrastate business. 

[3] Id. — Filling or Orders Sent to Other State — Interstate Com- 
merce. — Sales, followed by the delivery of the articles in this 
state, upon orders sent from this state to the foreign corporation 
in another state, are transactions in interstate commerce and be- 
yond the scope of the statute. 

[4] Id. — Assignment Incidental to Interstate Commerce. — Where 
the ordinary business of the foreign corporation was to engage m 
such interstate transactions, the taking of a single assignment of 
a conditional sale contract in part liquidation of the indebtedness 
owing from a local firm to it was not an intrastate transaction, 
but was a transaction incidental to its interstate business. 

[5] Id. — Sales in Interstate Commerce — Eight of Foreign Corpo- 
ration to Enforce Payment. — When a corporation goes into a 
state other than that of its origin to collect, according to the 
usual or prevailing methods, the purchase price of merchandise 
which it has lawfully sold therein in interstate commerce, it is 
there for a legitimate purpose of such commerce, and the state 
cannot, consistently with the limitation arising from the commerce 
clause, obstruct or hamper the attainment of that purpose. 

[6] Id.— Bar of Statute— Burden of Proof. — The burden is on the 
party pleading the bar of the statute to show that the case comes 
within its terms. 

APPEAL from a judgment of the Superior Court of 
the City and County of San Francisco. John J. Van Nos- 
trand, Judge. Reversed. 

The facts are stated in the opinion of the court 

Willard P. Smith for Appellant 

Franklin P. Bull and A. Walter Allen for Respondent 

NOURSE, J. — Plaintiff is a foreign corporation organized 
under the laws of the state of Illinois and having its prin- 
cipal place of business in Chicago. For some time prior to 
the institution of this proceeding it had been selling pianos 
— ' — ■ ■ ■ ■ 'i 

3. What constitutes doing business in state by foreign corpora- 
tion, notes, 2 Ann. Cas. 307; 8 Ann. Cas. 942; 11 Ann. Cas. 320; 
Ann. Cas. 1912A, 553; Ann. Cas. 1913E, 1154. 

4. Single or isolated transaction by foreign corporation as "doing 
business" within the state, note, 10 L. R. A. (N. S.) 693. 



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344 W. W. Kimball Co. v. Read. [43 Cal. App. 

to a retail firm located in San Francisco. This local firm 
sold these and other pianos to its customers in this state 
upon conditional lease contracts providing for progressive 
payments. One such contract was made between this local 
firm and the respondent herein covering a piano not sold to 
the local firm by appellant, and this contract was assigned to 
appellant. Respondent defaulted in her payments on this 
contract and appellant commenced this action in replevin. 
Respondent interposed the special defense that appellant was 
without capacity to sue because it "has not complied with 
the laws of the state of California, in regard to foreign 
corporations doing business in this state." This issue was 
tried on the theory that the rights of plaintiff to maintain 
the action depended upon a compliance with the provisions 
of sections 405, 406, 408, and 410 of the Civil Code. The 
trial court found that plaintiff had not complied with these 
sections of the code, and accordingly dismissed the action. 

All the briefs on this appeal are concerned with the 
interpretation and constitutionality of these sections of the 
code. [1] These sections are clearly inapplicable to this 
case because they were all repealed before this action was 
instituted and before the assignment of the contract of sale 
was made. (Stats. 1917, p. 381.) Accordingly, the findings 
of the trial court based upon the noncompliance with these 
repealed sections of the code do not support the judgment 
of dismissal. 

The existing statute, which was enacted before the assign- 
ment of the contract, provides that a foreign corporation 
which has failed to file a copy of its articles, designation of 
agent, etc., cannot maintain or defend "any action or pro- 
ceeding concerning its property in this state or any intra- 
state business or transaction, in any court of this state." 

This was the law of the state which respondent unknow- 
ingly alleged appellant had not complied with. Though the 
statute was thus put in issue, it was not called to the attention 
of the trial court and has not been referred to on this 
appeal. Without the aid of argument by counsel, no attempt 
will be made in this opinion to interpret the existing statute 
or to determine its constitutionality. However, certain rul- 
ings were made during the trial on the question of the right 
of the state to close its courts to foreign corporations, and 
as these questions will necessarily arise again at the retrial 



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Sept. 1919.] W. W. Kimball Co. v. Bead. 345 

of the action, it may be of some assistance to the parties to 
make the following general observations on this proposition: 

[2] If appellant was engaged wholly in interstate com- 
merce and was not doing any intrastate business, the statute 
is inapplicable because, in view of the commerce clause of 
the federal constitution, the state cannot put any burden 
upon persons or corporations engaged wholly in interstate 
commerce. [3] Manifestly, the sales, followed by the de- 
livery of the pianos in this state, upon orders sent from this 
state to the appellant in the state of Illinois, are transactions 
in interstate commerce and beyond the scope of the statute. 
{Sioux Remedy Co. v. Cope, 235 U. S. 197, [59 L. Ed. 193, 
35 Sup. Ct. Rep. 57] ; International Text-book Co. v. Pigg, 
217 U. S. 91, [18 Ann. Cas. 1103, 27 L. R. A. (N. S.) 493, 
54 L. Ed. 678, 30 Sup. Ct. Rep. 481, see, also, Rose's U. S. 
Notes] ; Buck Stove & Range Co. v. Vickers, 226 U. S. 205, 
[57 L. Ed. 189, 33 Sup. Ct. Rep. 41] ; American Amuse- 
ment Co. v. East Lake Chutes Co., 174 Ala. 526, [56 South. 
961].) 

[4] It appears without conflict from the evidence that 
such was the ordinary business of the appellant corporation. 
Therefore, the assignment of respondent's sale contract to ap- 
pellant was outside the ordinary business of appellant and, 
as the trial court correctly ruled, did not constitute doing 
business in this state. {General Conference Free Baptists 
v. Berkey, 156 Cal. 466, 470, [105 Pac. 411] ; Ichenhauser 
Co. v. Landrum's Assignee, 153 Ky. 316, [155 S. W. 738, 
740] ; A. Booth & Co. v. Weigand, 30 Utah, 135, [10 L. R. A. 
(N. S.) 693, 83 Pac. 734, 737].) In other words, the taking 
of the single assignment was not an intrastate transaction, 
but was a transaction incidental to the interstate business of 
the corporation. 

[5] The right of a foreign corporation to sue to collect 
the purchase price of merchandise sold in interstate com- 
merce is succinctly stated by the United States supreme court 
in Sioux Remedy Co. v. Cope, 235 U. S. 197, 204, [59 L. Ed 
193, 35 Sup. Ct. Rep. 57, see, also, Rose's U. S. Notes] : "We 
think that when a corporation goes into a state other than 
that of its origin to collect, according to the usual or pre- 
vailing methods, the purchase price of merchandise which it 
has lawfully sold therein in interstate commerce, it is there 
for a legitimate purpose of such commerce, and that the 



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846 Smith v. Golden State Syndicate. [43 Cal. App. 

state cannot, consistently with the limitation arising from the 
commerce clause, obstruct or hamper the attainment of that 
purpose." 

Here the assignment of the sale contract was taken in part 
liquidation of the indebtedness owing from the local firm to 
appellant arising from interstate commercial transactions. 
As appellant could sue the assignor for the collection of the 
original debt, so it may sue the respondent in this action 
upon the assigned contract, unless it is shown to have been 
also engaged in intrastate business. 

[6] The burden is on the party pleading the bar of the 
statute to show that the case comes within its terms. For 
the want of such showing the judgment must be reversed. 

Brittain, J., and Langdon, P. J., concurred. 



[Civ. No. 3028. First Appellate District, Division Two.— September 2ft, 

1919.] 

J. H. SMITH, Appellant, v. GOLDEN STATE SYNDICATE 
(a Corporation) et al., Defendants; E. C. LAUX, Inter- 
vener and Respondent. 

[1] Tax Sales — Construction of Section 3898, Political Code — 
When Provisions Applicable.— The provision of section 3898 of 
the Political Code providing for the reimbursement of the par- 
chaser at a tax sale whenever it shall be determined in an action 
at law that such sale and the conveyance are void merely affects 
the remedy of such purchaser and is intended to apply to all 
cases after its passage in which the invalidity of a tax title is 
judicially determined, notwithstanding the sale may have been 
held prior to the enactment of such law. 

[2] Id. — Void Tax Sale — Right or Purchaser to Reimbursement- 
Code Provision Positive — Form op Pleading Immaterial.— in 
view of the positive provision of section 3898 of the Political 
Code that no decree shall be made until the purchaser of the tax 
title shall have been refunded the amount paid for taxes, such relief 
must be granted to such purchaser in an action by the owner to 
quiet title to the property, notwithstanding such purchaser, in his 
complaint in intervention, does not pray for a refund of the 
amount paid for taxes but, relying on his tax title, alleges that 
he is the owner in fee simple of the property. 



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Sept. 1919.] Smith v. Golden State Syndicate. 347 

[3] Appeal — Evidence not Brought Up — Presumption. — Where an 
appeal is taken on the judgment-roll alone, the appellate court, 
not knowing what evidence was introduced, nor what objections 
were made thereto, must presume, in support of the judgment, 
that evidence supporting the findings of the trial court was prop- 
erly admitted. 

[4] Trial — Evidence — Admission Without Objection — Finding. — If 
evidence, not otherwise admissible, is admitted without objection, 
a finding based thereon is proper. 

[5] Appeal — Waiver or Objections to Evidence — Presumption. — On 
appeal on the judgment-roll alone, it will be assumed in support 
of the judgment that all objections to evidence sustaining the 
findings were waived. 

APPEAL from a judgment of the Superior Court of 
Los Angeles County. Leslie R. Hewitt, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

J. Everett Brown for Appellant. 

Ward Chapman and L. M. Chapman for Respondents. 

LANGDON, P. J.— This is an action to quiet title to 
certain real property in the city of Los Angeles. E. C. 
Laux, the respondent, filed a complaint in intervention, claim- 
ing to be the owner of a portion of the land described in 
plaintiff's complaint. The action was tried and judgment 
given upon the complaint in intervention of E. C. Laux and 
the answer thereto of J. H. Smith. The complaint in inter- 
vention was in form a suit to quiet title and alleged that 
the intervener was the owner in fee of the real property 
therein described. The answer was a denial of the title ot 
the intervener. The court found that the intervener had 
no right or title to the said property except that he had 
•purchased a tax deed therefor from the city of Los Angeles, 
and further found that said tax deed was null and void. 
Judgment was entered against the intervener and in favor 
of the appellant, but it was provided therein that said judg- 
ment should not take effect until payment by the appellant 
to said intervener of $561.35, the amount of taxes paid by 
the intervener upon the property. Prom the portion of the 
judgment requiring such payment an appeal is taken. 



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348 Smith v. Golden State Syndicate. [43 Cal. App. 

[1] Section 3898 of the Political Code (subdivision 5) 
provides: "Whenever, in any action at law, it shall be de- 
termined by a court that the sale and conveyance provided 
for in this and the preceding section are void for any reason 
and that the purchaser from the state may not be finally 
awarded the property so purchased, no decree of the court 
shall be given declaring a forfeiture of the property until 
the former owner, or other party in interest, shall have repaid 
to the purchaser the full amount of taxes, penalties and 
costs paid out and expended by him, to be determined by 
the court, in pursuit of the state's title to the property so 
sold." Appellant contends that this subdivision of section 
3898 is inapplicable here, because it was added by amend- 
ment in 1913 (Stats. 1913, p. 560) and the tax deed under 
which the intervener claims is dated March 8, 1912. We are 
of the opinion that this statute merely affects the remedy 
of the purchaser of a tax title and that it was intended to 
apply to all cases after its passage in which the invalidity of a 
tax title was judicially determined. This seems also to have 
been the view taken of this section by the court in the case 
of Real v. County of Kern, 39 Cal. App. 723, [179 Pac. 726], 
where it is said that notwithstanding the fact that a purported 
conveyance was made prior to the enactment of this section, 
the rights of the purchaser of the tax title were to be meas- 
ured by the statute as it existed when the court adjudged 
that he was not entitled to an award of the property. 

[2] The other point made by the appellant is that the 
tax title was not pleaded and that the prayer of the complaint 
in intervention was not for a refund of the amount paid for 
taxes. We think there is no merit in this contention. Sec- 
tion 3898 of the Political Code provides positively that no 
decree shall be made until this relief is granted to the pur- 
chaser of a tax title. The intervener alleged that he was the 
owner in fee simple of the property. In support of that 
claim, presumably from the findings, he offered evidence of 
his tax deed. Appellant contends that the evidence support- 
ing the finding that the amount paid by the intervener does 
not exceed the total amount of taxes due on said property 
at the date of the sale was improperly admitted because no 
issue was made upon this question by the pleadings. [S] 
The appeal comes to us upon the judgment-roll alone. We 
do not know what evidence was introduced nor what ob- 



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Sept 1919.] Sidles v. City Council op Bakersfeeld. 319 

jections were made thereto. In support of the judgment we 
will presume that evidence supporting the findings was prop- 
erly admitted. [4] If evidence, not otherwise admissible, 
is admitted without objection, a finding based thereon is 
proper. As was said in the case of McDougald v. HiUet, 
132 Cal., at page 163, [64 Pac. 281] : " Conceding that the 
pleadings were not sufficient to justify the admission of evi- 
dence of the promissory note, it does not appear that any 
objection was made to such evidence. We must presume that 
the evidence was received without objection and that it 
sustains the findings. It cannot be contended that a find- 
ing is not within the issues, if no objection was made to the 
evidence in support of the finding at the trial." (Citing 
Horton v. Dominguez, 68 Cal. 642, [10 Pac. 186] ; Moore v. 
Campbell, 72 Cal. 253, [13 Pac. 689].) [5] On appeal 
on the judgment-roll alone, it will be assumed in support of 
the judgment that all objections to evidence sustaining the 
findings were waived, (Poledori v. Newman, 116 Cal. 375, 
[48 Pac. 325].) 

Prom the entire record before us, it appears that this 
judgment is in all respects an equitable one, and the same 
is affirmed. 

Brittain, J., and Nourse, J., concurred. 



[Civ. No. 3119. 8eeond Appellate District, Division One. — September 

23, 1919.] 

ADOLPH H. SIDLER, Petitioner, ▼. THE CITY COUNCIL 
OP THE CITY OP BAKERSPIELD et al., Respondents. 

[1] Municipal Corporations — Bakersfikld — Recall or Officers— 
Duty of Council to Call Election— Whin Mandatory.— The 
duty imposed upon the city council of the city of Bakersfield to 
order and fix a day for the holding of a recall election upon being 
presented with a duly certified recall petition is mandatory only 
where a petition sufficient in form and substance is presented. If 
any requisite and material statement is omitted therefrom so as to 
make it appear that the petition is invalid, the council is justified 
in refusing to order and fix a day for the holding of such election. 



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350 Sidler v. City Council op Bakersfield. [43 Cal. App. 

[2] Id. — Grounds fob Removal— Statement op not Nbokssabt. — 
Under the charter of the city of BakerBfleld it is not necessary 
that the affidavit required to be filed by an elector as a condition 
precedent to the issuance of the recall petition papers or that the 
recall petition contain a statement of the grounds upon which the 
removal is sought. 

PROCEEDING in Mandamus to compel the city council 
of the city of Bakersfield to order and fix a day for the 
holding of a recall election. Writ issued. 

The facts are stated in the opinion of the court 

Irwin & McNamara for Petitioner. 

Kaye & Siemon for Respondents. 

JAMES, J. — Mandate to compel the respondent, city coun- 
cil of the city of Bakersfield, to order and fix a day for the 
holding of a recall election. A petition, duly certified by the 
clerk of the municipality to be sufficient and asking for the 
recall of a councilman, was submitted to the respondent 
council. Notice of the certification and submission of such 
petition was also given to the officer sought to be recalled 
by said clerk, as the city charter provided, and said official 
failed to take advantage of the option given him by the 
charter to resign. Nevertheless, the city council continued, 
and still continues, to refuse to order and fix a day for the 
holding of the recall election. The alternative writ was 
issued herein and, by way of return, demurrer and answer 
were filed. The answer raised no issue of fact and the entire 
cause was submitted after argument by counsel. The sole 
point relied upon by respondents as justifying the refusal 
of the council to order the recall election is that the petition 
contained no statement of the ground upon which the removal 
of the officer was sought and hence was insufficient. [1] 
Upon being presented with a duly certified recall petition 
the duty of the city council under the provisions of the 
charter to order an election to be held is a mandatory one. 
This duty, however, is mandatory only where a petition suffi- 
cient in form and substance is presented. If any requisite 
and material statement was omitted therefrom so as to make 
it appear that the petition was invalid, the council would be 
jnsiififd in the action taken. (Conn v. City Council of the 



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Sept 1919.] Sidlkb v. City Council of Bakersfield. 351 

City of Richmond, 17 Cal. App. 705, [121 Pac. 714, 719].) 
The charter of the city of Bakersfield (Stats. 1915, p. 1552) 
contains provisions authorizing the recall of municipal officers. 
Sections 87, 88, and 90 read as follows: 

" Sec. 87. Any officer elected or appointed for a definite 
term may be recalled, after the expiration of three months 
from the commencement of his term, by the electors entitled 
to vote for his successor. When a petition for the recall of 
a councilman is presented signed by electors of the ward 
which he represents, equal in number to twenty-five per cent, 
or more, of the total vote cast for councilman in such ward, 
at the last general election, and certified by the clerk, and 
bis resignation shall not have been received, as herein pro- 
vided, the recall of such councilman shall be submitted to 
a vote of the electors of said ward. When the officer sought to 
be recalled is not a councilman, the recall of such officer shall 
be signed by electors of the city equal in number to twenty- 
five per cent, or more, of the number of votes cast at the last 
general election. The signatures to such petition need not be 
all appended to one paper. 

"Sec. 88. Petition papers shall be procured only from the 
clerk, who shall keep a sufficient number of such blank peti- 
tions for distribution, as herein provided. 

"Sec. 90. Each signer of a recall petition shall sign his 
name in ink or indelible pencil and shall place thereon after 
his name his place of residence by street and number. To 
each such petition paper shall be attached an affidavit of the 
circulator thereof, stating the number of signers to such 
part of the petition and that each signature appended to the 
paper was made in his presence and is the signature of the 
person whose name it purports to be." 

By section 161 of the charter it is provided that "when- 
ever any municipal function or affair arises, for which no 
provision is made by this charter or ordinances, the law of 
the state applicable thereto shall govern." Section 86 of the 
same law provides that the provisions of the state law "re- 
lating to the qualifications of voters, the manner of voting, 
the duties of election officers, the canvassing of returns, and 
all other particulars in respect to the management of elec- 
tions, so far as they may be applicable and not inconsistent 
or in conflict with this charter shall govern all elections." 



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352 Sidlee v. City Council of Bakerspield. [43 Cal. A pp. 

[2] Viewing these provisions of the charter, respondents 
insist, first, that the charter does not contain complete direc- 
tion as to what shall be the contents of recall petitions; 
second, that the charter being deficient in the respect last 
noted, the general state law governing the recall of municipal 
officers becomes applicable by reason of the references made 
in the provisions of section 161, above quoted. We may as- 
sume at the outset for the purposes of this case that the 
general laws of the state are applicable and control in the 
municipal affairs of the city of Bakersfield wherever it has 
been omitted by the charter to cover the same matters. But 
it appears that the framers of the charter did make specific 
provision, not only for the manner of the recall of the muni- 
cipal officers, but gave sufficient direction as to what the 
substance of the recall petition should be. Referring to the 
general law on the same subject (see Deering's Gen. Laws, 
1915 ed., Act No. 2555), we find that paragraph 87 of the 
charted in general parallels the provisions of section 1 of 
the general law, but omits therefrom the direction found in 
the general law that a recall petition "shall contain a state- 
ment of the grounds on which the removal or recall is sought, 
which statement is intended solely for the information of the 
electors." That this omission was intentional is borne out 
by the further requirement in section 89 of the charter rela- 
tive to the filing of an affidavit by an elector — a condition 
precedent to the issuance of petition papers — which affidavit 
is required to state "the name and office of the officer sought 
to be removed." It is not required that this affidavit shall set 
forth any grounds upon which the removal is sought, and to 
us it appears to have been the clear intention of the framers of 
the charter that no such ground need be stated. For the 
reasons given, it is not made to appear that the petition, as 
certified to the council by the clerk, was insufficient in form 
or substance ; hence the mandatory duty rested with respond- 
ents to "order and fix a day" for the holding of the recall 
election as the charter provides. 

The demurrer of respondents to the petition is overruled. 
Peremptory writ of mandate is ordered to be issued as prayed 
for in the petition, petitioner to have his costs. 

Shaw, J., concurred. 



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Sept. 1919.] Security Commercial etc. Bank v. Settz. 353 

A petition for a rehearing of this cause was denied by the 
district court of appeal on October 22, 1919, and a petition 
to have the cause heard in the supreme court, after judg- 
ment in the district court of appeal, was denied by the 
supreme court on November 21, 1919. 

All the Justices concurred. 



[C5t. No. 8037. First Appellate District, Division Two.— September 

24, 1919.] 

SECURITY COMMERCIAL ft SAVINGS BANK OP SAN 
DIEGO (a Corporation), Respondent, v. WM. SEITZ 
et aL, Appellants. 

[1] VENDOR AND VENDEE — REPRESENTATIONS BT REAL ESTATE OPERATOR 

— Mortgages Not Party— Nonliability.— Where the original mort- 
gagee was not interested in the land purchased by the mortgagor 
and had no knowledge of the representations made by the real 
estate operator who conducted the transaction, and the latter was 
not its agent in the transaction, neither such mortgagee nor its 
assignee are chargeable with the fraud of such real estate operator. 

[2] Pleading — Action to Foreclose Mortgage — Affirmative Relist 
Based on Peaud— Election of Remedies. — In an action to fore- 
close a mortgage given as security for the payment of a promissory 
note executed by the defendants as part payment for the property, 
such defendants, in seeking affirmative relief by way of cross- 
eomplaint on account of alleged fraud in connection with the 
transaction, are required to elect which one of two remedies they 
intend to seek — damages after rescission or damages after affirm- 
ance. They eannot seek both. 

[8] Id. — Delay in Discovering Fraud — Burden op Pleading and 
Proof* — Where such relief was not sought within three years of 
the making of the alleged fraudulent representations, it was neces- 
sary to allege and prove, not only that the fraud was not dis- 
covered within the three-year period, but that it could not have 
been discovered within that time by the exercise of reasonable 
diligence. 

[4] Id. — Presumption Against Fraud — Exercise of Due Diligence — 

Pleading* — The presumption is always against fraud, and one who 

seeks relief against the effects of fraud must allege it and prove 

it by clear proof and satisfactory evidence. He must clearly show 

48 OaL App.— 28 



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354 Security Commercial etc. Bank v. Seitz. [43 Cal. App. 

that he did not discover the existence or commission of the alleged 
frauds within a reasonable time before the action was begun, that 
he proceeded promptly upon such discovery, and that his failure 
to make the discovery sooner was not due to his own lack of dili- 
gence. All this must be shown, not merely by a bare statement 
of such conclusions, but by a detailed statement of the facts and 
circumstances which caused the ignorance, which prevented an 
earlier discovery, and which constitute the diligence in seeking an 
earlier discovery. 

[5] Id. — Want op Pleading and Pboof— Denial of Relief. — Where the 
persons seeking relief on the ground of fraud alleged not to have 
been discovered until more than three years after it was committed 
not only fail to allege why they did not sooner discover the fraud 
or that they exercised diligence in seeking a discovery, but wholly 
fail to make any offer of proof upon either of these matters, the 
trial court is fully justified in denying their relief upon this plea. 

[6] Guaranty — Consideration — Dismissal of Pending Action. — Dis- 
missal of an action to foreclose a mortgage given as security for 
the payment of a promissory note constitutes a sufficient consid- 
eration for a written agreement by the title owner of the property 
about to be foreclosed guaranteeing the payment of that and an- 
other promissory note executed by the defendants to plaintiff's 
assignor. 

[7] Id.— Consideration Implied from Writing.— Where such eontraet 
of guaranty was in writing, the writing itself imports a considera- 
tion. 

APPEAL from a judgment of the Superior Court of 
San Diego County. W. A. Sloane, Judge. Affirmed* 

The f acts are stated in the opinion of the court 

Hendee ft Bodabaugh and Henry C. Ryan for Appellants. 

Bay M. Harris for Respondent. 

NOUBSE, J. — This is an action to foreclose a mortgage 
given to secure the payment of a promissory note for ten 
thousand dollars executed by the defendants, A. P. Mack and 
Wm. Seitz, Jr., and to enforce the payment of a written 
guaranty for the payment of said note subsequently executed 
by the defendant, Wm. Seitz, Sr. The note was executed 
and delivered to the Blochman Banking Company, a co- 

6. Forbearance as sufficient consideration for contract of guar- 
anty, notes, Ann. Oas. 1916A, 970; 19 L. &. A. (N. 8.) 842. 



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Sept. 1919.] Security Commercial etc. Bank v. Sktfz. 355 

partnership consisting of L. A. Blochman and J. A. Heap. 
This bank was subsequently incorporated under the name of 
Blochman Commercial & Savings Bank, and thereafter the 
name was changed by a decree of court to Security Com- 
mercial & Savings Bank of San Diego, the plaintiff and 
respondent herein. 

The circumstances surrounding the execution of the note 
and mortgage are as follows : 

One del Fungo, a real estate operator, induced the defend- 
ants, Mack and Seitz, Jr., to purchase some ninety acres of 
land situated in San Diego County at the agreed price of 
twenty-two thousand five hundred dollars. Payment therefor 
was made by these defendants by the execution and delivery 
of three promissory notes, dated November 15, 1912 ; one for 
six thousand dollars, which was delivered directly to del 
Fungo; one for six thousand five hundred dollars, due in 
six months; and one for ten thousand dollars, due in two 
years. The two latter notes were executed in favor of and 
delivered to the Blochman Banking Company. The one for 
six thousand five hundred dollars was unsecured and has been 
paid, and the one for ten thousand dollars was secured by a 
mortgage on the land purchased, and is the subject of this 
litigation. At the time of this transaction del Fungo was 
indebted to the Blochman Banking Company in the sum of 
$14,520. When the notes above mentioned were executed 
they were deposited in escrow with a trust company in San 
Diego, together with the evidences of indebtedness of del 
Fungo to the bank, an additional cash advance from the 
bank to del Fungo and the deed of del Fungo, the owner, 
conveying the property to Mack and Seitz, Jr., with instruc- 
tions to the trust company to deliver the documents to the 
parties entitled thereto upon the deposit of the respective 
evidences of indebtedness. Through this transaction the in- 
debtedness of del Fungo to the bank was canceled. In lieu 
thereof the bank took the two notes, amounting to sixteen 
thousand five hundred dollars, and Mack and Seitz, Jr., took 
a deed transferring the title of the property to them. 

The note for six thousand five hundred dollars was not 
paid when due, and the Blochman Commercial & Savings 
Bank, as assignee, commenced an action to enforce its collec- 
tion against Mack and Seitz, Jr., on the tenth day of March, 
1914. On the twenty-seventh day of March, 1914, Wm. Seitz, 



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356 Security Commercial etc. Bank v. Seitz. [43 Cal. App. 

Sr., guaranteed in writing the payment of both notes. In 
consideration of this guaranty the action on the six thousand 
five hundred dollar note was dismissed and the bank agreed 
to extend for one year the time of payment of the ten thou- 
sand dollar note, provided certain other conditions were com- 
plied with. On the day before this guaranty was made the 
title to the land covered by the mortgage passed by regular 
transfer to the guarantor, Wm. Seitz, Sr. The trial court 
found that the guaranty was given in consideration of the 
dismissal of the action mentioned, and that Wm. Scitz, Sr., 
received adequate consideration therefor. Judgment went 
for plaintiff against all three defendants, from which they 
gave notice of their desire to severally and separately appeal. 

No answer appears in the record, but by way of cross-com- 
plaint defendants set up fraud in the purchase of the land, 
asked damages against Blochman and Heap, who composed 
the copartnership known as the Blochman Banking Company, 
and demanded the cancellation of the note and mortgage as 
against the plaintiff, Security Commercial & Savings Bank 
of San Diego. The allegations of fraud are that del Fungo 
took defendants Mack and Seitz, Jr., out to see the land sold 
and pointed out to them other and better land than that de- 
scribed in the deed and mortgage. It was also alleged that 
del Fungo represented to said defendants that the land he 
was offering them for twenty-two thousand five hundred dol- 
lars was worth more than fifty thousand dollars, whereas in 
fact the land actually conveyed was worth much less than 
twenty-two thousand five hundred dollars, the purchase price 
paid by defendants. In order to state a case against the cross- 
defendants, Blochman and Heap, it was alleged that del Fungo 
was their agent and employee, that the false representations 
were made in their behalf, and that they knew they were false. 

Treating the alleged cross-complaint as an equitable de- 
fense to plaintiff's cause of action because of the allegations 
of fraud in the execution and delivery of the note and mort- 
gage (and we assume this was what was done by the trial 
court, although the record is silent upon this point), it is 
evident that this defense rests entirely upon the proposition 
that del Fungo was the agent of Blochman and Heap, that 
the false representations were made in their behalf, and that 
they knew them to be false. The trial court found against 



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Sept. 1919.] Security Commercial etc. Bank v. Setts. 357 

defendants on all of these allegations, and this finding is 
amply supported by the evidence. 

Appellants' position seems to be that, the note being non- 
negotiable, the respondent is charged with knowledge of all 
of the legal defenses available to the mortgagors. In support 
of this they cite numerous authorities holding that one who 
is about to take the assignment of a mortgage is bound to 
inquire of the mortgagor if he has any legal defenses to the 
mortgage, and that if he fails to do this, he takes the mort- 
gage subject to all legal objections or infirmities which could 
have been set up against it in the hands of the original mort- 
gagee, being charged with all facts which such an inquiry 
would have disclosed. 

[1] The facts of this case, as found by the trial court, 
show clearly that the rule of these decisions is not applicable 
here. The original mortgagee was the Blochman Banking 
Company, a copartnership, and not del Fungo, the party who 
is alleged to have committed the fraud. Against the bank 
appellants could raise no different defenses than they have 
raised against the assignee of the bank. If, as is found by the 
court, the original mortgagee was not interested in the land 
purchased and had no knowledge of the representations of del 
Fungo, and he was not its agent in this transaction, it was 
not chargeable with the fraud of del Fungo. 

All that has been said herein regarding the defense of 
fraud has been said on the assumption that the alleged fraud 
was properly pleaded. But the cross-complainants in the 
same pleading and in the same cause of action set up the 
alleged fraudulent representations and the damages result- 
ing therefrom, seeking a rescission or cancellation of the 
note and mortgage as against one cross-defendant and dam- 
ages for the fraud as against the others. They alleged that 
they did not discover the fraud until more than three years 
after it was committed, but did not explain why an earlier 
discovery was not made. 

[2] In seeking affirmative relief cross-complainants were 
required to elect which one of two remedies they intended to 
seek — damages after rescission or damages after affirmance. 
They could not seek both. (Hines v. Brode, 168 Cal. 507, 
512, [143 Pac. 729].) [3] Whether the pleading be treated 
as a cause of action for rescission or one for fraud after af- 
firmance, it was necessary to allege and prove, not only that 



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358 Security Commercial etc. Bank v. Seitz. [43 Cal. App. 

the fraud was not discovered within the three-year period, 
but that it could not have been discovered within that time 
by the exercise of reasonable diligence. (Montgomery v. 
Peterson, 27 Cal. App. 671, 676, [151 Pac. 23]; Truett v. 
Onderdonk, 120 Cal. 581, 589, [53 Pac. 26].) 

[4] The presumption is always against fraud. This pre- 
sumption is as strong as that of innocence of crime. One 
who seeks relief against the effects of fraud must allege it 
and prove it by clear proof and satisfactory evidence. "They 
must clearly show that they did not discover the existence or 
commission of the alleged frauds until within a reasonable 
time before the action was begun, that they proceeded 
promptly upon such discovery, and that their failure to make 
the discovery sooner was not due to their own lack of dili- 
gence. All this must be shown, not merely by a bare state- 
ment of the conclusions as we have stated them, but by a 
detailed statement of the facts and circumstances which 
caused the ignorance, which prevented an earlier discovery, 
and which constitute the diligence in seeking a discovery.' ' 
(Del Campo v. Camarillo, 154 Cal. 647, 657, [98 Pac. 1049, 
1054].) [5] Cross-complainants not only failed to allege 
why they did not sooner discover the fraud or that they 
exercised diligence in seeking a discovery, but they wholly 
failed to make any offer of proof upon either of these mat- 
ters. The trial court was fully justified in denying them 
affirmative relief upon this plea. As a defense to the main 
action they are in no better position. The trial court having 
found that respondent's assignor was not connected with the 
alleged fraud, respondent was justified in relying upon the 
presumption against fraud and the long acquiescence of the 
parties who claim to be the victims of the fraud, unexplained 
by any acts which would overcome this presumption. 

[6] In support of the appeal on behalf of the appellant, 
Seitz, Sr., it is urged that there was no consideration for his 
guaranty of payment except that based on fraud, but the 
facts are, as the trial court properly found, that this guaranty 
was given in consideration of the dismissal of a certain action 
then pending in San Diego County in which Mack and 
Seitz, Jr., were defendants and this property was under at- 
tachment, Seitz, Sr., having previously become the title owner 
of the property. These facts clearly support the finding of 
the court that Seitz, Sr., received full and adequate consid- 



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Sept. 1919.] Vallejo High School District v. White. 359 

eration for the guaranty. [7] Furthermore, the complaint 
alleges that the guaranty was in writing and sets it forth 
in haec verba. The writing itself imports a consideration. 
The allegations of the complaint are not denied, and the want 
of consideration for the guaranty is not put in issue by the 
defendants. 

For the reasons given the judgment is affirmed. 

Brittain, J., and Langdon, P. J., concurred. 



[Civ. No. 2045. Third Appellate District. — September 25, 1919.] 

VALLEJO HIGH SCHOOL DISTRICT OF SOLANO 
COUNTY, Petitioner, v. DAN H. WHITE, as County 
Superintendent of Schools, etc., Respondent. 

[1] School Law — Employment and Discharge or Teachers — Con- 
flict Between State and Municipal Law. — The government of 
schools and the employment and discharge of teachers are not muni- 
cipal affairs, and. by virtue of the provisions of article XI, section 
S, of the constitution, whenever a conflict arises between the pro- 
visions of the state law and the provisions of a eity charter, the 
state law controls. 

[2] Id. — Notice or Termination or Services— Right op Appeal to 
County Superintendent of Schools. — Where a high school dis- 
trict after the first but before the tenth day of June of a given 
year, in writing, notifies the principal of the high school that his 
services will not be required after June 30th, such principal is not 
re-employed for the fiscal year beginning July 1st, following, and 
thereafter he is not a teacher in the employ of the high school 
district, and the county superintendent of schools has no authority 
or power to entertain his appeal for reinstatement or to reinstate 
him in his office as principal of the high school in that district. 

PROCEEDING in Certiorari to review the action of the 
county superintendent of schools in reinstating a high school 
principal. Order for reinstatement set aside. 

The facts are stated in the opinion of the court. 

Breed & Burpee for Petitioner. 

Arthur Lindauer, District Attorney, for Respondent 



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360 Vallejo High School District v. White. [43Cal. App. 

ELLISON, P. J., pro tern.— The petition sets forth that 
the petitioner is a high school corporation ; that the respond- 
ent is county superintendent of schools of Solano County, 
California; that the petitioner school district is composed of 
the city of Vallejo and adjacent territory of an area of ap- 
proximately the same as the city of Vallejo; that prior to 
the year 1918 petitioner employed one Carl H. Nielsen, as 
principal of said high school, and he acted as such until the 
thirtieth day of June, 1919, at which time his employment 
ceased ; that after the first day of June, and before the tenth 
day of June, 1919, petitioner, in writing, duly notified said 
Carl H. Nielsen that his services as principal of said high 
school would not be required after June 30, 1919, and that 
this notice was served upon him before the tenth day of June, 
1919 ; that thereafter said Nielsen appealed to respondent as 
county superintendent of schools and asked that the action 
of the board of trustees of petitioner be reversed and he be 
reinstated as principal of said high school; that respondent, 
without notice to petitioner herein, reversed its action and 
reinstated said Nielsen as principal of said high school. Peti- 
tioner, claiming that respondent had no authority of law to 
entertain the appeal or make an order reinstating said Niel- 
sen, applies to this court for a writ of review and asks that 
said action of said superintendent of schools in reinstating 
said Nielsen be annulled and set aside. 

Respondent, by return of the writ, has set forth all his 
actions and proceedings as superintendent in connection 
therewith. 

The controversy between petitioner and respondent grows 
out of the fact that the charter of the city of Vallejo con- 
tains different provisions on the subject of employment of 
teachers from that contained in the Political Code, and one 
of the questions submitted for decision is: Are the parties' 
rights to be governed by the state law, as found in the Politi- 
cal Code, or by the provisions of the charter of the city 
of Vallejo T The record shows that the petitioner received 
no notice that his services would not be needed after the cur- 
rent fiscal year, prior to the first day of May, 1919. 

Section 1617 of the Political Code, under the heading of 
the powers and duties of trustees and boards of education in 
said school districts, provides: "... except that teachers 



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Sept 1919.] Vallejo High School District v. White. 361 

may be elected on or after June 1st for the nest ensuing 
school year, and each teacher so elected shall be deemed re- 
elected from year to year thereafter unless the governing 
body of the school district shall on or before the tenth day of 
June give notice in writing to such teacher that his services 
will not be required for the ensuing school year." 

Section 127 of the charter of the city of Vallejo (Stats. 
1911, p. 2027), reads as follows: "Every person employed as 
a regular teacher by the school department shall be consid- 
ered re-elected for the ensuing fiscal year unless at least two 
months before the beginning of such fiscal year he or she is 
notified in writing, by authority of the board of education, 
that it is expected that his or her services will not be re- 
quired for the ensuing fiscal year." 

If the provisions of the Political Code are to control, then 
it is clear that Mr. Nielsen's term as principal of the high 
school ceased on the thirtieth day of June, 1919. If the pro- 
visions of the city charter control, by reason of his not having 
the notice served on him at least two months before June 
30th (which concededly was not done), he was deemed em- 
ployed for another year, beginning July 1, 1919. 

Do the provisions of the Political Code control in this 
particular matter or is it controlled by the provisions of the 
charter of the city of Vallejo t Counsel for respondent has 
argued the case on the theory that Nielsen was discharged 
after he was employed and the superintendent had the power 
of reinstating him. The question is really a somewhat dif- 
ferent one. It is: Was he employed for the year beginning 
July 1, 1919 1 Both the quoted section of the Political Code 
and the charter of the city of Vallejo are very specific in 
using the word " re-elect.' ' If the written notice is not 
given, he is re-elected. There was no express employment 
of Nielsen for another year, beginning July 1, 1919. If em- 
ployed at all, it was because of the failure to give him proper 
notice that his services would not be needed for another year. 
If the state law controls, then the notice which was given to 
him by the petitioner prevented him from being re-elected 
for another year. If the provisions of the city charter con- 
trol, then as notice was not given as provided therein, he was 
re-elected for another year. 

We are of the opinion the state law controls in the matter 
and not the city charter. 



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362 Vallejo High School District v. White. [43 CaL App. 

Turning to the constitutional provision (article XI, section 
8) which confers power upon cities to form and have adopted 
city charters, it is provided: "It shall be competent in any 
charter framed under the authority of this section to provide 
that the municipality governed thereunder may make and en- 
force all laws and regulations in respect to municipal affairs, 
subject only to the restrictions and limitations provided in 
their several charters and in respect to other matters they 
shall be subject to general laws." [1] The government of 
schools and the employment and discharge of teachers are 
not municipal affairs and, by virtue of the constitutional pro- 
vision referred to, the state law controls whenever a conflict 
arises. This has been decided so often by the supreme and 
appellate courts of this state that any lengthy discussion 
seems unnecessary. 

Thus, in Kennedy ▼. Miller, 97 Cal. 434, [32 Pac. 560], it 
is said: "The powers and duties of the board of education 
in a city cannot trench upon the system that the legislature 
has provided for the entire state, since the charter is limited 
in its operation by any general law that may be passed by 
the legislature, and, in addition thereto, such powers and 
duties are, by the terms of the section in which they are au- 
thorized to be given, limited by the provisions of the Political 
Code." 

"It is not, and cannot, be claimed that the election and 
dismissal of teachers in the public schools are 'municipal 
affairs,' which may, by a freeholders' charter, be regulated 
in a manner in conflict with that provided by the general 
law. (See Kennedy v. Miller, 97 Cal. 429, [32 Pac. 558] ; 
Mitchell v. Board of Education, 137 CaL 372, [70 Pac. 
180].)" 

These decisions are conclusive upon the point that in the 
matter under investigation the rights of the parties must be 
controlled by the provisions of the Political Code and not 
by the charter of the city of Vallejo. 

It was suggested in argument that the code provisions that 
a teacher should be deemed re-elected unless he were given 
a twenty days' notice was passed for the benefit of the teacher 
and that the charter provisions declaring that he should be 
given a two months' notice was in line with the code provi- 
sion and more favorable to the teacher than the code, and, 
therefore, there was really no conflict between the two. But 



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Sept. 1919.] Brown v. White. 363 



if the city, by provision in its charter, can lengthen the time 
for giving notice to two months, it can lengthen it to six 
months. And if the city by its charter has the power to 
lengthen the time of the notice to be given to a teacher it 
has the power to shorten it to ten days, or five days, or one 
day. 

[2] We hold that Nielsen was not re-employed for the 
fiscal year, beginning July 1, 1919; that at the time the ap- 
peal was taken he was not a teacher in the employ of the 
high school district, and that the respondent had no authority 
or power to entertain his appeal or to reinstate him in his 
office as principal of the high school of the city of Vallejo. 

The writ of review is granted and the orders of the re- 
spondent purporting to reinstate him, Carl H. Nielsen, as 
principal of the Vallejo high school are set aside and peti- 
tioner will recover its costs. 

Hart, J., and Burnett, J., concurred. 



[CIt. No. 2046. Third Appellate District.— September 25, 1919.] 

CHARLES S. BROWN, Petitioner, v. DAN H. WHITE, as 
County Superintendent of Schools, etc., Respondent. 

[1] School Law— Employment of High School Principal— Manda- 
mus to Compel Payment op Salaby. — In this proceeding in man- 
damus to compel a county superintendent of schools to approve 
a requisition for the salary of the petitioner as principal of a 
given high school and to order the same paid to petitioner, the em- 
ployment of petitioner's predecessor as principal of said high school 
having terminated on June 30th of the year in question, the board 
had authority to employ someone to take his place, and, before 
July 1st of that year, the petitioner having been regularly em- 
ployed as such principal and having entered upon and performed 
the duties thereof, was legally entitled to the relief asked. 

PROCEEDING in Mandamus to compel the approval by a 
county superintendent of a requisition for salary and to 
order same paid. Writ granted. 

* i 

1. Mandamus to compel payment of salary of public officer or em- 
ployee, note, 5A.LB. 572. 



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364 Brown v. White. [43 GaL App. 

The facts are stated in the opinion of the court 

Breed & Burpee for Petitioner. 

Arthur Lindauer, District Attorney, for Respondent 

ELLISON, P. J., pro tern. — Petitioner represents that the 
Vallejo High School District is a public high school corpora- 
tion, composed of the city of Vallejo and of an additional 
area of approximately the same size as the city of Vallejo; 
that respondent is the county superintendent of schools of 
Solano County; that on the third day of June, 1919, the 
Vallejo High School District of Solano County employed 
petitioner, as principal of said high school and said inter- 
mediate schools for the school year commencing July 1, 1919, 
at an annual salary of two thousand four hundred dollars, 
payable in twelve equal monthly installments of two hundred 
dollars on the first of each and every month of said term ; 
that thereupon said petitioner accepted said employment, and 
on the first day of July, 1919, entered upon the performance 
of his duties as such principal ; that under the terms of said 
employment said Vallejo High School District of Solano 
County agreed to pay to your petitioner the sum of two hun- 
dred dollars on the first day of August, 1919 ; that said peti- 
tioner has duly performed all of the duties as such principal 
during the month of July, 1919, and has duly performed all 
conditions precedent to the payment of said sum of money; 
that thereafter said Vallejo High School District issued and 
delivered to petitioner a requisition in writing upon the high 
school fund of said high school district, in the regular and 
usual form, on respondent, as county superintendent of schools 
of Solano County; that petitioner presented said requisi- 
tion to respondent in regular business hours, and demanded 
that he approve said requisition and order the same 
paid ; that said respondent refused, and still refuses, without 
any cause, to approve said requisition, or to order the same 
paid, and that the whole of said two hundred dollars remains 
unpaid; petitioner prays that an alternative writ of mandate 
issue directed to respondent, requiring him, immediately after 
the receipt of said writ, to approve said requisition and order 
said sum paid to petitioner, or to show cause, etc., and for 
general relief. 



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Sept 1919.] Brown v. White. 365 

In response to said alternative writ of mandate the re- 
spondent has filed an answer, in which he states that the 
Vallejo High School District of Solano County was, on the 
third day of June, 1919, without any right or authority to 
employ petitioner, Charles S. Brown, as principal of said 
high school and said intermediate schools for the year com- 
mencing July 1, 1919, at the annual salary of two thousand 
four hundred dollars, or any other amount; that said school 
district was without any right or authority to pay said 
Brown any salary, as principal of said high school and inter- 
mediate school, because one Carl H. Nielsen, a regular teacher 
of the Vallejo high school of Solano County, was and is the 
duly employed and acting principal of said school, by virtue 
of a contract entered into by and between Carl H. Nielsen 
and the Vallejo high school on the first day of August, 1918, 
wherein Carl H. Nielsen was employed and accepted said em- 
ployment as principal of said school, at a yearly salary of 
two thousand four hundred dollars; that said contract has 
never been terminated and is now in full force and effect, 
Carl H. Nielsen having been re-elected principal of the Val- 
lejo High School District for the ensuing fiscal year of 1919, 
by virtue and under the provisions of section 127 of the char- 
ter of the city of Vallejo. 

The same question is involved in this case as was under con- 
sideration in the case of Vallejo High School District of Solano 
County v. White, ante, p. 359, [185 Pac. 302]. In this case 
as in that, it is claimed by respondent that Nielsen was never 
discharged from his position as principal of said school ; that 
he, being the principal of the school, the board had no au- 
thority to employ petitioner Charles S. Brown. 

[1] In Vallejo High School District of Solano County t. 
Itfhite, supra, it was held that Nielsen's employment as prin- 
cipal of said high school ended June 30, 1919. This being 
so, the board had authority to employ someone to take his 
place. And it appearing that the High School District be- 
fore July 1, 1919, regularly employed petitioner as principal 
of said school and that he entered upon and performed the 
duties thereof, it follows that he is legally entitled to the 
relief asked. 

It is, therefore, ordered that the writ of mandate issue 
to respondent, commanding him, as county superintendent of 



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366 Terry v. Southwestern Building Co. [43 Cal. App. 

schools of the county of Solano, to issue and deliver to peti- 
tioner a requisition for his salary for the month, beginning 
July 1, 1919, and ending July 31, 1919, in the sum of two 
hundred ($200) dollars, and that petitioner herein recover 
his costs. 

Hart, J., and Burnett, J., concurred. 



[CIt. No. 8032. First Appellate District, Division Two. — September 

26, 1919.] 

B. H. TERRY et al., Appellants, v. SOUTHWESTERN 
BUILDING COMPANY et al., Respondents. 

[1] Mechanics' Liens — Construction of Building — Execution of 
Bond in Favob or Owners Only— Property not Relieved from 
Liability. — A building contractor's bond not conditioned for the 
payment in full of the claims of all persons performing labor upon 
or furnishing materials to be used in the work, and which is not 
by its terms made to inure to the benefit of any and all persons 
who might perform labor upon or furnish materials to be used in 
the work described in the contract, aB provided by section 1183 of 
the Code of Civil Procedure, but which, on the other hand, contains 
the express condition that no right of action shall accrue upon or 
by reason thereof to or for the use or benefit of any other person 
than the obligee therein named and that the obligation of the surety 
is and shall be construed strictly as one of suretyship only, is not 
such a bond as relieves the owner from liability of his property 
for liens under the statute. 

[2] Id. — Interpleader by Owners — Nonpayment of Claims — Suffi- 
ciency of Findings — Judgment- — In an action in the nature of 
suit in interpleader by the owners of real property upon which a 
building had been erected and against the building contractor, its 
surety, and numerous lien claimants, a conclusion of law "that said 
lien claimants are entitled to enforce liens upon the real property 
described in plaintiff's complaint for the payment of the several 
amounts found due them respectively as hereinbefore set forth" 
amounts to a finding of fact that such sums are due, although in- 
cluded in the conclusions of law; and in such a case the judgment 
will not be reversed for want of a direct finding that such sums 
are owing and unpaid. 

[3] Findings— Construction of to Uphold Judgment. — The entire 
findings and conclusions of law are to be construed to uphold the 



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Sept 1919.] Terry v. Southwestern Building Co. 367 

judgment when, from the facts found, other facts may be inferred 
which will support the judgment. 

[4] Id. — Want of Findings — Reversal of Judgment. — A judgment 
will not be reversed for want of a finding unless it appears there 
wag no evidence, or lack of evidence which required the court to 
make a finding in favor of the appellant. 

[5] Id. — Interpleader— Substantial Facts -Admitted by Pleadings— 
Finding Unnecessary. — Where the plaintiffs in a complaint in 
interpleader allege that they do not know the actual amounts due 
the various claimants, or whether or not their claims of lien are 
valid, and such lien claimants respectively in th*ir cross-complaints 
allege that the labor and material furnished went into the plain- 
tiffs' building, and that there were due, owing, and unpaid, after 
deducting all just credits and offsets, the sums claimed by them, 
and the plaintiffs did not deny these allegations but stipulated that 
their complaint should stand as their answer to the cross-complaints 
respectively, the substantial facts were thus admitted by the plead- 
ings, and no finding was necessary. 

[6] Suretyship — Nonliability of Surety to Lien Claimants — Con- 
struction of Bond. — Where a building contractor's bond expressly 
provides that neither such instrument nor any rights thereunder 
shall be assignable unless by the written consent of the surety, 
executed as therein specified, and that no right of action shall 
accrue upon or by reason of such bond to or for the use or benefit 
of anyone other than the obligee therein named, and that the ob- 
ligation of the surety is and shall be construed strictly as one of 
suretyship only, no right of action can accrue thereupon for the 
benefit of lien claimants, and the obligees therein cannot, either 
directly or by bringing a suit in interpleader against such surety, 
the contractor, and the lien claimants, work an assignment of the 
contract. Such surety cannot be held beyond the express terms of 
the contract. 

[7] Interpleader— When Maintainable — Status of Plaintiff.— The 
plaintiff in an interpleader suit cannot have a judgment in his 
favor nor urge the claims of certain interpleaded defendants against 
others, but must at all times maintain the position of a disinter- 
ested stakeholder, which alone giveB him the right to maintain such 
a suit 

APPEAL from a judgment of the Superior Court of Loa 
Angeles County. Leslie R. Hewitt, Judge. Affirmed. 

The facts are stated in the opinion of the court. 

Wm. T. Blakely for Appellants. 

Allen & Weyl for Respondent National Surety Company. 



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368 Terry v. Southwestern Building Co. [43 Cal. App. 

BRITTAIN, J. — The appellants, owners of real property 
in Los Angeles, on which a building had been constructed, 
commenced this action in the nature of a suit in interpleader, 
joining as defendants the building contractor, its surety, and 
numerous lien claimants. The surety was dismissed from the 
action by the trial court, certain lien claimants were given 
judgment against the contractor, and the amounts of their 
several judgments were decreed to be liens on the plaintiffs' 
property, which was ordered to be sold to satisfy them. The 
plaintiffs' appeal is on two grounds; first, that the court 
erred in dismissing the action as to the surety, and, second, 
that the judgment is not supported by the findings in three 
particulars which will be defined later in this opinion. 

The action is of such an unusual character that it is neces- 
sary to an understanding of the appellants' contentions to 
state the essential facts upon which the suit was brought, 
as well as briefly to indicate the salient features of the liti- 
gation. 

The Southwestern Building Company contracted to erect 
on the plaintiffs' property a building to cost six thousand 
dollars. The last one thousand five hundred dollars pay- 
ment was to be made thirty-five days after the completion. 
[1] On the day the contract was executed the contractor, 
Southwestern Building Company, as principal, and National 
Surety Company, as surety, executed a bond running to the 
plaintiffs, for three thousand dollars. It referred to the con- 
tract and contained numerous conditions relating to the work 
and limiting the liability of the surety. It was not "con- 
ditioned for the payment in full of the claims of all persons 
performing labor upon or furnishing materials to be used 
in such work," and it was not by its terms "made to inure 
to the benefit of any and all persons" who might perform 
labor upon or furnish materials to be used in the work de- 
scribed in the contract, as provided by section 1183 of the 
Code of Civil Procedure. On the other hand, it contained 
the express condition "that no right of action shall accrue 
upon or by reason hereof to or for the use or benefit of any 
one other than the obligee herein named, and that the obliga- 
tion of the company is and shall be construed strictly as one 
of suretyship only." This was not such a bond as relieved 



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Sept 1919.] Tkeby v. Southwestern Building Co. 

the owner from liability of his property for liens under the 
statute. 

Before the final payment the owners began this action. 
They alleged they had the f and of one thousand five hundred 
dollars retained under the contract, which was set forth with 
a copy of the bond. They alleged the defendants other than 
the Surety Company claimed interests in the fund and 
claimed liens, that the plaintiffs were ignorant concerning the 
defendants' respective rights, and that the defendants threat- 
ened a multiplicity of suits. They prayed the defendants be 
restrained from taking any proceedings on account of their 
demands and liens, that they be required to interplead, that 
the one thousand five hundred dollars be adjudged to be the 
turn to be paid by the plaintiffs, that upon payment of that 
sum they and their property be relieved of all further obliga- 
tions, and that judgment be entered in favor of the plaintiffs 
"and in favor of said defendants who establish their claims 
of lien against said premises, against the defendant, National 
Surety Company, for any amount which they may be entitled 
to in excess of said fund of one thousand five hundred dol- 
lars," and for general relief. 

The demurrer of the National Surety Company was oveiv 
ruled. The lien claimants, or at least some of them, answered 
and cross-complained upon their respective liens. There was 
no formal order of interpleader. The case was sent to a 
referee to take evidence, which is not before this court. The 
report of the referee, which was adopted as the findings of 
fact, while perfectly clear in its meaning, was not drawn 
with the technical nicety of language which might have been 
used. For instance, the report stated "that the following 
claimants furnished repairs or materials, or both, on the prop- 
erty of the plaintiffs, and that said repairs and materials 
were actually used in the construction of said building, and 
that the charge for said materials was a reasonable charge 
thereon, and said mechanics' liens were recorded within the 
time required by law," following which was a list referring 
to the respective claims by exhibit letters, giving the respec- 
tive dates of filing the liens to which the reference was made, 
and tabulating the respective amounts for which claims were 
approved. 

[2] The appellants contend that these findings do not 
support the judgment because they do not contain the direct 

48 0*1. App.— 24 



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370 Terry v. S ou t hwestern Building Go. [43 Cal. App. 

statement that the amounts of the claims listed were owing 
or unpaid. It appears from the record that no exceptions 
were filed to the findings of the referee, and the court adopted 
them as its own, adding thereto what were designated as con- 
clusions of law, in which, among other things, it is stated 
"that said lien claimants are entitled to enforce liens upon 
the real property described in plaintiffs' complaint for the 
payment of the several amounts found due them respectively 
as hereinbefore set forth." This statement amounts to a 
finding of fact that the sums were due, although included 
with the conclusions of law, and in such a case the judgment 
should not be reversed. (Lange v. Waters, 156 Cal. 142, [19 
Ann. Cas. 1207, 103 Pac. 889].) [3] The entire findings 
and conclusions of law are to be construed to uphold the judg- 
ment when, from the facts found, other facts may be inferred 
which will support the judgment. (Breeze v. Brooks, 97 CaL 
72, [22 L. R. A. 257, 31 Pac. 742] ; Pacific States Corp. v. 
Arnold, 23 Cal. App. 672, [139 Pac. 239].) [4] A judg- 
ment will not be reversed for want of a finding unless it 
appears there was evidence, or lack of evidence which required 
the court to make a finding in favor of the appellant. (Bliss 
v. Sneath, 119 Cal. 529, [51 Pac. 848].) The evidence is not 
before this court. The appellants make no argument upon 
this point and do not suggest in their brief that the lien 
claims were not justly due and unpaid. [5] On the other 
hand, in their complaint the plaintiffs alleged that they did 
not know the actual amounts due the various claimants, nor 
whether or not their claims of lien were valid. The lien 
claimants respectively in their cross-complaints alleged that 
the labor and material furnished went into the plaintiffs* 
building, and that there were due, owing, and unpaid, after 
deducting all just credits and offsets, the sums claimed by 
them. The plaintiffs did not deny these allegations, but stip- 
ulated that their complaint should stand as their answer to 
the cross-complaints respectively. The substantial facts were 
thus admitted by the pleadings, and no finding was necessary. 
(Higgins v. San Diego Sav. Bank, 129 Cal. 184, [61 Pac. 
9431.) 

The same rule applies to the appellants' contention in re- 
gard to the phrase used by the referee that certain claimants 
furnished "repairs or materials, or both," and the further 
phrase that "the charge for said materials was a reasonable 



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Sept. 1919.] Terry v. Southwestern Building Co. 371 

charge thereon.' ' The allegations of the cross-complaints in 
these particulars were not only direct and positive, but tech- 
nically correct, and they were not denied by the plaintiffs. 
No ground for reversal is shown so far as the decree estab- 
lishes the liens. 

The third contention of the appellants is based on the same 
grounds as their attack on the dismissal of the Surety Com- 
pany. The appellants rely on Fuller v. Alturas School Dis- 
trict, 28 Cal. App. 609, [153 Pac. 543]. That case was 
decided on the authority of the decision in Callan v. Empire 
Surety Co., 20 Cal. App. 483, [129 Pac. 978, 981]. In each 
of those cases the surety guaranteed both directly and by 
reference to the building contract that the contractor should 
well and truly perform the building contract. [6] In the 
present case the condition was "that if the principal (i. e., 
the contractor) indemnifies the obligee (i. e., the owners) 
against loss or damage directly arising by reason of the fail- 
ure of the principal to faithfully perform the above-men- 
tioned contract, then this instrument shall be null and void ; 
otherwise to remain in full force and effect, provided, how- 
ever, that this instrument is executed by the company as 
surety upon the following express conditions which shall be 
precedent to the right of recovery hereunder. ... 7. None 
of the conditions or provisions contained in this instrument 
shall be deemed waived by the company unless the written 
consent to such waiver be duly executed by its president or 
vice president, and its seal be thereto affixed, duly attested; 
. . . nor shall this instrument or any rights thereunder be 
assignable unless with like consent duly executed and attested 
as aforesaid. ... 11. That no right of action shall accrue 
upon or by reason hereof to or for the use or benefit of any 
one other than the obligee herein named, and that the obliga- 
tion of the company is and shall be construed strictly as one 
of suretyship only." This language is too explicit to permit 
interpretation. (Civ. Code, sec. 1638; Pierce v. Merrill, 128 
Cal. 472, [79 Am. St. Rep. 56, 61 Pac. 64].) Considered 
as a contract of surety, no right of action accrued upon it 
for the benefit of lien claimants, and the plaintiffs could not 
either directly or by the bringing of this suit work an as- 
signment of the contract. The surety could not be held 
beyond the express terms of the contract. (Civ. Code. sec. 
2836.) In Fuller v. Alturas School District, supra, and Cal- 



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372 Terry v. Southwestern Building Co. [43 Cal. App. 

Ian v. Empire Surety Co., supra, the guaranty was of the 
faithful performance of the contract. In this case it was 
that the contractor should indemnify the owners against loss 
or damage arising directly from his breach. Even though, 
under the rule in the Fuller and Callan cases, this be con* 
strued as a direct indemnity, neither at the time this action 
was commenced nor when judgment was rendered could the 
plaintiffs have maintained any action on the bond, for it is a 
statutory rule that "upon an indemnity against claims, or 
demands, or damages, or costs, expressly, or in other equiva- 
lent terms, the person indemnified is not entitled to recover 
without payment thereof." (Civ. Code, sec. 2778, subd. 2; 
Fernandez v. Tormey, 121 Cal. 518, 519, [53 Pac. 1119].) 

While the action was not strictly one of interpleader, it 
was in the nature of such a suit. The plaintiffs alleged they 
held a fund claimed by the defendants. The National Surety 
Company did not claim, and could not have claimed, any 
part of the one thousand five hundred dollar fund. The 
plaintiffs asked that a judgment be rendered against the 
Surety Company in favor of other defendants upon a con- 
tract unconnected with the fund, and which the plaintiffs 
could not assign. [7] The plaintiff in an interpleader suit 
cannot have a judgment in his favor nor urge the claims of 
certain impleaded defendants against others. He must at all 
times maintain the position of a disinterested stakeholder, 
which alone gives him the right to maintain such a suit 
(Code Civ. Proc, sec. 386; Orient Ins. Co. v. Reed, 81 CaL 
146, [22 Pac. 484] ; Pfister v. Wade, 56 Cal. 46; WeUs-Fargo 
Co. v. Miner (C. C), 25 Fed. 533.) 

The fact that under their subsequent pleadings the plain- 
tiffs, the lien claimants, and the court treated the action as a 
consolidated lieu case did not change the status of the Surety 
Company. Sufficient facts were stated by the plaintiffs to 
permit them to maintain an interpleader suit against the lien 
claimants in regard to the one thousand five hundred dollar 
fund, but no facts were stated which in this action could have 
warranted a judgment against the Surety Company, which 
was properly dismissed from the suit 

The judgment is affirmed. 

Langdon, P. J., and Nourse, J., concurred. 



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Sept. 1919.] Hunt v. Industrial Acq. Com. 373 



[Civ. No. 3090. First Appellate District, Division One.— September 

29, 1919.] 

ARTHUR HUNT, Petitioner, v. INDUSTRIAL ACCIDENT 
COMMISSION et al., Respondents. 

[1] Workmen's Compensation Act— Retubn of Injured Employee 
at Full Pay— Extension of Time foe Filing Application fob 
Belief. — In the absence of a showing as to the existence of an 
agreement or understanding as between himself and his employer 
to the effect that the full pay which he received after he returned 
to work following his injuries but prior to his discharge, or a 
portion thereof, was to be in the nature of compensation for his 
injuries, or that the work which he performed during that period 
was either unsatisfactory to his employer, or that the compensation 
which he received therefor was more than his services during that 
time were actually worth, it cannot be held that the mere fact that 
the employer permitted him to return to his old position at full 
pay and to continue therein for several months could give rise to 
a claim that a portion of the pay which he thus received was in 
the nature of compensation for his previous Injuries, and that the 
time within which he might make application to the Industrial Ac- 
cident Commission for relief was thereby extended. 

[2] Id. — Medical Attention as Compensation. — The fact that the in* 
jured employee visited his employer's physician for the purpose of 
examination, no treatment or medicine being received, did not con- 
stitute the reviving or rendering of such service as could be 
construed to amount to compensation under the provisions of the 
Workmen's Compensation Act which would prolong the prescribed 
time for the filing of his claim. 

[3] Id. — Unauthorized Statements — Delay m Presenting Claim not 
Excused. — In the absence of some showing that the persons with 
whom ho discussed tho matter of his claim to compensation, and 
who assured him that his claim was being given proper attention, 
had authority from the employer to make such a statement, or that 
their positions were such in relation to the employer as to justify 
him in relying upon such assurances, proof of such statements was 
insufficient to support his claim that he was lulled into a sense of 
security by representations made on behalf of his employer to the 
effect that his claim *vas being given proper attention during the 
period that he had returned to his employment and before his dis- 
charge. 

PROCEEDING in Certiorari to review the action of the 
Industrial Accident Commission in denying an application for 
compensation. Application denied. 



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374 IIunt v. Industrial Aoc. Com. [43 Csl. App. 

The facts are stated in the opinion of the court 
Clarence A. Henning for Petitioner. 
A. E. Graupner for Respondents. 

RICHARDS, J. — The petitioner, who was an employee of 
the United Railroads, received an injury to his spine on or 
about June 8, 1918, while in the course of said employment, 
by being thrown from a street-car upon which he was at the 
time acting as conductor. Twenty-eight days after the date 
of his injury he returned to work at his former employment, 
and received full pay therein for the next several months, 
when he was discharged by his employer. During the period 
that he was away from his work by reason of his injuries 
he received independent medical treatment, and after he re- 
turned to work and on or about August 15, 1918, he went to 
the company *s physician for an examination, and went again 
three or four times for the same purpose, but received no 
treatment or medicine on any of those occasions, the com- 
pany's physician informing him that the nature of his in- 
juries was such that only time would effect a cure. After his 
discharge, on or about March 15, 1919, he made a claim for 
compensation to the claims attorney of his former employer, 
and was then sent for examination as to his physical condition 
to its physician, but no medical or surgical treatment was 
then given. Thereafter, and on March 18, 1919, his applica- 
tion for relief was filed before the Industrial Accident Com- 
mission. A hearing was had thereon, after which, upon the 
applicant '8 own testimony showing the foregoing facts, the 
commission denied his application upon the ground that it 
had been made too late and was barred under the provisions 
of the Workmen's Compensation Act, [Stats. 1917, p. 831]. 
After a petition for rehearing before the commission had also 
been denied, the application for a writ of review was pre- 
sented by said petitioner to this court. 

[1] Upon the hearing of said application the petitioner 
ur^ed as a reason for his contention that the Industrial Acci- 
dent Commission was in error in holding that his claim was 
barred by limitation, that the evidence showed the payment 
or giving of compensation for his injuries on the part of his 
employer which, under section 11 of the Workmen's Corn- 



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Sept. 1919.] Hunt v. Industrial Acc. Com. 375 

pensation Act, would have extended the time within which 
his application should be filed. This claim as to the receipt 
of compensation on the part of the applicant was twofold, 
his first contention being that when he returned to work for 
his employer he was still suffering from his injuries, and 
was not able on that account to fully perform the duties of 
his position, but that notwithstanding that fact he received 
full pay for the time that he continued to be in its employ. 
The applicant, however, failed to show the existence of any 
agreement or understanding as between himself and his em- 
ployer to the effect that the full pay which he received 
through said period, or any portion thereof, was to be in the 
nature of compensation for his injuries ; nor did he show, nor 
attempt to show, that the work which he performed during 
that period was either unsatisfactory to his employer or that 
the compensation which he received therefor was more than 
his services during that time were actually worth. In the 
absence of such showing it cannot be held that the mere fact 
that the employer permitted the employee to return to his 
old position at full pay and to continue therein for several 
months could give rise to a claim that a portion of the pay 
which he thus received was in the nature of compensation for 
his previous injuiies. 

[2] The second contention of the applicant under this 
head is that he received compensation in the way of medical 
treatment from his employer which would suffice to prolong 
the time within which his application might be filed under 
section 11 of the Workmen's Compensation Act; but the evi- 
dence which he gave upon that subject is, in our opinion, in- 
sufficient to support such a claim. While it is true that some 
seven months before the date of the filing of his application 
with the commission he went to his employer's physician, and 
that he went again several times thereafter at dates not given 
by him, he testifies that he received no treatment and no 
medicine at any of these visits; while as to the visit of March 
15, 1919, it is clear that he was sent to the physician on that 
occasion for an examination as to the nature and extent of 
his injuries in order that the claims agent of his employer 
might be able to determine the merits of his claim, and that 
upon that occasion no treatment was given or medicine sup- 
plied. There was, therefore, no service rendered which could 
be construed to amount to compensation under the provisions 



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876 Rosenberg v. Bump. [43 CaL App. 

of the Workmen's Compensation Act which would prolong 
the prescribed time for the filing of his claim. 

[3] The final contention of the petitioner is that he was 
lulled into a sense of security by representations made on be- 
half of his employer to the effect that his claim was being 
given proper attention daring the period that he had returned 
to his employment and before his discharge; but his evidence 
is insufficient to support this claim, since it appears that the 
only persons in the employ of the company with whom he 
discussed the matter of his right or claim to compensation 
were two car-dispatcher* at its barn, who appear to have told 
him that his claim bad been sent in and that he should re- 
ceive compensation. There is no showing that these persons 
had any authority from the employer to make such a state- 
ment, or that their positions were such in relation to it as to 
justify the applicant herein in relying upon any assurances 
of that kind. 

Upon the record before us it is clear tbat the claim of the 
petitioner was filed too late before the Industrial Accident 
Commission, and that the ruling of said commission that said 
claim was barred under the provisions of section 11 of the 
Workmens* Compensation Act was therefore correct, and it 
cannot be disturbed upon this application. 

It follows that the application must be denied, and it is so 
ordered. 

Beasly, P. J., pro tern., and Kerrigan, J., concurred. 



[Civ. No. 1675. Third Appellate District.— September 80, 1919.] 

JOSEPH ROSENBERG et al., Executors, etc., Appellants, 
v. CHARLES A. BUMP, Respondent 

[1] School Lands— Grant to State by Conorxss — Locations and 
Patents — Act or 1852 not Repealed. — The set of 1857 (Stats. 
1857, p. 856), authorising the location and patenting of school 
lande, did not repeal the act of 1852 (8tata. 1852, p. 41), which 
provided for the disposal of the five hundred thousand acres of 
land granted by Congress to the state of California, either ex- 
pressly or necessarily from the general language thereof. To the 
contrary, the act of 1857 made certain portions of the act of 1858 



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Sept 1919.] Rosenberg v. Bump. 377 

a part of its own provisions, or, if it strictly cannot be said that 
this is true, it certainly and unquestionably recognized by express 
language the validity of the warrants issued under the prior act, 
the sale of such warrants and the rights acquired by purchasers of 
the same. 

[2] Id.— Purpose or Act of 1857. — The legislature by the act of 1857 
merely intended to regulate the matter of locating warrants issued 
by the state and acquired by purchasers under the act of 1852, so 
that such 'ocations would conform to the requirements of the 
United States statutes relative thereto. 

[3] Id. — Reservation Clause in Act op 1858 — Bights of Purchasers 
Under Earlier Act.— While the act of 1858 (Stats. 1858, p. 248) 
did expressly repeal, among others, the statute of 1852, it contained 
the express provision that "all school-land warrants, now in circula- 
tion, shall be received for school lands, and may be located as now 
provided by law." The meaning of this language is that school- 
land warrants in circulation at the time of the passage of the act 
of 1858 may be located as provided by the law existing at the 
time of the passage of said act, or as provided by the law author- 
ising the issuing and sale of such warrants. 

[4] Id. — Construction of Act of 1868— Right to Locate Warrants. — 
The legislature did not intend by the act of 1868 (Stats. 1867-68, 
p. 507), providing a new and different procedure for obtaining 
patents to the unlocated portions of the five hundred thousand acres 
of land set apart as school land, to vest solely and exclusively in 
the surveyor-general the right to make school-land warrant selec- 
tions. The sale of the warrant constituted a sale by the state of 
the number of acres of land specified in the warrant, a sale of 
the land so specified for all time and unconditionally, and there 
was nothing remaining for the purchaser to do but to locate the 
number of acres his warrant called for. Having bought and paid 
for the land, there was no reason why his warrant should be pre- 
sented to the surveyor general as in payment for something he had 
already paid for. 

[5] Id. — Right of Surveyor-general to Locate Lands. — The act of 
1868 expressly limits the right of the surveyor-general to locate 
lands comprised within the grant by Congress to the unsold por- 
tions thereof, and it was not the intent of the legislature by such 
act to deprive owners of pre-existing land warrants of the right 
themselves to locate said warrants as agents of the state. 

[6] Id. — Ownership of Outstanding Warrants— Additional Per- 
missive Bight Under Act of 1868. — The provision of the act of 
1868 that outstanding warrants shall be taken in payment of any 
part of the grant was intended only to be permissive— that is to 
say, that it was intonded to confer upon owners of outstanding war- 
rants the right, in addition to their pre-existing right to locate 



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378 Rosenberg v. Bump. [43 Cal. App. 

the warrant* as agents of the state, to present the same as pay- 
ment on applications to purchase lands embraced within the con- 
gressional grant. 

PT] Id. — Effect of 8avino Clause of Act of 1808. — By the saving 
clause of the act of 1868, the legislature intended to preserve to 
the purchasers of warrants issued and sold under the act of 1852 
all the rights acquired by them by virtue of such warrants. 

[8] Id* — Vested Right of Purchases. — The purchasers of school-land 
warrants issued and sold under the statutes of 1852 and 1853 ac- 
quired under Buch purchase a vested right to the amount of land 
specified in the warrants. 

[9] In* — Sals of Warrants— -Contract with State — Nature of. — 
The sale of school-land warrants by the state constituted a contract 
between the state and the purchasers of the warrants, although at 
the time of the sale the lands granted by Congress had not been 
listed to the state. The terms of the warrant were that the pur- 
chaser was entitled to locate the same in behalf of the state of 
California. The warrant constituted a contract of sale of the 
amount of land specified therein and which land was embraced 
within the grant to the state by Congress of five hundred thousand 
acres of land. 

[10] Id. — Bight to Locate Warrants — Power of Legislature to 
Amend Procedure. — While the legislature may amend the procedure 
or change the remedy whereby rights are judicially asserted, and 
such amendment or change may have a retroactive effect, except 
in those cases where the procedure or the remedy as amended or 
changed directly affects and impairs the right, the legislature is 
without the power to take away the right of the purchasers of 
school-land warrants to locate such warrants. 

[11] Id. — Delay in Locating Warrants. — As there was no time limit 
fixed by the statute of 1852 within which the locations were to 
be made, no rights could accrue to the state by reason of the 
delay in locating the warrants, it having been fully paid for the 
amount of land specified therein. 

APPEAL from a judgment of the Superior Court of 
Monterey County. B. V. Sargent, Judge. Reversed. 

The facts are stated in the opinion of the court 

M. W. Mcintosh and Isaac Frohman for Appellants. 

Leon Samuels for Respondent. 

HART, J. — The action was brought in the superior court 
of Monterey County, under sections 3414 and 3415 of the 



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Sept 1919.] Rosenberg v. Bump. 379 

Political Code, to determine the title of certain lands in said 
county. Defendant had judgment, from which plaintiffs 
appeal on the judgment-roll. 

Plaintiffs claim title to the south half of a certain section 13 
and the fractional north half of a certain section 19, while 
the claim of defendant is to said south half of section 13 and 
the fractional northwest quarter and the west half of the 
northeast quarter of said section 19. 

The claim of plaintiffs is based upon the following facts: 
By a certain act of Congress, five hundred thousand acres of 
land were granted to the state of California and, pursuant to 
an act of the legislature, approved May 3, 1852 (Stats. 1852, 
p. 41), land warrants were signed and issued by the Governor 
of the state, countersigned by the controller, deposited in 
the office of the state treasurer and thereafter sold. Between 
the second day of July, 1852, and the first day of October, 
1853, four of said land warrants were issued and sold to 
different purchasers, each for the amount of 160 acres, and 
paid for at the rate of two dollars per acre. On the twentieth 
day of October, 1893, one Henry Jackson, who had by mesne 
assignments become the owner of said four land warrants, 
located the same on the lands claimed by plaintiffs and, on the 
24th of August, 1900, said locations were approved and al- 
lowed by the commissioner of the general land office. Said 
Jackson, on the eighth day of February, 1901, by deed, con- 
veyed said lands to one M. Brandenstein, who died testate on 
the 25th of March, 1906. His will was duly admitted to 
probate and plaintiffs were appointed as executors thereof 
and qualified as such. 

On the seventh day of November, 1911, defendant filed with 
the surveyor-general of the state his application to purchase 
all of the lands claimed by plaintiffs, except the east half 
of the northeast quarter of said section 19. 

There is no denial by the answer of or any dispute in any 
form as to these facts, which are alleged in the complaint, 
quoting from the reply brief as follows: "That on October 
20, 1893, the day on which the locations were made, the lands 
involved were vacant and unappropriated lands of the United 
States and subject to sale and location at the United States 
land office at San Francisco; that they had been surveyed 
by the United States ; that the plats of the survey had been 
approved and certified by the United States Surveyor-general 



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380 Rosenberg v. Bump. [43 Cal. App. 

for the state of California and filed more than thirty days 
prior to October 20, 1893, in said land office; that Jackson* 
who was then the owner of the land warrants, located them on 
said lands conformably to the said survey ; that he made the 
locations by filing with the register of said land office his 
written applications for said lands, specifically describing the 
same in the applications; that the applications were each 
accompanied by the affidavits of Jackson and at least one 
witness that there was no valid adverse claim existing upon 
any of said lands; that he surrendered the warrants to the 
register of the United States land office, who forwarded them 
to the general land office of the United States; that the 
locations were made vith the consent of the register and 
receiver of the United States land office at San Francisco, and 
entered by them on the records of said office ; that on August 
24, 1900, the locations were approved and allowed by the 
commissioner of the general land office; that on January 
23, 1901, the lands were certified and listed to the state by 
the United States as a part of the five hundred thousand 
acre grant to the state; that said certificates and listing of 
said lands u os made under and in pursuance of said locations 
and not otherwise." 

The answer, so far as its denials go, does no more than to 
challenge the allegations of the complaint that Jackson had 
conveyed the lands to Brandenstein, and that the latter, or 
the executors of his will, had any legal or equitable title to 
the lands or were the owners of any portion thereof. Affirma- 
tively, the answer then declares that the act of 1852, under 
the terms of which the warrants in question were issued and 
sold to Jackson or his grantors, was repealed by the act of 
1868, and that, therefore (so the answer concludes), at the 
time the locations were made by Jackson under said war* 
rants "there was no law of said state whatever providing 
for the making of said locations," and that the locations were 
consequently null and void and conveyed no title or right 
or estate whatever to said Henry Jackson. 

The court found that Brandenstein and his executors, ever 
since the date of the deed from Henry Jackson to the former, 
had been in the possession of said lands ; that it is not true 
that M. Brandenstein and his executors have ever at any time 
been the owners of said lands or any part thereof; that, on 
the 28th of March, 1868 (Stats. 1867-68, p. 507), the legi*- 



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Sept. 1919.] Bosknbem v. Bump. 381 

lature of the state of California repealed the act of May 3, 
1852, and "that at the time the said locations made by said 
Jackson were made, there was no law of said state whatever 
providing for the making of said locations, and said locations 
were, at the time the same were made, ever since have been, 
and now are, null and void, and conveyed no right or title 
or estate whatever to said Henry Jackson, and that said 
Henry Jackson did not at the time said locations were made, 
acquire, hold, or have, nor did he ever acquire, hold, have, or 
own any right, title, interest, or estate whatsoever either legal 
or equitable in or to said listed lands or any part of said listed 
lands." It is then found that, on the 7th of February, 1911, 
when defendant filed his application to purchase said lands, 
"all of said lands were vacant public lands belonging to the 
state of California, and subject to sale under the laws of the 
state," and the findings detail the steps taken by defendant 
in making his filing. 

The judgment, which followed the findings, decreed that 
the surveyor-general approve each of the applications of 
defendant and, upon further compliance by defendant with 
the laws relating to the sale of lands, that there be issued 
to defendant such further evidence of title as is provided 
by law. 

The whole controversy presented by this appeal hinges, it 
will be observed, on the solution of the question whether the 
appellants or the grantors of their testator lost their rights 
by virtue of the asserted repeal of the statute of 1852 by 
the later legislation respecting the disposal of the lands em- 
braced within the five hundred thousand acre grant by Con- 
gress. The real point of divergence between the parties is 
upon the question whether the locations of the Jackson war- 
rants were legally made. 

The statue of 1852 was entitled, "An Act to provide for 
the disposal of the 500,000 acres of land granted to the State 
by Act of Congress* ' (Stats. 1852, p. 41), and the first section 
thereof contained the following provision: 

"Sec. 1. The Governor of this State is hereby authorized 
to issue land warrants for not less than 160 and not more 
than 320 acres in one warrant, to the amount of 500,000 acres, 
which warrants when so signed and issued by the Governor, 
shall be countersigned by the Controller, and by him be do* 



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382 Rosenberg v. Bump. [43 Cal. App. 

posited in the office of the Treasurer of State for sale, charg- 
ing the same to account of the Treasurer/ • 

Section 2 provided for the sale of warrants by the treasurer 
at the rate of two dollars per acre. Sections 3 and 14 of 
said act read as follows : 

"Sec. 3. The parties purchasing such warrants and their 
assigns are hereby authorized in behalf of this State to locate 
the same upon any vacant and unappropriated lands belong- 
ing to the United States within the State of California sub- 
ject to such location, but no such location shall be made unless 
it be made in conformity to the Law of Congress, which law 
provides that not less than 320 acres of land shall be granted 
in a body." 

"See. 14. So soon as the lands which may be located under 
and by virtue of the provisions of this act shall have been 
surveyed by the United States, and such locations are made 
to conform thereto, the Governor of this State shall cause 
patents to be issued in such manner and form as the Legis- 
lature may hereafter direct." 

A review and an analysis of the subsequent legislation with 
respect to the disposal of the five hundred thousand acre 
grant are correctly presented in the opening brief of the ap- 
pellants as follows: 

"On April 30, 1857, the legislature passed an act in refer- 
ence to the location of warrants issued under the act of 1852, 
and the issuance of patents for the lands located thereunder 
entitled, 'An Act authorizing the location and patenting of 
school lands' (Stats. 1857, p. 356), section 1 of which pro- 
vides: 

" 'Sec. 1. In all cases in which the lands of the 
United States have been duly surveyed by the general gov- 
ernment, and the plat thereof shall have been on file thirty 
days in the land office of the proper district, it shall be law- 
ful for the owner or owners of school land warrants, issued 
under the provisions of the act of this State, passed May 
3d, 1852, in relation to the disposal of the 500,000 acres 
granted by the act of Congress of 4th September, 1841, to 
locate the same according to the legal subdivisions of the 
public lands, by filing a written application by such owner 
or owners, specifically describing the tract so located, with the 
Register uf the United States Land Office for the proper dis- 
trict, accompanied by an affidavit of the party or parties 



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Sept. 1919.] Rosenberg v. Bump. 383 

applicant, and of one or more witnesses, that there is no 
valid claim existing upon the land so desired, adverse to the 
claim of the person making such application for location.' 

"On the 10th of April, 1858, the legislature passed an act 
creating a 'State Land Board for the State of California,' 
and designating its chief officer as 'the Register of the State 
Land Office,' and constituting the surveyor-general ex-officio 
register until otherwise provided. (Stats. 1858, p. 127.) 
This act prescribes with much particularity the duties of the 
register, and among them is that of keeping the record of 
all lands selected by the agents of the state of California 
as a portion of the five hundred thousand acre grant, showing 
the number of acres, the description of the land, the name 
of the original purchaser, the selecting or locating agent, the 
price per acre, and the numbers of school warrants under 
which the same are located. 

"On the 23d of April, 1858, the legislature passed an act 
providing for the location and sale of the unsold portion 
of the five hundred thousand acres, and the seventy-two 
sections additional granted by the United States for the 
use of a seminary of learning. (Stats. 1858, p. 248.) By 
this act the Governor is authorized to appoint and commission 
in each of the United States land districts of the state, a 
locating agent, whose duty it is to locate unsold school lands 
and the seminary lands referred to, in the manner provided 
by law. The agents are required to proceed and obtain the 
consent of such settlers who may chance to avail themselves 
of the benefits of the act, and the request of others who are 
not settlers, and who may wish to purchase lands under its 
provisions, such consent or request to be accompanied by the 
affidavit of the parties and of two disinterested persons that 
there is no valid claim existing on the land adverse to theirs, 
and when such consent or request is obtained, under such 
forms as the Governor may prescribe, to apply to the register 
and receiver of their respective land offices to permit the 
location to be made in the name of the state, as a part of the 
grant above designated, and if permitted, to make the location 
in conformity with the laws and regulations of the United 
States. 

"The twelfth section repeals the act of May 3, 1852, but 
declares that school land warrants then in circulation shall 



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384 Rosenberg v. Bump. [43 Gal. App. 

be received for school lands and be located as then provided 
by law. 

"On the 16th of April, 1859, the legislature passed an act 
for the issuance of patents for lands located under school 
land warrants, and for lands purchased under the act of April 
23, 1858. (Stats. 1859, p. 338.) This act provides that in 
all cases where school land warrants have been issued under 
the act of May 3, 1852, and the same have been, or may be, 
located upon any of the public lands within this state subject 
to such location, and in accordance with the provisions of 
that act, or with the provisions of the act of April 30, 1857, 
or where parties have purchased under the act of April 23, 
1858, and obtained a certificate of purchase from the registrar 
of the state land office, the holder of such warrant, or cer- 
tificate of purchase, shall be entitled to receive a patent from 
the state for the lands thus located or purchased. The pro- 
cedure for obtaining a patent is outlined in the act, and sec- 
tion 7 thereof repeals all acts, and parts of acts, conflicting 
with the provisions. 

"Thereafter the legislature passed an act providing for the 
issuance of duplicate school land warrants in lieu of those 
lost, and on April 2, 1866, an act was adopted providing for 
the issuance by the register of the state land office of his 
certificate of the proper location of such warrant. (Stats. 
1866, p. 854.) 

"These acts were followed by the act of March 28, 1868, 
repealing all of the foregoing acts, providing a new and dif- 
ferent procedure for obtaining patents to the unlocated por- 
tions of the five hundred thousand acres set apart as school 
land; providing further (sec. 54) that warrants issued in 
pursuance of the act to provide for the disposal of the five 
hundred thousand acres of land granted to the state by 
act of Congress shall be taken in payment of any part of 
said grant, provided that said warrant shall be paid directly 
to the register of the state land office, and shall be by him 
canceled before a certificate of purchase shall issue for the 
said lands; and also providing in section 71 of said act that 
all the various acts heretofore referred to shall be repealed, 
but that the provisions of said act 'shall not in any manner 
affect any legal or equitable claims, now existing on any of 
the lands hereinbefore described, in favor of any claimant 
under the State, nor affect any suit or proceeding which is 



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Sept 1919.] Rosenberg v. Bump. 385 

now pending respecting the same, arising out of any claims 
now made ; but the courts of the state may proceed and ad- 
judicate upon said rights, and patents or other evidences of 
title may issue for the same to the parties entitled thereto, 
under any existing laws of this state, the provisions of this 
act to the contrary notwithstanding.' (Stats. 1867-68, p. 
507.) 

"The act of March 28, 1868, in so far as the same relates 
to school lands, has since been amended in some particulars, 
but its main features were subsequently embodied in the 
Political Code of California, in sections 3494 to 3503, in- 
clusive." 

The contention of the appellants is that their rights were 
in no way impaired by the legislation prescribing the manner 
of the disposal by the state of the five hundred thousand acres 
of land granted to it by Congress following the enactment of 
the statute of 1852, but that their rights were preserved by 
said subsequent legislation and particularly by the saving 
clause contained in the statute of 1868, above quoted herein. 

The specific argument of counsel for the respondent is that 
the locations made in 1893 could not have been valid locations, 
if attempted to be made under the act of 1852, for the reason 
that that act was repealed by the act of 1857, which provided 
"an entirely new procedure for the location of such land 
warrants"; that since, however, the appellants claim that, in 
making the locations, they followed the plan outlined by the 
statute of 1857 and not that prescribed by the statute of 
1852, the inevitable result is that thus they "abandoned their 
claim to any protection under the act of 1852, so far as the 
same affected the procedure for locating lands under warrants 
issued under said act of 1852, and recognizing the right of 
the legislature to repeal said procedure or to enact any other 
provision in relation to such land warrants"; that the act of 
March 28, 1868, which expressly repealed all prior acts re- 
lating to this subject, "provided a new and different pro- 
cedure for obtaining patents to the unlocated portion of the 
five hundred thousand acres granted to the state," and, there- 
fore, to make the locations by Jackson valid, he should have 
followed the procedure laid down by said act of 1868. 

[1] Replying to the above argument, we say, first, that 
the act of 1857 did not repeal the act of 1852 either expressly 
or necessarily from the general language thereof. To the 

41 OaL App — 25 



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386 Rosenberg v. Bump. [43 Cal. App. 

contrary, it seems plain to us that the act of 1857 made cer- 
tain portions of the act of 1852 a part of its own provisions, 
or, if it strictly cannot be said that this is true, it certainly 
and unquestionably recognized by express language the valid- 
ity of the warrants issued under the prior act, the sale 
of such warrants and the rights acquired by purchasers of 
the same. It will be noted that the initial section of the act 
of 1857 provides that, when the lands granted to the state 
shall have been surveyed by the general government, and the 
plat thereof shall have been on file for thirty days in the 
land office of the district, it shall be lawful for the owner 
or owners of school land warrants, issued under the provisions 
of the act of this state passed May 3, 1852, to locate the 
same according to the legal subdivisions of the public lands, 
"by filing a written application by such owner or owners,' ' 
etc., with the register of the United States land office "for 
the proper district," etc. [2] It is as obvious as any propo- 
sition can be that, far from intending to repeal the act of 
1852 by the act of 1857, the legislature by the latter act 
merely intended to regulate the matter of locating warrants 
issued by the state and acquired by purchasers under the 
act of 1852, so that such locations would conform to the 
requirements of the United States statutes relative thereto. In 
other words, at the time of the passage of the act of 1852, none 
of the government lands in this state subject to location under 
the congressional grant of five hundred thousand acres had 
been surveyed, but the legislature assumed, nevertheless, that 
it could then dispose of the granted land according to the 
plan established by the act of 1852. (Toland v. Mcmdell, 38 
Cal. 30; McNee v. Donahue, 142 U. S. 587, [35 L. Ed. 1122, 
12 Sup. Ct. Rep. 211, see, also, Rose's U. S. Notes].) The 
earlier California cases (see, for instance, Doll v. Meador, 
16 Cal. 315), held that the method of selecting and locating 
the unsurveyed granted lands as prescribed by the statute of 
1852 was not inconsistent or in conflict with the act of Con- 
gress, but later on a different view was taken of that propo- 
sition, the supreme court finally declaring and deciding that 
the granted lands could not be selected or located until they 
were surveyed by the United States, and that if other rights 
to the lands should be acquired by pre-emption, homestead, 
etc., before such survey, the pre-emptioner or homesteader 
would be entitled to the land. It was further held that in a 



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Sept. 1919.] Rosenberg v. Bump. 387 

case where two land warrant selections or locations were made 
on the same land, one prior to and the other subsequent to 
the survey, the later location would prevail. (See Terry v. 
Megerle, 24 Cal. 609, 624, [85 Am. Dec. 84] ; Orogan v. 
Knight, 27 Cal. 515; Eastings v. Devlin, 40 Cal. 358; People 
v. Jackson, 62 Cal. 548.) It was because of the situation so 
arising that the legislature of 1857 passed the act of that 
year, the evident purpose thereof being, as stated, among 
other things, to preserve the legal integrity of the warrants 
issued and sold under the act of 1852, said act of 1857 pro- 
viding, as seen, a method for locating said warrants on sur- 
veyed lands, as required by the act of Congress. But, as 
further showing not only an intention but a determination 
on the part of the state to protect the rights of purchasers 
of warrants issued under the act of 1852, and whose validity 
is expressly recognized by the act of 1857 and intervening 
■ubsequent acts, we may refer to the fact that, in 1866, to 
correct the difficulties the state found itself up against prior 
thereto, created by its legislation relative to the disposal 
of the granted lands, resulting in legally improper selections, 
the legislature memorialized Congress to pass what in effect 
might be termed a corrective act, the effect of which was 
to confirm to the state ail selections of the granted lands 
made by the state, in good faith, and sold by the state in 
good faith, and the Congress thereupon passed an act, on 
July 23, 1866, confirming, not all the lands which had been 
selected by the state, but only such lands as had been 
selected and sold to purchasers, in good faith, under the laws 
of the state. This act of Congress "had the effect," said 
the supreme court, in Toland v. Mandett, 38 Cal. 30, 43, "to 
legalize the possession of locators upon unsurveyed lands 
under the state, until they should have opportunity to present 
their claims for determination by the officers of the United 
States, as therein provided. Thereafter, their claims ceased 
to be within the rule of Grogan v. Knight, 27 Cal. 515. for 
they were, by the act, admitted to all the rights and privileges 
of pre-emptors upon unsurveyed lands, under the laws of the 
United States, which are comprised in the right of present 
possession, coupled with the right to purchase the title when- 
ever the time at which a purchase can be effected shall have 
arrived.' ' 



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388 Bosbnbsbg v. Bump. [43 Cal. App. 

The above decision was followed by the case of Roberts 
v. Columbet, 63 Cal. 22, where the appellant purchased from 
the state a school land warrant issued under the statute of 
1852, and located the same in 1853, prior to the time that the 
land had been by the United States surveyed and listed 
to the state. The claim was that the location was invalid, 
but the supreme court held that the purchase by the appel- 
lant was in good faith and came within the confirmatory act 
of Congress, above referred to. The court, inter alia, said: 
"Since the passage of the act [of Congress] of July 23, 1866, 
we think that the position of the appellant has been essen- 
tially the same as it would have been if the land upon which 
he located his warrant had been, before the date of such 
location, surveyed by the United States." 

From the foregoing considerations, it is entirely clear that 
the legislature did not intend by the act of 1857 to repeal 
the act of 1852, in so far as were concerned the rights ac- 
quired by purchasers of warrants issued by authority of the 
last-named act, assuming for the sake of the present discus- 
sion that the legislature possessed the power to abrogate the 
rights so acquired by a repeal of the statute, or at all. Indeed, 
it is clearly manifest, from an examination of all the legis- 
lation covering the subject of the disposal of the granted lands 
in question, from the statute of 1S52 down to and including 
the act of 1868, the legislature on all occasions intended to and 
did take special pains to preserve and protect every vital right 
acquired by and invested in purchasers of school-land war- 
rants under the statute of 1852. [3] The act of April 23, 
1858 (Stats. 1858, p. 248), did expressly repeal, among others, 
the statute of 1852, but it contained the provision that "all 
school-land warrants, now in circulation, shall be received for 
school lands, and may be located as now provided by law." 
(Italics ours.) The meaning of this language, it is clear, is 
that school-land warrants in circulation at the time of the 
passage of the act of 1858 may be located as provided by 
law existing at the time of the passage of said act; or as 
provided by the law authorizing the issuing and sale of such 
warrants. And so, in every act passed by the legislature 
between the time of the passage of the act of 1858 and the 
time of the passage of the act of 18G8, we find that the rights 
of the purchasers of these warrants were expressly recognized 
and preserved. It will, therefore, not be necessary to examine 



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Sept 1919.] Rosenberg v. Bump. 389 

herein in detail the several acts passed after the act of 1858, 
except the act of 1868. The important provisions of the 
several acts referred to are given above and plainly speak 
for themselves, and sustain the construction which, in a gen- 
eral way, we here ascribe to them. 

The act of 1868 involved a general revision of the prior 
laws relating to school lands granted and belonging to the 
state and also an elaborate scheme for the disposal by the 
state of such lands. We shall not, nor is it necessary to the 
decision herein to do so, examine analytically the numerous 
provisions of that act. It is deemed sufficient to point out 
that it provides that the surveyor-general, who is by the act 
constituted the agent for the state for that purpose, shall 
locate the unsold portion of the five hundred thousand acre 
grant (sec. 11) ; that warrants issued in pursuance of the act 
of 1852 "shall be taken in payment of any part of the said 
grant/' subject to the condition that said warrants shall be 
paid directly to the register of the state land office and shall 
be canceled by him before a certificate of purchase shall issue 
for the said lands (sec. 54) ; that there shall be issued dupli- 
cate warrants in case of the loss or destruction of the origi- 
nals, the duplicate to be of the same validity and have the 
same force and effect as the original (sec. 59). The act, as 
shown above, contains the clause saving pre-existing rights 
acquired in the lands. 

In Bludworih v. Lake, 33 Cal. 255, decided before the pass- 
age of the act of 1868, the supreme court said, quoting the 
syllabus: "When the state issues her land warrant and re- 
ceives the sum of money required to be paid therefor, she 
thereby sells the amount of land specified in the warrant out 
of the five hundred thousand acres granted by the act of 
Congress, and authorizes the holder, as her agent, to locate 
the same upon any vacant lands belonging to the United 
States subject to such location. When this location is made, 
the locator thenceforth becomes the owner of the entire bene- 
ficial interest in the particular tract of land selected, and 
until the issuing of the patent the state holds the legal title 
in trust for the locator who has become the purchaser." This 
language can only mean that, while the particular tract or 
parcel of land out of the five hundred thousand acre grant so 
sold may not be known either to the state or the purchaser, at 
the time of the sale of the warrant, yet the amount of land 



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390 Rosenberg v. Bump. [43 Cal. App. 

specified in the warrant is nevertheless sold to the purchaser 
by the state, and it remains with the purchaser to locate the 
warrant and thus acquire his right to a patent for the land 
so selected. 

In view of the above-stated conclusion of the supreme court 
as to the legal effect of the sale of land warrants by the 
state issued by authority of the statute of 1852 or under any 
of the subsequent state legislation, of which conclusion the 
legislative branch of the state government is to be presumed 
to have had knowledge, particularly since the legislature had 
been for a number of prior years wrestling with the problem 
of a proper plan for the disposing of the government lands 
within its borders subject to location under state laws, it is 
(as counsel for appellants aptly suggest) inconceivable that 
the legislature would attempt, even if it had the rightful 
power to do so, to deprive holders of school-land warrants 
of the rights acquired and which they were authorized to 
exercise under prior statutes. But that the legislature in- 
tended to make no such attempt by the act of 1868, is plainly 
manifest, in our opinion, from the language of the several 
provisions of said act to which we have above referred. For 
instance, the act provides, as we have shown, that the sur- 
veyor-general, as ex-officio register of the state land office, 
shall act as the agent of the state for the location of the 
"unsold portion* ' — not the urdocated portion — of the five 
hundred thousand acre grant. By this language, the legis- 
lature expressly recognized and incorporated into the act of 
1868 the doctrine laid down in Bludworth v. Ldke y viz., that 
"when the state issues her land warrants and receives the 
sum of money required to be paid therefor, she thereby sells 
the amount of land specified in the warrant out of the five 
hundred thousand acres granted by the act of Congress." 
[4] Thus it is clear to our minds that the legislature did 
not intend, as counsel for respondent contend is true, by the 
act of 1868, to vest solely and exclusively in the surveyor- 
general the right to make school-land warrant selections; for 
if, as the supreme court declared to be true, the sale* of the war- 
rant constituted a sale by the state of the number of acres of 
land specified in the warrant, then it was a sale of land so speci- 
fied for all time and unconditionally ; and there was, therefore, 
nothing remaining for the purchaser to do but to locate the 
number of acres his warrant called for. Having bought and 



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Sept 1919.] Rosenberg v. Bump. 391 

paid for the land, there was no reason why his warrant should 
be presented to the surveyor-general as in payment for some- 
thing he had already paid for. This view is fortified by the 
consideration that section 59 of the act of 1868, as we have 
seen, in authorizing the issuance of duplicate land warrants, 
in cases where the originals had been lost or destroyed, pro- 
vides: "Any person making application for a duplicate 
school-land warrant, in lieu of one alleged to have been lost 
or destroyed, shall make satisfactory proof, by affidavit of 
himself and others, to the register of the state land office, 
that the party applying therefor is a bona fide owner of such 
warrant, that the same has not been located, and of the facts 
establishing the loss or destruction of the same, and shall file 
with the register of the state land office a good and sufficient 
bond, in form joint and several, with two or more sureties, to 
be approved by said register, payable to the state of California, 
in double the value of said school-land warrant, conditioned 
that the said warrant alleged to have been lost or destroyed 
shall not be presented for location.' * It is further provided 
that the duplicate warrant shall be of the same validity, 
force, and effect as the original. The language, "shall not be 
presented for location," implies that the legislature recog- 
nized all the rights acquired by purchasers of land warrants 
under previous statutes — not only the right to the number 
of acres of land designated in such warrants, but to locate 
the warrants in the manner prescribed by the statute by 
whose authority they were issued and sold. Again, if the 
language referred to is not sufficiently clear and explicit in 
disclosing the intention to preserve to purchasers of such 
warrants any right acquired under the warrants as indicated 
above, then it seems to us that that intention is made abso- 
lutely clear and unquestionable by the provision requiring 
the person applying for the duplicate warrant to furnish a 
bond conditioned that the lost or destroyed warrant shall not 
be presented for location. "If," as counsel for the appel- 
lants well inquire, "the legislature had intended, as claimed, 
to cut off the right of anyone other than the surveyor-general 
to make school-land warrant locations, why did it exact a 
bond that the warrant represented to be lost or destroyed 
would not be presented for location! What need was there 
for this requirement! Manifestly, no such bond would have 
been required if the legislature had lawfully terminated the 



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392 Rosenberg v. Bump. [43 CaL App. 

right to use the warrant for any purpose other than as pay- 
ment on an application to purchase land forming part of the 
five hundred thousand acre grant, and we are told by re- 
spondent's counsel that it did lawfully terminate all other 
rights. The state needed no protection against an unauthor- 
ized use of a warrant. It could snap its fingers at that and 
entirely disregard it. Viewed in this way the exaction of 
the bond was a useless and vain thing. But we must not 
assume that the legislature had an idle or senseless purpose 
in making this enactment; that it required a bond against 
doing an act which it said could not be done and which, if 
done, would have no validity or effect anyway." To our 
minds, the idea was to provide against the contingency of 
the loss or destruction of the written evidence — the land war- 
rant—of rights acquired from the state by a purchaser of 
che warrant, by substituting a duplicate for the lost or de- 
stroyed warrant having "the same validity and the same 
force and effect as the original" — that is to say, a duplicate 
warrant preserving to the purchaser of the original himself 
or his assigns to locate such warrant on the number of acres 
of land sold to him by the state and specified in the warrant. 
Or, as the same proposition was stated in Stuart v. Haight, 
39 Cal. 87, 89: 

"The design evidently had in view in the enactment of the 
statute was to provide for the relief of those who had pur- 
chased state land warrants, which, in some way, had become 
unavailable to them for the purposes for which they had been 
issued by the state. The intention was to relieve from loss 
the holder of the warrant which had been issued by the state 
and acquired by the purchaser in the expectation of being 
able to locate it on the lands which had been granted to her." 

[5] Summarizing the situation, then, it is: That the act 
of 1868 expressly limits the right of the surveyor-general to 
locate lands comprised within the grant by Congress to the 
unsold portion thereof ; that, by the same act, duplicate war- 
rants in lieu of those lost or destroyed, having the same 
validity, the same force and the same effect or (we may add) 
scope, are authorized to be issued upon sufficient affidavits 
and the filing of a bond that the originals will not be pre- 
sented for location; that the effect of selling the warrants 
was to sell to the purchasers of the warrants the amount of 
lands specified in the warrants sold. From all these consid- 



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Sept 1919.] Rosenberg v. Bump. 



erntions, we hold that it could not have been the intent of 
the legislature by the act of 1868 to deprive owners of pre- 
existing land warrants of the right themselves to locate said 
warrants as agents of the state. 

[6] It is true that the act of 1868 provides that outstand- 
ing warrants shall be taken in payment of any part of the 
grant, but, considering that provision in connection with the 
other provisions of the said act which we have already con- 
sidered and construed, we are led to the conclusion that it 
was intended only to be permissive — that is to say, that it 
was intended to confer upon owners of outstanding warrants 
the right, in addition to their pre-existing right to locate 
the warrants as agents of the state, to present the same as 
payment on applications to purchase lands embraced within 
the congressional grant. As we construe the provision, by 
comparison with other provisions of the act, it means this: 
That owners of such warrants may, in their discretion, pre- 
sent the same as payment on applications to purchase the 
lands, in which case the surveyor-general shall or must re- 
ceive the same as such payment. The object of the provision 
referred to probably was, as counsel for the appellants sug- 
gest, not to destroy the right of location in the owners of 
the warrants, ''but to hasten the redemption or cancellation 
of the outstanding warrants by allowing them to be used as 
cash," thus, as stated, giving a further or additional right to 
the owners of the warrants. 

[7] But, if there may be any question as to the correct- 
ness of the foregoing views regarding the matter in hand, a 
consideration of the saving clause of the act of 1868 will 
readily dissipate any doubt as to the proposition that, by said 
Baving clause, the legislature intended to preserve to the pur- 
chasers of warrants issued and sold under the act of 1852 all 
the rights acquired by them by virtue of such warrants. This 
clause, it will be remembered, follows language in section 71 
of the act repealing some twenty-seven statutes relating to 
the public lands of the state and regulating the disposal 
thereof, and declares that "the provisions of this act shall not 
in any manner affect any legal or equitable claims, now ex- 
isting on any of the lands hereinbefore described, in favor of 
any claimant under the state," etc. 

The contention of the respondent is, as to said clause, that 
it refers only to those rights under school-land warrants 



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394 Rosenberg v. Bump. [43 Cal. App. 

which are vested — "that is, rights that arise out of the actual 
location of the warrants. In other words," further explains 
respondent, "the saving clause in the repealing words of the 
act of 1868 referred to accrued rights under located warrants 
and not to rights arising out of warrants still in circulation." 
[8] But the first reply to this contention is that purchasers 
of school-land warrants issued and sold under the statutes of 
1852 and 1853 acquired under such purchase vested rights 
(Bludworth v. Lake, supra) — that is, they thus acquired the 
indefeasible right to locate the warrants upon lands within 
the five hundred thousand acre grant. Indeed, the proposi- 
tion may even be put in stronger form — they acquired a 
vested right to the amount of land specified in the warrants. 
The second reply to the construction respondent gives said 
clause is that, should it be sustained, it would be inconsistent 
with the provision in the statute that duplicate warrants 
should have the same validity, force, and effect as inhered in 
the originals. We have already shown that, while the legis- 
lature, prior to the enactment of the statute of 1868, had 
repealed the general procedure in the statute of 1852 for the 
disposal of the granted lands, it expressly preserved to pur- 
chasers of warrants issued under the latter act all the vital 
rights acquired by them under such purchases. (See said stat- 
utes, above cited and considered.) In adding to the statute 
of 1868 the saving clause under consideration, the legislature 
is to be presumed to have had in mind and considered the 
act of previous legislatures in preserving to purchasers of 
warrants under the statute of 1852 all the rights vested in 
them by and under the warrants sold by the state ; and, there- 
fore, reading, in view of that consideration, the language of 
the clause, "that the provisions of this act shall not in any 
manner affect any legal or equitable claims, now existing on 
any of the lands hereinbefore described, in favor of any 
claimant under the state," the conclusion would seem irre- 
sistibly to follow that the intent at the bottom of said clause 
was to preserve to such purchasers every right acquired by 
them by reason of the purchase — that is to say, not only the 
right to the amount of lands specified in the warrants, but 
the further right given by the statute under which they were 
issued and sold themselves to locate such warrants as agents 
of the state. To give the clause referred to any other con- 
struction would be to deny to the purchasers of such warrants 



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Sept 1919.] Rosenberg v. Bump. 895 

a substantial ri B ht and one which, it can well be said, entered 
vitally into the consideration upon which they purchased the 
warrants. 

The specific purpose of a saving clause in a statute is to 
preserve pre-existing rights. "It is generally employed," 
says Mr. Sutherland in his treatise on Statutory Construc- 
tion, section 225, "to restrict repealing acts; to continue re- 
pealed acts in force as to existing powers, inchoate rights, 
penalties incurred and pending proceedings, dependent on 
the repealed statute.'* (See, also, sec. 167 of the same work; 
Black on Interpretation of Laws, p. 270.) 

The statute of 1852 did not limit the time within which the 
warrants issued and sold by its authority were to be used in 
the manner prescribed by said act. The act of 1868 made 
radical changes in the system for the disposal of state lands 
acquired by grant from the general government through its 
Congress, and the legislature, by the saving clause of the act 
of 1868, certainly intended to say to purchasers of land war- 
rants that they were to be permitted to utilize their warrants 
in the manner and according to the plan or procedure estab- 
lished by the law from which they secured their rights to 
portions of the grant made by Congress to the state. This 
conclusion is not only reasonable, but eminently just. 

Thus we think we have shown that the legislature, in the 
place of attempting to repeal by the act of 1868 the previous 
statutes relating to the public lands of the state so as to 
destroy the right of purchasers of land warrants issued under 
the authority of the previous acts to locate, as agents of the 
state, such warrants, intended by said act to preserve said 
right to such purchasers, and that thereby it did do so. But 
it is to be further suggested that, even if such attempt were 
made by the legislature, it would be wholly futile. [9] The 
sale of the warrants by the state constituted a contract be- 
tween the state and the purchasers of the warrants. This 
is true, although at the time of the sale the lands granted 
by Congress had not been listed to the state. The terms of 
the warrant were that the purchaser was entitled to locate the 
same in behalf of the state of California. The warrant con- 
stituted a contract of sale of the amount of land specified 
therein and which land was embraced within the grant to the 
state by Congress of five hundred thousand acres of land 
(Bludworth v. Lake, supra.) 



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396 Rosenberg v. Bump. [48 Cal. App. 

[10] Whether the purchaser had ever exercised his right 
tinder the contract is a matter of no consequence. He might 
have delayed locating the warrant until the entire congres- 
sional grant had been exhausted, and thus have lost his rights 
under his warrants, but this consideration would render the 
sale and the purchase none the less a contract of sale of the 
amount of land specified in the warrant between him and the 
state. As heretofore herein declared, the right thus given 
the purchaser to locate the warrant in behalf of the state, or 
as the state's agent, constituted a vital element or covenant 
of the contract of sale. We do not say that the purchaser, 
after the passage of the act of 1868, was himself compelled 
to locate the warrant to complete his right to a patent, but 
we do say that he was vested with the right to do so or 
to take that course to obtain the actual benefits of his con- 
tract. The legislature was, therefore, without the power to 
take that right from the purchaser. To do so would be im- 
pairing the obligation of a contract, a power which is ex- 
pressly denied to the state by the tenth section of article I 
of the federal constitution. The legislature may amend the 
procedure or change the remedy whereby rights are judicially 
asserted, and such amendment or change may have a retroac- 
tive effect, except in those cases where the procedure or the 
remedy as amended or changed directly affects and impairs 
the right. (See James v. Oakland Traction Co., 10 Cal. App. 
785, 792, [103 Pac. 1082], and authorities therein cited.) As 
shown, the act of 1868, as construed by respondent, although 
it may be regarded, as all the previous statutes might have 
been, as involving largely a procedural scheme for acquiring 
ownership of or title to lands comprised within the grant 
from Congress, would result in divesting purchasers of land 
warrants under previous legislative acts of the vested right 
to locate their warrants in behalf of the state. 

The cases cited by respondent upon the proposition under 
consideration are not in point. The case of Campbell v. 
Wade, 132 U. S. 34, [33 L. Ed. 240, 10 Sup. Ct. Rep. 9, see, 
also, Rose's IT. S. Notes], so cited, was where, under a Texas 
statute, the sale of a portion of the vacant lands of that state, 
lying within certain counties, was authorized, upon a survey of 
any of the said lands by the person desiring to purchase the 
same and upon the payment into the state treasury of the 
purchase money therefor, when it became the duty of the corn- 



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Sept 1919.] Rosenberg v. Bump. 397 

missioner of the general land office, upon the presentation to 
it of the receipt for said purchase money, to issue to the 
purchaser a patent for the land. The proposed purchaser 
applied to the surveyor of the county to have the lands ap- 
plied for surveyed, the applicant paying the required fees for 
the filing of the application ; but no survey was ever made, and 
before the expiration of the time w