should be bound to any extent for the obligations of the party of the other part. They were not to be partners, therefore, This case presents

(See, also, Coward

either as to third persons, or inter sese." many features similar to the one here. v. Clanton, 122 Cal. 451, [55 Pac. 147]; 30 Cyc. 376, 377; Cudahy Packing Co. v. Hibou, 92 Miss. 234, [46 South. 73, 18 L. R. A. (N. S.) 975, and note, 1032].)

The discussion loses some of its importance in view of the fact that whatever the relation of the parties was, they settled their account with each other and agreed upon the balance due from one to the other.

7. It must not be expected that we can give specific attention to over three hundred and fifty alleged errors. Such an array might give one pause, if each suggested a separate and distinct error. In fact, but few points are involved. For example, after the cost books were identified and the entries explained, as to the different contracts, to each of the hundred or more questions an objection being interposed, plaintiff's counsel would ask the question: "What does the cost book show to be the profits of [naming the job]?" The answer was merely the result of these figures, and was not a conclusion of the witness, and the result was not, as defendant contends, a showing of gross profits; the result clearly was net profits.

8. The motion for nonsuit was directed to this point and was properly overruled. It was discretionary with the court to allow evidence to meet objections made by the motion based on the lack of proof on certain matters. The motion also presented the point that the action should have been in the form of an accounting on the theory that a partnership existed. This point has already been noticed; no partnership was

proven.

9. Evidence was admitted that plaintiff and defendant had made similar contracts prior to the ones in the suit. This evidence was objected to. Defendant contended at the trial, and still contends, that these cost books and the profits referred to in the contracts had relation to gross profits and not net profits as claimed by plaintiff. The evidence now urged as inadmissible was introduced to aid the court in viewing the circumstances surrounding the parties, when the contracts were made, and to clear up the situation of the parties at that time

-in short, to put itself in their place. It appeared from the evidence that plaintiff and defendant had been operating from 1901, and up to the time contract No. 1 was made, in a series of jobs not unlike the ones here, and under terms quite similar. In one of them, for example, plaintiff was to receive twenty per cent for his services; in another they were to "divide the profits in half on any work or contracts," and neither of them was to receive a salary, and in all these contracts the McPhee Company was to "finance the jobs." It is true that in the cases where he got fifty per cent, plaintiff was to procure, as well as superintend, the jobs, but we cannot see that that affects the question. Plaintiff and defendant had been engaged in doing work for three or four years under substantially the same conditions and circumstances as for the time here involved.

In giving interpretation to their agreement, and to ascertain what they meant by "net profits," it seems to us the court was justified in allowing the evidence. "Previous and contemporaneous transactions may properly be taken into consideration to ascertain the sense in which the parties used particular terms, or to ascertain the subject matter of the contract." (17 Cyc. 671.) The supreme court said, in First Nat. Bank v. Bowers, 141 Cal. 253, 262, [74 Pac. 856], that "where the meaning of terms is debatable," facts which tend to illustrate or explain the language used in a contract and to place the court or jury as nearly as may be in the situation of the parties, "are always admissible." The courts "may avail themselves of the same light which the parties possessed when the contract was made." (Merriam v. United States, 107 U. S. 437, [27 L. Ed. 530, 2 Sup. Ct. Rep. 536].)

10. Counsel takes up in his brief each one of these jobs and endeavors to show that the cost books do not correctly exhibit the receipts and disbursements, and hence do not show the net profits. We cannot follow all these intricate details. The bookkeeper testified to the correctness of the accounts in these cost books, and so far as we have been able to analyze the figures and entries upon which her testimony rests, we cannot say she was mistaken.

As we understand the record, the action No. 18,032 involves the same questions mutatis mutandis as in No. 17,022, and the decision in the latter covers the decision in the former.

We have endeavored to consider such of defendants' numerous objections as seemed to demand attention, and failing to discover any prejudicial error in the record, the judgments and orders are affirmed.

Ellison, J., pro tem., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 27, 1916.

[Civ. No. 1509. Third Appellate District.-August 28, 1916.] HENRY DOERR et al., Appellants, v. FANDANGO LUMBER COMPANY COMPANY (a Corporation) et al., Re

spondents. CORPORATIONS-MORTGAGE BY PRESIDENT - SUBSEQUENT RATIFICATION.A corporation is estopped from asserting that its president was not authorized by its board of directors to execute a mortgage on the property of the corporation to secure a loan of money to the corporation, where it subsequently made a deed of trust of all its property to a trustee for the purpose of straightening out its affairs, and in such deed made express reference to such mortgage and therein declared that the deed was subject thereto.

ID. CONVEYANCE OF CORPORATE PROPERTY TO TRUSTEE-RECOGNITION OF MORTGAGE SCOPE OF RESOLUTION.-The estoppel of the corporation to deny the validity of the mortgage under such circumstances is not affected by the fact that the resolution authorizing the execution of the deed of trust did not expressly vest the board of directors with authority to include in the deed of trust the provision that it should be subject to the mortgage, where the resolution did recite that the object of the deed was to place the properties and business of the corporation in the hands of a trustee for the purpose of operating the business and paying off the indebtedness of the corporation. ID. RECEIPT AND USE OF MONEY BY CORPORATION-ESTOPPEL.-A corporation which receives and uses money for the purposes of its business, to secure the repayment of which a mortgage on the property of the corporation is given, is estopped from denying the validity of the obligation.

APPEAL from a judgment of the Superior Court of Modoc County. Clarence A. Raker, Judge.

The facts are stated in the opinion of the court.

Cornish & Robnett, Daly B. Robnett, and N. J. Barry, for Appellants.

Jamison & Wylie, and W. Lair Thompson, for Respondents.

HART, J.-The plaintiffs instituted this suit to foreclose a mortgage upon certain real property of the Fandango Lumber Company, given to secure a loan to the latter of the sum of ten thousand dollars, evidenced by a promissory note executed by the Fandango Lumber Company in favor of the plaintiffs. The property upon which the mortgage was given is located in Modoc County and consists of about two thousand one hundred acres of timber and agricultural lands, upon which a sawmill stands.

The Fandango Lumber Company (to be hereafter referred to variously as the Fandango company and "the company") is a regularly organized corporation, doing business in California, with its principal place of business and offices at Fort Bidwell, Modoc County, this state.

The note to secure which the mortgage in question here was given is set out in full in the complaint. It was executed and delivered to the plaintiffs on the twenty-third day of December, 1911, and is payable on demand.

It is alleged that at the time of the delivery of said note, and for the purpose of securing the payment of the principal sum thereof, and the interest thereupon accruing, the Fandango company duly executed and delivered to the plaintiffs its mortgage, bearing date of December 23, 1911, "conveying the premises described in said mortgage"; that said mortgage was duly acknowledged and certified so as to entitle it to be recorded, and that the same was duly recorded in the office of the county recorder of the county of Modoc. It is alleged that the defendants, W. R. Wilkinson, W. R. Wilkinson, as trustee, and W. R. Wilkinson, as receiver, "have or claim some interest in, or lien on, said mortgaged premises; but all of said claims, if any, have accrued since the lien of said mortgage."

The mortgage is made a part of the complaint, and purports to have been executed by the Fandango company, "by A. G. Duhme, President."

The answer denies all the material averments of the complaint, but, while admitting that Wilkinson, as an individual, claims no interest in, or lien upon, the alleged mortgaged premises, alleges that he, as trustee and as receiver, has and claims some interest in and lien upon said premises.

The answer further alleges that the said A. G. Duhme, as president of the Fandango company, was never at any time authorized by the board of directors of said company, at any meeting thereof, or at all, to borrow any money from the plaintiffs, or to execute and deliver to the latter the said note for ten thousand dollars as evidence of a loan in that amount, or to execute the mortgage, the foreclosure of which is sought. by this action; that the transaction involving the execution of said note and mortgage was never ratified by the board of directors of said company.

As an alleged "second and separate" defense, the answer charges collusion between the plaintiffs and the said A. G. Duhme for the purpose of fraudulently bringing about a foreclosure sale of the mortgaged property at which said property would be purchased by the plaintiffs, thereby preventing other creditors of the Fandango company from securing satisfaction of their respective claims against said company, amounting in the aggregate to approximately forty thousand dollars, and which claims are unsecured. No testimony having been offered or received in support of the charge so made, further consideration thereof is obviously unnecessary.

The court found that the Fandango company or its board of directors never at any time or place authorized the said Duhme, as president of said company, or otherwise, to borrow for the company from the plaintiffs the sum of ten thousand dollars or any other sum, or to execute on behalf of said company the note and the mortgage in question; that the said company or its directors never at any time subsequent to the making and delivery of said note and the execution of said mortgage ratified the same or the action of said Duhme in the transaction resulting in the consummation of the loan from the plaintiffs and the giving to them of said note and said mortgage; that, therefore, "the said note and mortgage are not, nor are either of them, the note or mortgage of the said Fandango Lumber Company."

From the findings, of which the foregoing is an epitomized statement, the court concluded as a matter of law "that the