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in the knowledge of the opposite party." (Id. defendant's engine was standing on its trede *370.) In cases of negligence the sufferer within 25 feet of the crossing; that the may only know the general, the immediate driver of the street car stopped, and, opon cause of the injury, and may be entirely ig ascertaining that the engine was not in mo norant as to the specific acts or omissions tion, started to cross the track, and yban which lead up to it. Bliss, in his work on near it “the engineer of the defendant's Code Pleading, at section 308*, gives the fol engine negligently and carelessly gave bis lowing illustration: "The driver upsets a engine steam, and commenced to back the stage coach, and breaks a passenger's arm. said locomotive upon the track towards and Careful driving will hardly have such a re upon the street car aforesaid," etc. From sult. The passenger knows there has been this it will be seen the act by which the is negligence, but he may not know in what it jury was brought about and the negligent consisted. The driver may have been drunk manner of its performance is specified. The and asleep. He may have so harnessed the statement of other facts auxiliary to this horses that they would not obey the rein, main fact might have tended to a dearer or may have made them unmanageable by conception of the principal act, but the most improper treatment. The plaintiff can only there can be said against the pleading is prove that the coach was turned over. The that it states a cause of action, but states presumption is that it was the result of neg it imperfectly, which is the equivalent of ligence; if not, the defendant can show it." saying that it is good except as against a The term “negligence," for the purpose of special demurrer. The nonsuit was prop pleading, is a fact to be pleaded,-an ultimate erly denied. fact, which qualifies an act otherwise not There was evidence tending to show such wrongful. Negligence is not the act itself,

negligence on the part of defendant, and but the fact which defines the character of contributory negligence on the part of plainthe act, and makes it a legal wrong. The tiff, as made it proper to submit the question absence of care in doing an act which pro to the jury. Where the facts are admittel duces injury to another, is actionable. The

or proven without contradiction the court term "negligence" signifies and stands for will determine whether or not they estabthe absence of care. “Negligence is the ulti lish negligence or show contributory Deglimate fact to be pleaded, and it forms part

gence; but where the conclusion is open of the act from which an injury arises. to debate it is one for the jury under proper . . . It is the absence of care in the per instructions from the court. Fernandes T. formance of an act, and is not usually the

Railway Co., 52 Cal. 45; Orcutt v. Railway result of such absence, but the absence itself,

Co., 85 Cal. 291, 24 Pac. Rep. 661; Whalen and is not, therefore, a mere conclusion of

V. Railroad Co., 92 Cal. 669, 28 Pac. Rep law, and may be pleaded generally." Rail.

833; Wilson V. Railroad Co., 62 Cal. 164; road Co. v. Wolfe, 80 Ky. 84.

Davies v. Steamship Co., 89 Cal. 280, 26 Pac. As a result of the application of these

Rep. 827. The following Instruction was principles to code pleading in cases of neg

given at the request of plaintiff: "T the ligence, and to others of kindred character,

jury believe from the evidence that the de it is held in this state, and in nearly all

fendant was guilty of negligence, as charged of the United States, that it is sufficient to

in the complaint, and that the plaintiff was allege the negligence in general terms, speci

injured thereby, your verdict should be for fying, however, the particular act alleged to

the plaintiff, and that whether such Deglihave been negligently done. Thomp. Neg. gence appears or is proved by the testimons 1246. Tested by these rules, the complaint, on the part of the plaintiff or by defendant's which was not demurred to, stated facts own witnesses." This instruction entirely sufficient to constitute a cause of action.

ignores the question of contributory DegliThe case of Schindler v. Railway Co., decided

gence on the part of plaintiff, and is, there by the supreme court of Michigan November

fore, not in itself a complete and correct 1, 1889, and reported in 43 N. W. Rep. 911, statement of the law, and the defendant relied upon by appellant, at first blush seems insists that the judgment should be reversed in point; but an analysis of the complaint for this reason. In answer to this contention by the court shows that the inference drawn it is sufficient to say that the rule is well therefrom was that the driver of the sleigh settled here that instructions are to be read was not shown to have relied, or had any and considered as a whole, and the fact that, reason to rely, on the train remaining still when taken separately, some of them may till he could pass, or that it started unexpect fail to enunciate in precise terms, and with edly or improperly when it should have wait.

legal accuracy, propositions of law, does not ed, or that it was improperly started. necessarily render them erroneous. "It is "This," says the court, “if it existed, would sufficient if all the instructions, taken to have been a very important element in the gether, and not being inconsistent with each case." Again, the court says: "All that other or confusing, shall give to the jury : is averred is simply that defendant neg. fair and just notion of the law upon the ligently struck a sleigh at a road cross point discussed." Davis v. Button, 78 Cal ing, the driver not being in fault.” In the 247, 18 Pac. Rep. 133, and 20 Pac. Rep. 565; present case the complaint avers that the People v. Lee Chuck, 78 Cal. 339, 20 Pal


Ic Ject to the exercise on her part of such rea

Rep. 719; Monaghan v. Rolling-Mill Co., 81 of the children and the entire community propCal. 190, 22 Pac. Rep. 590; Murray v. White,

erty. She applied to vacate the judgment un82 Cal. 119, 23 Pac. Rep. 33; Doty v. O'Neil,

der said section, and, by affidavit annexed,

swore that her husband told her said suit 95 Cal. 244, 30 Pac. Rep. 526; People v.

would be brought for desertion. Held that, in Turcott, 65 Cal. 126, 3 Pac. Rep. 461. Tested view of the harshness of the judgment, the by this rule, we do not think the particular

court should have set it aside, whether defend

ant had colluded with, or had been deceived by, instruction complained of could possibly have

her husband; her application and affidavii misled the jury. The second instruction on

showing sufficiently the grounds of her proposed the part of plaintiff was in part as follows: "The jury are instructed that in determining

Department 2. Appeal from superior the question of negligence in this case they

court, Modoc county; G. G. Clough, Judge. should take into consideration the situation

Action by David E. Mulkey against Sarah and conduct of both parties at the time of

N. Mulkey for a divorce. Judgment for the alleged injury as disclosed by the evi

plaintiff. Defendant's motion to set aside 1o dence; and if the jury believe from the evi- Judgment denied. Defendant appeals. Re edence that the injury complained of was

versed. caused by the negligence of the defendant's

Spencer & Raker, for appellant. D. W. servants, as charged in the complaint, and

Jenks and J. D. Goodwin, for respondent in the plaintiff acted as was reasonably to be s expected of a person of ordinary care and prudence in the situation in which she found

FITZGERALD, J. The transcript in this mis herself placed, then the plaintiff is entitled case contains two appeals,-one from the

to recover.” The fourth, eighth, ninth, tenth, Judgment decreeing to plaintiff a divorce on and eleventh instructions asked by plaintiff

the ground of adultery; the other, from an * all contained similar expressions, indicating

order denying defendant's motion to vacate

1 at the right of plaintiff to a recovery, to be sub

and set aside the judgment. The complaint

was filed April 6, 1891, and the defendant sonable care as a person of ordinary judg

served with process April 8, 1891. On the ment and prudence would exercise under like

21st day of April, 1891, the defendant haycircumstances. The second instruction, given

ing failed to appear and answer, default was by the court at the request of defendant,

duly entered against her, and on the 23d day as follows: “Second. The court in

of April, 1891, the court, upon the testimony structs the jury that if you believe from

taken before it, found that all the allegations the evidence that the plaintiff jumped from

of the complaint were true, and thereupon the street car after it had passed from a

judgment was accordingly entered, granting place of danger, or apparent danger, to a

to plaintiff a divorce from the defendant place of safety, and that a person of ordi

on the ground stated. The judgment awardnary intelligence under like circumstances

ed to plaintiff the four minor children, three would have known that the danger was

of whom were girls, the eldest being about passed, and would not have jumped from the

eight years of age, and assigned to plaintiff car at the time plaintiff did, you should find

all of the community property. The moBt for the defendant.” It will thus be seen tion was made on all the grounds enumerated Do that the jury were over and over again in

in section 473, Code Civil Proc., and upon *structed in clear and explicit language that

the further ground of the disqualification the plaintiff was not entitled to recover un

of the presiding judge, and was heard on less she was at the time of the accident

notice and affidavits of the defendant and Eerself exercising ordinary care to avoid the

others, including one of merits, and was renjury of which she complained, and it is

sisted by opposing affidavits. lot reasonable to suppose that the jury was

An affidavit of merits on grounds of pubnisled to the prejudice of appellant because

lic policy has no place in a proceeding of this Ehe first instruction omitted to say anything

character. McBlain v. McBlain, 77 Cal. 507, ipon the subject of the effect of contributory

20 Pac. Rep. 61. The motion should have s negligence upon plaintiff's right of recovery.

been heard and determined alone upon the Ve find no substantial error in the record.

grounds stated in the notice and affidavits. budgment and order affirmed.

The facts stated in the affidavit of defendant show either collusion between the parties, or that the defendant was grossly mis

led and deceived by her husband as to the MULKEY V. MULKEY. (No. 18,046.) ground of the proposed action; he having inSupreme Court of California. Oct. 13, 1893.)

formed her, as she states, that it would be

brought on the ground of desertion. In DIVORCE-SETTING ASIDE DECREE.

either case the court should have been Code Civil Proc. $ 473, provides that he court may, after notice to the adverse par prompt to set aside the judgment and allow y, on such terms as may be just, relieve a the defendant to answer, so that the casa arty from a judgment taken against him might be heard and determined on its merits. hrough his mistake, inadvertence, surprise, or

The judgment is a harsh one, and fearful in xcusable neglect. Defendant suffered a de ault in a suit for divorce for adultery, brought its consequences. It deprives the defendant, y her husband, who was awarded the custody | among other things, of children, home, prop


erty, and character. To justify such a judg- , der denying a motion for a new trial ment, the evidence should always be clear facts found by the court are substantia) and convincing; and when obtained in an follows: On September 7, 1887, the pare action of this character, under circumstan made a written agreement by which the ces such as are disclosed by the record in pellant, Cressey, agreed to sell to respot this case, it should, upon a proper applica- Easton, a certain piece of land, upon the tion, made by the defendant for that pur terms: Easton was to pay "one three pose, be vacated without hesitation, and a dollars cash deposit," and on or before the much slighter showing than the one here vember 1, 1887, was to pay $2,500, and we made would be amply suficient for the yur- | also, on said last-named day, to esecu pose. The affidavit of the defendant, in so mortgage upon the land to Cresses für far as it purports to be an affidavit of merits, 320. Then Cressey was to convey the land was, as we have stated, immaterial; but in Easton. It was provided in the agres this case, although the practice is not to be that, if Easton should fail to pay the 3 commended, it serves the purpose of a pro on November 1st, "then this contract &

P posed answer by specifically denying the be void, so far as said Easton is conCAR material allegations of the complaint, there and that the $1,000 cash should be me by showing what the answer would be if by Cressey as 'liquidated damages." E: permitted to be filed. This is a sutficient re- paid the $1,000 when the contract was CF ply to respondent's claim that no draft of but did not pay the $2,500 on November any proposed answer accompanied the ap because, as he says, Cressey was absent from plication. Judgment and order rerersed, and home. Cressey, however, had left a da cause remanded, with directions to the court conveying the land to Easton in the Bul below to vacate and set aside the judgment, of Modesto, at the city of Modesto, of wa and to allow the defendant to answer with- bank Cressey was president, to be deliver in a reasonable time.

to Easton upon payment that day of the

500. But, on November 8th, Easton, We concur: DE HAVEN, J.; McFAR- | lived at San Francisco, wrote to Cresses, i. LAND, J.

ing him the reason why he had not paid to money on the 1st; that he was ready to s tle according to the. terms of the contra

and that a draft on him for the ans EASTON v. CRESSEY. (No. 18,101.) would be promptly honored, and the par (Supreme Court of California. Oct. 13, 1893.) gage executed. Cressey received this let: LIQUIDATED DAMAGES-CONTRACT FOR SALE OF

but made no reply. Easton wrote him ao LAND.

to the same effect on November 28th, 2 Plaintiff agreed with defendant to buy Cressey did not answer the letter. The 067 certain land, and pay “$1,000 cash deposit,

finds that on November 1, 1837, Easton 1: and, on or before a certain date, $2.500, and then to give a mortgage back for $3,320; if

and ever since has been, "ready, able, willes plaintiff should fail to pay the $2,500 on said

and anxious" to make said payment of date, the contract to be void as to plaintiff, 500, and execute said mortgage, and th: and the $1,000 to be retained by defendant as

Cressey “has at all times since November liquidated damages. Plaintiff did not pay on said date, but wrote defendant, a week later, 1887, refused to carry out the terms of to explaining why he had not been able to do so, contract between the parties, or to perfor saying that he was now ready, and that a draft any" of its covenants or conditions. No par on him for $2,500 would be honored, and the

of the $1,000 has been repaid, and Crea mortgage executed. Defendant did not answer said letter, and refused to fulfill the contract,

has not been damaged by any act or omissio or return the deposit. Held that, having suffer of Easton in the premises. This action wis ed no actual damages by plaintiff's default, he brought by Easton to recover the said "1? was liable for the whole deposit, in view of

thousand dollars' cash deposit." Civil Code, 88 1670, 1671, which forbid contracts for liquidated damages for breach of an

The foregoing findings are, we think, warobligation unless, from the nature of the case,

ranted by the evidence; and, that being sa it would be impracticable to fix the actual the judgment is right. The provision in the damage.

contract for liquidated damages was Fund! Department 2. Appeal from superior court, under sections 1670 and 1671 of the Ciri Stanislaus county; William 0. Minor, Judge. Code, (Drew v. Pedlar, 87 Cal. 443, 25 Pac.

Action by George Easton agzinst A. L. Rep. 749;) and the rule governing the case at Cressey for money had and received. Judg bar is "that, when a contract of sale and ment for plaintiff. Defendant apocals, AP purchase of lands is abandoned or rescindeu firmed.

by the parties, the vendee, though in de

fault, may recover back installments paid of Stonesifer & Minor, for appellaut.


the purchase money, less the actual damage Ness & Roche and W. H. Hatton, for re

to the vendor, occasioned by his breach of spondent.

contract,” (Phelps v. Brown, 95 Cal. 572 %

Pac. Rep. 774; Drew v. Pedlar, supra.) And MCFARLAND, J. This is an appeal by de. it was clear that appellant did not suffer any fendant from a judgment against him in actual damage from the failure of respond favor of plaintiff for $1,000, and from an or ent to pay the $2,500 on the very day named

ota tra the contract. Appellant introduced evi- , fifty dollars and over more than the same Spa Pa Perence tending to show a depreciation in the bill of groceries could then and there have pe parket value of the land, the removal by him been purchased for in Modesto, Oakdale, or

fa cloud on the title, etc.; but we cannot Stockton.” The indictment then proceeds, ee of what importance these matters were, restating each representation, to charge that Jhen respondent was willing, able, and it was false, and that the defendant knew it;

nxious to take the nd, and pay the contract that said Morphy could not and would not t"trice. The judgment and order appealed sell or deliver groceries at the town of Hickbyrom are affirmed.

man cheaper than they could be purchased

at Stockton, Oakdale, or Modesto; that all We concur: DE HAVEN, J.; FITZGER groceries sold by him would not be first-class, ALD, J.

or of full weight or quantity; that said Vorphy then well knew that all and each of said representations were then and there

wholly false and untrue; "and the said C. PEOPLE v. MORPHY. (No. 20,981.)

Morphy did then and there unlawfully, Supreme Court of California. Oct. 13, 1893.) knowingly, and designedly, by reason of said FALSE PRETENSES-REPRESEXTATIONS BY SALES false pretenses and representations aforeMAX-CHEAPXESS OF Prices.

said, deceive the said John F. Copeland, and A prosecution for obtaining money uner false pretenses cannot be maintained by

thereby fraudulently obtain from him, the eason of representations by a traveling sales.

said John F. Copeland, fifty dollars and over, aan to a customer as to the importance of the the personal property of the said Copeland, ouse he represented, and the cheapness of its more than the said Copeland would otherwise rices compared with others, where the goods old are as represented.

have paid the said C. Morphy for the bill of

groceries aforesaid." sy Commissioners' decision. Department 2.

The demurrer should have been sustained. Appeal from superior court, Stanislaus coun

It is very true that it might amount to false wy; William 0. Minor, Judge.

pretenses, within the statute, to falsely and C. Morphy was convicted of obtaining

fraudulently represent that one represented noney by false pretenses, and appeals. Re

a prominent business house in San Francisco 'ersed.

for the purpose of obtaining goods or money 2. L. J. Maddux and T. S. O'Donnell, for ap from another. This, however, is not that ellant. Atty. Gen. Hart, for the People. case. The representation was made simply

by way of an argument to prove that he TEMPLE, C. This is a prosecution for ob could sell goods cheaper than they could be (aining money by false pretenses, and the de bought at Stockton, Oakdale, or Modesto. endant, having been convicted, appeals This representation, and the statement that rom the judgment.

he had no rent to pay, were designed to inThe indictment was demurred to on the duce his intended customer to rely upon his round that 'it does not state facts sufficient promise that he could and would sell cheapo constitute a public offense, and, after con er than the goods could be bought for elseriction, a motion in arrest of judgment was where, and it was evidently this promise nade on the same grounds. The indictment which induced the prosecutor to deal witb harges that defendant, "with intent to de him; and the injury was, not that goods or raud one John F. Copeland of his personal money was obtained without consideration, roperty, did unlawfully, knowingly, and de but that the promise was not kept, and, in ignedly falsely pretend and represent to the fact, the goods could have been obtained aid John F. Copeland that he, the said C. cheaper at other places. It does not appear Morphy, did then and there represent a first from the indictment that the goods were not lass wholesale grocery firm in the city of all that they were represented to be, as to šan Francisco; that he had no rent to pay character, quality, and quantity, or that they ind no expenses to pay, and that he could were not sold at a fair price. It may be

ind would then and there sell and deliver conceded that representations calculated to groceries to the said John F. Copeland at the make intending purchasers believe that a

own of Hickman, in said Stanislaus county. particular merchant can and will sell goods wenty-five per cent. cheaper than they could cheaper than others, when it is not so, do be purchased in Modesto, Oakdale, or Stock not rank very high in the scale of morality; con, and that all groceries sold by him would but, if the representations here are criminal be of first-class quality and of full weight false pretenses, a crime is paraded in numerind quantity; and the said John F. Cope ous show windows in every city. Perhaps and, then and there believing said false pre this is not an argument of a very high order, censes and representations so made as afore but it does tend to prove that such "tricks gi said by the said C. Morphy to be true, was of the trade" were not intended to be includthereby induced to, and did then and there, ed in the statute, where there is no false rep

purchase a bill of groceries from the said C. resentation as to the character, quality, or Morphy, and pay to him therefor the sum of quantity of the merchandise. Customers one hundred and eighty-four and 50-100 dol are presumed to have some knowledge of the Lars, the said amount being then and there value of what they purchase, and can always

inquire, before purchasing, as to market fendant during the fall of 1890 and the wisvalues. I think the judgment should be re ter of 1891." As the judgment was entered versed, and the court directed to sustain the September 3, 1891, the words "winter demurrer.

1891" must be understood to mean the winte

expiring in 1891; and the lands excepted We concur: SEARLS, C.; BELCHER, C. are such parts as had been sown to gnia

by defendant during the fall of 1890 add PER CURIAM. For the reasons given in the winter immediately following.-the niz the foregoing opinion the judgment is re ter of 1990 and 1891,-all before the date de versed, and the court is directed to sustain the judgment. This is made perfectly plain the demurrer.

by the context, and gives appropriate effect to all the words of the exception; for, while no winter is wholly of any one year of our

Lord, two-thirds of the winter immediately ROSENTHAL et al. V. MATHEWS. (No.

prior to the judgment was of the year A. D. 18,048.)

1891. It is contended, however, that co(Supreme Court of California. Oct. 13, 1893.) ceding the exception to be certain as to the JUDGMENT-DESCRIPTION OF LAND-CERTAINTY. winter intended, still, the description is in

A judgment for the recovery of land sufficient to identify the land excepted. Pri entered in September, 1891, described a cer

ma facie the description appears to be suftain tract, but excepted from its effect such parts "as were sown to grain by the defendant

cieut, and no reason why it cannot be aj during the fall of 1890 and the winter of 1891." plied so as to identify the excepted land Held, that the term “winter of 1891" referred is suggested. The boundary lines of the land to the winter of 1890-91, and the description

sown to grain by defendant during the fall is prima facie sufficient to identify the land excepted.

of 1890 and the following winter must bare

been distinctly apparent on the ground from Commissioners' decision. Department 2.

the time the grain was sown until some time Appeal from superior court, Tehama county;

after it was harvested; and if the marks by John F. Ellison, Judge.

which such boundary lines were designated Action by Joseph Rosenthal and others

were subsequently removed or destroyed, against W. P. Mathews. Judgment for plain

their original location may be proved by er: tiffs. Defendant appeals. Affirmed.

traneous evidence, as in cases of the te Jackson Hatch, for appellant. P. H. Coff moval or destruction of stakes or other moiman, for respondents.

uments called for in deeds and patents

Da Sepulveda v. Baugh, 74 Cal. 468, 16 Pac. VANCLIEF, C. Action to recover posses Rep. 223. In the case at bar the question is sion of a large tract of land situate in the whether or not the description contained in county of Tehama, and the value of the the judgment is sufficient to identify the rents and profits thereof, alleged to be $1,- land. In this it differs from the question in 500. The answer of the defendant admits volved and discussed in Crosby v. Dowd, 61 the plaintiffs' ownership of the land, and Cal. 557, and in De Sepulveda v. Baugh. the withholding of the possession thereof supra, in which the objection to the descrip by defendant, but alleges that he was en tion was that it was not contained in the titled to the possession by a lease from the judgment, but in some other document, map, plaintiffs, and denies that the rents or profits or record referred to in the judgment, and were of any value. The action was tried by not appearing even in the judgment roll. the court, and judgment was rendered in fa 2. The points that the findings do not susvor of the plaintiffs for the possession of port the judgment, and that the evidence the land, except a portion thereof described does not justify the finding that the value of in the judgment, and for $500 as the esti the rents and profits was $500, rest largely mated value of the rents and profits of that upon the assumption that the description of portion of the land wrongfully withheld. The the land excepted from the operation of the defendant appeals from the judgment, and judgment does not distinguish it from the from an order denying his motion for a new land recovered. The evidence is amply sulitrial.

cient to justify the finding as to the value of 1. On the appeal from the judgment the the rents and profits, and the findings sup uppellant contends that the description of port the judgment that part of the land excepted from the op 3. It is not made to appear that the cott eration of the judgment is so indefinite and erred in admitting or excluding eridence uncertain that neither the land excepted nor As to these points, counsel merely refers to that recovered can be identified thereby, and his exceptions. I think the judgment and therefore the judgment is void. It is not order should be afirmed. denied that the demanded premises are definitely and correctly described in the com We concur: SEARLS, C.; TEMPLE, C. plaint. The judgment describes the land as it is described in the complaint, but excepts PER CURIAM. For the reasons given fo from its effect such parts of the land de the foregoing opinion the judgment and on scribed “as were sown to grain by the de der are affirmed.

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