The facts are stated in the opinion of the court.

J. Early Craig, for Appellant.

Chickering & Gregory, for Respondent.

KERRIGAN, J.-This is an appeal from the judgment and from an order denying the defendant's motion for a new trial.

The action was brought by plaintiff for sums alleged to be due from the defendant to the assignor of plaintiff, the Apex Fish Company, for a consignment of canned salmon which defendant had sold for the account of said fish company, which was a corporation engaged in the business of packing salmon having its principal place of business in the state of Washington. Defendant in its answer admitted itself to be accountable for the moneys received from the transaction set forth in plaintiff's complaint, but set up a counterclaim for $1,034, and denied liability for anything in excess of the difference between that sum and plaintiff's demand, and which difference it paid.

The facts of the case were stipulated to except when consisting of letters, which were introduced in evidence.

The counterclaim was based on the following facts: On October 7, 1908, the Apex Fish Company entered into an optional agreement with defendant, whereby the former agreed to deliver to the defendant five thousand one hundred cases of certain kinds of canned salmon of the pack of the year 1909, to be sold by the defendant at what is conventionally termed the opening price for the pack of that year, thereafter and before delivery to be named, and to be communicated by the fish company to the defendant, and to be by the defendant confirmed and assented to within five days after the same had been communicated to it. Defendant was to receive a brokerage of five per cent upon its sales of the five thousand one hundred cases.

Thereafter, in the month of December, 1908, the defendant entered into six optional contracts with different persons for the sale of these goods, subject to approval of opening price of the year 1909 when named. The "opening price" was annually fixed by certain large packers in the early fall, and it was the custom of packers to notify those holding contracts

for salmon of the naming of the opening price. The six contracts referred to were accepted by the Apex Fish Company.

In the early part of the year 1909 the company entered into negotiations with the defendant for the handling by the latter of the whole of its 1909 pack of salmon, amounting to some fifty thousand cases. These negotiations were terminated on May 12, 1909, when the defendant wrote the Apex Fish Company a letter, in which it stated, referring to the company's offer to allow the defendant to handle its entire pack for 1909, that after duly considering the matter "we have concluded that it is best to decline the business, which we do, thanking you for your offer and the courtesies extended." Subsequent to the writing of this letter the opening price was named. The fish company gave to the defendant no notice thereof, but immediately upon learning of it the defendant telegraphed to its representative, who was then in Washington, to confirm to the Apex Fish Company the opening price on its behalf. Its representative did so, and requested delivery of the five thousand one hundred cases agreed to be delivered under the contract of October 7, 1908. The fish company refused to make the delivery, taking the position that the contract was canceled by the fact of the negotiations for the entire pack of 1909 and their termination in the spring of that year. This was the view adopted by the trial court, which rendered its judgment accordingly in favor of the plaintiff in the sum of $1,034, with interest and costs.

We are of the opinion that the contention of the defendant must be sustained that the contract of October 7, 1908, between the Apex Fish Company and the defendant, and the subsequent negotiations relative to the entire pack of salmon for the year 1909, were separate transactions, and that the letter of May 12, 1909, written by the defendant, declining the business, referring as it did to the letters by dates containing the proposition, had reference to the latter negotiations alone, and did not operate as a cancellation of the earlier. contract. Accordingly it must be considered that the refusal of the Apex Fish Company to deliver the five thousand one hundred cases of salmon when defendant confirmed the opening price constituted a breach of contract, for which the defendant is entitled to recover, and that the conclusion

reached by the court that the contract of October 7, 1908, was canceled in May, 1909, is not supported by the evidence, and that its judgment based on such conclusion cannot stand. The judgment and order are reversed.

Lennon, P. J., and Richards, 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 September 7, 1916.

[Civ. No. 1774. First Appellate District.-July 11, 1916.] JAMES MCNEIL et al., Respondents, v. F. L. KREDO et al., Appellants.

ACTION TO RECOVER MONEY-EXECUTORY CONTRACT TO PURCHASE LANDRESCISSION-PLEADING.-A complaint to recover a certain sum of money paid under an executory contract for the purchase of land states a cause of action where it alleges that the defendants without cause repudiated the contract, declared it canceled, and denied to plaintiffs any right or interest thereunder, as, this being true, plaintiffs were relieved from the obligation of further performance on their contract and were privileged to accept defendants' renunciation of the contract as a rescission of the same.

ID. RESTORATION OF CONSIDERATION.-In the absence of a special demurrer, such a complaint is sufficiently certain in its allegations to the effect that plaintiffs had not received and retained by virtue of the contract anything of value from the defendants, and it was not essential to the statement of a cause of action to allege that the plaintiff had placed or had offered to place defendants in statu quo before electing to accept defendants' alleged rescission of the contract.

ID. PLEADING AND PROOF-PARTNERSHIP OBLIGATION-INDIVIDUAL LIABILITY. The allegation of the complaint that the contract in controversy was a partnership obligation does not preclude proof of the fact that it was the individual obligation of one of the defendants.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. E. P. Shortall, Judge.

The facts are stated in the opinion of the court.

A. M. De Vall, for Appellants.

E. B. Mering, for Respondents.

THE COURT.-The defendants herein were sued individually and as copartners. The appeal is from the judgment entered in favor of the plaintiffs and against the defendant F. L. Kredo individually, and from an order denying him a new trial.

The action was for the recovery of the sum of $980 alleged to have been paid to the defendants pursuant to the terms of an executory contract for the purchase and sale of certain ranch property situate in the county of Mendocino. The plaintiff's complaint proceeded upon the theory that subsequent to the payment of the sum sued for, and without default by the plaintiffs, the defendants repudiated the contract and elected to rescind the same. Upon the trial of the case it developed in evidence that the contract in controversy was not a partnership obligation and that it had been executed only by and between the plaintiffs and the defendant F. L. Kredo individually. Accordingly a nonsuit was granted to the defendant H. F. Kredo and the partnership.

The complaint states a cause of action. It in effect alleged that the defendants without cause repudiated the contract, declared it canceled, and denied to plaintiffs any right or interest thereunder. This being so, the plaintiffs were relieved from the obligation of further performance on their part and were privileged to consider and accept the defendant's renunciation of the contract as a rescission of the same. (Liver v. Mills, 155 Cal. 459, 463, [101 Pac. 299]: Simmons v. Sweeney, 13 Cal. App. 283, 289, [109 Pac. 265]; Seals v. Davis, 25 Cal. App. 68, [142 Pac. 905].) In the absence of a special demurrer the complaint is sufficiently certain in its allegations to the effect that the plaintiffs had not received and retained, by virtue of the contract, anything of value from the defendants. Consequently it was not essential to the statement of a cause of action to allege that the plaintiff had placed or had offered to place the defendants in statu quo before electing to accept the defendant's alleged rescission of the contract. The allegation of the complaint that the contract in controversy was a partnership obligation did not preclude proof of the fact that it was the individual obliga

tion of the defendant F. L. Kredo. (Code Civ. Proc., sec. 578; Grangers' Union v. Ashe, 12 Cal. App. 757, [108 Pac. 533].)

The evidence, in our opinion, sustains the findings of the trial court as to the making of the contract, its performance by the plaintiffs, the sums paid by them thereunder, and its repudiation and rescission by the defendants. The findings support the judgment. Standing alone, finding No. 6 may, as a result of a clerical misprision, be somewhat uncertain, but when considered and construed with the context of the findings as a whole, their numerical order and general arrangement, it is fairly certain that finding No. 6 refers to paragraph 6 of the complaint.

This disposes of all of the points made in support of the appeal which we deem worthy of discussion.

The judgment and the order appealed from are affirmed.

A petition for a rehearing of this cause was denied by the district court of appeal on August 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 September 7, 1916.

[Civ. No. 2073. Second Appellate District.-July 11, 1916.] MATTHEW BAILEY, Petitioner, v. SUPERIOR COURT OF THE COUNTY OF KERN and MILTON T. FARMER, Judge Thereof, Respondents.

MANDAMUS-ACTION TO COMPEL SHERIFF TO DELIVER PERSONAL PROPERTY-EXECUTION NOT STAYED.-An order of the superior court requiring a sheriff to take into his possession and deliver to the petitioner certain personal property and documents is not stayed by the mere fact of perfecting an appeal from the judgment therein, under the alternative method of appeal, without giving the stay bond provided in section 943 of the Code of Civil Procedure.

ID.-DUTY OF SHERIFF TO COMPLY WITH ORDER-ABILITY TO COMPLYPROPERTY HELD BY THIRD PARTY.-It is the duty of a sheriff to comply with a judgment against him commanding him to take possession of and deliver to petitioner certain personal property, where the judgment has not been reversed or set aside and no stay bond