SWANSON et al. v. LEAVENS. (Supreme Court of Oregon. Nov. 19, 1894.) Appeal from circuit court, Multnomah county. Action by Peter and Charles Swanson against J. M. Leavens. Judgment for plaintiffs, from which defendant appealed, but failed to file a printed abstract of the record, or have the time for so ing extended. Respondents move to affirm the judgment. Affirmed.

W. W. Page, for appellants. C. A. Moore, for respondents.

PER CURIAM. The judgment herein will be affirmed for failure to comply with rule 4 of this court (37 Pac. vi.), taking effect October 1, 1894.

SHARP v. HARTMAN.

(Supreme Court of Oregon. July 5, 1894.) Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge.

This was originally a suit by Penumbra Kelly and others to wind up the affairs of the Northwest Loan & Trust Company, an alleged banking concern in the city of Portland, manipulated by one George B. Markle. The defendant, Hartman, was appointed receiver in the summer of 1893, and afterward Kate A. Morgan Sharp intervened, claiming a preference for certain moneys delivered to the trust company for the purpose of paying a mortgage, but which it had converted to its own use. The court below disallowed the preference, and the intervener appealed. Affirmed.

For a statement of the facts in this case, see Muhlenberg v. Trust Co., 26 Or. 38 Pac. 932.

TAXATION-INJUNCTION-TENDER.

Where mortgages on real estate are fraudulently omitted from taxation, and plaintiff tenders and deposits in court an amount rightfully due by him for taxes, the collection of the legal excess will be enjoined.

Appeal from circuit court, Clatsop county; T. A. McBride, Judge.

Bill by the Hamblin Real-Estate Company against the city of Astoria and others to enjoin the collection of taxes. Bill dismissed. Plaintiff appeals. Reversed.

Fulton Bros., for appellant. F. D.. Winton, for respondents.

ple announced in the Welch Case, the complaint states a cause of suit. The decree must therefore be reversed, and the cause remanded for trial. Reversed.

FROST v. WEISTER.

(Supreme Court of Oregon. Nov. 19, 1894.) Action by one Frost against one Weister. Judgment for plaintiff, and defendant appeals. Appeal dismissed, on motion of appellant.

(107 Cal. 175)

REDEMEYER v. HENLEY et al. (No. 15,671.) (Supreme Court of California. April 27, 1895.) ACTION ON FIRM NOTE-PLEADING.

Where, in an action against a partnership on a note, the complaint named the individuals of the firm, asserted the existence of the partnership, and alleged the execution of the note in the firm name by one of the partners, it sufficiently alleged his authority to make the note. Commissioners' decision. Department 1. Appeal from superior court, Mendocino county; R. McGarvey, Judge.

Action by A. F. Redemeyer against Whitcombe Henley and others, as partners, on a promissory note. Judgment was entered for plaintiff on default, and defendants appeal, on the ground that the complaint did not state Affirmed. a cause of action.

T. L. Carothers, for appellants. J. A. Cooper, for respondent.

VANCLIEF, C. Action on a promissory note made by the defendants to plaintiff, inwhich judgment was rendered in favor of plaintiff by default. The defendants have appealed from the judgment on the judgment roll, which contains no bill of exceptions; and the only point made by appellants is that the complaint does not state facts sufficient to constitute a cause of action. The following is a copy of those parts of the verified complaint which it is contended are deficient: "(1) That the defendants, Whitcombe Henley, Barclay Henley, and Thomas B. Henley, are now, and at all the times herein named have been, partners, doing business in the county of Mendocino, state of California, under the firm name and style of W. Henley & Bros. (2) That on the 15th day of April, 1893, the said defendants, Whitcombe Henley, Barclay Henley, and Thomas B. Henley, partners, doing business under the firm name of W. Henley & Bros., as aforesaid, by the said W. Henley, made and executed their certain promissory note in writing, of which the following is a copy, to wit: '$1,601.60. Ukiah, April 15, 1893. One day after date, without grace, we, or either of us, promise to pay to A. F. Redemeyer at Ukiah, or order, the sum of sixteen hundred one and 60-100 dollars, for value received, with interest thereon at the rate of ten per cent. per annum from date until paid. W. Henley & Bros., by W. Henley.' And then and there delivered

the same to plaintiff, and plaintiff is now the lawful owner and holder thereof."

The substance of the objection to the complaint is that it does not show that W. Henley was authorized to make the note, because such authority is not expressly alleged nor implied in any of the express allegations. But I think it is implied in the express allegation that "said defendants, Whitcombe, Barclay, and Thomas B. Henley, partners, doing business under the firm name of W. Henley & Bros., as aforesaid, by the said W. Henley, made and executed" the note. This allegation is not true, unless W. Henley had authority from Barclay and Thomas B. to make the note; yet its truth is admitted by the default of the defendants. There is nothing on the face of the note inconsistent with the truth of this allegation, as contended by appellants. I think the judgment should be affirmed.

We concur: BELCHER, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(5 Cal. Unrep. 26)

WOODBRIDGE v. WORLD PUB. CO. et al. (No. 15,923.)

(Supreme Court of California. April 27, 1895.) REVIEW ON APPEAL.

A finding by the court on conflicting evidence will not be disturbed on appeal.

Department 1. Appeal from superior court,' city and county of San Francisco; James M. Troutt, Judge.

Action by Alfred F. Woodbridge against the World Publishing Company and others for the subjection of property. From judgment for defendants, plaintiff appeals. Affirmed.

Wm. Grant and C. S. Cushing, for appellant. Bartholomew Noyes, for respondents.

PER CURIAM. This action is in the nature of a creditors' bill to subject property in the possession of the defendant California World Publishing Company to the payment of a judgment recovered by the plaintif against the defendant World Publishing Company. The court below found the facts, and gave judgment against the plaintiff, from which, and from an order denying his motion for a new trial, he appeals. The notice of motion for a new trial stated that the motion would be made upon the grounds of the insufficiency of the evidence to justify the decision, and that it was against the law, and of errors in law occurring at the trial, and excepted to by the plaintiff.

It is earnestly contended that several of the findings were not justified by the evidence, but it would subserve no useful purpose to notice them in detail. It is claimed that every witness in the case, with one exception, was absolutely adverse to the plaintiff, and that he was not bound by the testi

mony of witnesses adverse to him; and it is said that, while there was some testimony tending to support the findings, still "the whole transaction shows, beyond a doubt, that the facts found cannot be the truth." There is testimony set out in the statement which, in our opinion, tends to support all of the findings. Whether that testimony was true or false was a question for solution by the trial court, and not on appeal. The case falls within the well-settled rule as to conflicting evidence, and the judgment cannot be disturbed upon the first ground urged.

It is also contended that the court failed to find upon several of the issues raised by the pleadings, and that some of the findings are inconsistent and contradictory. But we think the findings substantially cover all the material issues, and we discover no such inconsistency in them as would justify a reversal.

It does not appear from the record that any rulings of the court during the trial were excepted to by the plaintiff, nor are there any specifications attached to the statement showing errors of that kind. It follows that the judgment and order appealed from must be affirmed, and it is so ordered.

1. County Government Act, § 25, subd. 9, requiring the board of supervisors to let contracts to erect, or rebuild and furnish, a courthouse, and other necessary public buildings, to the lowest bidder, after 60 days' notice, does not apply to a contract for repairs or alterations in the courthouse and improvements in the grounds surrounding it.

2. Where a contract for the alteration of a courthouse, and for the making of improvements and walks around it, provides for liquidated damages in case of delay in finishing the courthouse, such damages cannot be recovered under an allegation that the "work" is not finished at the time stipulated.

3. Under Const. art. 11, § 18, and the coun ty government act (sections 5, 6, 36), providing that each year's revenues must pay each year's indebtedness, the board of supervisors, after issuing a warrant for payment of work completed within the fiscal year, cannot exchange therefor another warrant issued in the next fiscal year, payable out of the revenues of that year.

4. On an application for a writ of mandamus to compel the treasurer of a county to pay a warrant, when plaintiff alleges that the warrant was regularly issued, his ownership of it, the refusal of the treasurer to pay it, and the fact that there was money in the treasury out of which it could be paid, the burden is on defendant to show that he was justified in refusing payment.

Commissioners' decision. Department 1. Appeal from superior court, Mendocino county; R. McGarvey, Judge.

Application by Matthew McGowan and another for a writ of mandate to compel William Ford, treasurer of Mendocino coun

ty, to pay two warrants drawn on him by the county auditor. From a judgment making the writ peremptory as to both warrants, defendant appeals. Reversed as to warrant No. 1,746, and affirmed as to warrant No. 1,747.

J. E. Pemberton, for appellant. T. L. Carothers and J. A. Cooper, for respondents.

BELCHER, C.

There are two appeals in this case, and two separate transcripts are presented, but the questions involved may properly be considered together. The respondents made application to the court below for a writ of mandate to compel the appellant, as treasurer of Mendocino county, to pay two warrants drawn on him by the county auditor. The material facts stated in the petition are as follows: On July 11, 1893, the county of Mendocino was justly indebted to respondents in the sum of $4,545.27 for work and labor done and performed by them under contract with said county in repairing the courthouse, county jail, and grounds and sidewalks surrounding the courthouse and public buildings on the courthouse square in Ukiah city. On said July 11, 1893, the board of supervisors of the county duly made an order accepting said work, and awarding to respondents the sum of $4,545.27 for the performance of the same, according to the terms and conditions of the contract; and by the order directed the auditor of the county to draw his warrant on the county treasurer for the said sum. On said July 11, 1893, the county auditor drew two warrants on appellant as county treasurer for the aggregate sum of $4,545.27,-the first warrant, numbered 1,746, for $2,970.27, and the second, numbered 1,747, for $1,575. The said warrants were delivered to the respondents, and by them presented to and registered by the treasurer on July 13, 1893, and were indorsed by him: “Not paid for want of funds." In De- | cember, 1893, there was money in the hands of the treasurer for the payment of said warrants, and respondents then presented them to appellant as such treasurer, and demanded payment thereof; but, notwithstanding there was money in the proper fund appropriated for their payment, he then refused, and ever since has refused, to pay the same, or any part thereof. On January 8, 1894, after the refusal to pay the warrants, respondents filed their petition for the writ of mandate, and the court granted an alternative writ, making it returnable on the 15th day of the same month. In due time appellant appeared and filed his answer to the petition. The answer admits that on the 18th day of July, 1892, respondents and the board of supervisors of said county entered into and executed what purported to be a contract, under the terms of which respondents agreed to make certain alterations in the courthouse of said county, to build and construct certain additions to said

courthouse, lay certain walks around it, and make certain alleged improvements on the grounds thereof, for the agreed compensation of $7,990, but alleges that the said contract was not let to the lowest bidder, after a publication of notice to bidders and contractors that such a contract was to be let for 60 days prior to the time set for opening bids, as required by subdivision 9 of section 25 of the county government act of 1891, and was therefore not a valid contract. It is then alleged that respondents have been paid for the work done under the said contract the sum of $5,000, leaving due them, if the contract is valid and no deductions are to be made, only $2,990. It is also further alleged that by the terms of the contract the work was to be completed on or before the 1st day of November, 1892, and that respondents expressly agreed to "complete and deliver the said building, entire and perfect in all its parts," to the county on or before the day named, and that "for each and every day or portion thereof that the said building shall remain unfinished or uncompleted after the said 1st day of November, 1892," they would pay to the county the sum of $10, as liquidated damages; that the "said work" was not completed before April 5, 1893, and respondents had not paid the liquidated damages, or made any deductions or allowances on account thereof. The answer then proceeds to state that on April 6, 1893, respondents filed and presented to the board of supervisors two claims, one for $2,990, "balance on contract," and the other for $1,575, "balance due on extra work," and that the board on that day allowed the same for the sums named; that warrants therefor were drawn by the auditor and delivered to and accepted by respondents, and thereafter presented to and duly registered by the treasurer, and indorsed, "Not paid for want of funds;" that about a month later,—it having been discovered by respondents and the members of the board of supervisors that the board had incurred liabilities against the county during the fiscal year ending June 30, 1893, in excess of the income and revenue provided for that year,-for the purpose of evading the provisions of section 18 of article 11 of the constitution, and the statutes passed in conformity thereto, it was agreed by and between the respondents and the members of the board that under the pretense that the work called for by said contract was not completed, the said warrants should be recalled and revoked, and the time for finishing said work should be extended so as to end in the fiscal year beginning July 1, 1893, and the warrants for the payment of the same be drawn in that year, and apparently payable out of the revenue of that year; that thereafter, respondents consenting thereto, the board of supervisors made and caused to be entered on its minutes the following order: "It duly

appearing to this board that on the 6th day of April, 1893, warrants were issued to" respondents "for work done in putting in cement walks, steps, and improving the courthouse under contract" made by re spondents with the county of Mendocino; "and it further appearing that said warrants were inadvertently issued before the said work was completed, or the amount thereof due, and that the said contract is not completed according to the plans and specifications therefor; and it further appearing that the said" respondents "are still the owners and holders of the said warrants, and that the same are yet unpaid: It is therefore ordered that the said warrants be, and the same are hereby, canceled, and they are recalled and declared void and of no effect; this order not to impair the right of said" respondents "to receive their pay through proper warrants when the said work is completed and accepted and the amount due; and the time to complete said contract in accordance with the plans and specifications is hereby extended to and including the 5th day of July, 1893." The answer further states that thereupon respondents voluntarily surrendered said warrants, and consented to their being canceled and destroyed, but thereafter performed no more work on said courthouse, walks, or grounds, and that nevertheless the warrants mentioned in the petition were afterwards ordered to be issued by said board in pur suance of said agreement; and "that there are no funds whatever in the treasury of said county belonging to the revenue of the fiscal year ending June 30, 1893, from which the warrants mentioned in plaintiffs' application and the writ herein can be paid; but that all the money now in the fund on which said warrants are drawn, or which has been therein at any time since said warrants were drawn, has been derived solely from the taxes, income, and revenue of said county for the fiscal year ending June 30, 1891."

The respondents demurred to the answer, but subsequently withdrew their demurrer, and moved the court for judgment on the pleadings, and after argument by counsel the motion was submitted and taken under advisement. Thereafter the court filed a written opinion, holding that respondents were entitled to the relief demanded as to warrant No. 1,746 for $2,970.27, but not as to warrant No. 1,747; and judgment was thereupon entered, making the writ peremptory as to the first-named warrant. Afterwards the case came on regularly for trial by the court, without a jury, as to warrant No. 1,747 for $1,575; and both parties declined to offer any evidence, claiming that the burden of proof was upon the other side. After argument and due consideration, the court made and filed its decision, holding that the undenied allegations of the petition made a prima facie case for respond

ents, and that, in the absence of any evidence in support of the affirmative allegations of the answer, respondents were entitled to judgment; and judgment was thereupon entered, making the writ peremptory as to the last-named warrant. From these judgments the appeals are prosecuted.

1. Appellant contends that the board of supervisors had no jurisdiction or power to enter into the said contract with respondents, because notice by publication to bidders was given for only 11 days, and not 60, as required by subdivision 9, § 25, of the county government act of 1891; and hence the contract was ultra vires and void. The section referred to provides that boards of supervisors, in their respective counties, have jurisdiction and power "to cause to be erected, or rebuilt and furnished, a courthouse, jail, hospital, and such other public buildings as may be necessary: provided such buildings must be erected by contract, let to the lowest responsible bidder, after notice by publication in a newspaper of general circulation published in such county, for at least sixty days," etc. The contract in question was not for the erection of any building, but for making repairs or alterations in the courthouse, and for laying walks and making improvements upon the grounds surrounding the courthouse. Obviously, therefore, the statute invoked and the cases cited have no application to such a contract, and do not render it void.

all

2. The point is made, but not much urged, that the county was entitled under the contract to liquidated damages, because the "work" was not completed within the time fixed therefor. The averments of the answer are that respondents expressly agreed to complete and deliver the building to the county on or before November 1, 1892, and that for each day the building should remain unfinished or incomplete after that day they would pay to the county $10 as liquidated damages. There is no averment that the building was not completed and delivered within the time agreed upon, but only that the work was not completed before April 5, 1893. But the "work" included as well the walks and improvements on the ground, and it may well be assumed, therefore, that the building was completed in time, and only the walks and improvements on the ground remained unfinished, thus giving to the county no right to claim any sum as liquidated damages.

3. Appellant further contends that the indebtedness to respondents was incurred during the fiscal year ending June 30, 1893, and could only be paid out of the revenues provided for that year, and that all such revenues had been drawn and expended before the allowances in question were made and the warrants therefor issued. Section 18 of article 11 of the constitution provides that no county shall incur any indebtedness or liability, in any manner or for any purpose,

exceeding in any year the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof, and any indebtedness or liability incurred contrary to this provision shall be void. This language of the constitution is repeated in section 5 of the county government act, and in section 6 of the act it is provided that "all contracts, authorizations, allowances, payments, and liabilities to pay, made or attempted to be made in violation of this act shall be absolutely void, and shall never be the foundation or basis of a claim against the treasury of such county." Section 36 of the same act also declares that "the board shall have no power to make allowances against any fund which, with all allowances previously made, and salaries and liabilities fixed by law payable therefrom, shall excced the auditor's estimate of revenue for the year. * Any allow

ance made contrary to the provisions of this section shall be null and void, and the auditor shall not draw his warrant therefor, nor the treasurer pay the same." In Gas Co. v. Brickwedel, 62 Cal. 641, the court said it was clear that the framers of the constitution, in making the provision above referred to, meant "that each year's income and revenue must pay each year's indebtedness and liability, and that no indebtedness or liability incurred in any one year shall be paid out of the income and revenue of any future year." The question, then, is, when was the indebtedness involved in this case incurred? Was it in a fiscal year ending in 1893, or in that ending in 1894? The question, so far as it relates to the indebtedness for the payment of which judgment was granted on the pleadings, must be solved by a consideration of appellant's answer, for when respondents moved for judgment on the pleadings they in effect admitted that all the averments of the answer were true. Ward v. Flood, 48 Cal. 46; Fleming v. Wells, 65 Cal. 339, 4 Pac. 197; People v. Johnson, 95 Cal. 474, 31 Pac. 611. The answer clearly states that respondents fully completed the work to be done under their contract before the 6th day of April, 1893, and on that day presented to the board of supervisors a claim for the balance due on the contract, and the same was allowed, and a warrant therefor drawn and delivered to them. It further states that in May following, by agreement between respondents and the members of the board of supervisors, and for the purpose of evading the provisions of the constitution and statute and making the money payable out of the revenue of the succeeding fiscal year, that warrant was surrendered and canceled, and the warrant dated July 11, 1893, was issued and accepted by respondents as a substitute therefor; and that when the lastnamed warrant was drawn all the money in the treasury out of which it could be paid, or which had been therein at any time since it was drawn, was derived solely from the

income and revenue of the county for the fiscal year ending June 30, 1894. If these statements are true,-and for the purposes of this decision they must be accepted as such, it is obvious that the indebtedness was incurred as early at least as April 6, 1893, when the first warrant was issued, and could only be paid out of the revenue provided for that fiscal year. It is also obvious that the orders of the board, made for the purpose of carrying the indebtedness over and making it payable out of the revenue of the next fiscal year, were unauthorized and without effect. See Schwartz v. Wilson, 75 Cal. 502, 17 Pac. 449, where a similar question was considered. We conclude, therefore, that the court below erred in granting the judgment on the pleadings.

4. Appellant contends that the second judgment appealed from-that making the alternative writ peremptory as to warrant No. 1,747 for $1,575-was erroneous, and should be reversed, because the claim presented and allowed, as shown by his answer, was for extra work, and was not properly itemized, as required by the statute. The only question is, on which side was the burden of proof? It is earnestly urged that the averments of the answer show that the board of supervisors never had jurisdiction to audit and allow the claim, and that it devolved upon respondents to show by affirmative proof that it had such jurisdiction. It is averred in the petition, and not denied, that the board allowed the claim and ordered a warrant drawn therefor, and that a warrant was regularly drawn by the auditor and delivered to respondents. The presumption is that official duty is regularly performed (Code Civ. Proc. 1963, subd. 15), and it seems to us that, when respondents presented their warrant to appellant for payment, there being money in the proper fund for the purpose, they were apparently entitled to have it promptly paid without question; and, when they were compelled to go into court to compel payment, they made a prima facie case by setting out the regular issuance of the warrant, their ownership of it, the refusal of the treasurer to pay it, and the fact that there was money in the treasury out of which it could be paid. We conclude, therefore, that the burden was upon the appellant to show that he was justified in refusing payment. We advise that the judgment as to warrant No. 1,746, involved in appeal No. 15,841, be reversed, and the cause remanded, and that the judgment as to warrant No. 1,747, involved in appeal No. 15,842, be affirmed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment as to warrant No. 1,746, involved in appeal No. 15,841, is reversed and the cause remanded, and the judgment as to warrant No. 1,747, involved in appeal No. 15,842, is affirmed.