in the knowledge of the opposite party," (Id. *370.) In cases of negligence the sufferer may only know the general, the immediate cause of the injury, and may be entirely ignorant as to the specific acts or omissions which lead up to it. Bliss, in his work on Code Pleading, at section 308*, gives the following illustration: "The driver upsets a stage coach, and breaks a passenger's arm. Careful driving will hardly have such a result. The passenger knows there has been negligence, but he may not know in what it consisted. The driver may have been drunk and asleep. He may have so harnessed the horses that they would not obey the rein, or may have made them unmanageable by improper treatment. The plaintiff can only prove that the coach was turned over. The presumption is that it was the result of negligence; if not, the defendant can show it." The term "negligence," for the purpose of pleading, is a fact to be pleaded,-an ultimate fact, which qualifies an act otherwise not wrongful. Negligence is not the act itself, but the fact which defines the character of the act, and makes it a legal wrong. The absence of care in doing an act which produces injury to another, is actionable. The term "negligence" signifies and stands for the absence of care. "Negligence is the ultimate fact to be pleaded, and it forms part of the act from which an injury arises.

* It is the absence of care in the performance of an act, and is not usually the result of such absence, but the absence itself, and is not, therefore, a mere conclusion of law, and may be pleaded generally." Railroad Co. v. Wolfe, 80 Ky. 84.

As a result of the application of these principles to code pleading in cases of negligence, and to others of kindred character, it is held in this state, and in nearly all of the United States, that it is sufficient to allege the negligence in general terms, specifying, however, the particular act alleged to have been negligently done. Thomp. Neg. 1246. Tested by these rules, the complaint, which was not demurred to, stated facts sufficient to constitute a cause of action. The case of Schindler v. Railway Co., decided by the supreme court of Michigan November 1, 1889, and reported in 43 N. W. Rep. 911, relied upon by appellant, at first blush seems in point; but an analysis of the complaint by the court shows that the inference drawn therefrom was that the driver of the sleigh was not shown to have relied, or had any reason to rely, on the train remaining still till he could pass, or that it started unexpectedly or improperly when it should have waited, or that it was improperly started. "This," says the court, "if it existed, would have been a very important element in the case." Again, the court says: "All that is averred is simply that defendant negligently struck a sleigh at a road crossing, the driver not being in fault." In the present case the complaint avers that the

defendant's engine was standing on its track within 25 feet of the crossing; that the driver of the street car stopped, and, upon ascertaining that the engine was not in mo tion, started to cross the track, and when near it "the engineer of the defendant's engine negligently and carelessly gave his engine steam, and commenced to back the said locomotive upon the track towards and upon the street car aforesaid," etc. From this it will be seen the act by which the injury was brought about and the negligent manner of its performance is specified. The statement of other facts auxiliary to this main fact might have tended to a dearer conception of the principal act, but the most there can be said against the pleading is that it states a cause of action, but states it imperfectly, which is the equivalent of saying that it is good except as against a special demurrer. The nonsuit was properly denied.

There was evidence tending to show such negligence on the part of defendant, and contributory negligence on the part of plaintiff, as made it proper to submit the question to the jury. Where the facts are admitted or proven without contradiction the court will determine whether or not they estab lish negligence or show contributory negligence; but where the conclusion is open to debate it is one for the jury under proper instructions from the court. Fernandes ▾ Railway Co., 52 Cal. 45; Orcutt v. Railway Co., 85 Cal. 291, 24 Pac. Rep. 661; Whalen v. Railroad Co., 92 Cal. 669, 28 Pac. Rep 833; Wilson v. Railroad Co., 62 Cal. 164; Davies v. Steamship Co., 89 Cal. 280, 26 Pac Rep. 827. The following instruction was given at the request of plaintiff: "If the jury believe from the evidence that the de fendant was guilty of negligence, as charged in the complaint, and that the plaintiff was injured thereby, your verdict should be for the plaintiff, and that whether such negli gence appears or is proved by the testimony on the part of the plaintiff or by defendant's own witnesses." This instruction entirely ignores the question of contributory negli gence on the part of plaintiff, and is, there fore, not in itself a complete and correct statement of the law, and the defendant insists that the judgment should be reversed for this reason. In answer to this contention it is sufficient to say that the rule is well settled here that instructions are to be read and considered as a whole, and the fact that, when taken separately, some of them may fail to enunciate in precise terms, and with legal accuracy, propositions of law, does not necessarily render them erroneous. "It is sufficient if all the instructions, taken to gether, and not being inconsistent with each other or confusing, shall give to the jury a fair and just notion of the law upon the point discussed." Davis v. Button, 78 Cal 247, 18 Pac. Rep. 133, and 20 Pac. Rep. 545; People v. Lee Chuck, 78 Cal. 339, 20 Pac

Rep. 719; Monaghan v. Rolling-Mill Co., 81 Cal. 190, 22 Pac. Rep. 590; Murray v. White, 82 Cal. 119, 23 Pac. Rep. 35; Doty v. O'Neil, 95 Cal. 244, 30 Pac. Rep. 526; People v. Turcott, 65 Cal. 126, 3 Pac. Rep. 461. Tested by this rule, we do not think the particular instruction complained of could possibly have misled the jury. The second instruction on the part of plaintiff was in part as follows: "The jury are instructed that in determining the question of negligence in this case they should take into consideration the situation and conduct of both parties at the time of the alleged injury as disclosed by the evidence; and if the jury believe from the evidence that the injury complained of was caused by the negligence of the defendant's servants, as charged in the complaint, and the plaintiff acted as was reasonably to be expected of a person of ordinary care and prudence in the situation in which she found herself placed, then the plaintiff is entitled to recover." The fourth, eighth, ninth, tenth, and eleventh instructions asked by plaintiff all contained similar expressions, indicating the right of plaintiff to a recovery, to be subject to the exercise on her part of such reasonable care as a person of ordinary judgment and prudence would exercise under like circumstances. 'The second instruction, given by the court at the request of defendant, was as follows: "Second. The court instructs the jury that if you believe from the evidence that the plaintiff jumped from the street car after it had passed from a place of danger, or apparent danger, to a place of safety, and that a person of ordinary intelligence under like circumstances would have known that the danger was passed, and would not have jumped from the car at the time plaintiff did, you should find for the defendant." It will thus be seen that the jury were over and over again instructed in clear and explicit language that the plaintiff was not entitled to recover unless she was at the time of the accident herself exercising ordinary care to avoid the njury of which she complained, and it is not reasonable to suppose that the jury was nisled to the prejudice of appellant because he first instruction omitted to say anything Ipon the subject of the effect of contributory negligence upon plaintiff's right of recovery. Ve find no substantial error in the record. 'udgment and order affirmed.

MULKEY ▼. MULKEY. (No. 18,046.) Supreme Court of California. Oct. 13, 1893.)

DIVORCE-SETTING ASIDE DECREE. Code Civil Proc. § 473, provides that he court may, after notice to the adverse pary, on such terms as may be just. relieve a arty from a judgment taken against him hrough his mistake, inadvertence, surprise, or xcusable neglect. Defendant suffered a deault in a suit for divorce for adultery, brought y her husband, who was awarded the custody

of the children and the entire community property. She applied to vacate the judgment under said section, and, by affidavit annexed, swore that her husband told her said suit would be brought for desertion. Held that, in view of the harshness of the judgment, the court should have set it aside, whether defendant had colluded with, or had been deceived by, her husband; her application and affidavit showing sufficiently the grounds of her proposed

answer.

Department 2. Appeal from superior court, Modoc county; G. G. Clough, Judge.

Action by David E. Mulkey against Sarah N. Mulkey for a divorce. Judgment for plaintiff. Defendant's motion to set aside judgment denied. Defendant appeals. Re

versed.

Spencer & Raker, for appellant. D. W. Jenks and J. D. Goodwin, for respondent.

FITZGERALD, J. The transcript in this case contains two appeals,-one from the judgment decreeing to plaintiff a divorce on the ground of adultery; the other, from an order denying defendant's motion to vacate and set aside the judgment. The complaint was filed April 6, 1891, and the defendant served with process April 8, 1891. On the

21st day of April, 1891, the defendant having failed to appear and answer, default was duly entered against her, and on the 23d day of April, 1891, the court, upon the testimony taken before it, found that all the allegations of the complaint were true, and thereupon judgment was accordingly entered, granting to plaintiff a divorce from the defendant on the ground stated. The judgment awarded to plaintiff the four minor children, three of whom were girls, the eldest being about eight years of age, and assigned to plaintiff all of the community property. The motion was made on all the grounds enumerated in section 473, Code Civil Proc., and upon the further ground of the disqualification of the presiding judge, and was heard on notice and affidavits of the defendant and others, including one of merits, and was resisted by opposing affidavits.

An affidavit of merits on grounds of public policy has no place in a proceeding of this character. McBlain v. McBlain, 77 Cal. 507,

20 Pac. Rep. 61. The motion should have been heard and determined alone upon the grounds stated in the notice and affidavits. The facts stated in the affidavit of defendant show either collusion between the parties, or that the defendant was grossly misled and deceived by her husband as to the ground of the proposed action; he having informed her, as she states, that it would be brought on the ground of desertion. In either case the court should have been prompt to set aside the judgment and allow the defendant to answer, so that the case might be heard and determined on its merits. The judgment is a harsh one, and fearful in its consequences. It deprives the defendant, among other things, of children, home, prop

erty, and character. To justify such a judgment, the evidence should always be clear and convincing; and when obtained in an action of this character, under circumstances such as are disclosed by the record in this case, it should, upon a proper application, made by the defendant for that purpose, be vacated without hesitation, and a much slighter showing than the one here made would be amply sufficient for the purpose. The affidavit of the defendant, in so far as it purports to be an affidavit of merits, was, as we have stated, immaterial; but in this case, although the practice is not to be commended, it serves the purpose of a proposed answer by specifically denying the material allegations of the complaint, thereby showing what the answer would be if permitted to be filed. This is a sufficient reply to respondent's claim that no draft of any proposed answer accompanied the application. Judgment and order reversed, and cause remanded, with directions to the court below to vacate and set aside the judgment, and to allow the defendant to answer within a reasonable time.

We concur: DE HAVEN, J.; McFARLAND, J.

EASTON V. CRESSEY. (No. 18,101.) (Supreme Court of California. Oct. 13, 1893.) LIQUIDATED DAMAGES-CONTRACT FOR SALE OF LAND.

Plaintiff agreed with defendant to buy certain land, and pay "$1,000 cash deposit," and, on or before a certain date, $2.500, and then to give a mortgage back for $3,320; if plaintiff should fail to pay the $2,500 on said date, the contract to be void as to plaintiff, and the $1,000 to be retained by defendant as liquidated damages. Plaintiff did not pay on said date, but wrote defendant, a week later, explaining why he had not been able to do so, saying that he was now ready, and that a draft on him for $2,500 would be honored, and the mortgage executed. Defendant did not answer said letter, and refused to fulfill the contract, or return the deposit. Held that, having suffered no actual damages by plaintiff's default, he was liable for the whole deposit, in view of Civil Code, §§ 1670, 1671, which forbid contracts for liquidated damages for breach of an obligation unless, from the nature of the case, it would be impracticable to fix the actual damage.

Department 2. Appeal from superior court, Stanislaus county; William O. Minor, Judge. Action by George Easton against A. L. Cressey for money had and received. Judgment for plaintiff. Defendant appeals. Af firmed.

der denying a motion for a new trial facts found by the court are substandal follows: On September 7, 1887, the pa made a written agreement by which the pellant, Cressey, agreed to sell to responde Easton, a certain piece of land, upon the terms: Easton was to pay "one thousz dollars cash deposit," and on or before vember 1, 1887, was to pay $2,500, and wa also, on said last-named day, to exete mortgage upon the land to Cressey for 320. Then Cressey was to convey the land Easton. It was provided in the agree that, if Easton should fail to pay the on November 1st, "then this contract & be void, so far as said Easton is concerns, and that the $1,000 cash should be NUDE by Cressey as "liquidated damages." Es paid the $1,000 when the contract was LE but did not pay the $2,500 on November because, as he says, Cressey was absent f home. Cressey, however, had left a d conveying the land to Easton in the B of Modesto, at the city of Modesto, of whe bank Cressey was president, to be delive to Easton upon payment that day of the 500. But, on November 8th, Easton, lived at San Francisco, wrote to Cressey, ing him the reason why he had not paid th money on the 1st; that he was ready to s tle according to the. terms of the contr and that a draft on him for the amer would be promptly honored, and the r gage executed. Cressey received this lett but made no reply. Easton wrote him a to the same effect on November 28th, b.. Cressey did not answer the letter. The o finds that on November 1, 1887, Easton wiand ever since has been, "ready, able, will and anxious" to make said payment of §500, and execute said mortgage, and th Cressey "has at all times since November 1887, refused to carry out the terms of th contract between the parties, or to perfor any" of its covenants or conditions. No par of the $1,000 has been repaid, and Cress, has not been damaged by any act or omissi of Easton in the premises. This action was brought by Easton to recover the said "o thousand dollars' cash deposit."

The foregoing findings are, we think, warranted by the evidence; and, that being so, the judgment is right. The provision in the contract for liquidated damages was vod under sections 1670 and 1671 of the Civi Code, (Drew v. Pedlar, 87 Cal. 443, 25 Pac Rep. 749;) and the rule governing the case st bar is "that, when a contract of sale an purchase of lands is abandoned or rescinded by the parties, the vendee, though in de fault, may recover back installments paid of the purchase money, less the actual damage to the vendor, occasioned by his breach of contract," (Phelps v. Brown, 95 Cal. 572, 3 Pac. Rep. 774; Drew v. Pedlar, supra.) And it was clear that appellant did not suffer any actual damage from the failure of respond ent to pay the $2,500 on the very day named

he contract. Appellant introduced evie tending to show a depreciation in the ket value of the land, the removal by him cloud on the title, etc.; but we cannot of what importance these matters were, n respondent was willing, able, and ous to take the land, and pay the contract e. The judgment and order appealed a are affirmed.

'e concur: DE HAVEN, J.; FITZGERD, J.

PEOPLE v. MORPHY. (No. 20,981.) preme Court of California. Oct. 13, 1893.) LSE PRETENSES-REPRESENTATIONS BY SALESMAN-CHEAPNESS OF PRICES.

A prosecution for obtaining money unfalse pretenses cannot be maintained by son of representations by a traveling salesn to a customer as to the importance of the ise he represented, and the cheapness of its ces compared with others, where the goods d are as represented. Commissioners' decision. Department 2. peal from superior court, Stanislaus coun; William O. Minor, Judge.

J. Morphy was convicted of obtaining oney by false pretenses, and appeals. Rersed.

L. J. Maddux and T. S. O'Donnell, for apllant. Atty. Gen. Hart, for the People.

TEMPLE, C. This is a prosecution for obining money by false pretenses, and the dendant, having been convicted, appeals om the judgment.

The indictment was demurred to on the round that it does not state facts sufficient › constitute a public offense, and, after coniction, a motion in arrest of judgment was ade on the same grounds. The indictment harges that defendant, "with intent to deraud one John F. Copeland of his personal property, did unlawfully, knowingly, and deignedly falsely pretend and represent to the aid John F. Copeland that he, the said C. Morphy, did then and there represent a firstlass wholesale grocery firm in the city of San Francisco; that he had no rent to pay and no expenses to pay, and that he could and would then and there sell and deliver groceries to the said John F. Copeland at the town of Hickman, in said Stanislaus county, twenty-five per cent. cheaper than they could be purchased in Modesto, Oakdale, or Stockton, and that all groceries sold by him would be of first-class quality and of full weight and quantity; and the said John F. Copeland, then and there believing said false pretenses and representations so made as aforesaid by the said C. Morphy to be true, was thereby induced to, and did then and there, purchase a bill of groceries from the said C. Morphy, and pay to him therefor the sum of one hundred and eighty-four and 50-100 dollars, the said amount being then and there

fifty dollars and over more than the same bill of groceries could then and there have been purchased for in Modesto, Oakdale, or Stockton." The indictment then proceeds, restating each representation, to charge that it was false, and that the defendant knew it; that said Morphy could not and would not sell or deliver groceries at the town of Hickman cheaper than they could be purchased at Stockton, Oakdale, or Modesto; that all groceries sold by him would not be first-class, or of full weight or quantity; that said Morphy then well knew that all and each of said representations were then and there wholly false and untrue; "and the said C. Morphy did then and there unlawfully, knowingly, and designedly, by reason of said false pretenses and representations aforesaid, deceive the said John F. Copeland, and said John F. Copeland, fifty dollars and over, thereby fraudulently obtain from him, the the personal property of the said Copeland, more than the said Copeland would otherwise have paid the said C. Morphy for the bill of groceries aforesaid."

The demurrer should have been sustained. It is very true that it might amount to false pretenses, within the statute, to falsely and fraudulently represent that one represented a prominent business house in San Francisco for the purpose of obtaining goods or money from another. This, however, is not that case. The representation was made simply by way of an argument to prove that he could sell goods cheaper than they could be bought at Stockton, Oakdale, or Modesto. This representation, and the statement that he had no rent to pay, were designed to induce his intended customer to rely upon his promise that he could and would sell cheaper than the goods could be bought for elsewhere, and it was evidently this promise which induced the prosecutor to deal with him; and the injury was, not that goods or money was obtained without consideration, but that the promise was not kept, and, in fact, the goods could have been obtained cheaper at other places. It does not appear from the indictment that the goods were not all that they were represented to be, as to character, quality, and quantity, or that they were not sold at a fair price. It may be conceded that representations calculated to make intending purchasers believe that a particular merchant can and will sell goods cheaper than others, when it is not so, do not rank very high in the scale of morality; but, if the representations here are criminal false pretenses, a crime is paraded in numerous show windows in every city. Perhaps this is not an argument of a very high order, but it does tend to prove that such "tricks of the trade" were not intended to be included in the statute, where there is no false representation as to the character, quality, or quantity of the merchandise. Customers are presumed to have some knowledge of the value of what they purchase, and can always