ground that they had parted with their interest before it was begun, and once being parties to the action and personally before the court, the trial court, as a court of equity, had authority to adjust all of the claims arising out of the transaction which might exist between the parties, and particularly to render personal judgment of $600.00 in favor of plaintiff and against the first two named parties defendant.

Appeal from the Superior Court of Contra Costa County-A. B. McKenzie, Judge.

For Appellants-J. W. Henderson; J. G. Reisner, of Counsel. For Respondent-J. P. O'Brien.

This was primarily an action in partition. In addition to a judgment that the property involved be sold and the proceeds divided, as will hereinafter appear, the court also gave a personal judgment of $600 in favor of the plaintiff, Minnie E. Donnelly, and against the defendants, Edwin C. and Eva L. Wetzel, his wife, and from this money judgment against them the Wetzels appeal. The authority of the court to render this personal judgment in this action is the only question in the case.

The plaintiff and the Wetzels purchased the property from H. C. Petray for $4,500, payable $1,500 in cash and the remaining $3,000 to be secured by a mortgage on the premises to Petray. The plaintiff paid $1,100 of the initial payment and the Wetzels paid only $400 thereof. It appears, therefore, that Miss Donnelly paid $600 of the purchase price which the Wetzels should have paid. Pursuant to this, the payment of the $1,500 and the execution of the mortgage to him of the $3,000 by the purchasers, Petray the owner on the 27th day of June, 1911, conveyed the property to the plaintiff and the Wetzels. On February 14, 1914, the Wetzels, without paying the plaintiff the $600 which she had advanced upon their part of the purchase price, conveyed an undivided two-thirds interest in the property to the defendant Honey. On February 21st, 1914, Petray, the mortgagee, assigned the mortgage to the defendant Gazzola.

It was conceded at the trial and found by the court that the property could not be divided, and the court therefore adjudged that it be sold. It was decreed that the plaintiff and Honey were tenants in common of the property, a one-third undivided interest therein belonging to Miss Donnelly, and the remaining two-thirds to Honey; that $2,000 and certain interest was still unpaid on the mortgage; and the court thereupon directed the application of the funds which should result from the sale of the property to the settlement of the mortgage, the costs, etc., and that the balance be divided between Miss Donnelly and Mr. Honey in the proportion of one-third to her and two-thirds to him, and, as herein before stated, in addition to this judgment, the propriety of which is unquestioned, gave Miss Donnelly a personal judgment for $600 against the Wetzels. On this appeal the Wetzels claim that the court had no jurisdiction in this partition suit to decree a personal judgment in Miss Donnelly's favor against them, but should have left her to her action at law. In the complaint the plaintiff alleged on information and belief that Honey had acquired the property with full knowledge of her over

acquired the

payment. The court, however, found that Honey property without notice or knowledge of this. The Wetzels answered, filing a disclaimer of any interest in the property, and contended that they were not proper parties at all to the partition suit on the ground that they had parted with their interest before it was begun; but the allegation that Honey acquired the property with notice of Miss Donnelly's claim for the $600 against the Wetzels made the Wetzels proper if not necessary parties to this action. [1] Their disclaimer could not relieve them from the position in which they were placed as parties to this suit in equity who appeared therein; and once being parties to the action and personally before the court, the trial court, as a court of equity, had authority to adjust all of the claims arising out of the transaction which might exist between the parties. This it did.

The judgment is affirmed.

We concur:

KERRIGAN, J.

ZOOK, J. pro tem.

BEASLY, J. pro tem.

Civil No. 2718. Second Appellate District. July 5, 1918. REX B. CLARK, FRANK C. WOODFORD and JENNIE L. WOODFORD, Petitioners, v. THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, in and for the County of Los Angeles, and FRED H. TAFT, as Judge of said Superior Court, and JAMES C. BYERS, as Sheriff of the County of San Diego, State of California, Respondents.

[1] ATTACHMENT-NONSUIT SUBSEQUENT VACATION-LIEN NOT REVIVED. An order entered upon the minutes of the court granting a nonsuit constituttes a judgment in favor of the defendant, and in the absence of an appeal therefrom within five days as provided in sections 553 and 946 of the Code of Civil Procedure would dissolve the attachment levied when the complaint was filed and thereupon it was the duty of the sheriff to release the attachment of record, and a subsequent order of the court setting aside and annulling the order of nonsuit would not revive the lien of attachment.

Petition for Writ of Mandate.

For Petitioners-Perry F. Backus, Herbert W. Kidd.

For Respondents-Arthur C. Vaughan, J. M. Love, Charles R. McCarty.

This is an original proceeding wherein an alternative writ of mandate was issued out of this court, directed to James C. Byers, as sheriff of San Diego county, requiring him to release of record a writ of attachment levied upon certain real estate in said county, or show cause why he should not do so.

It appears that in a certain action wherein Marvin Lathrop was plaintiff and petitioners, Frank C. and Jennie L. Woodford, were defendants, a writ of attachment was issued and by the sheriff of San Diego county levied upon the real estate in question; that thereafter in a trial of said action, had on December 7, 1917, defendants, under subdivision 5 of section 581, Code of Civil

Procedure, moved the court for a nonsuit, in response to which motion the court made the following order: "Cause called, J. M. Love, Esq., appearing as attorney for the plaintiff and Perry F. Backus, Esq., appearing as attorney for defendants. Cause argued by counsel; motion of attorney for defendants for a nonsuit granted." This order was entered upon the minutes of the court and on the same day the clerk of the court made a note thereof in his register of actions, all as provided in section 581 supra. Whether these entries were made on December 7th, as claimed by petitioners, or on December 15th, as claimed by respondents, is immaterial, since, as shown, no appeal was at any time taken from the order.

[1] The claim of petitioners is that the effect of the granting of the nonsuit was to dissolve the attachment, and in this contention we think they are correct. "An attachment is a creature of statute and its existence and operation in any case can continue no longer than the statute provides it may." (Loveland v. Mining Co., 76 Cal. 562; Hamilton v. Bell, 123 Cal. 93.) Section 553, Code of Civil Procedure, provides that if defendant recovers judgment against the plaintiff and no appeal is perfected and undertaking executed as provided in section 946, Code of Civil Procedure, the order of attachment shall be discharged and the property released therefrom. As stated, no appeal was at any time perfected from the order granting the nonsuit. That this order constituted a judgment in favor of defendants from which an appeal might have been prosecuted, admits of no doubt. As declared by the statute, such orders, when entered in the minutes and by the clerk noted in his register of actions, are effective for all purposes. (Brown v. Sterling Fixture Co., 54 Cal. Dec. 11; Hamilton V. Bell, supra.) The effect of the entry of the order and notation thereof made by the clerk, in the absence of an appeal therefrom within five days as provided in sections 553 and 946, Code of Civil Procedure, was to ipso facto dissolve the attachment; and thereupon it was, as declared in subdivision 7 of section 4157, Political Code, the duty of the sheriff of San Diego county to release the same of record. It is true the court on December 29th made an order granting plaintiff's motion to set aside and annul the order of nonsuit. But such order could not, in the absence of statutory provision therefor, revive the lien of the attachment which had theretofore been dissolved by the judgment in favor of defendants, and which, insofar as concerned the attachment, had become final.

It is ordered that the alternative writ of mandate heretofore issued to James C. Byers, as sheriff of San Diego county, be and the same is made peremptory.

We concur:

CONREY, P. J.
JAMES, J.

SHAW, J.

Civil No. 2412. First Appellate District. July 3, 1918.

J. MACKNIGHT, Administrator of the Estate of J. P. H. Wentworth, Deceased, Plaintiff and Respondent, v. J. B. DAVITT, Defendant and Appellant.

DESCRIPTION

[1] BROKER'S COMMISSIONS-CONTRACT-DEFECTIVE OF LAND-CURE BY PAROL EVIDENCE.-In a contract to employ a broker to sell or exchange real estate, a defective description of the land can be cured by parol evidence.

[2] ID. CORPORATION LAW-ACCEPTANCE OF OFFER TO EXCHANGE REAL PROPERTY-AUTHORITY.-A written acceptance by a corporation of an offer to exchange real property containing the signatures of the vice-president and the secretary and the corporate seal, will be presumed to have been made by proper authority.

Appeal from the Superior Court of the City and County of San Francisco-John T. Nourse, Judge.

For Appellant-tum Suden & tum Suden.

For Respondent-Pringle & Robbins.

BY THE COURT:

In this action to recover a commission claimed to have been earned for securing the acceptance of an offer to exchange real property, the trial court gave judgment for the plaintiff, from which judgment defendant appeals.

On the 27th Say of February, 1917, plaintiff and defendant entered into a written agreement in which defendant represented himself as the owner of certain property on Eddy street in San Francisco and appointed plaintiff his agent to act in negotiating an exchange of that property for certain other property on Oak street, both properties being described in the agreement, and defendant agreed to pay plaintiff the sum of $375 as commission when he secured an acceptance of the proposition to exchange the said property. The trial court found that plaintiff had secured an acceptance in accordance with the terms of the contract and that defendant had failed to perform his part of the agreement and accordingly gave judgment for the plaintiff.

It is contended that the trial court erred in permitting the plaintiff to remedy by oral testimony a defective description of the property in the contract. [1] In a contract to employ a broker to sell or exchange real estate a defective description of land can be cured by parol evidence. (Proulx v. Sac. Valley etc. Co., 19 Cal. App. 529, 534.) Much greater liberality is allowed in construing and curing defective descriptions in broker's contracts than in a deed of grant of land for, so far as the Statute of Frauds is concerned, the terms of the employment are the essential part, and such contracts will not be declared void merely because of a defect, uncertainty or ambiguity in the description of the property to be sold or exchanged when such defect can be cured by the allegation or proof of extrinsic facts and circumstances. (Maze v. Gordon, 96 Cal. 61; Proulx v. Sac. Val. etc. Co., supra.) The circumstances disclosed here were that Davitt represented himself in the contract in question as the owner of a "Lot on the N. line of Eddy street, feet west from Webster street, thence running west 53 feet and 6 inches"; that Davitt's wife then owned

a lot on Eddy street corresponding to those dimensions; that both parties to the contract understood, and intended to designate, by the description, a lot on Eddy street beginning 100 feet west of Webster street, and that the figures "100" were inadvertently omitted from the description. These facts suffice, we think, to warrant a resort to parol proof to cure the defect in the description contained in the contract. (See Anderson v. Wilstrup, 34 Cal. App. 771.)

It is further contended that it was not shown that the acceptance of the Matilda Long Estate, a corporation, was made under the authority of its board of directors, and that the trial court erred in refusing to make an order for the production of the corporation's books. [2] The written acceptance contained the signatures of the vice-president and the secretary and the corporate seal. It is therefore to be presumed that the officers did not exceed their authority, the seal itself being prima facie evidence that it was affixed by proper authority. (So. Cal. etc. Assn. v. Bustamente, 52 Cal. 192; McKee v. Cunningham, 2 Cal. App. 684.) Moreover, the court ultimately admitted the written acceptance in evidence pending the production of authorities and subject to a further ruling. This in effect was a ruling subject to a motion to strike out. The record discloses that the objection to the written acceptance was not renewed and that no motion to strike out was made.

Judgment affirmed.

Civil No. 1740. Third Appellate District. July 3, 1918. IRA CAMPBELL, Plaintiff and Appellant, v. JOHN INGRAM, Defendant and Respondent.

[1] WATER RIGHTS-NECESSITY FOR IRRIGATION-WHEN SPECIFIC FINDING NOT NECESSARY. In an action involving conflicting claims to the water of a certain creek, a specific finding that irrigation is necessary on the lands of the defendant is not required where it appears by the allegations and admissions of the pleadings that the lands involved are situated in an arid climate, and where there was no denial of an allegation of defendant's cross-complaint "That the character of all of said lands and the soil thereof and the climatic conditions of the neighborhood in which all of the lands are situated are such that artificial irrigation is necessary."

[2] ID. QUANTITY OF WATER REQUIRED FOR IRRIGATION-WHEN SPECIFIC FINDING NOT ERROR.-Failure to make a specific finding that seventy-five inches of water are necessary for the irrigation of defendant's land does not constitute reversible error where there is a finding that this amount has been used by the defendant for years, without objection from plaintiff, for the irrigation of hay and grain and for garden purposes.

[3] ID.-FAILURE TO AWARD SPECIFIC AMOUNT OF WATER-WHEN JUDGMENT NOT VOID.-A judgment which does not award as specific amount of water to the plaintiff, but does require the defendant to permit plaintiff to use whatever water is needed for the use of his stock in the corral below defendant's dam is not void for uncertainty where it is impossible to determine in advance the amount that may be required for this purpose.

Appeal from the Superior Court of Lassen County-H. D. Borroughs, Judge.