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Shaffner lot, having a frontage of forty (40) feet and a depth of one hundred twenty (120) feet on the north side of Sixth street, eighty (80) feet west of Grand avenue, in this city, at the following rentals, viz.:

"At the rate of $3,000 per year for the first year.

"At the rate of $2400 per year for the next five years.

"At the rate of $3000 per year for the next four years.

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'At the rate of $3600 per year for the next five years. "At the rate of $4200 per year for the next five years. "At the rate of $5000 per year for the last twenty-nine years.

"All rentals payable monthly in advance.

"We will agree to build a building upon the property costing not less than $40,000 within ten years, and we will pay all taxes and assessments of every kind that may be levied against or become a lien upon the property during the life of our lease. Yours truly,

"SHIRLEY C. WARD."

The allegation then follows that the plaintiff communicated the offer last set out to the defendant, and that the defendant thereupon made the following indorsement upon the paper, containing the offer:

"Los Angeles, Calif., January 25, 1913. "Messrs. W. B. Merwin & Co.,

"Los Angeles, Calif.

"Dear Sirs:

"I hereby accept the terms and conditions of the above agreement. ROSALIA B. SHAFFNER."

It was then alleged that the persons mentioned in the offer, of which acceptance was made by defendant, were and continued to be ready, able, and willing to execute a lease upon the property, and that they did within sixty days from the 22d of January, 1913, communicate to defendant their readiness to execute the lease and offered to so execute it, but that defendant refused and continues to refuse to enter into any lease with such proposed lessees, and disclaimed and repudiated any liability to plaintiff for commissions.

We think the demurrer to this complaint was improperly sustained. The defendant agreed in writing to pay to the plaintiff a commission if he procured a lease upon the terms specified by her or other terms acceptable to her. He did

procure persons and produced them to her who were ready, able, and willing, according to the allegations of his complaint, to enter into a lease upon terms which by the written acknowledgment of the defendant were acceptable to her. Considering the allegations of the complaint, no ground appears to excuse the defendant from entering into the lease as proposed and accepted, and the plaintiff having done all that it was conditioned he should do, appears to have fully earned the commission agreed to be paid. The fact that in the offer of Ward and his associates to make a lease no time was specified for the commencement thereof, was not a defect fatal to the validity of the offer. There being no condition specified in the offer as to any different time for the commencement of the lease, it would be implied that the term was to commence upon the making thereof. It has often been held that where the agreement to pay commissions upon the sale or leasing of real estate is in writing, the agent, as a condition to the earning of his commissions, need only produce to his principal persons who are ready, able, and willing to contract according to the terms proposed or acceptable to such principal. In the first instrument signed by the defendant the time for the payment of the commission was stated to be "along during the first year." As it appears in the allegations of the complaint that the defendant refused to enter into any lease at all, but repudiated her liability to pay commission, the well-established rule would apply which permits the other party to the contract in such a case, after having rendered fully all of the consideration to be by him rendered, to sue to recover the amount agreed to be paid. As we view the complaint, it stated a good cause of action and was not subject to the objection raised by the demurrer. The judgment is reversed.

Conrey, P. J., and Shaw, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on October 10, 1916, and 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 November 9, 1916.

[Civ. No. 1944. First Appellate District.-September 12, 1916.]

MARIA

MACHADO, Respondent, V. FRANK R.
MACHADO, Appellant.

MANDATE-EXECUTION ON ALIMONY ORDER-REVOCATION OF.-An order commanding the clerk of the superior court to issue a writ of execution to enforce an order for the payment of alimony pendente lite in an action of divorce, will be reversed on appeal, where it is made to appear that the order granting the alimony had been revoked before the making of the order appealed from.

APPEAL from an order of the Superior Court of Santa Clara County made after judgment directing the clerk to issue execution. J. R. Welch, Judge.

The facts are stated in the opinion of the court.

A. M. Free, C. L. Witten, R. V. Burns, and F. H. Bloomingdale, for Appellant.

Joseph Rafael, for Respondent.

THE COURT.-Upon the petition of the plaintiff the court below granted a writ of mandate addressed to the clerk of the court, commanding him to issue a writ of execution to enforce an order for the payment of alimony pendente lite. It appears, however, that before the issuance of the writ of mandate the order granting alimony had been revoked, and that the petitioner was not entitled to the amounts for the enforcement of payment of which the execution was issued. Under these circumstances there is nothing for this court to do but to reverse the order appealed from, and that will be the judgment of the court.

[Civ. No. 1995. Second Appellate District.-September 12, 1916.] JENNIE EATON et al., Respondents, v. SOUTHERN PACIFIC COMPANY (a Corporation), Appellant.

COSTS-REPORTER'S TRANSCRIPT APPEAL.-Where a judgment is affirmed on appeal, the respondent is not entitled to recover the amount paid for the reporter's transcript of the testimony taken at the trial, which was obtained solely for the purpose of assisting respondent's counsel in the preparation of amendments to a bill of exceptions proposed by the appellant on its motion for a new trial in the superior court.

ID.-COST OF PRINTING ANSWER TO PETITION FOR REHEARING WHEN NOT ALLOWABLE.-Where a judgment affirmed on appeal had become final prior to the going into effect of the amendment of 1913 to section 1027 of the Code of Civil Procedure, allowing the costs of printing briefs to a limited amount as part of the costs on appeal, the respondent is not entitled to the cost of printing her brief in answer to the petition of the appellant for a hearing of the appeal in the supreme court after decision by the district court of appeal, notwithstanding the provision of section 1034 of such code that the time for filing a memorandum of costs on appeal is limited to begin after the filing of the remittitur in the superior court. ID.-TIME OF ACCRUAL OF COSTS.-The right of the prevailing party to recover any costs on appeal is obtained by virtue of the judgment as rendered, and this necessarily includes the assumption that he is to have those costs and only those costs to which he is entitled by law at the time of the rendition of such judgment.

APPEAL from an order of the Superior Court of Santa Barbara County taxing costs. Samuel E. Crow, Judge.

The facts are stated in the opinion of the court.

Canfield & Starbuck, for Appellant.

Richards & Carrier, John J. Squier, and John William Heaney, for Respondents.

CONREY, P. J.-Upon a former appeal by the defendant in this case the judgment was affirmed (22 Cal. App. 461, [134 Pac. 801]). The judgment on appeal was rendered July 7, 1913; became final August 6, 1913; an application for a rehearing in the supreme court was denied within thirty

days thereafter; a remittitur from this court went down to the superior court on September 8, 1913. Thereafter respondent filed her memorandum of costs, and appellant applied to the superior court for an order to strike out the memorandum of costs on the ground that the same had been illegally filed, and also demanded that certain items in the cost bill be stricken out upon the ground that they are not legally allowable as costs of the appeal. The items in dispute are: (1) One hundred and four dollars paid for a reporter's transcript of the testimony taken at the trial and which respondent claims as an expense "for transcript of testimony used by plaintiffs in preparing record on appeal and amendments to defendant's bill of exceptions used upon appeal." (2) Ten dollars and eighty cents claimed by respondent as cost of printing answer to defendant's petition for a rehearing in the supreme court. This appeal is by the defendant from an order denying said motion.

By an amendment to section 1027 of the Code of Civil Procedure relating to costs on appeal, which amendment became effective on the tenth day of August, 1913, it is provided as a part of that section that "the party entitled to costs, or to whom costs are awarded, may recover all amounts actually paid out by him in connection with said appeal and the preparation of the record for the appeal, including the costs of printing briefs; provided, however, that no amount shall be allowed as costs of printing briefs in excess of fifty dollars to any one party."

The record on this appeal shows that the reporter's transcript was obtained by respondent solely for the purpose of assisting her counsel in the preparation of amendments to a bill of exceptions proposed by the defendant on its motion for a new trial in the superior court. The expense thus incurred was purely an expense in the conduct of the case in the superior court, and was not a part of the preparation of the record for the appeal. Therefore the item in question cannot be allowed even if, as contended by respondent, her right to costs is governed by the amendment of section 1027. (Bank of Woodland v. Hiatt, 59 Cal. 580.)

With respect to the other item, it is necessary to determine whether respondent's right to costs on appeal accrued prior to August 10, 1913, or subsequent thereto. The general rule is that the right to costs accrues at the time when the judg

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