plaintiffs that as soon as a survey was made they would again exchange deeds. and a few weeks later, following the survey, the plaintiffs accepted the survey and went into possession of the tract as surveyed, and the parties erected a fence on the dividing line as run by the surveyor, though new deeds were not given covering the tracts so accepted, and each of the parties has made conveyances based on the said survey, the line so agreed on will be treated as the true line and binding on both parties and their successors by subsequent deed.

[3] EVIDENCE-MUTUAL MISTAKE-PAROL EVIDENCE ADMISSIBLE.-Where the pleadings put in issue the mutual mistake of the parties in framing and executing their deeds, parol evidence is admissible.

Appeal from the Superior Court of Contra Costa County-Henry C. Gesford, Judge.

For Appellants-A. A. Moore, Wilder Wight.

For Respondents-J. E. Rodgers, A. F. Bray, A. J. Coogan.

This is an action to quiet title. The defendants had judgment in the trial court and the plaintiffs have appealed. The appellants have brought up the judgment roll and a bill of exceptions. From the record before us, it appears that the dispute arose over the location of a boundary line; the plaintiffs filed a complaint in the ordinary form of an action to quiet title; the defendants appeared separately and filed separate answers and at the same time filed cross-complaints; the plaintiffs answered the cross-complaints, and, among other defenses, they pleaded the statute of limitations (subd. 4 of sec. 338, Code Civ. Proc.). The case was tried on the issues made by the above mentioned pleadings. The trial court made findings which included a finding that the plaintiffs were estopped, and one that the defendants were not barred by the statute of limitations. The finding on estoppel is in the general words that the plaintiffs are estopped, but no facts are set forth, and it appears on the face of the finding that the same is a conclusion of law out of place. [1] As the sole question that is in dispute is the location of the boundary line between the plaintiffs and the defendants, it is patent that a judgment for or against the plaintiffs is, conversely, a judgment against or for the defendants. In such a case a cross-complaint is unnecessary. (Wilson v. Madison, 55 Cal. 5, 8; Miller v. Loco, 80 Cal. 257, 261.) When such is the condition of the record, the court will treat a cross-complaint as an answer containing affirmative matter. (Pawley v. Rogers, 121 Cal. 294; Phillips v. Hagart, 113 Cal. 552.) So treating the pleadings, a finding on the plea of the statute of limitations becomes wholly immaterial. The pleadings alleged and the trial court found: That on March 27th, 1909, Lillie B. Gardner and T. B. Jenkins were the joint owners of a ranch in Contra Costa county: on that day the grantors agreed to partition the ranch and to have a survey made dividing the uplands and the lowlands into two equal parts; that immediately afterward they executed, each to the other, two deeds, in one of which T. B. Jenkins conveyed to his co-tenant his undivided one-half interest in the north half, and in the other deed Lillie B. Gardner granted to him her undivided one-half interest in the south half; immediately thereafter both grantors deeded the south half to these plaintiffs; that both grantors and these plaintiffs agreed that as soon as the survey was made the grantors would again exchange deeds; all of the foregoing deeds were executed and delivered on March 27th, 1909. A few weeks later the surveyor made the survey; the plaintiffs accepted the survey and went into possession of the tract as surveyed; the plaintiffs and the owner of the north half, Lillie B. Gardner, immediately erected a fence on the line so run by the surveyor; "upon their acceptance by said plaintiff and said defendant Lillie B. Gardner of the tract of land so set apart by the said survey as aforesaid, said plaintiff and said defendant, Lillie B. Gardner, understood and con

sidered that it was not necessary for them to make new deeds of said tract of land so accepted by them aforesaid"; the plaintiff has made conveyances based on the said surveys, and the defendant, Lillie B. Gardner, has made conveyances based on the said surveys.

The plaintiffs commenced this action by filing their complaint on March 24th, 1914.

It is clear from the foregoing statement of facts that all of the parties considered that a measurement was necessary. It likewise appears that a measurement was had. In the case of Young v. Blakeman, 153 Cal. 477, at page 482, Mr. Justice Shaw, writing the opinion, says:

"If a measurement is made and the line agreed on and acquiesced in as required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deed."

[2] Silva v. Azevedo, 56 Cal. Dec. 48, affirms the rule in Young v. Blakeman, supra, and the facts in the Silva case are so closely parallel to the facts in the case in hand that it would seem nothing more is necessary than merely to cite that case.

[3] The pleadings put in issue the mutual mistake of the parties in framing and executing their deeds, and there was no error on the part of the trial court in receiving parol evidence (Code Civ. Proc., sec. 1856, subd. 1; Capelli v. Dondero, 123 Cal. 324, 330).

The trial court treated the cross-complaint as such and awarded relief accordingly, and it is necessary to modify its judgment. This can be done by striking from the judgment all matter commencing with the words, "Now Thereforc" (where those words first appear in the judgment) and down to and including the words "parties respectively" where those two words last appear in the judgment and inserting instead the following:

"Now therefore, it is by the court Ordered, Adjudged and Decreed that the plaintiffs are not the owners of or seized in fee simple of all that certain piece or parcel of land situate, lying and being in the County of Contra Costa, State of California, and more particularly described in paragraph (5) five of the plaintiffs' second amended complaint." As so modified, the judg ment should be affirmed, and it is so ordered.

We concur:

BEASLY, J. pro tem.

LENNON, P. J.

STURTEVANT, J. pro tem.

Civil No. 2443. First Appellate District. September 13, 1918. J. E. STEERE, Plaintiff and Respondent, v. CESARE FORMILLI, Defendant and Appellant.

[1] BUILDING CONTRACT-PROGRESS PAYMENTS CONSTRUCTION OF PROVISION. -A provision in a building contract that the owner would make payments as follows: seventy-five (75) per cent of the value of the labor performed and materials incorporated on the premises and in the said buildings and structures, as estimated by the owner, less previous payments made, every three weeks, commencing with the third week after the date of commencement of the work, does not operate to make the contract separable so that the work done and materials furnished during each three weeks constituted a separate contract and the settlements made at the end of the three-week periods accounts stated, but is only a means provided by the contracting parties for estimating the amount of the progress payments.

[2] ID. DAMAGES FOR BREACH-INTEREST.-In an action to recover damages for a breach by the owner of a building contract, interest is not allowable from the date of the breach, since the claim is unliquidated, but from the date of the judgment.

Appeal from the Superior Court of the City and County of San Francisco -Frank J. Murasky, Judge.

For Appellant-Thomas H. Breeze.

For Respondent-Walter H. Linforth.

This is an action to recover damages for a breach by the owner of a building contract. A trial on questions of fact was had in the lower court, judgment was entered in favor of the plaintiff, and the defendant has ap pealed on the judgment roll. The lower court found that the contract as pleaded contained a provision to the effect that the defendant would make payments "as follows: seventy-five (75) per cent of the value of the labor performed and materials incorporated on the premises and in the said buildings and structures, as estimated by the defendant, less previous payments made, every three weeks commencing with the third week after the date of commencement of the plaster work"; that the plaintiff commenced the work on October 23, 1914, and continued to perform till March 2, 1915, when the defendant notified the plaintiff that the said contract was terminated; that the reasonable value of the work and materials was $18.333.50; that the proportion of the value of the work and materials furnished to the value of the work and materials to be done and furnished was $18,333.50. In framing its judgment the lower court allowed interest on the balance found due from the date of discharge, March 2, 1915.

[1] The principal point made by the appellant is that the work done and materials furnished during each three weeks constituted, under the terms of the contract, a separate contract, and the settlements made at the end of the three-week periods became accounts stated. This same point is presented in several ways, but the effect is the same. The point is not new. It has been expressly held that the contract provision in question does not operate to make the contract separable, but is a means provided by the contracting parties for estimating the amounts of the progress payments. (American-Hawaiian v. Butler, 17 Cal. App. 764, 770; Keeling v. Schastey & Volmer, 18 Cal. App. 764, 768; Adams v. Burbank, 103 Cal. 646, 650.)

[2] The claim sued on was unliquidated. Until a trial was had the amount was but the pleader's estimate. In such a case, interest should not be allowed prior to the date of the judgment. (Edwards v. Arp, 173 Cal. 472, 473; American-Hawaiian v. Butler, supra.) The lower court allowed interest from the date of the breach of the contract. We think the judg ment should be modified by deducting therefrom the amount of the interest which was computed as accruing between March 2, 1915 (the date of the breach), and July 17, 1916 (the date of the judgment), and as thus modified, it should be affirmed. It is so ordered.

We concur:

BEASLY, J. pro tem.

LENNON, P. J.

STURTEVANT, J. pro tem.

Civil No. 1761. Third Appellate District. September 12, 1918. *ANNA GABLE, as Administratrix of the Estate of Jacob Bluhm, Deceased (Substituted for said Jacob Bluhm), and CHARLOTTE BLUHM, Plaintiffs and Respondents, v. SOUTHERN PACIFIC COMPANY (a Corporation), G. E. WAITE, G. C. CONLEY, B. C. NEIBLING and W. H. JONES, Defendants and Appellants.

[1] ACTION FOR DEATH-COLLISION OF MOTORCYCLE RIDER WITH RAILROAD CABOOSE-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.-In an action for

damages for the death of a rider of a motorcycle, killed while attempting to cross the main track of a railroad company ahead of a passing caboose, it was for the jury to say whether the deceased was guilty of contributory negligence in thus attempting to cross, where there was evidence that when the deceased could first see the train the north end of the caboose was thirty or forty feet from the point of contact, and it was moving at the rate of four miles per hour.

[2] ID. CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.-When different inferences fairly may be drawn from the facts and different minds may be led reasonably to different conclusions upon the evidence, it is error to take the question of negligence from the consideration of the jury.

[3] ID. LAST CLEAR CHANCE DOCTRINE-INSTRUCTION-APPLICABILITY UNDER EVIDENCE. On a rehearing of this appeal it is held upon a careful inspection of the record, that the evidence was such as very properly made the doctrine of last clear chance applicable, and that therefore the court did not err in instructing the jury on the doctrine (reversing conclusion in former opinion, 26 Cal. App. Dec. 696).

[4] ID.-LAST CLEAR CHANCE DOCTRINE-ESSENTIALS.-In order to make the doctrine of last clear chance applicable in an action based on negligence, there must be present the following conditions: 1. The defendant must realize the danger of the injured person's position; 2. The defendant must have the ability by the exercise of ordinary care to avert the peril after obtaining knowledge of its existence; 3. The defendant must fail to use such ordinary care to prevent the injury and thus fail to take advantage of the last clear chance; 4. The last act of negligence must be disassociated from and not co-operating with the contributory negligence of the injured party.

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

For Appellants-Hudson Grant, A. L. Clark; Devlin & Devlin, of Counsel.

For Respondents-G. Clark; Black & Clark.

At a former hearing of this case the conclusion was reached that the judgment should be reversed for the reason that an instruction upon the doctrine of "the last clear chance" was given by the court and that the application of that doctrine by the jury may have resulted in the verdict for plaintiffs, whereas, in the opinion of the court as heretofore expressed, the facts in the case showed that this doctrine had no application. This is the only question in the case on which the rehearing was ordered and is the only question which the court now deems it necessary to consider. Upon all other points we adhere to what was said in the opinion prepared by Justice Burnett, from which we quote as follows:

"The appeal is from the judgment in an action to recover damages for the death of the plaintiffs' son, Fred C. Bluhm, who was run over and killed by a car at the intersection of Main and East streets, in the city of Woodland. Main street extends east and west and the other street north and south. The Southern Pacific tracks are on East street and they cross Main street at about right angles. The track of the Northern Electric Company lies longitudinally along Main street a little north of its center. A short time before the accident a freight train belonging to appellant company was being operated by its codefendants herein in shifting and switching cars. At the point of the accident there were three tracks of the Southern Pacific Company, the main track in the center, the passing track on the east side and the switch track on the west. Several box cars had been left standing on the easterly or passing track so that the end of the most northerly of them projected out into Main street some distance, probably eight or ten feet beyond the curb line, the curb line being twelve feet from the property line, and Main street at that point being sixty feet *On rehearing (26 Cal. App. Dec. 696).

wide. At the southeast corner of said intersecting streets were a lumber yard and the office of the Diamond Match Company and just west of these is a lumber shed of the same company. At the crossing, on the north side of main street, just east of the passing track, the railroad company maintained a stationary gong and a crossing sign post.

"Fred Bluhm, the deceased, riding a motorcycle, left said lumber yard east of said crossing about one hundred and forty feet distant and traveled west along said Main street. As he approached the passing track and while riding on the portion of the roadway north of the projecting box cars and south of the Northern Electric track, the company's engine pushing a caboose before it on the main track approached Main street from the south and behind the box cars. He either fell or was struck down upon the main track by the caboose, while his motorcycle rolled on across the track and fell a few feet therefrom. It was picked up a short time thereafter with its motor still running. The distance between the passing and the main track was about thirteen feet.

"The most comprehensive story of the accident is found in the testimony of W. G. Erwin, who said that on that morning he passed the office of the Diamond Match Company in his express wagon and there he met the de ceased, who was on his motorcycle. The latter slowed up and they had a short conversation. Bluhm then went on toward the crossing; Erwin followed. Just as I got a little past the corner of the Diamond Match Company's office, I looked up and I seen the smoke and I hollered out. I said: ""Look out, Fred, you might get killed; his motorcycle was

making a noise and he didn't stop. He was pretty close to the box car. I don't think he was over four or five feet from it. I was pretty well back; I was forty or fifty feet.' He stated further that he saw the caboose hit Bluhm and that the latter was going at the rate of five or six miles per hour and that he did not stop until he was killed. The reason he called to Bluhm was that he saw the smoke from the engine above the box car and knew the engine was approaching the crossing. He also called a second time but Bluhm apparently paid no attention to the warning.

"The oft-discussed doctrines of primary negligence, contributory negli gence and of the last clear chance' as applied to railroad accidents are involved in the determination of the cause, and they have been extensively and ably argued by counsel for both sides. In considering the questions, however, it is apparent that we should not lose sight of the fact that Bluhm's fatal journey of one hundred' and forty feet is divisible into two parts involving somewhat different conditions. During the first of these. extending from the lumber yard to the passing track, his view of the ap proaching engine and caboose was entirely obscured, whereas, after reaching said track there was nothing to prevent a perfect vision of the threatened danger. This difference, manifestly, has an important bearing upon the question of the responsibility of Bluhm and of the railroad company. situation while Bluhm was crossing the thirteen feet between the tracks is of commanding importance, and what occurred prior thereto derives its vital significance from its relation to this latter end of the journey. It is quite clear that the problem would not be so complicated if the accident had happened on the passing track or immediately west of it.

The

"Having, then, in view generally the whole distance traveled but particularly the said thirteen feet, we may start with the inquiry whether Bluhm was himself chargeable with negligence in attempting to cross the main track ahead of the approaching locomotive? One circumstance in connection with the question has to do with his knowledge of the oncoming train. Did he know or should he have known of its approach? According