MEMORANDUM CASE.

[Crim, No. 349. Third Appellate District.-September 2, 1916.]

THE PEOPLE, Respondent, v. C. H. GISH, Appellant. CRIMINAL LAW.-Appeal dismissed and record stricken from the files.

ATTEMPTED APPEAL from a judgment of the Superior Court of Napa County, and from an order refusing a new trial. Henry C. Gesford, Judge.

The facts are stated in the opinion of the court.

E. S. Bell, for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Depty Attorney-General, for Respondent.

BURNETT, J.-The record in the above-entitled cause has been filed in this court. It contains, however, no notice of appeal either from the judgment or the order denying the motion for a new trial. Neither has there been any appearance of appellant in this court. We may say, though, that we have read the record, and there appears to be no doubt of defendant's guilt or that he had a fair trial.

The purported appeal is dismissed, and the record stricken from the files.

Chipman, P. J., and Hart, J., concurred.

INDEX.

(803)

INDEX.

ABATEMENT. See Husband and Wife, 1, 2.

ACCOMPLICE. See Criminal Law, 6-8.

ACCOUNT STATED.

1. ESSENTIALS OF-NEW CONTRACT.-An account stated is a writing
which exhibits the state of account between parties and the balance
owing from one to the other; and when assented to, either expressly
or impliedly, it becomes a new contract. (Fee v. McPhee Company,
295.)

2. ACTION FOR SERVICES-SUPPORT OF FINDINGS.-In this action to re-
cover an alleged balance due for services in superintending the con-
struction of certain buildings for a contracting company, it is held
that the finding that the document upon which the plaintiff relied
as an account stated constituted such an account is supported by
the evidence. (Id.)

3. OPENING OF ACCOUNT-FRAUD OR MISTAKE.-In the absence of al-
legation and proof of fraud or mistake which taints the entire con-
tract, the court will not open and unravel it as if no accounting had
been made, but the settlement will be binding except for the errors
shown. (Id.)

4. EVIDENCE-PROOF OF OMISSIONS AND ERRORS.-In an action upon
an account stated it is proper to allow evidence of omissions and
errors therein and find in favor of plaintiff in accordance with the
facts. (Id.)

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5. INTEREST-ALLOWANCE FROM COMMENCEMENT OF ACTION. - In an
action on an account stated, interest is allowable from the date of
the commencement of the action. (Id.)
6. SUPERINTENDENCY OF BUILDINGS FOR CORPORATION - PERCENTAGE OF
PROFITS-STATUS OF PARTIES.-Contracts between a corporation en-
gaged in the general contracting business and an individual who is
to superintend the construction of certain buildings for the former
for a percentage of the "net profits" do not make the relationship
of the parties that of partners. (Id.)

7. CONSTRUCTION OF TERM "NET PROFITS"-EVIDENCE.-Evidence of
similar contracts made between the parties is admissible to assist the
court in interpreting the term "net profits." (Id.)

ADVERSE POSSESSION.

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1. OWNERSHIP OF ADJOINING PATENTED LANDS INCLOSURE OF BOTH
HOLDINGS-LEASING FOR GRAZING PURPOSES-INSUFFICIENT PROOF

ADVERSE POSSESSION (Continued).

OF TITLE.—Where two brothers owned adjoining quarter sections of patented land of little value, and neither lived nor resided upon the land covered by his patent for any long period after obtaining it, and neither had lived on any part of the half section for many years, the fact that one of the brothers inclosed both holdings with a wire fence, and leased the land for short periods for grazing purposes unknown to the other brother, is insufficient to sustain a claim to the whole tract by adverse possession. (Gallo v. Gallo, 189.)

2. HOSTILE CHARACTER OF HOLDING-ESSENTIAL ELEMENT.-In order to make out an adverse possession sufficient to constitute a defense under the statute of limitations, the owner must be notified in some way that the possession is hostile to his claim. (Id.)

3. PAYMENT OF TAXES-REDEMPTION FROM TAX SALES-INSUFFICIENT COMPLIANCE WITH STATUTE.-The payment of taxes required as an element of adverse possession is not complied with by the redemption of the land from tax sales. (Id.)

4. EJECTMENT-FINDINGS-LACK OF INCONSISTENCY.-In an action in ejectment, wherein the plaintiff alleges seisin or right of possession in itself for the period of five years last past, and also alleges possession on the part of the defendants at the time of the commencement of the action, and the answer of the defendants denies the plaintiff's possession and right of possession for the period claimed, and alleges that the defendants have been in the adverse possession of the premises for more than twelve years, there is no inconsistency between the finding of the plaintiff's seisin within five years and of the defendants' adverse possession for the period of twelve years prior to the filing of the complaint, nor is the latter finding sufficient to bar the plaintiff's recovery under section 318 of the Code of Civil Procedure, where it is also found that the defendants had not paid the taxes for the requisite years. (People's Water Company v. Boromeo, 270.)

5. FAILURE TO PAY TAXES-INVALIDITY OF ASSESSMENTS-BURDEN OF PROOF.-Where in such an action it is admitted that the taxes levied and assessed for the years in question were not paid, and it is contended that the assessments were invalid, the burden is upon the defendants to show such invalidity. (Id.)

6. COMPUTATION AND ENTRY OF TAXES BY AUDITOR - · OMISSION NOT FATAL.-A tax assessment is not invalid by reason of the failure of the county auditor to comply with section 3731 of the Political Code, which requires him, after receiving from the state board of equalization a statement of whatever changes have been ordered by said board in the assessment-book of the county, and after making the corresponding changes, if any, in said assessment-book, to then compute and enter in a separate money column in the assessment