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The question of value, or market value, is plaintiffs was not only proven, but at the mainly one of fact, but is usually defined trial, in answer to a question by the court, as a matter of opinion gathered from facts, "defendant's counsel announced that there and as was said by Story, J., in Alfonso v. was no contest on the account at all, but as U. S., 2 Story, 421: “We must necessarily an offset defendant relied on plaintiffs' asresort to opinions of merchants and others surance of disposing of the rope as sent, and conversant in trade for market prices or that defendant had suffered loss far greater values of the goods." Wharton, in his work than the amount plaintiffs claimed against on Evidence, (section 447,) lays down the defendant by reason of plaintiffs' failure to rule as follows: "Two essentials, therefore, do what was agreed in the matter, and that exist to a proper estimate of value: First, defendant asked no affirmative relief, but a knowledge of the intrinsic properties of charged that he was damaged in the sum of the thing; second, a knowledge of the state $5,000 in round numbers." The case as of the markets. As to such intrinsic prop made by the defendant failed to establish a erties as are occult and out of the range of counterclaim, and hence the evidence obcommon observers, experts are required to jected to, which tended to show why contestify; as to properties which are cogni signed goods brought no higher price, and zable by an observer of ordinary business were not sooner disposed of, was unnecessagacity, being familiar with the thing, such

sary. an observer is permitted to testify." So far There is a further contention that plainas the condition of the wire rope was con tiffs released defendant from the balance due cerned, it was a question to be determined, them. On the 3d day of June, 1889, the not from its occult qualities, but from its | plaintiffs, in a letter to defendant, used the appearance, and from the effect produced following language: “Naturally you know upon it by handling; that its outer wires very well that we will never consent to pro were broken up into short pieces; that "the ceed against you legally. Our hope to reduce goods sent were rotten, and a little broken, our loss in this transaction, if possible, to instead of being as the sample;" that much a minimum limits itself, therefore, that after of it was “broken, rusty, and rotten," or, the settlement of your different transactions as another witness said, “in trying to undo the loss will be small,” etc. Conceding, withthe coils the whole thing broke to pieces, out deciding, that the quoted cause of plaininto small pieces from half an inch to two tiffs' letter amounted to a release, then it inches long." These were facts to be should have been specially pleaded. Moss v. gleaned from observation, and were stated Shear, 30 Cal. 468; Piercy v. Sabin, 10 Cal. as such, facts open to every observer, and 22; Coles v. Soulsby, 21 Cal. 47. There was not requiring expert knowledge, and whether no consideration for the promise, and there they were experts on the subject or were fore it did not amount to a covenant not to not is of little importance. The question of sue. Canal Co. v. Roach, 78 Cal. 552, 21 Pac. the value of the rope in the market was one Rep. 304. It is apparent, however, that nelupon which merchants dealing in the article ther of the parties regarded the letter as in question were competent to speak. As

amounting to a release. In the following Debefore stated, the witnesses were all com cember we find defendant writing to plainmission merchants in Japan, or were in the tiffs: “I refuse to participate in the loss

caused ,

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added that it appeared directly or incidentale with more than that aiready suffered, which

ly that all of them who testified as to the amounts to nearly 30 per cent.," to which
value of the commodity were or had been plaintiffs reply: "We hope soon to find the
engaged in the sale of the article, or were opportunity to dispose of the goods, and aft-
in the employ of those thus engaged. They er a thorough inspection we shall consult
all showed themselves to possess more or less with our Yokohama house as to what steps
knowledge of the efforts made by plaintiffs we shall take to compel you to the liquida-
to dispose of the goods, and had themselves tion of this debt.”
either sold, attempted to sell, or were fa-

The account in Japan was kept, as appears, miliar with the efforts made to sell the goods. for convenience sake, in Mexican dollars. Under such circumstances, while the deposi- Plaintiffs aver that on the 7th day of August, tions are not as full and satisfactory as could 1890, there was due them $4,999.60 Mexican be wished in showing knowledge and experi- dollars, of the value of $4,149.67 gold coin; ence on the part of some of the witnesses, that on or about August 26, 1890, they subI do not regard the errors assigned in the mitted their account to defendant, and de ralings upon the depositions as sufficiently manded payment, and pray judgment for established to warrant a reversal,

such sum, with interest. It was stipulated If, however, we are wrong in the forego that Mexican dollars were at the date of the ing conclusion, and should hold that the commencement of the suit worth 83 cents. depositions were, so far as objected to, im At the date of the demand (August 23, 1890) properly admitted, it is not perceived that they were worth 9314 cents, and at the date the court below would have been justified of trial 74 to 75 cents. The court gave Judg. in reducing the amount of plaintiffs' recov ment for the value at the date of suit ery. The balance of account in favor of I brought. This was more favorable to de

and the latter cover the issues in the case, and the judgment appealed from should be affirmed.

We concur: BELCHER, O.; HAYNES, C.

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

fendant than it would have been to have cmputed the value of the foreign silver at the date of the demand of payment, but not as advantageous to him as a computation at the date of trial. A debt contracted in a foreign country, in the absence of a contrary understanding, is payable there, and in the legal currency of that country. The parties having, by common consent, expressed their account in Mexican dollars, and the debt having been contracted in Japan, it stands on the same footing as though Mexican dol. lars were the currency of that country. It follows that, the debt not having been paid in Japan, and plaintiffs being compelled to sue here, they were entitled to judgment for such sum in our currency or money as was equivalent to their claim in Japan. Benners V. Clemens, 58 Pa. St. 24; Cash v. Kennion, 11 Ves. 315. In the language of the chancellor in the case last cited: “Where a man agrees to pay £100 in London upon the 1st of January, he ought to have that sum there upon that day. If he fails in that contract, wherever the creditor sues him the law of that country ought to give him just as much as he would have had if the contract had been performed.” Apply the principle thus enunciated to this case, and we may say that, had defendant met his contract when it was due,-that is to say, when demand was made upon him,--plaintiffs would have had $4,999.67 Mexican dollars of the value of 934 cents each, or their equivalent in our currency; a sum in excess of that which the court awarded them. If a man contracts to deliver wheat on a given day, and fails to do so, the measure of damages is the market price of the article on that day; and in principle it is difficult to see why the rule should not hold good when he agrees to deliver Mexican dollars, or other foreign money, which, in the absence of some positive law of our own, is but a commodity. There are authorities which hold that the rate of exchange at the date of the trial is the criterion by which to determine the amount of the judgment, but in most instances the only question evidently relates to the mere expense of effecting the exchange, or, in other words, the cost of transmitting the funds, for that is what it amounts to, -cases in which, so far as appears, the question of depreciation or appreciation of the currency in which the debt was payable cut no figure. In Benners v. Clemens, supra, cited by appellant, the recovery was had upon the basis of the value of legal tenders at the date of the presentation of the account. To discuss the question satisfactorily would require more space than can reasonably be accorded to it, and I content myself with saying that my conclusion, drawn from a perusal of the conflicting authorities, prompts the declaration that if any error was committed by the court below it was in favor of the defendant, and hence that he is not in a position to complain. The evidence supports the findings,


(No. 14,985.) (Supreme Court of California. Aug. 31, 1893.) VACATING JUDGMENT—INADVERTENCE OF COUNSEL

On an application to set aside a judg. ment it appeared that the cause was the sep. enth on the calendar for the day on which it was set for trial. Defendant's counsel was not present on that day, as he had business in another court, but he had some one to answer "Ready" when the case was called, supposing that it would not be reached for trial on that day. It was reached, however, and judgment was rendered for plaintiff. Defendant's counsel was informed of the judgment on the same day, and at once requested plaintiff's coapsel to consent that it should be set aside, which was refused, whereupon he inimediately made an af. fidavit of the facts, and procured an order to show cause. Held, that the judginent should have been set aside for excusable inadvertence of counsel.

Department 2. Appeal trom superior court, city and county of San Francisco; William T. Wallace, Judge.

Action by Edward Pearson against the Drobaz Fishing Company and others. There was an order refusing to set aside, on the ground of excusable inadvertence of counsel, a judgment theretofore entered in favor of plaintiff, and defendants appeal. Re versed.

A. Ruef, E. Parker, and Haines & Ward, for appellants. Henry H. Davis, for re spondent.

PER CURIAM. The plaintiff commenced this action in the superior court of the city and county of San Francisco to recover the sum of $382.25 alleged to be due for work, labor, and services rendered and performed by him for defendants at their special instance and request. The complaint was filed July 15, 1891, and on the 25th of the same month the defendants answered thereto, de nying that the defendants, or any of them, were indebted to the plaintiff in the sum named, or in any other sum, for work, labor, and services, or otherwise, or that the said sum, or any portion thereof, was due and payable from defendants, or either of them, to the plaintiff. Shortly after the answer was filed the case was placed on the trial calendar of department 6 of the court, and on October 6, 1891, it stood for trial as No. 7 on that calendar. When the cal. endar was called on the morning of the last named day the defendants' attorney, thinking the case would not be reached for trial until the next day, and having business in

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another court, was not present, but he had when guilty of inexcusable negligence, and
some one answer for him, to the call of the we do not think such a degree of negligence
case, “Ready." The six cases preceding this appears here. “Applications of this char-
one were at once continued or otherwise dis acter," said this court in Watson V. Rail-
posed of, and thereupon, in the absence of road Co., 41 Cal. 20, in passing upon an
the defendants and their attorney, the plain. appeal from an order opening a default,
tiff was called and examined as a witness “are addressed to the discretion-the legal
in his own beball, and the case was then discretion of the court in which the default
submitted, and judgment given in his favor has occurred, and should be disposed of by
for the amount demanded in the complaint. it as substantial justice may seem to re-
The attorney for defendants was informed quire. Each case must be determined by its
of the trial and judgment about 11 o'clock of own peculiar facts, for perhaps no two cases
the same day, and at about the same hour will be found to present the same circum-
called upon the attorney for the plaintiff, stances for consideration. As a general rule,
and requested him to stipulate that the judg- however, in cases where, as here, the ap-
ment should be set aside, which request was plication is made so immediately after de-
refused, and thereupon he at once made fault entered as that no considerable delay
an affidavit setting out facts to show that the plaintiff is to be occasioned by permit-
the judgment was taken against defendants ting a defense on the merits, the court ought
through their mistake, inadvertence, and sur to incline to relieve. The exercise of the
prise. On this affidavit an order was made mere discretion of the court ought to tend,
by the court on the afternoon of the day in a reasonable degree, at least, to bring
the judgment was rendered, requiring the about a judgment on the very merits of the
plaintiff to show cause on the 9th day of case; and when the circumstances are such
the same month why the judgment should as to lead the court to hesitate upon the mo-
not be set aside, and the defendants al tion to open the default, it is better, as a
lowed to present evidence in support of the general rule, that the doubt should be re
Issues raised by their answer. At the time solved in favor of the application. In con-
appointed the motion to set aside the judg nection with its allowance, terms and con-
ment came on regularly for hearing before ditions ought generally to be imposed upon
the court, and was submitted upon affidavits the party in default, which, of course, should
filed by the respective parties and the judg. be more or less severe, as the particular cir-
ment roll in the case. The plaintiff, in his cumstances would seem to warrant." The
affidavit, stated that some of his witnesses application of the rule thus stated to the
were seafaring men, and had left the city facts of this case must result in the re
of San Francisco, and that their where versal of the order. Judgment and order
abouts was unknown, and that to the best reversed.
of his belief he would not be able to find
them again. Thereafter, on December 1,
1891, the court denied the motion, and the SMITH V. SMITH et al. (No. 15,158.)
defendants excepted to the ruling. From

(Supreme Court of California. Aug. 31, 1893.) the judgment entered and the order denying

HOMESTEAD OF Widow-LIMITATION ON VALUEtheir motion the defendants appeal.

DISCRETION OF COURT. It is contended in support of the appeal 1. Under Code Civil Proc. $ 1465, whicb that upon the facts shown the court below provides that, in case no homestead has been should have set aside the judgment, and

selected by a married man in his lifetime, the

court must select, set apart, and cause to be that its refusal to do so was not a proper recorded, a homestead for the use of the survivexercise of its discretion, and we think it ing wife, the court may set apart one exceeding must be so held. There was undoubtedly

$5,000 in value.

2. Where the value of an estate is $85,000 negligence upon the part of the attorney for

in excess of debts and expenses of administra. the defendants, but it was not inexcusable tion, it is not an abuse of discretion to set negligence, under the circumstances here ap apart as a homestead to the surviving wife, out

of the community property, premises worth pearing. It is apparent that the defendants

$10,000, which were occupied by deceased and were not seeking to delay the trial. The

his family in his lifetime, and which are indi.. application to set aside the judgment was visible. made almost immediately after its rendi Appeal from superior court, Santa Clara tion, and in all probability before it was county; John Reynolds, Judge. actually entered. The plaintiff had notice Proceeding for the allotment of homestead of the fact that the application would be

to Catherine S. Smith, widow of E. 0. Smith, made. This being so, his affidavit, made two

deceased. From order setting apart days thereafter, that his witnesses had gone,

premises of the value of $10,000 as such and their whereabouts were unknown, ought

homestead, J. D. Smith and others appeal. not to have been deemed a sufficient answer

Afirmed. to the motion. Courts are established for

S. A. Barker, for appellants. Arthur Rodgthe purpose of administering justice in con ers and C. D. Wright, for respondent. S. F. troversies between parties, and this result

Leib, amicus curiae,
will be generally best attained by a trial
upon the merits, and neither of the parties

MCFARLAND, J. This is an appeal by should be deprived of such a trial except | certain heirs at law of E. 0. Smith, de

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ceased, from a probate order setting aside of Civil Procedure, the court, in the first tocertain premises as a homestead to the re stance, creates the homestead, and the ques. spondent, who is the widow of the deceased. tion there is, not what shall be done with The facts necessary to be stated are these: an existing homestead, but how shall an The said premises consist of an ordinary original homestead be created by the court,

city lot in the city of San Jose. It has a and out of what property shall it be carved? dwelling house on it which covers nearly the And there are no existing provisions of the entire lot, and in this house the deceased Code which restrain the court from selectand the respondent resided for several years ing premises as a homestead because they next before the death of the former. The exceed in value $5,000. There were such said premises were community property, and provisions in sections 1480–1484, Code Civil there was never any declaration of home Proc., but those sections were repealed in stead upon the same made by either of the 1874. If the contention of appellants be spouses. The deceased purchased the lot sound, then in the case at bar the court could for $4,500, paying $2,000 in cash and giving not possibly have set aside a homestead to his note for $2,500; the deed remaining in respondent, because there was no other land escrow, to be delivered upon payment of the of the estate out of which a homestead could note. The note was not paid nor the deed have been carved, and the premises which delivered during the lifetime of the de the court did set aside were indivisible. The ceased, but afterwards the respondent pro appeal here is from the order setting aside cured a third person to take an assignment the homestead, and under what provision of of the note, and thereupon the deed was the Code could the court have ordered $5,delivered and recorded, said third person 000 paid to respondent, either out of the now holding the note. There are no minor general assets of the estate, or out of the heirs of the deceased. The premises are proceeds of the sale of any particular piece now of the value of $10,000, and the bal. of property, before any homestead had been ance of the estate, above all debts and ex created ? penses of administration, is worth $75,000, If appellants' view be right, then collatwith a rental of $5,100 per annum. The lot eral kin might drive a widow and minor chilcould not be divided without destroying its dren out of their home because it happened character and use as a home, and is, as the to be worth a little more than $5,000. But court finds, "indivisible." There is no other we think that in Estate of Walkerly, 81 land of the estate suitable for a homestead. Cal. 579, 22 Pac. Rep. 888, the point made The contest is entirely between the respond by appellants was clearly decided against ent and certain heirs at law of the deceased, them. In that case the court set aside a the rights of creditors not being in any way

homestead worth $18,000, and appellants involved.

there made the contention insisted on by apAppellants contend that upon the forego- pellants here, viz. "that the court could not ing facts the court had no power to set aside set apart a probate homestead greater in said premises to the widow as a homestead, value than five thousand dollars." The because their value exceeds $5,000, and con court, however, affirmed the order, holding tend that the court should have directed that “the provisions of the Code authorizthat the said premises be sold, and that out ing a homestead to be set aside to the famof the proceeds respondent be given $5,000, ily of a decedent, where none has been se and no more, in "lieu of a homestead." The lected before his death, contains no limitaposition of appellants is not tenable. Sec tion as to the value of such homestead." tion 1465 of the Code of Civil Procedure pro The court further held that such an order vides that in a case like the one at bar the will not be disturbed by this court on accourt “ must select, designate, and set apart, count of the value of the homestead, unless and cause to be recorded, a homestead for there had been an abuse of discretion; and, the use" of the surviving wife. This "home considering the condition and value of the stead” which is to be selected, recorded, etc., estate in the case at bar, we see no abuse is not $5,000, nor any other sum of money. of discretion in the order appealed from. It is a place of residence; it is land,-real The fact that in that case the homestead was property. When a homestead has been se selected from the separate property of the lected by the parties, under the provisions deceased does not in any way distinguish of the Civil Code, circumstances may arise it from the case at bar. The same principle under which they will not be able to con and reasoning equally apply to both cases. tinue to hold it. Notably is this so when See, also, Estate of Schmidt, 94 Cal. 334, 29 the rights of a creditor are involved, and Pac. Rep. 714. We see nothing in the point the Code provides the machinery by which, that the provisions of the Code as above in such a case, the creditor may have the construed are unconstitutional. Order af. homestead sold, and the proceeds in excess firmed. of $5,000 applied to his debt. But this pro

We concur: BEATTY, O. J.; DE HA. vision has nothing to do with the creation

VEN, J.; FITZGERALD, J.; HARRISON, J. of a homestead, even when it is established by the parties under the Civil Code. In GAROUTTE, J. I concur.

If the ques. case of a probate homestead under the Code tion were a new one, I would dissent

if it be true that there is a marked differLEVI et al. y. DIMMICK et al. (No. 15,007.) ence in the value of the two kinds of dates, (Supreme Court of California. Sept. 7, 1893.)

then the case illustrates the carelessness WARRANTY-ACTION FOR BREACH-EVIDENCE.

with which contracts are frequently made, Where the contract for the sale of a

and how difficult questions are thrust upon quantity of dates, of two kinds, makes no dis

courts by the looseness with which business tinction as to the respective values of the two is often done. It appears that 2,500 boxes kinds, evidence is incompetent, in an action for of dates were delivered at the time the said the breach of warranty of the merchantable condition of one of the kinds, as furnisbed, to

contract was made, and paid for by reshow that such kind was not worth as much as spondents at the said price of six cents per the other kind.

pound, and that they were Hallowee dates. Department 2. Appeal from superior court,

These 2,500 boxes were in merchantable city and county of San Francisco; A. A. San- condition, and with reference to them no derson, Judge.

trouble occurred. But afterwards, on DecemAction by H. Levi & Co. against Dimmick ber 11, 1890, the 1,500 boxes mentioned in and others to recover damages for the said contract having arrived, appellants de breach of an express warranty of the mer

livered them to respondents, and respondchantable character of certain dates sold by ents paid appellants for them at the said defendants to plaintiffs. From a judgment contract price of six cents per pound. These for plaintiffs, and from an order denying a

1,500 boxes were, as a matter of fact, Sair motion for a new trial, defendants appeal. dates, and they proved to be not merchantAffirmed.

able. The court gave judgment for the dif

ference between the contract price of these Rhodes & Barstow, for appellants. Wal.

last 1,500--six cents per pound-and their J. Tuska, for respondents.

actual value as unmerchantable goods. But

the appellants, having averred in their anMCFARLAND, J. This is an action to

swer that Sair dates were worth less than recover damages for the breach of an ex

Hallowees, asked of one or two of their witpress warranty of the merchantable char

nesses the questions: "Was there any real acter of certain dates sold by defendants to

difference at that time in the value, in this plaintiffs, and paid for by plaintiffs at the

market, between Hallowees and Sair dates?” contract price. Judgment went for plain- and "What is the difference between Haltiffs, from which, and from an order deny lowees and Sairs?" and the court sustained ing a new trial, defendants appeal. We

objections to these questions, and we think have considered carefully the oral and writ

that the objections were properly sustained. ten arguments of counsel, and are satisfied

These questions amounted to nothing more that no reversible error was committed by

or less than an attempt to show that goods the trial court. There is only one point sold and delivered under an express conwhich we think necessary to be specially tract, at a stated price, were not worth as .noticed, and that is, whether or not the

much as the price at which they were excourt erred in excluding testimony offered

pressly sold, which, of course, a seller is by appellants to show a difference in value

estopped from doing, except under peculiar between two kinds of dates which are men

circumstances, not here existing. As before tioned in & contract between the parties.

observed, the contract, on its face, makes On November 29, 1890, the parties entered no difference between Hallowee and Sair into a written contract as follows: “Sold

dates, either as to the amount of either or this day to Messrs. H. Levi & Co., San Fran the price of either. But, as to the aggrecisco, 4,000 boxes dates, more or less, con

gate amount of dates, it is clear that the sisting of Hallowee 4A and Sairs, at six contract was severable as to the first lot, of (6) cents per pound, delivered at the wharf

2,500 boxes, and the second lot, of 1,500 at San Francisco in nerchantable condition. boxes. The first lot was delivered and paid Terms, cash on delivery. The above lot be for at the price named, and that ended the ing such as are received and on the way, contract as to that lot. As to the second consigned to order of G. H. Ballou & Co. lot, of 1,500 boxes, the sale and delivery 2,500 boxes, more or less, for immediate de

contingent. They were subject to livery, and balance, 1,500 boxes, more or the uncertainties of a voyage, and less, for delivery on arrival at San Fran it was provided that if they did not arcisco. It being understood that 1,500 are rive the "sale of 1,500 boxes is void.” It now afloat. If, by unavoidable accident, they had not arrived the transaction would balance of 1,500 do not arrive, sale of 1,500 have closed with the sale of the 2,500 boxes, boxes is void. Weights to be estimated at and the payment for them by respondents actual gross weight, less uniform tare of at the contract price; but, as they did ar10 Ibs. each box." This document

rive, payment had to be made for them by signed by appellants and respondents. It respondents at the contract price of six cents will be observed that in this contract no per pound, and such payment was made. If distinction is made between Hallowee dates the 1,500 boxes had been lost at sea, could and Sair dates, either as to the price or as appellants have recovered anything of re to the quantity of either kind sold; and, 'spondents upon the theory that the 2,500





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