provision for them to turn over to the new commission their records, plats, papers, or furniture of any kind; no legislative announcement that they shall cease to exist. Under any known rule of construction of statutes, the conclusion is irresistible that the legislature did not intend to merge the local appraisers into the land commission, or in any manner interfere with their functions or powers. It has not said so in terms, nor by any reasonable implication; but it does plainly appear to us that the intention of the legislature was to unify these three state commissions enumerated, under the name of "the board of state land commissioners." The difficulty in construing this act arises from the fact that many of the sections which were evidently intended to apply only to granted lands, and cannot logically apply to tide lands, are not distinguished in their application by the act. Thus, it seems plain to us that section 28 (even if it be conceded that the legislature has power to nullify that which has been done with the sanction of law) has no application to tide lands, but that the appraisement mentioned refers to school lands. This plainly appears from the proviso to the section, as it is evidently an appraisement of the county commissioners which was referred to, and many of the preceding sections evidently have no reference to tide lands. Without specially reviewing each section, we are satisfied that the act of March 26, 1890, providing for the appointment of a board of appraisers of tide lands, and specifying the duties, has not been repealed; and, as it is conceded that the relator would be entitled to the relief prayed for if such act is sus-tained, the judgment is reversed, and the cause remanded to the lower court, with instructions to issue the peremptory writ of mandamus prayed for.

ANDERS, HOYT, STILES, and SCOTT, JJ., concur.

(6 Wash. 315)

SOULE v. CITY OF SEATTLE. (Supreme Court of Washington. June 27, 1893.)

DEMURRER-ADMISSION OF FACTS.

In considering a case. facts alleged in a pleading, a demurrer to which is sustained, are properly assumed to be true.

On rehearing. Denied.

For former report, see 33 Pac. Rep. 384.

STILES, J. Counsel for respondent in this case urges, upon a petition for rehear ing, that this court erred in assuming as a fact, in its opinion heretofore filed, that, at the time of making the contract for the grading of South Twelfth street, the city of Seattle had reached its constitutional limit of indebtedness. The facts are these: The answer of the city set up the fact that the constitutional limit had been reached as

one of its defenses, and to this defense the plaintiff interposed a demurrer, which was sustained by the court; but upon the trial, notwithstanding this defense had been shut out, counsel for the city offered to prove the fact. Errors were assigned upon the action of the court in sustaining the demurrer, and in shutting out the proof. In disposing of the case on appeal, this court found the action of the court below to be error, and, had that fact been the only point in the case, it would have gone back for retrial. But the main point upon which the case was decided was that the respondent I d mistaken his remedy by reason of the fact that his contract with the city was of such a character that it would not justify the charge of negligence against the city until it had been fully moved to levy and collect a local assessment to pay for the work. This ground alone, in our judgment, authorized the dismissal of the case. The other matters discussed were in the case, but were not absolutely necessary to its decision upon the merits. It cannot be questioned that in argument we were justified in assuming the fact of the city's having reached its debt limit to be true, since the demurrer of the plaintiff to the answer on that subject was an admission of the truth of the fact as alleged. We are entirely satisfied with the disposal of the other points. The petition for rehearing is denied.

HOYT, SCOTT, and ANDERS, JJ., concur.

(6 Wash, 280) LADOUCEUR v. NORTHERN PAC. R. CO. (Supreme Court of Washington. May 24, 1893.) Dissenting opinion. For majority opinion, see 33 Pac. Rep. 556.

STILES, J., (dissenting.) It is true that upon the retrial of this case the plaintiff himself said he looked for a train, and did not see any, when he was some 60 feet away from the track; but it is also true that, both from his own evidence and from testimony which was uncontradicted and stands unchallenged upon argument of the case, it clearly appeared that, having nothing whatever else to do or think of, if he had turned his head to the southward for one instant after he got within 20 feet of the track he could have seen the train during all the time after it passed a point over 400 feet from him; yet during all this time he kept his face to the north, where he could plainly see that no danger threatened, and let his horses drag along at a pace, as he says, not exceeding a mile an hour. If this conduct did not contribute to his injury, and directly cause it, I am unable to imagine a case where the rules of contributory negligence can apply. The verdict of the jury was not only against the clear preponder

ance of the evidence, but it ignored both the evidence and the charge of the court, and ought not to be sustained.

HOYT, J. I concur in the above.

(6 Wash. 227)

SEARS et al. v. SEATTLE CONSOL. ST. RY. CO.

(Supreme Court of Washington. May 26,

1893.)

Dissenting opinion. For majority opinion, see 33 Pac. Rep. 389.

In

STILES, J., (dissenting.) I desire simply to call attention to the instructions requested by the defendant, Nos. 6 and 7. The court in this case gave a series of instructions, requested by the plaintiff, which, from beginning to end, were argumentative, and wholly devoted to the suggestion of facts necessary to be found to justify the jury in finding for the plaintiffs, and failed to state any ground which would be sufficient to excuse the defendant from the charge of negligence. general terms, the jury were told that the acts of the defendant must have been negligent in order to entitle the plaintiffs to recover, but nowhere was there any definition of negligence. Thus, the jury were left wholly to the exercise of their judgment as to the law of negligence, and were told in plain terms that, if certain facts claimed by the plaintiffs to have been proven were found by them, they should find for the plaintiffs. Over against this, the defendant, in order to have its case presented upon an equal footing before the jury, asked the following instructions: "(6) If the jury believe from the evidence that the motorman was properly operating his car, and sounded his gong in sufficient time to lead a reasonably prudent person to believe that the driver of the wagon would leave the track, and that this gong or bell was in good order, and of the kind usually in use on street cars to give warning to persons on the track, and the motorman believed that the driver of the wagon heard the gong, and believed, or had good reason to believe, that the driver of the wagon would leave the track, and that, as soon as the motorman ascertained that the driver of the wagon would not leave the track, he applied the brakes, and did all that could be done to stop the car, then the defendant is not guilty of negligence. (7) The operators of street cars have a right to presume that persons driving on the track will use ordinary care and precaution to prevent accidents by driving off the track in order to let cars pass them, especially when the ordinary warning signals are given; and in this case, if you believe from the evidence that such signals were given in sufficient time to lead an ordinarily prudent person to believe that such warning was heard by

the driver of the wagon, and that the driver, if he had heard the warning, had sufficient time to leave the track in order to prevent a collision, then the defendant is not guilty of negligence, and your verdict should be for the defendant." In my judgment these two charges should have been given. The plan of substantially narrating all the facts in the case to the jury, and telling them, if they find those facts to be true, they should find one way or the other, may or may not be a proper method of charging the jury upon the law. But the court, in this case, having adopted that plan in giving the plaintiffs' side of the case, should have followed it up by putting the defendant's side in the same position before the jury. The substance of the requests as above quoted was that the operator of a street car has a right to presume that the driver of a wagon will, upon being sufficiently warned, leave the track clear for the car to pass,-a right the existence of which cannot be doubted, unless street-car operators are to be held as insurers of their passengers against any possibility of accident by collision, a position which the court has taken particular pains to show was not taken by the court below, as it could not be. Taking the charge as given as a whole, and it amounted to nothing but a presentation of the plaintiffs' case, and all the facts thereof in detail, with a few disconnected general statements of law requested by the defendant, and was in no sense a fair or impartial charge to a jury. For these reasons the judgment should have been reversed.

1. A demand on an abutting property owner for payment of an assessment may be male by a contractor who has assigned the contract as security for a loan, since the title is in the contractor.

2. Where the person who makes the demand states in his return that he is the manager of the contractor, and as such manager made the demand, this prima facie evidence of his character is not overcome by his testimony that he was the agent of the pledgee of the contract, as this is not inconsistent with his being the agent, also, of the contractor.

3. That a defect or nonjoinder of parties plaintiff may be relied on, objection should be made in the answer.

Department 1. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge.

Action by Foley against Bullard and others on a street assessment. Judgment for plaintiff. Defendants appeal. Affirmed.

Geo. D. Collins, for appellants. J. C. Bates, for respondent.

HARRISON, J. Action to foreclose the lien of a street assessment. The contract was awarded to Warren & Malley, who on December 26, 1889, assigned the same to Foley & Keenan, by whom the work was performed. The warrant and assessment were issued to Warren & Malley December 23, 1890, and delivered to Foley & Keenan. Foley & Keenan had assigned the contract to Lang & Ruggles, June 2, 1890, as security for a loan of money then obtained from them, with which to complete the contract. The demand was made on the 24th of December, 1890, by John T. Foley, the son of the plaintiff, who, in his return, states that he "is the manager for Foley & Keenan, assigns for original contractors named in the assessment and warrant, and that with and by virtue thereof, as such manager, he went upon the lot of land described in the complaint, and while thereon publicly demanded payment" of the amount assessed to said lot. At the trial he testified that at the time of the demand he had the assessment, warrant, and diagram with him, and had received them from Lang & Ruggles for that purpose.

It is objected by the appellant that, as at the time of the demand the contract had been assigned to Lang & Ruggles, there was no authority in Foley & Keenan to make the demand, and that the demand by their agent was insufficient to preserve the lien. Section 10 of the act under which the improvement was made (St. 1885, p. 155) provides that the demand may be made "by the contractor or his assigns, or some person in his or their behalf." In Gaffney v. Gough, 36 Cal. 104, an undivided half of the contract had been assigned by the contractor, and the demand was made by the contractor alone. It was objected that he could not make a legal demand, because he only owned one-half of the contract, and did not appear to have been the agent to collect the other half, but the demand was held sufficient. The objection of the appellants herein is not directed so much to the "nature and character of the demand," which the statute requires to be stated in the return, as it is to the character of the person who made the demand; the point urged being that it appears from the return that the demand was made by the agent of Foley & Keenan, whereas the person making the demand was in fact the agent of Lang & Ruggles. think, however, that it sufficiently appears that the demand was made "in behalf of" Foley & Keenan, even though the person making the demand was at the time the agent of Lang & Ruggles. Foley & Keenan were the assignees of the original contractors, and, although they had assigned the assessment to Lang & Ruggles as security for their indebtedness, the title to the assessment still remained in them. Civil Code, § 2888. John T. Foley was their agent, and in that capacity made a proper demand for

We

the amount of the assessment. He had the assessment, warrant, and diagram with him at the time he made the demand, having received them from Lang & Ruggles for that purpose, and in his return states that he was at the time of making the demand the manager of Foley & Keenan, and made the demand as such manager. This affidavit was prima facie evidence of his character, (Whiting v. Townsend, 57 Cal. 515,) and there is no evidence in the record that he was not their manager. His testimony at the trial that he was the agent of Lang & Ruggles is not inconsistent with the fact that he was at the same time the agent of Foley & Keenan.

The objection that the plaintiff has no title to the assessment, for the reason that it is derived merely through an assignment to him by Lang & Ruggles, who held it only as security, is without merit. As above stated, the title remained in Foley & Keenan notwithstanding the assignment, and Lang & Ruggles were merely the pledgees thereof, (Civil Code, § 2987,) with a lien dependent upon possession, and upon the reassignment to the plaintiff this lien was terminated, (Civil Code, § 2913.) As the assignment from Lang & Ruggles vested the plaintiff with no new right to the assessment, it may disregarded. He was one of the assignees of the original contractors, and by virtue thereof properly made a party plaintiff herein. If the defendants would rely upon any defect or nonjoinder of parties plaintiff, this objection should have been presented in their answer. The judgment and order denying a new trial are affirmed.

1. Under a statute making the passage of a resolution of intention the first step to be tak en by a town or city in obtaining jurisdiction to let a contract for the improvement of a street, to be paid for by assessment on abutting property, such resolution giving jurisdiction to make only those improvements described therein, a resolution of intention to order a street macadamized gives no authority to include in the contract a provision for rock gutter ways.

2. Under Act March 18, 1885, § 11, providing that no assessment for street improvements shall be held invalid, except on appeal to the city council, for defects therein, as in proceedings prior thereto, where notice of intention to order the work to be done for which the assessment is made has been published, one is not obliged to appeal from an assessment including the cost of work not included in the resolution.

3. An assessment including the cost of work not embraced in a resolution of intention is wholly void.

Department 2. Appeal from superior court, Marin county; F. M. Angellotti, Judge.

Action by Partridge and others against Lucas and others on a street assessment. A demurrer to the complaint was sustained, and plaintiffs appeal. Affirmed.

D. H. Whittemore, for appellants. Sidney V. Smith, for respondents.

DE HAVEN, J. This is an action to recover upon a street assessment. In the superior court a demurrer to the complaint was sustained, and judgment thereupon rendered for defendants. Plaintiffs appeal.

** * *

1. It is well settled that "the passage and publication of the resolution of intention are acts by which the board acquires jurisdiction, and by those acts they acquire jurisdiction to make only such improvements as they described in the resolution; and they cannot, therefore, lawfully cause work other than that which is described to be performed." Beaudry v. Valdez, 32 Cal. 276; Himmelmann v. Satterlee, 50 Cal. 68. The complaint alleges that the board of trustees of the town of San Rafael passed a resolution declaring it to be the intention of such board to order "that B street be macadamized," and thereafter, assuming to act under such resolution of intention, awarded to plaintiffs a contract to macadamize the street mentioned, and also to construct therein rock gutter ways, "formed by laying flat stones even on their upper surfaces, and not more than nine inches square; the stone to be hand laid * * * and securely spawled where openings between the joists occur;" the interstices to be filled "with clean, hard rock, finely broken and screened." It is plain that the work described in the resolution of intention did not include the construction of rock gutter ways in the street to be macadamized; and therefore the board of trustees did not, under the rule above stated, acquire jurisdiction to contract for such gutter ways, and the contract as to these is void. The word "macadamize" has a fixed and definite meaning, and refers, not only to the kind of material to be used in covering a street or road, but also the manner in which it is to be laid. It means to cover a street or road "by the process introduced by Macadam, which consists of the use of small stones of a uniform size consolidated and leveled by heavy rollers." 13 Amer. & Eng. Enc. Law, p. 1194. The construction of rock gutter ways in the manner described in the contract awarded to plaintiff's is something entirely different from the ordinary work of macadamizing the surface of a street, as thus defined, and, unless expressly named and called for in a contract, the contractor undertaking simply to macadamize a street would not be required to construct such gutter ways, in order to complete his contract; and, although it may be true that in many instances such gutter ways would be of great benefit to streets

paved with macadam, still this fact would not render their construction in such streets any the less a distinct improvement, and one not to be deemed as included in a resolution of intention or a contract to macadamize a street, unless particularly named in such resolution or contract. A resolution of intention to macadamize a street gives no notice of an intention to construct gutter ways therein of any different material than macadam, or to be laid in any different manner, or at a greater cost per foot, than the other portions of the street between the curbing.

The case of Burk v. Altschul, 66 Cal. 533, 6 Pac. Rep. 393, cited by the plaintiffs, does not decide that rock gutter ways are included within the general definition of the word "macadamize," or that under a resolution of intention to macadamize a street the authorities of a town or city would have jurisdiction to let a contract for rock gutter ways, also. The contract under consideration in that case was not attacked upon the ground that it was not within the terms of the resolution of intention, but the objection was that the statute did not authorize an assessment upon the abutting property to pay the costs of constructing such gutter ways in a street; and the court simply held, in that case, that the construction of such gutter ways, although not specially named in the statute, might be properly included in the resolution of intention, under the general power which was given the board of supervisors, in the act there construed, "to order any other work to be done which shall be necessary to make and complete the whole or any portion of said street," etc. So, in this case, the board of trustees of San Rafael, under the general power to the same effect given such board by section 2 of the act of March, 1885, (St. 1885, p. 147,) might have included the laying of the gutter ways in its resolution of intention; but, as it did not, there was no authority to enter into any contract for their construction. The case of McNamara v. Estes, 22 Iowa, 246, also cited by plaintiffs, is more nearly in point, and yet does not decide the exact question we are now considering. In that case it was decided that under a general power to macadamize streets a town might also construct gutter ways, and we presume, although it is not so stated, rock gutter ways. The court, in effect, there held that the power to construct such gutter ways was fairly embraced in the general power to macadamize, and was incident thereto. The question before us, however, arises under a statute which, while it confers power upon cities and towns to macadamize streets, and construct rock gutter ways therein, also requires the passage and publication of a resolution of intention, describing the work intended to be done, as a condition precedent to the right to enter into a contract therefor. The object of this statute is to give

notice to owners of property who would be affected by the contemplated improvement, in order that they may be heard in opposition thereto, if they desire, (Emery v. Gas Co., 28 Cal. 375;) and, while it is not necessary that the resolution of intention should be as full and minute as specificauions contained in a contract, still such resolution must contain a general description of all that is intended to be done; and as rock gutter ways are not necessarily any part of the work of macadamizing a street, and are capable of being easily described as a separate and distinct part of the improvement of a street, when their construction is deemed necessary or proper in connection with the macadamization of a street, they must be mentioned in the resolution of intention in order to justify a contract for their construction. The rule which requires the board of trustees or city council to keep strictly within the resolution of intention is not a harsh one, and a contractor ought certainly to have no difficulty in determining whether the work specified in his contract falls within the general description of that named in the resolution of intention, and which resolution, under the statute, is the first and necessary step to be taken by the town or city, in obtaining jurisdiction to let any contract for the improvement or a street, to be paid for by an assessment upon abutting property.

2. It is claimed by the appellants that, as the cost of the gutter ways could have been separated from the contract price for the macadamizing, the defendants waived their right to object to the assessment made to pay the contract price of both the macadamizing and gutter ways by not appealing to the board of trustees for its correction. But we do not think so. Section 11 of the act of March 18, 1885, before referred to, does not make it incumbent upon the property owner to appeal to the board of trustees or city council for the correction of an assessment made to cover the cost of work not embraced within the description contained in the resolution of intention passed and published by such board or city council. Perine v. Forbush, 97 Cal. 305, 32 Pac. Rep. 240. That section provides that "no assessment shall be held invalid except upon appeal to the city council, as proviued in this section, for any error, informality, or other defect in any proceedings prior to the assessment, or in the assessment itself, where notice of the intention of the city council to order the work to be done for which the assessment is made has been actually published in the designated newspaper of said city for the length of time prescribed by law before the passage of the resolution ordering the work to be done." In this case, as we have seen, there was no publication of any intention to improve the street by laying rock gutter ways therein, and as a consequence of this the objection to the as

sessment because the cost of such gutter ways was included therein was not waived by the failure of defendants to ask that the assessment be corrected, or to ask for a new assessment to pay only the contract price for the work which was done in macadamizing the street. The assessment sought here to be enforced is an entirety, and must stand or fall as a whole; and as it includes the cost of the gutter ways, which is not legally chargeable upon the property of defendants, plaintiffs are not entitled to maintain the action. Dyer v. Chase, 52 Cal. 440; Donnelly v. Howard, 60 Cal. 291. Judgment affirmed.

We concur: FITZGERALD, J.; McFARLAND, J.

(99 Cal. 421) JOSHUA HENDY MACH. WORKS v. PACIFIC CABLE CONST. CO. (No. 15,117.) (Supreme Court of California. Aug. 31, 1893.) REFERENCE-WHEN PROPER-ACTION ON ACCOUNT -GOODS SOLD AND DELIVERED-ADMISSIONS IN PLEADINGS-EFFECT.

1. In an action at law to recover part of the price of goods sold and delivered, the court has no authority, except by agreement of the parties, to refer the cause to a referee "to state an account between the parties, and report a judgment and findings in said cause.'

2. An erroneous order, referring issues to a referee without the consent of the parties, is not a ground for reversal, if no exception was reserved thereto.

3. In an action at law for the recovery of the balance of an account for goods sold and delivered, plaintiff is bound by an admission in the complaint as to the amount paid on the account, not denied by defendant, and cannot recover if such payment is greater than the value of the goods, or the price agreed to be paid therefor.

Department 2. Appeal from superior court, city and county of San Francisco; F. W. Lawler, Judge.

Action by the Joshua Hendy Machine Works against the Pacific Cable Construction Company. From a judgment for plaintiff, defendant appeals. Reversed.

T. Z. Blakeman, for appellant. Roger Johnson, for respondent.

DE HAVEN, J. The complaint in this action is in two counts. In the first it is alleged that the defendant is indebted to plaintiff in the sum of $4,566.55, "the same being the balance of an account for goods, wares, and merchandise * * sold and delivered by plaintiff to defendant, aud for work and labor and services performed thereon and in connection therewith by plaintiff, at defendant's * request; that the whole amount and aggregate value of the items of said account is the sum of $35,744.35, no part of which has been paid except the sum of $31,177.80, leaving the aforesaid balance of $4,566.55 still due and unpaid." In the statement of what is termed "a further separate cause of action," the complaint alleges that "plaintiff sold and delivered to

*