of all damages and costs which may be awarded against him on the appeal, or in lieu thereof to deposit with the clerk the sum required by the statute. And, in Mitchell v. Cal. & O. S. S. Co., 154 Cal. 731, 99 Pac. 202, our Supreme Court, dealing with the new or alternative method of taking appeals, says that, while the later act did not repeal the old method by which the filing of a bond for costs is required, it is sufficient if an appeal is perfected under either method, "and hence," quoting from the syllabi, "though a party did not file a sufficient undertaking for costs, as required by the old method, but filed his notice of appeal which was sufficient under the new method, the appellate court obtained jurisdiction, though the party intended to pursue the old method." Here the appellant has, evidently, so far as the form of the record is concerned, taken his appeal under the former exclusive method, and, although no appeal bond was filed, this is sufficient under the alternative method recently adopted by the Legislature, according to the ruling in the case referred to. named G. C. Waymire, her son." The complaint continues as follows: "That on or about the said 1st day of March, 1906, and after the death of the said N. J. Waymire as aforesaid, the said G. C. Waymire, surviving partner as aforesaid, acting in liquidation of the affairs of said copartnership, did sell, assign, transfer, and convey unto the defendants, James A. Banks and Thomas N. Hale, the unexpired portion of the said lease so made and executed as aforesaid. That pursuant to said sale and transfer so made as aforesaid, the said defendants, James A. Banks and Thomas N. Hale, entered into the possession of the said ranch, together with the stock thereon, and did use and enjoy the same for the greater part of the unexpired term of said lease, to wit, from March 1, 1906, to the 4th day of September, 1906, at which time the said defendants abandoned the said property and taking therefrom a large number of cattle and other personal property. That the plaintiff accepted the said defendants and each of them as tenants of said property under and by virtue of the There are some other technical objections said lease so made as aforesaid." The comto a review of the bill of exceptions; but plaint is unverified, and the answer denies they are not of sufficient importance to re- generally each and every allegation in said quire special notice. It may, however, be complaint. The court found from the eviremarked that the appeal here was taken dence: That said G. C. Waymire, as survivwithin 60 days after the entry of the judg- ing partner of N. J. Waymire, deceased, and ment, and therefore the bill of exceptions in the liquidation of the affairs of said comay be considered on review of the point partnership, did not "sell, assign, transfer, that the evidence does not support the find- and convey" to the defendants the unexpired ings upon which said judgment rests. It portion of said lease; that said defendants appears from the record that on the 3d day did not, pursuant to said alleged sale and of October, 1905, the plaintiff leased, by an transfer, enter into the possession of the instrument in writing, a certain dairy ranch, said ranch, together with the stock thereon; situated in Mendocino county, and the ma- that said defendants did not "use and enchinery thereon for conducting the dairy joy the same for the greater part of the unbusiness, together with a number of milch expired term of said lease; that they did cows, to one N. J. Waymire, for the term of not on the 4th day of September, 1906, abanone year, with a stipulation on the part of don said property or take from said ranch the plaintiff that at the expiration of said a large number of cattle and other personal term he would renew said lease for the fur- property"; that "it is not true that the plainther term of four years. It was also stipu- tiff accepted the said defendants or either lated in said lease that "this lease shall not of them as tenants of said property under be sold or transferred to any other party and by virtue of said lease or otherwise or during the term of it without the written at all." consent of the party of the first part"-that is, the plaintiff. The complaint alleges, and the evidence shows, and the court finds, that, notwithstanding the fact that the written lease indicated that said N. J. Waymire was the sole lessee, "the truth and fact was that the said lease was taken by and on behalf of a copartnership which then and there existed between the said N. J. Waymire and her son, G. C. Waymire." Mrs. Waymire and her son, G. C. Waymire, entered into the possession of said dairy ranch and the stock, etc.. under said lease; but on the 19th day of February, 1906-approximately eight months prior to the expiration of the term fixed by said lease-Mrs. Waymire died, and, as the complaint alleges, "leaving as her sole sur The principal contention upon the part of the appellant is that the respondents took possession of the demised premises under the lease executed to Mrs. Waymire and attorned to the appellant for a portion of the unexpired term; that, the clause in the lease interdicting the assignment of said lease without the consent of the lessor being alone for the benefit of the latter, he could waive that right or benefit, and, having done so, an assignment of the lease took place by operation of law. There are some other suggestions offered by counsel with regard to the legal effect of the alleged transfer of the possession of the demised premises to the defendants; but these will not require special notice. The position of the respondents is Waymire to take charge of the ranch and the business connected therewith and manage the same for him. Thus it will be observed that the only proposition involved in this controversy is: What is the legal effect of the transaction, as disclosed by the evidence, between G. C. Waymire and the respondents with respect to the property to which the lease relates? And therefore the sole question submitted here is: Are the findings of the court below justified by the evidence? We may say, in the outset, that we believe the findings are sufficiently supported, although it may be admitted that the evidence submitted by both the plaintiff and the defendants, as presented in the record before us, does not appear to be very clear or altogether satisfactory upon the question of what was in reality the legal nature of the transaction between G. C. Waymire and the respondents; but the burden was upon the plaintiff to prove the material allegations of his complaint, and this, according to the court's findings, he failed to do to the satisfaction of the trial court, and we cannot now say that the judge's conclusions from the evidence are, as a matter of law, unsupported by the proofs. He had the witnesses before him, heard and saw them testify, and was, of course, in a much better position to weigh the testimony than a reviewing court. The plaintiff testified that, in the month of March, 1906, after the death of Mrs. Waymire, he went to the ranch and found the defendant Banks in charge of the place. The latter was living on the ranch with his family. Banks said to the witness on that occasion that he (Banks) had made arrangements with Waymire to pay the rent and for six dead carcasses. "I found him [Banks] there in possession," plaintiff continued, "and as long as he was there, and I received my rent, that was all I wanted." He said that He said that he had received certain sums paid as rent under the lease after the death of Mrs. Waymire and after Banks and Hale "went into possession of the place." These sums, he declared, were deposited to his credit with the Irvine & Muir Company's store. In connection with this statement of the witness, it was admitted by counsel for the defendants that the sum of $178 was left at said store for the plaintiff by the defendants; but it was not admitted that said sum was so deposited as rent due from the defendants under the terms of the lease. Plaintiff further testified that the defendants left a keg of butter with Irvine & Muir to be applied as payment on the rent. G. C. Waymire testified as a witness for the plaintiff; but his testimony throws no light whatever upon the nature of the arrangement between himself and the respondents relative to the leased property. He said that, shortly after his mother's death, he left the "Russell ranch" (meaning the de after return to said ranch to remain permanently. "I never took possession of it any more," he continued. "Mr. Banks moved on the place, and Mr. Hale was to help him. It was my understanding that Banks and Hale were jointly to take charge of the property. *** I do not know who got the butter produced by the dairy cows. sold around there. After the death of my mother I do not know who sold the butter. I wasn't there. I never made any effort to retake possession of the place. After Banks and Hale moved away in September, I was first at Willits. I sent Mr. Russell word and then moved to Lake county. *** I never had anything to do with the place after the 1st day of March, except that I was upon it a few times." A witness testified that he worked for the respondents in the year 1906 on the "Russell ranch," and that during that time he had a talk with Banks concerning the terms upon which the latter was holding the property, that Banks then said that "he was to give $12 per head for cows and $10 per head for heifers, and that it would amount to about $100 per month. IIe said he was to keep it [the property] the rest of the time after Waymire had quit it.” The plaintiff introduced the deposition of the defendant Banks, whose testimony was, in part, as follows: "The trade that I made with Cleve was that we were to take the place and run it for him, and we were to have the proceeds of the place over and above certain rents we were to pay. I do not remember how much money we were to pay Russell. We were to make such payments as Cleve Waymire told us to make. We were to pay the payments called for in the lease. They (the Waymires) were to make the old stock good. There were no wages set at all. We were to take the place and run it and pay the rent and have the proceeds of the place. *** We did not stay on the place until the lease expired. We paid the rent until Cleve Waymire said we had paid more than was coming to Russell because the cows were not on the place that should have been there. We paid the rent until Cleve Waymire told us not to, but I cannot tell how much we paid. We didn't count the cattle on the place. We counted what milch cows we milked. about 65, and part of these were heifers. Cleve Waymire was at Willits when I left the place. I told him I was going to leave and for him to notify Russell, and he did. I took the butter we sold off the place and took the 48 head of calves. There were no powers of attorney or other writings between me and Cleve Waymire or Ed Waymire. There was to have been though, when he was appointed administrator, but they never was appointed administrator." The witness Clark, for the plaintiff, testified, no objection having been offered to his he (Waymire) had "rented the place to Banks | Muir for the plaintiff, until Waymire directand Hale, and he also said he was going to ed them to cease making further payments make Russell believe that Banks and Hale for that purpose. were running the place for him (G. C. Waymire)." The foregoing represents the substance of the important testimony brought out by the plaintiff. The cross-examination of plaintiff elicited the fact that, after the death of Mrs. Waymire, he procured the public administrator of Mendocino county to petition for and secure letters of administration upon her estate. Plaintiff was asked if he did not present a claim against said estate which contained the same items as those upon which this action was brought, and he replied in the affirmative, saying that the said claim "was actually the same as my bill of particulars furnished in this case." The claim as presented against the estate was received in evidence, and it shows that it was approved by the administrator of the estate and allowed and approved by the judge of the superior court on the 16th day of April, 1907. The present action was begun on the 13th day of March, 1908, almost a year after the administrator and the judge had approved said claim. Why the claim was not paid by the administrator does not appear. The plaintiff also admitted, upon cross-examination, that, at his instigation, the administrator of Mrs. Waymire's estate brought an action long prior to the institution of the present action against the defendants here to recover a certain number of head of calves which said defendants were alleged to have taken with them when they left the demised premises in September, 1906. For the defendants, one Hotskin testified that he was present at the trial of said lastmentioned case and heard the plaintiff here therein testify that he had found Banks and Hale on his property, but that he "had never had any dealings with them at all." It will be noticed from the evidence, as we have briefly presented it here, that the only witness whose testimony reflects, in any degree, any light upon the nature of the arrangement between G. C. Waymire and the respondents concerning the demised premises, is the defendant Banks. He stated that he and IIale were to manage the place and business for Waymire, for which services they were to receive such portion of the income from said business as might be in excess of the sum necessary to pay certain rents, and that they were to pay such rents only as G. C. Waymire directed them to do. Banks said that he was familiar with the provision in the written lease prohibiting the transfer or sale of the same by the lessee without the consent of the lessor, and that, when he and Hale took charge of the premises for Waymire, they were fully aware of the fact that Waymire could not, without plaintiff's assent, transfer or assign to them said lease. The respondents, he said, continued to pay Waymire, while on the witness stand, said nothing from which the conditions upon which Banks and Hale assumed control of the premises could definitely be inferred. His statement that his understanding was that the respondents "were jointly to take charge of the property" furnishes no definite information whether they were to do so under the lease or merely as agents of himself. It may, indeed, well be considered a significant fact that G. C. Waymire, the only other person than Banks and Hale who could have thrown any light upon the nature of the arrangement between himself and the defendants with regard to the control or management of the property by the latter, was not asked a single question, so far as the record shows, which would lead to an explanation of the transaction, although called as a witness by the plaintiff. If he was questioned upon the proposition, he made no satisfactory explanation of the transaction, for about all that we find from the record that he did say upon the subject was, "It was my understanding that Banks and Hale were jointly to take charge of the property." Waymire, above all other persons, except the respondents, ought to have been able to give in the most definite manner the terms and conditions upon which he permitted Banks and Hale to assume charge of the property, and yet, as suggested, he was apparently not questioned very closely upon the proposition, or, if he was, he was not compelled, as we think he could have been, to make satisfactory answers. It is true that he was asked no questions on crossexamination; but, having testified to nothing on direct examination seriously militating against the position of the respondents upon the issue before the court, there was no necessity for a cross-examination. was the duty of plaintiff, as before stated, to establish the claims of his complaint by satisfactory proof, and, until he had made out a satisfactory case, there was no duty resting upon the defendants to reply or to cross-examine witnesses whose testimony had little tendency to sustain the averments of the complaint. We refer to this circumstance as illustrating the unsatisfactory showing made by plaintiff and in explanation of how the trial court, in weighing the testimony, could have justly rejected the contention of the plaintiff that Waymire had sold or transferred the lease to the respondents, and that they attorned to him according to the terms of the instrument. The truth is that the plaintiff, up to the time of the institution of this action. so far as we are advised by the record, did not treat or recognize in any manner the respondents as his tenants or as the successors in interest of Waymire under the terms It an action by the administrator of the estate of Mrs. Waymire against the respondents to recover certain stock which they took from the premises, claiming that said stock was still the property, of the Waymires. Not only did he cause that action to be brought, but he testified therein that he never had had any dealings with the respondents, meaning, no doubt, that he did not place them in charge of the premises, nor recognize them as tenants after they assumed charge. Furthermore, he admitted that the items contained in the very account upon which he undertakes to sustain this action were included in a claim he filed in and against the estate of Mrs. Waymire, thus showing that up to that time he had not recognized or accepted the respondents as the tenants under the lease to the Waymires. The respondents always paid the rent to Irvine & Muir, as directed by G. C. Waymire, and never had any personal dealings with the plaintiff during the time they were on the premises, and ceased paying rent when directed so to do by Waymire. The last named testified that when the respondents leftthe premises he notified the plaintiff of the fact. held out to the plaintiff that they were in possession of the property under the lease, nor did they mislead him to his injury. As is said in Canale v. Copello, 137 Cal. 25, 69 Pac. 699, "that the defendants paid rent" did not create an estoppel against them. If they paid rent while occupying the premises, they only did what they agreed to do under their arrangement with G. C. Waymire and irrespective of the lease. See: Fisher v. Slattery, 75 Cal. 325, 17 Pac. 235; Canale v. Copello, supra; Gustafson v. Stockton & Tuolumne R. R. Co., 132 Cal. 619, 64 Pac. 995; Brown v. Curtis, 128 Cal. 193, 60 Pac. 773. It follows from the foregoing that the judgment must be affirmed, and it is so ordered. FRESE v. MUTUAL LIFE INS. CO. OF (Court of Appeal, Third District, California. 1. INSURANCE (§ 36*)-POWERS OF INSURANCE COMPANIES-ULTRA VIRES. We can perceive no reason for doubting that the evidence justifies the court's conclusion that Banks' statement to the effect Insured and the beneficiary in a life policy, that the respondents went upon the premises procuring a loan from insurer secured by a to manage the same for G. C. Waymire, and pledge of the policy, are estopped from setting that there was no sale, transfer, or assign-up that the act of the insurer was ultra vires, ment of the lease to them, is true. This where they do not offer to repay the loan. being so, the relation of landlord and tenants between the plaintiff and the respondents is not shown, and this action cannot therefore be maintained. We do not deem it necessary, in view of the conclusion we have reached as to the findings, to examine here the cases cited by the appellant in support of what he submits to be the law applicable to the facts as he understands them to be established by the evidence. We have no fault to find with the legal principles which he undertakes to invoke here. His difficulty, as we have seen, lies in what we deem to be a misconception of the effect of the evidence. His final proposition that, if there was not an assignment of the lease under any view of the evidence, the contract between Waymire and the respondents was nevertheless made expressly for his benefit, and that therefore, under the terms of section 1559 of the Civil Code, he is entitled to enforce it, cannot, under the findings, be maintained, for if, as the court found, upon sufficient evidence, we think, that there was nothing more than an employment of the respondents by Waymire, then, obviously, the contract thus made between the parties was for their own benefit and for that of no other person. There is no showing that the defendants ever told or in any way ever represented or [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 45; Dec. Dig. § 36.*] 2. INSURANCE (§ 36*)-POWERS OF INSURANCE COMPANIES-ULTRA VIRES. Where a loan agreement between insurer in a life policy and insured and the beneficiary was fully executed prior to the death of insured, the beneficiary could not urge that the loan agreement was ultra vires. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 45; Dec. Dig. § 36.*1 3. CORPORATIONS (8 461*)-POWERS-POWER TO LOAN SURPLUS FUNDS. The contract of a corporation is legal if not expressly prohibited, and it may loan its surplus funds in the absence of an express prohibition. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1814; Dec. Dig. § 461.*] 4. PLEDGES (§ 56*) - ENFORCEMENT — SALE — STATUTE. Civ. Code, § 2889, providing that contracts for the forfeiture of property subject to a lien, tion from a lien, are void, does not prohibit a and contracts in restraint of the right of redempsale of mortgaged real estate where the sale is fair and free from undue influence or fraud and for an adequate price; and under section 3000 pledgee may sell pledged chattels without right et seq., relating to the sale of pledged chattels, a of redemption, and the manner of sale may be agreed on by the parties. [Ed. Note.-For other cases, see Pledges, Cent, Dig. §§ 161, 181; Dec. Dig. § 56.*] 5. PLEDGES (§ 50*)-RIGHT OF REDEMPTION. sale, does not endow pledgors of personal prop- | cure it, and whereby insurer, in case of deerty with the right of redemption, as is the case of a mortgage of real estate. [Ed. Note.-For other cases, see Pledges, Cent. Dig. § 118; Dec. Dig. § 50.*] 6. CONTRACTS (§ 153*)-CONSTRUCTION. The court must give effect to the contract of the parties, where that is possible. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 734: Dec. Dig. § 153.*] 7. INSURANCE (§ 228*)-LOANS ON POLICIES STIPULATIONS IN CONTRACT VALIDITY CANCELLATION OF POLICY. A loan agreement between insurer in a $5,000 life policy and insured and the beneficiary, which stipulated that the policy should be pledged to secure a loan of $1,930 made to insured and the beneficiary, and that, in the event of default of payment of the loan at maturity, insurer might at its option, without notice and without demand for payment, cancel the policy and apply the cash surrender value, stated to be $1,932.15, to the payment of the loan and pay the balance to the parties entitled thereto, was valid, notwithstanding Civ. Code, § 2889, providing that contracts for the forfeiture of property subject to a lien shall be void, etc., and where insurer, on the nonpayment of the loan at the time fixed for the payment, pursuant to an agreement extending the time of payment, canceled the policy and applied its then cash surrender value to the payment of the debt, and offered to pay the balance to the beneficiary, the latter could not complain. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 498, 499; Dec. Dig. § 228.*] 8. INSURANCE ($ 1792*)-LOAN ON POLICY CONTRACT FOR LOAN-OPTION." A loan contract between an insurer in a life policy and insured and the beneficiary for the pledge of the policy to secure a loan made to insured and the beneficiary, which stipulates that insurer shall loan a specified sum, and that insured and beneficiary shall assign the policy as collateral, and that, in the event of the nonpayment of the debt at maturity, insurer may, at its "option," cancel the policy, and apply the cash surrender value to the payment of the debt, evidences a loan transaction, and not a sale or option to sell; the word "option" in the contract meaning that insurer may, on default, at its pleasure, apply the cash surrender value in payment of the loan. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 1792.* For other definitions, see Words and Phrases, vol. 6, pp. 5000-5002; vol. 8, p. 7739.] fault, could at its option cancel the policy and apply the cash surrender value to the payment of the loan, extended by agreement the time for the payment of the debt, did not thereby waive its right to cancel the policy for nonpayment at the maturity of the debt as fixed by the new agreement, as the new agreement operated for the benefit of insured and beneficiary. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1026; Dec. Dig. § 388.*] 11. INSURANCE (§ 17912*) - CONTRACT FOR LOAN-BENEFICIARY AS SURETY FOR LOAN. husband for the benefit of the wife, made a loan Insurer, in a policy insuring the life of the to the husband and wife as principals, and took the policy as security under an agreement stipulating that, on the nonpayment of the loan, insurer could at its option cancel it and apply its cash surrender value to the payment of the loan. Insurer, and the husband made a new agreement extending the time for the payment of the loan. Held, that under Civ. Code, §§ 2823, 2832, 2844, providing that mere delay on the part of a creditor to proceed against the principal does not exonerate a guarantor, and one appearing as principal may show that he is a surety except as against those who have acted on the faith of his apparent character, etc., the rights of the wife were not prejudiced by the delay, though she was in fact a surety only. [Ed. Note.-For other cases, see Insurance, Dec. Dig. § 1792.*] 12. COSTS (§ 22*)-RIGHT TO COSTS. Code Civ. Proc. § 1022, subd. 3, giving costs to plaintiff recovering $300 or over, in an providing that no costs can be allowed where action for money damages, and section 1025, defendant on a money demand. plaintiff recovers less than $300, forbid costs to [Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 47, 48; Dec. Dig. § 22.*] Appeal from Superior Court, City and County of San Francisco; E. P. Mogan, Judge. Action by Ida F. H. Frese against the Mutual Life Insurance Company of New York. From a judgment for insufficient relief, plaintiff appeals. Modified and affirmed. A. E. Nathanson and C. L. Brown, for appellant. Chickering & Gregory, for respond ent. CHIPMAN, P. J. Action to recover upon 9. INSURANCE (§ 229*)-CONTRACT FOR LOAN-a life insurance policy. The complaint alle NOTICE OF DEFAULT. That insurer in a life policy loaning money to insured and the beneficiary, pursuant to an agreement, whereby the policy was pledged to secure the loan, and whereby insurer, in case of default, could, at its option, cancel the policy without notice and without demand for payment and apply the cash surrender value to the payment of the loan, gave notice to insured of its intention to cancel the policy unless the loan was repaid, did not prejudice the rights of the beneficiary, who did not receive any notice, as insurer was not required to give notice to either, and as insurer might apply the cash surrender value to the loan as to both insured and the beneficiary. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 501; Dec. Dig. § 229.*] 10. INSURANCE (§ 388*)-CONTRACT FOR LOAN -CANCELLATION OF POLICY-WAIVER. That insurer in a life policy loaning money to insured and the beneficiary, pursuant to an agreement whereby the policy was pledged to se ges: That about August 29, 1889, defendant issued to plaintiff a policy of insurance on the life of her husband, William Frese, agreeing thereby to pay to her $5,000 at his death; that the premiums due thereon were prior to his death fully paid; that on July 7, 1899, plaintiff's said husband borrowed from defendant the sum of $1,930, repayable to defendant on August 29, 1900; that defendant required as security for said loan the pledge of said policy, and plaintiff assented thereto, and thereupon plaintiff and her said husband entered into an agreement with defendant, by which they assigned to defendant said policy and agreed therein to repay said sum to defendant on August 29, 1900, and as collateral security and in consideration of the amount so loaned did "assign, transfer, |