consisted of a fraction of over nine acres of the defendant's land, the total value of which, together with the improvements, the jury assessed at $2,422.95, or, approximately, if not precisely, at $265.52 per acre.

But it seems to be the theory of counsel for the defendant that but for the testimony of Kendall the jury might have found that the defendant suffered some damage from deterioration in the value of his land by reason of the severance therefrom of the strip in question. No such assumption is justified on the record as it is presented here. We have already stated that other witnesses testified that the land of the defendant was not damaged by reason of the severance of the strip in dispute therefrom. These same witnesses further testified that the land in question was of no greater value than $50 per acre. There is a mere brief recital in the transcript of the testimony of these witnesses, and the record before us does not disclose the basis of their estimate of the value of the land in controversy or the reasons, if any they gave, for the opinion that the actual value of said land does not exceed the sum of $50 per acre. We must therefore assume that the testimony of the witnesses referred to was in all respects competent, and that they adopted a proper criterion for estimating the value of the land. There is therefore a pronounced conflict in the evidence both upon the question of value and the question whether the remainder of the defendant's land would be damaged by reason of the severance therefrom of the strip in dispute.

Thus viewing the record as it appears before us, in so far as it concerns the evidence, it is plainly manifest that the jury were afforded a very wide latitude within which to exercise their judgment as to the actual value of the land sought to be taken, viz., from the sum of $50 to the sum of four hundred dollars per acre, and there is nothing appearing upon the face of the record which would warrant us in declaring that the actual value of the land was in excess of the amount at which it was fixed by the jury.

For the same reason for which we hold the errors in admitting the above-considered testimony to be without prejudice to the rights of the defendant, the action of the court in refusing to give a certain one of the instructions proffered by the defendant, while erroneous, was without prejudice. The substance of the said instruction was: "During the progress

of this case some reference has been made in the testimony and in the argument to prices paid to others than defendant for the land constituting a part of the right of way for the river-front levee of Reclamation District No. 730. You are instructed that the prices which may have been paid for rights of way to other persons for the levee along the river-front constitute no test for the fixing of the value of the defendant's lands in this cause. . . . And you will, accordingly, disregard, in determining the value of the defendant's land, any reference, either in the testimony or in the argument, to payments made to others for rights of way.'

As before declared, it is obvious that the jury were not governed, in the determination of the question of value, by the testimony of those witnesses who expressed the opinion that the value of the land in dispute did not exceed the sun of $50 per acre, although, as suggested, so far as the record here shows, they would have been justified in predicating their verdict upon the testimony so given other than that by the witness, Kendall. The total value fixed by the jury, however, as is obvious, was over five times the sum of $50 per acre, or, approximately, $34.40 less than three hundred dollars, the minimum amount at which the value of the land was estimated by the defendant's witnesses.

There was neither prejudice to the defendant nor a miscarriage of justice by reason of the errors complained of (Const., art. VI, sec. 42; Vallejo & N. R. Co. v. Reed Orchard Co., 169 Cal. 545, [147 Pac. 238]), and the judgment is accordingly affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 1804. First Appellate District.-September 21, 1916.] TIDEWATER SOUTHERN RAILWAY COMPANY (a Corporation), Appellant, v. CAREY M. VANCE, Respondent. CORPORATION-SUBSCRIPTION FOR STOCK-PAYMENT BY NOTE-RIGHT TO RECALL IN EVENT OF DISSATISFACTION WITH PURCHASE-VALIDITY or AGREEMENT.-An agreement made by a fully organized corporation with a subscriber for a certain number of shares of its stock that the subscriber should have the right at any time within ten months after the date of the subscription agreement to cancel his subscription by recalling his note, if dissatisfied with his purchase, is enforceable against the corporation, where it is not shown that any later subscriber was defrauded by reliance upon such subscription, or that any subsequent creditor relied thereon in dealing with the corporation, or that there was any secrecy contemplated or connived at by the subscriber in the making of such agreement.

APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.

The facts are stated in the opinion of the court.

Meredith, Landis & Chester, for Appellant.

Johnston & Jones, and W. B. Good, for Respondent.

RICHARDS, J.-This is an appeal from a judgment in favor of the defendant in an action brought to recover the sum of $625, alleged to be due upon a promissory note executed and delivered by the defendant to the Tidewater Southern Railroad Company and by it assigned and transferred to the plaintiff herein.

The facts of the case are undisputed. On December 14, 1911, the defendant executed a subscription for five hundred shares of the capital stock of the Tidewater Southern Railroad Co., for which he agreed to pay $625 on or before ten months after date, giving his promissory note for that amount. The authorized agent of the corporation who solicited and received the subscription had two copies thereof, one marked "Original" and the other "Duplicate," both of which were signed by the defendant and the agent on behalf

of the corporation, the original being retained by him for the company and the duplicate being delivered to the defendant. On the back of the duplicate the following memorandum was written: "Dec. 4, '11. Ten months after date if holder of this contract is for any reason dissatisfied we agree to return note or cash equivalent.-H. C. Coffin, Tidewater Southern Railroad Co." This writing was not indorsed on the back of the original subscription retained by the agent for the company. Within ten months of the date of his subscription the defendant requested the return of his note, which request the corporation refused to comply with, but, on the contrary, transferred the note to the plaintiff herein, who brought this suit.

The defendant pleaded the foregoing facts by way of defense to the action, and upon proof of the same judgment went in his favor. Wherefore the plaintiff prosecutes this appeal.

The only material point involved in this appeal relates to the validity of the agreement indorsed upon the defendant's duplicate copy of his subscription which purported to entitle him to recall his note. The appellant contends that this collateral agreement not having been indorsed upon the original stock agreement and filed with the company, and thus brought to the knowledge of other stockholders and subscribers for stock and to the creditors of the corporation, is void. In support of this contention the appellant relies chiefly upon the case of Quartz Glass Mfg. Co. v. Joyce, 27 Cal. App. 523, [150 Pac. 648]. In that case, however, the question involved was the validity of a stock subscription agreement by the terms of which the promissory note given for the purchase price of the stock was to be paid out of dividends to be thereafter declared by the corporation. The court held that this practically amounted to a gift of the stock in violation of the provision of section 359 of the Civil Code, and that the said agreement of the parties having that effect was therefore void. It is true that the court in that case also adverted to the quite well-recognized rule that secret collateral agreements as to stock subscriptions, by which the subscriber gains an advantage over other subscribers, are void, for the reason that such secret advantages are in the nature of a fraud upon subsequent subscribers and upon persons who afterward become creditors of the corporation. The

authorities cited in that case and amplified by the appellant herein refer in the main to subscriptions for the stock of corporations prior to the incorporation of the company or during the initial stages of its life when sales of its stock are being promoted, and when subsequent subscribers have relied upon the integrity upon their face of prior subscriptions. This, however, is not the situation presented in the instant case. The Tidewater Southern Railroad Company had been fully organized before the respondent's subscription to its stock was made, and it does not appear that there was any later subscriber who could have been defrauded by his reliance upon the respondent's subscription; nor does it appear that there was any subsequent creditor of said corporation who could or did rely thereon in dealing with said corporation; nor is it shown that there was any secrecy contemplated or connived at by the respondent in the making of the collateral agreement by which he was permitted within ten months thereafter to cancel his subscription by recalling his note; nor that he had any knowledge of the fact that the authorized agent of the corporation failed to also indorse such agreement upon the original subscription which said agent retained on behalf of the corporation. Whatever secrecy there was in respect to this agreement was imparted entirely by the corporation itself through the act or neglect of its authorized agent; and this being so, and no rights of subsequent subscribers or creditors being involved in the case, it would be a manifest fraud upon the defendant to permit the corporation to take advantage of its own wrong by repudiating its agreement while enforcing the defendant's note, which was evidently given only because of the reservation in said agreement permitting its recall.

This case is in many respects similar to the case of Schulte v. Boulevard Gardens Land Co., 164 Cal. 464, [Ann. Cas. 1914B, 1013, 44 L. R. A. (N. S.) 156, 129 Pac. 582], wherein the court made use of the following apt language applicable to the instant case: "The right to return the stock and recover the sum agreed to be paid upon such return was a material and indivisible part of the consideration upon which the plaintiff agreed to become a stockholder. As between the parties, it would be manifestly unjust to permit the corporation to retain the money paid by plaintiff and at the same time repudiate the promise which it gave in exchange for the