be then obviated by him, are waived by the creditor if not then stated. Held, that where, on tender by a vendee of realty to the vendor of the money due, no objection was made on the ground that the tender was insufficient in amount, that the interest was not included, or that the tender was too indefinite, such objections could not be made in an action against the vendor.

2. Civ. Code, § 1496, provides that the thing to be delivered, if any, need not in any case be actually produced upon an offer of performance, unless the offer is accepted. Held, that where, on a tender by a vendee of realty to the vendor, the latter did not accept the offer, the vendee was not in fault in not producing the money or permitting it to be counted.

3. Where, on a tender and offer of performance by a vendee of realty in a contract calling for a fee-simple title, the vendor tenders a deed not sufficient to convey a fee simple, it is a refusal of the offer.

4. Civ. Code, § 1498, enacts that, when a debtor is entitled to the performance of a condition precedent to or concurrent with performance on his part, he may make his offer to depend on the due performance of such condition. Held, that a vendee whose contract calls for a title in fee simple on an offer to perform has a right to attach the condition of receiving such a title to his offer.

5. Where a vendor who had contracted to convey a fee simple tendered a deed which did not convey a fee simple to all the land because of a judgment having been rendered declaring title to a part not in the vendor, and the vendee refused on the ground that the judgment was outstanding, and title to all the land not conveyed, the vendor's tender went for naught.

6. An entry of judgment for plaintiff in a suit to quiet title involving land which defendant has contracted to sell is no ground for rescission by the vendee until the vendor had refused, on proper tender, to perform his contract.

7. An entry of judgment for plaintiff in a suit to quiet title involving land which defendant has contracted to sell was entered July 25, 1892. Held, that there was no laches in an attempt by the vendee to rescind November 26, 1895.

8. Civ. Code. § 1689, provides a party to a contract may rescind if the consideration for his obligation fails. A vendee in a contract for the sale of land made improvements thereon in part consideration for the conveyance, and subsequently assigned all his "rights, interest," etc. Held, that the assignee could recover, on breach by the vendor, for the improvements made by her assignor.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; F. H. Dunne, Judge.

Action by Ida L. Latimer against the Capay Valley Land Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Platt & Bayne, for appellant. Curtis Hillyer (0. K. McMurray, of counsel), for respondent.

GRAY, C. This action was brought to recover moneys laid out and expended in improving a certain piece of land in pursuance of and as a part of the consideration for a contract by which appellant had agreed to convey said land in fee simple to plaintiff's assignor on or before a certain date, for an agreed price, which contract, it is alleged, appellant was unable to perform, and failed to perform on tender to it of the agreed pur

chase price; such failure arising from the fact that it had not the title in fee simple to the entire tract, and hence could not convey the same to plaintiff. On a trial before the court without a jury the plaintiff had judginent for $1,009.91, with interest from November 25, 1895. Defendant appeals from the judgment and from an order denying it a new trial.

1. Appellant's first contention is that no tender of the purchase price of the land was shown. It seems to be conceded that the evidence in the case shows that there was a judgment in a suit brought to quiet title, which affected at least a part of the land in question, and that by said judgment the title to said part of the land was declared to be in some one other than appellant. Knowing of this defect in appellant's title, the evidence shows that respondent, on November 26, 1895, made offer in writing to appellant of the principal sum due for the land rader the contract, and demanded a deed in fee simple of the property. At the time of the making of the offer the agent who made it had with him in a sack an amount of money equal to the amount named in the written offer. On this offer being made, the agent of appellant requested his clerk to count the money, and as a performance of the contract on appellant's part tendered to the agent making the offer a deed of the premises, executed by it, but made no tender of any deed conveying the title to that portion of the premises affected by the judgment in the suit to quiet title. No objection was made at the time of the offer on the ground that it was insufficient in amount, or on any other ground, and consequently the objection made on this appeal that the offer and tender were insufficient in amount was waived, and must be now disregarded. Section 1501, Civ. Code; section 2076, Code Civ. Proc.; Kofoed v. Gordon, 122 Cal. 314, 54 Pac. 1115. The appellant is also precluded from now objecting (1) that the interest was not included in the tender, (2) that the tender was too indefinite, because no such objections were made at the time of the tender. This is clearly illustrated in Kofoed v. Gordon, supra. It is also clear that the respondent was not required to produce the money, or permit it to be counted, in order to constitute a valid tender, so long as the appellant did not accept the offer. "The thing to be delivered, if any, need not in any case be actually produced, upon an offer of performance, unless the offer is accepted." Civ. Code, § 1496. The evidence disclosed no acceptance of the offer upon the part of appellant; but its tender of a deed, as a performance of the condition of the offer as well as of the condition of the contract, which did not convey a title in fee simple to all the land, and which, for that reaso", did not comply with these conditions, mus be taken as a refusal to accept the offer as made. Of course, respondent had a right to attach this condi

tion of a conveyance in fee simple to her offer (Civ. Code, § 1498), and appellant was bound to perform or tender performance of this condition. When it tendered its deed, the agent of respondent "refused to accept on the ground that the judgment in the case of Goodnow against Parker (the suit to quiet title) was still outstanding, and no title to the ten-acre tract was.conveyed by the deed." This objection to appellant's tender of the deed being well taken and properly stated under the statutes already cited, such tender went for naught, and the facts taken altogether show that appellant was neither ready nor willing to perform the conditions of the contract incumbent upon it to perform, and that, in effect, it refused to perform those conditions, and was thereby guilty of such a breach of its contract as would warrant respondent in bringing this action. It plainly appears from the evidence that appellant gave respondent's agent clearly to understand that it intended to offer the deed which it tendered as a full performance of its contract, and did not propose to procure or make any further or different conveyance of that part of the property involved in the suit to quiet title.

2. Appellant contends that because the judgment affecting the title to the land was entered July 25, 1892, and no attempt was made to rescind until November 26, 1895, a lack of promptness in rescinding is disclosed, which ought to defeat the case. The entry of said judgment furnished no ground of rescission, nor did it furnish any ground for treating the contract as broken or abandoned, for, notwithstanding the judgment, appellant might have procured the title evidenced by it, and afterwards conveyed said title to respondent. Shively v. Water Co., 99 Cal. 259, 33 Pac. 848. There was no ground of rescission, and no ground for treating the contract as broken or rescinded, until appellant had failed and refused, on proper tender and demand made, to comply with his contract. How soon after such failure and refusal this suit was instituted the record fails to disclose. On the case made by the record before us, we see no room for appellant to complain of any lack of promptness in rescinding, or of any laches in any respect.

3. The contract of sale was assigned to respondent by the original vendee by an indorsement thereon duly signed by said venIdee, which indorsement was in words and figures following: "James D. Latimer, the within-named purchaser, for and in consideration of love and affection, and also $10 to him in hand paid, do hereby sell, assign, and transfer all his right, title, interest, and claim in and to the within described lot, block, or parcel of land, and the within contract No. 162, unto Ida L. Latimer, his wife, her heirs and assigns, forever, subject to the stipulations and conditions therein contained, which are to be performed by said assignee." Two weeks after the making of this assignment

appellants were given notice thereof by letter, and thereafter consented thereto, and, after giving her written notice that an installment of interest was due under the terms of the contract, received said interest from respondent. From the evidence it seems that of the money sought to be recovered in this action only about $420 was expended on the land by respondent after the assignment. The balance was expended thereon by the said assignor before the assignment. It is now contended that respondent should not be permitted to recover anything on account of the money expended by her assignor, but that her recovery should be confined to the amount of money expended by herself. This contention cannot be upheld. The assignment, by its terms, is broad enough to carry with it all the rights that the assignor might have under the contract by reason of its breach by appellant. One of these rights was to rescind the contract and bring an action for the recovery of the money expended under it on failure of the consideration therefor in whole or in part through the fault of appellant. Civ. Code, § 1689; 2 Suth. Dam. § 589; Gibert v. Peteler, 38 N. Y. 165, 97 Am. Dec. 785; McIndoe v. Morman, 26 Wis. 592, 7 Am. Rep. 96. This right to rescind and recover for the money expended for the improvements passed to respondent as one of the incidental rights under the contract. The assignor having parted with his interest in the land, as well as in the contract, of course there was no right left in him to recover the costs of any improvements placed on the land on a breach of the contract by appellant. If, then, this right was not left in the assignor, what had become of it? The Inost satisfactory answer to this question is that it followed the contract. The assignee stands in the shoes of the assignor, and whatever right of recovery was in the assignor on a rescission of the contract passed with the contract to the assignee. We think this principle finds illustration in the well-considered case of Oneida Bank v. Ontario Bank, 21 N. Y. 490, wherein it is said: "He who sells a security and receives his pay for it necessarily sells whatever claim or right the security is understood by the parties to represent."

We advise that the judgment and order appealed from be affirmed.

ing taken an oath then and there before a certain justice, is a sufficient averment that an oath had been administered to him before he gave the testimony.

2. There is a sufficient averment, in an indictment for perjury, of the court in which the false testimony was given; it being averred that the testimony was given "in open court, and during the pendency and as a part of the evidence in a criminal case then and there pending before" P. (previously averred to be a justice of the peace for a certain place) on a criminal complaint charging defendant with petit larceny.

3. An averment in an indictment for perjury that the statements were material to the issues tendered in said cause is a sufficient averment of the materiality of the false testimony.

4. In an indictment for perjury, the averment that "whereas, in truth and in fact,

he * * * was down to S.'s corral,' is a positive averment, and not a mere recital, notwithstanding the use of the word "where

as."

is true that the indictment is not well constructed, and would not be held good in jurisdictions where there is not tolerated such want of precision and particularity of statement in pleadings as our Penal Code allows. Nevertheless, we think that under the provisions of sections 950, 959, 960, 966, and 1258 of the Penal Code, the indictment in the case at bar is not insufficient to support the judgment. We will notice the main points made by appellant.

It is contended that in this indictment there is no averment that an oath had been administered to appellant before he gave the alleged false testimony. The averment on this subject is that he gave the testimony, "having taken an oath then and there before the Honorable Albert C. Parker, a justice of the peace in and for Stockton township, in San Joaquin county, California, duly elected, qualified, and acting, and being entitled, under the laws of the state of California, to administer oaths in such cases, matters, and proceedings." This character of averment is certainly not to be commended. A direct statement that an oath was administered to the witness by the justice would have been in much better form. But sections 118 and 966 of the Penal Code seem to assume that taking an oath "before" an officer includes all that is necessary to the taking of such oath; and appellant could not have misunderstood

the meaning, or have been misled or prejudiced by the absence of more specific averment. It is not held differently in People v. Simpton, 133 Cal. 367, 65 Pac. 834, relied on by appellant, although there are some expressions in the opinion there rather favorable to his contention. In that case, however, there was no averment that the defendant had taken an oath before the notary public. The averment was simply that before that officer he falsely, etc., swore to certain things. In People v. Dunlap, 113 Cal. 72, 45 Pac. 183, also cited by appellant, where the defendant was charged with making a false statement of her property to the assessor, there was no averment that she took an oath before the assessor, and the court said: "The failure to state therein that the defendant was sworn, or took an oath before any person authorized to administer the same, was a sufficient ground for sustaining the demurrer." All that was decided in People v. Cohen, 118 Cal. 74, 50 Pac. 20, was that, where a superior judge chooses to hold a preliminary examination, he cannot use the services of a clerk to swear the witnesses. The participial form of the averment is not the best method of stating a fact, but it is sufficient under our liberal system of pleading. People v. Piggott, 126 Cal. 509, 59 Pac. 31; People v. Hunt, 120 Cal. 281, 52 Pac. 658.

There is not any substantial merit in the position that there is no sufficient averment of the court in which the false testimony is alleged to have been given, and no sufficient averment that such testimony was given in a legal proceeding in which perjury could be committed. The averments on these points are that the false statements were made "in open court, and during the pendency and as a part of the evidence in a criminal case then and there pending before the said Honorable Albert C. Parker, entitled "The People of the State of California v. Arthur Ennis, Defendant,' upon a criminal complaint charging the said Arthur Ennis with petit larceny." These averments would have been, no doubt, more apt if it had been stated therein that the said case of People v. Ennis was pending in a "justice's court," instead of "before * Parker," who had been averred to be the justice of the peace; and that said case was on trial, as well as "pending." But the language used in the averments was clearly sufficient to fully inform appellant what was meant, namely, that he had made false statements, which were "part of the evidence" in the case of People v. Ennis, in the justice's court over which Parker, Justice, presided, where Ennis was being tried for petit larceny.

The averment that the statements were "material to the issues tendered in said cause" was a sufficient averment of the materiality of the false testimony. It was not necessary to aver "how the false testimony was material." People v. De Carlo, 124 Cal. 462, 57 Pac. 383.

There was a sufficient averment that appel

lant testified falsely. The averment in the first part of the indictment that he did "willfully, unlawfully, feloniously, and contrary to said oath," make certain statements, seems to be all that is required by section 118 as to the falsity of the statements, the language of said section simply being "willfully and contrary to such oath"; but in a subsequent part of the indictment, after an enumeration of the said statements, it is averred that "said statements so made as aforesaid by said defendant were then and there, and are, false and untrue, and were at the time of the making thereof by the said defendant, Arthur Ennis, known by the said defendant to be false and untrue." The language just quoted really makes it unnecessary to discuss the sufficiency of two other averments of the falsity of the statements, and appellant's knowledge thereof, which are asserted to be insufficient because each is preceded by the word "whereas"; the contention being that what follows is mere recital, It is better, no doubt, to avoid the use of the word "whereas" in a pleading; but it may be observed that whatever is in itself a positive averment is not turned into recital by the mere fact that somewhere preceding the averment the word "whereas" is used. The effect of that word depends upon how it is connected with the succeeding part of the sentence. "That whereas" is the form generally held objectionable in the older decisions. But the word may be used in the sense given to it in the dictionaries as synonymous with "when in fact," "while the contrary," "the fact is," etc.; and when used in that sense, as shown by the context, what follows may be positive averment, and not recital. In the case at bar the language objected to is, "whereas, in truth and in fact, * he, the said Ennis, was down to Sargent's corral," etc.; and this was clearly a positive averment, and not a mere recital, notwithstanding the use of the word "whereas." In People v. Fitzgerald, 92 Mich. 331, 52 Pac. 726, an averment in precisely the same form, to wit, "whereas, in truth and in fact, the said Maurice Fitzgerald was not at that time, nor at any time, authorized," etc., was expressly held to be good. If there is any part of the averment assailed by appellant which might be held insufficient because mere recital, it is the phrase, "as he, the said Arthur Ennis, then and there well knew," but the averment of his knowledge is fully made in the subsequent part of the indictment hereinbefore quoted.

** *

By the indictment in the case at bar the appellant was fully informed of the charge against him, and none of the alleged defects of the indictment tended to his prejudice as to any of his substantial rights, and the case is one to which the provision of section 1258 of the Penal Code peculiarly applies. The judgment is affirmed.

We concur: BEATTY, C. J.; TEMPLE, J.

SMITH, C. This is an appeal from a judgment in favor of the defendant in a suit to enforce a street assessment lien. The case,

as shown by the findings, is as follows: The resolution of intention initiating the assessment proceedings in question was duly passed by the board of supervisors of San Francisco, April 8, 1895,-the work proposed being the improvement of Webster street, between Oak and Page streets, in that city, a distance of one block only; the street to the north and south being already improved. Within due time a written objection to the proposed work was made by the owners of a majority of the frontage on the proposed work, and was allowed by the board; and this, it is, in effect, alleged and found, operated as a bar for six months to any further proceedings. After the expiration of the six months, the board, without other resolution of intention, ordered the work to be done. On these facts it is claimed on behalf of the respondent that upon the filing of the protest of the property owners the board was devested of jurisdiction to proceed further without a new resolution of intention; and this contention is fully sustained by the decisions of this court. Improvement Co. v. Babcock, 123 Cal. 205, 55 Pac. 762, since afiirmed in Contracting Co. v. McGovern, 127 Cal. 639, 60 Pac. 169; Paving Co. v. Reynolds, 62 Pac. 212; and Thomason v. Carroll, 132 Cal. 149, 64 Pac. 262. Nor, as claimed by the appellant, does the case here present an exception to the rule established in the cases cited. It is, indeed, true, or rather, it may be true, that the case comes within the provision of section 3 of the street improvement act (St. 1891, p. 198), to the effect that where not more than two blocks remain unimproved between improved portions of a street, etc., the work on the in

tervening part "shall not be stayed or prevented by any written or other objection, unless such council shall deem proper." But the effect of this provision seems to be that, if the objection be allowed by the board, its effect will be the same as in other cases,that is, it will have the effect not only to stay the work, but to devest the board of jurisdiction to proceed further without a new resolution of intention; and accordingly it was so held in Thomason v. Carroll, supra. We therefore advise, on the authority of that case, that the judgment appealed from be affirmed.

LOWE v. OZMUN. (L. A. 1,053.) (Supreme Court of California. Sept. 11, 1902.)

CONVERSION-PLEADINGS-LIMITATIONS.

1. Action for conversion is within Code Civ. Proc. 338, prescribing a three-years limitation for action for taking, detaining, or injur ing any goods or chattels, and not section 339, prescribing a two-years limitation for an action on a contract, obligation, or liability not founded on an instrument in writing.

2. Averment in a complaint that defendant converted the property to his own use is a sufficient allegation of conversion.

3. As against a general demurrer, plaintiff's ownership at the time of the conversion is sufficiently alleged in a complaint which, after averring his ownership at a certain time, states that he then delivered the property to defendant as security, that afterwards the debt was fully paid, and then, the property being in defendant's possession, he, knowing it was plaintiff's property, and should belong to him, converted it to his own use.

Department 2. Appeal from superior court, Los Angeles county; D. K. Trask, Judge.

Action by T. S. C. Lowe against Roy Wheeler Ozmun, executor. Judgment for defendant, and plaintiff appeals. Reversed.

Lynn Helm, for appellant. Russ Avery, for respondent.

MCFARLAND, J. This action was brought for an alleged conversion by defendant's testator of certain described personal property, namely, bonds and coupons. The complaint shows that the action was commenced within three years, but not within two years, after the alleged conversion; and the court below sustained the demurrer to the complaint upon the ground that the action was barred by subdivision 1 of section 339, Code Civ. Proc., which provides that "an action upon a contract, obligation, or liability not founded upon an instrument in writing" must be brought "within two years." There is no doubt that this provision includes the cause of action in the case at bar, unless

the latter comes expressly within some other category of limitation. "Liability," as used in the section, includes responsibility for torts, and "is applicable to all actions at law not specially mentioned in other portions of the statute." Piller v. Railroad Co., 52 Cal. 42. See, also, Raynor v. Mintzer, 72 Cal. 590, 18 Pac. 82; McCusker v. Walker, 77 Cal. 212, 19 Pac. 382; Lattin v. Gillette, 95 Cal. 317, 30 Pac. 545, 29 Am. St. Rep. 115. But we think that the limitation of the cause of action in the case at bar is specifically declared in section 338, Code Civ. Proc., which provides that there may be commenced "within three years * * an action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property." The obvious purpose of this provision was to include all actions for torts involving personal property, and we do not think that this purpose can be obscured by invoking strict definitions of the particular words used, or by contrasting them with other words which might have been used, or by nice distinctions between the common-law actions of replevin, detinue, and trover. In cases of unlawful taking or detaining personal property the wronged party has usually the option of either bringing an action for its specific recovery or an action to recover its value; that is, an action which at common law would have been replevin or detinue, or trover. Section 338 looks to the wrong, to the thing itself,-and not to the particular kind of action which may be used to obtain the remedy. This view was expressly declared in Horton v. Jack, which is to be found reported in 37 Pac. 652, and for some reason did not get into the California Reports; and we have not been referred to any other case in this state holding different. In that case the court say: "The question suggested is whether an action for the conversion of goods is barred by subdivision 3 of section 338, Code Civ. Proc. Respondent claims that such an action is not covered by that section, and is therefore included in section 339, and is barred in two years. The complaint shows that the suit was not commenced within two years after the alleged conversion. Subdivision 3, § 338, reads: 'An action for taking, detaining, or injuring any goods or chattels, including actions for the recovery of specific personal property.'" And the court, after discussing the meaning of "conversion," and quoting from authorities, concludes on the point as follows: "The words in the statute are not used to indicate any particular form of action. But I think it applies to all those cases in which the person injured has a remedy in an action of claim and delivery, or for conversion. Certainly, one whose property has been wrongfully taken or detained may sue for conversion, if at the time he was entitled to the possession of it. I think the case falls within the provisions of section 338, and the cause of action was not barred." It is con