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granted to plaintiffs a decrce of foreclosure. I due iliso facto upon default in the payment The finding that the interest had not been of interest. The clause in question gives to paid is attacked as unsurported by the evi the holder of the note a mere option which dlene. It appears, without contradiction, he may take or waive. Belloc v. Davis, 38 that on October 11, 1904, six days before the Cal. 242. IIe is entitled to a reasonable time commencement of the action, the defendant in which to determine whictl:er or not he will Elliott, who had assumed the payment of the claim his right. Ilewitt v. Dean, supa; note and mortgage, tendered to the plaintiffs Fletcher v. Dennison. 101 Cal. 294, 35 Pac. thie interest then due, comprising the two in 868. If after a default in the payment of installments payable, respectively, on July 11, terest the holler accepts the overdue interest 190H, and October 11, 1901, and amounting to (Belloc v. Davis, supra), or delays unreas:allabout $368.20. The tender was refused on ably before electing to declare the principal the ground that plaintiffs had exercised their sum due (Crossmore v. Page, 73 (al. 213, 14 option “of considering both principal and in- | Pac. 787, 2 Am. St. Rep. 780), the right to terest due on that note and that the [their] exercise the option is lost. And we think it money was not sufficient." The defendant is equally lost if, before the option has been Elliott immediately deposited the sum of in fact exercised, the defaulting debtor pays $375 in gold coin in the name of plaintiffs or offers to pay the overdue interest. ('ntil in a bank of deposit of good repute and gave such option has been exercised, the principal notice thereof to plaintiff. Civ. Code, $ 1.500. of the note is not due. I'ntil then the holder There is no evidence that at any time prior has a mere option to declare it due. During to October 11th the plaintiffs notified any of this interval he has, by his failure to act, in the defendants they had elected to declare effect declared that he will not regard the the principal of the note due, or that they delay already past as sufficient ground for ever demanded payment of such principal. asserting the right given bim. The delay to Evidence offered by defendants to show that that extent is waiveil by him. If then, before plaintiffs had not given such notice or made the exercise of the option, the debtor pays such demand was excluded. The agent of the accrued interest, the condition upon plaintiffs was allowed to testify, over de which the holder may declare the whole note fendants' objection, that two weeks before not due does not exist. The interest is no the commencement of the suit he had elected

longer unpaid, and the creditor cannot take to declare the whole note due and payable, advantage of a prior delay, which he has and had directed the attorneys of the plain- already waived. Here the debtor, by his tiffs to proceed to foreclose the mortgage. tender, followed by the deposit in bank, exThe note and mortgage, being parts of one tinguished the obligation to pay the interest transaction, are to be read together, and the then due. Such tender and deposit conplaintiffs may therefore rely on the provision stituted a payment (Civ. Code, $ 1500), if contained in the mortgage, making the prin made before the plaintiffs had exercised their cipal due for nonpayment of interest at the option to declare the principal due. And the payees' option, although the note contains offer of payment, without the deposit in bank, no such provision. Phelps v. Mayers, 120 was equally effectual to destroy the right of Cal. 549, 58 Pac. 1048; Meyer v. Weber, 133 the plaintiffs to declare the principal of the Cal. 681. 65 Pac. 1110. The contention of the note due. Civil Code, $ 1504. The plaintiffs appellants is that they had the right to pay cannot therefore rely upon the commencement tli accrued interest and defeat the right to of the suit as an exercise of their option. exercise this option, at any time before it When the complaint was filed, the interest had bad actually been exercised, and that it could already been paid. Yor can any effect, as not be validly exercised by any determina against the defendants, be given to the statetion reached in the creditors' own minds, ment made by the agents of plaintiffs in and not communicated in any way to the response to the tender, that the plaintiff's had debtors.

exercised their option of considering both It is settled by several decisions of this principal and interest due. Such statement court that the holder of an instrument of this was made after the rights of the defendants kind need not, before commencing his action,

had become fixed by their tender. It is true give any notice to the defaulting maker of that the court finds that the plaintiffs had his election to declare the principal due for on or about the 3d day of October, 1904, nonpayment of interest. Hewitt v. Dean, elected to declare the principal and interest 91 Cal. 5. 27 Pac. 423; Sichler v. Look, 93

due. Cal. 600, 29 Pac. 220; Clemens v. Lure, 101 This finding is based upon the testimony Cal. 432, 3.5 Pac. 10:32: Bank of (Commerce r.

that the plaintiffs bad on or about the date Scofield, 126 Cal. 156, 58 Pac. 151. As was last stated directed their attorneys to prosaid in Hewitt v. Dean, supra: "The com (eed to foreclose. We think the rights of mencement of the action was notice of the the defendants could not be cut off by such exercise of the option *

*
and no pré-

ex parte determination, not communicated vious notice or demand was necessiry." But, to them. The plaintiffs had a right of elecwhile a formal notice before suit is not nec. tion, and, having elected, had the right to essary, the principal sum does not become i proceed without notice to the defendants, but

they cannot be said to have exercised their clerk, to compel him to countersign bonds. option until by some outward act beyond a Peremptory writ ordered to issue. mere mental determination or a direction to

J. E. McElroy, City Atty., for petitioner. their own agents they had manifested their

Allen & Walsh and Ben. F. Woolner, for reelection. Furthermore, the complaint does

spondent. not allege any election prior to the commencement of the action. The allegation is

HENSHAW, J. This is a petition for manthat plaintiffs "elect to declare the whole of

date against the respondent, who is city clerk said principal sum and interest thereon from

of the city of Oakland, to compel him as April 11, 1904, now due and payable." This

such official to countersign certain municipal statement, which is in the present tense, must

bonds of petitioner. The proceedings, culbe taken to refer to the time of filing the

minating in the voting of the bonds, are set complaint. It was not denied. The allega

forth in full. tion was probably unnecessary, as the filing

The respondent pleads by demurrer, and of the complaint seeking the relief claimed

admits the due performance of all the acts sufficiently evidenced an exercise of the op

taken by the officers of the city, and admits tion at the time of such filing. But, under

likewise the regularity and suficiency of the the averment as made, evidence of a prior

election proceedings and of the election. He election was outside of the issues, and was

bases his refusal to countersign the bonds objected to on this ground. For the same

upon two grounds: First, that the proceedreason the finding of an election on October

ings culminating in the special election where 3, 1904, is entitled to no consideration.

at the bonds were voted were had under a It follows that, in the present condition of

statute not applicable to the purpose; and, the pleadings and the evidence, the action

second, that the election, calling, as it did, seems to have been prematurely begun, the

for the acquisition of certain detached pieces principal sum sued for not being due when the complaint was filed.

and parcels of land for public parks, was The judgment and order appealed from are

irregular and void, in this: that each piece

and parcel of land proposed to be purchased reversed, and the cause remanded for a new

should have been submitted to the voters to trial. The plaintiffs, if so advised, should have leave to amend their complaint.

be voted upon as a separate and distinct proposition; whereas, by the method adopt

ed, it was made necessary for the voters to We concur: SHAW, J.; ANGELLOTTI, J.

vote for or against the acquisition of all of these detached parcels as a single unit.

1. Under the first objection, it is contended (151 Cal. 572) CITY OF OAKLAND V. THOMPSON, City

that the proceedings should have been had, Clerk. (S. F. 4,849.)

the election called, and the bonds issued, (Supreme Court of California. July 30, 1907.)

under an act of the Legislature entitled "An

act to enable incorporated cities and coun1. MUNICIPAL CORPORATIONS - PARKS – AUTHORITY TO ACQUIRE – INDEPENDENT

ties, and towns to acquire, maintain, and SCHEMES.

improve public parks and boulevards." St. Though no repugnancy exists between St. 1889, p. 361, c. 248. In fact, the proceedings 1889, p. 301, c. 248, authorizing cities to acquire public parks and boulevards, and St. 1901. p.

were had under the authority of the act of 27, c. 32, authorizing them to incur indebtedness

1901, entitled "An act authorizing the infor and 'regulating the acquisition of municipal curring of indebtedness by cities, towns, and improvements, the 1889 act does not provide the sole method by which land may be acquired

municipal corporations for municipal imfor public parks, since the Legislature may pro

provements, and regulating the acquisition, vide two independent schemes, to either of which construction, and completion thereof." St. a municipality may resort.

1901, p. 27, c. 32. It is argued that the act of 2. SAME.

1889 deals expressly with the subject matter Under St. 1901, p. 27, c. 32, authorizing cities to acquire or construct any municipal im

of the petitioner's bond election; that there provement, including street work, etc., and prop is no repugnancy between it and the later erty necessary or convenient to carry out the act of 1901, which is general in its nature; objects, purposes, and powers of the municipality, and Oal:land ('ity Charter, art. 3. § 31, St.

and that it must be held, therefore, that the 1889, p. 524, authorizing the city to acquire

Legislature in the act of 1889 has set forth lands for public parks, etc., it may purchase the single and controlling method whereby lands for park and boulevard purposes.

municipalities may acquire lands for park 3. SAME.

and boulevard purposes. It may freely be St. 1901, p. 27, c. 32, authorizing cities to acquire land for parks, and providing a proposi conceded that no repugnancy exists between tion to incur debt therefor shall be submitted to the act of 1889 and the act of 1901, but it the poters, does not contemplate that each price of laud desired for a park should be voted upon

does not necessarily follow therefrom that the separately, where there is a single scheme of

act of 1889 provides the sole and exclusive park improvement, ipcluding several parcels of

method by which a municipal corporation land widely separated, to be converted into sep may acquire land for park purposes. Thus, arate parks.

if it shall be determined that the act of 1901 In Bank. Petition by the city of Oakland is in its scope broad enough to include the for mandamus to Frank R. Thompson, city acquisition of lands for park and boulevard

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purposes, there is no constitutional inhibi clude in the phrase "municipal improvement,” tion forbidding the Legislature from providing subject-matters concerning which doubt might two independent schemes, to either of which be entertained as to their proper place in a municipality may have resort as it shall such a category, than to limit the kind of deem expedient. Indeed, the essential dif public improvements to those specifically desference between the act of 1889 and that of ignated. Thus, to illustrate: While it would 1901 is in the life of the bonds; the act of be unhesitatingly said that a sewer, or a 1889 providing for 20-year bonds, and that of bridge, or buildings for municipal use, were 1901 for 10-year bonds. One city might con public improvements, it might be debatable sider it to be more to its advantage to use in a town adequately supplied with light by a the longer term bonds, while another might quasi public corporation whether the acquisibe of contrary opinion, and, as we have said, tion of a lighting plant by a city could, in there is no constitutional or other objection strictness, be denominated a public improvewhich prevents the Legislature from giving ment, and it was to relieve from any necescities their option and choice in this matter. sity of construction that light works, power The language of the act of 1901 is certainly works, waterworks, and water rights were general enough to empower a city to purchase expressly enumerated. It was thus not delands for park and boulevard purposes.

It signed to limit the meaning of the phrase declares: “Whenever the legislative branch "municipal improvements," but rather to of any city, town or municipal corporation broaden its scope to include any of these shall, by resolution passed by vote of two matters which might otherwise be considered thirds of all its members and approved by the doubtful. executive of said municipality, determine 2. The second objection urged by the rethat the public interests or necessity demands spondent is equally untenable. The scheme the acquisition, construction or completion of had in contemplation the acquisition of sev. any municipal improvement, including bridges, eral distinct parcels of land, widely sepawaterworks, water rights, sewers, light or rated, to be converted into separate parks for power works or plants, buildings for munic

the enjoyment of all the inhabitants of the ipal uses, school houses, fire apparatus, and city. The scheme is a single scheme, the purstreet work, or other works, property, or pose a single purpose, and came clearly withstructures necessary or convenient to carry in the authority of the act of 1901, which out the objects, purposes and powers of the provides that the proper authorities may “call municipality.”

a special election and submit to the qualified Herein is a declaration empowering a city voters of said city, town, or municipal corto boud itself for the acquisition "of any poration, the proposition of incurring a debt municipal improvement” including the ac

for the purposes set forth in said resolution." quisition of any “property

neces

The law does not contemplate-much less sary or convenient to carry out the objects, compel—that each piece and parcel of land purposes, and powers of the municipality.”

which may be desired for a park should be It will not be questioned but that the ac

voted upon separately. The plan is a single quisition of parks is, without any express

plan for the acquisition of all of these lands words of authorization, included, whenever a for park purposes, and in recognition of the grant of power is conferred to acquire prop

jealousies which so often arise in wards and erty for "municipal purposes.” Law v. San sections of a municipality it may easily be Francisco, 14 Cal. 381, 77 Pac. 1014; City of believed that it would be disastrous to the Lexington v. Kentucky, etc., Assembly, 71 S. municipal scheme if the other course were W. 913, 114 Ky. 781; In re Mayor, etc., 2 adopted-the jealousies of the inhabitants of N. E. 612, 99 N. Y. 509; In re North Ter one section prompting them to vote for lands race Park, 48 S. W. 800, 117 Mo. 239. But, for a park, if it were to be situated in their in addition to this, the charter of the cit; own district, and to vote against it if it were of Oakland expressly contemplates the exer not-thus rendering it difficult, if not iniposcise of this power, when in section 31 thereof sible, for the city ever to acquire park lands it declares that "the council shall have power at all. Certainly the plan adopted was withto pass ordinances * *

40, to acquire in the discretionary power of the council unlands for public parks and to improve and der the law, and it enabled every voter to exmaintain such lands for the benefit of all the press himself as being for or against the inhabitants of the city." Charter of City of whole proposition. More than this was not Oakland, art. 3, § 31; St. 1889, p. 524. The required. effort of respondent to limit the scope of the It appearing, therefore, that the objections act of 1901 to enumerated matters under the of the respondent are untenable, it is orderrules of noscitur a sociis and expressio ed that a peremptory writ of mandate issue, unius is untenable. The language, “including directing him forthwith to contersign petibridges, waterworks, water rights, sewers, tioner's bonds as prayed for. light or power works, or plants, buildings for municipal purposes, school houses, fire ap We concur: BEATTY, C. J.; LORIGAN, paratus," is more obviously designed to in J.; MCFARLAND, J.; SHAW, J.; SLOSS, J.

(151 Cal. 561) DURKEE v. CHINO LAND & WATER CO.

(L. A. 1.892.) (Supreme Court of California. July 30, 1907.) 1. AXIMALS--TRESPASSING–OWNER'S DUTY.

The owner of cattle of known roving and destructive tendencies must take commensurate precautions to prevent their escape to the lands of others.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 2. Animals, $ 338.) 2. SANE-ACTION FOR DAMAGE — EVIDENCESUFFICIENCY.

Evidence in an action for damage caused by trespassing cattle held to sustain a finding that defendant had neither taken sufficient precaution to prevent trespass by its cattle nor exercised due diligence in removing them.

[Ed. Xote.--For cases in point, see Cent. Dig. vol. 2, Animals, $ 360.] 3. DAMAGES--EVIDENCE-SUFFICIENCY.

Evidence in an action for damage caused by trespassing cattle held to sustain findings of damage in plaintiff's favor.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Damages, $ 511.) 4. APPEAL- PRESENTATION OF OBJECTIONS BELOW-NECESSITY—THEORY OF CAUSE.

Where, in an action for damages, the rule adopted by plaintiff for the measurement thereof was acquiesced in by defendant, who raised no objection to the evidence given, which sustained the fir dings, defendant is concluded from questioning the sufficiency of the evidence when tested by some other rule.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 2, Appeal and Error, $$ 1051, 1055.]

Department 2. Appeal from Superior Court, San Bernardino County; Frank F. Oster, Judge.

Action by Daniel Durkee against the Chino Land & Water Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

J. S. Chapman and Ward Chapman, for appellant. E. W. Freeman and A. D. Laughlin, for respondent.

the grain, hay, grass, and verdure thereon, causing the loss of pasture to the amount of $1,080; that said cattle broke down the fences on said tract and damaged plaintiff in the further sum of $150; that as a result of such trespass by the cattle of defendant, and destruction of said fences, 10 head of cows belonging to plaintiff mingle:1 with the trespassing cattle of defendant and with them escaped from said tract of land and were lost, to the further (lamage of plaintiff in the sum of $500, making in all a total of $1,630 damages. On this count the court allowed $720 for the loss of grass and pasture; for destruction of fences $30; and for the loss of cows $500, making $1,270. It deducted from this, however, the sum of $103, an installment of rent on a lease of these premises due from plaintiff to defendant. The third count alleged a further trespass of defendant's cattle, between the same dates, upon two other tracts of land in possession of plaintiff. aggregating 1,500 acres, and constituting practically one pasture, whereby the fences of said tract were broken down, and the grass, hay, and verdure destroyed; that, on account of the destruction of said grass, hay, and verdure, plaintiff was compelled to purchase alfalfa hay at the expense of $1,500, which expenditure would have been unnecessary save for the destruction by said cattle of the hay, grass, and verdure growing on said lands. It was further alleged in this count that, by reason of the destruction of said grass and verdure, 60 head of young cattle belonging to plaintiff, of the value of $500, were deprived of proper food, and perished. Plaintiff laid his damages resulting from the destruction of said grass, hay, and verdure on said land, and the breaking down of said fences, in the sum of $2,599.80. The court allowed on this count for the destruction of grass, $900 damages. and fences $600, but found against plaintiff for the alleged loss of 60 head of young cattle. In relation to the fourth count, the court found against plaintiff as to its allegations, and it is unnecessary to particularly refer to them. Judgment was given plaintiff for the amounts found in his faror on the three counts, aggregating the sum of $2,815. The defendant moved for a new trial upon various grounds; the principal claim in support of it being that the evidence was insufficient to support the finding of negligence on the part of defendant in caring for its cattle, and, further, that there was no evidence sufficient to support the findings of the court of the amount of damages suffered by plaintiff, or any of its various items. In disposing of the motion for a new trial, the court ordered a reduction of $20 to be made from the judgment on the first count and $180 from the judg. ment on the second count, and that, if thix. reduction was accepted by plaintiff, the mo. tion for a new trial be denied. The reduction was accepted by the plaintiff, and the defendant thereupon appealed from the judg

LORIGAN, J. This action was brought by plaintiff to recover damages from the defendant, claimed to have been sustained by him on :!ccount of the defendant wrongfully and negligently allowing its cattle to tresDass un certain grain and pasture lands owned and leased by him in the vicinity of Chino, in San Bernardino county. The complaint stated four causes of action and judgment was rendered in favor of plaintiff upon the first three, but denied upon the fourth.

The first count alleged the trespass of said cattle on 320 acres of land belonging to plaintiff between December 1, 1902, and September 1, 1:903, during which time they ate up and injured growing har and verdure thereon, to the damage of plaintiff in the sum of $175. The court allowed damages on this count on the sum of $150. The second count alleged the trespass by the cattle of defentlant. between the same dates, on another tract in possession of plaintiff containing 120 acres; that they ate up and destroyed

ment and order denying its motion for a new been exercised concerning them than would trial.

be required relative to ordinary range catThe evidence shows that the vicinity in tle. The evidence on behalf of defendant which the trespasses complained of by plain tended to show that it had, at most, four tiff occurred was devoted largely to the cat Vaqueros to ride along and repair the fences, tle business, the people living there being which extended eight or nine miles around principally engaged in dairying, conduct the ranch, and to look after all the cattle on ing it with gentle, native, dairy cows.

the

, plaintiff was thus extensively engaged, using as one testified, once or twice, another two the fields upon which the trespass of the cat or three times, a week. No particular attentle occurred for such dairy purposes. The tion was given to the fences on the ranch in defendant was not engaged in dairying, but the vicinity of

the vicinity of the premise

the premises of plaintiff in raising cattle for the market. The ranch where these cattle of marauding tendencies upon which its cattle were supposed to range were ranging, or to keep them back on the consisted of some 10,000 acres, and upon this range, and, under the circumstances, the were carried at the dates involved in this

court would be justified in finding that no action something over 3,000 head of cattle,

sufficient care over them was exercised by of which, by far, the larger number were defendant. Aside from this, the evidence on what is called Sonora or Mexican (attle. It

behalt of plaintiff warranted the court in was these Mexican (attle which entereil up

finding that even the attention claimed to on the fields of plaintiff, dep:istured and de

have been given was not sufficient, as that stroyed the growing crops and natural feed

testimony showed that the cattle were conthereon, broke down his fences, and caused

stantly in the fields of plaintiff while the all the damage to him which the court found

feed there lasted, and, when driven out one he sustained, and upon which it awarded him

day, returned the next, and that defendant judgment. As to the disposition of these

had information and knowledge of their conMexican cattle, their roving and destructive

stant and continued depredations. The plainpropensities, there is a unanimity in the

tiff made frequent complaints from the betestimony of the witnesses on the subject,

ginning to the end of the trespassing of They were wild "long horned cattle." which

these cattle. He testified that he complained wandered on or off the range at will, and

at the head office of the company in San whose roving disposition was not restrained

Francisco, at the main office at Chino, and by the presence of any ordinary fence.

to the superintendent of the corporation at cerpts from the testimony of a few of the

the ranch. He told them that these cattle witnesses called (and the same views are

were destroying all the feed in his fields and expressed by all who spoke upon the sub

breaking his fences; that he had kept men ject) so sufficiently describe the character

riding after them; that his horses were of these cattle as to make further reference to it unnecessary. One witness, speaking up

worn out; and that he had to have relief.

To these appeals he received only evasive on the subject, said: "I don't believe there is a ranch in that country that they have not

answers, and gives what he terms "a fair

illustration" of the result of one of them looted, and to do it they would have to break half it (lozen fences. It is no more

He stated : and the general result of all.

“I went to the office and saw the clerk there trick to go through half a dozen fences for that band of steers than to go along the

in charge--in the Chino office and I stated road peaceably on a Sunday afternoon." An

the case very thoroughly, that there were other: "They would jump and run and go

200 or 300 head of their steers there; that right through the fences." And a third:

they were there for a long time, and that I "The Chino cattle were wild and fences did

wouldn't have a thing if there wasn't somenot stop them. They were monarchs of all thing done; and the agent asked me what they surveyed.” And the foreman of the time I could get up in the morning. I told defendant is also credited in the testimony

him I could get up in the dead hour of the with having summarized the evil tendencies | night if I could get relief. He said: You of these animals in the declaration that "a get up tomorrow morning bright and early, Whirlwind isn't in it with these cattle." We and be here about the hoine ranch, and you refer to the characteristics of these cattle in will meet the vaqueros, and you state your connection with a claim of appellant that the case to them. I got up before daylight, and evidence was insufficient to sustain the find it was very cold, and I drove up about suning of the court that defendant was negligent rise, and I met Mr. Williams and four others in their care.

all mounted, coming leisurely from the home It was the duty of the defendant, in view ranch, and I stopped the gentlemen and statof the roving and destructive tendencies of ed my case to them. Mr. Williams was very these cattle. to take commensurate precau kind, so far as he had anything to say, and tions to prevent their escape from the range he said: “Mr. Durkee, we can't do anything upon which they were placed. Reasonable for you. We have to go to work at the silo care on account of their known disposition on the east side.' I asked if I could not required that a greater diligence should have have one man, and that my horses were woru

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