ness of appellants. Whatever may be the meaning of section 1835 of the Code of Civil Procedure, it is clearly modified by the subsequent section 2061, which provides that "in civil cases when the evidence

is contradictory, the decision must be made according to the preponderance of evidence"; and it is settled law that where, in such a case, the evidence on an issue of fact is fairly and substantially conflicting, the finding of the trial court must stand.

The finding that the damages were caused by the acts of appellants must also stand. There is some contention that the dam mentioned in the complaint was not the identical one which was torn out by appellants, but this is not maintainable. It is averred in the complaint that respondent diverted the water into his ditch by "small dams," and the court found that appellants had in-. terfered with and destroyed the "dam and dams" by which the water was diverted. It appears from the evidence that the place where the ditch tapped the stream was level and swampy, and that the stream, as one of the witnesses described it, "kind of halted," and spread out over a large space where there were bushes and small trees, and small dams had to be put in various places at different times. The court found, upon sufficient evidence, that the acts of appellants interfered with the conditions which had existed at the head of the ditch for 30 years before they went there or had acquired any interest in the adjoining land, and caused the stream to break through its banks a little above where the small dams usually were, and made it necessary for respondent to put in a dam at the break, which dam appellants tore out. The dams mentioned in the complaint were those which were necessary to keep the water diverted into the head of the ditch, and the head of the ditch had never been changed. The court also found, upon sufficient evidence, that certain acts of appellants, and not the keeping of a dam in the stream by respondent during the winter, caused a certain overflow of the ditch which appellants complain of.

There was also sufficient evidence to sustain the finding that the respondent's crops on the particular land occupied by himself were damaged to the extent of $500, without considering damage to crops on lands occupied by his sons in which he had an interest.

The foregoing are the main issues of fact. It is contended that a new trial should be granted because there was no finding on the averment of appellants that they were the owners of certain described lands; but the court, in various findings, refers to "the land" of appellants, and the whole case was tried on the theory that they owned the land described in their answer through which the ditch runs. Moreover, an express finding

that appellants did own such lands could in no manner have changed the result.

We see no other points in the case which require notice.

The order appealed from is affirmed.

HARRIS v. HARRIS et al. (Sac. 875-877.)1 (Supreme Court of California. May 20, 1902.)

TRUSTS

HUSBAND AND WIFE VOID MARRIAGE SEPARATION AGREEMENT-EFFECTATTORNEYS CONFIDENTIAL COMMUNICA

TION-APPEAL-QUESTIONS CONSIDERED.

1. Plaintiff, who had contracted a marriage which was void because her husband had a wife living, testified, in an action against his heirs to establish a trust in his property, that when they were married she gave him control of a certain mine, but that she had no agreement with him. The husband worked the mine from 1873, but no great amount of gold was taken therefrom till 1880, and the evidence did not show the specific amount of gold taken therefrom, or that it more than paid working expenses, prior to 1877, in which year the husband purchased other property. The husband, from the time of his marriage to plaintiff till the purchase of the latter property, was engaged in prospecting and working other mines and in dealing in mining property. Held not sufficiently clear, satisfactory, and convincing to show that the husband at the time he acquired the property had no money other than that received in working plaintiff's mine, or that the use of the earnings of the mine by the husband created any trust relation between plaintiff and the husband.

2. A separation agreement between parties living together as husband and wife under a marriage void because the husband had a wife living contained a clause that the husband should have all the wife's interest in any property owned or claimed by the husband except a certain mine. The entire title to another mine was in the husband at the time, and the wife made no claim thereto, but stated that the husband could get a living out of it, and she made no claim thereto during the life of the husband, but consented to his borrowing money from her sons, and advised them to take a mortgage on the mine. Held, that the agreement conveyed all her interest in the mine to the husband, so as to preclude her from claiming a trust estate therein.

3. A determination by the trial court, in a suit to establish a trust in real property standing in the name of another, that the evidence is not sufficiently clear, satisfactory, or convincing to establish such trust, is conclusive on appeal.

4. The rule that an attorney cannot testify to communications by his client does not apply when such communications are made when the attorney is acting for both parties.

Department 1. Appeal from superior court, Tuolumne county; G. W. Nicol, Judge.

Suit to establish a trust by Clara A. Harris against Timothy R. Harris and others. From a decree for defendants, plaintiff appeals. Affirmed.

J. B. Curtin and H. V. Morehouse, for appellant. A. M. Drew, F. H. Short, F. P. Otis, J. F. Rooney, and F. W. Street, for respondents.

HARRISON, J. The plaintiff was married to one W. N. Harris at Stockton, in this state,

1 Rehearing denied June 20, 1902.

in October, 1873, and thereafter lived with him as his wife until March 26, 1892. At that date an agreement called a "separation agreement" was entered into between them, under which they lived apart for about two years, and then resumed their former relation, and continued to live together until the death of Harris, in October, 1898. Harris had been married in Georgia, in July, 1848, and when he came to California in 1850 he left his wife in Georgia, where she continued to live until her death in 1892; and also a son, John L. Harris, one of the defendants herein, the issue of that marriage, who was born in September, 1849. The plaintiff was, however, ignorant of the fact that Harris had a wife, and did not know of the existence of his son, or of the fact of his previous marriage, until after his death. At the time of her marriage to him she was the owner of the Gem mine, and also of a one-third interest in the Mazeppa mine,-two mining claims situated in Tuolumne county. For several years after their marriage Harris prospected and worked the Gem mine, and during that time took a large amount of gold therefrom. Nothing appears to have been done upon the Mazeppa mine, other than assessment work, prior to December, 1879. At that time Harris purchased from Dixon and Rodgers, two of the original locators of the mine, a twothirds interest in the mine, and received a conveyance therefor from them. In March, 1880, with the consent of the plaintiff, he relocated the mine in his own name, and on May 31, 1882, upon his application therefor, a patent for the mine was issued to him by the United States. In July, 1877, Harris purchased a mining claim of Hix and Onby, which he located in 1885 in his own name as the Junietta mine. By the aforesaid separation agreement Harris conveyed to the plaintiff all of his interest in the Gem mine and in certain other property, and the plaintiff conveyed to Harris all her claim or right "to any and all other property owned or claimed by him, or any other property that he might thereafter acquire or have at the time of his decease." During the year prior to his death Harris made contracts for the sale of the Mazeppa and the Junietta mines, to be paid for in installments. A portion of the -purchase price under these contracts was paid to him in his lifetime, and the remainder to his executor after his death. The plaintiff brought this action against his heirs and legatees and the executor of his will to have it adjudged and declared that she was the owner of the Mazeppa and Junietta mines, and that Harris held the legal title thereto in trust for her, and that the executor pay over to her the money received by him by virtue of the contracts of Harris for their sale. In the first count of the complaint the plaintiff alleges her ownership of an undivided third of the Mazeppa mine, and an agreement by Harris, who held the legal

title to the other two-thirds, that upon receiving the patent therefor in his own name he would hold in trust for her one undivided third of said mine, and upon any sale thereof would pay to her one-third of the purchase price received therefor. In the second count of her complaint she alleges that she was the owner of an undivided third of the Mazeppa mine at the time of her marriage to Harris, and that she furnished the money with which he purchased from Dixon and Rodgers the other two-thirds of said mine, and that he purchased the same from them, and took the legal title thereto in his own name, at her direction and request; that thereby a trust resulted in her favor for said two-thirds interest; that the relocation of the mine in March, 1880, and the issuance of a patent therefor in his own name, was made in pursuance of his statements and representations to her that he would hold the same in trust for her, and would manage the same at her direction and for her benefit; that she at all times believed that her marriage to him was valid and binding, and relied upon his statements and representations as those of a husband; that she furnished him from her sole and separate property all the moneys used by him in relocating said mine and paying the expenses of procuring the patent therefor; that by reason of these facts a trust resulted in her favor for the whole of said mining claim, and that Harris acknowledged the existence of the trust, and did not repudiate the same until shortly before his death. Similar allegations are made in regard to the purchase by him of the Junietta mine, from which the plaintiff claims a resulting trust in her favor for the whole of that mine. The court found that for many years prior to the time of the relocation by Harris of the Mazeppa mine,-March 11, 1880,-and until the 26th day of March, 1892, the plaintiff was the owner of an undivided one-third of said mining claim, and that from and after obtaining the patent for the mine until March 26, 1892, Harris was the owner in his own right of a two-thirds part of said mine, and held the remaining third in trust for the plaintiff; that the said relocation of the mine by Harris, and his procurement of a patent therefor in his own name, was, as to two-thirds of the mine, for his own use and benefit, and for the use and benefit of no other person; that on March 26, 1892, the plaintiff conveyed her interest in said mine to Harris, and that Harris was thereafter, until the time of his death, the sole owner of the entire mine: that the plaintiff was never interested, either as owner or otherwise, in the Junietta mine, but that Harris at the time of his death, and for many years prior thereto, was its sole owner. The court found against the allega tions of the plaintiff that Harris agreed with her to hold any of said property in trust for her, or that he did hold any in trust for her, except as to the one-third interest in the Ma

zeppa mine, or that she furnished the money with which he purchased the two-thirds interest in the Mazeppa mine, or any portion of the purchase price for the Junietta mine, or that the same was purchased for her use and benefit, or that he ever admitted or acknowledged that he held the same in trust for her. Upon these findings the court rendered judgment in favor of the defendants, and that the plaintiff take nothing by her action. Plaintiff afterwards asked the court to vacate the said judgment and enter judgment upon the findings in her favor. This motion was denied, as was also a motion by her for a new trial. The appeals herein are from these two orders, and also from the judgment.

As at the time of the plaintiff's marriage to Harris he had a wife living in Georgia, the plaintiff never became his wife, and their respective rights to the property in question, flowing from the subsequent dealings and transactions between them, are to be measured without reference to the rights and obligations of husband and wife. The plaintiff does not, in her complaint, claim the property to be hers by virtue of having been the wife of Harris, but upon the ground that it was held by him in trust for her. The ground upon which she relies for this claim is that the Gem mine was her separate property, and that the purchases by Harris of the Junietta mine and the two-thirds interest in the Mazeppa mine were made with moneys which were taken by him from that mine, and that he purchased the same at her direction and request. She claims that the finding of the court to the contrary is not sustained by the evidence. In support of this claim she sought to show that Harris was without any means of his own, and that whatever property he acquired was the result of his working the Gem mine. The testimony before the court did not, however, require it to hold that Harris had no money other than the proceeds of his working the Gem mine, or that what he took from that mine created any relation to the plaintiff other than that of debtor therefor. The plaintiff testified that when they were married she asked him to take care of her property, and see that everything was taken care of, and that she allowed him to work the mine and hire men, and that she had no agreement with him. It does not appear that prior to 1877 the mine yielded anything beyond the cost of the labor therefor. Nor is there any evidence of any specific amount of gold that was taken from the mine by Harris. The evidence shows that, although Harris worked the Gem mine from the time of their marriage, in 1873, no great amount of gold was taken therefrom for several years, and it was shown that Harris during this time was engaged in prospecting and working other mines, as well as dealing in mining properties. In 1880 a mill was put upon the mine, and during a few years thereafter a large amount of gold was taken there

from. Much discussion is given in the briefs to the proposition that a resulting trust was created in the plaintiff from the purchase by Harris from Dixon and Rodgers of their interest in the Mazeppa mine. We find it unnecessary to enter upon an examination of this question, inasmuch as the plaintiff, by the agreement of March 26, 1892, conveyed to Harris all her claim to any and all property other than the Gem mine "owned or claimed" by him, or which he might thereafter acquire. The finding of the court that the Mazeppa mine was included in this conveyance is sustained by the evidence. The entire title to the mine was at that time in Harris by virtue of the patent, and, in the absence of testimony to the contrary, it must be assumed that he claimed that it was his own. At the time the plaintiff signed this agreement she did not assert any claim to it, and in reply to a question from her at that time Harris said that he could get a living out of that mine, and he immediately afterwards went to the mine and lived there. It does not appear that the plaintiff at any time during the life of Harris made any further claim to this mine. After the plaintiff had executed the agreement, and while Harris was still living apart from her, she assented to his borrowing $500 from her sons, and advised them to accept from him a mortgage upon the Mazeppa mine. The rule is well settled that one who would claim the ownership of property of which the legal title stands of record in another, or that the same is held by such person in trust for the one so claiming, must establish such claim by evidence that is clear, satisfactory, and convincing. Woodside v. Hewel, 109 Cal. 481, 42 Pac. 152; Plass v. Plass, 122 Cal. 3, 54 Pac. 372. Whether the evidence in any particular case is of this character must be determined by the trial court, and its determination thereon will be accepted by this court as conclusive. In the present case the superior court held that the evidence before it is not sufficient to sustain this claim of the plaintiff, and we are not at liberty to say that the evidence required a different conclusion.

The court did not err in permitting the witness Rooney to testify respecting the transaction of March 26, 1892. At that time he was acting as the attorney for both parties, and in such a case the rule prohibiting an attorney from testifying as to the communications of his client is inapplicable. In re Bauer's Estate, 79 Cal. 304, 21 Pac. 759; Murphy v. Waterhouse, 113 Cal. 467, 45 Pac. 866, 54 Am. St. Rep. 365; Hurlburt v. Hurlburt, 128 N. Y. 420, 28 N. E. 651, 26 Am. St. Rep. 482. The objection of the appellant to the ruling of the court admitting in evidence her answer in the contest upon the probate of the will cannot be considered. At the time the ruling was made it did not appear that there had been an amended answer filed. No motion was afterwards made

to strike out the evidence thus received. Moreover, the plaintiff could not have been injured by the evidence.

The judgment and orders are affirmed.

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

NICHOLS v. RANDALL. (S. F. 2,152.) (Supreme Court of California. May 28, 1902.)

TRUSTS-ACTION TO RECOVER DEPOSIT-EVIDENCE-VARIANCE-PLEADINGS-AMENDMENT-LIMITATION.

1. Where a complaint alleges that plaintiff deposited money with defendant, to be loaned by the latter, and its appropriation by defendant, and his refusal to account therefor. and defendant pleads a general denial and a counterclaim alleging an account current, closed by an account stated, showing a balance in his favor, and asks judgment for such balance, it is error, as not being within the issues, to allow plaintiff to give evidence that defendant sold and retained the proceeds of land to which he held the legal title in trust for plaintiff, and misrepresented the price received for other lands belonging to plaintiff, though the proceeds of the sale of such lands is the deposit in controversy.

2. When such evidence is erroneously admitted over defendant's objection, it is error to refuse to allow defendant to plead the statute of limitations by way of amendment to his auswer, as the complaint does not show any fraud or mistake, and plaintiff cannot avoid the statute of limitations by alleging a trust, and then proving a cause based on fraud.

Commissioners' decision. Department 2. Appeal from superior court, Humboldt county; G. W. Hunter, Judge.

Action by John Nichols against A. W. Randall. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

S. M. Buck (C. W. Wheeler, of counsel), for appellant. Sevier & Selvage, for respondent.

COOPER, C. The amended complaint alleges that on April 1, 1883, the plaintiff deposited with defendant $35,000, to be loaned by defendant for plaintiff, and that defendant guarantied plaintiff 9 per cent. per annum interest upon said money, compounded annually; that defendant did not loan said money, but used the same in his own business; that in April, 1897, the defendant repudiated his trust in regard to said moneys, refused to account to plaintiff therefor, and ever since has refused to pay plaintiff the said sum, or any part thereof. Judgment is prayed for said $35,000, and $20,000 interest alleged to be due thereon. Defendant answered, and, after denying the allegations of the complaint, alleged by way of counterclaim that between the years 1875 and 1896 there was an open, mutual, and current account between plaintiff and defendant, and that in December, 1896, said account was stated and agreed upon, and by it plaintiff was found to be indebted to the defendant in the sum of $3,739.03, which sum has not

been paid. Also, in a separate count, defendant, by way of counterclaim, alleged that between the years 1875 and 1896 defendant loaned and advanced to plaintiff many thousands of dollars, all of which has been repaid by plaintiff to defendant, except the sum of $3,739.03, which amount remains due and unpaid. Judgment is prayed in the answer for said sum. The case, upon these pleadings, was tried before a jury, and a verdict rendered in favor of plaintiff for $21,632. Subsequently, on motion for a new trial, the court reduced the amount to $12,000, which seems to have been consented to by plaintiff. The court then made an order denying the defendant's motion for a new trial, from which order this appeal is taken.

The main contention of defendant is that the court erred in the admission of evidence showing a case entirely different from that alleged in the complaint. This is the only point that need be considered. The complaint sought to charge defendant upon a special contract in regard to a deposit of $35,000. The plaintiff testified that he left the money that he sold his timber land for in 1882 with defendant. "He told me if I would leave the money with him it should net me nine per cent. Think this was in April, 1883. It was left with him under that agreement." It appears, without conflict, that about December, 1882, defendant sold to one Russ a tract of about 3,300 acres of timber land, part of it being land of plaintiff, and part of it land of defendant; that he gave plaintiff credit on his books for 1,400 acres at $20 per acre, amounting to $28,000; that statements of plaintiff's account were given to him at different times, containing such credit entry. It is sufficient here to say that the money alleged to have been deposited with defendant was the proceeds of the timber land sold by defendant to Russ in 1882. The plaintiff sought to prove, and introduced evidence tending to prove, that, of the land sold, 280 acres stood on the records in the name of defendant, but was held in trust for plaintiff, and that, instead of 1,400 acres, plaintiff should have credit for 1,680 acres, and that the land brought $25 per acre, instead of $20. The difference in the amount of land, 280 acres, and the difference in price for the whole, $5 per acre, were the important points by virtue of which the plaintiff sought to make out his case against defendant. That a fraud was committed upon plaintiff in 1882, 16 years prior to the commencement of this action, by reason of the concealing of the real price per acre, and by reason of plaintiff being entitled to the proceeds of 280 acres of land held by defendant in trust for plaintiff, was attempted to be established by parol evidence upon a complaint on a special contract, that contains not even a suggestion as to fraud or mistake. The defendant objected at every opportunity, and insisted that the evidence was not competent under the plead ings. After the plaintiff's counsel had stated

the case to the jury, the counsel for defendant stated to the court that the complaint lid not disclose any such facts as counsel for for plaintiff had stated that he would prove, and asked permission of the court to amend his answer, which permission was refused. After plaintiff had introduced some evidence, and was endeavoring to show that plaintiff owned a greater number of acres than defendant had given him credit for, the judge said: "If you can show that Mr. Nichols had transferred more land to Mr. Randall, which was sold to Russ, than he has received credit for in his account, you may do so. Mr. Buck: Well, we will stop this trial right here. They may amend their complaint and set up these facts. Let us know what it is you claim, so we can meet it. If we only know what the plaintiff claims, we will meet and fight it. Court: If you had a complaint upon that theory, and an answer denying it, I would know what to do; but the only question in my mind is, is it admissible under the first cause in the cross complaint? I think I will permit evidence as to the land sold to Russ, and the price, on the part of Mr. Nichols. I will hear what he has to say as to the land that Randall sold to Russ for him." After the court had ruled that the evidence would be allowed under the allegations of the answer, counsel for defendant asked leave to amend his answer by striking therefrom the count under which the court held the evidence admissible. This the court refused. Defendant's counsel during the progress of the trial filed an affidavit setting forth the fact that he was surprised by the rulings of the court as to the admission of evidence under the pleadings, and again asked that he be permitted to file an amended answer. The amended answer was prepared and exhibited to the court, but the court refused permission to file it. answer pleaded the and alleged that the the laches of plaintiff. ed parol testimony as to lands disposed of by defendant being held in trust for plaintiff, and that in face of the record title that plaintiff really owned the lands. This was entirely outside of the issues made by the pleadings. The plaintiff should have been confined in his proof to the cause of action as set forth in his complaint. If he deposited $35,000 with defendant for a certain purpose, that was one thing. If defendant fraudulently disposed of lands held in trust, and fraudulently misrepresented the price for which the lands were sold, and appropriated the proceeds, that was another and different thing. The defendant had the right to have the complaint state the facts, upon which it was sought to charge him, in a plain and concise manner. He had the right to meet the facts by proper answer, and to plead the statute of limitations if he so desired. Many of the transactions had taken place nearly 20 years before the suit was brought. De

The proposed amended statute of limitations, action was barred by The court then allow

fendant kept books, and furnished plaintiff statements that had not been questioned for years. Plaintiff testified, in cross-examination, in speaking of the land: "Could not tell you how much I deeded to Randall. Somebody would have to look at the deeds to find out what I did deed." And in speaking of the accounts: "They never refused to give me anything I asked for. Never found any fault. I didn't know anything about it. I didn't try to know anything about it. I trusted everything to him. When the account was furnished I found out they claimed I drew all the money. I drew money there for twenty years. Drew $800 at one time. When I left the money with Randall the agreement was that when I wanted any money I should draw it. Always got it when I wanted it till December, 1896." This evidence shows how important it was that the proof should have been confined to the pleadings.

If the court's views had been correct as to the competency of the evidence under the pleadings, the defendant should have been granted permission to amend his answer. The refusal to grant such permission under the circumstances was an abuse of discretion. It would have been in furtherance of justice to allow the pleadings to have been amended so as to present the issues properly. To allow a complaint like this to stand, with no suggestion of the real nature of the cause of action, and no opportunity given defendant to plead the statute of limitations, is to deprive him of a substantial right. If the practice in this case be adopted, and, under an allegation of money deposited under special contract, the plaintiff be allowed to prove fraud, to charge the price of lands standing in defendant's name with an equity in favor of plaintiff, and to show a misrepresentation as to the amount the land sold for, we will in the future have little use for pleadings. Even the rules laid down in the Code of Civil Procedure could be dispensed with. It is one of the elementary rules that the proof must correspond with the allegations, and be confined to the point at issue. It has many times been said here that a judgment cannot be sustained unless the proof establishes the cause of action alleged in the complaint, even though a different cause of action be fully proven. Mondran v. Goux, 51 Cal. 151; Bryan v. Tormey, 84 Cal, 130, 24 Pac. 319; Stout v. Coffin, 28 Cal. 65; Devoe v. Devoe, 51 Cal. 543; Murdock v. Clarke, 59 Cal. 683. It is said by plaintiff that this is really an action of assumpsit for money had and received, and that such form of action may be used in this state. It has been held that such counts are good in the absence of a special demurrer. Minor v. Baldridge, 123 Cal. 190, 55 Pac. 783, and cases cited. But this is not the common count in assumpsit. The common counts in assumpsit are founded on express or implied promises to pay money. They lie only in cases in which the action of debt is sustain