Department 2. Appeal from superior court, Santa Clara county; W. G. Lorigan, Judge.

Action by G. A. Marten against the Paul 0. Burns Wine Company and others to recover money paid by plaintiff to defendant corporation on the ground that plaintiff was induced to take the stock by false representations. There was a judgment in favor of defendants, and plaintiff appeals. Affirmed.

John H. Yoell, for appellant. S. F. Leib, for respondents.

FITZGERALD, J. This action was brought to recover $4,000 and interest, paid by plaintiff to the defendant corporation for 5,000 shares of its capital stock. The recovery is sought upon a rescission of the contract of sale, on the ground that plaintiff was induced to make the purchase by the false and fraudulent representations of the defendant as to the profits of its business, and the value of its stock. The stock was purchased in March, 1887, and the alleged discovery of the facts constituting the fraud complained of was made January 20, 1890, and the attempt to rescind was made on April 23, 1890. Defendants had judgment, and plaintiff appeals therefrom, and also from the order denying his motion for a new trial.

Upon the question of rescission, which is the only one necessary to be determined on this appeal, the court, in its decision, found, in effect, that at the time of the purchase of the stock by plaintiff he had full knowledge of the true value thereof, and of the resources, liabilities, assets, and actual condition of the defendant corporation; that the stock, when purchased by plaintiff, was worth the price paid for it, and that he never discovered any fact or facts constituting fraud by defendants; that after plaintiff purchased his stock he received a dividend of $100 thereon, and on the 20th day of January, 1890, was present at a stockholders' meeting of the defendant corporation, and voted for an assessment of 5 cents per share, or $250, upon his stock, and on March 19, 1890, he voluntarily paid the same. On April 23, 1890, having prior thereto dealt with and claimed said stock as his own, plaintiff' demanded of defendant that it pay to him the $4,000 paid by him for the stock, and the $250 paid by him on said assessment, and thereupon offered to return the stock so purchased to defendant, but without deducting, or offering to deduct, or accounting in any way for, the $100 received by him as dividend thereon. Upon these facts, which must be taken as undisputed, as the findings thereof are not attacked by the specifications, it follows that plaintiff was not in a position to rescind. But conceding, as he alleges, that he did not discover the facts constituting the fraud complained of until the 20th day of January,

1890, it appears that on that day he was present at a stockholders' meeting of the defendant, and voted for the levy of an assessment on the capital stock thereof, and that subsequent to that day he attended another meeting of the stockholders, and afterwards, on March 19th following, he paid the assessment so levied without objection. This was, in effect, an affirmance of the contract, which plaintiff will not be permitted to disaffirm, after having, with full knowledge of the fraud, dealt with the subject-matters thereof under circumstances and to an extent that amount to a ratification. It further appears that he did not offer to rescind until April 23, 1890, more than three months after his alleged discovery of the fraud. Subdivision 1 of section 1691 provides that the party rescinding must do so "promptly upon discovering the facts which entitle him to rescind if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind." The language of this section, except as to the cases therein enumerated, and in others where a sufficient showing for the delay is made, is mandatory as to promptitude by the defendant upon the discovery of the fraud; and, as the case before us is not embraced within these exceptions, we are of the opinion that plaintiff was too late in making his offer to rescind. But, assuming that he was in time, subdivision 2 of the same section provides "that he must restore to the other party everything of value which he received from him under the contract; or must offer to restore the same upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so." It appears that plaintiff, in his offer to rescind, did not then, or at any time thereafter, offer to return or account for the $100 dividend received by him from the defendant on his stock. This was fatal to the validity of the offer, for the reason that he was bound, upon a rescission of the contract, to restore to the defendant everything of value which he received from it thereunder, so as to place the parties in statu quo, and for him to withhold any part thereof would be "incompatible with rescission," within the meaning of this section. The restoration or offer to restore the dividend received was absolutely indispensable, in order to put the parties in the position they were in before the making of the contract, and anything less than this would not amount to a rescission of the contract in toto, without which plaintiff could not recover in this action.

There is another objection to the offer to rescind which is equally fatal to its validity, and that is plaintiff's demand, as a condition of rescission, that defendant return to him the $250 assessment which he voted for, and afterwards voluntarily paid, with full knowledge of the alleged fraud.

The errors principally relied upon by ap

pellant for a reversal of the judgment relate to the rulings of the court in sustaining defendants' objection to evidence offered by plaintiff of conversations had by him with officers of the corporation, with reference to the value of the stock, prior to its purchase by plaintiff, and of striking out, upon defendants' motion, after its admission against its objection, a newspaper article claimed to be an authorized statement by the defendant corporation of its profits for the year ending in March, 1887, and upon which plaintiff alleges he relied in making the purchase. These rulings, admitting them to be erroneous, are not necessary to be considered, as they are harmless, for the reason that they have no bearing upon the question of rescission, upon which, alone, the judgment and order herein are affirmed. So ordered.

We concur: MCFARLAND, J.; DE HAVEN, J.

4 Cal. Unrep. 134

CONNOLLY v. CITY AND COUNTY OF SAN FRANCISCO. (No. 14,397.)

(Supreme Court of California. Aug. 22, 1893.) MUNICIPAL CORPORATIONS-STREET IMPROVEMENTS -CONTRACT PAYABLE BY ASSESSMENTS ABANDONMENT - STATUTE OF LIMITATIONS - - AGREEMENT TO EXEMPT CITY.

1. Where a contractor for street improvements, who is to be paid by assessments of benefits, abandons the contract before it is completed because the assessments made were illegal, he is not entitled to any warrant or assessment thereunder.

2. Where a contractor is to be paid for street improvements by assessment of benefits, and the supreme court decides that no legal assessment can be made under the act authorizing the same and the improvements, the personal liability of the city, if any, becomes fixed, and the statute of limitations begins to run not later than the date of such decision, and an action against the city to recover therefor, commenced more than nine years after such decision, is barred.

3. Where a contractor for street improvements is to be paid by assessment of benefits, and he agrees to exempt the city from any lia bility under his contract, he cannot recover of such city for the improvements, because no legal assessment can be made to pay him therefor.

Department 2. Appeal from superior court, city and county of San Francisco; J. McM. Shafter, Judge.

Action by Peter Connolly against the city and county of San Francisco to recover money alleged to be due on certain contracts for grading streets. From a judgment for defendant, plaintiff appeals. Affirmed.

John J. Coffey, for appellant. Garber, Boalt & Bishop, for respondent.

PER CURIAM. On the 8th day of May, 1867, the plaintiff entered into a written contract with George Cofran, superintendent of streets of the city and county of San Francisco, to grade Market street, in that city, from Valencia street to Castro or Seven

teenth street. Under the contract the work was to be commenced within 30 days, and completed within 365 days after its date, and the superintendent, "acting in his official capacity," agreed that on its completion "he will duly make and issue an assessment, and attach a warrant thereto, as provided for in the aforesaid acts, (the consolidation act and its amendments,) for the expenses of the work," at a price named per cubic yard. The terms of the contract were further stated as follows: "And it is agreed and expressly understood by the parties to this agreement that in no case, except where it is otherwise provided in the acts aforementioned and referred to, will the said city and county of San Francisco be liable for any portion of the expense of the work aforesaid, nor for any delinquency of the persons or property assessed." The plaintiff commenced work and expended a considerable sum of money pursuant to the terms of his contract, but, before the time for its completion had arrived, he discovered that a portion of the line of the street to be graded was the private property of individuals, who refused to recognize the validity of his contract, or to be bound thereby; and thereupon he petitioned the board of supervisors to take such action as would save him harmless. Five extensions of the time to complete the contract were thereafter granted, aggregating 1,065 days, and extending down to April 18, 1871, but he did not in fact complete the work until November, 1871, about seven months after the expiration of the time extended, and after the contract had become extinguished by his failure. On April 2, 1870, an act was passed by the legislature entitled "An act to authorize the board of supervisors of the city and county of San Francisco to open and grade Market street, in said city, from the intersection of said street with Valencia street to its intersection with Seventeenth street, and to condemn private property for the roadway of said street." St. 1869-70, p. 626. By this act the board was "authorized and required to cause Market street, * * ** from its intersection with Valencia street to its intersection with Seventeenth street, to be opened and graded;

* * and wherever the line of said Market street, as now projected upon the official map of said city, between said points of intersection, crosses or passes over land the private property of any person, and which has not heretofore been dedicated to the public as a part of said street, and any portion of such land is necessary to be included within the limits of such street, it shall be the duty of said board of supervisors to proceed as herein directed for the condemnation of said land so included within the limits of such street." The act provides that the board shall, within 20 days after its passage, cause a petition to be filed in the county court of the city, describing the

an appeal was taken to this court, where the order was affirmed in January, 1875. In re Market St., 49 Cal. 546. On March 17, 1884, plaintiff presented to the board of supervisors of defendant his claim for the amounts alleged to be due him under his said contracts, and demanded in writing payment thereof, but the board rejected the claim, and refused to pay the same, or any part thereof. Thereafter, on April 3, 1884, plaintiff commenced this action to recover the amount so claimed to be due, with interest.

The defendant by its answer denied most of the averments of the complaint, and alleged that the causes of action set forth therein were barred by the provisions of sections 337, 338, (subd. 1,) 339, (subd. 1,) and 343, Code Civil Proc., and also by the provisions of section 90 of the consolidation act.

The case was tried by the court without a jury, and, among other things, the court found that the action was barred by the provisions of each of the sections of the Code pleaded, and also by the provisions of the section of the consolidation act pleaded; the findings upon these issues being numbered 12-16. Judgment was accordingly entered that the plaintiff take nothing by his action, from which judgment, and an order denying a new trial, he has appealed.

The only specifications of the particulars in which the evidence is alleged to be insufficient to justify the findings above referred to are as follows: "The defendant having failed to give to the plaintiff the warrant and assessment agreed upon in the first contract, and having failed to pay, or cause to be paid, the sum for the second contract, in this findings 12-15 are not supported by the evidence. There being no evidence, either on the part of the plaintiff or the defendant, that the claim sued upon in this action was one of the class mentioned in section 90 of the consolidation act, finding 16 is not supported by the evidence." Under these specifications the findings and judgment cannot be disturbed. The first contract was never completed by the plaintiff, and he therefore never became entitled to any warrant and assessment thereunder. Mahoney v. Braverman, 54 Cal. 570; Fanning v. Schammel, 68 Cal. 428, 9 Pac. Rep. 427; Raisch v. City of San Francisco, 80 Cal. 1, 22 Pac. Rep. 22. The amounts awarded the plaintiff by the commissioners, and due him under the second contract, were to be paid as provided in the act of April 2, 1870. Those amounts became due and payable when the work was completed and accepted by the superintendent of streets in November, 1871, and, if any personal liability on the part of the defendant to pay them thereafter arose, because no valid assessment for their payment was or could be issued, that liability became fixed and certain as early at least as January, 1875, when the decision of this court in the case of In re Market St.,

supra, was rendered. The statute of limitations then, if not before, began to run, and the causes of action were barred long before the complaint was filed in 1884.

There is another ground, also, on which the decision of the court below might have been safely rested. By the terms of each of the contracts the plaintiff expressly agreed to the exemption of the defendant from any liability thereunder, and thereby, as against the defendant, waived all legal claims to the money now sought to be recovered. These agreements were made and still are binding on the plaintiff, and he cannot now escape their consequences. Conlin v. Board, (decided July 21, 1893,) 33 Pac. Rep. 753.

In view of what has been said, it is not necessary to consider the other points discussed by counsel. The judgment and order must be affirmed, and it is so ordered.

INCEST-CONSENT-NEW TRIAL.

Where, on a trial for "attempt" to commit incest, the evidence, without any conflict, showed that defendant, both by solicitation and overt acts, attempted to have carnal connection with his daughter; that the attempt proceeded to the extent of contact of sexual organs, lacking only penetration to complete the act; and that it was without the daughter's consent, and against her will and active resistance, an or der granting a new trial on the ground that the crime charged could not have been committed without the consent of the daughter will be reversed on appeal.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; D. J. Murphy, Judge.

John Gleason was convicted of an attempt to commit incest. From an order granting him a new trial, the people appeal. Reversed.

Atty. Gen. Hart, for the People. Carroll Cook, for respondent.

VANCLIEF, C. The defendant was aecused and found guilty of the crime of “an attempt to commit incest" with his daugh. ter, aged 14 years and 7 months. On motion of defendant, the court below granted him a new trial, and this appeal is by the people, from an order granting a new trial. The evidence, without any conflict, shows that the defendant, both by solicitation and overt acts, attempted to have carnal connection with his daughter; that the attempt proceeded to the extent of contact of sexual organs, lacking only penetration to consummate the act; and that it was without her consent, and against her will and active resistance. It appears that the new trial was granted on the ground that the crime charged could not have been committed without the consent of the daughter, and the record shows no other ground upon which the order can be sustained. Conceding that the consent of

both parties to the carnal intercourse is necessary to constitute the crime of incest, it does not follow, as contended by counsel for respondent, that a man may not be guilty of the crime of attempting to commit incest without the consent of the woman with whom he attempts to commit the latter crime. His intent to commit the crime of incest, and his concurrent, overt acts in the use of means adapted to the immediate perpetration and consummation thereof, are sufAcient to constitute a criminal attempt to commit the crime of incest, and the failure of such means to effect the purpose intended will not exculpate him. There may be found some conflict of the authorities as to whether mere solicitation to commit incest, adultery, or sodomy is an adequate overt act in the composition of a criminal attempt to commit either of those crimes; but, that such overt acts as were proved in this case are sufficient, there seems to have been no question. This conclusion, I think, is warranted by the text and the authorities cited in chapter 51, Bish. Crim. Law, (8th Ed.) §§ 723-772, especially sections 767 and 768. I think the order should be reversed, and the cause remanded, with directions to the court below to proceed to judgment on the verdict of the jury.

We concur: SEARLS, C.; BELCHER, C. PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is reversed, and the cause remauded, with directions to the court below to proceed to judgment on the verdict of the jury.

(99 Cal. 360)

Ex parte GOULD. (No. 21,008.) (Supreme Court of California. Aug. 23, 1893.) CONTEMPT - POWER TO COMPEL ACCUSED TO TES

TIFY.

A proceeding to punish a person for contempt in violating an injunction is criminal in character, and the court has no authority to compel him to be sworn as a witness therein, under Const. art. 1, § 13, which declares that no person shall be compelled, in any criminal case, to be a witness against himself.

In bank.

Application by James C. Gould for a writ of habeas corpus. Writ granted, and applicant discharged from custody.

C. W. Cross and Judge Van Fleet, for petitioner. R. T. Devlin and W. T. Phipps, for respondent.

HARRISON, J. In an action pending in the superior court in and for the county of Yuba, wherein the county of Sacramento is plaintiff, and the petitioner one of the defendants, a writ of injunction was served upon the defendant, requiring him to refrain from doing certain acts therein specified. While this writ was in full force the petitioner was charged before said court with having violated its terms, and was ordered to show

cause why he should not be adjudged guilty of contempt therefor. Upon the hearing of this charge the court required the petitioner to be sworn as a witness, to which he objected upon the ground that he could not be compelled to be a witness against himself in the proceedings, for the reason that they were of a criminal nature. The court, however, overruled his objection, and required him to be sworn as a witness; and he, acting under the advice of his counsel, still declining and refusing to be sworn, for the aforesaid reason, the court adjudged him guilty of contempt, and committed him to the county jail, there to remain until he should purge himself of said contempt by consenting to be sworn as a witness in said case, and to testify therein.

Article 1, § 13, of the constitution of this state, declares that "no person shall be compelled, in any criminal case, to be a witness against himself." Section 1323 of the Penal Code provides that "a defendant in a criminal action or proceeding cannot be compelled to be a witness against himself." Contempt of court is a public offense, and by section 166 of the Penal Code is expressly declared to constitute a misdemeanor, and the refusal of a witness to be sworn is an offense committed in the presence of the court. It is none the less a criminal offense that the statute authorizes it to be punished by indictment or information, as well as by the summary proceedings provided in sections 1209-1222 of the Code of Civil Procedure. By these provisions, the procedure for the investigation of the charge is analogous to the criminal procedure, and the judgment against the person guilty of the offense is visited with fine or imprisonment, or both, -the essential elements of a judgment for a criminal offense. "Contempt of court is a specific criminal offense. It is punished sometimes by indictment and sometimes in a summary proceeding, as it was in this case. In either mode of trial the adjudication against an offender is a conviction, and the commitment in consequence is execution." Passmore Williamson's Case, 26 Pa. St. 19. "Although the alleged misconduct of the defendants occurred in the progress of a civil action, the proceeding to punish them for such misconduct is no part of the process in the civil action, but is in the nature of a criminal prosecution. Its purpose is not to indemnify the plaintiff for any damages he may have sustained by reason of such misconduct, but to vindicate the dignity and authority of the court. It is a special proceeding, criminal in character, in which the state is the real plaintiff or prosecutor." Haight v. Lucia, 36 Wis. 360. In Ex parte Hollis, 59 Cal. 408, it was said: "To adjudge a party guilty of contempt of court. for which he is fined and imprisoned, is to adjudge him guilty of a specific criminal offense. The imposition of the fine is a judgment in a criminal case." See, also, Ex parte Kear