Action in ReplaVIN.-Statute of March, 1874, concerning roads and highways in Santa Clara county. Stock not allowed to pasture on public highways, Cattle estray or running at large on any public road may be impounded. Held, 1st, that cattle passing along the road under charge of herder are not liable to the Act, through any accident to,herder, 2d. The facts do not show that these cattle were pasturing on the highway within the meaning of this Act,

The facts appear in the opinion.

D. W. Harrington, attorney for plaintiff and appellant. Moore, Laine & Leib, attorneys for defendant and respondent.

OPINION BY THE COURT,

In the statute of March, 1874, concerning roads and highways in the county of Santa Clara ($37), it is enacted that no stock of any kind shall be allowed to pasture upon any public highway, and it shall be the duty of all roadmasters and deputy roadmasters, within their respective districts, to take up all animals found pasturing upon the public highways, and to deal with said animals as provided for in an act to amend an act concerning estrays and animals found running at large in the county of Santa Clara," etc.

Upon reference to the latter act it is therein provided, that the estray cattle, or cattle running at large upon any public road, may be taken and impounded.

It is apparent that both acts deal with the case of cattle running at large, or being estray, and not with cattle passing over and along a public road in charge of a herder, and not

being upon the road for the purpose of being pastured there.

It is not the intention of the act that cattle being driven along the road in charge of a herder, and which, in passing, should casually eat of the grass growing at the roadside, should for that reason be subjected to proceedings by the roadmaster under the act first referred to. The Court below found that the plaintiff's cattle had been driven from the plaintiff's land to Wolf Creek upon the Stephens Creek road for the purpose of being watered, and while there in charge of a herder, who seems to have fallen asleep for the moment, were found pasturing upon both sides of the road.

There is no pretense that the plaintiff, or the herder, intended that the cattle should pasture upon the road and that they were found eating the grass there, was owing solely to the accident of the herder falling asleep for the moment. Had he fallen down in a fit, or been disabled by a sudden attack of disease, the same consequences might, and probably would have ensued, but we do not think that in the one case, more than in the other, the cattle would be subject to proceedings under the Act.

We are of the opinion that the conclusions of law, second in number, deduced by the Court below, "That the plaintiff was pasturing and permitting to pasture, the cattle referred to, upon said highways, when the same were seized by the defendant," cannot be supported upon the facts found at the

trial.

The action is replevin, and the facts, as to the value of the cattle, and the damage, if any, sustained by the plaintiff, are put in issue by the pleadings, but are not determined by the findings. We cannot, for this reason, direct final judgment for the plaintiff here, and there must be a new trial of the action below.

Judgment reversed and cause remanded for a new trial.

[No. 5713.]

[Filed March 30, 1878..] DOWD vs. CLARK.

LEASE WITH RIGHT TO PURCHASE.-Lessee might elect to purchase any time during term of lease on specific terms. Plaintiff or lessee did notify

defendant and lessor during said term, of his election to purchase under the provisions of lease. Defendant refused the tender, and this refusal was a waiver of necessity for a tender before bringing suit. Plaintiff offers in complaint to comply with all the conditions of the agreement. · Held, that this entitles him to a specific performance of the contract.

STATEMENT OF FACTS.

This is an action brought to compel the specific performance of an agreement to sell real estate. On the 27th day of March, 1866, defendant leased plaintiff certain premises for the term of six years from October 1st of that year, covenanting to give the plaintiff the right to purchase, the true construction of which covenant to purchase was the chief matter of contention in the Court below. There being no findings or opinion filed, appellant's counsel ventures the presumption that the judgment adverse to his client adopted the defendant's construction of this covenant and assumes the following position Ist. "No matter which construction is adopted, and no matter how much is due under the contract, the plaintiff cannot in equity be turned out of Court;" and, 2d, "that plaintiff's construction is the correct one." It is further contended that the plaintiff might elect to purchase at any time during the term of the lease, and that after such election to purchase would, if he chose, have until the expiration of such term to make payment, and that until he availed himself of the privilege of purchase would continue as lessee of the land. Further, that the moment he signified his election to purchase, his character as tenant would cease-and he would become vendee of the land rightfully in possession under his contract of sale, his obligation to payment ceasing at such time. Becoming thus the owner of the land he would in equity and justice be bound to bear the burdens such as taxes and assessments imposed upon it, and the respondent would have an interest in seeing that they were properly discharged, because after Dowd's election Clark would hold the legal title of the land as security for the payment of the purchase money until fully paid.

On the part of the respondent it is contended that the most favorable view of the case for the appellant would be that he was not bound to elect to purchase or pay until the last day of the term, and if he thus elected so to do, the purchase money would be $6,000, with interest at one per cent per month from date of the lease, less the rents previously paid, to which was to be added the taxes upon the property which plaintiff had failed to pay. Respondent further alleges that the complaint contains no averment of fraud, mis

take or accident, and the appellant asks for the specific performance of the contract as appears on its face-whereupon the Court cannot disregard any portion of the same. To entitle plaintiff to a decree he must show himself " eager, prompt, ready and desirous" to perform the whole contract upon his part, and until he does this the defendant is not in default.

Delmas, attorney for appellant.

Williams & Thornton, attorneys for respondent.

OPINION BY THE COURT.

As we construe the lease of March 27, 1866, it provides: First, that the lessee may elect to purchase at any time during the term, in which event he shall pay to the lessor during the term, the sum of $6,000 in gold coin, with interest from the date of the lease at the rate of one per cent. per month, and any payments, which, in the meantime, shall have been made for rent, shall be credited on the interest; second, that if the lessee elects to purchase, he shall also pay in addition to the the principal and interest, whatever sum shall in the meantime have been levied on the land and paid by the lessor for taxes from the date of the lease; third, that from the time the lessee elects to purchase, the interest shall thenceforth be paid on the first days of January and July in each year; and if not so paid shall be compounded at the rate of two per cent. per month until paid; fourth, that if the lessor shall have incurred expenses by reason of the failure of the lessee to perform the covenants by him to be performed, the same shall be refunded by the lessee with interest at the rate of two per cent per month, compounded monthly.

There is no conflict in the evidence as to the fact that before suit was brought the plaintiff notified the defendant during the term, that he elected to purchase under the provisions of the lease, and defendant refused the tender, and denied that the plaintiff was entitled to purchase under the lease. He ignored altogether the right of the plaintiff to purchase, and on well settled principles this was a waiver of the necessity of a tender before suit was brought. But in his complaint the plaintiff avers that he is ready and willing, and offers to comply with all the terms and conditions of the agreement, and to pay any sums that may be due the defendant for the purchase of said premises under the contract. This we think is sufficient to entitle him to a specific performance of the agree

ment.

It is unnecessary to determine on this appeal whether the

interest ceased from the time of the tender and the refusal of the defendant to recognize the plaintiff's right to purchase. Judgment and order reversed, and cause remanded for a new trial.

[No. 5662.]

[Filed March 27, 1878.]

MEEKS vs. SOUTHERN PACIFIC R. R. CO.

LIABILITY OF RAILROAD CORPORATIONS FOR DAMAGES.-The provisions of section 486, Civil Code, that a railroad shall be liable for damages under certain circumstances, does not abrogate the doctrine of a contributory negligence on the part of an injured party.

SAME.-Does not operate to give right of action where negligence of the injured person materially and proximately contributed to the injury. Held, that plaintiff was guilty of negligence per se, in using the railway track for a playground--hence could not recover.

STATEMENT OF FACTS.

Samuel H. Meeks, Jr., the plaintiff and respondent in this case through his guardian ad litem Samuel H. Meeks, Sen., the former a boy six years of age at the time of the injury complained of, seeks to recover damages for injuries which it is alleged he sustained by reason of the negligence of the defendant. At the time of the accident plaintiff was lying asleep between the rails of defendant's road. The engineer at the distance of five hundred feet discovered an object but failed to make out what it was until within a hundred feet, when he gave the signal down brakes and reversed the engine. Plaintiff's left foot was so badly crushed as to require amputation, the right also sustaining injury. Upon the trial of the case in the Court below, the jury found for plaintiff, assessing the damages at $10,000. Defendant's motion for a new trial being denied, this appeal is taken.

Certain instructions to the jury were excepted to by the defendant,—and others requested by defendant were refused, which refusals were also excepted to.

Appellant contends that the plaintiff was guilty of such contributory negligence as deprived him of any right of action, and that there is no conflict of testimony upon this point. That the fact of his lying asleep on the track of defendant's road would have been such contributory negligence as to bar a recovery had he been an adult, could not be denied.

In Sims vs. M. & W. R. R. Co., 28 Ga., 95, the Supreme Court of Georgia says: "To go to sleep in such a place