First. That there is no evidence to justify the yerdict of the jury. Second. That the court erred in permitting defendant Fugel to testify to the declaration of Stillwell, an agent of plaintiff, that he, the said Stillwell, had a letter from plaintiff authorizing him to agree to an assignment of a certain lease made by plaintiff to C. H. Kucks and Hugo Fugel, partners, and by them assigned to Fugel and Wettstein, partners.

The second point urged is wholly immaterial, as there was no issue upon the question of the consent of plaintiff to the assignment. His complaint, after averring the assignment of the lease, proceeds as follows: "And that the plaintiff agreed, in writing, to the said assignment."

The facts essential to an understanding of the real question involved are that plaintiff leased certain premises to C. H. Kucks and Hugo Fugel, co-partners under the name of C. H. Kucks & Co., for the term of four years from the 1st day of January, 1890, at the monthly rental of $75 for the first year, and $100 per month thereafter, payable monthly in advance. On or about September 1, 1892, Kucks sold his interest in the co-partnership to A. Wettstein, who formed a co-partnership with Fugel under the firm name of A. Wettstein & Co. The lease was assigned to the new firm, as before stated, with the consent of plaintiff. The new firm paid the rent reserved in the lease for some time, but finally became insolvent; and, Kucks having paid the rent up to the assignment of the lease, the real question is, did be continue liable for the rent accruing thereafter, or was he released therefrom by operation of law, or by the act or agreement of the parties? In the absence of some agreement to the contrary, the tenant who, as in this instance, assigns his whole term, remains liable as a surety. The assignee becomes liable directly to the lessor upon all the covenants of the lease which run with the land, and his assignor remains his surety to the lessor for the performance of such covenants. Armstrong v. Wheeler, 9 Cow. 88; Babcock v. Scoville, 56 Ill. 461; Salisbury v. Shirley, 66 Cal. 223, 5 Pac. 104; Greenleaf v. Allen, 127 Mass. 248; Wilson v. Gerhardt, 9 Colo. 585, 13 Pac. 705. But the question remains, was there a substitution of tenants, by consent of the parties, with an agreement that the original tenants should be released from further liability? The jury, under proper instructions from the court, found in the affirmative on this issue. The evidence in support of the verdict cannot be said to be entirely satisfactory. Still, as there was some testimony in favor of the finding of the jury, and as the court below, by refusing a motion for a new trial, evidenced its satisfaction with the verdict, we do not feel at liberty to crystallize our doubts into action by setting aside such verdict. Meyer v. Insurance Co., 104 Cal. 381, 38 Pac. 82; Mahan v. Wood, 105 Cal. 12, 38 Pac. 507; White v. Beer, 105 Cal. 9, 38 Pac. 513; Warv.45r.no.12-53

ner v. Cleaning Works, 105 Cal. 409, 38 Pac. 960. We recommend that the judgment and order appealed from be affirmed.

We concur: BRITT, C; HAYNES, C.

PER CURIAM. For the reasons given is the foregoing opinion the judgment and order appealed from are affirmed.

(113 Cal. 541) PACHECO ▾. JUDSON MANUFG CO. (S. F. 243.)1 (Supreme Court of California. July 28, 1896.) DEFECTIVE MACHINERY-FAILURE TO INSPECT LEADING QUESTIONS-COLLATERAL ISSUEOPINION EVIDENCE.

1. An employé injured by the breaking of shears used in cutting iron is entitled to go to the jury on the question of negligence, there being evidence that there was an old crack part way across the lever which broke; that it could have been detected by reasonable and practicable tests, which were not applied, though it was not perceptible by ordinary observation, and was not known; that such shears sometimes break in use; and that shears of similar char acter, though somewhat lighter, had broken in defendant's manufactory.

2. A question whether instructions were giver by those in charge "about picking out quick and active men [to work at the shears], so that they might get away from the shears in case of ar accident," is leading, and calls for an opinion.

3. Where an employé seeks recovery for injury from the breaking of shears used in cutting iron, on the ground of negligence in not having them inspected, plaintiff, while he may show that similar shears used by defendant broke, because tending to establish the propriety of inspection, cannot show that they broke because of faulty construction, as this would raise an irrelevant, collateral issue.

4. While an expert may establish that, a crack in iron machinery could have been ascertained in certain ways, he cannot testify as to whether it "could not have been discovered by the exercise of ordinary care and precaution"; this being part of the ultimate question of negli gence for the jury.

Commissioners' decision. Department 1. Appeal from superior court, Alameda county.

Action by Maurice Pacheco against the Judson Manufacturing Company. Judgment for defendant. Plaintiff appeals.

M. C. Chapman, for appellant. & Abbott, for respondent.

Reversed. Fitzgerald

BRITT, C. Defendant is a corporation engaged in the business of manufacturing iron and steel machinery. On April 7, 1892, plaintiff was employed at its works, and while he was assisting in cutting up a plate of boiler iron by means of a pair of shears weighing some 12 tons, and operated by steam, the casting forming the body of the lever or upper jaw of the shears broke. A fragment thereof fell upon plaintiff, and he sustained serious injury. He prosecutes this action to recover damages, claiming that defendant was negligent, both in the construction of the shears, and the oversight of them after completion. At the trial, plaintiff having 1 Rehearing denied.

closed his evidence, the court directed a nonsuit, observing that a case of ordinary neglect by defendant was not made out.

It seems to have been assumed by the court and the parties, on the trial, that danger to the person of plaintiff was to be apprehended as a result of the breaking of the shears. This being predicated, there was evidence that the shears were made by defendant itself about October, 1891. The jaw or lever which broke was a heavy casting, having a perpendicular section of two feet or more, and a breadth of about eight inchIt moved on a horizontal journal, which was lubricated through a tube extending from an oil hole at the top of the casting to the journal. Oil poured into this tube sometimes ran over on the outside of the casting.

es.

When the casting broke, the line of the fracture extended through the same from a point close to the oil hole diagonally downward to the lower side. There was further evidence-not without conflict-that one side of the sectional area exposed by the fracture looked blue and fresh, as if then just broken, and that the other side, nearly onehalf of the broken surface, was black, and more or less stained with oil, as if it had been previously cracked, and oil had run down the crack. The exterior of the casting was covered with dust, and it is not claimed that the crack, if any there was before the event in question, was known to any one, or was perceptible by ordinary observation. It was, however, in evidence that such a crack, if it existed, might have been detected by applying tests, as by sounding the casting with a hammer; that the only test of the shears ever made was in their practical operation about the work for which they were constructed, they having previously cut metal much heavier than the piece on which the lever broke; that such shears sometimes break in use; and that shears of similar character, though of lighter construction, had broken in defendant's works. Defendant owed to plaintiff, as its servant, the legal duty to exercise ordinary and reasonable care-First, in the original provision of safe appliances with which he was to work, and, secondly, in keeping them safe; employing, if necessary for this purpose, such practicable means and tests as common prudence shows to be proper for discovering defects which might occur with time and use. While we have not found in the record any sufficient evidence that the defendant was negligent in the original construction of this machine, yet the evidence was such that the jury might have deduced as inferences therefrom that, previously to the breaking which was the immediate occasion of injury to plaintiff, the shears were cracked and weakened; that this condition was so far to be reasonably anticipated as to render prudent the adoption of measures for its discovery, and would have been detected by the application of reasonable and not im

practicable tests; that such tests were not applied; and that the shears broke on account of such discoverable defect. Whether these inferences, and the conclusion of negligence thereon, should be drawn from the evidence, was a question of fact, "to be determined from all the circumstances and surroundings of the case." Sappenfield v. Railroad Co., 91 Cal. 56, 27 Pac. 590. As is sometimes said, whether negligence can be inferred from the evidence is for the determination of the court, but whether it ought to be inferred is a question for the jury. Here it might have been, and the court erred in ordering a nonsuit. Sappenfield v. Railroad Co., supra; Alexander v. Mill Co., 104 Cal. 532, 38 Pac. 410; Bowman v. White (Cal.) 42 Pac. 470; Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. 574; Huddleston v. Lowell Machine Shop, 106 Mass. 282; Baker v. Railroad Co., 95 Pa. St. 211; Brann v. Railway Co., 53 Iowa, 595, 6 N. W. 5; Busw. Pers. Injur. § 194.

Plaintiff complains of the action of the court in sustaining objections to sundry questions put to his witnesses. Thus, he inquired of a witness whether instructions were given by those in charge "about picking out quick and active men [to work at the shears], so that they might get away from the shears in case of accident." If such instructions were given, plaintiff was entitled to prove the fact, as tending to show that defendant knew the shears to be a dangerous instrumentality. Smith v. Whittier, 95 Cal. 279, 30 Pac. 529. But the objection made included the points that the question was leading, and asked the opinion of the witness, and we cannot see that it was error to sustain it on these grounds. So, the court refused to allow a question ́which counsel said was designed to show that many other shears made by defendant for cutting iron at its works had broken, from defendant's ignorance in their manufacture. While it was permissible to show that similar shears used by defendant broke,-which, in fact, was shown,-because this tended to establish the propriety of inspecting such machinery for defects, yet it was not competent to inquire whether such other shears broke because of faulty construction. Defendant would have had equal right to rebut the imputation, and so an irrelevant, collateral issue would have been tried. 1 Greenl. Ev. 448. The court rightly sustained an objection to the question put to an expert witness, whether a crack descending through one side of the casting "could not have been discovered by the exercise of ordinary care and precaution." He could properly testify (as, in effect, he did subsequently) that the defect was ascertainable by employing some of the methods described by him; but whether this would have been the "exercise of ordinary care and precaution" was part of the ultimate question of negli gence, for determination by the jury.

Other assignments of error either are unfounded, or relate to matters not of probable occurrence on a new trial, and do not require discussion. The judgment should be reversed.

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

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

(113 Cal. 561)

ORTON v. BROWN et al. (S. F. 290.) (Supreme Court of California. July 28, 1896.) APPEAL BILL OF EXCEPTIONS-IRREGULAR SALE ON EXECUTION-LIABILITY OF SHERIFF. 1. It is the duty of counsel for an appellant to see that the evidence is fully set out in a bill of exceptions when he desires to have questions of fact reviewed; and where he has assented, by stipulation, to the manner in which it is stated in amendments proposed by appellees, he cannot be heard to complain that the trial court settled the bill as stipulated.

2. A sale of personal property by a sheriff on execution in bulk, when it should have been sold in several lots, is irregular, but not void; and, not being subject to confirmation, the purchaser is entitled to possession of the property on payment of the bid, and the sheriff can only be held liable for it thereafter in case he wrongfully fails to retake it after the sale is set aside.

Commissioners' decision. Department 1. Appeal from superior court, Humboldt county; G. W. Hunter, Judge.

Action by William Orton, assignee, against T. M. Brown and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. W. Turner, for appellant. Buck & Cutler, for respondents.

HAYNES, C. Action upon sheriff's bond. Judgment was entered for defendants upon the verdict of the jury, and plaintiff appeals only from the order denying his motion for a new trial. Plaintiff is the assignee of the Consumers' Lumber Company, an insolvent corporation, which operated in Humboldt county, and defendant Brown is the sheriff of said county. On May 2, 1891, and prior to the insolvency proceedings, one Georgeson obtained judgment against said corporation for the sum of $1,031.58 and costs, in which action the plaintiff attached certain lumber and shingles; and on May 7th an execution was levied on said property, which was afterwards, on May 20, 1891, sold by the sheriff in one lot, and not in separate parcels, for the sum of $700, to H. H. Buhne, Jr. On May 23d said corporation served notice upon the judgment creditor, the sheriff, and said purchaser, that on May 28th it would move the court to set aside said sale, upon the ground of irregularity, specifying that the sale was conducted in disregard of the requirements of section 694, Code Civ. Proc., in that 596,000 feet of lumber and 326,000 shingles were sold in one lot for a grossly inadequate price. Said motion was heard on June 3d, and an

order was made vacating the sale, and ordering "that the money paid by the sheriff to satisfy preferred claims be returned to the sheriff by the parties receiving the saine, and that the $700 paid by Mr. Buhne for the property be returned to him by the sheriff," and ordering a resale of said property to be made according to law. On June 23, 1891, Buhne appealed from said order, and on November 21, 1892, the supreme court affirmed the order. 31 Pac. 257. On June 20, 1891, certain creditors of said corporation commenced proceedings in insolvency against it; and on August 14, 1891, it was adjudged an insolvent debtor, and said judgment was, on appeal, affirmed May 20, 1893 (33 Pac. 196), and plaintiff was thereafter appointed assignee. The foregoing facts, alleged in the complaint, are not disputed; but the complaint further alleged that it was the duty of the sheriff to take and hold said lumber and shingles under the said process and order of the court, and to safely keep the same in his custody and possession, so that the same could be subjected to sale, and, on information and belief, further alleged that he did not do so, but that he colluded, confederated, and conspired with said Buhne, and willfully and in violation of his duty agreed that Buhne should take said lumber and shingles out of his possession, and "that said lumber and shingles were taken out of his custody and possession by said Buhne," to the damage of said corporation in the sum of $6,300; "and thereby the said sheriff placed it beyond his power to again sell said lumber and shingles, in obedience to the lawful commands of said court." The prayer was for judgment for the said sum of $6,300, with interest from May 20, 1891. The answer admitted the levy upon and sale of the property to Buhne in the manner and for the sum alleged, and that said sale was set aside, and that Buhne appealed from said order, and denied specifically all allegations of the complaint charging the defendant Brown with misconduct or neglect.

Upon the trial, the plaintiff introduced several witnesses, whose testimony, we assume, sustained his allegation as to the value of the lumber and shingles. He also put in evidence the execution under which said property was sold, with the return of the sheriff thereon. The return, after reciting the levy and notice of sale, and giving a list by numbers and dimensions and quality of the lumber, and the quantity of the shingles, proceeded as follows: "And sold the whole of the same in one lot or parcel to H. H. Buhne, Jr., for the sum of $700, United States gold coin, said purchaser being the highest bidder, and said sum being the highest bid for the same. And I further certify that thereafter, on the 3d day of June, A. D. 1891, the sale was vacated and set aside by the Honorable G. W. Hunter, superior judge of Humboldt county, California, and a resale ordered, and

thereafter H. H. Buhne appealed to the supreme court from such order. Dated July 6, 1891." The plaintiff called said sheriff as a witness, and he testified as follows: "I remember the sale of lumber and shingles under that execution. I made it myself. I sold it to Buhne for $700. I had notice that the sale was set aside by the court. I gave a certificate of sale to Buhne. After the sale was set aside, I did not retake the lumber from Buhne. The greater portion of it had been taken away. I don't know when the lumber was taken away. I only know by hearsay. It was never sold under the order of the court. I remember after the supreme court affirmed the order of the court setting aside the sale that you talked to me about it. I don't know when the lumber was removed." No other evidence was given or offered on behalf of the plaintiff. As to the evidence on behalf of the defendants, the bill of exceptions does not set it out, but proceeds to state that "defendants introduced evidence tending to prove the following facts:" That after the sale and delivery of the lumber to Buhne, and before the sheriff had notice that the sale had been vacated, the purchaser had taken and converted the same to his own use and placed it out of the power of the sheriff to retake or resell the same. "Defendants also introduced evidence tending to prove" that the lumber was so spoiled in manufacturing, and by being covered with sand, that it had no market value at the time of sale. "Defendants also introduced evidence tending to prove" that it was not the duty of the sheriff to retake said lumber after said sale, or to keep it in his custody or possession until disposed of under the order of the court; that said sheriff did not collude or conspire with Buhne in contempt of the process and orders of the court, or at all, or consent that said property should be taken out of his custody or possession, except as the same was delivered to said Buhne as the purchaser at said sale and by virtue thereof. The specifications upon which plaintiff's motion for a new trial was based are that the evidence is insufficient to justify the verdict; that the verdict is against law; and that the court erred in giving and refusing certain instructions.

The opinion of the court in passing upon the motion for new trial is printed in the transcript, and a considerable portion of it, and a larger portion of appellant's brief, are devoted to criticising the bill of exceptions upon which said motion is based as to the manner in which the evidence on behalf of the defendants is stated. Appellant's counsel prepared the proposed bill, from which was omitted all reference to the evidence on behalf of defendants. Defendants' counsel prepared amendments in the form hereinbefore stated, viz.: "That defendants introduced evidence tending to prove" certain facts, which were briefly stated. It was stipulated by counsel for the respective par

ties that "the judge of said court may sign the bill of exceptions presented herein as correct," and the judge, "upon the foregoing stipulation," settled and allowed it. There are many cases in which such reference to the evidence is sufficient and proper, as where the exception goes to some ruling upon a question of law, where the weight or conclusiveness of the evidence is not involved, but only the fact that some evidence has been given upon a particular point or issue; but it is not proper where the weight or effect of evidence is to be considered, as upon motion for new trial, where the ground of the motion is the insufficiency of the evidence to justify the verdict or finding. It was the duty of counsel for the moving party to incorporate in his bill of exceptions all of the evidence which, in his judgment, was material to the questions he intended to urge upon the hearing. Not having done so, it was the right of counsel for defendants to propose amendments, and, if these were not properly prepared, he should have aided in their correction, or refused to stipulate that the bill might be settled as amended; but, having so stipulated, he has no right to assail court or counsel for the result, or contend that it was the duty of the court to insert the evidence on behalf of the defendants in order that he may have the facts reviewed by this court. In his reply brief, he asks: "What is there for this court to review? In this case appellant is prevented from having the testimony introduced by defendants reviewed by this court. Can such a method of settling a bill of exceptions be approved? No." It is quite true that it is the duty of the court, in settling a bill of exceptions, to see that it speaks the truth, notwithstanding the parties assent to an inaccurate statement; but it is not contended that the bill in question contains any false or inaccurate statement, but the complaint is that the manner in which defendants' evidence is stated is not proper, and that it was the duty of the court, notwithstanding counsel's assent to the form and matter of the amendments, to write out the evidence in full,-a duty not imposed upon the court, but which rested upon counsel for appellant if he desired to have that evidence reviewed. The position of counsel would justify this court in refusing to consider the evidence, and in affirming the order denying a new trial, so far as questions of fact are concerned. At the least, we shall be compelled to hold that the statement of defendant's evidence is sufficient to show a material conflict as to all questions of fact therein stated, and, unless the order denying a new trial should be reversed upon other grounds, it must be affirmed.

The plaintiff requested the court to give to the jury the following instruction, which was refused: "I further charge you that the return made by the sheriff to the writ

of attachment or the writ of execution, while prima facie evidence in his favor, is conclusive against him and also his sureties in this action, and that he and they are estopped disputing the truthfulness of the same and the legal effect thereof." The return to said writ has been quoted herein. It shows a sale made thereunder on May 20, 1891, in one lot, of all the lumber and shingles to Buhne, for $700, and that on June 3d said sale was vacated, and a resale ordered. All these facts were alleged in the complaint, and not denied in the answer, and were therefore admitted; and the jury had already been instructed that it was admitted by the pleadings that the sheriff had taken the property into his possession under the execution, and the court added: "I charge you that the return made by the sheriff to the writ of execution in said action is prima facie evidence of the facts in such return stated." The instruction requested by the plaintiff only added that it was conclusive against him. But it could be conclusive only as to the facts shown by such return, and, these facts being admitted, the instruction given, which was excepted to only so far as it declared the return to be prima facie evidence, fully informed the jury that there was no controversy as to any fact stated in the return.

But, conceding that the return of the sheriff is conclusive against him, of what facts is it conclusive? It is conclusive of the fact that he levied upon the property, and had it in his possession; that he sold it in the manner and for the price therein stated, and that the sale was set aside. Such sales are not subject to confirmation by the court, nor has the execution defendant any right of redemption. The sale is completed by the payment of the sum bid, and the purchaser is then entitled to the immediate possession of the property, and it was not thereafter in the custody or possession in fact of the sheriff, nor did he have the right to regain the possession until the sale was set aside by the court; and any subsequent possession of the property could only be acquired by a retaking. If the sale had been absolutely void upon the face of the return, such return would show the legal custody and possession of the property still in his hands. But the sale was not void, though it was ir regular. San Francisco v. Pixley, 21 Cal. 56; Hibberd v. Smith, 67 Cal. 547, 4 Pac. 473, and 8 Pac. 46; Frink v Roe, 70 Cal. 303, 11 Pac. 820; Marston v. White, 91 Cal. 40, 27 Pac. 588. The liability of the sheriff, if he is liable, could only be for his failure to retake the property after the sale was set aside; and whether he was liable for such failure involves questions of fact, as to which the record, as already stated, shows such conflict in the evidence as will not permit the verdict of the jury to be disturbed.

Plaintiff's second request, which the court

also refused to give, is sufficiently covered by what has been said above. It is based upon the theory that the property was lost because not sold, as required by law. The argument of counsel is that, because the sheriff once had the property in his possession, he could only be discharged by an affirmative showing, and that no discharge is pleaded. But the facts alleged in the complaint showed that Buhne, the purchaser, acquired the actual and lawful possession, and the burden was therefore upon the plaintiff to show that, in the proper discharge of his official duty, the sheriff could have retaken the property after the sale was set aside; and here, again, we are brought face to face with a question of fact. We see no error in the refusal of the court to give these instructions.

That the verdict is not against law sufficiently appears from what has been said, nor is it contrary to the allegations and admissions in the pleadings. The order appealed from should be affirmed.

BECKER v. FEIGENBAUM. (S. F. 103.) (Supreme Court of California. July 31, 1896.) CONVERSION-PRINCIPAL AND AGENT-DEMANDTRIAL.

1. Where error is predicated on the court's failure to give certain instructions, they must appear in the record.

2. In conversion, where plaintiff alleges that she placed in the hands of defendant, as her agent, a sum of money to be loaned on security, and defendant denies the agency, plaintiff need not allege or prove a demand on him for the money before suit.

Commissioners' decision. Department 1. Appeal from superior court, Humboldt county; G. W. Hunter, Judge.

Action by Susan Becker against Ludwig Feigenbaum for conversion. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. F. Coonan and J. N. Gillette, for appellant. Chamberlain & Wheeler, for respondent.

BRITT, C. It is alleged by plaintiff that she placed in the hands of defendant, as her. agent, a sum of money, to be loaned on security, and that he converted a large part of it to his own use. She had a verdict and judgment for the amount thus converted. Defendant denied the agency, and resisted the action on the ground, alleged among others, that an account had been stated between the parties, by which a sum was found due to plaintiff much less than that now demanded by her. At the trial an exception was