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damages from the purchaser, who refused to receive them when tendered. A jury trial was had, plaintiff recovered judgment, and defendant appeals from the judgment, | and from an order denying a new trial. The contract called for Early Rose merchantable potatoes. It is claimed that there was no evidence at all tending to show that the goods tendered were merchantable. In this, we think, after carefully examining the record, the appellant is in error. There is much testimony to that effect. Appellant seems to conclude, because plaintiff's witnesses testified that some of the potatoes had sprouted a little, that it would necessarily follow that they were not merchantable. But this proposition cannot be sustained. That might depend upon how badly they had sprouted, and perhaps upon the time of the year in which they were to be delivered. Some witnesses testified that the potatoes tendered were salable for table use, or, as the witnesses preferred to say, for shipment. It became a question for the jury, and was submitted to them under instructions which are not complained of here. The judgment and order are affirmed.

MOORE v. MOORE et al. (No. 14,337.) (Supreme Court of California. Aug. 31, 1893.) EJECTMENT-POSSESSION AND OUSTER BY DEFENDANT-EVIDENCE- PRACTICE ON APPEAL - TENANTS IN COMMON.

1. In an action in the nature of ejectment, a specification of error that "the evidence showed that defendant M. was not in possession of said premises, or of any part thereof, at the time of the commencement of this action," is insufficient.

2. In an action in the nature of ejectment, where the evidence tends to prove that defendants were in possession of the premises when the action was commenced, an answer denying plaintiff's title and right of possession is sufficient evidence of ouster.

3. A tenant in common cannot, as against his cotenant, give a license to a third person to enter on the land held in common.

4. An exception reading, "To said oral instructions, and each and every part thereof, and to the giving thereof by the court, the defendant then and there duly excepted," is too general.

5. In ejectment by a widow against her husband's administrator for premises which had been set apart by order of court as a homestead to plaintiff and her minor children, absolutely, it appeared that, from the time of defendant's appointment as administrator till the homestead was set apart, defendant collected the rents of the premises, and paid taxes; that two months thereafter plaintiff demanded possession of him, which, she testified, he refused to give; that in his verified statement to the tax collector he included this homestead property; and that he leased part thereof to another. Held. that the evidence justified a verdict that defendant was in possession when the action was commenced.

6. Where a defendant in ejectment is in possession of any part of the premises as tenant of another, it is proper to join the latter as party defendant.

Commissioners' decision. Department 2. Appeal from superior court, Santa Cruz county; James F. Breen, Judge.

Action by Helen M. Moore against Thomas W. Moore and Leonard T. Almstead. From a judgment for plaintiff, and an order deny. ing a new trial, defendants appeal. Affirmed.

Spalsbury & Burke, Joseph N. Skirm, and Warren Olney, for appellants. Charles B. Younger, for respondent.

VANCLIEF, C. Action in the nature of ejectment to recover possession of an undivided half of a parcel of land situate in the county of Santa Cruz, and containing about 35 acres, which plaintiff claims as a probate homestead. It is alleged in the complaint that the plaintiff is the owner, and entitled to the possession, of the demanded premises; that defendants are in possession, and wrongfully withhold the possession from the plaintiff; that the rents and profits of the land have been and are of the value of $480 per year; and that the plaintiff has sustained damages in the sum of $2,300 by reason of the detention and withholding of the possession. Prayer that plaintiff may recover the land, with rents, profits, and damages. The separate answers of the defendants each "denies that plaintiff is, or ever was, the owner, or entitled to the possession, of an undivided one-half of the real estate described in said complaint, or any part thereof," and specifically denies every other allegation of the complaint, except that it is admitted that the value of the rents and profits have been one dollar per year. The jury returned a general verdict for the plaintiff, and assessed the damages at $847, upon which judgment was rendered in favor of the plaintiff. Defendants appeal from the judgment, and from an order denying their motion for a new trial.

The plaintiff is the widow of William H. Moore, deceased, who left surviving him four minor children by a former marriage. and a son by his marriage with plaintiff was born after his death, and named William H. Moore. The defendant Thomas W. Moore is a brother of the deceased, and administered upon his estate. On the petition of the plaintiff, filed after the birth of her son, William H. Moore, the demanded premises were set apart from the separate estate of her deceased husband by the probate court, as a homestead for the use of the widow and three of said minor children, namely, Charles Moore and Stella Moore, children of the former marriage, and William H. Moore, the son of plaintiff. The order setting apart the homestead was made April 26, 1881, and apportions the homestead as follows: "The undivided one-half part thereof to said widow, Helen H. Moore, and the undivided one-sixth thereof to each of the said minor children of the deceased, to wit, Charles Moore, Stella Moore, and William H. Moore." The effect of this order was determined in the case, Estate of Moore, 96 Cal. 522, 31 Pac. Rep. 584, in which it was held that conceding the order to have

been erroneous, in that it did not limit the duration of the homestead as required by section 1468 of the Code of Civil Procedure, yet, as there had been no appeal from it within the time limited by law, it was not void, and passed absolute title to the widow and the children named, so that the homestead was not subject to distribution on the settlement of the estate. The defendant Thomas W. Moore was a party to that appeal. It appears that Charles Moore was 14 years of age at the time the petition for homestead was filed, (August 2, 1877,) and consequently became of age some time in 1884. The homestead has upon it a large and a small dwelling house, a barn and other outhouses, and an orchard, besides a field of about 20 acres.

1. It is contended for appellants that the evidence is insufficient to justify the verdict that defendants were in possession of the demanded premises at the time of the commencement of the action, and also insufficient to justify a verdict for any damage whatever. The only specifications of deficiency of evidence as to the possession of the defendants are the following: "The evidence showed that the defendant Thomas W. Moore was not in possession of said premises, or of any part thereof, at the time of the commencement of this action," and a similar specification as to the defendant Almstead. This is not a specification of any particular in which the evidence is insufficient to justify the verdict, nor is it substantially equivalent to such specification. In the absence of the specification required by section 659 of the Code of Civil Procedure, the respondent was not required to bring into the statement all the evidence applicable to the issue as to the possession of defendants, nor can it be presumed that the statement contains all such evidence unless it purports to contain all the evidence in the case, which this statement does not. Yet, while I think respondent's point that the specification is insufficient is well taken, it appears that the evidence contained in the statement is amply sufficient to justify the verdict that defendant Almstead was in possession at the time the action was commenced. The defendants, in their testimony, admitted that defendant Moore, as administrator, verbally leased to defendant Almstead the land of the estate adjoining the homestead from October 1, 1884, to October 1, 1885, and again from October 1, 1885, to October 1, 1886. It was proved and admitted by Almstead that during those two years he cultivated the 20-acre field on the homestead, and that his employes occupied the small dwelling and other outhouses; but he and his codefendant, Moore, denied that the latter leased to him any part of the homestead, although two witnesses (Hoff and Bennett) testified that during the years 1885 and 1886, while they were working for him upon the homestead, he told them, severally,

at different times, that he had rented the homestead, except the big dwelling house, from defendant Moore. As to the possession of the defendant Moore at commencement of the action, the evidence is not so clear, yet, I think, tended to prove it. It is not controverted that, from the time of his appointment as administrator (March 4, 1872) until the order setting apart the homestead, (April 26, 1881,) he had at least constructive possession of all the decedent's real estate, including the homestead, and it appears that he collected the rents and paid the taxes during that period. He contested the application for the homestead; the plaintiff not being in possession at the time the application was made, nor at any time since. A part of the order setting apart the homestead is as follows: "It is hereby further ordered and adjudged that the administrator of said estate of William H. Moore, deceased, deliver the possession of the said homestead above described to Helen M. Moore, the petitioner herein." It is admitted that about two months after the order the plaintiff made both written and oral demand of the administrator for possession of the homestead, and she testified that upon such de mand he expressly and emphatically refused. She said: "I asked said Thomas W. Moore if he would deliver me possession of the homestead. He said he would be damned if he would do it." He denied this, saying he only refused to deliver the personal property. In his verified statement to the county assessor of property in his possession in the years 1884 and 1886, subject to taxation, he included the land constituting the homestead. I think the testimony, and circumstantial evidence also, tended to prove that he leased to the defendant Almstead so much of the homestead as the latter cultivated and occupied. It was not necessary to constructive possession that the administrator should have personally resided upon or cultivated the homestead. Barstow v. Newman, 34 Cal. 90. And constructive possession of a defendant in ejectment is sufficient to entitle a plaintiff to recover in that form of action. Crane v. Ghirardelli, 45 Cal. 235. And if the defendant Almstead was in possession of any part of the homestead, as a tenant of the administrator, the latter was properly joined as a party defendant. Code Civil Proc. 379; Gaslight Co. v. Dameron, 67 Cal. 663, 8 Pac. Rep. 595. As to the alleged insufficiency of the evidence to justify the verdict for damages, the specification is sufficient, but in that particular the evidence appears to be sufficient. Two witnesses testified that the rental value of the premises was from $25 to $30 per month, and one that it was $35 per month, and the evidence tended to prove that the possession was withheld more than two years.

2. At request of plaintiff's counsel, the court gave ten written instructions to the jury, to each one of which counsel for de

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ment on motion for new trial specifies, as an error in law, the giving of each of the ten instructions, without stating in what the error consists. There is nothing in the record indicating that the ground of objection to any one of the instructions was that it was not applicable to the evidence, nor that the evidence was not sufficient to justify the verdict in respect to the possession of the defendants, yet, upon this ground alone, it is contended for appellants that the ninth of said instructions is erroneous, which is as follows: "Each of the defendants, in his several answer in this action, denies that the plaintiff is or ever was the owner, or entitled to the possession, of an undivided onehalf of the real estate described in the complaint, or of any part thereof. Such denial was an ouster of plaintiff, and did away with occasion for a demand of possession." Assuming that the evidence tended to prove the defendants were in possession of the demanded premises at the time the action was commenced, (which I think should be presumed, in the absence of any specification of insufficiency of the evidence to prove it, even though such evidence were not to be found in the record,) the answers of the defendants, denying the plaintiff's title and right of possession, afford sufficient evidence of an ouster. Ketchum v. Barber, (Cal.) 12 Pac. Rep. 251, (not officially reported;) Marshall v. Shafter, 32 Cal. 177; Payne v. Treadwell, 16 Cal. 220.

The following is the tenth instruction given 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 children of W. H. Moore, deceased, then the right to the possession of the homestead was in said plaintiff and the said children, and none of the children named in said order could give any right to any person to occupy any part of said homestead, as against said plaintiff." This instruction was objected to in the same form as was the ninth, no ground of objection being stated. The ground of objection here stated for the first time is founded upon evidence tending to prove that the defendant Almstead occupied and cultivated the homestead by express license from Charles Moore, who, it is claimed, was a tenant in common with plaintiff in the homestead, to the extent of one-sixth thereof, by virtue of the order setting it apart. It is contended that, inasmuch as Charles Moore

was then 21 years of age, his bare license or permission to Almstead to enter, occupy, and cultivate the homestead, as he did, conferred upon the latter a right to do so, as against the plaintiff; that such license is a complete defense to this action, so far as Almstead is concerned; and, consequently. that the tenth instruction is erroneous, in that it instructs the jury that "none of the children named in said order [setting apart the homestead] could give any right to any person to occupy any part of said homestead, as against said plaintiff." Conceding that Charles Moore was a tenant in common, as claimed, it is well-settled that the instruction is correct. "No action of a portion of several tenants in common can impair the right of their cotenants." Mahoney v. Van Winkle, 21 Cal. 553, (per Field, C. J.;) Freem. Coten. § 172, and cases there cited. Other objections are made to some of the 10 instructions, given at the request of plaintiff's counsel, for which, however, I find no valid ground in the record.

3. Besides the ten written instructions given at request of the plaintiff, the court gave about an equal number of oral instructions, occupying about five pages of the printed transcript. To these defendants excepted in the following language, and not otherwise: "To which said oral instructions, and each and every part thereof, and to the giving thereof by the court, the defendants then and there duly excepted." This was too general, (Sill v. Reese, 47 Cal. 296-348; Rider v. Edgar, 54 Cal. 127; Cockrill v. Hall, 76 Cal. 192, 18 Pac. Rep. 318,) and for this reason the oral instructions will not be reviewed on appeal. I think the judgment and order should be affirmed.

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(Supreme Court of California. Aug. 31, 1893.) MECHANICS' LIENS-THE CONTRACT-PAYMENTSRIGHTS OF SUBCONTRACTORS.

1. Failure of the contract for erecting a building to comply substantially with Code Civil Proc. §§ 1183, 1184, relating to mechanics' liens, does not render the contract void. Lumber Co. v. Wooldredge, 27 Pac. Rep. 431, 90 Cal. 578, followed.

2. A contract for erecting a building, which provides that 25 per cent. of the sum to be paid shall remain unpaid until 35 days after completion of the building, and the remainder be paid in partial payments equal to 75 per cent. of the value of the work and material done and furnished at the time of such payments, sufficiently complies with Code Civil Proc. § 1184, providing that the contract price shall, by the terms of the contract, be made payable in installments at specified times after commencement of the work, and on the com'Rehearing granted.

pletion of the work, provided that at least 25 per cent. of the whole contract price shall be made payable at least 35 days after final completion of the contract.

3. Under Code Civil Proc. § 1184, requiring the contract for erecting a building to specify times when payments are to be made, and requiring 25 per cent. of the price to be retained until 35 days after completion, partial payments, however they are specified as to time, may be safely made, provided no notice of their subcontracts is given by material men, in the absence of which they must rely on the responsibility of the contractor, and the 25 per cent. required to be retained; and in such case they are not injured by any uncertainty as to the times of payment specified, nor by payments in advance of the specified time.

4. All that material men can require, in such case, is that at the time they serve written notice upon the owner, or, if no notice is served, at the time their lien is filed, there shall be in his hands the amount required by the contract and said section.

5. It does not prejudice persons furnishing a contractor material for erecting a building that the owner of the land purchased material from a firm of which he was a member, and furnished it to the contractor as a partial payment of the contract price, which partial payment he had a right to make.

6. The owner of a building who, out of the contract price, has paid laborers who were entitled to file liens, and would have filed them but for such payment, and who has also retained out of the contract price the 25 per cent. required by Code Civil Proc. § 1184, to be retained until 35 days after completion of the contract, is entitled to credit for such payment; and material men are not entitled to have the amount of such payment considered as part of the fund available for their claims, on the ground that there could be no privity between the owner and such laborers until they filed their liens, so as to entitle him to pay them.

7 The mechanic's lien statute does not require that the contract for erecting a building shall be signed by the owner, and it is sufficient if it be signed by the reputed owner.

8. A contract for erecting a building, and also for improvements on an adjoining lot running "westerly," is not avoided by the fact that the recorded memorandum of the contract erroneously uses the word "easterly," nor is the sufficiency of the memorandum destroyed.

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

Consolidated actions by Charles Dunlop and others against Alice Kennedy and John F. Kennedy to enforce liens for material. From a judgment for plaintiffs, defendants, Kennedy, appeal. Reversed.

Atty. Gen. Hart and Nowlin & Fassett, for appellants. Parker & Eells, for respond

ents.

HAYNES, C. Consolidated actions to enforce liens of material men. Plaintiffs had Judgment, and defendants, Alice Kennedy and John F. Kennedy, the owners, appeal from the judgment, and an order refusing a new trial. On September 26, 1889, Alice Kennedy, wife of said John F. Kennedy, entered into a contract in writing with Gray & Stover, of which firm the defendant Stover is the surviving partner, by which they were to erect for her a three-story building,

(flats,) and to furnish all materials and labor therefor, together with certain cement side walks and other walks on the same lot, and "also sidewalk in front of lot adjoining, running forty-two feet westerly, and all walk ways and yard in connection with said lot." The contract did not apportion the price of the work upon each lot, but the contractors were to be paid $6,600 "at the times and in the manner following, to wit: Twentyfive per cent. of the contract sum to remain unpaid until thirty-five days from and after completion of said building, and its acceptance by the within-named architect. The remaining amount to be paid in partial payments in amount equal to seventy-five per cent. of the value of the work done and materials furnished at the time of such payments." The contract was not filed in the recorder's office, but a memorandum of it was filed before the commencement of the work. Gray & Stover prosecuted the work until January 19, 1890, when Gray died, and Stover continued the work until February 18, 1890, when he abandoned the work before completion; and the owners, after due notice to the surviving contractor, continued the work, and completed it March 17, 1890. At the time of the contract there was a stable upon the lot, for which the contractors were to pay $150, and remove it. On December 21, Kennedy paid the contractors $3,000 in cash; and on January 14, 1890, the contractors receipted for $4.000, which included the said payment of $3,000, and $1,000 for lumber furnished under the following circumstances. John F. Kennedy was а member of the Kennedy-Shaw Lumber Company, and he agreed with the contractors to furnish the lumber, and it was furnished to the contractors to the above amount, and used in the building, the lumber company charging it to Kennedy, and that amount was included in the receipt as paid upon the contract. At the time Stover abandoned the work, there was due from the contractors to laborers $285, which amount was at once paid by the owners to the laborers. There was also due from the contractors to material men at the date of abandonment, including the amount due the plaintiffs in the consolidated cases, $2,656.74. The actual cost of completing the work in the manner the contract required was $1,255.89. After completion, the owners estimated the balance of the contract price remaining in their hands at $890.86, and offered to the respondents Towle & Broadwell, and to re spondent Dunlop, and the other material men, their several pro rata shares of said sum. All except Towle & Broadwell and Dunlop accepted the offer, and received the payment in satisfaction of their several claims. Dunlop and Towle & Broadwell refused to accept the offer. Those accepting the settlement were five in number, and their claims aggregated $998.74. Whether the offer was made to respondents before

their liens were filed, does not appear. The others did not file liens. The court found due to respondent Dunlop $585, and to Towle & Broadwell $1,073, besides costs and attorneys' fees to each, and that they were entitled to liens for those amounts. Other findings necessary to be noticed are that John F. Kennedy was and is the owner in fee of the premises, and that Mrs. Kennedy is the reputed owner; that no memorandum of the contract was ever filed, except that set out in the findings; that the defendants did not comply with the terms of the contract as to payments, but that on December 21, 1889, there was paid $3,000 in cash, and on January 14, 1890, a receipt was given for that sum, and $1,000 for the lumber herein before mentioned, and that no cash payments were made, except said sum of $3,000; and, as a conclusion of law, that the materials furnished by plaintiffs were furnished at the personal instance of defendants. But whether this conclusion is based upon the supposed insufficiency of the contract and memorandum, as to the time of making partial payments, or upon the ground that overpayments were made, is difficult to ascertain. Both grounds are urged in respondents' brief, and require consideration.

If it were conceded that the contract and memorandum did not substantially comply with sections 1183 and 1184 of the Code of Civil Procedure, that fact would not, as respondents' counsel contend, make the contract void. Lumber Co. v. Wooldredge, 90 Cal. 578, 27 Pac. Rep. 431. It was said, however, in that case: "But the same consequence follows for a material nonconformity of the contract with the statute, under section 1184, so far as to permit material men and laborers to recover without regard to the amount due upon the contract." Said section provides that "the contract price shall, by the terms of the contract, be made payable in installments at specified times after the commencement of the work or on the completion of the work, provided that at least twenty-five per cent. of the whole contract price shall be made payable at least thirty-five days after final completion of the contract." I think the contract in question substantially complied with the requirements of this section. The owner cannot with safety agree to pay a definite amount on a particular day, as he cannot know in advance whether the contractor will have earned the payment; and, if the payment is to be made upon reaching certain stages of the work, it only furnishes the means of ascertaining the day of payment when it actually arrives. The whole object of the provision is to protect material men, and any specification which accomplishes this purpose is sufficient. The partial payments, no matter how they are specified as to time, may safely be made, provided no notice of their subcontracts has been given by material men. These pay

ments may therefore be anticipated and secured as a fund for the payment of their claims, by giving written notice as provided by statute. In the absence of such notice they must rely upon the personal responsibility of the contractor, and the 25 per centum of the whole contract price required to be retained for 35 days after the completion of the work; and in such case they are in no wise affected by any uncertainty as to the time when partial payments are to be made, nor by payments thereof in advance of the time specified. If, however, a material man gives written notice of his claim for materials furnished to the contractor before the time fixed for a partial payment, he thereby acquires an interest in that and subsequent payments, to the extent of his claim, and may hold the owner for the amount thereof, notwithstanding the fact that that payment was made before the notice was served. In this case, however, no notice was served, and it is therefore immaterial whether the contract was indefinite as to the time of payments. It requires the owner to have in his hands at all times at least 25 per centum of the value of the work done and materials furnished, so that at at any time notice might be served the owner was liable for that proportion of the work actually done, as well as all the contractor should earn thereafter. The record does not show the value of the labor and materials done and furnished at the date of the payment of $3,000, but the court found that at the date of Gray's death the work was not more than three-fourths completed. At that date the owners had paid $287.50, more than 75 per cent. of the work done. But Stover, the surviving partner, continued the work until February 17th, when he abandoned it. testimony of the architect shows, without contradiction, that it cost to complete the work $1,255.89, showing that the contractors had earned, at the time of abandonment, $5,344.11. Seventy-five per cent. of that sum is $4,008, showing in the hands of the owners $8 more than the 25 per cent. required by the contract to be retained from partial payments. All that material men can require is that at the time they serve written notice upon the owner, or, if no notice is served, at the time their lien is filed, there shall be in the hands of the owner the amount required by the contract and the law; and if that amount is in his hands there can be no liability resting upon him, or his property beyond it. The statute must have a reasonable construction as well for the protection of the owner as of the material man. It would be no hardship upon material men if their right to a lien were by statute made to depend upon prompt notice to the owner of their agreement with the contractor to furnish materials; and if they would avail themselves of the right now given them by the statute, to serve written notice upon

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