(137 Cal. 326) KERNAN v. MARKET ST. RY. CO. (S. F. 2,013.)

(Supreme Court of California. Sept. 17, 1902.) STREET RAILWAYS-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-CROSSING TRACK. 1. Where, in an action against a street railroad for injuries, there was evidence that the car was going at a high and unlawful speed, and that no bell had been rung or alarm given at a crossing which was about half of a short block from where plaintiff was struck, a contention that the evidence showed no negligence was of no merit.

2. Persons crossing a street railroad on a populous street are held only to what, under all the circumstances, is the exercise of reasonable care.

3. In an action against a street railroad for injuries from being struck by a car, there was evidence that the respondent, when she left the sidewalk to cross the street, which was a narrow one, had an unobstructed view of the street both ways, and that she looked both ways, and saw no car approaching, and heard no signal of approach. Held, that a finding that there was no contributory negligence would not be disturbed.

Department 2. Appeal from superior court, city and county of San Francisco; Wm. R. Daingerfield, Judge.

Action by Ann Kernan against the Market Street Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Wm. H. L. Barnes, for appellant. Morgenthal, for respondent.

A.

MCFARLAND, J. This is an action to recover damages for personal injuries alleged to have been caused by a car of the defendant, a street railroad company. The verdict and judgment were for the plaintiff in the sum of $1,000, and defendant appeals.

It is not contended by appellant that the court below committed any error of law in ruling upon the admissibility of evidence or in instructing the jury. The sole contention is that a nonsuit should have been granted, and that the verdict was against the evidence, because the evidence failed to show any negligence of appellant at the time of the accident, and because, upon the facts, respondent was, as a matter of law, guilty of contributory negligence. We do not think that the contention is maintainable on either point.

As to the negligence of appellant, the evidence was clearly conflicting, within the meaning of the rule that in such case a finding will not be here disturbed. No doubt, some juries would have found differently on this issue; but there was certainly considerable evidence that at the time of the accident the car was going at a high, unlawful, and dangerous rate of speed, and that no bell had been rung, nor other alarm given, at the crossing of Perry street, which was about one-half of a short block from the point where respondent was struck.

As to the alleged contributory negligence of respondent, we think that the evidence 70 P.-6

presented a case where it was for the Jury to say whether the respondent exercised reasonable care in crossing the street, and not a case where a court can say, as it might in some instances, that, as a matter of law, there was contributory negligence. The accident occurred on a public street in a populous part of the city, along which appellant had its street railway track, over which it operated its street cars by electricity. In such case a person desiring to cross the street must, of course, exercise due care and caution, and if he does not do so, and his want of care contributes proximately to the injury, he cannot recover; but it has beer repeatedly decided that he is not held to tha high degree of care which is required in the case of an ordinary steam railroad running through the country, on which heavy trains of cars are moved at a high rate of speed, and cannot be quickly stopped or controlled. Persons crossing a street railroad on a populous street are held only to what, under all the circumstances, is the exercise of reasonable care. See Strong v. Railroad Co., 61 Cal. 328; Swain v. Railroad Co., 93 Cal. 184, 28 Pac. 829; Driscoll v. Railroad Co., 97 Cal. 553, 32 Pac. 591, 33 Am. St. Rep. 203; Cross v. Railroad Co., 102 Cal. 316, 36 Pac. 673; Clark v. Bennett, 123 Cal. 278, 55 Pac. 908. In the case at bar there was evidence that the respondent, when she left the sidewalk to cross the street, which was a narrow one, had an unobstructed view of the street both ways, and that she looked both ways, and saw no car approaching, and heard no signal of its approach. Considering all the evidence on the point, it cannot be correctly said that the jury was bound to find that the respondent was guilty of contributory negligence, or that the law must ascribe to her such negligence.

The judgment and order appealed from are affirmed.

We concur: HENSHAW, J.; TEMPLE, J.

(7 Cal. Unrep. 6)

UNION PAVING & CONTRACT CO. v. MOWRY. (S. F. 2,069.) (Supreme Court of California. Sept. 17, 1902.) OSTENSIBLE AGENCY-EVIDENCE.

1. Evidence in an action for labor done in street paving that defendant told plaintiff, who was negotiating with her to do street paving for her, that all street work was arranged by A., and the fact that A. executed another contract with plaintiff, as defendant's agent, for such kind of work, which she recognized, justifies a finding that A., in making and modifying such a contract, had ostensible agency; defined by Civ. Code, § 2300, to be when the principal causes a third person to believe another to be his agent.

Department 1. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by the Union Paving & Contract Company against Ellen M. Mowry. Judg.

ment for plaintiff. Defendant appeals. Affirmed.

R. Percy Wright, for appellant. D. H. Whittemore, for respondent.

HARRISON, J. The plaintiff brought this action to recover for the labor done in pav ing with bituminous rock a portion of a public street under a contract between the defendant and one Reed, and by him assigned to the plaintiff. The execution of the contract, as well as its performance by the plaintiff, was denied by the defendant. The cause was tried by a jury, and a verdict rendered in favor of the plaintiff. From the judgment entered thereon, and from an order denying a new trial, the defendant has appealed.

1. The contract on the part of the defendant was signed, "Ellen M. Mowry, by Chas. Alpers." There was no evidence that Alpers had express authority from her to sign the contract, but evidence was presented to the jury which the plaintiff claimed created an ostensible agency, and showed that he had implied authority to sign the contract. It was shown that Alpers had been residing in the same house with the defendant and her mother for many years, during which time he had been accustomed to take part in making contracts in her behalf for street work; that several contracts for doing street work in front of or adjacent to the property of the defendant had been made in her behalf; and that, with two exceptions, all of these contracts had been made by Alpers, and signed by him in the same manner as was the present one. Mr. Reed, the plaintiff's assignor, testified that several of these contracts had been made with him, and that all of the business that he had transacted in regard thereto for the property of the defendant had been with Mr. Alpers; that he had had several conversations with her about street work, and that she then referred him to her mother or to Mr. Alpers, saying that these matters were all fixed or arranged by Mr. Alpers; that for one of these contracts the defendant had given him her notes; and that the same were afterwards paid by Alpers. It was also shown that, at the same time that the contract in question was made, another contract on her behalf for street work upon an adjacent block was made with Mr. Reed, and signed by Alpers in the same manner as the one in suit; that at that time Reed made a "side agreement" with her respecting the time for doing the work and the payment therefor, and delivered the same to Alpers. that, the work named in the other contract not having been completed, the defendant some months afterwards recognized the valid ity of this contract by sending a written no tice to Reed that he complete the same according to its terms, in which she referred to the contract as "our contract," and as having been "made and entered into between you and myself." The defendant was a witness

in her own behalf, and did not contradict the testimony of Reed, or state that she had not given to Alpers authority to make the contract. Mr. Alpers was a witness in behalf of the defendant, and testified that he negotiated with Mr. Reed with reference to this contract, and signed the same for the defendant, and he did not testify that he did so without her authority. Under this evidence the jury was authorized to find an ostensible agency in Alpers, within the terms of section 2300, Civ. Code, and that he had an implied authority from her to make the contract.

2. The contract provided that the gutters should be paved with basalt blocks, but that, in the event of the city not allowing such gutters, the city specifications should be adopted. In the ordinance prescribing the manner of performing street work, which was offered in evidence, no mention is made of stone gutters where the roadway or street is to be paved with bituminous rock. After the contract had been entered into, a resolution was passed by the board of supervisors directing Mr. Reed to omit the construction of the basalt block gutters thereon. This resolution was afterwards repealed before the work was commenced. Evidence was offered on behalf of the plaintiff to the effect that thereafter an agréement was entered into between Mr. Reed and Mr. Alpers for the modification of the contract by omitting therefrom the basalt gutters, and deducting $25 from the agreed price for the work. Testimony was offered on behalf of the defendant in contradiction of this evidence; but, upon this conflict of evidence, we are not at liberty to disregard the verdict of the jury, and it must be assumed in this court that such agreement was made. The work was thereupon completed to the satisfaction of the superintendent of streets, and the street was afterwards accepted by the board of supervisors. The authority of Alpers to make such agreement was the same as his authority to make the original contract. The statement of the defendant to Reed that all street work was arranged by Alpers included such modification, and justified him in acting thereon. It must be held, therefore, that performance of this part of the contract was waived by the parties.

The judgment and order are affirmed.

We concur: VAN DYKE, J.; GAROUTTE, J.

(137 Cal. 286)

LATIMER v. CAPAY VAL. LAND CO.
(S. F. 2,981.)

(Supreme Court of California. Sept. 13, 1902.)

VENDOR AND PURCHASER-REVERSION-TENDER-OFFER OF PERFORMANCE-REFUSAL— FAILURE OF CONSIDERATION-RIGHTS OF ASSIGNEE.

1. Civ. Code, § 1501, provides that all objections to the manner of a tender which the creditor has an opportunity to state at the time to the person making the offer, and which could

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 perform ance 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, 1.895.

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 judg ment 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 judgment 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 under 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