California. Supreme Court.

California unreported cases, being those determined in the Supreme Court and the District Courts of Appeal of the State of California, but not officially reported, with annotations showing their present value as authority (Volume 1) online

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LIBRARY

THE UNIVERSITY
OF CALIFORNIA

SANTA BARBARA

PRESENTED BY

J.E. DELWICHE



CITE THIS VOLUME

1 CAL. UNREP.



CALIFORNIA
UNREPORTED CASES

BEING THOSE

DECISIONS DETERMINED IN THE SUPREME COURT AND

THE DISTRICT COURTS OF APPEAL OF THE

STATE OF CALIFORNIA

BUT NOT

OFFICIALLY REPORTED

WITH

ANNOTATIONS

SHOWING THEIR PRESENT VALUE AS AUTHORITY
REPORTED AND EDITED BY

PETER V. ROSS

Of the San Francisco Bar
Author of "Inheritance Taxation," "Probate Law and Practice," etc.

VOLUME 1



SAN FRANCISCO
BENDER^MOSS COMPANY
g; 1913



Copyright, 1913

BY

BENDER-MOSS COMPANY



San Francisco

TuE FiLMER Brothers Electrotype Compant

Typograpuers and Stereotypeks



PREFACE.



It is a matter of common knowledge that not all of the
opinions rendered by the supreme court and the district
courts of appeal of California have been officially reported.
Indeed, large numbers of them have never been reported at
all, or made readily accessible to the profession. The value
of these unreported cases and the advisability of publishing
them have for years been subjects of discussion, but no plan
for their publication has been put into execution until the
present.

In an age when law reports are multiplying with such
rapidity as they now are, publishers may well hesitate to
launch any new series ; and there has been more than ordinary
hesitancy in this case — a hesitancy which has been overcome
only by the assurance of numerous members of the Bar that
a compilation of unreported cases would be welcomed. With
the propriety of the publication thus established, editorial
work was begun ; and as it has progressed, the extent to
which the unreported decisions have been cited by courts
and legal writers, and the intrinsic value revealed in the
opinions themselves, have placed the question of their im-
portance to the practitioner beyond all controversy.

The number of unreported cases has varied greatly at dif-
ferent periods, there being surprising numbers at some times
and at others hardly any or none at all. Referring to the
first years of the organization of the supreme court, Mr.
Justice Nathaniel Bennett writes in the preface of Volume
1 of the California Reports:

"A statute of the state authorized the supreme court to
appoint a reporter, and it appointed Edward Norton, Esq.
He had, as early as May, 1851, advanced far in the prepara-
tion of a volume of reports, but his manuscript was destroyed
in the fire of May 4, 1851. He then resigned his office, and
the undersigned, by the advice of his associates on the bench,
assumed the task of reporting the decisions. By another
statute, the decisions of the court, in all eases, were required

(V)



VI PREPACB,



to be given in writing, and, by another statute, all decisions
were required to be reported. The following volume em-
braces all the decisions of the court, from its first organization
in March, 1850, to the end of the June term, 1851, together
with one case decided at the October term, 1851."

It thus appears that in the early days the practice of the
supreme court was to have all cases officially reported; and
such is its present practice. But in the intervening half cen-
tury hundreds of unreported cases are to be found. These,
arranged in their chronological order and annotated to show
their value as authority, constitute the subject matter of this
publication — "The California Unreported Cases."

The attempt is here made to compile all of the written
opinions of the supreme court and the district courts of
appeal that have not been officially reported, omitting only
the mere memorandum cases. The selection of leading cases
or the rejection of those that might seem of minor importance
has not been indulged, but all decisions which research has
disclosed have been published, with the exception of those
where the opinions are nothing more than memoranda.
Even those cases in which rehearings have been had are in-
cluded, reference in such instances being made to the final
decision in the case.

The unreported cases decided during the first thirty years
of the existence of the supreme court have hitherto been inac-
cessible, for they were to be found only in the archives of
the clerk of the supreme court at Sacramento. A thorough
search of the records of the clerk's office has been made, with
the result that large numbers of early decisions heretofore
unknown to the present generation have been brought to light
and for the first time made available to the profession. To
these have been added the unreported cases decided during
the last thirty years of the court's history, making a com-
plete compilation of the California unreported cases from
the earliest days down to the present time.

The value of the reports has been greatly enhanced by a
system of annotation showing where and to what effect the
unreported cases have been cited in subsequent decisions of
the courts of California, and of other American courts, state
and federal. And whenever an unreported case has been
cited in the notes in the American State Reports, American



PREFACE. Vii

Annotated Cases, and Lawyers' Reports Annotated, the cita-
tion is given. Moreover, in those instances where a case has
subsequently come before the supreme court, either on a second
appeal or on rehearing, reference to such subsequent and final
decision is made.

It is estimated that this series of reports will make seven
volumes, of approximately nine hundred pages each. The
last volume will contain a complete index or digest of all
preceding ones; also a complete table of cases reported, as
well as tables of statutes, code sections, and constitutional
provisions cited throughout the series.

The search for unreported opinions in the office of the
clerk of the supreme court at Sacramento has been conducted
by Mr. Thomas B. Leeper, of the Sacramento Bar, and ac-
knowledgment is due for his efficient services in this connec-
tion. Acknowledgment is also due William George, Esq., of
the San Francisco Bar, for invaluable assistance rendered
in preparing syllabi and annotations,

San Francisco, January, 1913.

P. V. ROSS.



CASES DETEEMINED

IN THB

SUPREME COURT OF CALIFORNIA

BUT NOT

OFFICIALLY EEPOETED.



JOHN A. BLOOD, Respondent, v. SEYMOUR PIXLEY and
T. L. SMITH, Appellants.

No. 587 ; September 15, 1855.

Judgment. — Wliere a Judge Fails to Find his conclusions of law
and fact, as required by statute, the judgment is void.

APPEAL from County Court, Yuba County.

T. B. Reardon for respondent; Findley & Foster for ap-
pellants.

MURRAY, C. J. — This case was improperly tried under
the old act concerning appeals from justices' to county courts,
after the present act had gone into effect, and the parties, if
they felt themselves injured by the first decision of the county
court, should have appealed to this court ; it is, however, now
too late to correct this informality. The second judgment of
the county court, now appealed from, is void, under the former
decisions of this court, as the judge who tried the case has
failed to find his conclusions of law and fact, as required by
the statute.

Judgment reversed, a new trial ordered, costs to abide the
result.

We concur: Heydenfeldt, J.; Bryan, J.
1 (1)



Doi.T.ARiiroE V. Thorne. [1 Cal. Unrep.]



WILLIAM S. BRYANT, Respondent, v. BENICIA
FLOURING CO., Appellant.

No. 742 ; September 15, 1855.

Evidence. — The Jury is the Best Judge of the Weight of evi-
dence, and more capable of arriving at conclusions than the court
where the controversy refers to matters of common transaction.

APPEAL from Solano County.

John Curry for respondent ; William S. Wells for appellant.

HEYDENFELDT, J. — The assignments of error rest upon
the refusal of a nonsuit and a new trial upon the facts.

The evidence seems to have been fairly submitted to a jury,
and they were the best judges of its weight, as it is their pecu-
liar province.

Sometimes, as in this case, the evidence seems very scant and
but slenderly makes out the facts necessary to a recovery. In
such eases much has to depend upon inference, and where the
controversy refers to matters of common transaction, the jury
is more capable of arriving at conclusions than the court.

The nonsuit and new trial having been refused by the judge
before whom the cause was tried, we are not warranted in dis-
turbing the judgment.

Judgment affirmed.

We concur: Murray, C. J.; Bryan, J.



ALEXANDER H. DOLLARITIDE, Appellant, v. ISAAC F.
THORNE, Respondent.

No. 653 ; September 22, 1855.

New Trial. — The Exercise of Discretion by the Trial Court in
granting a new trial will not be too closely scrutinized, particularly
when the granting has been conditional upon payment of costs by the
party favored.

APPEAL from Napa County.



1 Cal. Unrep.] Haight v. Kary.



Hastings & Curry for appellant ; Brown, Pratt & Tracey for
respondent.

HEYDENFELDT, J.— The peculiarity of the relief sought
by the bill of complaint shows that the delay caused by open-
ing the judgment and giving a new trial cannot operate to the
injury of the plaintiff, if it is finally determined that he is
entitled to the relief. Adding to this the consideration that
the payment of the costs by the defendant is made the condi-
tion of setting aside the judgment, we are not, in such cases,
disposed to scrutinize too closely the exercise of discretion by
the district court.

Order affirmed.



I concur : Bryan, J.



HARRISON HAIGHT, Appellant, v. WILSON KARY,

Respondent.

No. 539 ; September 22, 1855.

Appeal^Mandate or Remittitur — Time to Issue. — By a rule of
the supreme court no mandate or remittitur is allowed to issue to the
court below before the expiration of ten days from the date of judg-
ment.

APPEAL from San Francisco County.

Daine & Bouldin for appellant; Sam Broker and Sanders,
Jr., for respondent.

IMURRAY, C. J. — The judgment of the court below was
affirmed on the 6th of jMarch for want of a statement. On
the 28th of the saine month an application was made for a rule
upon the opposite party, to show cause why an authenticated
statement should not be filed and the judgment of the court
vacated.

The January term of this court adjourned on the 6th of
March, so that the application was not made until twenty-two
days after.



4 SoiJivK & I'ACK V. Steamboat J'ikk, | 1 Cal. llnrpp.]

\\y nilf dT this c(i\\r\. no rn}iM(l;ilf or rf-mitfitiir is allowed
to issue to tho court l)clf)W hf-fore tfic «x[»ir;iliori of tf-n (jHys
from llic fhitc f)f fhc jiulj^'mcnt.

AftiT Mic cxpirjit ion of that lime, Iho fonrt hisos all control
()\'^•\■ the, suhjcct, ()!irti(',i)larly if the cfjiirt has arljourncrl.
J''roin this it follows that the. af)f)Iif'atir)n was not rnacJe in time.

'J'hc jii(l;.':nicnt of thi; court, hilovv is therefore affirmed.

We concur: J'r'yaii, J.; Heydenreldt,, .].



SOI ILK & PAOI-:, kesfK.ndents, v. TIIK STHAMIJOAT
I'IKI-:, Ai)pellant.

No. fi22; Septum her 22, IH^f).

Agency — Ratification y)y Principal. — If Lumber Is Accepted by
a Carpenter Cor, nud put. I)y liiin into, t.lio conHtniction of a boat, and
tiM! facts arc ;it tlie tioH! witliiri tiio l<nowic<!(((' of tlin boat'H ownrr,
tlio latter, altiioiif^h hn has giv(!n the earjxmtiir no aiitliority to buy
for liiin, is to be rcfjarded nn iiavinfj ratified tlie actn of tlio carpenter
aH tliOHf. of liiH a^ciil, and \\v \n reH|)r)nKil)le for tlif \>\\>:t: of tlic lumber.

AI'I'I'lAli froiri l'\.urtli .Judieinl District.

N. il'illand for respondents; Martin lor appelhmt.

iMI'KI.'AV, (!. J. The appellant assi^nis as error that there
is no pionf (d" any privity of eontraet hetwcen the plaiidiffs
and (hd'endaid. The testimony of the witness docs not show
that he was aulhori/.ed 1o purchase Ihe Inmher in question,
and without some authority, the dit'endard wduld not hi' liahh*.
I'.ut the witness tcstilies that the luirdtcr was used in the con-
st ruetio?i of the hoat hy the order of the; owmM'. Now, I am
of opiiiidu that if the lund)er was received and used with llii!
knowlcdj^M! of the owner, he therchy ratified the act of the wit-
ness and made him his agent lor the trausuetiou, and ia liable.

.1 udi^'menl al'lirmed.

I cnni'ur: J'ryari, .1.

llKYDKNFKJiDT, .1., Dissctdin^'. 7 dissent, hecause there
is no |)rr((d' <d' privity of cf)nt rael, no proof t hat the lumher was



[1 Cal. Unrep.] Native American Mint. Co. v. Lock wood. 5



l)oiif,^ht on fu'coiint nf Ihc bojit, or hy Mtithority of Ihc owner.
And rilf lionj.'li i1 whs used in Ifif fonstruetion of tho boat, there
is nothing to sliow that, the purchase was not made by the car-
penter and on his own account. And there appears from his
testimony, taken by deposition and without cross-examination,
a studied attempt to av«id a full and explicit relation of the
facts.



NATIVE AIMERICAN MINING CO., Respondent, v. JOHN
LOCKWOOD, Appellant.

No. 637; September 22, 1855.

Appeal. — A Verdict Found by a Jury on Conflicting Evidence

wMl not bo (liHturhed on appfal.

Appeal. — An Appeal from Instructions, Given or Refused, not

appearing to have ho.oAt nxcoptcd to, will not be rntortaincMl.

Appeal. — Assignments of Error not Apparent in the Record will
not be conHidcrod.

APPEAL from Tenth Judicial District, Nevada County.

Ref,'an & Dunn for respondent; Anderson & Whiteside for
appellant.

IIEYDENPELDT, J.— The first five points would require
this court to review the evidence (which is of conflictin'^ char-
acter) and pass upon the correctness of the verdict, which we
have always refused to do. Second, the sixth and seventh as-
signments relate to the instructions given and refused, to
which the record fails to disclose that any exceptions were
taken. Third, the eighth, tenth and eleventh do not appear
upon the record.

It therefore results that there could be no error as to the
ninth and twelfth assignments, and therefore there is no error
in the record.

The judgment is affirmed.

I concur: Murray, C. J.



People r. ^NFarch. [1 Cal. Unrep.]



PEOPLE, Eespondent, v. JEPTIIA IMARCH, Appellant.
No. 711; September 22, 1S55.

Jury. — By Expressly Waiving a Juryman's Incompetency, as
being noiuesident of the county, a person under trial for crime
would be conferring jurisdiction by consent, which cannot be done.

APPEAL from Ninth District, Shasta County.

Attorney General for respondent; Crocker & Robinson for
appellant.

I\IURRAY, C. J. — The first section of an act concerning
jurors passed May 3, 1852, provides that "A person shall not
be competent to act as a juror, unless he be first a citizen
of the United States; second, an elector of the county in
which he is returned, etc."

On the trial of this cause in the court below one of the
jurymen stated in his examination that he was not an elector
of the county. The prisoner, however, accepted him as a
juror, waivinf; this objection. The incompetenc}^ of this juror
is now assigned as a ground of error, and is, in our opinion,
the onl.y debatable question raised by the record. It has
been always licld in civil cases that a party may waive all
errors, and tliat his consent will be binding upon him, except
when the jurisdiction of the court or tribunal is drawn in
question^ (for in such cases it is uniformly held that consent
cannot confer jurisdiction) ; but the law lays down a differ-
ent rule in criminal prosecutions, and its humane intendments
are in favor of the accused.

In ci-iminal cases, particularly tliose amounting to felony,
the better opinion is that nothing is to be presumed against
the criminal, and that he is not to be considered as having
waived any right unless the same should affirmatively ap-
pear. It is now to be considered whether a person charged
witli felony can waive any of these constitutional rights pro-
vided Joi- his protection and safety. The constitution of the
United States, as well as the constitution of California, guar-
antees to every man the right of jury trial. To the legisla-
ture of every state belongs the power of defining the (jualifi-



1 Cal. Unrep.] People v. March.



cations of every juror. Now, the legislature having acted
in this behalf and affixed certain qualifications, it may well
be asked if a party tried by a jury composed of persons not
possessing those qualifications is bound by the verdict. This
is answered by repeated adjudications, in which it has been
held that nonage, unsound mind, bias and alienage were suffi-
cient to vitiate the verdict. In these cases, so far as they
have come under my knowledge, the consent of the accused
has never been presumed, except from the fact of his want of
objection ; but if the verdict would be bad in these cases, and
that, too, where the general rule is that failure of the party
to except is considered a waiver, how could it be said to be
any more conclusive upon him in a case of express waiver
than one in which the law implies a waiver from his silence'?
We have held that a party cannot voluntarily submit himself
to a criminal trial ; that in such cases the tribunals of the
country have no jurisdiction over him, because they can only
proceed in a given direction and in conformity to the practice
and the law. If this be so, how can a party consent to be
tried by a jury composed of men whom the law has said are
disqualified from acting in that capacity? And how can his
consent make a man a juror and confer on him certain rights
of which the law has devested him? Suppose that one of
the jurors had been under age, would the acceptance of him
by the accused have made him a qualified juror in despite of
the statute? Or if one of the jurors had been a female, or a
person of unsound mind, or an unnaturalized foreigner,
would anyone have doubted that such person was incompe-
tent? The court or prosecuting officer would, on its own
motion, have excluded such person from the jury-box. The
right of the prisoner is to be tried by a jury. A jury is
composed of a certain number of persons possessing certain
qualifications, without which there can be no legally consti-
tuted jury, and the prisoner can no more waive a legal jury
and consent to be tried by incompetent men than he could
submit to be tried by the court without a jury.
Judgment reversed and new trial ordered.

We concur: Heydenfeldt, J.; Bryan, J.



Whitney et al. v. Flint. [1 Cal. Unrep.]



GEORGE A. WHITNEY and JOHN B. FENNE, Respond-
ents, V. WILSON FLINT, Appellant.

No. 588; October 1, 1855.

Trial— Special Verdict. — Where a Complaint Sets Up a Contract
whereby the plaintiff was to release a debt due from defendant and
give him an acceptance for more money, in consideration for which
defendant was to deliver certain merchandise to him, and alleges
then that afterward the parties changed the contract to the extent
that the payment of sixteen hundred dollars by defendant to plain-
tiff was substituted for the delivery of the merchandise, and the
jury at the trial brought in a special verdict to the eff"ect that the
contract as set up in the complaint was the contract of the parties,
the verdict is not bad as leaving questions of fact for the court to
find.

Appeal. — A Judgment will not be Reversed as being against
the weight of the evidence when there is sufficient in the record to
justify it.

APPEAL from Twelfth Judicial District, San Francisco
County.

Jesse McHenry for respondents; Crittenden & Hoge for
appellant.

BRYAN, J. — The complaint in this cause sets up a con-
tract between the parties by the terms of which the de-
fendant was to deliver to plaintiff a lot of merchandise, in
consideration of the release to him of a debt due from him
to the plaintiff and an acceptance for a further amount of
money.

The complaint also alleges that afterward, and before the
delivery of the merchandise, another engagement was sub-
stituted for the above, by the terms of which defendant agreed
to pay sixteen hundred dollars. A special verdict was ren-
dered in the cause to the effect that the contracts set up in
the complaint were the contracts of the parties. Counsel
object that this is not such a verdict as the court could render
its judgment upon, because the facts are not so presented as
that nothing could remain to the court but to draw fro'm them
its cuncliisiuns of law. I cannot perceive that this objection



[1 Cal. Unrep.] Dopman v. Hoberlin. 9

has any weight. The complaint sets up certain contracts be-
tween the parties by the terms of which the defendant was
first to deliver property, and by the second to pay an agreed
amount of money, the one substituted for the other. Upon a
verdict that the contract sued upon was the contract of the
party, the court could have no difficulty in entering its judg-
ment.

Upon the second point made by appellants the aid of the
statute of frauds is improperly invoked. If, in the first place,
the property to be delivered was subject to the order of the
plaintiff, the property was not removed by them, and the
transaction, in any event, could be disregarded by making a
subsequent agreement in regard to the payment of the debt.

The proof shows that there was merely a change of the mode
of payment of an existing debt. The evidence as disclosed
by the record is sufficient to justify the verdict, and this
court will not reverse a judgment for the reason that the
weight of evidence is opposed to the finding of a jury where
there is sufficient in the record to justify their finding.

The judgment of the court below must be affirmed, with
costs.

I concur: Murray, C. J.



DOPMAN, Respondent, v. HOBERLIN, Appellant.
No. 736; October 2, 1855.

Appeal. — The Admission of Inadmissible Testimony, through
misapprehension by the trial court of the bearing of a decision of
the higher court, is error for which a judgment will be reversed.

APPEAL from Superior Court of San Francisco County.
Hiram C. Clark for appellant.

MURRAY, C. J. — This was a suit instituted in the court
below to recover the value of the plaintiff's services as agent
of the defendant in the management of an estate in California.
On the trial of the cause the plaintiff introduced two wit-



10 IIiBBARD V. CiiiPAiAN ET AL. [1 Cal. Unrep.]

nesses to prove the value of his services in going twice to
Europe to negotiate the purchase of the estate, etc. It was
not shown that the plaintiff had undertaken these voyages
at the request of the defendant or in what capacity he went.
The question was hypothetical and assumed a certain state
of facts not in proof. As this was one of the principal items
of the plaintiff's demand, it must result that the testimony
induced part of the verdict rendered by the jury. The court
below, in delivering its opinion upon the motion for a new
trial, admits that the question thus asked is objectionable,
both in form and substance, but seems to consider it admis-
sible, by a misapprehension of the decision of this court in
the case of Innes v. Steamer Senator, 1 Cal. 459, 54 Am. Dec.
305.

An examination of that case will show that there is no
analogy between it and the one before us, and that the ques-
tion asked of the witness was neither speculative or hypotheti-
cal. For these reasons the judgment is reversed and the
cause remanded.

I concur: Bryan, J,



JAIMES F. HIBBARD, Appellant, v. CHIPMAN, PER-
ALTA & AUGENBAUGH, Respondents.

No. 849; December 15, 1855.

Reformation of Instruments. — The Assignment of a Lease rloos
not farry with it the lessee's right to have a court of equity reform
the lease for cause shown.

APPEAL from Fourth Judicial District, San Francisco
County.

E. W. F. Sloan for appellant; C. II. S. AVilliams and W.
W. Chipman for respondents.

IIEYDEXFKLDT, J.— Whatever rights the original les-
sees may have had to come into a court of equity to have
the lease reformed, certainly no such right passed to tlie plain-



[1 Cal. Unrep.] O'Connor v. Hammond, 11

tiff by their simple assignment of the lease to him. He
took with his eyes open, and can have no claim except to the
extent given by the plain import of the terms of the lease.
This view renders it unnecessary to consider the merits of
the bill.

Decree affirmed.

I concur: Murray, C. J.



HUGH O'CONNOR, Respondent, v. JOHN HAMMOND,

Appellant.

No. 779 ; January 7, 1856.

Witnesses. — The Question of the Incompetency of a witness
to testify because of interest must be raised at the trial.

APPEAL from Superior Court.

"W. H. Rhodes for respondent; E. L. B. Brooks for appel-



Online LibraryCalifornia. Supreme CourtCalifornia unreported cases, being those determined in the Supreme Court and the District Courts of Appeal of the State of California, but not officially reported, with annotations showing their present value as authority (Volume 1) → online text (page 1 of 77)