place, the accident would not have happened, but we must accept the statement of plaintiff that the former was not at his post. Plaintiff was not responsible for this condition, and it does not and can not weigh in appellant's favor.

We may then briefly recapitulate the facts as follows: Plaintiff was employed as foreman by defendant to oversee and keep the mill running; he was furnished with imperfect and unsafe machinery which he had no authority to correct; he asked permission to make the necessary changes, but his request was denied, although he was promised that the defects would be remedied; he was at work in connection with said machinery in discharge of his duty when he received a serious injury by reason of said defective construction.

The

That these facts warranted the conclusion that defendant was legally responsible for the damage suffered by plaintiff cannot be disputed. duty of the employer to provide for the employee a safe place and safe machinery for his work is, of course, well settled. This obligation was not neutralized nor affected in any manner by the knowledge of the defects on the part of respondent. At the time of the accident, the "Employers' Liability Act of the State of California" of 1911 was in force. (Stats. of 1911, p. 796.) That statute changed the rule theretofore existing as to assumption of risk and to contributory negligence. [4] Moreover, in a case where the employee notifies an employer of the defects and the latter promises to remedy them, the former is justified in continuing in the employment upon the faith of the promise; and the employer is deemed to have assumed the risk of the work, unless the danger arising therefrom is so glaringly obvious that no prudent man would undertake it even under the direction and promise of the employer. (Anderson v. Serapian, 147 Cal. 201.) It cannot be said that such obvious danger existed in this case. The court below was justified in concluding that by reason of the said defects the danger of the work was augmented, but it would be unreasonable to hold that it was thereby rendered so perilous as to terrify and repel the man of average caution.

In reference to "contributory negligence", it may be said that it was not pleaded, but, if we may consider it, the burden of proof was upon the defendant to establish it, and there is sufficient ground for holding that plaintiff was not so chargeable.

It is, however, strongly urged by appellant that it was the duty of respondent to correct the defects, that he was charged with full responsibility to keep the machinery in repair, that he was authorized to do whatever was necessary for the successful operation of the mill, and that the case is one for the application of the doctrine enunciated in Duffy v. Hobbs, Wall & Company, 166 Cal. 210. Therein it is said: "Here it was the duty of Duffy to take care that the railing and posts alongside the conveyor were kept in good order and repair. He had undertaken to perform that obligation for and on behalf of the defendant, who relied on him to see that it was duly performed. The negligence, if any, which caused the injury was the failure to examine the post to ascertain it was decayed or had otherwise become incapable of holding nails securely and the failure to replace it with a new one, a thing which Duffy himself was under obligation to do. The neglect was his own. It would be unjust to hold his employer liable for the consequences of his own want of care and circumspection."

But it is only necessary to notice two vital circumstances that distinguish this case from that. Herein, the defect was not hidden or concealed. It was obvious and well known. Again, the court found upon sufficient evidence, as we have already seen, that it was not the duty of plaintiff to correct the defect and he was not authorized to do so. Manifestly, he

could not be chargeable with negligence for his failure to do something not within his authority and which it was the duty of defendant to perform.

Of course, we have considered the case upon the theory supported by the evidence in favor of plaintiff. The mistake made by appellant, one to which appellate courts often have occasion to advert, is in assuming as true the testimony favorable to its contention and ignoring the evidence upon which the findings are based. It is true that certain statements made by respondent, if considered alone, lend some support to appellant's contention, but the whole of his testimony, when fairly regarded, is consistent only with the position that it was not the duty of respondent nor was he authorized to correct said defect.

Some other matters of minor importance are discussed by counsel, but it would not be profitable to notice them further. The judgment and order are affirmed.

We concur:

CHIPMAN, P. J.

HART, J.

BURNETT, J.

Civil No. 2530. First Appellate District. September 27, 1918. MARY V. COWARD, Plaintiff and Respondent, v. AGNES DE CRAY, as Executrix of the Last Will and Testament of Catherine A. Wilkins, Deceased, AGNES DE CRAY and FRANK DE CRAY, Defendants and Appellants; CATHERINE L. CODY et al., Defendants and Respondents. [1] GIFT-INDORSEMENT OF STOCK-DELIVERY TO THIRD PARTY WITH IN STRUCTIONS.-Where an owner of bank stock indorsed the stock and delivered it to her attorney with directions to hold it until her death and then give it to the indorsee, the effect of the transaction was to make an absolute gift inter vivos of the stock, and the fact that thereafter and before death the donor obtained possession of the stock for the purpose of surrendering the certificates and obtaining new certificates therefor which she kept until her death, did not affect the gift.

Appeal from the Superior Court of Santa Cruz County-Benj. K. Knight, Judge.

For Appellants-Chas. B. Younger.

For Respondent Coward-Wyckoff & Gardner.

For Respondents Cody et al.-Emmet C. Rittenhouse, Ralph H. Smith. Catherine A. Wilkins owned certain bank stock, evidenced by two certificates and also owned two tracts of land. On the evening of November 4, 1905, Mrs. Wilkins, who was suffering from a dislocated shoulder at the time, sent for her attorney, one Maher, indorsed the bank stock to the plaintiff, her niece, and made two deeds of the land, one tract to Agnes De Cray, also her niece, and the other tract to Frank De Cray, the husband of Agnes. She delivered the certificates of stock and the deeds to her attorney for the indorsee and grantees respectively, and directed him to hold them until her death and then to give them to said indorsee and grantees. About six weeks later Mrs. Wilkins obtained possession of the stock certificates from Maher for the purpose of surrendering the certificates and obtaining new ones, the change being necessary, she claimed, because the bank in tended to change from a state to a national bank, and she further stated that when the change was made she would replace the certificates with Maher. She did not do so but kept them until her death. No question was made, either in the lower court or on this appeal, but that the stock, now the subject of this litigation, is the same stock indorsed to plaintiff

on November 4, 1905, although reissued and represented by different certificates. Mrs. Wilkins died testate. By her will she assumed to give plaintiff but a small part of the stock in question and she further attempted to give plaintiff an interest in the tract of land which had been the subject of the deed to Agnes De Cray. The deeds to the land were delivered by Maher to Mrs. De Cray and her husband after Mrs. Wilkins' death but he was unable to deliver the certificates of stock because of Mrs. Wilkins' retention of them.

The lower court found in effect that by the indorsement and delivery by Mrs. Wilkins of the stock certificates, title to the stock vested in plaintiff; and the question upon appeal is whether there is sufficient evidence to support that finding.

It is contended that the delivery of the certificates on November 4, 1905, was a gift causa mortis, and that therefore it could be and was afterward revoked. While there is some evidence that Mrs. Wilkins thought that she was seriously ill, there is other evidence which strongly points to the conclusion that she was not acting in fear or contemplation of speedy or immediate death. Her ailment, a dislocated shoulder, was not such as would reasonably cause expectation of death, and, in fact, she soon recovered from it. Although a Catholic, she did not have a priest called. She was not confined to her bed but sat up throughout the transaction with her attorney. She did not tell the attorney anything about being in fear of death. Her only remark to him about the condition of her health was to the effect that she was suffering considerably with her shoulder and that she couldn't use her hand to write.

Moreover the evidence shows that Mrs. Wilkins intended to make and did make an absolute gift inter vivos of the stock. She told her attorney that she wanted to give the stock to Mary, her niece, that she wanted her to have it at the time of her death, and that she wanted the delivery made so there would be no administration. Maher, the attorney, testified that he advised her that she could not avoid an administration of her estate unless she made an absolute delivery of the indorsed stock certificates during her lifetime, such delivery to be either to Mary direct, or to Maher for her, with the understanding that the delivery must be beyond recall. She thereupon proceeded with the transaction and made the delivery to Maher for Mary and directed him to give the certificates to Mary at the time of her (Mrs. Wilkins') death. [1] The effect of such a delivery is to vest a present title in the grantee subject to a life interest in the grantor (Bury v. Young, 98 Cal. 446; Ruiz v. Dow, 113 Cal. 490), and no subsequent act of the grantor, such as a retaking of the certificates, can detract from the title which has already vested in the grantee. (Ruiz v. Dow, supra; Estate of Cornelius, 151 Cal. 550; King v. Fragley, 19 Cal. App. 735.)

It was not error to admit in evidence testimony to the effect that the depositary, after the death of Mrs. Wilkins, delivered and recorded the two deeds. The deeds were delivered by Mrs. Wilkins at the same time as, and as a part of the same transaction with, the delivery of the stock certificates. Evidence of subsequent acts of the depositary under such circumstances is admissible as throwing light on the intent with which the original delivery was made (Devlin on Deeds, 3d ed., vol. 1, sec. 280a). Moreover it appears that no objection was made upon the trial to the admission of the evidence in question. Judgment affirmed.

We concur:

BEASLY, J. pro tem.

LENNON, P. J.

STURTEVANT, J. pro tem.

Civil No. 2606. First Appellate District. September 27, 1918. MARY V. COWARD, Plaintiff and Respondent, v. AGNES DE CRAY, as Executrix of the Last Will and Testament of Catherine A. Wilkins, Deceased, AGNES DE CRAY and FRANK DE CRAY, Defendants and Respondents; CATHERINE L. CODY, NELLIE CODY KEEFE and JOHN DOE KEEFE, Defendants and Appellants.

Appeal from the Superior Court of Santa Cruz County-Benj. K. Knight, Judge.

For Appellants-R. H. Smith, E. C. Rittenhouse.

For Plaintiff and Respondent-Wyckoff & Gardner.

For Defendants and Respondents-Chas. B. Younger.

In this case it has been stipulated by the parties, and in accordance therewith, ordered by the court, that the appeal should be submitted to the court for decision upon the briefs and transcript filed and arguments made in an appeal involving the same parties and the same questions, numbered 2530 and entitled, Mary V. Coward, Plaintiff and Respondent, v. Agnes De Cray, as executrix of the last will and testament of Catherine A. Wilkins, deceased, Agnes De Cray and Frank De Cray, defendants and appellants; Catherine L. Cody et al., defendants and respondents.

A decision in the above-entitled appeal, No. 2530, has this day been rendered and filed, and for the reasons given therein, and in accordance with the stipulation and order filed herein, the judgment herein is affirmed. LENNON, P. J.

We concur:

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

Civil No. 2577. Second Appellate District. September 20, 1918. ROBERT H. INGRAM, Plaintiff and Respondent, v. D. JOHNSTON and H. B. SMITH, Defendants and Appellants.

[1] PARTNERSHIP PURCHASE OF LAND AND SHARING OF PROFITS RIGHT TO ACCOUNTING EVIDENCE.-In this action to establish the existence of an agreement of copartnership and for incidental equitable relief, it is held that whether the transaction relating to the purchase of real property and the sharing of profits constituted a partnership, or trust, the plaintiff was entitled to an interest in the profits and an accounting.

[2] ID. INTEREST IN PROFITS FROM SALE OF LANDS-EVIDENCE-PAROL PROOF -STATUTE OF FRAUDS.-The statute of frauds does not prevent parol proof for the purpose of showing an interest in the profits to be derived from the sale of lands, but declares that an agreement by which an interest or estate in lands is created must be in writing.

[3] ID.-VOLUNTARY TRUST-RUNNING OF STATUTE OF LIMITATIONS.-The statute of limitations does not begin to run against a voluntary trust until repudiated by the trustee.

Appeal from the Superior Court of Los Angeles County-John M. York, Judge.

For Appellants-Barstow, Beach & Rohe; Chester L. Lyman, of Counsel. For Respondent-Denis & Loewenthal.

Plaintiff, alleging the existence of an agreement of copartnership between himself and defendants, under and pursuant to which certain described land was purchased by defendants, asked for a decree establishing the existence of such copartnership and for incidental equitable relief.

The court found that the partnership agreement was made as alleged, and that by virtue of the relationship and agreement so made between the parties, plaintiff was entitled to a one-eleventh interest in the unsold property and in the net proceeds of that which had been sold, subject to certain liens and charges established against the same, and entered a decree in accordance therewith.

The appeal is from the judgment and an order of court denying defendants' motion for a new trial, in support of which a bill of exceptions is presented.

Appellants' chief contention, and that to which their voluminous brief is almost entirely devoted, is that the finding that the copartnership agreement was entered into under which the property was acquired and plaintiff entitled to such interest in the land, is unsupported by the evidence. While as to this alleged agreement the evidence is sharply conflicting, that given on behalf of plaintiff, and which the court found to be true, clearly tends to show that prior to the acquisition of the property plaintiff and defendants entered into an agreement contemplating the purchase, for resale and speculation therein, of what was known as industrial property; that is, property which by reason of its location with relation to railroads was adapted to manufacturing purposes; that for some time prior to the making of this agreement plaintiff had been engaged in acquiring such property for the Southern Pacific Company, by reason of which fact he was in possession of much valuable expert knowledge and information, on account of which it was agreed that he should not be required to furnish any part of the copartnership capital, but that his knowledge, counsel and advice should constitute his share thereof. Some months thereafter, and after considering a number of pieces of property and advising with plaintiff, it was finally agreed to purchase the property in question, title to which was to be in the name of Johnston for the benefit of the copartners, who were to share equally in the profits derived therefrom. The first payment made upon the