CONTRACT (Continued). price, with delivery upon demand of the purchaser, the delivery and payment of the purchase price were concurrent obligations. (Id.) 13. BREACH OF CONTRACT-OFFER OF DELIVERY-SALE IN MARKET— MEASURE OF DAMAGES.-Where the defendant, after, payment for a portion of the hogs sold, declined to pay for any more of them, he thereby put himself in default, in breach of his contract, and plaintiffs became entitled to enforce the contract without further offer of delivery, and might, without any tender of delivery to the purchaser, sell the remainder of the hogs at the actual market price, at the time of sale, and recover from the defendant as the measure of damages for the breach of his contract, the difference between the contract price of the undelivered hogs and the price actually received in the market, in the absence of fraud, collusion, or unfair dealing. (Id.) 14. MARKET VALUE AT DATE OF PURCHASE-IMMATERIAL ISSUE.—An issue as to the reasonable market value of the hogs at the date of the purchase by the third person is immaterial, and no finding need be made thereupon. (Id.) 15. SALE OF GRAPES-MATURITY OF PURCHASE MONEY REASONABLE TIME CONSTRUCTION OF CONTRACT.-A contract for the sale of grapes be paid for when the purchaser shall have sold the wine made therefrom, or shall have sold other wine then on hand, is to be construed as allowing the purchaser a reasonable time in which to make, mature, and sell the wine from the grapes purchased, unless in the meantime he should in fact sell the other wine then on hand. (Campbell v. Heney, 109.) 16. ACTION FOR PURCHASE MONEY-INSUFFICIENT COMPLAINT-LACHES OF DEFENDANT NOT SHOWN.-A complaint in an action upon such contract to recover the purchase money, which alleges “that within a reasonable time after the delivery of said grapes" the plaintiff demanded payment of the price, instead of alleging that the demand was made after the lapse of a reasonable time for the defendant to fulfill his contract, does not show any laches of defendant, and does not state a cause of action. (Id.) 17. COMPARISON OF DATES-LAPSE OF REASONABLE TIME.-Where the court cannot, by the comparison of dates, see, as matter of law, that a reasonable time must have elapsed for the maturity and sale of the wine to be made from the grapes purchased, before the demand was made, the insufficiency of the complaint cannot be aided by such comparison. (Id.) 18. BREACH OF CONTRACT TO DELIVER WINE IN PAYMENT RECOUPMENT -CROSS-COMPLAINT PROOF OF GUARANTY.-A cross-complaint setting up damages by way of recoupment for breach of a contract that plaintiff should take wine from the defendant at an agreed price, in payment for the grapes sold by plaintiff to defendant, is sustained by proof that plaintiff agreed to take enough wine CONTRACT (Continued). Such to pay the debt, and find a purchaser at the agreed price. See Attorney and Client, 10; Bonds; Evidence, 2, 3; Growing CONVERSION. 1. ACTION BY WIFE-COUNT NOT ALLEGING MARRIAGE-SEPARATE PROPERTY.-A count of a complaint by a wife for the conversion of goods belonging to her, which does not allege that she is a married woman, need not state that the property converted was plaintiff's separate property; but, if it is made to appear in proof that she is married, her right of recovery must depend upon the fact that such property was her separate property. (Hand v. Scodeletti, 674.) 2. ISSUE AS TO DEMAND-ANSWER DISPENSING WITH PROOF.-Where the answer takes issue upon the averment of demand in the complaint, but proceeds to aver facts showing that a demand, if made, would be unavailing, the averment of demand need not be proved. (Id.) 3. EVIDENCE-SALE TO PLAINTIFF QUESTION ASSUMING FACT DISPROVED. Where a witness testified that he had purchased the goods in question at sheriff's sale, and had afterward sold them to the plaintiff, a question on cross-examination assuming a contrary fact that the goods were handed over to her husband, was properly disallowed as unfair. (Id.) 4. CROSS-EXAMINATION-OFFER OF EVIDENCE — ORDERS OF SUPERIOR COURT RECORD-MATERIALITY NOT SHOWN.-Evidence offered upon cross-examination of plaintiff's husband relating to orders of the superior court is not shown to be material, where the record does not contain the orders, or show why they have any importance, or that any ruling was made excluding the evidence, but only that objection was sustained to a statement of fact made by counsel which the witness had denied. (Id.) 5. HARMLESS ERROR-ADMISSION OF EVIDENCE UPON COUNT WITHDRAWN FROM JURY.-An objection to evidence improperly overruled is harmless error, where the evidence relates only to a count of the complaint withdrawn from the jury by the instructions of the court, and could not affect the cause of action upon which the verdict was rendered. (Id.) 6. MEASURE OF DAMAGES FOR CONVERSION-VALUE-PRICE.-The measure of damages for the conversion of the plaintiff's goods is their value, not exceeding the price paid by plaintiff for them. (Id.) CONVERSION (Continued). 7. INDEBTEDNESS NOT PART OF PRICE-INSTRUCTIONS-VERDICT FOR PRICE. Where no evidence appears in the record to show that a previously existing indebtedness of the plaintiff to the vendor of the goods was included in the purchase money, and it does not appear that defendant requested any instruction that such indebtedness must be deducted from the price, and the jury were properly instructed as to the measure of damages, a verdict for the full price of the goods will not be disturbed. (Id.) See Growing Crops, 8; Pledge. CORPORATION. 1. ACTION AGAINST STOCKHOLDERS ASSIGNED NOTE - EVIDENCE — AGREEMENT FOR LOAN BY PLAINTIFF-CHECKS-NONSUIT.-In an action against the stockholders of a corporation upon a note of the corporation to a third person which was indorsed to the plaintiff, it is not ground for a nonsuit that it appears from plaintiff's evidence that plaintiff had agreed with one of the stockholders to loan the amount of the note to the corporation, and had given to such stockholder personally his check for that amount, and that a second check was afterward drawn by a firm of which such stockholder was a member, which was indorsed to the payee of the corporate note, who delivered the check to the corporation, and received its authorized note, which he immediately indorsed to the plaintiff. (Spreckels v. Butler, 645.) 2. LIABILITY OF CORPORATION AND STOCKHOLDERS.-The original liability of the corporation and its stockholders was to the one from whom the consideration of the authorized note was actually received, and to whom such note was made payable. Neither the corporation nor its stockholder could resist an action by him, on the ground that the money paid by him had been received from another person for the purpose of making the loan. The legal rights of the plaintiff rested upon his title to the note of the corporation indorsed to him by the authorized payee. (Id.) 3. NO MATERIAL VARIANCE.-In such case there is no material variance between the complaint and the proofs of the actual advance of money by the plaintiff, which was finally passed through the hands of the payee of the note to the corporation. which could in any way mislead the defendants. (Id.) 4. EVIDENCE-LOAN-ASSIGNMENT-EXCLUSION OF TESTIMONY OF PAYEE. It is not material error to exclude general questions asked of the payee of the note, not purporting to relate to the transac tions set forth in the complaint and testified to by the plaintiff, but generally as to whether such payee had at any time loaned any money to the corporation, or whether the corporation had borrowed any money from him. The further question as to whether he assigned the note to the plaintiff, after he had admitted that, was properly excluded as immaterial. (Id.) CORPORATION (Continued). 5. ARTICLES OF SOCIAL OR BENEVOLENT ASSOCIATIONS-SUBSCRIPTION AND ACKNOWLEDGMENT-VERIFICATION.-The articles of incorporation of benevolent or social associations organized without profit under sections 593 and 594 of the Civil Code must be subscribed and acknowledged by at least five persons in accordance with section 292 of the Civil Code, in addition to the verification required by section 594 of that code. (People ex rel. Weatherly v. Golden Gate Lodge No. 6, Benevolent and Protective Order of Elks, 257.) 6. CONSTRUCTION OF CODE-NUMBER OF PERSONS INCORPORATING.-Sections 593 and 594 of the Civil Code providing for the incorporation of any number of persons associated together for any purpose where pecuniary profit is not their object, must be read in connection with section 292 of the Civil Code, as not providing for the incorporation of any number less than five persons. (Id.) 7. CONTENTS AND AUTHENTICATION OF ARTICLES-CONSISTENT PROVISIONS.-Effect must be given so far as possible to the consistent provisions of the Civil Code relating to the formation of corporations; and the fact that section 594 provides for the contents of articles of incorporation of the associations mentioned in section 593, in addition to the requirements of section 290, and further provides a mode of verification of such articles, cannot be construed as providing a complete scheme for their authentication, or as dispensing with the additional authentication required by section 292, which is not inconsistent with sections 290, 593, and 594. (Id.) 8. SUBSTANTIAL COMPLIANCE WITH LAW ESSENTIAL-QUO WARRANTO.A substantial compliance with the law is essential to the valid organization of a corporation, and it cannot be dispensed with as against an attack upon its validity in an action of quo warranto. (Id.) See Guaranty; Insurance. 18, 19; Municipal Corporations; COSTS. See Appeal, 8, 9; Estates of Deceased Persons, 8, 9; Mechanic's Lien, 5. COTERMINOUS OWNERS. 1. COTERMINOUS OWNERS OF LAND-INJURY FROM EXCAVATIONS FOR CONSTRUCTION-ORDINARY CARE AND SKILL-CONFLICTING EVIDENCE OUTSIDE OF ISSUES.-In an action by one of two coterminous owners of land against the other for injury to the soil and improvements of the plaintiff from excavations made by the defendant for the purpose of constructing a house on his land, where it is neither alleged nor found that the excavations were not made with ordinary care and skill, and that the defendant did not COTERMINOUS OWNERS (Continued). take reasonable precautions to sustain the land of the defendant, conflicting evidence on those points must be disregarded. (Nippert v. Warneke, 501.) 2. NOTICE OF EXCAVATION-CONSTRUCTION-GENERAL EXCAVATIONS.—Å notice given to the plaintiff of the defendant's intention to excavate his lot adjoining that of the plaintiff to a depth somewhat below the foundation of plaintiff's house, and notifying the plaintiff to take the necessary measures to protect her property, is not to be construed as referring only to excavations immediately adjoining plaintiff's house, but as notice of intention to excavate the lot generally, and the foundation is referred to as indicating the depth of the proposed excavations. (Id.) 3. PARTY-WALL-EASEMENT-REMOVAL CAUSED BY DEFENDANT—SUPPORT OF FINDING.-Where a party-wall was erected by the original owner of the adjoining lots on the boundary line between them and partly on each lot, as the common foundation of two adjoining houses built by him upon the lots, and such owner conveyed one lot to the plaintiff and the other to the defendant, an easement resulted for the support of the party-wall, and where the defendant excavated his lot, and by his agents denied the existence of the party-wall, and announced his intention to continue the excavations to a depth beneath its foundation, with advice to the plaintiff to take care of it, a finding that the defendant caused the foundation wall to be removed is supported, notwithstanding it was in fact removed by plaintiff's agents, and a new foundation was built by plaintiff to support plaintiff's house. (Id.) COUNTY. See Office and Officers. COURTS. See Justice's Court. CRIMINAL LAW. 1. FORGERY-FICTITIOUS CHECK-EVIDENCE- SHERIFF'S RETURN OF SUBPOENA. Upon the trial of a defendant charged with forging the name of "J. P. Collin," alleged to have been a fictitious name, to a check payable to the defendant's order, which the defendant,, a Chinese, claimed to have received from another Chinese person in the employ of a person named Collins in Santa Barbara county, the sheriff's return of a subpoena issued by the district attorney and directed to "J. P. Collins, Santa Barbara," stating that after diligent search and inquiry he was "unable to find J. P. Collins in the county of Santa Barbara." is not competent evidence against the defendant to prove the nonexistence of the person whose name was subscribed to the check, and this is so even if the name "Collin" could be considered as identical with "Collins." (People v. Lee, 330.) |