the land, or that he did anything with reference to the same after receiving the deed from Barthold save to pay the taxes thereon. Therefore it cannot be said that he had continuously or at all occupied the land for the purpose of pasturage for the statutory period of five years; and consequently it must be held that his claim of adverse possession was not made out. True, the defendants in their cross-complaint alleged that Barthold conveyed the land to the defendant Hotchkiss for the use and benefit of Hotchkiss and Canty. This allegation, however, was duly denied by the plaintiff's answer to the cross-complaint; and the record is absolutely barren of any evidence showing or tending to show any in. terest in common between them under the deed or otherwise or that the defendant Canty was in privity or ever claimed any right, title, or interest in the land under or through the defendant Hotchkiss. In so far as the record shows, the source of Canty's right to lease the land to Pucheu does not appear, and certainly there was no showing that in so leasing the lands he was acting for Hotchkiss, or jointly for himself and Hotchkiss. The defendant Canty not having connected himself with the purported title of Hotchkiss, cannot be said to have had possession of the land in dispute under color of title, and, therefore, in order to establish his claim of adverse possession, it was incumbent upon him to show compliance with the provisions of section 325 of the Code of Civil Procedure, viz., (1) that the land had been protected by a substantial inclosure, or (2) that it had been cultivated and improved during his alleged use and occupation of the This the defendant Canty did not do, and therefore his defense of adverse possession necessarily failed when measured by the provisions of the code section last cited.

same.

But, aside from this, we are of the opinion that the evidence adduced relative to the use and occupation of the land by Canty's lessee would not have sufficed to support a finding that the defendants, or either of them, had exclusive use and occupation of the land for the statutory period within the intent and meaning of the provisions of section 323 of the Code of Civil Procedure. The mere fact that Canty assumed the ownership of the land and leased the same to Pucheu may have been some evidence that it was the intent of Canty to claim the land; but if, as the evidence shows, he did no more, and that the land was not occupied by Pucheu

under the lease in the manner and for the period prescribed by the statute, then of course the mere intent of Canty would not afford any substantial support to the claim of adverse possession; and certain it is that the defendants did not affirmatively show, as they were required to do, that during the time that the land was not used for grazing purposes it was not otherwise used and occupied by the plaintiff or other persons claiming under him or independent of him. The testimony that "this quarter-section is used for nothing after the end of the pasture season" is the only evidence to be found in the record upon this phase of the case; and obviously the scope of that testimony must be confined to the use to which the land was usually put, and clearly cannot be construed as establishing the fact that the land was not occupied during and after the close of the pasturing season. In brief, the proof proffered in the present case in support of the claim of adverse possession, as in the case of Strauss v. Canty, 169 Cal. 101, [145 Pac. 1012], "was entirely consistent with the view that the possession of this holding under Canty was casual and intermittent," and therefore, as was said in that case, "the court was entirely justified in concluding that the defendant had not proven an exclusive and continued possession sufficient to satisfy the statute."

For the reasons stated, the judgment and order appealed from are affirmed.

Richards, J., and Kerrigan, J., concurred.

[Civ. No. 1841. First Appellate District.-September 15, 1916.] N. L. GARDNER, Appellant, v. WILLIS E. STEADMAN, Respondent.

CHANGE OF PLACE OF TRIAL AFFIDAVIT OF MERITS-AFFIDAVIT OF THIRD

PARTY SECTION 396, CODE OF CIVIL PROCEDURE.-An affidavit of merits, under section 396 of the Code of Civil Procedure, on motion for a change of place of trial, may be made by any person on behalf of the defendant who is sufficiently familiar with the facts of the case to make the same.

ID. INSUFFICIENT AFFIDAVIT—AMENDMENT.-An affidavit of merits, on motion for a change of place of trial, made by the defendant's wife,

which is insufficient by reason of containing affiant's mere conclusion as to defendant's residence, may be amended, and the affidavit of residence and merits of the attorney for the defendant, which is admittedly sufficient in form, may be considered as an amendment to the prior affidavit.

APPEAL from an order of the Superior Court of the City and County of San Francisco changing the place of trial of an action. Marcel E. Cerf, Judge.

The facts are stated in the opinion of the court.

Algernon Crofton, and R. W. Gillogley, for Appellant.

Skinner, Skinner & Henshall, for Respondent.

RICHARDS, J.-This is an appeal from an order changing the place of trial of the action from the city and county of San Francisco to the county of Los Angeles, upon defendant's motion.

The said defendant was sued in the city and county of San Francisco upon a personal obligation and was duly served with process. Within the time required by law he appeared by his attorney of record and demurred, and at the same time filed a demand for a change of the place of trial of the action to Los Angeles County. There was also filed at the same time an affidavit of residence and merits, which affidavit, however, was not sworn to by the defendant but by his wife, who deposed therein that the defendant was temporarily absent from the state of California, and therefore, for that reason, the affidavit was made by her; that the residence of the defendant was some time prior to and at the time of the commencement of the action and thereafter in the county of Los Angeles; that the affiant was familiar with the facts of the case, and had fully and fairly stated the same to Newton J. Skinner, the defendant's attorney, and upon such statement had been advised by him and verily believed that the defendant had a good and substantial defense to the action on the merits. Upon the hearing of the motion plaintiff objected to this affidavit, but upon what grounds does not appear in the record. However, the defendant thereupon asked and obtained leave to file an amended affidavit of residence and merits, and thereafter presented and filed an affidavit

of merits and of residence sworn to by Newton J. Skinner, his attorney of record. The plaintiff, in opposition to the motion, presented a counter-affidavit as to the defendant's residence, and upon the hearing the court granted the de fendant's motion for a change of the place of trial, whereupon plaintiff prosecutes this appeal.

The first contention of the appellant is that the affidavit of merits made by the defendant's wife and presented on his behalf on said motion was fatally defective and void, for the reason that it was not made by the defendant himself. Section 396 of the Code of Civil Procedure provides that the affidavit of merits upon motion for change of place of trial must be filed by the defendant. The supreme court, construing this section of the code in an early case, decided that this did not mean that the affidavit of merits must be made by the defendant, but upheld the sufficiency of an affidavit of merits made by the attorney. (Nicholl v. Nicholl, 66 Cal. 36, [4 Pac. 882].) This being so, we see no reason for holding that an affidavit of merits may not be made by any person on behalf of the defendant who is sufficiently familiar with the facts of the case to make the same; and hence that the affidavit of merits in this case made by the defendant's wife was a sufficient compliance with the statute.

The appellant further contends, however, that the affidavit of the defendant's wife, in so far as it purported to be an affidavit of residence of the defendant, was insufficient in point of form, for the reason that it did not contain facts showing that the defendant's residence was in Los Angeles at the time. of the commencement of the action, but only contained a mere statement of the affiant's conclusion in that regard, which the appellant insists is insufficient for any purpose, citing the cases of Bernou v. Bernou, 15 Cal. App. 341, [114 Pac. 1000], and O'Brien v. O'Brien, 16 Cal. App. 103, [116 Pac. 692]. While it is true that these cases hold that an affidavit of residence when made by another than the defendant himself should contain more than the mere conclusion of the affiant, still we are of the opinion that an affidavit which merely states such conclusion may be made the subject of amendment in the discretion of the court; and in the case at bar the court, upon the application of the defendant, permitted the defendant to file an amended affidavit of residence and merits; whereupon he filed the affidavit of his attorney

31 Cal. App.-29

of record, which it is not contended by the appellant is insufficient in subject matter. But the appellant urges that this affidavit cannot be considered as an amendment to the prior affidavit, and hence should not be received as such. It has been held, however, that the filing of a new affidavit of merits by another affiant is a sufficient compliance with an order of the court permitting an amended affidavit to be filed upon motion for a change of the place of trial. (Palmer & Rey v. Barclay, 92 Cal. 199, [28 Pac. 226].) This being so, and the affidavit of the defendant's attorney being admittedly sufficient in form and substance to comply with the requirements of section 396 of the Code of Civil Procedure, we think the court committed no error in granting the motion for a change of the place of trial of the action.

The order is affirmed.

Lennon, P. J., and Kerrigan, J., concurred.

[Civ. No. 1942. First Appellate District.-September 15, 1916.] E. O. REESE, Respondent, v. G. B. AMIGO COMPANY (a Corporation), Appellant.

SALE OF PRODUCE-PLACE OF DELIVERY AND ACCEPTANCE-EVIDENCEIn an action to recover the price of certain produce alleged to have been sold and delivered to the defendant pursuant to the terms of a written contract, which designated the place of delivery and acceptance as different from the place of shipment, the admission of proof that prior to and at the time of such shipment the authorized agent of the defendant approved and accepted such produce at the point of shipment does not constitute a variance of the terms of the writing by parol, but amounts to evidence of a waiver of such provision of the contract upon the part of the defendant.

ID.-AUTHORITY OF AGENT-CONFLICT OF EVIDENCE-APPEAL.-Where the evidence is conflicting as to whether the person who acted for the defendant was the duly authorized agent for the purpose of accepting the produce at the point of shipment, the finding of the trial court on such issue is conclusive on the appellate court.

APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. H. Z. Austin, Judge.