the county of Tulare, state of California, en- possession, use, and increase thereof, and tered into the following agreement: "Tulare, California, 7-12—12. "This agreement made and entered into this 11th day of July, 1912, between W. A. Iden of Tula re, California, the party of the first part, and G. S. Mattos of Tulare, California, the party of the second part, witnesseth: That G. S. Mattos is to care for, milk, separate, feed hogs, cows, calves, and do all the work necessary to the success and cleanliness of that certain dairy located on the northeast quarter section Seven, 21, 23, and W. A. Iden is to furnish all feed necessary to the success of said dairy, and keep on the premises the same number, not less than fifty, or a greater number of cows on said premises as may seem necessary to the success of same. As a remuneration for said second party, he is to receive one-third of the income of said dairy, including hogs, calves and butter fat. The life of this lease is three years from date. In accordance with the terms of the foregoing agreement, so the complaint continues, said Mattos entered upon and took possession of the northeast quarter of section 7, in township 21 south, of range 23 east, M. D. M., and also took possession of all the personal property on said land, comprising the live stock and implements and equipments connected with and essential to the carrying on of the dairy business mentioned in said agreement. The complaint further alleges that on the 19th day of July, 1912, said Mattos "sold, assigned, and transferred to plaintiff herein all his right, title, and interest in and to said lease, and the real and personal property therein and herein before described, and that ever since said last-named date said plaintiff has been and now is in the possession of the whole of said real and personal property under and by virtue of said lease," etc. The complaint then charges "that defendants have advertised by publishing and posting notices that they will, commencing Wednesday, September 25, 1912, at the hour of 10 o'clock a. m., sell at public auction to the highest bidder all the personal property hereinbefore described and mentioned in said lease and now in the possession of plaintiff, and plaintiff alleges that said defendants, and each of them, threatens and intends, on the 25th day of September, 1912, to sell the whole or a great portion of the personal property hereinbefore described and mentioned in said lease, and will thereby prevent and deprive plaintiff from the will cause plaintiff great and irreparable injury and damage in that the taking away of the possession of said personal property from plaintiff will deprive plaintiff of his rights under said lease, to receive the income from said dairy and his share in the increase of said cows, hogs, and butter fat, and for which injury plaintiff has no plain, speedy, or adequate remedy at law." The relief asked for is that the defendants be temporarily restrained by injunction from selling, disposing of, or otherwise interfering with the plaintiff's possession of the personal property referred to in said agreement and more particularly described in the complaint pending the determination of the issues tendered by the complaint, and that, "upon a final hearing, said injunction be made for the full term of said lease, and for such other and further relief as to the court may seem just and equitable, and for plaintiff's costs of suit herein." The controversy involved in this appeal hinges entirely upon the determination of the nature, in legal effect, of the instrument pleaded in the complaint and above quoted. It is the contention of the plaintiff that the said instrument is a lease of the premises described therein and of the personal property specifically mentioned in the complaint; said property, both real and personal, constituting a dairy and essential to the prosecution of the dairy business. On the other hand, the defendants contend that said instrument merely involves a contract of employment (that is, that it was simply intended by the parties as evidence of the hiring of the plaintiff's assignor to perform certain services for the defendants during a stipulated period of time and for a stipu lated compensation), and that, being for personal services, said agreement cannot be assigned, nor will injunction lie to prevent the violation of its covenants. [1] Counsel for the defendants, in his brief, states that, upon the filing of the complaint herein, the court below granted a temporary restraining order and a citation requiring the defendants to appear and show cause why the restraining order should not remain in force during the pendency of the action; that, pursuant to said order to show cause and after a hearing thereon, the court dissolved and vacated the temporary restraining order so issued and denied to plaintiff an injunc tion pendente lite. Counsel further states that since the only relief which could have been afforded the plaintiff was by injunction, for which alone he sued, and any action which may now be taken could not have the effect of protecting or safe-guarding the rights which he alleges the defendants threatened to violate, his proper remedy was in an appeal from the order dissolving the restraining order which had been issued and denying him an injunction pending the litigation. In failure to appeal from the setting aside of a temporary injunction was presented, and the contention that such failure precluded the consideration of the appeal from the judgment was unsupported by the record. denying her application to adopt as her own | tiff's appeal should be dismissed because of his the statement of defendant on motion for a new trial, as well as that part thereof ordering the correction of the minutes as stated, and likewise appeals from the order denying her motion for a new trial, notice of appeal from which last-mentioned order, how. ever, was not served upon plaintiff. The above narrative should be deemed a sufficient answer to the merits of the appeal. No error can be predicated upon the ruling of the court in denying corespondent's motion for a new trial for the reason that, since no statement had been settled and allowed, there was nothing before the court to support such motion. Symons v. Bunnell, 101 Cal. 223, 35 Pac. 770; Sutton v. Symons, 100 Cal. 576, 35 Pac. 158. Conceding the want of a settled statement to be due solely to an error of the court in refusing to allow the same, it cannot avail a party aggrieved on appeal from such order, since upon the record nothing appears to show the alleged errors upon which the motion is based. For this reason, as well as for the want of service of the notice of appeal therefrom, and the fact that the record does not contain the papers specified in section 661 of the Code of Civil Procedure, as required by section 952, same Code, the order denying the motion for a new trial must be affirmed. [5] Plaintiff was not a party to the agreement made by corespondent with defendant on November 8th, and, waiving the objection as to time, it cannot be claimed that corespondent was entitled as of right to present and have considered in support of her motion for a new trial a statement never served upon plaintiff, as required by section 659 of the Code of Civil Procedure, and in the preparation and settlement of which she had no part and was given no opportunity to submit amendments thereto. Appellant was clearly in default in failing to prepare and serve her statement within the period ending October 16th. The fact that after said date she was misled by the failure of a third party to comply with his promise to prepare and serve a statement for her constitutes no ground for relief from such default. The orders appealed from are affirmed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2887-2890; Dec. Dig. § 684.*] 2. LANDLORD AND TENANT (§§ 24, 74*)-LEASES -WHAT CONSTITUTES. Defendant entered into a contract with plaintiff's assignor which provided that the assignor should care for, milk, separate, feed hogs, cows, calves, and do all the work necesthat defendant should furnish all feed necessary to the success of defendant's dairy, and sary, and as remuneration the assignor should receive one-third of the income; the lease to The continue for three years from date. the failure of the assignor to care for the stock agreement also contained a stipulation that satisfactorily should work a forfeiture of the lease. Held that, as no technical form of showing an intention by the lessor to divest words is required for a lease, but any words himself of possession and by the lessee to enter into possession are sufficient, the agreement must be construed as a lease, it being apparent that the lessor intended to dispossess himself for the period of three years and the agreement denominating the contract as a lease; and hence, there being no stipulation against assignment, plaintiff's assignor was, under Civ. Code, § 1044, providing that property of any kind may be transferred, entitled to assign his lease. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 61-65, 221; Dec. Dig. §§ 24, 74.*] 3. INJUNCTION (§ 59*)—SUBJECTS OF PROtec TION. Notwithstanding Civ. Code, § 3423, providing that an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced, an injunction will be granted to restrain defendants from selling off the personal property belonging to a dairy, where the entire plant has been leased for three years on the shares, and plaintiff has gone into possession, for, even though the contract may not be mutually enforceable, yet an injunction will be granted because plaintiff would have no adequate remedy at law, and because the threatened act of the defendant would be a trespass, which may be enjoined when causing irreparable damage. [Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 114-116, 128; Dec. Dig. § 59.*] Appeal from Superior Court, Tulare County; J. A. Allen, Judge. Suit by John Morris against W. A. Iden and another. From a judgment entered up We concur: CONREY, P. J.; JAMES, J. on an order sustaining a demurrer to the the county of Tulare, state of California, en- ! possession, use, and increase thereof, and tered into the following agreement: "Tulare, California, 7-12—12. "This agreement made and entered into this 11th day of July, 1912, between W. A. Iden of Tulare, California, the party of the first part, and G. S. Mattos of Tulare, California, the party of the second part, witnesseth: That G. S. Mattos is to care for, milk, separate, feed hogs, cows, calves, and do all the work necessary to the success and cleanliness of that certain dairy located on the northeast quarter section Seven, 21, 23, and W. A. Iden is to furnish all feed necessary to the success of said dairy, and keep on the premises the same number, not less than fifty, or a greater number of cows on said premises as may seem necessary to the success of same. As a remuneration for said second party, he is to receive one-third of the income of said dairy, including hogs, calves and butter fat. The life of this lease is three years from date. "Witness our hands this 11th day of July, In accordance with the terms of the foregoing agreement, so the complaint continues, said Mattos entered upon and took possession of the northeast quarter of section 7, in township 21 south, of range 23 east, M. D. M., and also took possession of all the personal property on said land, comprising the live stock and implements and equipments connected with and essential to the carrying on of the dairy business mentioned in said agreement. The complaint further alleges that on the 19th day of July, 1912, said Mattos "sold, assigned, and transferred to plaintiff herein all his right, title, and interest in and to said lease, and the real and personal property therein and hereinbefore described, and that ever since said last-named date said plaintiff has been and now is in the possession of the whole of said real and personal property under and by virtue of said lease," etc. The complaint then charges "that defendants have advertised by publishing and posting notices that they will, commencing Wednesday, September 25, 1912, at the hour of 10 o'clock a. m., sell at public auction to the highest bidder all the personal property hereinbefore described and mentioned in said lease and now in the possession of plaintiff, and plaintiff alleges that said defendants, and each of them, threatens and intends, on the 25th day of September, 1912, to sell the whole or a great portion of the personal property hereinbefore described and mentioned in said lease, and will thereby prevent and deprive plaintiff from the will cause plaintiff great and irreparable injury and damage in that the taking away of the possession of said personal property from plaintiff will deprive plaintiff of his rights under said lease, to receive the income from said dairy and his share in the increase of said cows, hogs, and butter fat, and for which injury plaintiff has no plain, speedy. or adequate remedy at law." The relief asked for is that the defendants be temporarily restrained by injunction from selling, disposing of, or otherwise interfering with the plaintiff's possession of the personal property referred to in said agreement and more particularly described in the complaint pending the determination of the issues tendered by the complaint, and that, "upon a final hearing, said injunction be made for the full term of said lease, and for such other and further relief as to the court may seem just and equitable, and for plaintiff's costs of suit herein." The controversy involved in this appeal hinges entirely upon the determination of the nature, in legal effect, of the instrument pleaded in the complaint and above quoted. It is the contention of the plaintiff that the said instrument is a lease of the premises described therein and of the personal property specifically mentioned in the complaint; said property, both real and personal, constituting a dairy and essential to the prosecution of the dairy business. On the other hand, the defendants contend that said instrument merely involves a contract of employment (that is, that it was simply intended by the parties as evidence of the hiring of the plaintiff's assignor to perform certain services for the defendants during a stipulated period of time and for a stipu lated compensation), and that, being for personal services, said agreement cannot be assigned, nor will injunction lie to prevent the violation of its covenants. [1] Counsel for the defendants, in his brief, states that, upon the filing of the complaint herein, the court below granted a temporary restraining order and a citation requiring the defendants to appear and show cause why the restraining order should not remain in force during the pendency of the action; that, pursuant to said order to show cause and after a hearing thereon, the court dissolved and vacated the temporary restraining order so issued and denied to plaintiff an injunction pendente lite. Counsel further states that since the only relief which could have been afforded the plaintiff was by injunction, for which alone he sued, and any action which may now be taken could not have the effect of protecting or safe-guarding the rights which he alleges the defendants threatened to violate, his proper remedy was in an appeal from the order dissolving the restraining order which had been issued and denying him an injunction pending the litigation. In struction, be held to mean anything else than that the "party of the first part," Mattos, is thereby authorized to enter upon and hold for a term of three years the possession of certain real and personal property, all said property constituting the equipments of a dairy business, and that for the use of said property he would return to the owner thereof certain stipulated compensation. It is true, as counsel for the defendants declares in support of his contention that the instrument is a mere agreement whereby the defendants employed the plaintiff's assignor to take charge of and conduct the dairy busi other words, it is argued that the restraining | less it cannot, upon fair and reasonable conorder having been ordered dissolved and an injunction pendente lite denied, and the plaintiff having failed to take an appeal from said order, nothing can now avail the plaintiff by a reversal of the judgment from which this appeal is prosecuted. But, conceding the soundness of the position thus urged by the respondents, an insuperable objection against the consideration of it by this court lies in the fact that there is not a word in the authenticated record indicating that a restraining order was ever issued by the court or that any hearing or proceedings involving a temporary restraining order or an injunction pendente lite were ever had before or dis-ness, that the only language of the writing posed of by the court. All this information comes solely from the brief of counsel, and obviously it cannot be considered as a part of the record of the case. All that appear before us are the complaint, in which the plaintiff asks for a temporary and finally a permanent injunction, a demurrer to said complaint by the defendants, and an order by the court sustaining the demurrer and judgment thereupon entered in favor of the defendants, and from which this appeal is taken. By this record alone, obviously, we must be guided in reaching a conclusion, and whether such conclusion, if it be in favor of the plaintiff, may or may not result in any practical advantage to him, or whether, upon the record as it was actually made up, the plaintiff could have invoked, so far as a hearing in this court is concerned, a more efficacious remedy than that presented here, are propositions as to which, so far as the decision by this court is itself concerned, we are not charged with any degree of solicitude. The only question before us is whether the complaint states a cause of action for an injunction, and, as stated, this must be determined by a solution of the question whether the written agreement into which Mattos and Iden entered is a lease of the property described therein or a mere contract of hiring or employment. [2] We think the complaint states a cause of action, which is to say that the instrument or written agreement upon which the action is founded was intended by the parties to operate as a lease of the property therein mentioned. No technical or particular form of words is required in the formulation of a written lease. "Whatever words show an intention on the part of the lessor to dispossess himself of the premises, and on the part of the lessee to enter and hold in subordination to the lessor's title are sufficient." 18 Am. & Eng. Ency. of Law, p. 605, and cases cited in the footnotes. which refers to compensation relates to the "remuneration" of the plaintiff. But this provision of the instrument whereby it is covenanted that the plaintiff shall "receive one-third of the income of said dairy,” etc., necessarily implies that the owner of the property is to receive two-thirds of such income. We then have before us an instrument which clearly shows the names of the contracting parties, the premises leased, the rental and the term, an intention on the part of the owner of the property to dispossess himself of the premises, and, he having signed the lease and thus expressly accepted its terms, Mattos' intention to enter upon and hold possession in subordination to the owner's title. Thus it appears that all the essentials of a lease are present in the agreement. Dodd v. Pasch, 5 Cal. App. 686, 91 Pac. 166; 18 Am. & Eng. Ency. of Law, p. 605; Eastman v. Perkins, 111 Mass. 35. Moreover we find in the instrument language which, considered by the light of its entire context, may fairly and reasonably be held to involve a construction by the parties themselves of the agreement, and indicating what they intended its legal effect should be. The last clause of the instrument reads: "The life of this lease is three years from date." It is readily to be conceded, as counsel for the defendants contends, that the character of a legal instrument is not necessarily what the author of the instrument or the parties thereto may call it. For illustration, an instrument may characterize itself as a deed, whereas its language or terms may clearly disclose that it is a mere lease, and in that case manifestly its legal effect could not be extended beyond that of a lease, notwithstanding that the parties called it a deed. But the language referred to in the writing in this case becomes very significant when it is considered in connection with the fact, as shown by the complaint, that Mattos actually entered upon and took possession of the real and personal property mentioned in In the case at bar, while the written in the agreement. Furthermore, the clause addstrument set out in the complaint is not in ed to the instrument by the parties seems to the precise phraseology usual to leases or in- leave little room for doubting that they in writing, should bear its ordinary legal signifi- | mutually enforceable. Vassault v. Edwards, cation. Said clause, it will be observed, 43 Cal. 465; Lattin v. Hazard, 91 Cal. 87, 27 reads as follows: "It is agreed between the Pac. 515; Cooper v. Pena, 21 Cal. 404. We first and second parties to this lease that the believe, however, that the present case comes second party must absolutely care for stock within the exception to the general rule satisfactorily. to first party, and his failure which has been recognized in many cases. to do so is a forfeiture on his part." For- But a little over two months of the term of feiture of what? The defendants would three years of the tenancy had elapsed when doubtless reply: A forfeiture of the plain- the defendants advertised for sale the pertiff's right under the agreement to remain in sonal property mentioned in the lease, and the employment of the defendants. But the thus threatened to do an act which, in view word "forfeiture" is an inapt term by which of the character of the business for which we would ordinarily express or describe the the property was to be used, would practicalpenalty for violating the conditions upon ly result in terminating the lease and so dewhich one may be employed to perform cer-stroying the rights of the plaintiff thereuntain personal services. On the other hand, it der. Obviously the plaintiff was without a is peculiarly applicable to and one that is complete and adequate remedy in the ordiordinarily used in a lease and like instru-nary course of law, for it would be imposments in which are imposed upon the lessee sible, under the circumstances, to estimate, certain conditions, the violation of which except by mere conjecture, the damage he was intended to have the effect of forfeiting would suffer if the trespass threatened by his rights under the lease and so terminating the defendants was consummated. Upon this his tenancy before the expiration of the stip- ground he is entitled to the protection of the ulated term. It is therefore the more reason- injunctive jurisdiction of a court of equity, able to assume that, if the instrument was notwithstanding the want of that mutuality intended by the parties as a mere contract in the contract necessary to authorize the for the hiring of the services of Mattos, they specific enforcement of its terms. In Gallawould probably have expressly stipulated in gher v. Equitable Gas Light Co., 141 Cal. the agreement that failure on the part of 699, 75. Pac. 329, and in other cases therein Mattos properly to perform the services con- cited, the right to an injunction in a certain templated by the instrument, or his failure class of cases to prevent the violation of conto give the personal property proper care or tracts which cannot be specifically enforced otherwise to conduct the dairy business prop- is distinctly recognized and put upon the erly and successfully, would operate to termi-ground of a want of an adequate remedy at nate his employment or the contract of employment. But, as before indicated, aside from these considerations, the general tenor of the agreement, the giving of possession to Mattos, the length of the term of the tenancy, and the covenant as to the division of the profits between the parties, with sufficient clearness show that the agreement was intended by the parties as a lease of the property therein mentioned. It follows from the foregoing view of the legal nature of the agreement that the discussion by counsel for the defendants of the nonassignability of the instrument, said discussion being based upon the theory that the writing constitutes only a contract for personal services, can have no application here. There is nothing in the lease itself which prohibits the assignment thereof by the lessee; hence he had a perfect legal right to assign it to the plaintiff. Section 1044, Civ. Code. law. Besides, the act of the defendants, in offering the property for sale, involved an act which, if consummated, would amount to a trespass, and it cannot be doubted that the remedy by injunction may be invoked to restrain acts or threatened acts of trespass in any instance where, as here, it is made to appear that such acts may result in irreparable damage to the particular property involved. Kellogg v. King, 114 Cal. 378, 46 Pac. 166, 55 Am. St. Rep. 74; Schmaltz v. York Mfg. Co., 204 Pa. 1, 53 Atl. 522, 59 L. R. A. 907, 93 Am. St. Rep. 782; Ex parte Warfield, 40 Tex. Cr. R. 413, 50 S. W. 933, 76 Am. St. Rep. 724. The judgment is reversed, with directions to the trial court to overrule the demurrer. We concur: CHIPMAN, P. `J.; BURNETT, J. (23 Cal. A. 340) PEOPLE v. CRAMLEY. (Cr. 298.) (District Court of Appeal, Second District, Cal ifornia. Nov. 25, 1913.) 1. HOMICIDE (8 228*)-SUFFICIENCY OF EVI [3] But it is contended by the defendants that injunction will not lie to prevent the breach of the covenants of a lease by the lessor. This position is grounded upon the general rule that an injunction will not be granted "to prevent the breach of a contract, the performance of which would not be specifically enforced" (Civ. Code, § 3423), and that a contract not entirely executed by one of the parties will not be enforced unless it is •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes DENCE-CORPUS DELICTI. Evidence in a homicide case held sufficient to show that a crime had been committed. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 471-476; Dec. Dig. § 228.*] |