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damages from the purchaser, who refused Action by Helen M. Moore against Thomas to receive them when tendered. A jury W. Moore and Leonard T. Almstead. From trial was had, plaintiff recovered judgment, a judginent for plaintiff, and an order deng. and defendant appeals from the judgment, ing a new trial, defendants appeal. Affirmed. and from an order denying a new trial. The contract called for Early Rose merchantable

Spalsbury & Burke, Joseph N. Skirm, and

Warren Olney, for appellants. Charles B. potatoes. It is claimed that there was no evidence at all tending to show that the

Younger, for respondent. goods tendered were merchantable. In this, we think, after carefully examining the rec

VANCLIEF, O. Action in the nature of ord, the appellant is in error. There is

ejectment to recover possession of an unmuch testimony to that effect. Appellant

divided half of a parcel of land situate in seems to conclude, because plaintiff's wit

the county of Santa Cruz, and containing nesses testified that some of the potatoes

about 35 acres, which plaintiff claims as a had sprouted a little, that it would neces

probate homestead. It is alleged in the comsarily follow that they were not merchant- plaint that the plaintiff is the owner, and able. But this proposition cannot be sus

entitled to the possession, of the demanded tained. That might depend upon how badly premises; that defendants are in possession, they had sprouted, and perhaps upon the

and wrongfully withhold the possession from time of the year in which they were to be

the plaintiff; that the rents and profits of delivered. Some witnesses testified that the

the land have been and are of the value potatoes tendered were salable for table use,

of $480 per year; and that the plaintiff has or, as the witnesses preferred to say, for

sustained damages in the sum of $2,300 by shipment. It became a question for the

reason of the detention and withholding of

the possession. Prayer that plaintiff may jury, and was submitted to them under in

recover the land, with rents, profits, and structions which are not complained of here. The judgment and order are affirmed.

damages. The separate answers of the de fendants each "denies that plaintiff is, or ever was, the owner, or entitled to the pos

session, of an undivided one-half of the real MOORE V. MOORE et al. (No. 14,337.) estate described in said complaint, or any (Supreme Court of California. Aug. 31, 1893.) part thereof,” and specifically denies every EJECTMENT-PossesgION AND OUSTER BY DEFEND- other allegation of the complaint, except

ANT-EVIDENCE PRACTICE ON APPEAL - TEN. that it is admitted that the value of the rents ANTS IN COMMON.

and profits have been one dollar per year. 1. In an action in the nature of ejectment, a specification of error that "the evidence

The jury returned a general verdict for the showed that defendant M. was not in posses

plaintiff, and assessed the damages at $847, sion of said premises, or of any part thereof, upon which judgment was rendered in favor at the time of the commencement of this ac

of the plaintiff. Defendants appeal from the tion," is insufficient. 2. In an action in the nature of ejectment,

judgment, and from an order denying their where the evidence tends to prove that defend

motion for a new trial. ants were in possession of the premises when

The plaintiff is the widow of William the action was commenced, an answer denying plaintiff's title and right of possession is suffi

H. Moore, deceased, who left surviving him cient evidence of ouster.

four minor children by a former marriage, 3. A tenant in common cannot, as against and a son by his marriage with plaintiff his cotenant, give a license to a third person

was born after his death, and named Wilto enter on the land held in common. 4. An exception reading, “To said oral in

liam H. Moore. The defendant Thomas W. structions, and each and every part thereof, Moore is a brother of the deceased, and adand to the giving thereof by the court, the de ninistered upon his estate. On the petition fendant then and there duly excepted," is too general.

of the plaintiff, filed after the birth of her 5. In ejectment by a widow against her son, William H. Moore, the demanded premhusband's administrator for premiges which ises were set apart from the separate estate had been set apart by order of court as a

of her deceased husband by the probate homestead to plaintiff and her minor children, absolutely, it appeared that, from the time of

court, as a homestead for the use of the defendant's appointment as administrator till widow and three of said minor children, the homestead was set apart, defendant col- namely, Charles Moore and Stella Moore, lected the rents of the premises, and paid taxes; that two months thereafter plaintiff de

children of the former marriage, and Wilmanded possession of him, which, she testi- liam H. Moore, the son of plaintiff. The fied, he refused to give; that in his verified order setting apart the homestead was made statement to the tax collector he included this homestead property; and that he leased part

April 26, 1881, and apportions the home thereof to another. Held. that the evidence

stead as follows: "The undivided one-half justified a verdict that defendant was in pos- part thereof to said widow, Helen H. Moore, session when the action was commenced.

and the undivided one-sixth thereof to each 6. Where a defendant in ejectment is in possession of any part of the premises as ten

of the said minor children of the deceased, ant of another, it is proper to join the latter as

to wit, Charles Moore, Stella Moore, and party defendant.

William H. Moore." The effect of this order Commissioners' decision. Department 2. was determined in the case, Estate of Moore, Appeal from superior court, Santa Cruz coun- 96 Cal. 522, 31 Pac. Rep. 584, in which it ty; James F. Breen, Judge.

was held that conceding the order to have

been erroneous, in that it did not limit the at different times, that he had rented the duration of the homestead as required by homestead, except the big dwelling house, section 1468 of the Code of Civil Procedure, from defendant Moore. As to the possesyet, as there had been no appeal from it sion of the defendant Moore at commence within the time limited by law, it was not ment of the action, the evidence is not so void, and passed absolute title to the widow clear, yet, I think, tended to prove it. It is and the children named, so that the home- not controverted that, from the time of his stead was not subject to distribution on the appointment as administrator (March 4, settlement of the estate. The defendant 1872) until the order setting apart the homeThomas W. Moore was a party to that ap- stead, (April 26, 1881,) he had at least conpeal. It appears that Charles Moore was 14 structive possession of all the decedent's real years of age at the time the petition for estate, including the homestead, and it aphomestead was filed, (August 2, 1877,) and pears that he collected the rents and paid consequently became of age some time in the taxes during that period. He contested 1884. The homestead has upon it a large the application for the homestead; the plainand a small dwelling house, a barn and tiff not being in possession at the time the other outhouses, and an orchard, besides a application was made, nor at any time since. field of about 20 acres.

A part of the order setting apart the home 1. It is contended for appellants that stead is as follows: “It is hereby further the evidence is insufficient to justify the ordered and adjudged that the administrator verdict that defendants were in possession of said estate of William H. Moore, deceased, of the demanded premises at the time of deliver the possession of the said homestead the commencement of the action, and also above described to Helen M. Moore, the pe insufficient to justify a verdict for any dam- titioner herein." It is admitted that about age whatever. The only specifications of two months after the order the plaintiff deficiency of evidence as to the possession of made both written and oral demand of the the defendants are the following: “The ev- administrator for possession of the home idence showed that the defendant Thomas stead, and she testified that upon such de W. Moore was not in possession of said mand he expressly and emphatically refused. premises, or of any part thereof, at the time She said: "I asked said Thomas W. Moore of the commencement of this action," and if he would deliver me possession of the a similar specification as to the defendant homestead. He said he would be damned Almstead. This is not a specification of any if he would do it." He denied this, saying particular in which the evidence is insuff- he only refused to deliver the personal propcient to justify the verdict, nor is it sub- erty. In his verified statement to the counstantially equivalent to such specification. ty assessor of property in his possession in In the absence of the specification required the years 1884 and 1886, subject to taxation, by section 659 of the Code of Civil Procedure, he included the land constituting the home the respondent was not required to bring stead. I think the testimony, and circuminto the statement all the evidence applicable stantial evidence also, tended to prove that to the issue as to the possession of defend- he leased to the defendant Almstead so much ants, nor can it be presumed that the state- of the homestead as the latter cultivated and ment contains all such evidence unless it occupied. It was not necessary to conpurports to contain all the evidence in the structive possession that the administrator case, which this statement does not. Yet, should have personally resided upon or culwhile I think respondent's point that the tivated the homestead. Barstow v. Newman, specification is insufficient is well taken, it 34 Cal. 90. And constructive possession of appears that the evidence contained in the a defendant in ejectment is sufficient to enstatement is amply sufficient to justify the title a plaintiff to recover in that form of verdict that defendant Almstead was in pos- action. Crane v. Ghirardelli, 45 Cal. 235. session at the time the action was com- And if the defendant Almstead was in possesmenced. The defendants, in their testimony, sion of any part of the homestead, as a tenadmitted that defendant Moore, as admin- ant of the administrator, the latter was prop istrator, verbally leased to defendant Alm- erly joined as a party defendant. Code Civil stead the land of the estate adjoining the Proc. $ 379; Gaslight Co. v. Dameron, 67 homestead from October 1, 1881, to October Cal. 663, 8 Pac. Rep. 595. As to the al1, 1885, and again from October 1, 1885, to leged insufficiency of the evidence to justify October 1, 1886. It was proved and ad- the verdict for damages, the specification mitted by Almstead that during those two is sufficient, but in that particular the eviyears he cultivated the 20-acre field on the dence appears to be sufficient. Two withomestead, and that his employes occupied nesses testified that the rental value of the the small dwelling and other outhouses; but premises was from $25 to $30 per month, and he and his codefendant, Moore, denied that one that it was $35 per month, and the ev. the latter leased to him any part of the idence tended to prove that the possession homestead, although two witnesses (Hoff and was withheld more than two years. Bennett) testified that during the years 1885 2. At request of plaintiff's counsel, the and 1886, while they were working for him court gave ten written instructions to the upon the homestead, he told them, severally, l jury, to each one of which counsel for do fendants objected, without stating any was then 21 years of age, his bare license ground for the objection, and excepted to or permission to Almstead to enter, occupy, the ruling of the court in overruling their and cultivate the homestead, as he did, con. objections, the objection and exception to ferred upon the latter a right to do so, as each instruction being as follows: "To the against the plaintiff; that such license is a giving of which said instruction to the jury complete defense to this action, so far as said defendants objected, which objection Almstead is concerned; and, consequently, was overruled by the court, and said instruc- that the tenth instruction is erroneous, in tion was given by the court to the jury, to that it instructs the jury that “none of the which ruling of the court the defendants children named in said order (setting apart then and there duly excepted." The state the homestead) could give any right to any ment on motion for new trial specifies, as person to occupy any part of said homestead, an error in law, the giving of each of the ten as against said plaintiff." Conceding that instructions, without stating in what the er- Charles Moore was a tenant in common, as ror consists. There is nothing in the record claimed, it is well-settled that the instrucindicating that the ground of objection to tion is correct. "No action of a portion of any one of the instructions was that it was several tenants in common can impair the not applicable to the evidence, nor that the right of their cotenants." Mahoney v. Van evidence was not sufficient to justify the ver- Winkle, 21 Cal. 553, (per Field, C. J.;) dict in respect to the possession of the de- Freem. Coten. 8 172, and cases there cited. fendants, yet, upon this ground alone, it is Other objections are made to some of the 10 contended for appellants that the ninth of instructions, given at the request of plainsaid instructions is erroneous, which is as tiff's counsel, for which, however, I ind no follows: "Each of the defendants, in his sev- valid ground in the record. eral answer in this action, denies that the 3. Besides the ten written instructions given plaintiff is or ever was the owner, or enti- at request of the plaintiff, the court gave tled to the possession, of an undivided one- about an equal number of oral instructions, half of the real estate described in the com- occupying about five pages of the printed plaint, or of any part thereof. Such denial transcript. To these defendants excepted in was an ouster of plaintiff, and did away the following language, and not otherwise: with occasion for a demand of possession." "To which said oral instructions, and each Assuming that the evidence tended to prove and every part thereof, and to the giving the defendants were in possession of the de thereof by the court, the defendants then manded premises at the time the action was and there duly excepted.” This was too commenced, (which I think should be pre

general, (Sill v. Reese, 47 Cal. 296–348; Rider sumed, in the absence of any specification of v. Edgar, 54 Cal. 127; Cockrill v. Hall, 76 insufficiency of the evidence to prove it, even Cal. 192, 18 Pac. Rep. 318,) and for this reathough such evidence were not to be found

son the oral instructions will not be reviewed in the record,) the answers of the defend

on appeal. I think the judgment and order ants, denying the plaintiff's title and right should be affirmed. of possession, afford sufficient evidence of an ougter. Ketchum v. Barber, (Cal.) 12 Pac. I concur: BELCHER, O. Rep. 251, (not officially reported;) Marshall v. Shafter, 32 Cal. 177; Payne v. Treadwell, PER CURIAM. For the reasons given in 16 Cal. 220.

the foregoing opinion the judgment and orThe following is the tenth instruction given

der appealed from are affirmed. at the request of the plaintiff: “If the land described in the complaint is the same land described in the order setting apart the homestead to Helen M. Moore and the minor DUNLOP et al. v. KENNEDY et al.' children of W. H. Moore, deceased, then the

(No. 15,112.) right to the possession of the homestead was (Supreme Court of California. Aug. 31, 1893.) in said plaintiff and the said children, and MECHANICS' Liens—The CONTRACT - PAYMENTSnone of the children named in said order

RightS OF SUBCONTRACTORS. could give any right to any person to occupy

1. Failure of the contract for erecting a any part of said homestead, as against said building to comply substantially with Code

Civil Proc. $8 1183, 1181, relating to mechanplaintiff.” This instruction was objected to

ics' liens, does not render the contract void. in the same form as was the ninth, no ground Lumber Co. v. Wooldredge, 27 Pac. Rep. 431, of objection being stated. The ground of

90 Cal. 578, followed.

2. A contract for erecting a building, objection here stated for the first time is

which provides that 25 per cent. of the sum founded upon evidence tending to prove that to be paid shall remain unpaid until 35 days the defendant Almstead occupied and culti- after completion of the building, and the re vated the homestead by express license from

mainder be paid in partial payments equal to

75 per cent. of the value of the work and maCharles Moore, who, it is claimed, was a terial done and furnished at the time of such tenant in common with plaintiff in the home payments, sufficiently complies with Code Civil stead, to the extent of one-sixth thereof, by

Proc. & 1184, providing that the contract price

shall, by the terms of the contract, be made virtue of the order setting it apart. It is

payable in installments at specified times after contended that, inasmuch as Charles Moore commencement of the work, and on the coun

· Rehearing granted.

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pletion of the work, provided that at least 25 (flats,) and to furnish all materials and labor per cent. of the whole contract price shall be therefor, together with certain cement side made payable at least 35 days after final com

walks and other walks on the same lor, and pletion of the contract.

3. Under Code Civil Proc. $ 1184, requir- “also sidewalk in front of lot adjoining, runing the contract for erecting a building to spec- ning forty-two feet westerly, and all walk ify times when payments are to be made, and

ways and yard in connection with said lot." requiring 25 per cent. of the price to be retained until 35 days after completion, partial

The contract did not apportion the price of payments, however they are specified as to the work upon each lot, but the contractors time, may be safely made, provided no notice

were to be paid $6,600 "at the times and of their subcontracts is given by material men, in the absence of which they must rely on the

in the manner following, to wit: Twentyresponsibility of the contractor, and the 25 per five per cent. of the contract sum to re cent. required to be retained; and in such case main unpaid until thirty-five days from and they are not injured by any uncertainty as to

after completion of said building, and its the times of payment specified, nor by payments in advance of the specified time.

acceptance by the within-named architect. 4. All that material men can require, in The remaining amount to be paid in partial such case, is that at the time they serve written notice upon the owner, or, if no notice is

payments in amount equal to seventy-five served, at the time their lien is filed, there

per cent. of the value of the work done and shall be in his hands the amount required by materials furnished at the time of such pay. the contract and said section. 5. It does not prejudice persons furnishing recorder's office, but a memorandum of it

ments." The contract was not filed in the & contractor material for erecting a building that the owner of the land purchased material

was filed before the commencement of the from a firm of which he was a member, and work. Gray & Stover prosecuted the work furnished it to the contractor as a partial pay

until January 19, 1890, wben Gray died, ment of the contract price, which partial payment he had a right to make.

and Stover continued the work until Febru6. The owner of a building who, out of ary 18, 1890, when he abandoned the work the contract price, has paid laborers who were before completion; and the owners, after entitled to file liens, and would have filed them

due notice to the surviving contractor, conbut for such payment, and who has also retained out of the contract price the 25 per tinued the work, and completed it March cent. required by Code Civil Proc. $ 1181, to

17, 1890. At the time of the contract there be retained until 35 days after completion of

was a stable upon the lot, for which tbe conthe contract, is entitled to credit for such payment; and material men are not entitled to tractors were to pay $150, and remove it. have the amount of such payment considered On December 21, Kennedy paid the contractas part of the fund available for their claims,

ors $3,000 in cash; and on January 14, 1890, on the ground that there could be no privity between the owner and such laborers until the contractors receipted for $4.000, which they filed their liens, so as to entitle him to included the said payment of $3,000, and $1,pay them.

000 for lumber furnished under the following 7 The mechanic's lien statute does not require that the contract for erecting a building

circumstances. John F. Kennedy was a shall be signed by the owner, and it is suffi- member of the Kennedy-Shaw Lumber Comcient if it be signed by the reputed owner. pany, and he agreed with the contractors to 8. A contract for erecting a building, and

furnish the lumber, and it was furnished to also for improvements on an adjoining lot running "westerly," is not avoided by the fact that

the contractors to the above amount, and the recorded memorandum of the contract er- used in the building, the lumber company roneously uses the word "easterly," nor is the

charging it to Kennedy, and that amount sufficiency of the memorandum destroyed.

was included in the receipt as paid upon the Commissioners' decision. Department 2. contract. At the time Stover abandoned Appeal from superior court, city and county the work, there was due from the contract of San Francisco; William T. Wallace, ors to laborers $285, which amount was at Judge.

once paid by the owners to the laborers. Consolidated actions by Charles Dunlop There was also due from the contractors and others against Alice Kennedy and John to material men at the date of abandonment, F. Kennedy to enforce liens for material.

including the amount due the plaintiff's in From a judgment for plaintiffs, defendants, the consolidated cases, $2,656.74. The acKennedy, appeal. Reversed.

tual cost of completing the work in the manAtty. Gen. Hart and Nowlin & Fassett, for ner the contract required was $1,255.89. appellants. Parker & Eells, for respond- After completion, the owners estimated the ents.

balance of the contract price remaining in

their hands at $890.86, and offered to the re HAYNES, C. Consolidated actions to en- spondents Towle & Broadwell, and to re force liens of material men. Plaintiffs had spondent Dunlop, and the other material Judgment, and defendants, Alice Kennedy men, their several pro rata shares of said and John F. Kennedy, the owners, appeal sum. All except Towle & Broadwell and from the judgment, and an order refusing a Dunlop accepted the offer, and received the new trial. On September 26, 1889, Alice payment in satisfaction of their several Kennedy, wife of said John F. Kennedy, claims. Dunlop and Towle & Broadwell reentered into a contract in writing with Gray fused to accept the offer. Those accepting & Stover, of which firm the defendant Sto- the settlement were five in number, and ver is the surviving partner, by which they their claims aggregated $998.74. Whether were to erect for her a three-story building, the offer was made to respondents before

of

their lens were filed, does not appear. The ments may therefore be anticipated and se others did not file liens. The court found cured as a fund for the payment of their due to respondent Dunlop $585, and to Towle claims, by giving written notice as provided & Broadwell $1,073, besides costs and attor- by statute. In the absence of such notice neys' fees to each, and that they were enti- they must rely upon the personal responsitled to liens for those amounts. Other find-bility of the contractor, and the 25 per ings necessary to be noticed are that John F. centum of the whole contract price required Kennedy was and is the owner in fee of to be retained for 35 days after the comthe premises, and that Mrs. Kennedy is the pletion of the work; and in such case they reputed owner; that no memorandum of the are in no wise affected by any uncertainty contract was ever filed, except that set out as to the time when partial payments are in the findings; that the defendants did not to be made, nor by payments thereof in adcomply with the terms of the contract as to vance of the time specified. If, bowever, payments, but that on December 21, 1889, a material man gives written notice of his there was paid $3,000 in cash, and on Jan. claim for materials furnished to the conuary 14, 1890, a receipt was given for that tractor before the time fixed for a partial sum, and $1,000 for the lumber hereinbefore payment, he thereby acquires an interest in mentioned, and that no cash payments were that and subsequent payments, to the exmade, except said sum of $3,000; and, as a tent of his claim, and may hold the owner conclusion of law, that the materials: fur- for the amount thereof, notwithstanding the nished by plaintiffs were furnished at the fact that that payment was made before personal instance defendants. But the notice was served. In this case, howwhether this conclusion is based upon the ever, no notice was served, and it is there supposed insufficiency of the contract and fore immaterial whether the contract was memorandum, as to the time of making par- indefinite as to the time of payments. It tial payments, or upon the ground that over- requires the owner to have in his hands at payments were made, is difficult to ascer

all times at least 25 per centum of the tain. Both grounds are urged in respond- value of the work done and materials ents' brief, and require consideration.

furnished, so that at at any time notice If it were conceded that the contract and might be served the owner was liable for memorandum did not substantially comply that proportion of the work actually done, as with sections 1183 and 1184 of the Code of well as all the contractor should earn there Civil Procedure, that fact would not, as re- after. The record does not show the value spondents' counsel contend, make the con- of the labor and materials done and furtract void. Lumber Co. v. Wooldredge, 90 nished at the date of the payment of $3,000, Cal. 578, 27 Pac. Rep. 431. It was said, but the court found that at the date of however, in that case: “But the same con- Gray's death the work was not more than sequence follows for a material noncon- three-fourths completed. At that date the formity of the contract with the statute, owners had paid $287.50, more than 75 per under section 1184, so far as to permit ma- cent. of the work done. But Stover, the terial men and laborers to recover without surviving partner, continued the work until regard to the amount due upon the con- February 17th, when be abandoned it. The tract." Said section provides that “the con- testimony of the architect shows, without tract price shall, by the terms of the con- contradiction, that it cost to complete the tract, be made payable in installments at work $1,255.89, showing that the contractors specified times after the commencement of had earned, at the time of abandonment, the work or on the completion of the work, $5,344.11. Seventy-five per cent. of that suni provided that at least twenty-five per cent. is $4,008, showing in the hands of the ownof the whole contract price shall be made ers $8 more than the 25 per cent. required by payable at least thirty-five days after final the contract to be retained from partial paycompletion of the contract." I think the ments. All that material men can require is contract in question substantially complied that at the time they serve written notice with the requirements of this section. The upon the owner, or, if no notice is served, owner cannot with safety agree to pay a at the time their lien is filed, there shall be definite amount on a particular day, as he | in the hands of the owner the amount re cannot know in advance whether the con- quired by the contract and the law; and if tractor will have earned the payment; and, that amount is in his hands there can be if the payment is to be made upon reaching no liability resting upon him, or his propcertain stages of the work, it only furnishes erty beyond it. The statute must have a the means of ascertaining the day of pay- | reasonable construction as well for the proment when it actually arrives. The whole tection of the owner as of the material man. object of the provision is to protect ma- It would be no hardship upon material men terial men, and any specification which ac- if their right to a lien were by statute made complishes this purpose is sufficient. The to depend upon prompt notice to the owner partial payments, no matter how they are of their agreement with the contractor to specified as to time, may safely be made, furnish materials; and if they would avail provided no notice of their subcontracts has themselves of the right now given them by been given by material men.

the statute, to serve written notice upon

These pay

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