subsisting contract existing between them under which a liability might be created, and was created, by the sale to the Pacific Sheet Metal Works. Of this contract the stockholders of the Eagle Automatic Can Company are charged with notice, since it was in effect their contract, executed by their board of directors; and it is alleged that the Pacific Sheet Metal Works purchased with notice of it, and therefore with notice that the sale authorizing the use of the machines outside of the city and county of San Francisco created a liability in favor of the plaintiff which the selling corporation, because of the sale, could not discharge, and therefore it took the property charged with that liability. Under these circumstances we think it clear that the Pacific Sheet Metal Works is both a proper and a necessary party to the action, and that the stockholders of the Eagle Automatic Can Company who received the stock alleged to have been issued to them in payment for the property sold to the Pacific Sheet Metal Works are proper parties.

It is also urged that the complaint does not show a case for an accounting. That it is a proper case for an accounting. would seem to be clear. These patents and improvements were assigned to the corporation by the plaintiff, but reserving an interest in certain profits which might be realized by the corporation. The relation thus created was fiduciary, and as to plaintiff's share or part of the profits realized the corporation was a trustee. But counsel say that the complaint shows that no profit was realized or received by the Eagle Automatic Can Company to be accounted for. The corporation having sold the property and authorized the delivery of the proceeds of the sale to its stockholders, in violation of the statute, will not be heard to say that nothing was received for which it should account. Non-payment is sufficiently alleged.

As to the other grounds of demurrer little need be said. There are many faults in the complaint, but they are capable of amendment, and as to most of them what has been said will sufficiently indicate what they are. Faults consisting in ambiguities and uncertainties should be viewed, to a certain extent, in the light of the situation of the parties as to their knowledge of the facts,—that is, as to facts of which the plaintiff cannot, from their nature, have as full information as the defendant, less certainty is required in the allegations of

the complaint, partly because a desirable degree of certainty may be impossible, and partly because the facts being known to the defendant he is not likely to be embarrassed or injured.

The allegation that the Eagle Automatic Can Company received no consideration for the sale has been sufficiently noticed.

In paragraph IX it is alleged that the Pacific Sheet Metal Works issued stock to the defendants named "to the value of $190,000." It is alleged in paragraph VIII that 2,888 shares of its stock were issued to the persons there named," and in paragraph X it is alleged that said 2,888 shares were of the value of $288,800. All of said 2,888 shares were issued to said defendants, and this difference in statement as to the value begets uncertainty.

We think the judgment should be reversed, with directions to overrule the several demurrers for want of facts, and to sustain the demurrers for ambiguity and uncertainty in the particulars herein specified, with leave to the plaintiff to amend his amended complaint, if he shall be so advised, and it is so ordered.

[S. F. No. 2647. In Bank.-February 14, 1902.]

THE STANLEY-TAYLOR COMPANY, Appellant, v. THE BOARD OF SUPERVISORS OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respond

ents.

MANDAMUS TO SUPERVISORS-LOWEST BID FOR PRINTING REJECTION OF ALL BIDS-POWER OF BOARD UNDER CHARTER.-Mandamus will not lie in favor of the lowest bidder for printing forms and blanks under an advertisement for sealed proposals therefor by the board of supervisors of the city and county of San Francisco, where the advertisement stated that "the board reserves the right to reject any and all bids if the public good so require," and the board, in the exercise of a power given to it by the charter, "when the supervisors believe that the public interests will be subserved thereby," rejected all bids for the reason assigned, "that public policy demands such action to be taken."

ID. ALLEGATION IN PETITION-REASON FOR REJECTION-ABSENCE OF UNION LABEL-JUDGMENT OF BOARD FINAL.-An allegation in the petition for mandamus, that no grounds of public interest or public

policy were stated, or could be truthfully stated or existed, and that the real reason for rejection of plaintiff's proposal was that plaintiff had not been authorized by the Allied Printing Trades Council to use its label, is not sufficient to support the petition, since the law has made the board the final arbiter of the question of public interest, and vested in it full discretion to determine the matter, and made its belief and judgment final, however capricious or erroneous the exercise of its judgment may have been.

ID. POWER OF COURT TO INTERFERE BY MANDAMUS-BELIEF AND DISCRETION OF BOARD-CAPRICIOUS ACTION.-The court cannot interfere by mandamus to substitute its belief and judgment for that of the board. The writ of mandate will lie to correct illegal but not capricious acts. It will only lie to compel the performance of an act specially enjoined as a duty resulting from an office; and where the discretion to be exercised by the inferior tribunal was intended to be final, it cannot be controlled by mandamus.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank J. Murasky, Judge.

The facts are stated in the opinion of the court.

W. B. Kollmyer, for Appellant.

Franklin K. Lane, City Attorney, for Respondent.

THE COURT.-Appeal from judgment, entered for defendants, after order sustaining demurrer to petition for a writ of mandate. The petition shows that the defendants, as the board of supervisors of the city and county of San Francisco, advertised for sealed proposals for furnishing the said city and county with certain printed forms and blanks, and that the contract would be let to the lowest bidder. The advertisement stated that the "board reserves the right to reject any and all bids if the public good so require." The petitioner put in a bid in due form, which was the lowest of several bids for the class of work described in the bid. The board rejected all bids "for the reason that public policy demands such action be taken."

The learned judge of the court below, in sustaining the demurrer to the petition in a written opinion, said:

"The charter of the city and county provides that 'all contracts for.... printing for the city and county.... must be made by the supervisors with the lowest bidder offering ade

quate security'; and, after setting forth the manner in which proposals shall be received, the charter further provides that 'when the supervisors believe that the public interests will be subserved thereby, they may reject any and all bids and cause notice for proposals to be re-advertised.'

"It is alleged that no grounds of public interest or public policy were stated by defendant, or that any could be truthfully stated, or that any existed; and that the real reason for rejection of plaintiff's proposal was, that plaintiff had not been authorized by the Allied Printing Trades Council to use its label.

"Where the law intended a subordinate body to be the final arbiter of any question, vesting such body with discretion to determine the matter, and making its judgment absolute, the writ of mandate will not lie to divest or mold or otherwise interfere with such discretion. In this instance, as appears from the resolution adopted and set out in the petition, the board of supervisors exercised its discretion. It determined a fact it was empowered by the charter to determine. That its determination was erroneous or its reasons bad is immaterial. It had jurisdiction to decide the matter, and having such jurisdiction, its judgment cannot be controlled by the courts. How the public interest was subserved by rejecting the bid of plaintiff does not appear. Plaintiff was the lowest bidder, and had complied fully with the requirements of the charter, but that the board believed public policy would be subserved appears from the petition, and, under the law, action upon such belief is an exercise of discretion. The legislature has committed the power of deciding to the defendant. 'When the supervisors believe,' is the language of the charter, 'that public interest will be subserved,' they may reject 'any and all bids.' Were the court to interfere, it might substitute its belief and its judgment for the belief and judgment of the board, a result that our system does not contemplate. The writ of mandate will lie to correct illegal but not capricious acts."

We agree with the above, and adopt it as part of this opinion.

The writ will only issue to compel the performance of an act specially enjoined as a duty resulting from an office. (Code Civ. Proc., sec. 1085.) If the discretion to be exercised

by the inferior tribunal or board was intended to be final, or if there is any other plain, speedy, and adequate remedy, mandamus will not lie. (Wood v. Strother, 76 Cal. 545, and cases cited.)

The judgment is affirmed.

Rehearing denied.

[Crim. No. 758. In Bank.-February 14, 1902.]

THE PEOPLE, Respondent, v. FRANK R. DONLAN, Appellant.

CRIMINAL LAW-MURDER-EVIDENCE--MOTIVE OF REVENGE-SANITY OF DEFENDANT.-Upon the trial of a defendant charged with murder, who relied upon the defense of insanity, evidence tending to show a motive of hatred and revenge, and that the acts of the defendant were not those of an insane person, is admissible for the prosecution. ID.-INSTRUCTION AS TO DEFENSE OF INSANITY-CAUTION TO JURY.-In instructing the jury as to the defense of insanity, it was proper to caution them in substantial accordance with the previous decisions of this court, and to tell them, in substance, that while they should weigh the defense fully and justly, and should sustain it as humane and just when satisfactorily established, "they are to examine it with care, lest an ingenious counterfeit of such mental disorder should furnish protection to guilt."

!

ID.-INSTRUCTION AS TO TIME OF INSANITY-PRESUMPTION-BURDEN OF PROOF-RANGE OF EVIDENCE.-It was proper to instruct the jury : that they were not required to determine whether or not the defendant was insane at the time of trial, but that the issue was as to whether he was insane at the very time of the homicide; that the law presumes him sane, and that the burden of proving his insanity rested upon him; and that in determining the question whether he was insane at the time of the alleged commission of the act, they were to consider all of his acts and conduct as shown by the evidence at that time, and before and since that time, and to consider his appearance and actions during the trial, as a circumstance in determining his insanity at the time of the homicide.

APPEAL from a judgment of the Superior Court of Tulare County and from an order denying a new trial. W. B. Wallace, Judge.