were prosecuted to foreclose those liens. The contractor having failed to defend the actions, or to release, cancel or discharge the liens, it became necessary for the plaintiff to employ counsel and he did employ counsel to defend said actions. The amount of money in the hands of the owner applicable to the contract price was less than the amount of these lien claims. In order to secure a determination of the amount that he must pay in order to release the liens, the owner had to prove how much he had reasonably expended for the completion of the buildings after the abandonment of the contract by the contractor, and he was entitled to have the rights of the lienors established by decree of court. "The contractors failing to perform their covenant, plaintiff's only course of safety was to secure a release of his property by proceedings in court. To accomplish this result it was necessary to employ an attorney to represent him in such actions as were brought to enforce the liens." The reasonable amount paid to his attorneys for those services was a direct and proximate damage resulting from the contractor's breach of his contract, and of a covenant thereof for which the bond was security. (Klokke v. Raphael, 8 Cal. App. 1; Tally v. Ganahl, 151 Cal. 418; Bird v. American Surety Co. of N. Y., 166 Pac. 1009.) If, as claimed by appellants, Alcatraz etc. Association v. U. S. Fidelity etc. Co., 3 Cal. App. 338, and Growall v. Pac. Surety Co., 21 Cal. App. 185, are in conflict with the supreme court decisions cited above, they must yield to the superior authority of those decisions.

[4] The fact that a part of the attorney fees for which compensation has been allowed in the judgment, has not been actually paid by the plaintiff, does not affect his right to recover therefor. (Henne v. Summers, 23 Cal. App. 763.)

The judgment is affirmed.

We concur:

JAMES, J.

WORKS, J. pro tem.

CONREY, P. J.

Civil No. 2545. Second Appellate District. July 11, 1918. OTTILIE C. MUELLER, Plaintiff and Respondent, v. NEAVAS MOUREN, as Administratrix of the Estate of Peter Mouren, Deceased, Defendant and Appellant.

[1] ACTION FOR SERVICES REASONABLE VALUE INSUFFICIENT FINDING. In an action to recover the reasonable value of services, a finding that the plaintiff worked at the rate of $35 a week is not a sufficient finding of such value.

Appeal from the Superior Court of Los Angeles County--Russ Avery, Judge.

For Appellant-A. G. Ritter, Sarau & Thompson.

For Respondent-John Munro, H. S. Laughlin.

Appeal by defendant from a judgment rendered in favor of plaintiff, who sought to recover for services alleged to have been rendered by her as a trained nurse for defendant's intestate at

his special instance and request, the reasonable value of which services she alleged to be $983.90, all of which it is alleged remained unpaid. The answer, among other things, denied that the reasonable value of the services alleged to have been performed by plaintiff was $983.90 or of any value whatsoever, and denied that the same or any part thereof remained unpaid.

Upon the pleadings the reasonable value of the services rendered plaintiff was one of the chief issues which the court was called upon to determine. [1] No finding, however, was made thereon, other than that she "worked. nursing .. at the rate of $35.00 a week"; hence we are left without information as to the "reasonable value" of her services. Neither is there any finding as to whether plaintiff had been fully paid, as alleged in the answer. Since, in our opinion, the findings do not support the judgment, it is unnecessary to discuss the sufficiency of the evidence to justify the findings, as to which there seems to be some merit in the contention made by appellant. The judgment is reversed.

We concur:

CONREY, P. J.

JAMES, J.

SHAW, J.

Civil No. 1766. Third Appellate District. July 12, 1918. BAPTISTA ALSAGA, Plaintiff and Appellant, v. CHARLES F. HART, Defendant and Respondent.

[1] SALE OF HORSES-PART PAYMENT IN MONEY-SALE AND DELIVERY OF COWS FOR BALANCE-NATURE OF TRANSACTION-CLAIM AND DELIVERY PLEADING.-A transaction between plaintiff and a third party relating to the sale of horses and the taking of cows in part payment is not shown to be a transaction involving an executed contract of the sale, where the complaint in an action in claim and delivery against the purchaser of the cows from the third party alleges that the plaintiff sold to the third party eight head of horses at an agreed price, of which a part was paid in money and for the satisfaction of the balance of which the third party "agreed to sell and deliver" to plaintiff on the 1st day of April, 1917, six head of cows, but instead of delivering the cows to plaintiff as so agreed, he sold the cows to defendant.

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

For Appellant-F. A. Kelley.

For Respondent-Grover C. Julian.

The action here is in claim and delivery.

the

Judgment passed for the defendant and the plaintiff appeals therefrom, on judgment-roll alone.

The complaint is based on a transaction between the plaintiff and one J. F. Swan in which the former sold to the latter eight head of horses "at an agreed price of $510.00", of which amount Swan paid the plaintiff $150 in money, "leaving a balance of $360.00" for the satisfaction of which the said Swan "agreed to sell and deliver to plaintiff on the last day of April, 1917, six

head of cows, but instead of delivering said cows to plaintiff as so agreed J. F. Swan sold said cows to one Charles F. Hart, who now has the possession of all of said cows and wrongfully withholds the possession of all said cows, against the consent of plaintiff". Then follow the usual allegations in an action in claim and delivery that the plaintiff demanded of the defendant, Hart, possession of said cows, and that the defendant still "unlawfully withholds and detains said cows from the possession of this plaintiff, to his damage in the sum of $360.00". The prayer is for the recovery of the possession of the said cows, or, in case delivery of such possession cannot be had, for the recovery of the above mentioned sum, together with $150 as damages and for costs of suit.

The complaint is unverified and the issues as to the ownership and the right of possession of the cows were made by a general denial of the averments of the complaint.

The court found that the plaintiff and Swan entered into the transaction and agreement as alleged in the complaint, but that the cows were thereafter sold by Swan to the defendant, Hart, "who now has the possession of said cows", and that the defendant is the owner of said cows and is entitled to the possession thereof. Judgment followed as above indicated.

The appellant argues, in support of this appeal, that the transaction between the plaintiff and Swan involved an executed contract-that is, that it constituted an agreement by which Swan sold to the plaintiff the six head of cows in dispute. The complaint, however, pleads no such an agreement between the plaintiff and Swan. "An executed contract is one, the object of which has been fully performed. All others are executory.' (Civ. Code, sec. 1661.) And "title is transferred by an executory agreement for the sale or exchange of personal property only when the buyer has accepted the thing, or when the seller has completed it, prepared it for delivery, and offered it to the buyer, with intent to transfer the title thereto, in the manner prescribed by the chapter upon offer of performance". (Civ. Code, sec. 1141; see, also, sec. 1140, Civ. Code, as to when the title to personal property passes.)

[1] The contract pleaded involves nothing more than an agreement by Swan to sell and deliver the cows to the palintiff. In other words, according to the contract pleaded by plaintiff, Swan merely obligated himself to sell the cows to the plaintiff at some future time. There was no agreement of sale, but only an agree ment to sell. So far as Swan was concerned, it was purely an executory contract, his part of the same being still unperformed. No title passed, no possession was given or offered and no present transfer agreed upon and the particular property identified. If the plaintiff has any right of action at all growing out of the transaction, it would be against Swan for the breach thereof and not against the defendant. It is not expressly charged, nor even impliedly, so far as the defendant is concerned, that there was fraud as against the plaintiff in the transaction between Swan and the defendant. Indeed, so far as said transaction is explained by the

complaint, the defendant was a purchaser of the cows in good faith and for a valuable consideration.

But, supposing that what was intended to be alleged in the complaint was that Swan by the agreement had transferred to the plaintiff the title to the cows in question but had postponed delivery of the possession thereof to a future time, and that thus a completed sale had been effected, still the judgment on the record before us cannot be disturbed. The court found that the agreement between the plaintiff and the defendant was precisely as it was made to appear on the face of the complaint-that is to say, that the said Swan, as a part of the consideration for the horses sold to him by plaintiff, "agreed to sell and deliver to plaintiff on the last day of April, 1917, six head of cows", etc. As above shown, the appeal here is on the judgment-roll alone, there being no record of the evidence before us. The presumption is, therefore, that the evidence justified and supports said finding-that is, that the agreement between Swan and the plaintiff, as the complaint alleges, was one by which Swan agreed to sell at a future time the cattle to the plaintiff and, therefore, not one whereby an absolute sale of the cows was effected. Moreover, so far as we can know from the record, the cows sold to the defendant may not be the same cows which Swan agreed to sell and deliver to the plaintiff.

The appellant has cited a number of cases which we have found, upon examination, do not support his position upon the record in this case. It is not necessary to review those cases herein. The appeal here is absolutely destitute of merit.

The judgment is affirmed.

We concur:

BURNETT, J.

CHIPMAN, P. J.

HART, J.

Civil No. 1687. Third Appellate District. July 13, 1918. WILLEY WAHL and HENRY WAHL, Plaintiffs and Respondents, v. H. YORI, Defendant and Appellant.

[1] SALE-EVIDENCE-OWNERSHIP OF CATTLE FINDING OF JURY.— In this action to recover the agreed price for cattle alleged to have been sold by the plaintiffs to the defendant the evidence upon the question of ownership of the cattle and as to the person who sold them to the defendant was conflicting, and the jury having accepted the evidence submitted by the plaintiffs as true, their finding can not be disturbed by the appellate court.

[2] ID. EXAMINATION OF WITNESSES-ABSENCE OF IMPEACHMENT -CONTRADICTORY EVIDENCE.-On examination the defendant may be asked by his counsel to state conversations he had with the father of the plaintiff for the purpose of showing that the latter made statements to defendant contradictory to those to which he had testified without first laying the foundation for impeachment.

[3] ID. DECLARATIONS BY FATHER-NOT ADMISSIBLE.—Declarations made by the father not in the presence and hearing of the plaintiffs or either of them, of which they were ignorant or to which they did not consent, and did nothing and said nothing to lead defendant to believe they had knowledge thereof or consented

thereto, would no more be admissible than the declarations of strangers where no agency had been established.

[4] ID.-PAYMENTS TO FATHER-NOT BINDING ON PLAINTIFFS.— The plaintiffs would not be bound by the motive or intent of the defendant in making payment to their father where they had no knowledge of such payment or its purpose.

Appeal from the Superior Court of Butte County-H. D. Gregory, Judge.

For Appellant-J. Oscar Goldstein.

For Respondents-Guy R. Kennedy and Jerome D. Peter.

Plaintiffs commenced the action to recover the sum of $830.00, which it is alleged defendant agreed to pay for 12 head of cows at the agreed price of $65.00 per head and two calves at the agreed price of $25.00 per head, sold and delivered by plaintiffs to defendant, on or about November 13, 1915. A second count is for the like number of cattle of the reasonable value of $830.00. The answer is a specific denial of the averments of the complaint, escept that defendant admits non-payment.

The cause was tried by a jury and plaintiffs had the verdict for the amount claimed and judgment was entered accordingly. The appeal is from the judgment under the alternative method and is here on the judgment roll and the evidence taken at the trial.

The defense on the merits of the case made at the trial was that the cattle in question were purchased by defendant from Albert Wahl, the father of plaintiffs, and hence defendant was not indebted to plaintiffs in any sum. Neither the number nor the value of the animals is controverted.

Plaintiffs were engaged in the business of farming and stock raising near the city of Chico, Butte county; their father, Albert Wahl, was also engaged in the same business in a different part of the county. Defendant was a tenant of Albert's and had purchased some cattle from him previous to the present transaction. He desired to make further purchase and applied to Albert, who told him his sons, plaintiffs, had cattle for sale. There was testimony that Albert took defendant to plaintiff's farm, where the latter examined and picked out the animals referred to in the complaint and agreed upon the price to be paid; that the cattle belonged to plaintiffs and that the sale was made and cattle delivered by plaintiffs to defendant. Witnesses for defendant testified that the sale was made by Albert and that plaintiffs took no part in the transaction. Upon the question of ownership of the cattle and as to the person who sold them to defendant the evidence was conflicting. The jury accepted the evidence submitted by plaintiffs as true and SO found by their verdict. [1] Under the rule the judgment on the verdict cannot be disturbed by the reviewing court.

The trial court sustained certain objections to evidence of fered by defendant, “and”, says defendant's brief, "the chief point preserved on this appeal is, that the court committed prejudicial error in the exclusion of evidence offered by defendant".