H. Noyes, Judge of the District Court at Nome, to an intimate friend, one Alexander McKenzie, who had acquired the "jumpers' " titles. The scheme worked successfully for a time, yet not without much turmoil in and about Nome. Applications for appeals were denied by Noyes, and petitions and their accompanying papers were later forwarded to the Circuit Court of Appeals at San Francisco. Judge Morrow passed upon these and allowed appeals in all the cases. In due course demand was made upon McKenzie for the restitution of the property in accordance with the directions of the writs, but McKenzie refused to obey the processes of the court, whereupon two deputy United States marshals proceeded to Nome, enforced the orders-not however without hearing threats of death-broke open vaults that McKenzie would not open and recovered over $200,000 in gold-dust taken from the claims in controversy, and lastly arrested McKenzie and brought him to San Francisco to answer to an order to show cause why he should not be punished for contempt of court. McKenzie applied to the United States Supereme Court for a writ of certiorari but this was denied, and he was later convicted of the charge of contempt and suffered a term of imprisonment. Judge Noyes also was afterward punished by fine for contempt-sentence of imprisonment not having been imposed because this would effect a removal from office. His removal from office followed, however, after an investigation by the Department of Justice under the direction of the President. The full history of the Nome cases has been written up by Judge Morrow himself and appears in a previous number of the CALIFORNIA LAW REVIEW.8

Among the more recent decisions of Judge Morrow may be named the Fireman's Fund Insurance Company v. Globe Navigation Company, in which the questions as to constructive total loss in marine insurance are ably treated. A still more recent case is that entitled Marconi Wireless Telegraphy Company of America v. Kilbourne & Clark Manufacturing Company.10 This last-named case relates to the very technical subject of patents of wireless instruments and devices. The decision bristles with the technical terms of the new and important science of wireless telegraphy and reveals in a marked way the very accurate and painstaking quality of Judge Morrow's mind.

As to the method and viewpoint of Judge Morrow in writing

84 California Law Review, 89.

9 (1916) 236 Fed. 618, 149 C. C. A. 640.

10 (1920) 265 Fed. 644.

a decision, it is to be noted that he proceeds cautiously from point to point-never hastily nor impulsively—and hence it is that his decisions are as a rule buttressed with ample authorities. He is a judge and a gentleman of the old school, leaning rather toward precedent than toward experimentation, and choosing the tried and beaten paths of conservatism rather than those which lead into unexplored fields. It is not meant by this to disparage the work and ideals of many of those who do not regard the precedents of the past with quite as much reverence as judges are usually inclined to entertain. The world needs the bold and daring type of men as well as those whose allegiance is first to those institutions that have been tried by the fires of experience. No doubt this same general bent of mind affords a basis for Judge Morrow's expressed preference in his general reading for the works of such authors as Dickens, Thackeray, Irving, Bret Harte and Wilkie Collins. He is satisfied to let others decide upon the right of later writers, such as Ibsen, George Bernard Shaw, H. G. Wells, and others, to niches in the Hall of Fame; and he would be the last to deny them that right. Here also it is well that all types have their devotees; that in literature as in law there exist checks and balances to steady the impulsive flow.

In recognition of his learning and ability as a jurist, Judge Morrow was selected to write the introduction to "California Jurisprudence," an exhaustive work covering in a series of treatises on all subjects the laws and decisions of California from the time of the foundation of the state. Judge Morrow's article evidences an intimate knowledge of the development of the laws of the state both through legislative enactments and judicial decisions, and is regarded by the profession generally as a masterful and important contribution to our legal literature. Much valuable and authentic historical information was gathered for the article and an idea of its importance and scope may be given by noting that, aside from its historical matter, it traces and analyzes the state's contributions to the law on many vital subjects of present interest.

For his distinguished services in the law, Judge Morrow has been honored by the University of California and by an eastern college with the degree of Doctor of Laws. Besides, three presidents of the United States, Benjamin Harrison, William McKinley and William Howard Taft, have honored him, the first two named in the matter of his judicial appointments, and Mr. Taft in recognition of his services in Red Cross work.

On the completion of his thirty years of service on the Federal

bench, the San Francisco Bar Association tendered a reception to him in the courtroom of the United States Court of Appeals, on which occasion Jermiah F. Sullivan, president of that Association, and Mr. Edward J. McCutchen, of the San Francisco bar and a member of the Association and one of the leaders of the Federal bar, reviewed the work and services of Judge Morrow in an able

manner.

As an American, Judge Morrow has always manifested an exalted patriotism and his activities throughout the period of the great war in the various bond drives and in Red Cross work have been formally recognized by the American National Red Cross Society of which he was one of the incorporators. Valuable social service has been given by him also through the Carnegie Foundation of which he is a trustee. His interest in and devotion to the work of these great philanthropic organizations have kept him abreast of modern events and have made him keenly solicitous for the welfare of men everywhere.

While during the time of the writing of this article Judge Morrow has been indisposed, it is to be hoped that he will soon recover his usual good health and that he may be spared for added service in his many fields of earnest endeavor.

John G. Jury.

T

Liquidated Damages in California

I. SCOPE

HIS paper deals with the law of liquidated damages in California, discussing the basis of the remedy and its elements. In addition to these matters of substantive law the procedural problems affecting liquidated damages will be considered. The sections of the Civil Code now in effect in California have been incorporated into the statutory law of several of the other Western states' and while the law of these states is not considered specifically, much that is contained herein will be applicable to jurisdictions other than California.

II. BASIS OF LIQUIDATED DAMAGES

Originally the only remedy available in case of breach of contract was a legal action for damages, but in many cases such relief was entirely inadequate. Chancery met this situation by evolving the remedy of specific performance; the common-law courts by developing liquidated damages.2

Both specific performance and liquidated damages were, in their origin, exceptional remedies applicable only where the normal remedy of legal damages failed to give adequate relief, and this exceptional nature has been retained by each ever since. But while the lack of an adequate remedy at law is the basis for both specific performance and liquidated damages, various other elements must be present in order to secure relief by either of these remedies.

III. ELEMENTS OF LIQUIDATED DAMAGES

The California law of liquidated damages was codified in 1872 by sections 1670 and 1671 of the Civil Code. They provide:

1 Cf. Cal. Civ. Code, §§ 1670-1671 with Rev. Code Montana (1907) §§ 5054, 5055; Rev. Laws Oklahoma (1910) §§ 975, 976; Comp. Laws North Dakota (1913) §§ 5925, 5926; Comp. Laws South Dakota (1913) Civil Code §§ 1274,

1275.

2 Glock v. Howard (1898) 123 Cal. 1, 7, 55 Pac. 713, 69 Am. St. Rep. 17, 43 L. R. A. 199.

3 Ibid., p. 8 ff.

4 These sections have not been changed since their adoption.

§ 1670. Contract fixing damages, void. Every contract by which the amount of damage to be paid or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.

§ 1671. Exception. The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.

But before considering the elements involved in these sections of the Code we should notice the effect of their adoption in 1872 upon the law of liquidated damages as it then existed.

1. EFFECT OF ADOPTION OF CODE OF 1872

Whether these code sections have modified the law of liquidated damages is a mooted question. It has been answered by the District Court of Appeal on several occasions; but the second and third appellate districts have expressed different views on the subject. The former has referred to the Code sections in one case as modifying and in another case as narrowing the general law of liquidated damages. The latter, on the other hand, has declared that the sections establish no new principles of law in this state.

While these sections may not have materially changed the law in California, yet they did have a definite effect. The law, which had formerly been obscure in several particulars and which had become involved in apparently conflicting adjudications, was classified and settled. In the first place, a uniform wording of the rule was provided in place of the varying phraseology used by the earlier cases. Secondly, the codification removed the conflict which had previously existed as to the importance to be given the particular words used by the parties in their contract. Thirdly, greater emphasis was placed upon the facts of each case instead of upon the mere form of the contract. Finally, a presumption was raised which had not previously existed that contracts in which damages are estimated in advance are void.

These results of the codification will be discussed in detail.

5 Los Angeles Olive Growers' Ass'n. v. Pacific S. Co. (1914) 24 Cal. App. 95, 99, 140 Pac. 295; Weinreich Estate Co. v. A. J. Johnson Co. (1915) 28 Cal. App. 144, 150, 151 Pac. 667; Anaheim Citrus Fruit Association v. Yeoman (1921) 34 Cal. App. 798, 799, 197 Pac. 959. Petition to have case heard and determined in Supreme Court denied May 16, 1921.

6 Los Angeles Olive Growers' Ass'n. v. Pacific S. Co., supra, n. 5.

7 Anaheim Citrus Fruit Association v. Yeoman, supra, n. 5.

8 Weinreich Estate Co. v. A. J. Johnston Co., supra, n. 5.