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(2 Cal. Unrep. 256)

BURT and others v. COLLINS and others.

Filed January 29, 1884.

A partnership is not liable for goods sold and delivered to one partner in his individual capacity, though the items be charged in the partnership account.

In bank.

Appeal from the supreme court of San Bernardino county.

This action was brought to recover of defendants, doing business of sheep-raising, as partners, under the name of G. A. Collins & Co., a balance on an account of goods sold and delivered. There was evidence that a portion of the goods had been purchased by Collins in his individual capacity and charged to the firm account. The court found the fact of the partnership and of the sale of the goods to the firm, and thereon rendered judgment against defendants. Defendants appealed from this judgment.

Brunson & Wells, for appellants.

Bicknell & White, for respondents.

The ev

MYRICK, J. Finding 3 is not sustained by the evidence. idence of B. F. Burt, one of the plaintiffs, found on page 44 of the transcript, shows that when the account was opened with Collins the object of using the firm name of G. A. Collins & Co. was for the personal convenience of Collins in his subsequent settlement with the herders and Mrs. Bouton, and not with the expectation that the account was the account of the firm. Besides, many of the articles sold (and charged in the account of the firm) were for the use of Collins and his family, and bore no relation to the business of the firm; and the plaintiffs did not, on the trial, segregate these items from the general account, nor show which items of the general account were for the benefit of, or went to the use of, the firm.

Judgment and order reversed, and cause remanded for a new trial.

We concur:

MORRISON, C. J.; Ross, J.; McKINSTRY, J.

(64 Cal. 503)

BLOOM V. CITY AND COUNTY OF SAN FRANCISCO.

Filed January 29, 1884.

The city and county of San Francisco is liable in an action for injuries to the business and health of the owner of land, caused by the flowing of refuse matter from its hospital onto such land, although no claim for compensation has been presented to the city board of supervisors for allowance.

In bank.

Appeal from the superior court of the city and county of San Francisco.

This was an action brought for the abatement of a nuisance, and for damages for injuries resulting therefrom. The nuisance consisted in permitting the excrements, secretions, filth, and refuse from the city and county hospital to flow onto plaintiff's land, thereby poisoning the atmosphere, endangering the health of those in contact with it, polluting plaintiff's well, and injuring his business. The defense was set up that plaintiff had never presented his claim for compensation to the board of supervisors. Judgment was rendered for plaintiff. Defendant appealed.

John L. Murphy, for appellant.

Joseph Leggett and Mich. Mullany, for respondent.

BY THE COUrt. We think the city and county of San Francisco had such proprietorship of the city and county hospital as rendered it liable for damages in the case as presented in the transcript. We also think the claim of plaintiff was not a claim to be presented to the board of supervisors before an action could have been maintained. Judgment and order affirmed.

(2 Cal. Unrep. 257)

HEINLEN V. ERLANGER and others.

Filed January 29, 1884.

Where a default has been entered against one of two defendants, for failure to answer the original complaint, the failure to serve amended complaints on such defendant will not be ground for reversal of the judgment, where the record does not show that such amended complaints were not served.

Department 1.

Appeal from the superior court of Tulare county.

v.3,no.2-9

E. J. Edwards, for appellants.

Jacobs & Merriam, for respondents.

BY THE COURT. In an action to foreclose a mechanic's lien, Erlanger and Jacob were made parties defendant,-Erlanger as the contractor for whom the work was done and to whom the materials were furnished, and Jacob as the person claiming the property sought to be charged with the lien. To the original complaint Jacob demurred, but Erlanger made no appearance and his default was duly entered. Subsequently, the complaint was amended five times. To the fifth amended complaint Jacob answered, and upon these pleadings a trial was had. In the brief of appellants it is said that none of the amended complaints were served on Erlanger, for which reason, it is contended, the judgment against him must be vacated; and, further, that without a personal judgment against Erlanger, there can be none foreclosing Jacob's interest. The reply, which is a good one, is that it does not appear from the record that there was a failure to serve the amended complaint on both defendants.

Judgment and order affirmed.

(2 Cal. Unrep. 258)

CRITES V. WILKINSON.

Filed January 29, 1884.

Where there is no evidence to support the findings of the court below, the judgment will be reversed.

Department 1.

Appeal from the superior court of Kern county.

This was an action for damages and for an injunction to restrain defendant from diverting the flow of water in a creek from ditches running over plaintiff's land,-plaintiff alleging to be owner of such water-right by prescription. Defendant denied plaintiff's title to such water-right. The court found plaintiff to be the owner of such waterright, and entitled to the injunction prayed for. Defendant appealed.

Z. G. Peck and J. W. Freeman, for appellant.

R. E. Arick, for respondent.

BY THE COURT. We have read the record attentively, and find no evidence to support the finding of the court below, to the effect that

the plaintiff acquired the right to divert from the stream mentioned in the record 100 inches of its water, measured under a four-inch pressure. The judgment securing him that right, as well as the order refusing the defendant a new trial must therefore be reversed. Judgment and order reversed, and cause remanded for a new trial.

RATHGEB V. DASSO.

Filed January 29, 1884.

In questions on the weight of evidence, where the evidence is conflicting, the judgment of the lower court will be affirmed.

Department 1.

Appeal from the superior court of Calaveras county.

G. N. Williams, and J. B. Reddick, for appellants.

Cyril V. Grey, for respondents.

BY THE COURT. The case as presented is one of evidence, and we cannot say that the findings of the court below are unsustained. Judgment and order affirmed.

(65 Cal. 96)

CLARKE v. HUNDLEY, Judge, etc.

Filed March 3, 1884.

Where the defendant claims affirmative relief, growing out of matters in the plaintiff's complaint, the plaintiff cannot dismiss the action on his own motion.

Department 2.

George Cadwalader, for petitioner.

J. D. Goodwin, for respondent.

MYRICK, J. This is an application for a writ of mandate requiring the respondent, as judge, and the court in which he presides, to proceed with the trial of a case. Eleanor Murdock, as administratrix of her deceased husband, commenced an action against the petition

ers herein, as defendants, for an accounting, by reason of matters set forth in her complaint, and to obtain a decree that the said defendants convey to her certain real estate which had been conveyed to them by plaintiff's intestate as security for certain moneys; alleging that the amounts received by the defendants and the value of use and occupation to be sufficient to pay off the indebtedness. The defendants answered, averring further advances and the payment of expenses by them of more than the amounts received, claiming a balance and the original amount loaned to be still due, and asked for an accounting, and that the real estate conveyed as security as above mentioned be sold to satisfy the amount due them. This action was pending in the court in which the respondent presides. While so pending, and before October 10, 1883, the cause was set down for trial on the twenty-ninth of October, 1883. On said tenth of October the plaintiff's attorney filed with the clerk a paper in which it was stated that "the plaintiff dismisses the above entitled action at the costs of said plaintiff, and the clerk of said court is hereby requested to enter such dismissal in his register of said actions." He also filed another paper in which he moved the court to dismiss the action at plaintiff's cost without prejudice. Notice of the motion was given, and a hearing thereon was had October 18th, and denied. No order for or relating to the dismissal appears on the register, but in the blotter are entries of items of clerk's costs, including the papers above referred to. On the twenty-ninth of October, the day on which the cause had been set down for trial, the parties appeared by counsel, and the plaintiff objected to the trial of the cause proceeding, on. the ground that she had dismissed the action by filing the papers. first above referred to. The court declined to proceed with the trial, for the reason that the action of the plaintiff had dismissed the suit, and there was no cause pending before the court. We are of opinion that the plaintiff did not, and that she could not, dismiss the action of her own motion. The defendants had averred matter upon which they sought affirmative relief, growing out of the action set forth in the plaintiff's complaint. See sub. 1, § 581, Code Civil Proc. Let the writ issue as prayed for.

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