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see what he would do? A. Yes, sir. Q. You no greater duty was cast upon defendant in knew he was drunk? A. I knew he was dealing with plaintiff drunk than with plaindrunk; yes, sir. Q. You wanted to see if tiff sober. In discussing the effect of plainhe would fall down or not? A. Yes, sir. tiff's drunkenness as contributory negligence, Q. You stood him on his feet to see whether the court, in Wheeler v. Grand Trunk Ry. he could stand or fall down? A. No, sir; Co. of Canada, 50 Atl. 103, 70 N. H. 607, 51 I did not. I picked him up to take him L. R. A. 955, correctly stated the law as foldownstairs. Q. The first time, though, you lows: "For an injury resulting from prior wanted to see whether he could stand up or or concurrent negligence contributed he could not? A. Yes, sir; I stood him up; yes, sir.” not recover; but, if the defendants with There was much testimony as to the condi knowledge of the plaintiff's danger in the pertion of intoxication in which plaintiff was formance of the duty owed by them could suffering at the time and as to his treatment have prevented the injury, they were bound by the captain at the time of the injury. We to do so, and their breach of duty would be are satisfied that there was sufficient evi the legal cause of the injury, unless at the dence to justify the fourth, fifth, sixth, time of the injury the plaintiff by the exerseventh, and eighth findings. Of the sixth cise of due care could have avoided it. If finding it should be remarked that there is

the plaintiff could not have prevented the no direct evidence that the captain knew that injury to himself and the defendants could plaintiff had been drinking after he came

by the care the situation required of them aboard the steamer, although there is evi

they are liable if they did not, although the dence that the purser knew it, as is conceded

plaintiff's inability resulted from his prior by appellant. The fact is not material in

negligence or intoxication. 'If due care on view of the findings as to the drunken condi

the part of either at the time of the injury tion of plaintiff.

would prevent it, the antecedent negligence The seventh finding being a finding savor

of one or both parties is immaterial, except ing of both fact and conclusions of law raises

it may be as one of the circumstances by the question most seriously urged by appel

which the requisite 'measure of care is to lant, and will next receive attention. Ap

be determined. In such a case the law deals pellant's position is thus stated by its learned

with their behavior in the situation in which counsel: "It is our contention that the serr

it finds them at the time the mischief is done, ants of the defendant were called upon to

regardless of their prior misconduct. The give the plaintiff, who was in a state of in

latter

is the cause of the danger, toxication, no other or further care than they

the former is the cause of the injury. (Citwould have to, when called upon, under the

ing numerous cases.) * * * The defendlaw, to give him sober.” “The cases,” it is

ants' answer is that the plaintiff's incapacity further contended, "all support the follow

was produced by his voluntary intoxication. ing rule, 'Intoxication does not excuse the

But, if it were established that the plaintiff's omission to use the same care and prudence incapacity and irresponsibility were known which are required of a sober man under the

to the defendants, the cause of his condition same circumstances to protect himself against

is entirely immaterial.'” The true principle injury'"-citing Fisher v. W. Va. & P. R.

is enunciated by our Supreme Court: He Co., 42 W. Va. 183, 24 S. E. 570, 33 L. R. A.

who knows of a danger and can avoid it as 69; Price v. Pha. W. & R. R. Co., 84 Md. 506,

against one who does not in fact know the 36 Atl. 263, 36 L. R. A. 213. In further sup

danger, or as against one within whose power port of its contention appellant cites Milli

does not lie the ability to avoid the accident. man v. N. Y. C. & H. R. R. Co., 66 N. Y. 643;

is responsible for the injury. Esrey v. S. P. Beach on Contributory Negligence, 8 151; 1

Co., 103 Cal. 511, 37 Pac. 500; Lee v. Market Thompson on Negligence, p. 450; Shearman &

St. Ry. Co., 135 Cal. 293, 67 Pac. 765: HarRedfield on Negligence, $ 23. There was

rington y. Los Angeles Ry. Co., 140 Cal. 511, evidence that plaintiff was lying near the 74 Pac. 15, 63 L. R. A. 238, 98 Am. St. Rep. cabin door, and so that, when being opened, 83. Or, as is otherwise stated: "One having it would strike his head, and that in lying

an opportunity by the exercise of proper care on the floor plaintiff was violating a rule of to avoid injuring another must do so, notthe vessel. We cannot see that these addi

withstanding the latter has placed himself tional facts are material in determining de in a situation of danger by his own neglifendant's liability under the circumstances gence." Lee v. Market St. Ry. Co., supra. disclosed. Conceding that the captain was Appellant calls attention in his brief to discharging a duty in removing plaintiff from sereral exceptions taken in the course of the a place of danger which plaintiff occupied trial. We find no prejudicial error in any of in violation of a rule of the vessel, still the the rulings of the court. Exception numcaptain had no right, knowing as he did the bered 19 is the only one noticed in appelhelpless condition of plaintiff, to remove him lant's brief, and calls only for passing (omin such a manner as he must have known ment. At the conclusion of the evidence would in all probability, and in fact did, counsel for both parties stated that they cause the injury. We cannot subscribe to would submit the case without argument. the doctrine contended for by appellant, that The trial judge then stated what facts he

OF

regarded as proven in the case, and called | September 19, 1903, the business conducted for authorities. "upon the duty which the under the name of the Northup Piano llouse officers of the boat owe to a man that is was incorporated. December 29, 1903, the drunk." In view of the statement made by business of the Northup Piano IIouse, inthe judge, as to the facts, counsel for plain- cluding all accounts, leases, books, fixtures, tiff asked and obtained leave to amend the etc., by an instrument in writing, was transcomplaint to conform thereto. Defendant ferred from the Altadena Syndicate to the objected to leave being granted and took ex- | newly organized Northup Piano IIouse, a ception to the ruling of the court. Under | corporation. The latter corporation, as a section 473, Code Civ. Proc., the power to

consideration for the transfer, gave the Alallow amendments in the interest of justice tadena Syndicate 3,000 shares of its capital is within the discretion of the trial court, stock, and agreed to pay its debts, including and its action will not be disturbed, except the promissory note in suit liere of $2,000. where an abuse of discretion is shown. Lee The Northup Piano IIouse corporation has v. Murphy, 119 Cal. 301, 51 Pac. 519, 93.). paid all the debts of the Altadena Syndicate

There are no facts disclosed in the present thus assumed except this note, and it has case of which an abuse of discretion may be paid part of that. The Northup Piano IIouse predicated.

business was the principal asset of the AltaThe judgment and order are affirmed.

dena Syndicate.

The question for decision is whether the We concur: BURNETT, J.; HART, J.

appellant Northup Piano llouse, a corporation, is liable to respondent on this contract; respondent claiming that it was made for

his benefit. To recapitulate the terms of (6 Cal. App. 101)

the contract, appellant corporation Northup NORTHUP V. ALTADENA MINING & IN

Piano House accepted a transfer from the VESTMENT SYNDICATE et al.

Altadena Syndicate of the Northup Piano (Civ. 344.)

House business, and as a part of the con(Court of Appeal, First District, California.

sideration therefor agreed to pay the debts July 10, 1907.)

of the latter, including respondent's note. CONTRACTS — AGREEMEXT FOR BENEFIT THIRD PERSOY-RIGIT TO SUE.

This contract was made for the benefit of Where a syndicate executed a note to respondent, and he has a right of action plaintiff for part of the price of a business, founded on it. See section 1.539, Civ. Code; which the syndicate thereafter transferred to

McLaren v. Hutchinson, 22 Cal. 190, 83 Am. a corporation in return for stock and the corporation's agreement to pay the syndicate's

Dec, 29; Sacramento Lumber Co. v. Wagner, debts, including the note, plaintiff was entitled 67 Cal. 295, 7 Pac. 705; Malone v. Cresent M. to sue the corporation on its agreement to pay & T. Co., 77 Cal. 44, 18 Pac. 838; Tevis v. the note, under Civ, Code. $ 1.359. providing

Savage, 130 Cal. 411, 62 Pac. 611; Washer v. that a contract made expressly for the benefit of a third person may be enforced by him at Independent M. & D. Co., 112 Cal. 702, 76 any time before the parties rescind it.

Pac. 634. In the case of McLaren v. IIutch(Ed. Note.For cases in point, see Cent. Dig. inson, 18 Cal. 180, Hutchinson purchased vol. 11, Contracts, $ 798.]

land from Beach, and as a part of the conAppeal from Superior Court, Santa Clara sideration therefor agreed to pay the debts County; A. L. Rhodes, Judge.

due to McLaren from Beach, It was held Action by E. J. Northup against the Alta that McLaren, the plaintiff, was not a party dena Mining & Investment Syndicate and an to the agreement, and the action could not other. From a judgment for plaintiff against be maintained. Speaking of this case, the both defendants, and from an order denying Supreme Court, in Lewis v. Covillaud, 21 Cal. their motion for a new trial, they appeal. 189, said: “Since the case of McLaren v. Affirmed.

Hutchinson has been decided the matter has

frequently been called to our attention, and A. A. Caldwell, for appellants. W. A.

we are by no means satisfied with the rule Beasly and H, Ray Fry, for respondent.

laid down. The agreement was founded up

on sufficient consideration, and the modern KERRIGAN, J. This is an action upon a

doctrine in such cases seems to be in favor promissory note. Plaintiff had judgment of the maintenance of the action." In the against both defendants, and from this judg case of Sacramento Lumber Co. v. Wagner, ment and an order denying their motion for supra, it is said: “We are satisfied that an a new trial defendants appeal.

action like that described in McLaren v. In June, 1903, plaintiff, who for several Hutchinson may be maintained." years prior to that time had been a piano

This disposes of the principal point in the and music dealer in the city of San Jose,

Other matter's discussed in the brief's conducting business under the name of the do not merit attention. "Northup Piano House,” sold that business It follows that the judgment and order itp)to the Altadena Mining & Investment Syndi pealed from should be atfirmed; and it is so cate (hereinafter called the Altalenat Syndi Ordered. cate), and took from it in consideration therefor the note in suit, payable August 27, 1994. We concur: COOPER, P, J.; IIALL, J.

mitted to them to make any agreclient among themselves, or with others, by which their public action is to be, or may be, restrained or embarrassed, or its freedom in anywise affected or impaired. The public for whom they act have the right to their best judgment after free and full discussion und consultation among themselves of, and upon, the public matters intrusted to them, in the session provided for hy the statute. This cannot be when the members, by pre-engagement are under contract to pursue a certain line of argument or action, whether the same be conducive to the public good or not.

It is one of the oldest rules of the common law that contracts contrary to sound morals, or against public policy, will not be enforced by courts of justice, and the court will not enter on the inquiry, whether such contract would, or would not, in a given case, be injurious in its consequences if enforced. It being against the public interest to enforce it, the law refuses to recognize its claim to validity.” The party who brings an action for damages for the violation of such an agreement is in no better position than one who should sue for specific performance. In either case the law leaves the parties where it finds them.

The judgment is affirmed.

We concur: CIIIPMAX, P. J.; IIART, J.

(6 Cal. App. 111)

McGINN V. WILLEY et al. (Cir. 280.) (Court of Appeal, Third District, California.

July 10. 1907.) SCHOOLS AND SCHOOL DISTRICTS-CONTRACT WITH TEACHER-VALIDITY.

Where school trustees in their individual capacity agree with one to employ him as a teacher and afterwards in regular session as a board repudiate or disregard the agreement, such person is without redress, since the agreement was void, as against public policy.

Appeal from Superior Court, Tuolumne County; G. W. Nicol, Judge.

Action by Annie McGinn against Charles Willey and another. From a judgment of dismissal usion failure to amend the complaint after order sustaining a demurrer, plaintiff appeals. Afirmed.

J. F. Rooney, for appellant. E. W. IIolland, for respondeuts.

BURNETT, J. The action is for damages for the violation by defendants of their agreement to employ plaintiff as teacher in the primary dep:rtment of the public school of the Poverty Hill school district, Tuolumne county. The appeal is from a judgment of dismissal upon failure to amend the complaint after order sustaining a demurrer.

The complaint alleges that the said defendants, as trustees of the said Poverty Hill school district, on the 1st day of July, 1905, and at other times prior thereto, promised and agreed to employ this plaintiff to teach the pupils who might attend the primary department of the public school of the said Poverty IIill school district for the ensuing term, commencing on or about the 11th day of September. 1990), and ending on day of June, 1906, at the salary of $60 per month." Then follow the averments that plaintiff agreed with said defendants to teach said school upon said terms, and that she made her application on said date to the board of trustees to be appointed to said position, and "that the said defendants on the said 1st day of July, 1905, without any cause or justification, disregarded and violated their said agreement made with this plaintiff as a foresaid, and refused to appoint this plaintiff as the teacher to teach said department, and the said defendants then and there appointed Laura Hartvig to teach said primary departmeụt." It is clear that the court below properly sustained the demurrer to the complaint. The agreement upon which plaintiff relied is against public policy, and void. If the trustees of a public school district in their individual capacity agree with a person to employ him as teacher and afterWirds in regular session as a board of trustees they repudiate or disregard their agreement and en ploy some one else, the former person is without redress. The matter is well stated in JcCortle v. Bates, 29 Ohio St. 419, 23 Am. Rep. 7:58: "Clothed with such powers, and charged with such duties and such responsibilities, it will not be per

(6 Cal. App. 83) CODONI . DOXATI. (Civ. 3.32.) (Court of Appeal, Second District, California.

July 8, 1907.) 1. IIt'SBAND AND WIFE-ALIENATION OF AFFECTIONS-DESERTIOX.

Desertion of a wife by her husband is a necessary element of an action by her against another for alienation of her husband's affections. 2. SAME-DESERTIOX-EVIDENCE.

That plaintiff's husband went to an ad-. joining county without her knowledge, where he remained for seven days, was insufficient of itself to establish desertion sufficient to entitle her to maintain an action for alienation of affections. 3. DOMICILE-SELECTION OF HOME-RIGHT OF FI'SBAXD.

It is the right of a husband to select the home and the duty of the wife to go to him at his request, when he furnishes the means for that purpose.

[Ed. Vote.-For cases in point, see Cent. Dig. vol. 17, Domicile, $ 25.]

Appeal from Superior Court, San Luis Obispo County; E. P. Unangst, Judge.

Action by Rufina Cocioni against V. L. Donati. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Reversed and remanded.

A. E. Campbell and W. II. Spencer, for appellant. Louis Lamy and Wm. Mallaglı, for respondent.

I'ER CURIAJ. An action for damages claimed by reason of defendant having alien

ated from plaintiff the affections of her hus wife to go to Salinas and live with him. band,

We are satisfied that the facts of this case The principal matter relied upon by appel- | bring it within the rule announced by Mr. lant relates to the sufficiency of the evidence Justice JcFarland in the case of Driscoll v. to support the findings. An examination of Cable Railway Company, 97 Cal. 5.33, 32 Pac. the record indicates that there is no testi 591, 33 Am. St. Rep. 203: "When a jury mony in support of the implied finding that catches at a mere semblance or pretense oť the affections of plaintiff's husband were ac evidence for the purpose of somewhat equaltually alienated. There is in the record that izing financial conditions by taking money which may be said to be sufficient to estab from one party and giving it to the other lish an attempt upon the part of defendant | without legal cause, the trial judge should, to create dissatisfaction upon the part of the without hesitation, set the verdict aside; husband, and had such effort been followed and, in the event of his not doing so, this with desertion, or with proof of facts tend court will grant a new trial.” In our opining to show that the affections of the hus ion there was no evidence of desertion, withband had been actually alienated, we would out which the verdict was unwarranted. not be inclined to disturb the verdict. It The mere fact that the husband without his appears, however, from the record that the wife's knowledge had gone to an adjoining relations between plaintiff and her husband county where he had remained for a period were pleasant up until his departure from of seven days is not sufficient to establish this country on a visit to his native land; desertion within the meaning of the statute. that while the husband was on such visit de It was his right to select the home, and it fendant wrote a letter to him which might was the duty of the wife to have gone to well have bad the effect to induce a separa him when he sent her the money with which tion, but notwithstanding this letter, the to come. The verilict in this case seems to husband returned to his wife, brought back have been rendered upon what, at most, is "a with him presents, resumed marital rela mere semblance of evidence." The court tions, and on the 26th day of September, in should have granted a new trial. company with his wife, attended a picnic The judgment and order are reversed, and hear their home. After their return from cause remanded for a new trial. the picnic, the husband accepted an invitation from defendant to attend a dinner at

(6 Cal. App. 80) the house of defendant, to which function

STOWER v. KAMPHEFXER. (Civ. 350.) the plaintiff was not an invited guest, for

(Court of Appeal, Second District, California. the admitted reason that she and the wife of

July 8, 1907.) defendant were not on friendly terms.

The

1. PARTNERSHIP – DISSOLUTION CHARAChusband, however, returned to his home on TEP or ASSETS-FINDINGS. the day following, spent the night of the W'hore, in a proceeding for the dissolution 27th of September with his wife, and every

of a partnership, the referee's report found

that the assets at the date of the report conthing was pleasant and agreeable between sisted of "unsold personal property, wagon them, on which occasion he opened his valise scales, barn, two tanks, one coalhouse, one oiland distributed the presents to his wife and

house," the report sufficiently found that the

oilhouse, coalhouse, and barn were personal daughter. On the 28th of September the

property. husband went to Salinas, from which point

2. SAME-INTERESTS IN REALTY. he wrote two letters to his wife, and also Where a referee's report in proceedings telephoned her. On the 31st of October he for the dissolution of a firm purported to cover inclosed in one of the letters written the sum

all its assets. but did not include any interest

in land on which certain buildings belonging to of $5 with which to pay the railroad fare

the firm were located, it was immaterial that of the plaintiff and her child to Salinas the court failed to find what interest, if any, Neither of these letters was answered, nor

the firm had in the lands. did the plaintiff go to her husband. She

3. APPEAL-REVIEW-PRESUMPTIONS.

A store building occupied by a firm was used the money for another purpose, and her destroyed by fire in June, 1903, at which time reason for not going to him upon his de the walls of the building belonged to the firm. mand was that she thought he might be A referee's report in dissolution proceedings playing her a trick, and for the reason that

failed to include the walls of the building as a

part of the assets, but showed that a valuation he had published a card in the newspaper, had been placed thereon, and that defendant after this suit was brought, in which he stat. had been charged with "building" at the amount ed that he had not abandoned his wife and

of such valuation. Held sufficient to justify a

There is not a did not intend so to do.

presumption on appeal that the walls had been

legally disposed of, and that the proceeds had particle of testimony in the record from been applied in reduction of liabilities. which it may be inferred that the husband 4. PARTNERSHIP – DISSOLUTION — ACCOUNTever intended to abandon his wife, or that

ING-FINDINGS—DESCRIPTION OF REAL Es

TATE. he had lost affection for her.

In a proceeding for the dissolution of a This action was brought on the 5th day of firm, findings as to the assets of the firm were October, within a week after the husband

not objectionable for failure to specifically dewent to Salinas, and the record shows that

scribe certain real estate owned by it.

5. SAME-PERSONAL DECREE. after this action was brought the husband

Yo personal decree should be rendered in made all reasonable efforts to induce the partnership dissolution proceedings against in

dividual partners until the assets have been converted into money.

Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Action by A. C. Stower against Rosa Kamphefner. From a judgment for plaintiff, defendant appeals. Affirmed.

John E. Daly, A. D. Laughlin and R. B. Bidwell, for appellant. E. A. Miller and Bowen & Miller, for respondent.

charged to appellant as "building” are identical.

It is further objected that the findings do not describe the lot in Glendora, and hence there was no finding to support the description of this lot as set forth in the interlocutory decree. We can see no reason for giving a particular description of the lot any more than to particularly describe other of the assets belonging to the copartnership; nor does appellant cite us to any authority requiring such description.

There is no ground for the contention that the findings are inconsistent. The "sundry unpaid accounts, amounting to $392.80," added to the balance due A. C. Stower," separately found, constitute the "present liabilities" of $1.610.26. “No personal decree is to be rendered against individual partners until the assets have been converted into money." Clark v. Hewitt, 136 Cal. 77, 68 Pac. 303; Rosenstiel v. Gray, 112 Ill. 282. It sufficiently appears there was a full and complete accounting of the copartnership affairs before the rendition of the final decree, and that all the partnership assets had been marshaled and converted into money before the decree was rendered.

The judgment is affirmed.

We concur: ALLEN, P. J.; TAGGART, J.

SHAW, J. Action for accounting and dissolution of copartnership. The appeal is from the judgment. The issues were referred to a referee, and upon the filing of his report the court adopted the same as its finding, and rendered an interlocutory decree dissolving the partnership and ordered the referee to sell the assets then belonging to the firm and pay the proceeds received from the sale thereof to the creditors. The referee, after making the sale and disbursement of the proceeds in accordance with the order, so reported to the court, which thereupon rendered its final decree, from which this appeal is taken.

Appellant contends for a reversal of the judgment upon the ground that there is no finding as to whether or not certain buildings belonging to the partnership constituted ceal or personal property. The buildings in question consisted of an oilhouse, coalhouse, barn, and walls of a store building. The objection as to all of said buildings, other than the walls of the store building, is fully answered by that part of the report wherein it is found: “The assets at this date are

* unsold personal property, wagon scales, barn, two tanks, one coalhouse, one oilhouse."

It is further contended the court failed to find what interest, if any, the partnership had in the lands upon which such buildings were located and in whom the title in said lands veste l. The real estate upon which the buildings were erected was not included in the report of the referee, which purports to cover all the assets of the firm, and, as the assets did not include the land, it was immaterial in whom the title vested, inasmuch as it was not a partnership asset. The store building was destroyed by fire on July 16, 1903. The report of the referee was filed November 22, 1904. Among other assets, it was found that the firm at the time of the fire owned "walls of store building." These walls were not included in the assets at the time of making the report, and we must, therefore, conclude that, like other assets of the copartnership, they had been legally disposed of and the proceeds arising from such disposition applied in reduction of the liabili. ties. The valuation placed upon these walls is $100. Appellant is charged with “building” in the sum of $400, and it is apparent that the "walls of store building" reported among the assets after the fire and thereafter

(6 Cal. App. 699 DENNIS V. CROCKER-HUFFMAN LANI)

& WATER CO. (Civ. 285.) (Court of Appeal, Third District, California.

June 26, 1907.) 1. WATERS AND WATER COURSES-IRRIGATION -OVERFLOW-ACTION FOR INJURIES-COMPLAINT-SUFFICIENCY.

A complaint alleging that defendant owned and operated a canal through which water was conducted for irrigation purposes, and, in connection therewith, at a place near plaintiff's land, a headgate, that the water washed out the headgate and portions of the bank and overflowed plaintiff's land, and that the dainage thus caused was due to defendant's gross and willful negligence in failing to properly construct the canal and headgate, and in failing to properly maintain the headgate and to control the water in the canal, was sufficiently specific as to the manner in which defendant was guilty of the negligence charged. 2. APPEAL-REVIEW-HAEMLESS ERROR--RULING ON DEMURRER.

Error, if any, in overruling a demurrer to a complaint on the ground of uncertainty, was cured where the answer denied all the material averments, and issues involving all the important questions which could arise fairly made and squarely presented.

[Ed. Note.--For cases in point. see Cent. Dig. vol. 3, Appeal and Error, $ 4098.) 3. SAME-DISCRETION OF COURT-ALLOWANCE AND PERFECTING OF APPEAL.

Code Civ. Proc. $ 661, provides that where a motion for a new trial is made on the minutes of the court, the judgment roll, and a statement to be subsequently prepared, with a copy of the order, shall constitute the record on appeal, such statement to be proposed within 10 days of the entry of the order, or such further time as may be allowed, and to be seryed on the adverse party. Held, that where au

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