the defendant to accept the powder for transportation or not; but, if it chose to accept it, it could accept it upon such terms and with such limitation of its common-law liability as it saw fit. Piedmont Manuf'g Co. v. Columbia & G. R. Co., 19 S. C. 353. And, from the nature of the goods, the consideration expressed was sufficient to support the entire contract. York Co. v. Central Railroad, 3 Wall. 107.

The term of exemption releasing the carrier from liability for fire from any cause whatsoever will not be held void, as unconscionable or unreasonable. It is well settled that a common carrier may not relieve itself from any liability imposed upon it by law under the dictates of public policy; but, upon the other hand, upon any question of private right, or the right of private property, it may, for a consideration, lessen the degree of responsibility which attaches to it as an insurer, by any contract not in itself unreasonable. Any one may waive the advantage of a law intended solely for his own benefit, but a law established for a public reason cannot be contravened by private agreement. Civ. Code, 3513. If necessary, the condition above referred to would be construed as an exemption from liability by fire occasioned by any cause, other than that of defendant's negligence. Hooper v. Wells, Fargo & Co., 27 Cal. 12; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174; Wells v. Navigation Co., 8 N. Y. 375.

The conclusion having been thus reached that the contract of the shipping order made by plaintiff's agent McNally was authorized, that it was based upon a consideration, and that its terms were reasonable, the other considerations urged, as above stated, are rendered unnecessary of determination. The judgment appealed from is affirmed..

We concur: TEMPLE, J.; MCFARLAND, J.

1. In an action for injuries to a child run over by defendant's buggy, where the evidence was clear as to defendant's negligence, the burden of proving contributory negligence on the part of the parents in allowing it to go out on the street rests on defendant, if contributory negligence does not appear from plaintiff's evidence.

2. Evidence that defendant, while intoxicated, was driving at a reckless speed along a street, where plaintiff, a child of seven years, was playing, and that the child was run over, is sufficient to support a verdict for plaintiff, where the only evidence of negligence on the part of the child's parents was in allowing him to go out on the street.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; Jolin Hunt, Judge.

Action by James Daly, an infant, by guardian, against Adolph F. Hinz, for damages for personal injuries. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

Eugene F. Bert, for appellant. M. C. Hassett, for respondent.

VANCLIEF, C. This is an action to recover damages for personal injuries. At the time of the injuries plaintiff, then about seven years of age, was upon a public street in the city of San Francisco, and was playing tag with his sister and another girl, each of the age of about eleven years. They were in front of the house where plaintiff and his parents resided. Defendant was driving a horse attached to a buggy, which passed over the plaintiff, breaking his left thigh bone and otherwise injuring him. Plaintiff had been going to school for about a year, at some distance from his home, crossing two railroad tracks in going and returning. He generally went alone in the morning. Sometimes little girls would be with him coming home. On these occasions he always safely took care of himself. The cause was tried with a jury. At the close of plaintiff's evidence in chief the defendant moved for a nonsuit on the ground of contributory negligence of the child's parents in allowing him to go upon the street without any person exercising proper care or control over him. The court denied the motion. The jury returned a verdict for plaintiff, awarding him $1,000. The defendant moved for a new trial, which was denied, and he appeals from the judgment and from the order refusing a new trial.

There is no question that the evidence tended to prove negligence on the part of the defendant. Therefore, the burden of proving contributory negligence of the parents of the child devolved upon the defendant, unless it had been made to appear by the evidence for plaintiff. But there was no evidence of negligence of the parents, except the facts above stated. In the case of Schierhold v. Railroad Co., 40 Cal. 447, the court, speaking of the negligence of parents in a case like this, said: "The fact of negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find. It can very seldom happen that the question is so clear from doubt that the court can undertake to say, as matter of law, that the jury could not fairly and honestly find for the plaintiff. It is not the duty of the court in such cases, any more than in any other, to usurp the province of the jury and pass upon the facts. And the nonsuit should only be granted in such cases where the evidence of the misconduct on the part of the injured party is so clear and irresistible as to put the case on a par with those cases where a nonsuit is granted for a failure to introduce evidence sufficient to go to the jury upon some point essential to the plaintiff's case.

converted the property to his own use, facts should be stated to show that upon notice of the true owner's claim he refused to surrender the property. We think it must be held that such facts appear in the complaint here (Arzaga v. Villalba, 85 Cal. 191, 196, 24 Pac. 656, and cases cited); true, rather by way of recital, when they should have been alleged directly; but the demurrers interposed by defendants do not include this fault among the grounds they specify, and, under the rule requiring objections based on such defects to be taken by special demurrer, we are not at liberty to treat the complaint as bad on that account. San Francisco v. Pennie, 93 Cal. 465, 29 Pac. 66; Santa Barbara v. Eldred, 108 Cal. 294, 41 Pac. 410.

Appellants claim further that the complaint is bad in that it does not allege a demand for the property in the manner and form prescribed by section 689, Code Civ. Proc., as amended in 1891, and in that a cause of action against McDade for a tort is misjoined with a cause of action against his sureties, based on their contract. These points have been ruled adversely to their contention in recent decisions of this court. Brenot v. Robinson, 108 Cal. 143, 41 Pac. 37; Bell v. Peck, 104 Cal. 35, 37 Pac. 766. The judgment should be affirmed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is affirmed.

(113 Cal. 357)

WILSON et al. v. HIND et al. (S. F. 259.) (Supreme Court of California. July 18, 1896.) MECHANICS' LIENS-MATERIAL MEN-PLEADINGVARIANCE.

1. A person contracting to furnish material for a building, such as doors, sashes, blinds, etc., which, instead of manufacturing to order, he purchased ready made, is a material man only.

2. In an action to enforce a lien for material furnished contractor, the complaint alleged the contract to have been for the payment of the reasonable value of the material furnished, by order given on the owner of the building, whereas the evidence showed that the contractor purchased on his own credit, for a fixed price. Held, that there was a variance.

Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by Wilson & Bro. against Robert R. Hind and another to enforce a material man's lien. There was a judgment refusing to foreclose the lien, and plaintiffs appeal. Affirmed.

Lincoln Sonntag, for appellants. John C. Hughes, for respondents.

TEMPLE, J. This appeal is from the judgment, and was taken within 60 days after its

rendition. The action was to foreclose a material man's lien. The court held that plaintiffs had no lien on two grounds: First, because they did not furnish material to the owner or his agent, or to a contractor or subcontractor; second, because there was a fatal variance between the contract proven and that stated in the claim of lien.

He

Henry Behrens was the contractor. contracted with W. R. Johnston to furnish all the mill work for the house, and to deliver it at the building. Mr. Johnston was called as a witness for plaintiffs, and testified that the mill work included certain manufactured material, such as front door frame, door, top light, recess panels, portico (columns or bracket or cap, balustrade, put together), window frames, sashes, etc. Witness further said: "I generally bought all my doors and sash and blinds and all stock material, you know, from Wilson & Brother." The court: "Stock material means material that is kept in stock?" Answer: "Yes, sir; manufactured. Yes, sir; all stock, doors, sashes, blinds, and transoms, and such like. We did not manufacture these in our mill; nothing only hard work." These extracts sufficiently show the nature of the contract both between Behrens and Johnston, and between Johnston and plaintiffs. It is very evident that Johnston was a material man only. Hinckley v. Biscuit & Cracker Co., 91 Cal. 140, 27 Pac. 594.

There was also a material variance between the contract set forth in the claim of lien and that proven. In the notice of lien it was stated that the contract was that the corporation was to be paid what the goods were reasonably worth, and that the subcontractor was to deliver to said Wilson & Bro. immediately upon the acceptance of the building, an order for the amount due to said plaintiff by said subcontractor, signed by the original contractor, Henry Behrens, and indorsed by the said Robert R. Hind, etc. The evidence was that Johnston bought the goods at a fixed price, and on his own credit; and there was no agreement in regard to an order upon Hinds, or that plaintiffs were to be paid from the contract price at all.

If these conclusions are correct, other points suggested need not be noticed. The judgment is affirmed.

Jo.

John M. Fulweiler, for appellant. Hamilton and Geo. W. Hamilton, for respondent.

VAN FLEET, J. This is a second appeal. On the former appeal a judgment in favor of the defendant was reversed. Association v. Hill, 32 Pac. 587. Judgment was in favor of plaintiff at the second trial, and defendant now appeals therefrom, and from an order denying his motion for a new trial.

1. There is nothing substantial in the claim that certain of the findings are not sustained by the evidence. Of the material facts in the case, that defendant signed the prospectus which is the basis of the plaintiff's action; that demand was made upon him for the amount of his subscription; and that he has not paid it, or any part of it, the first and last are not denied, while the evidence is uncontradicted in support of the second. The other matters about which there is some controversy in the briefs-whether defendant participated in all the meetings of the board of directors of plaintiff down to the time of his resignation therefrom; whether he consented to the purchase of the Lardner lot; and as to the manner in which the proposed amount of the capital stock of plaintiff was raised from $20.000 to $30,000; and others not necessary to enumerate-are things wholly immaterial to the merits of this action, had no proper place in the pleadings, and, whether correctly found upon or not, can make no difference to the judg ment.

2. The defendant's contention that the prospectus did not constitute a contract, and that he cannot be held liable thereon as such, that his only liability is as a stock holder of the corporation, to be proceeded against by the method of levying and collecting assessments provided by the Civil Code, is conIcluded by the judgment of this court on the former appeal, where it is said: "Under defendant's contract of subscription for the stock of plaintiff as contained in the prosspectus signed by defendant, and upon the facts alleged in the complaint as to plaintiff's calls or demands for the amount agreed to be paid for such subscribed stock, the plaintiff is entitled to maintain this action."

The pleadings remaining unchanged, the construction given them in the former opinion of this court becomes the law of the

case.

The other points demand no special notice. We have examined them, and are satisfied they involve no material error. Judgment and order affirmed.

We concur: HARRISON, J.; GAROUTTE J.

(113 Cal. 392) MACKAY et al. v. CITY AND COUNTY OF SAN FRANCISCO. (S. F. 214.)

(Supreme Court of California. July 22, 1896.) TAXATION-BONDS-NONRESIDENT CORPORATION

CONSTITUTIONAL LAW-ASSESSMENT-UNAUTHORIZED INCREASE DELINQUENCY-PENALTIES.

1. Bonds of a railroad corporation organized in Arizona, payable in New York, and secured by a mortgage in Arizona, may be taxed in California as the property of a permanent resident of California, under Const. 1879, art. 13, § 1, which defines property for the purposes of taxation, and expressly declares it to include, among other things, moneys, credits, and bonds.

2. The constitutional and Code provisions authorizing the taxation of bonds held by a permanent resident within the state, though issued by a nonresident corporation, and secured by a mortgage on property outside the state, are not in contravention of the fourteenth amendment of the federal constitution, which guaranties to all persons the equal protection of the laws.

3. Where the constitution has provided that certain specific things shall be taxed as prop erty, the legislature cannot exempt them.

4. Where railroad bonds, secured by a mortgage on the corporation's property, have been assessed at their face value, the state board of equalization cannot raise the assessment, in violation of Const. art. 13, § 9, which pro vides that "no board of equalization shall raise any mortgage, deed of trust, or other obligation by which a debt is secured, above its face value."

5. A local assessment of railroad bonds was increased without authority by the state board of equalization, and the taxes became delinquent before Act 1893 (St. 1893, p. 32; Pol. Code, § 3819), authorizing a payment of taxes under protest, took effect. Under the then-existing law, payment under protest could not be made until a sale was threatened. The taxes were not paid till after delinquency, and, on payment subsequently under protest, the stat utory penalties were added. Held, that, to entitle the taxpayers to recover the penalties, there should have been a tender, before delin quency, of the taxes due according to the local assessment, where the excess was susceptible of exact calculation.

6. That a holder of bonds refused and failed to pay the taxes thereon under the erroneous conclusion that the bonds were not taxable is not a defense to the statutory penalties for delinquency.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; William R. Daingerfield, Judge.

Action by John W. Mackay and R. V. Dey. executors of the will of Theresa Fair, deceased, against the city and county of San Francisco, to recover taxes levied and assess ed against certain railroad bonds and other

personal property, and paid under protest. From a judgment in favor of plaintiffs, plaintiffs appeal. Affirmed.

Wm. F. Herrin, Byron Waters, Eugene R. Garber, and Isaac Frohman, for appellants. H. T. Creswell and Rhodes & Borden, for respondent.

HAYNES, C. This action is prosecuted by appellants, as the executors of the last will and testament of Theresa Fair, deceased, to recover from the city and county of San Francisco the sum of $31,687.90, the amount of state and city and county taxes for the fiscal year beginning July 1, 1892, levied and assessed upon certain railroad mortgage bonds and other personal property belonging to said estate, which said sum was paid by appellants to the tax collector of said city and county, under protest, on June 13, 1893. The action is prosecuted, under the provisions of section 3819 of the Political Code, a new section, approved February 27, 1893 (St. 1893, p. 32). The action was tried by the court upon an agreed statement of facts, which was adopted by the court as its finding of fact, pursuant to stipulation of counsel, from which the court found as a conclusion of law that plaintiffs were entitled to recover from the defendant the sum of $1,911.55, with interest from June 13, 1893, and costs, and judgment was entered accordingly. James N. Block, as tax collector, was made a party defendant, but the action as to him was dismissed. This appeal is by the plaintiffs from the judgment upon the judgment roll.

The city assessor assessed the personal property of said estate as of the first Monday in March, 1892, as follows: 1,915 6 per cent. bonds of the Southern Pacific Railroad Company of Arizona, of the denomination of $1,000 each, assessed or valued by said assessor at $1,915,000; $3,593 in money; furniture, $3,000; one vehicle, $300,-making a total of $1,921,893. The rate of taxation for city and county purposes was duly fixed by the board of supervisors at $1 on each $100 of the valuation of the taxable property of said city and county. The state board of equalization, for the purposes of state taxation, raised the entire assessment of said city and county, except as to money, 20 per cent., and fixed the rate of the state tax to be levied for that fiscal year at 43.4 cents on each $100. By the local assessment, said bonds were assessed at their face value; and, by the raise made by the state board of equalization, they were assessed for purposes of state taxation at $2,298,000, or $383,000 above their face value. No part of the taxes, either state or local, were paid until after they became delinquent, when the whole of the taxes, both state and local, were paid, with the penalty of 5 per cent. on the local tax, and 15 per cent. on the state tax, and $1 in addition to cover the cost of advertising. Upon said railroad bonds the city and county tax levied upon

their face value amounted to $19,150, and upon the valuation as increased by the state board of equalization the state tax amounted to $9,973. As a consequence of the delinquency, 5 per cent. was added to the city and county tax, amounting to $957.50, and 15 per cent. was added to the state tax, making an addition thereto of $1,495.99. If the state tax had been levied upon said bonds at their face value, the amount thereof would have been $8,311.10, instead of $9,973.32,-a difference of $1,662.22. The penalty for delinquency upon said difference, 15 per cent., is $249.33; and this, added to said difference, makes $1,911.55, for which, with interest from the date of payment, and for costs, the court gave judgment in favor of the plaintiffs; the court holding that the increased valuation by the state board was unauthorized, but that the tax and penalty thereon, being capable of separation, and the bonds being taxable, the plaintiffs should have paid the remainder of the taxes, both state and local, and gave judgment only for the amount so found to be illegally assessed, with the penalty thereon, adding thereto interest and costs. The bonds in question were made by the Southern Pacific Railroad Company of Arizona, a corporation organized and existing under the laws of that territory, are payable in the cityof New York, and are secured by a mortgage executed by said corporation to Henry M. Newhall and Charles Mayne, residents of San Francisco, upon the railroad and telegraph lines, rolling stock, stations, fixtures, and appurtenances of said corporation situated in the territory of Arizona.

Appellants make the following points, upon which they contend the judgment should be reversed: (1) "These bonds are not taxable, because they are not tangible property, and do not inhere in tangible property situated in this state; and it is incompetent for the constitution or statute of the state to make that property-and therefore taxable -which is not property in fact." (2) "The law of California, contained in the constitution as well as in the Code, relating to the taxation of such credits as those taxed in this case, is void, because in contravention of the fourteenth amendment of the federal constitution, which guaranties to all persons the equal protection of the laws." (3) "The legislature of California, at its last session, assumed to correct this evil, by declaring that railroad bonds are not property for the purposes of taxation."

Section 1, art. 13, of the constitution of 1879, is as follows: "All property in the state, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law. The word 'property,' as used in this article and section, is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal and mixed, capable of private ownership; provided that growing crops,