ty injured has an ample remedy by action, and therefore a mandamus to compel such transfer will not lie." The Supreme Court of Nevada in the case of State of Nevada ex rel. A. B. Elliott, Relator, v. Biaggio Guerrero et al., Respondents, 12 Nev. 107, in an action similar to this, held: "We are of the opinion that mandamus is not the proper remedy, for the reason that relator has a plain, speedy, and adequate remedy at law by an action against the corporation for the value of the stock claimed." From an examination of the authorities as to when mandamus will lie to compel the issuance and delivery of stock of a corporation, I am of the opinion that it will never lie unless the stock sought to be recovered has some pecuniary or special value peculiar in itself and of a different value from any like number of shares sought to be recovered, or unless, where shares of stock are detained and the control of some corporation is at issue, and by the securing of the same the party applying for a writ of mandate would obtain control, and in all such exceptional cases it must affirmatively appear from the petition that the relator has a clear, legal right to the possession of the same, and that he has no plain, speedy, and adequate complete remedy at law. The present case does not disclose any such state of circumstances existing as to warrant this court in granting relator's petition for a peremptory writ of mandate; and said petition is dismissed.

TALBOT, C. J., and NORCROSS, J., con

cur.

(7: Cal. App. 237)

MEYERHOLTZ v. PAXTON et al. (Civ. 404.) (Court of Appeal, First District, California. Dec. 26, 1907.)

1. PLEDGES-ENFORCEMENT ADMISSIBILITY OF EVIDENCE-AUTHORITY OF PLEDGor.

In an action on defendant's note, and to foreclose a lien on P.'s stock pledged for its payment, evidence that defendant executed the note as the agent of P. is admissible to show that defendant had authority as P.'s agent to pledge the stock, although it tends to show that the note was made for the benefit of P., whose name does not appear in the note.

2. APPEAL-HARMLESS ERROR-AMENDMENT TO

PLEADING.

Where an action brought on a note and to foreclose a lien on stock pledged for its payment is brought against the maker of the note and the executors of the estate of the person owning the stock, and an amended complaint waives recourse against any property of the estate excepting the stock, failure to amend the prayer and other portions of the complaint in conflict with the waiver is harmless, the case being tried without reference to the parts of the complaint in conflict with the waiver.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4106-4109.] Appeal from Superior Court, Sonoma County; Albert G. Burnett, Judge.

Action by Henry Meyerholtz against B. W. Paxton and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Bishop, Wheeler & Hoefler (Wm. Rix, of counsel), for appellants. F. A. Meyer, for respondent.

KERRIGAN, J. This is an action to foreclose a lien on certain personal property, given to secure the payment of a promissory note. The note in suit was the last of several renewal notes given the plaintiff for a loan which was made in the year 1895. It was, dated January 1, 1902, and was drawn in favor of plaintiff, and signed by the defendant B. W. Paxton (a son of the deceased) in his own name. In addition to these facts the complaint also alleges that, at the time of making the note as security for the payment thereof, a certificate for 100 shares of stock in the Santa Rosa Bank, standing in the name of H. H. Paxton, was delivered to plaintiff, by B. W. Paxton, after making the following indorsement on the back thereof: "H. H. Paxton by B. W. Paxton, her attorney in fact." The complaint further alleges that in signing the note in his own name, and in hypothecating the stock, he was acting for and on behalf of H. H. Paxton, the deceased, pursuant to a power of attorney, authorizing him to borrow money in such sums and on such terms as might seem to him best, and to pledge therefor any of the property of said H. H. Paxton. A ratification is also alleged as follows: That said H. H. Paxton was acquainted with the making, execution, and delivery of said note and the pledging of said stock, and she directed and confirmed all the transactions aforesaid; that they were made with her consent and at her request, and for her sole use and benefit. The original complaint stated a cause of action in personam against the executors, and also sought a decree directing a sale of the stock alleged therein to have been pledged as security for the note. During the course of the trial the plaintiff filed an amendment to his amended complaint, waiving all against the property of the estate except the 100 shares of stock of the Santa Rosa Bank, on which he sought a foreclosure of his alleged lien. The court found specifically that all the allegations of the complaint were true. As conclusions of law the court found that plaintiff was entitled to judgment against B. W. Paxton for the amount due on said note, and for a lien upon said 100 shares of stock, and gave judgment accordingly. The court further directed that said lien be foreclosed, and the stock sold. A motion was made for a new trial by C. E. Paxton, one of the executors of the last will and testament of H. H. Paxton. The motion was denied, from which order this appeal is prosecuted.

recourse

The point most relied upon by appellants is that the court erred in admitting, over the objection and exception of appellants, evidence which tended to show that B. W. Paxton executed the note as the agent of H. H. Paxton. In support of this contention many cases are cited, to the effect that, as the

name of H. H. Paxton does not appear on the face of the note, evidence was inadmissible for the purpose of charging her; that the rule that such evidence is admissible to charge an undisclosed principal has no application to negotiable instruments; that "one who takes negotiable paper contracts with the parties appearing upon its face, and parol evidence is not admissible to add a principal not so appearing." Am. & Eng. Ency. of Law, vol. 1, p. 1054, title "Agency." Conceding, without deciding, that this is the law, we fail to see wherein it has been disregarded in the present case. The judgment for the amount due on the note is against B. W. Paxton, the maker of the note as disclosed by the face thereof, and not against the estate of Mrs. H. H. Paxton. The evidence complained of was admitted, as indicated by the conclusions of the court, not for the purpose of showing that the estate of H. H. Paxton was liable on the note, but to prove that her agent was acting within the scope of his authority in pledging the stock as security for the payment of the note. Even if it were conceded that, in a suit to recover on a negotiable note, no evidence could properly be received to establish the liability of a party not appearing on such note, it does not follow that the owner of the paper cannot foreclose his lien on any personal property belonging to such person, and given him as collateral security for its payment. And while the evidence introduced to establish such lien might also tend to show that the note was made for the benefit of such undisclosed person, it should not on that ground be excluded. The complaint, as it stood at the beginning of the trial, alleged notice to creditors, the due presentation of plaintiff's claim, and prayed for judgment against the executors of the estate for the amount of the note, with interest and costs. During the trial plaintiff filed an amendment to his complaint, expressly waiving all recourse against any property of the estate, excepting the 100 shares of bank stock; but he did not amend the portions of his complaint which conflicted with the waiver, nor did he amend the prayer of his complaint. It is here claimed that the waiver is not express, as required by section 1500 of the Code of Civil Procedure, but that it is restricted and limited by other portions of the amended complaint. We pass the point that the objection is made in this court for the first time. If the respondent should have coupled with his amendment waiving recourse an amendment to other parts of the complaint his failure to do so was harmless, for the case was tried and determined as if the portions objected to were no part of the complaint.

There are several other points discussed in the briefs based upon the claim that the evidence is insufficient to sustain the findings. Upon a careful examination of the record, we

are satisfied that the findings are amply supported by the evidence. The case seems to have been fairly and carefully tried, and the conclusion arrived at by the trial court fully justified.

The order denying appellant's motion for a new trial is affirmed.

We concur: HALL, J.; COOPER, P. J.

(7 Cal. App. 204) HORN v. MARTINHO. (Civ. 401.) (Court of Appeal, First District, California. Dec. 24, 1907.)

1. JUDGMENT-CONFORMITY TO PLEADINGS. Where, in an action for the reasonable value of labor and materials in extra work on a building constructed by plaintiff for defendant, defendant in his answer alleged that for a portion of the extra work it was agreed that the price should be a designated sum, and that the reasonable value of the work and materials furnished for the other extra work for which there was no agreed price was in a specified sum and no more, a judgment for defendant was not supported by the pleadings; the admission that extra work had been performed for which no price had been agreed of the value designated supporting a judgment for that amount at least. [Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 434 445.]

2. PLEADING-ADMISSIONS-CONCLUSIVENESS. Evidence to contradict an admission in a pleading cannot be received.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 81-86.]

Appeal from Superior Court, City and County of San Francisco; J. C. B. Hebbard, Judge.

Action by Theo. S. Horn against A. S. Martinho. From a judgment for defendant and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

Barna McKinne, for appellant. Danforth & Lansburgh, for respondent.

HALL, J.

This is an appeal by plaintiff from a judgment in favor of defendant, and from an order denying plaintiff's motion for a new trial. Plaintiff sued to recover judgment for the sum of $217.50, as the reasonable value of labor and materials furnished in doing extra work on a building constructed by plaintiff for defendant, and to foreclose a mechanic's lien therefor. Defendant in his answer does not deny that extra work was done on the building, but denies that no price was agreed upon therefor, but in this regard alleges that for a portion of said extra work it was specifically agreed that the price should be $129.55, "and that the reasonable value of the work performed and materials furnished at the special instance and request of said Martinho, on said building, termed in said paragraph 7 'extra work,' and on which there was no agreed price, was and is the sum of $47.25 and no more."

Upon the trial of the issues presented in the action plaintiff was called as a witness in his own behalf, and, while being examined

80

concerning the work alleged to have been done, testified that he performed certain extra work and several things that he did not remember, and, in answer to a question as to what was the value of the work that he did remember, he testified that he could not tell offhand. Whereupon the court ordered him to leave the stand, and at once ordered judgment for defendant. Counsel for plaintiff protested at the action of the court, and not only stated that the answer admitted some things, and that he could prove by other people and the foreman of plaintiff the value of the extra work, but nowhere does it appear that he expressly reserved an exception to the action of the court.

However, the judgment must be reversed without regard to the question of exceptions reserved.

The court found all the allegations of the complaint to be untrue, and gave judgment for defendant; but this finding is contrary to the admission of the answer hereinbefore set forth, and the judgment is for the same reason erroneous as not supported by the pleadings. The admission that extra work had been performed, for which no price had been agreed, of the value of $47.25, would support a judgment for that amount at least, and no evidence could be received to contradict this admission. Hall v. Polack, 42 Cal. 218; Mulford v. Estudillo, 23 Cal. 131. Judgment and order are reversed.

1. TRUSTS RESULTING TRUST PAYMENT OF CONSIDERATION · RELATIONSHIP BETWEEN PARTIES.

In a suit to declare a trust in real estate, the evidence showed that plaintiff either made a gift to defendant of a specified sum, or paid the same to her in consideration of her continuing to illegally cohabit with him, and that defendant used the money in the purchase of property in her own name, which she exchanged for real estate, title to which she took in her own name. Plaintiff had knowledge of the transactions and acquiesced in them. Held, that relief was properly denied, without regard to plaintiff's intentions when he gave defendant the money, and when he permitted her to retain title to the property.

2. EVIDENCE-COMPETENCY-TESTIMONY AS TO

INTENT.

The

ALLEN, P. J. Action to have a trust de clared in certain real property. Findings and judgment for defendant. Appeal from the judgment and an order denying a new trial. The record in this case illustrates the truth of an old adage. It appears that the defendant was a San Francisco manicure, and plaintiff a mature man of means living at Los Angeles. They met in San Francisco, and the first night of their meeting resulted in illicit cohabitation. Plaintiff was so impressed with defendant's charms that he at once insisted upon her removal to Los Angeles. She, as subsequent events disclose, was principally charmed with his financial standing. parties resumed their illicit relations in Los Angeles, and continued so to do for more than a year, during which time plaintiff gave defendant at first $700, with which to buy a rooming house. This money was so expended, and shortly thereafter defendant, having title and possession of the rooming house, exchanged the same for Los Angeles real estate, taking the title thereto in her own name. This she did without any protest upon the part of plaintiff, who had knowledge of the transaction. Afterwards plaintiff gave her an additional $860, with which to buy another rooming house. This defendant purchased in her own name, and in like manner traded the same for more real estate, taking the title thereto in herself. Plaintiff seems to have acquiesced in all these trades, and at all times to have had knowledge of the condition of the title. Afterwards, in 1901, the parties concluded to marry, which they did, and after living together as man and wife for three years separated. Plaintiff never made claim to the property until after the separation, yet now seeks the aid of a court of equity to have the real estate standing in the name of defendant charged with a trust in his favor. We think the court properly refused the relief. We would not be inclined, even if the findings that the sums of money paid defendant were in the nature of a gift were not entirely supported by the evidence, to disturb the judgment. The whole transaction seems to have for its basis payments in consideration of a continued course of prostitution. But, aside from this, there is ample evidence to support the finding that the sums paid defendant by plaintiff were in the nature of a gift, from which it follows that the proceeds of such money became the defendant's property.

It is insisted, however, that the court erred

in its refusal to permit the plaintiff to testify as to his intentions when he gave her the money, and his intentions in permitting her to retain title to the real property. It is true that in this the court erred. "Under our system, where all persons (practically) may testify, a witness may be examined as to the intent with which he did a certain act, where that intent is a material thing in the action." Barnhart v. Fulkerth, 93 Cal. 499, 29 Pac. 50; Kyle v. Craig, 125 Cal. 114, 57 Pac. 791. But we think the error was harmless; for if the court had received such evidence and given it due weight, the effect could not have been to change the judgment. The facts and circumstances under which the payments were made preclude either party from being relieved in connection therewith. The duty of the court was, as by it determined, to leave the parties where it found them.

Judgment and order affirmed.

We concur: SHAW, J.; TAGGART, J.

(7 Cal. App. 233)

NUCKOLLS v. COLLEGE OF PHYSICIANS AND SURGEONS OF SAN FRANCISCO. (Civ. 403.)

(Court of Appeal, First District, California. Dec. 26, 1907.)

1. APPEAL-ADMISSION OF EVIDENCE-HARMLESS ERRor.

The error of admitting evidence as part of the cause of action which could be relevant only in rebuttal is harmless where it afterward became relevant in rebuttal.

[Ed. Note. For cases in point. see Cent. Dig. vol. 3, Appeal and Error, § 4173.]

2. MASTER AND SERVANT-DISCHARGE OF EMPLOYE-DAMAGES.

The rule that the measure of damages in case of wrongful discharge is the amount that would have been earned under the contract, after deduction of any sums that the employé has earned or with reasonable diligence could have earned during the period, has no application where the employment was for a portion only of each day and the employé could have earned the amount which he did earn during the other portion of the days, and also render the services required by the contract.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 54-56.]

Appeal from Superior Court, City and County of San Francisco; J. M. Seawell, Judge.

Action by H. M. Nuckolls against the College of Physicians and Surgeons of San Francisco, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

Beverly L. Hodghead, for appellant. Geo. A. Sturtevant and A. M. Nuckolls, for respondent.

KERRIGAN, J. This is an action for damages alleged to have been suffered by plaintiff by reason of his discharge from defendant's employ. Plaintiff, who is a dentist, was employed by defendant as a demonstrator of operative dentistry for one year, be

94 P.-6

ginning July 1, 1902, at a salary of $50 per month. Under the terms of the contract he was to give his entire time every afternoon from 1 to 5 o'clock (except Sundays) to the service of the defendant. October 4, 1902, plaintiff was discharged. During the remaining nine months of the term of the employment, both in the forenoon and the afternoon, the plaintiff practiced his profession of dentistry. October 21, 1903, he brought this action for $450, alleging that he had been wrongfully discharged. Defendant answered, averring that plaintiff had been dismissed for sufficient cause, and as a separate defense pleaded that he had suffered no damage thereby. The cause was tried by the court sitting without a jury, and a judgment was entered in favor of plaintiff. From the judgment and the order denying a motion for a new trial defendant prosecutes this appeal.

As a part of his case, and after testifying as to his employment, respondent was asked: "Dr. Nuckolls, at the time you were discharged, was there any reason assigned for your discharge?" Over the objection and exception of appellant the witness answered: "I was informed by the dean at the time that the board of trustees of the defendant college desired to give my place to another dentist, Dr. Baldwin, who, he said, was indebted to the college." The admission of this testimony is now assigned as error. Respondent established a prima facie case when he proved his employment, the amount of his salary, and his discharge before the end of the term of his engagement, and it was no part of his case in chief to prove the reason assigned by defendant for his dismissal. But, when the appellant introduced evidence to show that he was discharged for neglect of duty, then he became entitled to rebut such defense by showing that, when he was dismissed, the appellant made a different and conflicting statement. The most that can be said against the admission of this testimony is that it was admitted out of order, which was a harmless irregularity. In Cashman v. Harrison, 90 Cal. 306, 27 Pac. 283, the Supreme Court passed on a similar point. There it was contended that the trial court had erroneously permitted the plaintiff to introduce in evidence in chief a bond from defendant to plaintiff against defendant's objection, on the ground that it was immaterial, irrelevant and incompetent; and the court said: "The bond was certainly competent, relevant, and material on the issue as to the consideration for the bill, raised by the answer, and insisted upon here. But it was at least irregular to introduce it in chief, since the bill was prima facie evidence of a sufficient consideration; but it was not objected to on the ground that it was offered out of the proper order, or that it could properly be offered only in rebuttal. That it became relevant in rebuttal there is no question; so that the error, if it was such, of

admitting it out of the proper order, was harmless."

This brings us to the other point made by appellant. By way of defense, the appellant alleged in its answer that respondent, between the time of his discharge and the date of expiration of his contract, earned, in the course of the practice of his profession of dentistry, a sum greater than $450. The facts are that during his employment by appellant respondent was at his office in the forenoon of each day, and at the college of the appellant in the afternoon; that after his discharge respondent devoted his entire time to his profession; that prior to the date of expiration of the contract and subsequent to his discharge as aforesaid respondent earned by so practicing his profession in the afternoon between the hours of 1 and 5 the sum of $500; that, if respondent had not been discharged, he could have earned (as he testified) the same amount at other times than during the afternoon. The appellant claims that, as the evidence shows that respondent during the period in question earned a sum greater than his salary for such period would have been, a complete defense was established, or at least such a defense as would render the damages nominal. It is true, as contended by appellant, that the measure of damage in cases of wrongful discharge is the amount that would have been earned under the contract, after deduction therefrom of any sums that the employé has actually earned during the period mentioned, or which he might, by due and reasonable diligence, have earned. Wood on Master and Servant, § 127; 20 Am. & Eng. Ency. of Law (2d Ed.) p. 37. This rule, however, applies to cases where the contract is for the whole time and services of the employé. It certainly has no application to a case like the one at bar, where the evidence shows that the respondent could have earned the $500 in the forenoons between the time of his dismissal and the expiration of his contract, and still have rendered to the appellant the services required by such contract. This seems so clear to us on principle that we shall merely cite, without quoting therefrom, some of the cases that sustain this view, viz.: Jeffrays v. King, 34 Md. 222; Gates v. School District, 57 Ark. 376, 21 S. W. 1060, 38 Am. St. Rep. 249; Kyle v. Pon, 96 Ga. 166, 23 S. E. 114; Toplitz v. Ullman, 2 Misc. Rep. 130, 20 N. Y. Supp. 863; Allgeyer v. Rutherford (Tex. Civ. App.) 45 S. W. 623.

This action was tried twice in the court below. As the result of the first trial a judgment was entered for respondent. Appellant moved for a new trial, which was granted upon the issue of the amount of damages raised by one of the separate defenses set forth in the answer, but denied as to all the other issues. An appeal was taken from that part of the order denying appellant a new trial on the remaining issues. A new trial was thereupon had upon the issue of dam

ages, which resulted again in à Judgment for respondent. Appellant again moved for a new trial, which motion was denied, and from this order an appeal is taken. Both of these appeals are in one transcript, and have been presented in the briefs together as if but one appeal were before us, and we have so discussed them in this opinion.

In each case the judgment and order are affirmed.

We concur: COOPER, P. J.; HALL, J.

(7 Cal. App. 241) STUM v. HADRICH. (Civ. 447.) (Court of Appeal, Second District, California. Dec. 27, 1907.)

1. SALES COMPLETENESS OF CONTRACT "AGREEMENT TO SELL AND BUY."

Under Civ. Code, § 1729, providing that "an agreement to sell and buy is a contract by which one engages to transfer the title to a certain thing to another, who engages to accept the same from him and to pay a price therefor," a contract by which defendant agreed to sell to plaintiff, a one-half interest in his business, in consideration of a specified amount of cash, and plaintiff agreed to devote his entire time and skill to the business, is a completed contract of sale, though plaintiff paid only a small portion of the cash at the making of the contract, and the cash to be paid is but a fraction of the real value of the interest in the business purchased. [Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 39-43.

For other definitions, see Words and Phrases, vol. 1, p. 285; vol. 7, pp. 6291-6306; vol. 8, p. 7793.]

2. SAME-CONSIDERATION-PRESUMPTION.

Though the cash to be paid for an interest in a business is but a fraction of the real value of such interest, nothing to the contrary appearing, it will be presumed that the labor and skill agreed to be devoted by the purchaser is sufficient to render the consideration adequate. 3. SAME CONSTRUCTION-PAYMENT.

Where a contract for the sale of an interest in a business is silent as to when payment of the price is to be made, payment on delivery is implied.

[Ed. Note. For cases in point, see Cent. Dig. vol. 43, Sales, § 230.]

4. SAME BREACH OF CONTRACT - TENDER OF PERFORMANCE.

Under Civ. Code, § 1440, providing that "If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same, * ** such other party is entitled to enforce the obligation without previously performing or offering to perform," a notice by the seller to the buyer that he will not perform the contract of sale constitutes a breach, and the buyer's cause of action accrues at once, without tender of payment of the price.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 1157.]

Appeal from Superior Court, Los Angeles County; Chas. Monroe, Judge.

Action by John A. Stum against L. F. Hadrich. From a judgment for defendant, plaintiff appeals. Reversed.

Frank G. Bryant and D. P. Hatch, for appellant. Grant R. Bennett (F. M. Porter, of counsel), for respondent.