jury is directly attributable to it, the case is one for a jury. Olsen v. Railway Co., 33 Pac. Rep. 623; Smith v. Railway Co., Id. 626, (both decided at this term.) The judgment of the court below is affirmed, with costs. ZANE, C. J., and BARTCH, J. concur. (3 Cal. Unrep. 886) BRODER v. SUPERIOR COURT OF MONO COUNTY. (No. 15,169.) (Supreme Court of California. May 27, 1893.) WRIT OF REVIEW-WHEN Denied. The petition for a writ of review to an order vacating a judgment for petitioner will be denied, where it appears that petitioner appealed from the same order, and the questions sought to be reviewed have been determined thereon. In bank. Original application by John Broder for a writ of review to the superior court of Mono county. Application denied. Richard S. Miner, for appellant. P. Reddy, for respondent. PER CURIAM. The petitioner seeks herein for a review and annulment of an order of the superior court of Mono county, made May 13, 1892, striking from the files, and canceling of record, a certain document, purporting to be a judgment in the action of Broder v. Conklin, then pending in said court. The application for the writ was filed in this court September 2, 1892, and upon the return thereto it appeared that the petitioner herein took an appeal to this court from the same order on the 11th of July, 1892. That appeal having been heard and determined at the instance of the appellant, (33 Pac. Rep. 211,) it is evident that the grounds upon which he is entitled to ask for the writ of review do not exist, and the application therefor is denied. (98 Cal. 661) PEOPLE v. GIBBS. (No. 20,960.) (Supreme Court of California. July 13, 1893.) FAISE PRETENSES-EVIDENCE. 1. On prosecution for obtaining property under false pretenses, the offense is not shown by representations as to title to land, where the person to whom they were made, instead of acting on them, had his attorney examine the title. 2. Representations that a mortgage on land is sufficient security for a note are mere expressions of opinion, on which a conviction cannot be had. 3. Evidence that a judgment had been rendered in the superior court against defendant in an action by him to quiet title to land is not admissible to show that defendant did not believe his representations that his title was good, where, at the time of such representations, an appeal was pending from such judgment, the effect of the appeal being to suspend the judg ment. Department 1. Appeal from superior court, Los Angeles county; B. N. Smith, Judge. Edward A. Gibbs was convicted of obtaining property under false pretenses, and appeals. Reversed. F. H. Binford, C. C. Stephens, Stephen M. White, and Dell Valle & Munday, for appellant. Atty. Gen. W. H. H. Hart and Chas. H. Jackson, Third Deputy, for the People. PATERSON, J. The defendant was convicted of the crime of obtaining money under false pretenses, and sentenced to serve a term of seven years in the state prison at Folsom. On April 13, 1891, one J. H. Alderson sold and delivered to the defendant certain horses, buggies, harness, etc., compris ing the outfit of his livery stable in Los Angeles, and took in payment therefor an assignment of a note secured by a mortgage on certain real estate for the sum of $1,333.33, executed and delivered by Donald McKay to the defendant, payable two years from date thereof, and it is upon that transaction this prosecution is based. The following are the representations charged to have been falsely and fraudulently made: (1) That the note and mortgage referred to had been executed and delivered to the defendant by said McKay; (2) that the defendant was acquainted with said Donald McKay, and the latter was then residing on the land described in the mortgage; (3) that said McKay was then a man of large means, and abundantly able to pay said note; (4) that the defendant was familiar with the land described in the mortgage, and had sold the same to said McKay, and the title thereto was good and perfect in the latter; and (5) that said land and mortgage were good and sufficient security for the money mentioned in the note. A great deal of evidence was introduced by the prosecution at the trial to show that Donald McKay was a fictitious person, but the effect of the evidence was entirely overcome by the appearance of McKay himself at the trial, and by the testimony of many witnesses who had known him for several years. The representation that McKay was a man of large means, and abundantly able to pay the note, stands unchallenged in the evidence. There is not a word of testimony to show whether he was or was not a man of means, or able to pay the note. As to the fourth representation, it is clear that Alderson did not rely upon the defendant's statements as to the title to the land. The documents which were handed to him by the defendant prior to the consummation of the sale, including a certificate of title, were taken by him to an attorney for advice upon that subject, and the agreement between the parties showed the source of defendant's title; so that, conceding that a charge of obtaining property under false pretenses may be predicated on a representation as to one's title to real estate, it is clear that no reliance was placed upon the representation that on the 15th of October, 1889, judgment was entered in favor of the defendants in that action. Counsel for the defendant, in connection therewith, introduced in evidence a notice of appeal from said judgment to the supreme court, filed September 15, 1890. The remittitur from the supreme court, showing an affirmance of the judgment, was issued October 26, 1891. 27 Pac. Rep. 671. Notwithstanding the evidence that the appeal was pending at the time of the transaction between Alderson and the defendant, and that the cause was not finally determined until six months thereafter, the court below instructed the jury that "the decisions, judgments, and decrees of the superior courts of this state are conclusive and binding upon all parties to the action or proceeding wherein such decision, judgment, or decree is rendered, and all such parties are bound to take notice thereof until the same is either modified, set aside, or reversed by the supreme court of this state." This was clearly erroneous. The judgment of the court during the appeal was suspended for all purposes, and was not evidence upon the question therein at issue even between the parties. Woodbury v. Bowman, 13 Cal. 634; Murray v. Green, 64 Cal. 369, 28 Pac. Rep. 118. of the defendant in that regard. The fifth said rancho. This judgment roll showed representation was a matter of mere opinlon, and, if proved, no conviction could be had upon it; but it is sufficient to say that it stands upon the same ground as the representation first above referred to. Only one of the representations alleged was proved. That is the representation that "McKay was living on the land." If this representation be regarded as material. it is sufficient to say that it was not proved, as required by law in order to make out the offense. Section 1110 of the Penal Code provides that "defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, be in writing, subscribed by or in the handwriting of the defendant, or unless the pretense be proved by the testimony of two witnesses, or that of one witness and corroborating circumstances." Applying this test to the case at bar, none of the pretenses alleged were substantiated. To make out the case charged, it was necessary for the prosecution either to show that there was no such person as Donald McKay, and that the note and mortgage were false tokens, or to corroborate the testimony of the prosecuting witness by some other testimony, or by some note or memorandum written by the defendant. This was not done. As stated before, the note and mortgage were shown to be genuine, and not only did the prosecution fail to show by two witnesses that the defendant made the representations charged at the time of the transaction, but the defense proved by two of the three persons present at the time that no such representations were made. It has been held that a check on a bank may be a false token, and would be considered so if the drawer knew when he gave it that he neither had funds to meet it nor credit at the bank on which he drew it. People v. Donaldson, 70 Cal. 118, 11 Pac. Rep. 681. But no case has been called to our attention holding that a promissory note can be used as a false token. The court instructed the jury that, in order to convict, there need be only one false pretense proved, if they believed that Alderson relied upon such pretense or representation, and was induced thereby to part with his property. As an abstract proposition of law this is correct, but there is no evidence in the record that Alderson relied upon any one of the representations charged. To show that the defendant did not believe his title to the property was good, the prosecution introduced in evidence the judg ment roll in the case of Juan de Toro, Edward A. Gibbs, (defendant,) and others, Plaintiffs, vs. Robinson and others, Defendants, an action to quiet the plaintiff's title to an interest in the rancho known as the "Los Coyotes," the land described in the mortgage above referred to being a portion of The court below erred in refusing to allow the witness Osbourne to testify to conversations and circumstances occurring at the time of the transaction between Gibbs and McKay. The theory of the prosecution was that this transaction was entirely simulated; that McKay was a myth; but that, if such person existed, the transaction was not in good faith, but for the purpose of enabling the defendant to cheat and defraud. All the circumstances were therefore proper matters for the consideration of the jury. The judgment and order appealed from are reversed, and the cause is remanded for a new trial. We concur: GAROUTTE, J.; HARRI (4 Cal. Unrep. 62) HOGAN v. BURNS. (No. 15,037.) (Supreme Court of California. June 27, 1893.) PROMISSORY NOTES-ACTION ON ANSWER — AcCORD AND SATISFACTION-SUFFICIENCY OF PLEA -EVIDENCE. 1. Where plaintiff and defendant are the principal witnesses in the case, and their testimony is conflicting, a judgment for plaintiff will not be disturbed in the absence of any reason why the court should have believed defendant rather than plaintiff. 2. An answer in an action on notes which denies that certain of the first four notes have not been paid, and alleges that they have been "satisfied and discharged," does not plead an accord and satisfaction. 3. In such action it appeared that after the date of such first four notes defendant gave plaintiff an order at the bottom of a stated account against him amounting to $70 less than the face of such notes on the attorney for the executor of a certain estate; that such attorney accepted the order, reciting in the acceptance that "certain moneys will in the future, in all probability, become due and payable to", defendant out of the income from certain real estate belonging to such estate, and that the order was payable only out of moneys coming from such estate, "and not claimed or affected by attachments or other claims." Held that, though an accord and satisfaction was pleaded, it was not error to exclude such account, order, and acceptance from the evidence, in the absence of any offer to show by other evidence that they were intended or accepted as satisfaction of either of the notes, or that either the account or order had been paid. Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge. Action by James Hogan against Joseph T. Burns on promissory notes. From a judgment for plaintiff, defendant appeals. Affirmed. Charles F. Hanlon, for appellant. John H. Dickinson, (Henry E. Monroe, of counsel,) for respondent. VANCLIEF, C. Action on twelve promissory notes,-two for $80 each, eight for $75 each, and two for $60 each. The answer of defendant admits the making of the notes, but alleges that each note "was without good or valid or legal consideration; that the only consideration therefor was an account for the sale and delivery by plaintiff to defendant by retail, or by the drink, of spirituous and malt liquors, wine, and cider; and that the amount of said account exceeded the sum of five dollars, but did not exceed the sum of twenty-five dollars; and that such an account constituted the only consideration for each of said notes." Further answering, the defendant denies that the first four of said notes had not been paid, but alleges that they have been "satisfied and discharged." The court found as follows: "All the allegations of the complaint are true. Each of the promissory notes set forth in said complaint was made to plaintiff by the defendant upon valuable consideration therefor. No part of the consideration for either of said promissory notes was the sale or delivery by plaintiff to the defendant of any liquor, spirituous or malt, or of any wine or cider, and neither one of said promissory notes has been paid, satisfied, or discharged in whole or in part;" and thereupon rendered judgment for the full amount of principal and interest of all the notes. The defendant has appealed from the judgment, and from an order denying his motion for a new trial. 1. The appellant contends that the findings of fact are not justified by the evidence. There is no merit in this point. The plaintiff and defendant were the principal witnesses, and their testimony was directly in conflict upon all material issues; and no reason appears why the court should have believed the defendant, rather than the plaintiff. 2. Appellant claims that the court erred in rejecting the following papers offered as evidence for the defendant: "San Francisco, May 1, 1887. Joseph T. Burns, to James Hogan, Dr. For board, lodging, goods furnished, services rendered, and in full of all claims to date, $200. "The above is correct. James Hogan. "I have personally examined all items in the above bill, and find them correct. J. T. Burns." "Charles F. Hanlon, Esq. Dear Sir: Please pay out of any moneys coming to me out of the estate of J. H. Burns, deceased, after payment of debts, expenses of administration, and claims against the estate, the above bill of two hundred dollars ($200) to James Hogan, and out of moneys coming to me which are not attached or claimed or interfered with by other parties. June 24, 1887. J. T. Burns." "Whereas, certain moneys will in the future, in all probability, become due and payable to Joseph T. Burns out of the income of certain real estate now belonging to the estate of James H. Burns, deceased, and whereas, it is now difficult to state exactly at what time or when such moneys will be due or paid: Now, therefore, I certify that the foregoing bill of two hundred dollars ($200.00) having been agreed upon as being correct by both James Hogan and J. T. Burns, that I will accept the foregoing order of J. T. Burns to pay such moneys out of said moneys coming to him in the regular way, after paying the expenses of the administration, commissions advanced or paid, and other claims against the estate, and other moneys required by law and the order of court. The acceptance of said order is understood not to be holden against the undersigned personally in any way, shape, or manner, the order being accepted payable out of the moneys coming to J. T. Burns in said J. H. Burns' estate, and not claimed or affected by attachments or other claims. Dated San Francisco, June 24, 1887. Charles F. Hanlon, Attorney for Executor." The date of the stated account (May 1, 1887) is between the date of the fourth note and that of the fifth, and counsel for appellant contends that the rejected papers tend to prove an accord and satisraction of the first four notes, which amounted to $270, besides interest. While I think an accord and satisfaction was not pleaded by defendant, (Sweet v. Burdett, 40 Cal. 97; Coles v. Soulsby, 21 Cal. 47,) yet, conceding that they were, there is nothing on the face of the rejected papers tending to prove that they were intended or accepted as satisfaction of any one of the notes; and there was no offer to prove by other evidence any such agreement or understanding, nor any offer to prove that either the stated account or the order on Hanlon had been paid, (Holton v. Noble, $3 Cal. 7, 23 Pac. Rep. 58;) nor is it pretended that any such payment was ever made. Indeed, Mr. Hanlon testified that "there was no money coming to Burns. He is executor of his brother's estate." So that the condition upon which Hanlon accepted the order might never happen, and, if it should, it is not apparent that Hanlon was authorized to pay the money from the estate of James H. Burns, to which he appears to have borne no other relation than that of counsel for the executor. As the papers offered had no apparent tendency to prove either accord and satisfaction or payment, they were properly rejected. I think the judgment and order should be affirmed. We concur: BELCHER, C.; SEARLS, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed. (98 Cal. 557) STOCKTON COMBINED HARVESTER & AGRICULTURAL WORKS V. GLENS FALLS INS. CO. OF NEW YORK. (No. 14,685.) In bank. Appeal from superior court, San Joaquin county; J. G. Swinnerton, Judge. Action by the Stockton Combined Harvester & Agricultural Works against the Glens Falls Insurance Company of New York. Judgment for plaintiff. Defendant appeals. Reversed. Haggin & Van Ness, (Paul W. Bennett and Jas. H. Budd, of counsel,) for appellant. W. L. Dudlen and Baldwin & Campbell, for respondent. DE HAVEN, J. The complaint in this case alleges, in substance, the issuance of a policy by the defendant insuring plaintiff in an amount not exceeding $2,500 against loss by fire upon certain described property, and that plaintiff had other insurance upon said property and upon other property, all of which insurance aggregated $127,000; that during the term of such insurance the said insured property was greatly damaged and partially destroyed by fire, and immediately after such fire plaintiff, in accordance with the terms of its policies, presented to defendant and all its other insurers, jointly, (Supreme Court of California. June 9, 1893.) proofs of its loss, and claim for damages INSURANCE-ARBITRATION MISREPRESENTATIONS -PLEADING-JUDGMENT-APPEAL. 1. A complaint alleging the issue of a fire policy, a loss, the submission of the amount thereof to arbitration, and a promise made after the determination of the arbitrators to pay the amount found by them, states an action on the final agreement. 2. The submission to the arbitrators being merely the amount of the loss, and not a general one of liabinty, it is necessary to a recovery that an express promise be found. 3. In such case the allegation as to a promise cannot be disregarded, and the action treated as based on the policy. 4. An award made not as the result of the judgment of the arbitrators, but on an agreement between one party and the arbitrators authorized by the other party, is not binding where the consent of a party was obtained by fraudulent means. 5. A policy of insurance on goods manufactured by insured provided that insured be indemnified for actual loss, not exceeding the cost of replacement; and further provided that in case of loss insured would produce for the inspection of insurer its books of account and other vouchers. On demand of insurer the board of directors of insured directed its chief bookkeeper to allow an examination of all its books. He, however, withheld a book containing an estimate of the cost of the destroyed articles, made by him by order of the directors. Held, that this amounted to a representation that there was no such book, and that the insurer, having been induced thereby to agree that arbitrators as to the amount of the loss should make an award of a certain amount, would be released from its agreement. 6. Insured's chief bookkeeper having been acting within the scope of his authority when he withheld the book after being directed by the directors to exhibit all in his possession, insured would be bound by his acts, and it was unnecessary that the directors should have made or known of any concealment. 7. A decree merely disposing of defendant's cross complaint, and not purporting to dispose of all his defenses, is not a final judgment from which an appeal will lie. sustained thereby. The complaint further alleges that plaintiff and its insurers were unable to agree upon the amount of plaintiff's damage, "and under and in accordance with the terms and conditions of said policies" the question of the amount of such loss was submitted to the arbitrament of two persons, who, being unable to agree, selected an umpire, as they were authorized to do, and that said arbitrators investigated plaintiff's claim of loss, and decided and reported to plaintiff and its insurers that the amount of plaintiff's loss was $90,000, "and thereupon said loss was adjusted at $90,000, and the said defendant and the said other insurers agreed to pay, and plaintiff herein agreed to accept, said sum of $90,000 in full settlement of said loss." The complaint then alleges that the proportionate amount of that sum to be paid by defendant was $1,859.25, and that defendant promised and agreed to pay the same to plaintiff on or before December 31, 1888, and demands judgment against defendant for that sum and costs. The defendant answered, and also filed what it termed a "cross complaint," in which cross complaint defendant asked, upon grounds which will be hereafter noticed, that the award or decision of the arbitrators should be annulled, and the issues arising upon this cross complaint and plaintiff's answer thereto were tried first; and the court filed its findings of fact and conclusions of law, denying the prayer of defendant's cross complaint, and thereupon, on December 19, 1890. the other issues in the case being undisposed of, entered a decree to the effect that defendant take nothing by reason of the matters alleged in its cross complaint, "and that the cause proceed to trial upon the com Thereafter plaint and answer thereto." the defendant filed an amended answer in which it denied, among other things, the appointment of the umpire named in the complaint; and further denied that any of the arbitrators named in the complaint investigated, determined, or reported the amount of plaintiff's loss to be $90,000, or any other sum; and denied that plaintiff's insurers ever agreed jointly to pay plaintiff $90,000, or any other sum, or that defendant ever agreed to pay plaintiff $1,859.20, or any other sum, as its proportion of plaintiff's loss. The court found all the allegations of plaintiff's complaint to be true, except those relating to the promise of defendant and the other insurers to pay the amount of the award referred to in the complaint, and in relation to this the court found: "(9) That, after said awards were rendered, neither the defendant nor the other insurers ever expressly covenanted, agreed, or promised with the plaintiff, as an adjustment of said loss, to pay to said plaintiff the sum of $90,000, or any other sum;" and "(11) that after said award had been made defendant never expressly promised or agreed to pay to plaintiff $1,859.25, or any other sum." Upon these findings the court, on January 7, 1891, entered a judgment for plaintiff in accordance with the prayer of its complaint. The defendant appeals both from this judgment and the so-called decree of December 19, 1890, denying to defendant the relief demanded in its cross complaint. 1. The judgment cannot be sustained upon the findings. The cause of action stated in the complaint is not upon the policy of insurance issued by defendant to plaintiff, nor upon an award in the nature of a judgment fixing the liability of defendant upon such policy, but is upon an agreement alleged to have been made by defendant with plaintiff after the amount of plaintiff's entire loss had been appraised by arbitrators, and by which agreement it is alleged that defendant promised to pay to plaintiff a certain proportionate share of such appraised loss. Saville v. Insurance Co., 8 Mont. 419, 20 Pac. Rep. 646; Wagner v. Insurance Co., 143 Pa. St. 338, 22 Atl. Rep. 885. The finding of the court that such alleged agreement was never made is fatal to the judgment upon this appeal. The distinction between the cause of action stated in this complaint and one upon a policy of insurance, or an action upon an award fixing the liability of an insurer thereon, is marked and important, not only by reason of the difference in the facts required to be shown in order to maintain the different actions, but also because of the fact that in an action like this the defendant is cut off from defenses which might be interposed to an action upon the policy. "Where an insurance company, after the loss, has adjusted the claim therefor, and has agreed to pay a certain sum in liquidation of the claim, it cannot, in an action setting forth such facts, object that the action was not brought within the time limited in the policy. In such a case the action is not upon the policy, but upon the agreement to pay. Neither, in such a case, can it set up a breach of warranty, or of any of the conditions of the policy in defense, for adjusting the loss and promising to pay it is a waiver of all breaches on the part of the assured, and of all defenses which might have been made, except for such waiver." 2 Wood, Ins. § 450; Smith v. Insurance Co., 62 N. Y. 85; Saville v. Insurance Co., 8 Mont. 419, 20 Pac. Rep. 646; Stache v. Insurance Co., 49 Wis. 89, 5 N. W. Rep. 36; Wagner v. Insurance Co., 143 Pa. St. 338, 22 Atl. Rep. 885. The plaintiff claims, however, that it was not necessary for the court to find an express promise on the part of defendant to pay the award referred to in the complaint, because such promise is implied as a matter of law; but this is only true in the case of an award following a general submission of some controversy. In an action upon such an award, which is in the nature of an adjudication of the rights and liabilities of the parties thereto, it is not necessary to allege or prove that the defendant expressly promised to perform the award, for the law implies the promise to perform from the fact of such general submission. Robinson v. Templar Lodge, (Cal.) 31 Pac. Rep. 609; Valentine v. Valentine, 2 Barb. Ch. 430. But this is not such a case. The complaint does not allege any such general submission for the purpose of determining the liability of defendant upon the policy issued by it, nor does the court find the fact of any such submission or award. On the contrary, the complaint alleges that the matter submitted to the arbitrators was the question of the amount of the loss sustained by plaintiff, and the court so finds. In addition to this, the record shows that in the submission itself there was an express provision to the effect that the appraisement cr award to be made thereunder should not operate or be taken as a waiver by the insurance com| panies, or any of them, of any provision or condition of their policies. An award in pursuance of such submission does not fix the liability of the insurer to pay under a policy, but only determines the amount to be paid in the event that there is any liability at all; and no action can be maintained upon an award of this character standing alone. Soars v. Insurance Co., 140 Mass. 343, 5 N. E. Rep. 149; Whipple v. Insurance Co., 11 R. I. 139; 2 Wood, Ins. § 450. After an award of this nature has been made, and the insurer has expressly promised to pay it, the insured may maintain an action either upon the policy, alleging the fact of the award for the purpose of fixing the amount of the recovery, or he may sue upon the new or subsequent agreement to pay it, in which latter case the fact of the agree |