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the alleged sale of said nuggets can be treated as an action in equity on the ground that an equitable lien arose out of the alleged agreement. We do not deem it necessary to pass upon this question.

It was necessary to the maintenance of the action that the claim should first be properly presented to the administratrix as required by section 1494 of the Code of Civil Procedure and “must be supported by the affidavit of the claimant, or someone in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant. When the affidavit is made by a person other than the claimant, he must set forth in the affidavit the reason why it is not made by the claimant".

It will be observed that the affidavit states that the claim was pre. sented by Fook Hing Lung Co. and that "Fook Hing Lung Co.

being duly sworn, says,” etc., and “that there are no offsets to the same to the knowledge of said claimant". The affidavit is signed: "Fook Hing Lung Co. by Gee Chong Pong, Member & Clerk of said Co."

A test of the sufficiency of an affidavit is whether it is so clear and certain that an indictment for perjury may be sustained on it if false. (2 C. J. 348.) It has been held that an affidavit cannot be made by a partnership firm in the firm name, since it would be impossible to convict the individual partners of perjury upon the evidence of such affidavit. (2 C. J. 325.) “An affidavit on behalf of a partnership, therefore, should be sworn to by one of the partners, and where it appears in the body of the affidavit that it was sworn to by one of the partners it is sufficient, although signed with the firm name." (Id.)

11] The affidavit states that the partnership was sworn and it nowhere appears that the affidavit was sworn to by one of the partners. As signed it imports that Gee Chong Pong signed the name of the firm, but does not import that he was sworn. Nor does it appear from the jurat by whom the affidavit was sworn to. The implication, if any, would be that it was sworn to as stated in the body of the affidavit, to-wit, by the partnership. If the affidavit had been properly made by one of the partners the statement that there are no offsets to the knowledge of claimant instead of afriant would be immaterial. (Warren v. McGill, 103 Cal. 155.) As the afiidavit reads, there is no statement that there are no offsets for the reason that the affidavit purports to be made by one incompetent to make it, to-wit, the partnership. That such statement is essential, see Perkins v. Onyett, 86 Cal. 348.

In Maier Packing Co. v. Frey. 5 Cal. App. 80, the affidavit read: “Maier Packing Co., by Simon Maier, Pres., whose foregoing claim is herewith presented to the administrator of the estate of said deceased, being duly sworn, says,” etc. (Signed) "Maier Packing Co., Simon Maier, Pres. Subscribed and sworn to before me, this 15th day of June, 1904." It was held "impossible to reconcile the provisions of this affidavit with the requirements of the statute”, citing Perkins v. Onyett, supra. It is claimed that the Maier Packing Co. case is not to be followed, citing Scott Stamp & Coin Company, Limited, a corporation, v. Leake, Adm'r etc., 9 Cal. App. 513, and Western States Ins. Co. v. Lockwood, 166 Cal. 185. In both of these cases the affidavits appeared to have been made by one of the officers of the corporation and it was held in such case that the requirement of the statute that where the affidavit is made by a person other than the claimant the reason there. for must be set forth, does not apply. And, also, where the affiant and the claimant are the same it is sufficient if the affidavit states that there are no offsets to the knowledge of claimant though the statute uses the word


affiant. In the present case the affidavit does not show that it was sworn to by any person competent to make it.

We do not think the statute has been sufficiently complied with. The judgment is, therefore, affirmed.

We concur:


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Civil No. 2402. First Appellate District. September 19, 1918.
J. H. WILHELM, Plaintiff and Appellant, V. MAY J. ROBERTSON et al.,

Defendants and Respondents.
SALE BY SURVIVOR-SUFFICIENCY OF NOTICE.-Under a trust deed containing a
specific covenant to the effect that in the event of default the trustees or the
survivor of them might execute the trust and sell the property, a deed niadt
by one of such trustees is not void for lack of proper notice, because of the
death of the other trustee before the day of sale fixed in the notice, without
giving further notice.

Appeal from the Superior Court of Marin County-Edgar T. Zook, Judge.
For Appellant-Keys & Harlan.
For Respondents--Thomas P. Boyd, 0. F. Meldon.

This is an action to quiet title to a certain parcel of land situated in the county of Marin.

The record discloses the following facts: On June 14, 1904, plaintiff purchased from the Tamalpais Land and Water Company a certain lot of land which is the subject of this controversy. On the 25th day of February, 1915, he executed a deed of trust, conveying the same to A. W. Foster, Jr., and M. T. Freitas, as security for the payment of a certain indebtedness referred to in the deed of trust. In this conveyance the plaintifi used precisely the same description as that contained in the deed under which he acquired the property. Having failed to pay his indebtedness, one of the trustees, under the power conferred in the trust deed, sold the property in question to defendant May J. Robertson. Thereafter the plaintiff brought this action to quiet title to the property. Judgment went for defendants, and plaintiff appeals.

As ground for reversal it is the claim of plaintiff that certain deeds offered in evidence to defeat his title were inadmissible for that purpose, for the reason that the description of the property therein recited was ambiguous and should not have been considered in establishing defendant's title. He further claims that the deed signed by one of the trustees which purported to convey this title to defendant, May J. Robertson, was void because of a lack of proper notice of sale.

Under the pleadings it was admitted that plaintiff was the owner and in possession of the property on the 8th day of June, 1915. For the purpose of identifying the property and establishing his case plaintiff at the trial introduced in evidence a map of the Tamalpais Land and Water Company from which it appears that the property described in the complaint is designated thereon by the figures "18". After the introduction of this map plaintiff testified that he had not conveyed the property, and rested his case. Thereupon the defendants, for the purpose of establishing their title, offered in evidence a deed of trust from plaintiff and his wife, as grantors, to A. W. Foster, Jr., and M. T. Freitas, given to secure a certain indebted


ness. In this deed the property was described as lot (18) as delineated on the map referred to. For the purpose of explaining which lot 18 was meant by the description in the trust deed the defendants offered in evidence the deed from the Tamalpais Land and Water Co. to plaintiff purporting to convey “Lot number eighteen (18)” as laid down on the company's map. Defendants also called the plaintiff, who testified that the parcel of land identified was the only land he owned in that vicinity. Defendants further offered in evidence a deed from M. T. Freitas, as surviving trustee under the trust deed, to defendant, May J. Robertson, being the deed under which defendants claim title, wherein the property conveyed is described in the same manner as in the conveyance from the company to plaintiff. The introduction of these various deeds was objected to upon the ground that the description of the property contained therein ambiguous, for the reason that the map referred to contained four different and distinct lots numbered eighteen, any one of which, it is claimed, fits the description in the several conveyances.

We are of the opinion that the deeds were properly admitted. From the map of the company, referred to in the several deeds, it appears that a large tract of land had been divided into thirty-three blocks or parcels numbered from one to thirty-three, inclusive. Six of these parcels, viz.: numbers one, two, three, four, five and six, were again subdivided into smaller parcels containing eighteen or more small subdivisions, which are designated upon the map by consecutive numbers. Four of these blocks as subdivided contain a lot numbered "18". The remaining blocks up to and including block eighteen are not so subdivided. It is under these conditions that plaintiff contends that the deeds mentioned were improperly introduced to defeat plaintiff's title, for the alleged reason that they all contain a description which is a perfect example of a patent ambiguity, and were, so plaintiff claims, wrongfully considered in establishing defendants' title to the property, and that the findings based thereon that the defendant is the owner are not supported by the evidence. It is conceded by respondents that where a description in a deed equally applies to two or parcels there is a patent ambiguity; but, it is insisted, that the description here involved does not apply to any other lot shown on the map of the Tamaljais Land and Water Company, and we are of that opinion.

The map to which reference is made contains only one parcel of land designated as "eighteen". The parcels which are subdivided into smaller lots or tracts, and which contain a lot or parcel designated by such number, bear the further and additional designation of the number of the larger parcels as subdivided. The tract in question is designated by the single number (18), and its description by such designation does not apply to any other lot upon the map. Aside from any other question, the description being sufficient to put plaintiff into possession, it ought to be sufficient to dispossess him.

[1] The further contention that the deed purporting to convey title to respondent May J. Robertson is void for lack of proper notice is without merit. . When plaintiff failed to pay his indebtedness a notice of sale was given by both trustees. It is conceded that the notice up to this time was a proper one. Subsequent to the giving of the notice, however, but before sale, one of the trustees died, but the sale was made on the day so fixed, by the surviving trustee without further notice, and it is for this reason that the deed given thereunder is claimed to be void. The trust deed contained a specific covenant to the effect that in the event of default the trustees or the survivor of them might execute the trust and sell the property. The death of the cotrustee in no manner affected the notice, or


prevented the survivor from executing the powers conferred upon him under the covenants of the deed. For the reasons given the judgment is affirmed.

We concur:

BEASLY, J. pro tem.
STURTEVANT, J. pro tem.

Civil No. 2258. Second Appellate District. September 19, 1918. COULTER DRY GOODS COMPANY (a Corporation), Plaintiff and Appellant,

v. E. S. MUNFORD and MRS. E. S. MUNFORD, His Wife, Defendants and Respondents.

11] HUSBAND AND WIFE-NECESSARIES FURNISHED WIFE-ACTION AGAINST HUSBAND-- ESSENTIALS TO RECOVERY-PROOF OF FAILURE TO MAKE ADEQUATE PROVISION FOR SUPPORT.-In view of the provisions of section 174 of the Civil Code, it is necessary in an action against a husband for merchandise sold and delivered to his wife, to show that the husband had failed to make adequate provision for the support of his wife.

Appeal from the Superior Court of Los Angeles County-John W. Shenk, Judge.

For Appellant-Ward Chapman, L. M. Chapman.
For Respondents-George Beebe, J. M. Wright.

This action was brought against the defendant E. S. Munford and his wife, Mrs. E. S. Munford, upon an account for goods alleged to have been sold to the defendants at their special instance and request. Judgment was entered in favor of E. S. Munford and against the other defendant. Plaintiff appeals from the judgment in favor of E. S. Munford.

The items of account consisted of clothing and other dry goods furnished to Mrs. Munford while she was residing at Los Angeles. The husband at that time resided elsewhere, but their separation was temporary and the case does not involve any defense on the ground that the defendants were living separate and apart from each other. Mr. Munford testified that he did not know anything of the account until after the articles were furnished and that his wife never informed him of the fact that she had opened the account. He was receiving a salary of $416 per month and was sending to his wife for the support of herself and children the sum of $300 per month. She also had some separate income. Mr. Frank Coulter appears to have been an officer and one of the managers of the plaintiff. Mrs. Munford testified that for some time after she began trading with the plaintiff she paid cash for the articles purchased by her, until after she was urged by Mr. Coulter and by Mr. Baker, the general manager, to open a credit account. This was done by Mr. Baker, and the account was made in the name of Mrs. Munford. She testified that Mr. Frank Coulter knew that her husband was providing her with $300 a month, and that that sum was sufficient for the support of herself and family. There is no evidence tend. ing to show that the defendant E. S. Munford neglected to make adequate provision for the support of his wife or family.

"If the husband neglect to make adequate provision for the support of his wife, ... any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband." (Civ. Code, sec. 174.) It will be seen that ihe Civil Code limits the conditions of liability of a husband for merchandise sold to his wife. In Hoey v. Hechtman, 2 Cal. App. 120, the complaint alleged that

the defendant A. J. Hechtman was indebted to plaintiff's assignor in certain sums for goods, wares and merchandise sold to Carrie C. Hechtman, wife of the defendant, "and that said goods, wares and merchandise were common necessaries of life and necessary for the support and maintenance of said Carrie C. Hechtman". In that case it was held by the first district court of appeal that defendant's demurrer to the complaint upon the ground that it did not state a cause of action, should have been sustained. “The complaint does not allege a sale to defendant, and does not allege all the facts necessary under section 174 of the Civil Code, to fix liability upon a husband for a sale to the wife," citing Simon, Jacobs & Co. v. Scott, 53 Cal. 76, and Nissen v. Bendixsen, 69 Cal. 521. The court further said: “In the complaint before us it is alleged that the goods were necessary for the support of the wife, but it is not alleged that the husband had neglected to make adequate provision for her support. Both are essential. The allegation that the goods were necessary for her support refers to the character of the goods as being suitable to her circumstances and condition in life, and such allegation does not im ort that the husband had neg cted to make adequate provision for her support. Under the statute the articles must be necessary for her support and the husband must have neglected to make adequate provision for her support." In St. Vincent's Institution etc. v. Davis, 129 Cal. 17, the supreine court referred to section 174 of the Civil Code and stated that under the provisions of that section whoever supplies necessaries for the support of a wife must, in order to recover therefor against the husband, show that the husband had failed to make adequate

provision for the support of his wife. There being no such proof, it was , held that the plaintiff was not entitled to recover. [1] The same rule is applicable to the case at bar, for we must presume that the court believed the testimony of the defendants, notwithstanding that it was inconsistent with some of the testimony presented on behalf of the plaintiff.

Counsel for appellant say in their brief that it is an uncontradicted fact that when this account was first brought to the attention of Mr. Munford by means of a letter from the plaintiff, he wrote to Mr. Coulter a letter which contained an admission of his liability and a promise to pay the indebtedness when he got in better circumstances. That letter was lost, but one of the plaintiff's witnesses testified concerning its contents. But counsel are wrong in stating that the fact thus shown is uncontradicted, for their brief contains a quotation from the testimony of Mr. Munford in which he directly denies that in any such letter he said that he owed the account or that he would pay it.

Appellant claims that the court erred in excluding testimony offered by the plaintiff for the purpose of proving that the account was opened on the credit of the husband, as well as the wife. This offered testimony related to conversations between the general manager of the plaintiff and its credit man", and to statements made by the manager to the credit man about the affairs and financial responsibility of the defendants. These statements were not made in the presence of the defendants or either of them, or with their knowledge, and the objections were properly sustained. The judgment is affirmed.

We concur:


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