From a judgment in favor of plaintiff and from an order denying a new trial, defendant appeals. Affirmed.

W. H. L. Barnes, for appellant. J. C. Bates, for respondent.

PER CURIAM. Action to recover damages for the publication of a libel by defendant in his newspaper the Examiner. The jury returned a verdict for plaintiff in the sum of $2,650, for which amount judgment was rendered. Defendant appeals from the judgment and from an order denying his motion for a new trial.

No exception is taken to any ruling of the court below at the trial, nor is any alleged error of law presented; and the sole point made here for the reversal is that the amount of the damages found by the jury is excessive. But, on well-settled principles, an appellate court is not warranted in setting aside the verdict of a jury on this ground unless the amount of damages assessed is so unreasonably large and extravagant as to show that the jury were actuated by passion, prejudice, or corruption; and it is sufficient to say that the record here does not show such a case. The judgment and order appealed from are affirmed.

130 Cal. 616

RAUER MERANI et al. (S. F. 1,383. (Supreme Court of California. Dec. 10, 1900.) ASSUMPSIT GOODS SOLD-TIME OF PAYMENTEVIDENCE-CONSTRUCTION.

In an action for the price of goods, plaintiff's evidence tended to show a sale in August, on Saturday, payment to be part on Monday following, part the following week, and the balance the following week. Defendant's evidence was that the terms of payment were 30, 60, and 90 days, in accordance with notes payable September 15th, October 15th, and November 15th. The action was commenced August 28th, and there was judgment for the whole price in favor of plaintiff. Held, that the judgment was not supported by the evidence, since, in the absence of other proof as to the date in August on which the sale was made, it was inferable from defendant's 30-day note that it was on August 15th; and as, under plaintiff's evidence, there was a credit of 14 and 21 days for the second and third payments, the whole purchase price was not due on August 28th, when suit was begun.

In bank. On rehearing. Reversed.
For opinion in department, see 61 Pac. 76.

BEATTY, C. J. This is a suit to recover the price of goods sold. Plaintiff had judgment, and defendants appeal from the judgment and from an order denying a new trial. The claim on the part of appellants is that the action was commenced before payment was due, and their evidence is to the effect that the goods were sold on 30, 60, and 90 days' time, as evidenced by three promissory notes executed and delivered by them, payable September 15th, October 15th, and November 15th. The complaint was filed August 28th. The assignors of plaintiff, who

sold the goods, testified that, although the notes referred to were executed and tendered by defendants, they were not accepted, and that the sale was not upon the time specified therein. As to the real terms of the sale the testimony of one of the vendors was quite indefinite, but not inconsistent, with that of his co-partner, who stated that the goods were sold on Saturday, and were to be paid for $100 on the following Monday, $100 the following week, and the balance the week following. As the whole of the second and third weeks, respectively, were allowed for the second and third payments, there was a credit of 14 and 21 days given according to the only evidence introduced by the plaintiff. The goods were sold in August, but the evidence does not show at what date, and, consequently, it does not appear that more than $100 was due at the time the action was commenced. If the sale took place on the 15th, as may be inferred from the evidence of defendants that their first (or 30-day) note was made payable on September 15th, the final payment, even according to plaintiff's evidence, was not due on August 28th, when the complaint was filed. This being so, the judgment, which was for the whole price of the goods, is unsupported by the evidence. The judgment and order appealed from are reversed, and cause remanded.

We concur: TEMPLE, J.; VAN DYKE, J.; GAROUTTE, J.; MCFARLAND, J.

130 Cal. 621

In re KRUGER'S ESTATE. (Sac. 757.) (Supreme Court of California. Dec. 11, 1900.) ATTORNEY AND CLIENT-NEGLIGENCE-COM

PENSATION

1. A finding by a probate court that services rendered by an attorney for an estate in an action against it were rendered in connection with the administration of the estate cannot be questioned by the executors or attorney on appeal by heirs from an order fixing the compensation of the attorney for services rendered the estate. 2. The fact that an attorney for an estate did not ask for compensation for services rendered in an action against it will not prevent the consideration of the question of the attor ney's negligence in that action in fixing his compensation as attorney for the estate.

3. Where an attorney for an estate, in an action against it, failed to explain his delay in having a statement and amendments, on a motion for a new trial, presented for settlement, embodied in the statement, and evidence of such fact was given in fixing his compensation for services to the estate, an argument thereon may be made for the first time on appeal from the order fixing the compensation.

4. Where an attorney for an estate in an ac tion against it appointed a day too late for presentation for settlement of a statement and amendments on a motion for a new trial, and failed to explain the delay, so that an appeal based thereon was dismissed, and judgment rendered against the estate, such facts constituted negligence, and should be considered in fixing the attorney's compensation for services to the estate.

Department 2. Appeal from superior court, Nevada county; F. T. Nilon, Judge.

On the settlement of the account of the executors of the estate of W. H. Kruger, deceased, a fee was allowed the attorney for the estate, and from the decree fixing the amount certain heirs and legatees appeal. Reversed.

Fred T. Searls and Geo. T. Wright, for ap pellants. P. F. Simonds, for respondent.

TEMPLE, J. This is an appeal from a decree settling the sixth account of the executors, and the appellants seek to reverse the order or decree as to the allowance of the sum of $6,000 for legal services rendered the executors. The attorney was employed in 1891, with the understanding that he should render such services as the executors might require, and that he should receive such compensation for his services as the court should deem reasonable,-meaning, no doubt, such sum as the court would allow to the executors. Upon the settlement of the fifth annual account, one of the executors asked the court to fix the value of the legal services rendered, which the court then did. From that order the present appellants appealed to this court, and the order was reversed on the ground that the claim for an allowance of an attorney's fee was not contained in the account as filed, and those interested in the estate had no notice that such allowance would be made. 123 Cal. 391, 55 Pac. 1056. After filing the remittitur from this court on that appeal, the sixth account was filed, in which the statement was contained that the attorney was entitled to be paid a reasonable fee for valuable services rendered by him, such fee to be fixed by the court on that settlement. Upon the day for such settlement the appellants, who claim to be the heirs and legatees of the decedent, objected to the allowance of any attorney's fee, on the ground, substantially, that the estate had been injured by the negligent performance of duty by the attorney in a sum far exceeding the claim made on behalf of the attorney. The court allowed as an attorney's fee $6,000, which ruling the appellants claim is not sustained by the evidence.

There was testimony to the effect that the services were worth $10,000, and this testimony was not directly controverted. Indeed, it may be said the contestants admit that the fee allowed would be reasonable but for the fact that through the negligence of the attorney in a certain law suit brought against the estate it incurred a loss of a large amount of property, and was compelled to pay $17,000, besides costs, which would have been saved to the estate if the attorney had properly discharged his duty. It was contended on behalf of the attorney that his employment and the service he rendered in the action alluded to was separate and distinct from his employment as attorney for the executors in the administration of the estate, but the court found against him on this point,

and neither he nor the executor can question the ruling. We are bound to regard the service rendered in the suit as part of the service rendered in pursuance of his employment to aid the executors generally, and the fact that he did not ask for any compensation for service rendered in that case will not prevent the question of such alleged negligence from being considered in fixing his compensation as attorney for the executors.

The suit in question was brought by one P. Henry against the executors of W. H. Kruger, deceased, and also against the executors of E. J. Brickell, deceased, said Brickell having been a partner in business with Kruger, deceased, to obtain an account in regard to certain property alleged to have been held in trust by Kruger and Brickell, for judgment in the sum of $62,000, and to compel the conveyance of certain property. The defendants answered, denying the alleged rights and equities, and all indebtedness; the said attorney representing the estate of Kruger in pursu ance of said employment. Judgment went against said executors for a reconveyance of the property, and for $28,000 found to be due said plaintiff on the accounting, and for costs. The executors, by their said attorney, in due time took the proper steps to move for a new trial, and said attorney duly prepared and served a statement on said motion November 21, 1893. The plaintiff in that action served his proposed amendments to said statement, November 28, 1893. On the 2d day of December, 1893, said attorney notified plaintiff's attorney in that action that the proposed amendments would not be accepted, and that the statement and proposed amendments would be presented to the judge for settlement, December 11, 1893, which was three days too late. At the time of settlement the plaintiff in that case objected to the settlement on that ground, and, when his objection was overruled, caused his objection to be certified in the statement, and, although there was an apparent failure to present the statement for settlement in time, the moving party did not cause to be inserted any saving explanation. Afterwards the supreme court, on motion of the respondent in that case, dismissed the appeal, solely for this defect. Henry v. Merguire, 106 Cal. 142, 39 Pac. 599. The reasoning upon this point is tersely stated in the syllabus: "Where the record shows that the proposed statement on motion for a new trial, and the proposed amendments thereto, were presented to the judge upon notice after the expiration of the ten days prescribed by law, and that the settlement was objected to by the other party, and no excuse appears in the record for the delay, the delay is fatal," etc. The court said: "Here no excuse for the delay is shown, and it can make no difference whether it was for three days, or fourteen days, or seven months." It will be seen that the charge of negligence is, first, in failing to present the proposed statement and proposed amendments to the judge

for settlement within the period provided, to wit, within 10 days after receiving the proposed amendments; or, in case there was a valid excuse for the delay, in failing to have the facts constituting such excuse incorporated into the statement.

Confessedly, the statement and proposed amendments were not presented to the judge within 10 days; and confessedly, also, when they were so presented the settlement was objected to on the ground that the court had lost jurisdiction of the case, and could not then settle the statement because of such delay, and, the objection being overruled, were incorporated into the statement, which did not disclose any excuse for the delay. And it must be admitted that for one of these reasons the order for a new trial which was made, based upon such statement, was reversed.

The respondent here contends that such excuse did exist; that he handed the proposed statement and amendments to the judge in the presence of Mr. Ford, who represented the plaintiff in the action of Henry v. Merguire et al., and the judge then appointed the day for settlement, and notice was given of such appointment. This, it is contended, is equivalent to the method provided in section 650, Code Civ. Proc., which authorized him to hand the papers to the clerk for the judge, who then must appoint a day for settlement, of which the clerk must give notice. It is also contended that since the opposing attorney was present notice to him was not necessary, and this was itself a presentation to the judge for settlement. The notice actually given of the day when it would be presented for settlement is inconsistent with each contention, and when the documents were handed to the judge admittedly no notice had been served on Mr. Ford, and the attorney then testified that Mr. Ford then made objection to the proceeding, though he did not remember what specific objection it was. Certainly, then, the law was not complied with, and Mr. Ford did not consent to the day appointed.

But, if these facts constituted an excuse, they should have been stated in the statement when it was settled. The objection was made that the court had no power to settle and certify the statement because of the lapse of time, and without explanation no one could have doubted that the objection was good. The court overruled the objection, and Mr. Ford had his exceptions duly certified. Then it was plainly incumbent upon the moving party to cause the justification for the delay to be certified in the statement. This construction of the statute had been declared by this court. Higgins v. Mahoney, 50 Cal. 444; Tregambo v. Mining Co., 57 Cal. 504; Connor v. Road Co., 101 Cal. 429, 35 Pac. 431.

Counsel for appellant say the point that the excuse was not incorporated in the statement was not made in the probate court. The fact was proven, and when the attorney for the

63 P.-3

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executors was testifying his attention was called to it. He said: "These facts were not incorporated in the statement on motion for a new trial. Counsel did not then believe that seven days was invalid when five should be required." Of course, no such objection that seven days' notice was given was ever made, but the remark shows that the point was made. But there is no such rule that points not made at the trial cannot be made here, but that certain objections to evidence or the procedure cannot be made for the first time in the appellate court. This is not an objection in this case, but an argument from the evidence that counsel was negligent. It was not necessary to show that the same argument was made below, and surely the bill of exceptions would not show this, and it may be added that appellants now assert that it was presented and fully argued in the lower court.

The degree of learning and skill, as also the degree of diligence, for which an attorney is responsible was discussed in Gambert v. Hart, 44 Cal. 552. It is said: "The true rule of liability undoubtedly is that an attorney is liable for a want of such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise." The facts in that case have a close analogy in essential matters to the facts of this case, and upon the principles there declared it cannot be doubted that actionable negligence was shown here.

But even if the negligence was not of such a nature as to be actionable, as stated on the last appeal, it should still have been considered in determining the value of the services. If because of the unskillful or negligent manner in which the service was performed it was a detriment, and not an advantage, no compensation should have been allowed. The order or decree settling the account of the executors is reversed.

NECESSITY-NOTICE-PUBLICATION - INADEQUACY OF PRICE-SETTING ASIDE SALE.

1. Where the record did not show that findings were not waived, the fact that sufficient findings were irregularly put in the judgment, instead of in a separate document called "Findings," did not entitle a purchaser of the mortgagor's interest after foreclosure sale, and who was not a party to the record, to vacate the judgment on motion, since it was not void, and the error could be reviewed only on appeal.

2. The fact that a default judgment was entered one day too soon in foreclosure proceed. ings did not entitle a purchaser of a mortga gor's interest after foreclosure sale, and who was not a party to the record, to vacate the judgment on motion, since it was not void, but simply erroneous.

CITY AND COUNTY OF SAN FRANCISCO v. CENTER et al. (S. F. 1,512.) (Supreme Court of California. Dec. 10, 1900.) FORMER ACTION-DECREE-REFERENCE TO OPINION-CONSTRUCTION.

In a former action brought by defendants against plaintiff to quiet title, the judgment quieted title in defendants, with a proviso that nothing in the decree should impair the rights reserved in the Van Ness ordinance to the plaintiff, over lands that had "then been occupied or set apart" for public use. The opinion of the supreme court deciding that case held that all the rights which the plaintiff had, and which could be conveyed by said ordinance, had passed to defendant's grantor at a time shortly after the passage of such ordinance. Held, that the expression "then occupied or set apart," as used in the judgment, had reference to the date of the passage of the ordinance, and not to the date of the commencement of the action to quiet title, or the decree therein.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; Charles W. Slack, Judge.

Action by the city and county of San Francisco against John Center and others. From a judgment in favor of plaintiff, and an order denying a new trial, defendants Leroy appeal.

Platt & Bayne and E. S. Pillsbury, for appellants. James L. Gallagher, for respondent.

CHIPMAN, C. Ejectment. Plaintiff filed its complaint in this action November 29, 1886, to recover possession of a strip of land extending from Ninth to Eighteenth street, in the city and county of San Francisco, and which was formerly Mission creek. Among the defendants, of whom there is a large number, were Eugene and Georges Leroy, who claimed ownership in and possession of a portion of the land in question, to wit, the northerly and westerly half of Mission creek, extending from Eleventh street (known as "Wood Street" on the Van Ness map) westerly and southerly to a point distant about 26 feet 4 inches southerly from the southerly line of Alameda street extended westerly through this land. The Leroy land embraces quite a

large tract, but only the part within the creek is in question. Judgment was given in favor of plaintiff against the Leroys, except as to a small, four-sided tract of land, about 25 feet square, situate at the southwest corner of Alameda and Columbia streets, as to which the Leroys had judgment. From that portion of the judgment in favor of plaintiff the Leroys have appealed, and bring the record here by bill of exceptions. No other defendants appeal.

Plaintiff claimed to be seised in fee in trust for the use of the state and for the people of the city and county of San Francisco, and it based its claim of title upon a patent issued by the United States government June 20, 1884, to plaintiff for its pueblo lands; the decree of the United States circuit court in the case of City of San Francisco v. U. S., entered May 18, 1865, confirming the claim of the city to its pueblo lands; and the act of congress approved March 8, 1866, also confirming said claim. The decree and the act of congress are printed in full in 138 U. S. 663, and Municipal Reports San Francisco, 1886-87, Append. 155. The Leroys claimed under decree of the circuit court of the United States, quieting their title against the city and county, and adjudging that they were on, and have been since, October 26, 1883, the owners in fee of the land now claimed by them. On appeal to the supreme court of the United States this decree was affirmed (City and County of San Francisco v. Leroy, 138 U. S. 656, 11 Sup. Ct. 364, 34 L. Ed. 1096), with the following modification, as shown by the certified copy of the decree: "* * By adding the declaration that nothing therein shall be deemed to impair in any respect the rights reserved in the Van Ness ordinance to the city of San Francisco, or to its successor, the city and county of San Francisco, over lands that had then been occupied or set apart for streets, squares, and public buildings of the city, and as thus modified be affirmed." This decree is dated March 2, 1891, and was filed in the United States circuit court at San Francisco December 1, 1891.

*

Appellants first devote much attention to the proposition that the burden of proof was upon plaintiff to show that there were rights reserved to it under the Van Ness ordinance that would be impaired by the decree pleaded by appellants; they claim, second, that, if the burden was upon defendants, then they, with the assistance of plaintiff, made the proof; and, third and lastly, if any rights in the land covered by Channel street and Mission creek were reserved to the city under the Van Ness ordinance, these rights ceased to exist, because this street and the creek were abandoned by the city

It becomes necessary to determine at the outset to what period of time the modification of the Leroy decree by the United States supreme court related. Plaintiff contends that it had reference to the date of the decree as entered in the United States circuit court, which