the rent agreed to be paid by the defendant. The respondent seeks to overcome the want of averments showing the extent of damage sustained by citing a passage in Alderson v. Houston, 154 Cal. 1, [96 Pac. 884], where the court declared that the repudiation of a contract made out a prima facte case of liability on the part of the defendant for the entire sum which he had agreed to pay, and threw upon him the burden of showing that the plaintiff could have reduced the damage. Alderson v. Houston was a case of an agent wrongfully discharged and thus prevented from performing the contract on his part. The opinion expressly pointed out that the repudiation of a contract will not be deemed a prevention of performance where the obligations repudiated or unfulfilled by the defendant are not conditions precedent to performance by the plaintiff. The lease here in question did not bind the lessor by any covenants which were conditional upon the performance by the lessee of his obligations. If, therefore, the lessor sought to hold the lessee for the damage occasioned by an unauthorized repudiation of the lease, she was bound to allege and prove the amount of such damage.

The respondent makes the further attempt to meet the want of an allegation of damage by referring to Riser v. Walton, 78 Cal. 490, [21 Pac. 362], where the court used language to the effect that where a breach of an obligation is alleged, a prayer for damages in a certain sum may be treated as equivalent to an averment that plaintiff has suffered damage in that sum. But it appears that, in that case, the trial had proceeded upon the theory that the amount of damage was properly in issue, and the affirmance was rested, at least in part, on that ground. In the later case of Lehnhardt v. Jennings, 119 Cal. 192, [48 Pac. 56, 51 Pac. 195], the court held adversely to the claim that the prayer of the complaint was necessarily conclusive of the question of jurisdiction regardless of the averments on which such prayer was founded. However, even if we assume that Riser v. Walton decides that a prayer for judgment, in an action for damages, will supply the want of allegations showing the extent of the damage, the rule contended for could not be applied here. In Riser v. Walton the complaint showed upon its face that the sole cause of action relied upon was one for damages for deceit. In this case, as we have already suggested, the complaint was drawn in the belief that the facts al

CLXII Cal.-20

leged entitled the plaintiff to recover immediately the rent for the entire term, and the plaintiff undertook to set forth a demand for such rent. That this is the true interpretation of the pleading is confirmed by the language of the briefs first filed by the respective parties. There was nothing to indicate that damages for breach of an entire contract were claimed. In such a case, a court would not be warranted in saying that an allegation that plaintiff had suffered damage in the sum of six hundred dollars was to be implied from the mere fact that judgment in this amount had been asked.

On the other point, that of the defense attempted to be set up by the answer, little need be added to the argument contained in the opinion above quoted. The averments of the answer show that the defendant does not claim a right to have water flow, unimpeded by any act of the plaintiff, but that he seeks to impose upon the plaintiff the affirmative burden of keeping the water system and conduits in repair. Such duty is not included within the reasonable interpretation of the word "appurtenances." (Watkins v. Green, 22 R. I. 34, [46 Atl. 38].) The introduction of parol evidence in support of the allegations of the answer would not, therefore, be in aid of the interpretation of the lease. It would result in showing, in violation of the parol evidence rule, that there was, beyond the terms embodied in the lease, an antecedent oral agreement binding the lessor to do something more than she had in her lease agreed to do. Or, stating it in another way, it would, instead of showing what the "appurtenances" were, show that the lessor had undertaken to relieve the lessee of the burden which (except to the extent of the provision of Civ. Code, sec. 1942), would rest upon him (Van Every v. Ogg, 59 Cal. 563; Gately v. Campbell, 124 Cal. 520, [57 Pac. 567]), of keeping in repair the agencies requisite to the enjoyment of the appurtenances.

The judgment is reversed, with directions to the trial court to dismiss the action.

Shaw, J., Angellotti, J., Lorigan, J., and Melvin, J., concurred.

Rehearing denied.

[S. F. No. 6014. In Bank.-May 2, 1912.]

GEORGE PUTERBAUGH, Petitioner, v. JAMES E. WADHAM et al., Respondents.

MANDAMUS-FUNCTIONS OF WRIT-PERFORMANCE OF DUTY IN PARTICULAR MANNER.—The writ of mandamus is not a writ of error, and, generally speaking, it is not available for the purpose of altering or varying in any particular the finding of a judicial or quasi judicial body or officer acting within its or his appropriate jurisdiction; but where the facts are not disputed and the only matter to be determined is the duty of the body or officer under the law, the court will define such duty and enforce not only its performance but the carrying out of the obligations of the body or officer in a particular manner.

ID. PAYMENT OF OFFICIAL SALARY-AUDITOR'S FUNCTION MINISTERIAL. -Mandamus is the appropriate method of compelling the proper officer to pay the salary of a public servant as fixed by law. In such a case, the law being ascertained, the function of the auditor is ministerial and it is his duty to order the payment of a lawful claim, and he cannot avoid the application of mandate to compel the performance of such duty by saying that in mistakenly acting upon a claim he has exercised his discretion. The same doctrine applies to the case of the allowance of a claim for official salary by the auditing committee of the city of San Diego.

ID. PROHIBITION AGAINST INCREASE OF SALARY DIRECTED TO LEGISLATURE-CONSTITUTIONAL LAW-PASSING OF CITY INTO HIGHER CLASS BY INCREASE OF POPULATION.-Section 9 of article XI of the constitution providing that "the compensation of any county, city, town, or municipal officer shall not be increased after his election or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed," is an inhibition directed to the legislature, and has no application to an automatic increase in official salary due to the passing of a city, not by legislative act, but by increased population, from one class to another.

ID. CITY OF SAN DIEGO-CENSUS OF 1910-JUSTICE OF PEACE-SALARY WHEN CITY PASSED INTO SECOND CLASS.-Under section 2 of the act of 1883 for the classification of municipal corporations, (Stats. 1883, p. 24), the United States census taken in the year 1910, as of the 15th of April of that year, operated, without action upon the part of the legislature or of the people of the city of San Diego, to place that municipal corporation, which had previously been a city of the third class, in the second class as of April 15, 1910, and one who had been elected a justice of the peace of that city, at a time. when the statute fixed the salary of a justice of the peace of a city of the third class at two thousand dollars a year and of a city of

the second class at thirty-six hundred dollars a year, became entitled to the increased salary from April 15, 1910, to the end of his term of office at the end of that year.

ID.-ACCEPTANCE BY JUSTICE OF LESSER SALARY-WANT OF KNOWLEDGE OF CLASSIFICATION OF CITY-ESTOPPEL.-The acceptance by such justice of the peace of the salary attached to the office in a city of the third class, after the 15th of April, 1910, but prior to the official promulgation of the census and without knowledge by him of the fact that the city of San Diego had passed into the second class, did not cstop him from subsequently demanding the increased compensation.

ID. INCREASE OF OFFICIAL SALARIES-CONSTITUTIONAL INHIBITIONLOWERING AND RAISING SALARY DURING TERM OF OFFICE. The provision of section 9 of article XI of the constitution that the salary of any county, city, town, or municipal officer shall not be increased "during his term of office" has reference only to the compensation as fixed by law when his term of office began. The legislature has power, pending his term of office, to lower the compensation, and afterwards raise it, provided the subsequent raise is not in excess of the compensation fixed when the official term began.

ID. JUSTICE OF PEACE OF SAN DIEGO-COMPENSATION AFTER 1911 UNDER VARIOUS LEGISLATIVE ENACTMENTS.-A justice of the peace of the city of San Diego, whose elective term commenced in January, 1911, when that city was classified as one of the second class, was entitled to a salary at the rate of thirty-six hundred dollars a year, until February 8th of that year, when by an amendment to the Classification Act (Stats. 1911, p. 11), he became a justice of the peace of a city of the third class. He then became entitled to compensation at the rate of two thousand dollars a year, until the amendment of March 24, 1911 (Stats. 1911, p. 476), which placed that city in the second and one-half class. From that date and until the re-enactment of section 103 of the Code of Civil Procedure on April 29, 1911, (Stats. 1911, p. 1215), there was no law providing any salary for a justice of the peace in a city of the second and one-half class, and during that interval the incumbent of the office had no right to a salary.

ID.-MANDAMUS FOR OFFICIAL SALARY RECOUPMENT FOR OVERPAYMENTS. In a proceeding in mandamus by such justice of the peace to compel the auditor and auditing committee of the city of San Diego to draw warrants for the balance of the salary due him, the city is entitled to recoupment for overpayments mistakenly made after February 8, 1911, upon the belief that the city was still one of the second class, and to have the amount of such overpayments deducted from the arrearages due the petitioner.

APPLICATION for a Writ of Mandate directed to the auditing committee and the city auditor of the city of San

The facts are stated in the opinion of the court.

George Puterbaugh, in pro. per., for Petitioner.

W. R. Andrews, for Respondents.

MELVIN, J.-Petitioner, George Puterbaugh, justice of the peace of the city of San Diego, asks this court for a writ of mandate to compel the auditing committee and the city auditor of said city of San Diego to draw warrants for the payment of his salary. Respondents demur generally to the petition. They also file answers without waiving the demurrers, but these answers admit all essential matters of fact pleaded in the petition; therefore our conclusions upon the demurrers will suffice to settle the whole subject before the court. The demurrer is based upon the assertion that the auditing committee and the auditor having acted in a quasi judicial capacity in determining what salary petitioner is entitled to receive under the law, the court cannot by mandamus review or alter such action. It is undoubtedly true that the writ of mandamus is not a writ of error and that, generally speaking, it is not available for the purpose of altering or varying in any particular the finding of a judicial or quasi judicial body or officer acting within its or his appropriate jurisdiction; but where the facts are not disputed and the only matter to be determined is the duty of the body or officer under the law, the court will define such duty and enforce not only its performance but the carrying out of the obligations of the respondent body or officer in a particular manner. Mandamus is the appropriate method of compelling the proper officer to pay the salary of a public servant as fixed by law. In such a case the law being ascertained it is the auditor's duty to order the payment of a lawful claim. In such a case his function is ministerial and he cannot avoid the application of mandate to compel the performance of such duty by saying that in mistakenly acting upon a claim he has exercised his discretion. (Fowler v. Peirce, 2 Cal. 167.) The same doctrine applies in the present case to the auditing committee.

Petitioner was appointed July 7, 1909, to fill an unexpired term as justice of the peace of the city of San Diego. At the time of his appointment San Diego was a city of the third class and the salary of his office as then fixed by law was two