days after delivery of the statement." The repeated failures of the appellant to heed this request speaks with much force in favor of the application of the principles above stated.

The claim that the plaintiff never received these statements is hardly worthy of notice as its officers visited its branch house in San Francisco from time to time, as we have seen, and its manager, Mr. Ardery, was in charge of the branch house constantly during the time when these forgeries were being perpetrated. Their possession of and control over these statements and returned checks follow from their control of their branch establishment.

The final contention of counsel for the appellant is that the trial judge should, even in his view of the law, have given judgment for $140 in addition to the $40 in favor of the appellant to cover three checks in that amount forged by Weeks and paid by the bank in September, 1912, they being the first forgeries, and having been paid by the bank in September, 1912, and included in the bank's statement of October 1st following.

[2] One of the defenses set up by the respondent was that provision of the statute of limitations embodied in subdivision 3 of section 340 of the Code of Civil Procedure, in which it is provided that an action against a bank by a depositor for the payment of a forged check must be brought within one year. This section was added to the statute by amendment in the year 1905. The three checks making up the $140 for which appellant claims an additional judgment should have been given him, were paid more than one year before the beginning of this action, the action having been commenced on the 18th of May, 1914. They were also included in the statement rendered by the bank to the plaintiff more than one year before the beginning of the action. It is contended by the plaintiff that its cause of action against the bank upon these three checks did not ripen until discovery by it of the forgeries of Weeks, the argument being based, of course, upon the proposition that an action counting upon fraud does not ripen until the discovery of the fraud.

There are three answers to this contention which seem to us conclusive. The first is that the action of plaintiff was not based upon the fraud, but rather upon the contractual relations of the parties. It is impossible to read into the plaintiff's complaint anything else than a simple action upon the contract between them. The forgeries of Weeks are not therein mentioned. The second answer to plaintiff's contention is this: The bank committed no fraud against the plaintiff. It concealed nothing from the plaintiff. The section of the code providing that the time for beginning an action upon fraud is postponed until the discovery thereof does not apply between parties to this action because the bank was not in any sense a party to the fraud. The third answer to this contention is found in the case of Masonic Benefit Assn. v. First State Bank, 99 Miss. 610, 55 So. 408, in which the supreme court of the state of Mississippi, passing upon the question of the applicability of a statute providing that where the cause of action has been fraudulently concealed by the person

against whom it lies the time for its commencement does not begin to run until the discovery of the cause of action, in a case where a depositor was suing a bank for cashing a check upon an unauthorized endorsement, said: "There was no fraud perpetrated or concealed on the part of the appellee. It paid the check in good faith, believing the endorsement genuine. Neither the appellant or the appellee was at fault in failing to discover the forged endorsement after the payment of the check. Appellee's failure to discover the forgery at the time it was presented, resulting in its payment, made it liable to the party defrauded to the amount of the check; but after that the duty rested equally on the appellant and appellee to discover the forgery, and appellant's opportunities for making the discovery were as good as appellee's, because appellant had in its possession the canceled check with the forged endorsement, which had been rendered to it as voucher. The running of the statute was, therefore, not delayed to the time of the discovery by appellant of the forged endorsement."

We therefore hold that the action on these checks aggregating $140 was barred at the time the complaint herein was filed. For the foregoing reasons the judgment is affirmed.

We concur:

KERRIGAN, J.

ZOOK, J. pro tem.

BEASLY, J. pro tem.

Civil No. 2420. First Appellate District. July 10, 1918. W. R. GORDON, Plaintiff and Respondent, v. RANSOME-CRUMMEY COMPANY, Defendant and Appellant.

[1] STREET LAW-SUBSTANTIAL COMPLIANCE WITH STATUTE-GOOD FAITH-REGULARITY OF PROCEEDINGS.-In street improvement proceedings, where there is an evident attempt in good faith to comply with the statute, and such substantial compliance therewith that no one has suffered from lack of strict compliance, the issuance of the bonds is conclusive evidence of the regularity of the proceedings.

[2] ID. POSTING OF NOTICE OF PASSAGE OF RESOLUTION OF INTENTION-DISTANCES APART.-A street improvement proceeding under the Improvement Act of 1911 is not invalid because of the fact that two of the posted notices of intention had an interval of 309 feet 4 inches, instead of 300 feet, between them, and such defect is cured by the issuance of bonds in pursuance of section 66 of the act.

[3] ID. POSTING OF NOTICES ALONG ENTIRE LINE OF WORK-SUFFICIENCY OF AFFIDAVIT.-An affidavit of the posting of notices of the improvement stating that affiant had posted the notices on Congress avenue "from the southeastern line of High street to a line parallel to and distant 70 feet north westerly from the southeastern line of Cortland avenue", is sufficient, notwithstanding the work on Congress avenue was to be done not only to the line thus described 70 feet from Cortland avenue, but also upon other parts of Cortland avenue, where the quoted statement was followed by the statement that affiant "posted said notices conspicuously along the line of said contemplated work or improvement at not more than 300 feet in distance apart and not less than three in all, and when the work was to be done upon an entire crossing or any part thereof, in front of each quarter block liable to be assessed".

[4] ID.-SUFFICIENCY OF AFFIDAVIT-DETERMINATION OF COUNCIL CONCLUSIVE. The sufficiency of the affidavit of the posting of the notices of improvement being a subject for the determination of the council, before proceeding further with the work, its conclusion will not be overturned, where it has ruled on the affidavit and held it to be sufficient.

[5] ID.-AFFIDAVIT OF POSTING OF NOTICES-DATE OF COMPLETION. -The recital in the affidavit of posting of notices of the improvement that the notices were posted on a stated date is sufficient to show that the work of posting the notices was completed on that day.

Appeal from the Superior Court of Alameda County-T. W Harris, Judge.

For Appellant-R. M. F. Soto.

For Respondent-Frank J. Gordon, Welles Whitmore.

The questions in this case arise out of the sale of certain property of the plaintiff to pay certain street assessment bonds which were issued by the city of Oakland in a proceeding taken by it under the Improvement Act of 1911. (Stats. 1911, p. 730.) The plaintiff brought an action to quiet title against the defendant, and the defendant answered, admitting that it asserted an interest in the real estate described in the complaint, and filed a cross-complaint, in which it set up all the proceedings leading up to the issuance of the bonds mentioned. Without going further into the pleadings in this case it may be said that the correctness of the lower court's judgment quieting the plaintiff's title to the land depends upon the validity of the street improvement proceedings.

The first point made by plaintiff against these proceedings is that the notice of the passage of the resolution of intention, required by section 5 of the Street Improvement Act of 1911 to be posted at intervals of not more than 300 feet in distance apart along the line of the contemplated improvement, was not SO posted, in this, that two of these notices had an interval of 309 feet 4 inches instead of 300 feet between them.

Section 66 of the improvement act of 1911 provides that bonds issued under the act shall by their issuance be conclusive evidence of the regularity of all proceedings leading thereto under the act. It is contended by the attorney for the defendant that the defect in the posting of the notices above referred to is cured by the issuance of the bonds in pursuance of section 66 of the act just quoted. On the other hand, the respondent contends that the defect is jurisdictional, and that a strict compliance with the statute as to posting was necessary to give the council authority to take further steps in the proceeding, and that, being jurisdictional, the defect could not be cured by the issuance of the bonds, or affected in any way by the so-called "conclusive evidence" provisions of section 66 of the act.

The whole question of the construction to be placed on such curative provisions as section 66 was discussed and, the profession of the law hoped, finally settled so that no question thereon could ever thereafter be made, by the decision in the case of Chase v. Trout, 146 Cal. 350; but it seems that the carelessness of city

officials and the ingenuity of counsel will, in spite of the very clear and definite language of that case, still raise plausible objections to the jurisdictional steps taken by city councils in street improvement proceedings; and such has happened in this case. The supreme court, in Chase v. Trout, said that "The resolution of intention is the first step in the proceeding. It has to be published, and it is by means of such publication and the notice thereafter given which refers to it for particulars that the council acquires jurisdiction. It is a part of the 'due process of law', required by the constitution, and want of which cannot be cured or waived by the legislature." To this statement of the lawwhich must be held to apply to the posting of this notice as well as the publication of the resolution of intention-Mr. Justice Shaw, in the opinion of the court, added this significant sentence: "There must be a substantial compliance with the provisions of the act in regard to this preliminary process."

[1] From that case and the case of Ramish v. Hartwell, 126 Cal. 443, we understand that where, as here, there is an evident attempt in good faith to comply with the statute, and such substantial compliance therewith that no one has suffered from lack of strict compliance, the issuance of the bonds is conclusive evidence of the regularity of the jurisdictional proceedings. In other words, it cures such a trifling and inconsequential defect in the posting as here appears. This is within the spirit, and, indeed, the letter, of the rule in Chase v. Trout. [2] We will not attempt to formulate a general rule as to what will constitute substantial compliance with the statute upon this matter; but in this case it would be trifling with justice to say that this proceeding, covering as it did a lengthy street improvement, and upon the validity of which thousands of dollars' worth of street improvement bonds may perchance depend, should be set aside because one of the notices was posted 9 feet 4 inches farther away from the next one than it should have been.

The next attack on the proceeding is based on the insufficiency of the affidavit of the completion of posting of the notice of improvement. The law provides that "upon the completion of the posting of the notice of the improvement the superintendent of streets shall forthwith cause to be filed in the office of the city clerk an affidavit stating the fact of the completion of the posting of such notice and the date of such completion, and thereafter all persons shall be deemed to have notice of the date of the completion of the posting." The affidavit filed in the present case stated that the affiant had actually posted the notice of improvement mentioned in the resolution of intention on Congress avenue (the street to be improved) "from the southeastern line of High street to a line parallel to and distant 70 feet northwesterly from the southeastern line of Cortland avenue, all as described in and in compliance with resolution of intention No. 38,146". The work on Congress avenue was to be done not only to the line thus described 70 feet from Cortland avenue, but also upon other parts of Congress avenue; so that if the foregoing statement in the affidavit were all that it contained there would

be no showing that the notices were posted along the entire line of the contemplated work; but following the above quoted portion of the affidavit was the statement that affiant "posted said notices conspicuously along the line of said contemplated work or improvement at not more than 300 feet in distance apart and not less than three in all, and when the work was to be done upon an entire crossing or any part thereof, in front of each quarter block liable to be assessed". [3] This latter quoted statement is in the exact language of the statute providing for the posting of the notice; the statements are not inconsistent with the posting on that part of Congress avenue southeasterly from the line of Cortland avenue; both statements may be true; and it seems to us that that part of the affidavit which describes the posting of the notices as having been done to the line 70 feet northwesterly of Cortland avenue, must be read in the light of the further statement in the affidavit which, if it stood alone, would be sufficient to show the posting of the notices along the line of the contemplated work as provided in section 5 of the act. This is particularly true in view of the fact that it was the duty of the council, before proceeding further with this work, to find the fact of the posting of these notices, and that it found this fact apparently from this affidavit, thus putting a construction thereon. [4] It seems to us that this finding of the council is by parity of reasoning within the principle laid down in Tilton v. Russek, 171 Cal. 731, in regard to an affidavit of diligence, in which the supreme court held that the sufficiency of such an affidavit being a subject for the determination of the court in which the validity of the proceedings was in issue, the court's conclusion would not be overturned where it had ruled upon the affidavit and held it to be sufficient.

A further criticism is made of this affidavit. The statute provides that this affidavit must state the fact of the completion of the posting of the notices, and the date of such completion, and that thereafter all persons shall be deemed to have notice of the date of the completion of such posting. The statement in the affidavit bearing upon this subject is "that affiant posted said notices as herein specified on the 25th day of May, A. D. 1911". It will be noted that the affidavit does not state categorically and in the language of the statute that the 25th day of May, 1911, was the date of the completion of the posting, nor does it use the word "completed" in relation to the posting of the notices at all. Counsel for the respondent contends with much earnestness that the property owners having the right to protest at any time within fifteen days after the date of the completion of the posting of these notices against the proposed work, could ascertain the time within which they were to protest in only one way, namely, by an examination of this affidavit; and claims that the information required to enable them to know the time within which they could protest, namely, the date of the completion of the posting, is not contained in the affidavit, so that the time for protest has not yet run, or in any event, that the council acquired no jurisdiction to proceed further with the work.