any error. The instructions are very voluminous, occupying 50 pages of the printed transcript, and informed the jury very fully upon the law applicable to the defenses presented at the trial. The chief argument of the appellant is directed to showing that the court erred in instructing the jury upon the subject of insanity, and that the burden of showing that defense was upon the defendant, and must be established by a preponderance of evidence. This rule was, however, affirmed in People v. Travers, 88 Cal. 238, 26 Pac. Rep. 88, and cannot any longer be regarded as an open question in this state. The judgment and order are affirmed. We concur: MCFARLAND, J.; FITZGERALD, J.; DE HAVEN, J.; PATERSON, J. (98 Cal. 374) BRUNNER et al. v. MARKS. (No. 14,971.) VA 1. A building contract provided for adding to an old building on a part of a lot, and the erection of a new building on the other part. Mechanics' liens were filed for the construction of additions to the building situated on that portion of the lot covered by the old building. The complaint in an action to foreclose such liens alleged that the contractor agreed to provide all materials, and change into a two-story building the one-story building then premises described, (referring to the entire lot,) and such allegations were not denied. The findings supported the allegations, and the judgment followed the findings. Held. that the judgment was not open to the objection that it was invalid because the liens were filed on a portion of the building only. on the 2. The fact that the notice of liens describes the building as situated on a specified number of feet of a certain lot, while the complaint describes it as situated on the entire lot, causes no variance, and is immaterial. Department 1. Appeal from superior court, Mendocino county; Robert McGarvey, Judge. Action by F. Brunner, Sr., and others, against A. Marks and B. Marks and others, to foreclose mechanics' liens. From a judgment for plaintiffs, defendants appeal. Affirmed. T. L. Carothers and E. H. Wakeman, for appellants. J. M. Mannon and J. A. Cooper, for respondents. GAROUTTE, J. In this action judgment was rendered foreclosing certain mechanics' liens, and the appeal is prosecuted from that judgment, and the order of the court denying a new trial. Various liens were filed against the property by different mechanics, and actions brought thereon, which were subsequently consolidated under an order of the court. Appellants were the owners of a lot in the city of Ukiah, described as being 66 feet front upon State street, with a depth of 86 feet upon Perkins street. There was a building situated upon this lot, covering a frontage of 48 feet, at the time the contract was entered into with one Ludwig, upon which this action arose. The contract, as stated by Ludwig, was to build a one-story brick building, and to extend to two stories an old brick building. The old building here referred to is the building covering 48 feet of said lot, the one-story building to be erected covering the remaining 18 feet of the lot. The contract price was $8,000 for the entire work, and one contract covered it all. Appellant relied upon 29 assignments of errors of law, but states his principal one to be that all the liens but one were filed against that part of the structure situated upon the lot described as having a frontage of 48 feet, the remaining lien being filed against that portion of the building not covered by other liens; "that is to say, all the liens but one are filed against that portion of the structure covered by 48 feet frontage, and the remaining one against the balance of the structure, covering about 18 feet frontage." It will be seen that appellants' contention is that the liens were filed upon a portion of the building, and not upon it all; and that, consequently, no valid judgment could be rendered foreclosing them, inasmuch as no judgment could embrace more than is included in the claim of lien. This principle is supported by Mills Co. v. Kremer, 94 Cal. 210, 29 Pac. Rep. 635, where the court said: "The statute gives a lien upon the entire building for any portion of the labor done or materials furnished therefor, and there is no provision for a lien upon a portion of a building, or for the sale of a part of a building to satisfy a lien upon the whole." There can be no question but that a fatal variance might be created between the claim of lien and the complaint upon the one side, and the proof upon the other, by showing that the lien did not cover the entire building; but in the present case the liens, save one, are claimed for labor and materials furnished in the improvement and construction of additions to that certain building or structure situated upon the portion of appellants' lot having 48 feet frontage, and covered by the old building. In direct line with the claim made by the lien follows the allegation of the complaint, as follows: "That on or about the 25th day of October, 1889, the defendant T. J. Ludwig entered into a contract with the defendants A. Marks and B. Marks, whereby the said Ludwig agreed to provide all materials, and add to and change into a two-story brick building the one-story brick building then upon the premises above described." (Referring to the entire lot.) This allegation of the complaint is not denied, and therefore no issue is made by the pleading as to whether or not the claim of lien covers an entire building or only a part thereof. Such being the fact, appellant was not authorized to introduce evidence against his own admission. The findings of the court also fully support the allegations of the complaint in this regard, and the judgment follows the findings; hence the difficulties that arose in the Willamette Case are not present here. These views also dispose of the ruling of the court upon the question addressed to the witness Copeland as to the character of the structure erected upon the lot. The fact that the liens described the building as situated upon 48 feet of the lot, and the complaint described the building as situated upon the entire lot, causes no variance, and is entirely immaterial. The description of the land upon which the structure is erected, required to be set out in the claim of lien, is not a technical description, and is demanded only for the purposes of identification, although in this case it appears that the description in these liens was technically correct. Having disposed of appellants' principal point, we will not notice the little ones in detail, but simply say that after a due consideration of them we think them too small to justify a reversal of the case. For the foregoing reasons, let the judgment and order be affirmed. HANSON v. SLAVEN. (No. 14,456.) (Supreme Court of California. May 30, 1893.) SALE OPTION TO PURCHASE -ACCEPTANCE-ACTION FOR FAILURE TO DELIVER INABILITY TO PERFORM CONTRACT-SUFFICIENCY OF EVIDENCE. 1. In a letter to plaintiff, defendant and another agreed to take 2,000 shares of stock of a specified corporation, subscribed by the former, and granted him "the privilege of calling for all or any part of said 2,000 shares, at any time during the next two years from the date of this letter, at $30 per share." Within the two years, plaintiff told defendant he wanted the stock. Held, that the written offer to plaintiff, and the latter's statement to defendant, constituted an agreement to sell and buy, containing concurrent conditions, mutually dependent on each other. 2. Under Civil Code, § 1439, providing that, before any party to an obligation can require another party to perform any act under it, he must be able, and offer, to fulfill all conditions imposed on him on the like fulfillment by the other party, plaintiff was not entitled to maintain an action on such agreement against defendant for failure to deliver such stock on demand, in the absence of an offer by him to pay for it, unless defendant's conduct was such as to excuse the failure of such offer. 3. A direction by defendant, to his agent, to tell plaintiff "that he will get his stock. Our stock is all hypothecated,-tied up. As soon as we are free, I will give him his stock,"-did not constitute such refusal to deliver the stock as will excuse the failure of plaintiff to offer to perform on his part, where neither party regarded it as a refusal at the time. 4. It appeared that, during the times plaintiff demanded such stock, large amounts of it were for sale; that buyers were few; and that an offer of the agreed price per share would have secured to defendant any reasonable amount of it. Held that, though defendant's stock was held by third persons as collateral, the evidence was insufficient to support a finding that defendant had placed it out of his power to deliver the stock. Department 1. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge. Action by Charles Hanson against Henry B. Slaven on a contract for the sale to plaintiff of certain shares of stock of the American Contracting & Dredging Company of New York. From a judgment of nonsuit, plaintiff appeals. Affirmed. Galpin & Zeigler, for appellant. W. C. Belcher and E. P. Cole, for respondent. GAROUTTE, J. This is an appeal from a judgment of nonsuit in an action brought to recover the sum of $1,270,000, as damages for a breach of contract to deliver 2,000 shares of stock of the American Contracting & Dredging Company of New York city. The contract was executory, and in the following words: "San Francisco, June 10, 1882. Charles Hanson, Esq. Dear Sir: We hereby agree to take and pay for the amount of stock subscribed by you, namely, two thousand shares, at $30 per share, in a company now being organized, and to be known as the American Contracting and Dredging Company of New York city. We further grant to you the privilege of calling for all or any part of said two thousand shares at any time during the next two years from the date of this letter, at thirty dollars per share. Respectfully, yours, H. B. Slaven. M. A. Slaven." The latter portion of the writing forms the basis of plaintiff's cause of action, he claiming to have been damaged by reason of the failure and refusal of respondents to deliver the stock as therein provided. The motion for a nonsuit was based upon very narrow grounds,-grounds that could well have been enlarged. It was made upon the ground that plaintiff had failed to prove the payment or tender of the purchase price of said stock, to wit, $60,000 mentioned in the option, within the time therein stated, to wit, two years from date, and there was no waiver of such tender or excuse for the making of the same. The evidence bearing upon the question of nonsuit may be summarized as follows: Robert F. Pratt, who had charge of certain branches of Slaven's business, testified: "In January, 1883, Hanson called me into his private office, and said: 'I want my stock. You tell H. B. Slaven I want my stock.' I said, 'All right. H. B. Slaven is in town, and I will report to him just what you say.' And I did report the conversation to Slaven, who said: 'Tell good friend Hanson that he will get his stock. Our stock is all hypothecated,— tied up. As soon we are free I will give him his stock.' In March, Hanson as again asked me for his stock, but he never tendered me any money at any time. I told Hanson what Slaven said about it." Plaintiff Hanson testified: "I told Slaven in December, 1882, I wanted the stock, and he said he would get it for me, but he never did. I told him again in February that I wanted the stock, and he said he would get it for me. I never tendered any money to Slaven at any time. Never offered to pay him any, either in writing or otherwise. Never at any time tendered any money to Pratt, or to any person. Never offered to pay any person any money for this stock." That portion of the writing involved in the consideration of this case constitutes, under section 1727 of the Civil Code, an agreement upon the part of the Slavens to sell to Hanson 2,000 shares of stock, or any part thereof, at the price stated, at any time within two years from date. If, at any time within the two years, Hanson accepted the Slavens' proposition, as stated in their agreement, then the contract, under section 1729 of the Civil Code, became an agreement to sell and buy, containing concurrent conditions mutually dependent upon each other. Taking a broad and liberal view of the testimony cited, it may be fairly construed to constitute a notification to the Slavens by Hanson of an acceptance upon his part of the offer to sell previously made by them. His testimony as to his statements made to Slaven is a little more explicit than his demands and claims made through the medium of the witness Pratt, but in neither case did he state that he would take the entire 2,000 shares. His option extended to all or any part, and it would seem but fair to the vendors that they should know the exact amount he elected to buy. Still, we pass the point, conceding it to be a fair inference of fact from the evidence that his acceptance extended to the entire amount. We then have an agreement upon the one part to sell to Hanson 2,000 shares of stock, and an agreement upon the part of Hanson to pay therefor, to the Slavens, the sum of $60,000. Upon this state of facts, let us see wherein lies plaintiff's cause of action for a breach of the contract. Section 1439 reads: "Before any party to an obligation can require another party to perform any act under it ** he must be able, and offer, to fulfill all conditions concurrent, so imposed upon him, on the like fulfillment by the other party, except as provided by the next section." This section is equally applicable to obligations arising either upon agreements for the sale of realty or personalty, and the authorities, both before and since the adoption of the Codes, recognize that fact. It follows therefrom, in order that one party may place the other party in default upon a contract consisting of mutually dependent obligations, he must not only be able to perform, but must offer to perform. If he is able to perform, and offers to perform, he has done his part, and a refusal to accept such offer, and thereby meet him halfway, creates a breach of the contract, and gives an immediate right of action. Whatever courts of other states may have held upon this question, the provisions of our Code are plain and explicit, and demand that an offer of performance be made. See section 1485, Civil Code, et seq. In Englander v. Rogers, 41 Cal. 422, it was held that a complaint which stated that the plaintiff was "ready and willing" to perform failed to state a cause of action, as it showed no default upon the part of the defendant, the complaint failing to allege a tender. In Loan Soc. v. Hildreth, 53 Cal. 721, the complaint was held fatally defective in failing to allege an offer to perform. In this case the plaintiff testified that he made no offer to perform; that he made no offer to pay the $60,000; and that was the concurrent condition assumed by him under the contract. Plaintiff, having failed to make an offer of payment of the $60,000, has no cause of action for a breach thereof, unless the defendant's conduct was such as to excuse the failure of an offer. As showing such excuse, appellant contends (1) that respondent refused to deliver the stock; and (2) that he had placed it out of his power to deliver it. All the evidence in the record tending to show a refusal to deliver is the evidence of the witness Pratt, wherein Slaven said to him, in answer to a request or demand for the stock from Hanson: "Tell good friend Hanson that he will get his stock. Our stock is all hypothecated,-tied up. As soon as we are free, I will give him his stock." Under no recognized principle governing the construction of language can this statement of Slaven be construed into a refusal to deliver the stock. It was a promise to deliver the stock at a future day, and indicated a perfect willingness to deliver it. The authorities all agree that, in order to constitute an implied waiver of an offer or tender, the refusal must be explicit and positive. In the latest edition of Mr. Benjamin's work on Sales it is said, in section 568: "It must be a distinct and unequivocally absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for, if he afterwards continue to urge or demand compliance with the contract, it is plain that he does not understand it to be at an end." And this language is approved in Smoot's Case, 15 Wall. 36. We have in the present case no such refusal as is contemplated by the law, and plaintiff's requests for his stock, made subsequently to the foregoing statement of Slaven, and Slaven's promise to deliver the stock, made subsequent to this statement, clearly indicate that neither party regarded Slaven's language at this time as constituting a refusal. When Hanson was told by Pratt what Slaven said in reference to the matter, he appears to have made no objection to Slaven's plea for an extension of time in which to make the delivery, and, in the absence of any objection upon his part at that time to a failure of present delivery, his assent to the course proposed by Slaven must be assumed. To be sure, subsequently, he made further demands for the stock of the witness Pratt, but nothing is disclosed by the record to indicate anything in the nature of a refusal to have followed from such demands. Neither is the evidence sufficient to support a finding of the jury that defendant had placed it out of his power to deliver the stock. It appears that during these times large amounts of the stock were for sale. The stock was plentiful, but buyers few, and the whole record indicates, conceding that the stock was then held by third par ties as collateral, that an offer of $30 per share would have brought to the possession of Slaven any reasonable amount of it for purposes of sale at that figure. For these reasons it is not shown by the record that the defendant was unable to comply with the contract. Upon the facts of this case it becomes unnecessary to determine, by a construction of the writing, whether an offer to perform should be made within the two years referred to in the writing, or whether Hanson did not have a reasonable time from the date of his acceptance of the terms of the contract in which to make the offer, as his testimony disclosed that he made no offer at any time. For the foregoing reasons, let the judgment be affirmed. We concur: HARRISON, J.; PATERSON, J. (98 Cal. 384) DIXON v. PLUNS. (No. 14,429.) (Supreme Court of California. May 31, 1893.) MISCONDUCT OF JURY-AVERAGE VERDICT-PROOF -AFFIDAVITS OF JURORS-PERSONAL INJURIESPRESUMPTION OF NEGLIGENCE CONTRIBUTORY NEGLIGENCE. 1. Where a jury agree that each member thereof shall write out the sum which he thinks plaintiff is entitled to recover, and then divide the aggregate of such sums by 12, and that the quotient shall be the amount of their verdict, such verdict is obtained "by a resort to the determination of chance," within the meaning of Code Civil Proc. $ 657, providing that for the purpose of obtaining a new trial such misconduct of the jury may be shown by the athdavits of the jurors. 2. The fact that plaintiff passed under a scaffold erected over the sidewalk, on which defendant was engaged with tools and materials repairing a building, is not negligence contributing to his injury from a chisel dropping on him 3. Where a chisel dropped from the scaffold erected over the sidewalk, and on which defendant was at work repairing the building, it is presumed to have dropped because of defendant's negligence. In bank. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge. Action for personal injuries by Katie E. Dixon against William J. F. W. Pluns. Plaintiff had judgment, and from an order denying a new trial, defendant appeals. Reversed. H. C. Firebaugh, for appellant. Nagle & Nagle, for respondent. GAROUTTE, J. Respondent, while walking upon the sidewalk of Larkin street, in the city of San Francisco, was struck upon the head, and quite seriously injured, by a chisel that fell from a scaffolding above, upon which one of appellant's employes was standing while engaged in affixing a cornice to the building. Damages were recovered in the lower court, and the appeal is from the judgment and an order denying a new trial. This case was decided in department, and the judgment and order reversed upon the ground that the verdict was arrived at by chance. The question involved being an important one, and there being some decisions of this court opposed to the doctrine there laid down, which had not been noticed in the opinion, the case was ordered to bank for further consideration. Appellant moved for a new trial upon the ground of misconduct of the jury in this: that they arrived at their verdict by a resort to the determination of chance. The Code expressly provides that such misconduct may be shown by the affidavits of jurors, (section 657, Code Civil Proc.,) and in support of the motion appellant presented the affidavit of one Koster, a juror, wherein he stated "that, upon retiring to the jury room, the twelve jurors first agreed by a vote that the average sense of the jurors should control in arriving at what the verdict should be, and then the twelve jurors agreed to be controlled by their vote, and voted that the said average sense of the jurors should be arrived at in the manner following, namely, by each individual juror writing on a piece of paper what he would fix the verdict at, and that the sums so writ ten should then be added together, and the aggregate divided by twelve, and that the amount resulting should be taken as the average sense of the jurors, and be put in the verdict accordingly; and thereupon the said plan was carried out," etc. Courts have not been astute in perceiving sufficient error to set aside verdicts upon the ground here relied upon, and evidence sustaining the verdict has been generally favored; but upon this motion no opposing affidavits were offered, and the merits of the contention rest alone upon the sufficiency of the statement of facts above recited. Reduced to its lowest terms, the affidavit plainly discloses that the verdict was the result of a previous agreement, and was arrived at upon the basis that the amount of the verdict should be the quotient resulting from a division wherein 12 was the divisor, and the sum of the various amounts at which each juror would fix the verdict the dividend. The calculation was made in pursuance of a prior agreement that the result should be the verdict; and that result was adopted as the verdict, not upon further consideration of the jury, and upon the determination that such amount formed a just and proper verdict, but it was adopted in pursuance of the prior "agreement." The decisions of our courts clearly indicate that they do not countenance such procedure, and the verdict must be set aside if the affidavits of jurors are entitled to be received as evidence to prove the agreement and the consummation thereof; and that matter is dependent upon the solution of the question, is the verdict a chance verdict, within the meaning of the statute? Counsel for respondent, with good reason, rely upon Turner v. Water Co., 25 Cal. 397, to support his contention in this regard. It is there decided that a verdict arrived at in the manner hereinbefore set forth is not a chance verdict, and therefore cannot be attacked by the affidavits of jurors. But, after mature consideration, we think the principle there declared erroneous, and that the establishment of a contrary rule, in this country especially, where the rights of property, reputation, and life are all taken into the jury room, and there passed upon by jurors, will result in a purer and more satisfactory administration of justice. In the case cited Mr. Justice Sanderson used the following language: "To ascertain this average the jury may properly adopt the method which was used in the present case, but they ought not to agree to be bound by the result, whatever It may be. If they do so agree, and such result is made the verdict without further consideration or assent, such verdict is vicious and irregular, and must be set aside whenever the fact is made to appear by proper and competent evidence." If this character of verdict is vicious and irregular, it can only be vicious and irregular upon the ground that it was not the result of that calm and deliberate judgment of jurors contemplated by the law, but that it was arrived at by a resort to chance or lot. The vicious character of the verdict can consist of nothing else. The jurors have not been corrupted. They have acted under no duress, mistake, or fraud. Their verdict is the result of free and voluntary action. Outsiders have not participated in or influenced their determinations. Hence the verdict is vicious only in this: that the amount was determined by a resort to methods condemned by the law. In the few cases relied upon to support Turner v. Water Co. it will be noticed that the verdicts were upheld upon the ground that, after the computations were made and the result obtained, that result was not adopted as the verdict of the jury in pursuance of the prior agreement, but independently thereof, and upon further deliberation and thought; and as to such a course we see no serious objection. "Chance" may be defined to be hazard, risk, or the result or issue of uncertain and unknown conditions or forces, and the facts here developed bring the case clearly within such definition. In the present case each juror agreed that a definite amount should be the verdict of the jury, at a time when he had no knowledge whatever as to what the amount should be, for it had not yet been computed. No person even knew the figures upon which the computation would be made. If the estimate of each juror is before the eyes of the others when the agreement is made, then no element of chance will be found in the result, for it would be a mere matter of mathematical computation; but without a knowledge of these estimates the character of the verdict will be as entirely unknown to the jurors as though the whole matter were decided by the casting of a die or the tossing of a coin. In the casting of a die or the tossing of a coin justice has an equal chance with injustice, but under the system here considered one unscrupulous and cunning juror always has the power to defeat justice by increasing or decreasing the amount of the verdict in proportion as he places his estimate at an unconscionably high or low figure. In the casting of a die the chance of winning or losing is dependent upon the face of the die that presents itself after the cast. In arriving at a verdict in the manner here practiced the chance of the respective parties, plaintiff and defendant, to secure the verdict is entirely dependent upon the sum total of the estimates made by the various jurors, and that sum total is as uncertain and unknown to the jurors at the time the agreement is made as the result of the cast is unknown to the gamester. We are clearly of the opinion that this verdict was obtained by a resort to chance, and Turner v. Water Co., and other cases following in its. wake, are no longer valuable as authority. Under a statute similar to the provision of our Code this question has been directly adjudicated, and the position here taken supported, in the recent case of Improvement Co. v. Adams, (Colo. App.) 28 Pac. Rep. 662. Under the same provision of the Idaho statute this question has been carefully considered in the very late case of Flood v. McClure, (Idaho,) 32 Pac. Rep. 254. Turner v. Water Co. is there reviewed, and its reasoning declared not sound. It is insisted that the case of Turner v. Water Co., having been decided under the former practice act, and the same provision being carried into the Code of Civil Procedure, that re-enactment carried with it the construction previously given the provision. Such can only be the law where the rules of statutory construction are the same at the date of both enactments. This principle is declared in Blythe v. Ayres, 96 Cal. 591, 31 Pac. Rep. 915, and also in Flood v. McClure, (Idaho) 32 Pac. Rep. 254. As the cause must be returned to the lower court for further proceedings, we pass to an |