tion, and to ask that the remainder of the unperformed part of the contract should be enforced.

The court finds that, at all times after making the said agreement, Mrs. Story claimed that by virtue thereof she had become the owner of the property mentioned therein, and it follows that her making a sale of it to Bates was in pursuance of her construction of its terms. The further finding

of the court that her sale was made to Bates with the agreement on his part that he would pay the cost price of said property on the debts of the plaintiff for which she had become liable also supports the position that she made the sale in purported compliance with the terms of the agree ment. The agreement itself is not free from ambiguity, and it is not an unnatural construction that it was the intention of the parties that after its execution the goods should remain in the custody of the plaintiff, and that either party should have the right to sell and dispose of the same, and that all sales made by either party should be applied in reduction of the debts of the plaintiff that had been assumed by Mrs. Story. Her claim to have become the owner of the property by virtue of the agreement must be assumed to have been made by her in good faith, and there is no finding of force or oppression, or of any willful wrong, out of which a right to any punitory damages could accrue to the plaintiff. It is clear from the findings that Mrs. Story was not acting in any repudiation of the agreement by which the property was conveyed to her, but in accordance with her own construction of its effect. If that construction was erroneous, so that the plaintiff suffered loss thereby, the result of such construction may have given the plaintiff a cause of action against Mrs. Story; but it does not follow that it is entitled to recover damages from her independent of an adjustment of their respective rights under the entire agreement. Mrs. Story had a cause of action against the plaintiff for the money paid by her in releasing it from its debts, and this cause of action "arose out of"-that is, it resulted from-the same transaction or negotiation as did the plaintiff's right to compensation for the goods which were sold by her to Bates. Both had their origin in the agreement between them for the payment by her of the debts, and the appropriation by the plaintiff of its property as a mode of reimbursing her, and the sale of the goods by her, as well as her payment of the debts, were only separate acts in carrying out the terms of their agreement, and completing this transaction. The act of Mrs. Story in making a sale to Bates of the property described in the complaint was so connected with the business referred to in the agreement between her and the plaintiff, that the entire transaction must be consid

ered, in order to determine whether her act was wrongful or right, and, even if it should be held that the sale to Bates was not specifically authorized by the terms of the agreement, it is clear from the findings of the court that it was not done in any repudiation of the agreement. She purported to act under, and not in antagonism to, the agreement, so that the plaintiff's right of action would be for damages resulting from a breach of a portion of the agreement, rather than for an invasion by her of its rights, independent of and disconnected with the obligation created by the agreement.

The contention of the plaintiff that, inasmuch as this actiou is brought against the three defendants, a cause of action existing in favor of Mrs. Story alone is not available as a defense, cannot be maintained. The liability of the defendants, if any existed, is several, as well as joint; and, if Mrs. Story could set up any defense that would defeat the plaintiff's right of recovery, it was available for the other defendants. Whatever shows that the plaintiff had no right of recovery, as against Mrs. Story, protects the other defendants, who were acting under her and by her authority.

The sum of $15,200, which the court finds is the amount of the debts of the plaintiff which Mrs. Stery caused to be paid on the same day that she sold the goods to Bates by an arrangement between her and the California National Bank, added to the $29,717.54, which the court also finds was due her from the plaintiff at that time, shows that she had then paid more than the entire value of the goods, and consequently she should not be charged with any interest upon that value. As the court finds that Mrs. Story had fully complied with her part of the agreement, it follows that judgment should have been rendered in her favor for the difference between the amount paid by her for the account of the plaintiff, and the value of the goods sold by her to Bates; and the judgment of the court below is reversed, with directions to enter judgment against the plaintiff, and in favor of Mrs. Story, for the sum of $74,450, with her costs of suit, as of the 10th day of December, 1891.

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

STORY. STORY & ISHAM COMMERICIAL CO. et al. (No. 19,077.) (Supreme Court of California. Oct. 10, 1893.) RES JUDICATA-PENDING ACTION-EFFECT AS BAR. Under Code Civil Proc. § 1049, declaring that "an action is to be deemed pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judg inent is sooner satisfied," the judgment cannot, during such time, be pleaded in bar of another action.

In bank. Appeal from superior court, San Diego county; W. L. Pierce, Judge.

Action by Adella B. Story against the Story & Isham Commercial Company and others. From a judgment for defendants, plaintiff appeals. Reversed.

Luce & McDonald and Sprigg & Barber, for appellant. Mr. Works and M. S. Babcock, for respondents.

PER CURIAM. This action is closely connected with the action of Story & Isham Commercial Co. v. Story, (No. 19,015,) 34 Pac. Rep. 671, (this day decided,) and was argued and submitted to the court at the same time. After the former action had been brought against the present plaintiff she commenced the present action for the purpose, among others, of restraining the defendants from interfering with the property conveyed to her by the agreement, of which a copy is set forth in the opinion in that case, and to have the demands and choses in action that had been assigned to her thereby sold or collected under the direction of the court, and applied in payment of the indebtedness of the corporation to herself. The two actions were pending in different departments of the superior court in the county of San Diego, and the action in which the present appellant was defendant was tried first, and judgment therein rendered against her December 10, 1891. Thereafter, the corporation defendant filed a supplemental answer herein, pleading the judgment in the other action as a bar to the plaintiff's right of recovery; and upon the submission of the cause, December 23, 1891, the court made its finding to that effect, and rendered judgment in favor of the defendants. From that judgment the plaintiff has appealed.

The court erred in holding that the judgment rendered in the other action was a bar to the plaintiff's right of recovery for the moneys paid by her under the agreement. At the time that the court made its decision in the present case, the other action was still pending, (section 1049, Code Civil Proc.,) and while that action was so pending the judgment rendered therein could not be a bar to the prosecution of the present action, (Naftzger v. Gregg, [Cal.] 33 Pac. Rep. 757; Estate of Blythe, [Cal.] 34 Pac. Rep. 108.) The justice of this rule is apparent, in view of the fact that the judgment pleaded by the respondent, and determined by the court below to constitute a bar to the plaintiff's cause of action, has been reversed in this court. The judgment is reversed.

POWELL ▾. PATISON et ux. (No. 18,002.) (Supreme Court of California. Nov. 8, 1893.) MORTGAGE-FORECLOSURE-IMPERFECT RECORD

ON APPEAL-REVIEW.

Where, on appeal, the only question is whether an instrument sought to be fore

closed was given as a mortgage, and the ques tion was treated as an issue of fact below, but no finding was made, and the instrument is not brought up by the record, and is only pleaded according to its legal effect, there is nothing by which the appellate court can determine the nature of the instrument, and a decree refusing a foreclosure must be reversed.

Department 2. Appeal from superior court, Stanislaus county; William O. Minor, Judge.

Action by Henry Powell against Henry Patison and wife to foreclose an instrument given to secure the payment of money. From a decree denying a foreclosure, plaintiff appeals. Reversed.

P. J. Hazen, for appellant. Stonesifer & Minor, for respondents.

FITZGERALD, J. The complaint substantially alleges that on June 22, 1881, the defendants Henry Patison and his wife, Emma J. Patison, executed to plaintiff's assignor their promissory note for $2,000, payable on the 22d day of June, 1885, with interest as therein specified; that at the same time they executed to the defendants Hamilton and Coleman, as trustees, a conveyance of the real property therein described to secure the payment of the principal and interest mentioned in said note according to the terms thereof, and that said deed of trust was intended and given to said trustees as a mortgage for that purpose. The answer admits the execution of the deed of trust, but specifically denies that it was intended and given as a mortgage. Plaintiff had judg ment for the full amount of the note, but the court refused to decree a foreclosure, and it is from that part of the judgment that plaintiff appeals.

The only question arising on this appeal is whether the instrument sought to be fore closed was given and intended as a mortgage. Upon this issue raised by the pleadings, and which is treated and discussed as an issue of fact, the court below made no finding, and, as the instrument itself is not brought up by the record, and is pleaded only by its legal effect, there is nothing be fore us by which we can determine whether it is an absolute deed of trust or a deed of trust in the nature of a mortgage. There is

a well-recognized distinction between these instruments. The former is a conveyance of the property to a trustee for the purpose of selling it to pay debts. The effect of such an instrument is to pass the title absolutely to the trustee, and it vests in him uncondi tionally and indefeasibly for the purposes of the trust. In the latter the property is conveyed to a trustee merely as collateral se curity for the payment of a debt, upon an express condition of defeasance, and with power to sell and pay the debt in case of de fault by the trustor. As we are unable to determine from the record to which class the instrument in question belongs, that

ment.

2. A personal judgment on a note secured by a valid trust deed is erroneous, since the seBarbieri v. curity must first be exhausted. Ramelli, 23 Pac. Rep. 1086, 84 Cal. 154, followed.

Department 2. Appeal from superior court, Stanislaus county; William O. Minor, Judge. Action by Henry Powell against Henry Patison and wife. From a judgment for plaintiff, defendants appeal. Affirmed in part and reversed in part.

P. J. Hazen, for appellants. Stonesifer & Minor, for respondent.

FITZGERALD, J. It appears that on the 2d day of October, 1877, the defendant Henry Patison was the owner and resided with his family on the premises in question; that on that day his wife, the defendant Emma J. Patison, declared a homestead thereon, and that they continued to actually occupy the same up to the 29th day of August, 1887, and that the homestead so declared has never been abandoned; that on September 26, 1884. the defendant Henry Patison made his promissory note to plaintiff for $1,000, and to secure the payment thereof he mortgaged to plaintiff the homestead premises; that on the 29th of August, 1887, the defendant Henry Patison obtained a divorce from his wife, the said Emma J. Patison, and the homestead premises were by the judgment assigned to him. It is claimed by appellants that the court erred in decreeing a foreclosure of the mortgage, for the reason that when the mortgage was executed by the husband there was a valid and subsisting homestead on the premises sought to be mortgaged. Section 1242 of the Civil Code provides that "the homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife." Under these provisions it is clear that the homestead cannot be conveyed or incumbered except by the joint act of the husband

and wife. Hence a conveyance or mortgage thereof by the husband alone is inoperative and void, (Gleason v. Spray, 81 Cal. 220, 22 Pac. Rep. 551; Gagliardo v. Dumont, 54 Cal. 496,) and does not become valid by the premises subsequently losing their character as a homestead, if in this case it can be said that by the decree assigning to the husband the homestead premises they, by reason of that fact, lost their character as such; nor does a subsequently-acquired title relate back so as to give effect to a void instrument. It therefore follows that, as the mortgage herein was void in its inception, the defendant is not estopped from denying its validity, as would be the case if the mortgage itself was a valid instrument.

The claim that the court erred in rendering a judgment against the defendants on their promissory note secured by a 'valid deed of trust, and which was also sought to be foreclosed as a mortgage in this action, (see case No. 18,002, just decided by this court,-34 Pac. Rep. 676,) must be sustained, for the reason that it is well settled on authority in this state that a "personal judg. ment on a secured debt before the security has been legally exhausted is erroneous." Barbieri v. Ramelli, 84 Cal. 154, 23 Pac. Rep. 1086; Crim v. Kessing, 89 Cal. 487, 26 Pac. Rep. 1074; Biddel v. Brizzolara, 64 Cal. 362, 30 Pac. Rep. 609.

The motion to dismiss on the ground that plaintiff neglected to demand and have judgment entered for more than six months after final submission of the cause was properly denied. The personal judgment against the defendants Patison on their note secured by a valid deed of trust, and that part of the judgment decreeing a foreclosure of the mortgage, is reversed, but the judgment on the $1,000 note attempted to be secured by the mortgage sought to be foreclosed in this action, the same being void and of no effect, is affirmed. So ordered.

1. A contract to repair an old building and build an addition, the old part to be turned round, stipulated a certain sum for the whole work, to be paid as follows: "Old part placed in position $200; foundation in and frame up, $300; inclosed, and roof on, chimneys up, and the building completed according to agreement and specifications, $300." Held that, the work on the new part not being in condition to entitle the contractor to the third installment, when the building was destroyed by fire, no recovery on such installment could be had for work on the old part, though that was substantially completed, the contract being an entirety. 2. The second coat of paint not having been

put on the new part, two doors not having been hung, and no lock or fastening put on the front door or windows, and the house not having been delivered to the owner, it was not substantially completed.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; T. H. Rearden, Judge.

Action by William P. Clark against R. H. Collier. Judgment for defendant. Plaintiff appeals. Affirmed.

Moses G. Cobb and E. K. Taylor, for appellant. Taylor & Haight, for respondent.

be taken down and new one built, with wood fireplace where shown on plan." Besides, plaintiff testified that he understood "the terms, 'building completed according to agreement and specifications,' to refer to the old house." The contract is an entirety. There is nothing in it by which the price to be paid for any of the work or materials can be distinguished from that to be paid for any other part. The word "building," in the condition upon which the third installment was to be paid, comprehends the new part, as clearly indicated by the condition of the first payment,-"old part placed in position," not old building placed in position. I think the trial court correctly construed the contract in this respect.

2. It is contended, however, that both parts of the building were substantially completed before the fire; but without con

By the contract the plaintiff agreed to repair an old house, and to build a new addition thereto, to be attached to it. The old house was to be turned partly round, removed from its old foundation and placed on a new brick foundation, to be laid by plaintiff under both the old house and the new addition. The plans and specifications of the work to be done upon both the old and the new parts, to which the contract referred, are ordinarily minute. The defendant agreed to pay for the whole work $1,325, by in stallments as follows: "Old part placed in position, $200; foundation in and frame up, $300; inclosed, and roof on, chimneys up, and the building completed according to agreement and specifications, $300. Balance to be paid on completion of work, if not otherwise agreed upon by both parties hereto." As the work progressed the first two installments were paid, but before further payment was made the whole house (old and new parts) was consumed by fire, without apparent fault of either party.

1. It is not contended that the plaintiff is entitled to recover either the third or last installment unless the conditions stated in the agreement upon which the third installment was to be paid had been performed by plaintiff before the fire. But counsel for appellant contend that these conditions refer only to the new building. They say, "The old house was not to be inclosed, nor any roof put on, nor any chimneys put up." Conceding this, it is not perceived that the effect would be as claimed by counsel, even if, as they contend, the old house was substantially completed before the fire; since no reason appears why the payment of installments may not have been conditioned upon work on the new part. But counsel are mistaken in regard to chimneys. A chimney was to be built in the old part. The contract specifies: "Old house to be moved and turned side to Taylor avenue; chimneys to

second coat of paint upon the new part, required by the contract, had been put on; that the workbench of the carpenters and the paint for the second coat were in the new part at the time of the fire; that two of the doors were not hung, no lock nor fastenings on the front door, and no fastenings on the windows; and that the house had not been delivered to defendant. The plaintiff testified, however, that two days before the fire he had told defendant's wife that the old part of the house was finished, and that she might move into it; but this was contradicted by Mrs. Collier. The court found that plaintiff had never finished, completed, nor delivered the house, and that defendant had never accepted it; and I think the evidence sufficient to justify this finding.

3. Upon the count for extra work the court found for the defendant. As to all the items of this count the evidence was substantially conflicting, except as to one door lock, of the value of 50 cents, which, as compared with the sum in contest, may be considered as de minimis. I think the judg ment and order should be affirmed.

We concur: TEMPLE, C.; SEARLS, &

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

HIGGINS. COLE et al. (No. 18,089.) (Supreme Court of California. Nov. 8, 1893) CITIES OF THE FIFTH CLASS-CHIEF OF FIRE DEPARTMENT-ELECTION AND APPOINTMENT-ORD!

NANCES.

1. One elected chief of the fire department of a city of the fifth class under an ordinance providing that he shall be elected annually by members of the department, is not entitled to hold the position for the year, an ordinance having in the mean time been passed, to take effect immediately, providing for the appointment of the chief of the fire department by the board of trustees.

2. Under an ordinance providing that the chief of the fire department shall be appointed annually by the board of trustees, to hold office for a year, or until his successor is appointed and qualified, the trustees may remove him and appoint a successor within the year.

Commissioners' decision. Department 2. Appeal from superior court, Fresno county; M. K. Harris, Judge.

Action by E. R. Higgins against S. H. Cole and others for injunction. From an order dissolving a temporary injunction, plaintiff appeals. Affirmed.

Frank H. Short, George A. Nourse, C. C. Merriam, and Austin & Drew, for appellant. Reed B. Ferry, for respondents.

BELCHER, C. The city of Fresno is a municipal corporation, organized in 1885, under the provisions of an act of the legislature approved March 13, 1883, entitled "An act to provide for the organization, incorporation, and government of municipal corporations." It is of the fifth class named in the act, and has a board of trustees vested with power, among other things, "to provide fire engines and all other necessary or proper apparatus for the prevention and extinguishment of fires;" "to appoint and remove such policemen and other subordinate officers as they may deem proper, and to fix their duties and compensation;" "to establish fire limits, with proper regulations;" and "to do and perform any and all other acts and things necessary to carry out the provisions of this chapter," etc. Section 764, subds. 6, 15, 18, 19. The city now owns, and ever since its incorporation has owned, three fire engines and other apparatus for the prevention and extinguishment of fires, and it also has, and has had, a volunteer fire department. In 1891 there was a city ordinance, No. 224, providing: "Section 1. The fire department of this city shall consist of volunteer companies of firemen, organized into engine, hose and hook and ladder companies, who shall elect their officers. Sec. 2. The chief of the fire department, and his assistants, shall be elected annually by members of the department, with the approval of the board of trustees, and shall give such bond as the board of trustees may require." On the 18th of January, 1892, an ordinance (No. 248) was passed, amending the foregoing ordinance, and reading as follows: "Section 1. The fire department of the city shall consist of volunteer companies of firemen, organized into engine, hose and hook and ladder companies, who shall elect their own officers, to wit: the foreman, who is the presiding officer, a secretary and a treasurer. Sec. 2. The chief of the fire department, and his associates, shall be appointed annually by the board of trustees, to hold office each for one year, or until his or their successors are appointed and qualified. And the chief of the fire department shall give a bond," etc. "Sec. 3.

This ordinance shall take effect and be in force immediately from and after its passage and approval."

In December, 1891, the plaintiff, E. R. Higgins, was elected chief of the fire department by the members thereof, and on the 21st of that month notice of such election was given to the board of trustees. It being suggested that the trustees must make the appointment themselves, in order to make it legal, the matter was continued from time to time until February 1, 1892, when the plaintiff was elected chief by the trustees. Thereafter, on March 7, 1892, the board of trustees passed a resolution declaring the position of chief of the fire department vacant, and then appointed the defendant, Timothy Walton, to fill the vacancy. The trustees also by resolution directed the city marshal to put the said Walton in possession of all the fire apparatus owned by the city. The plaintiff, when notified of this action of the trustees, denied their right to remove him from his position as chief, or to take from his possession and control the fire apparatus of the city; and thereupon, on March 8th, he commenced this action against the trustees, the city marshal, and the said Walton, alleging, among other things, that he was then the chief of the volunteer fire department of the city, and as such was in possession and entitled to the possession of all the fire apparatus of the city; that all the acts of the trustees in declaring his position vacant and electing Walton to fill his place, and in directing the city marshal to take from his possession the fire apparatus and to deliver possession of the same to Walton, were done without right or authority of law; that the marshal and Walton had demanded that plaintiff deliver to them the possession of the said apparatus, and had threatened to take immediate and unlawful possession of the same, and unless restrained would proceed forcibly, unlawfully, and wrongfully to execute their threats; wherefore, he prayed that the court make an order enjoining the defendants, and each of them, from taking forcible or other possession of said fire apparatus, or interfering with the same, or molesting the plaintiff's possession thereof. Upon this complaint the court granted a temporary injunction, but subsequently, on motion of defendants, dissolved it; and from that order the plaintiff appeals.

In support of the appeal it is contended: (1) That the members of the fire department were authorized and empowered to elect a chief of the department, without the approval of the board of trustees; and that the appellant, having been so elected, was clothed with authority to hold possession of, manage and control the fire apparatus of the city; and that the trustees had no right to interfere with or disturb his possession, management, and control thereof. (2) That if the