made June 5, 1889. Nothing further seems to have been done until December 4, 1889, when the board made an order rescinding an order made April 3, 1889, pertaining to gates on Gilmore's land, and ordering the road master to open the road to the public.

Under the last order the plaintiff assumes to be acting. Defendant contends that the order of June 5th is an order vacating the road. That a private road could not be established until the public road was first vacated. Therefore, although the report did not in terms recommend that the road be vacated, such is necessarily implied, and by adopting it the board must be held to have vacated the highway, although it was not competent for them to convert it into a private road in that way.

I do not think this position can be maintained. An order vacating a public highway is legislative, and the enactment ought to appear in the order. Great strictness is not required, but, if an order may be helped by such a reference, the report referred to should itself be sufficient to indicate the act determined upon. The statute does not provide for viewers in the matter of the discontinuance of a highway. The provisions in regard to viewers evidently refer only to laying out and altering highways. By the twenty-first section of the county government act of 1883, in force when these proceedings were had, it was provided that the board should cause to be kept a road book containing all proceedings and adjudications relating to the establishment and discontinuance of roads, etc. This matter does not seem to have been entered in such book. The report adopted did not recommend the abandonment of the road, but that deeds be taken of a right of way for a private road 25 feet wide, and then the laying out of a private road. The adoption of the report was an indication that the board would pursue that course, but no conveyances were received, and to lay out a private road would seem to require the concurrence of the person chiefly interested. 2692, Pol. Code. Although the board indicated a willingness to pursue that course, it does not appear that they had the power to do so. Under the circumstances, I do not think the order was an abandonment of the highway, and it was therefore error to admit it in evidence over the objection of plaintiff. This will dispose of many exceptions taken. If the order were excluded, no instructions in regard to its effect would be required. The plaintiff was entitled to an instruction as to the right of defendant to erect gates across a public highway, and the instruction offered upon that subject should have been given. I think the court erred in giving the fourth and seventh instructions asked for by the defendant. The fourth was upon a matter which had no bearing upon the issues in the case, and the seventh was erroneous. Neither the public nor the county is responsible for unauthorized acts of the board of su

Section

pervisors. Their acts, when ultra vires, are simply void, and cannot be imputed to the public. I think the judgment and order should be reversed, and a new trial had.

We concur: VANCLIEF, C.; SEARLS, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are reversed, and a new trial ordered.

98 Cal. 299

PEOPLE v. BEMMERLY. (No. 20,939.) (Supreme Court of California. May 16, 1893.) MURDER-INSANITY AS A DEFENSE-INSTRUCTIONS

-NEW TRIAL-MISCONDUCT OF JURY.

1. The fact that several jurors in a murder cause were separated from their fellow jurors during the progress of the trial, and out of the sight of the officer who had them in charge, contrary to the orders of the court, is not sufficient ground to grant a new trial where it does not appear that anything was said to either of them concerning the cause, or that they were guilty of any misconduct, or that they did any act inconsistent with their duties as jurors during the separation.

2. Nor does the fact that one of the jurors drank intoxicating liquors during the progress of the trial constitute a ground for a new trial, where it does not appear that such juror was affected by the liquor.

3. Where the record on appeal in a criminal cause does not contain defendant's testimony in the court below, an objection that the court erred in permitting the district attorney to cross-examine him upon matters not brought out in direct examination will not be considered.

4. A statement of defendant's testimony in the assignment of errors in a criminal cause cannot be considered as a part of the record in determining whether or not the court below erred in permitting certain questions to be asked him. People v. Faulke, 30 Pac. Rep. 837, 96 Cal. 17, followed.

5. On a trial for murder, the burden of showing insanity, relied on as a defense, is on defendant, and the insanity must be established by a preponderance of evidence. People v. Travers, 26 Pac. Rep. 88, 88 Cal. 238, followed.

In bank. Appeal from superior court, Yolo county; J. E. Prewitt, Judge.

One Bemmerly was convicted of murder in the second degree. From the judgment of conviction, and from an order overruling his motion for a new trial, he appeals. Affirmed.

For former appeal, see 25 Pac. Rep. 266. K. Clark, J. C. Ball, J. E. Strong, and J. Craig, for appellant. Atty. Gen. Hart, for the People.

HARRISON, J. The defendant was convicted of murder in the second degree, and upon the judgment of conviction, and an order denying a new trial, he has appealed.

1. After the jurors had been impaneled and sworn to try the cause, the court, upon its own motion, ordered them into the custody of the sheriff during the progress of the trial, and instructed the sheriff to keep them together, and not to speak to any one, or per

mit any other person to speak to them or in their presence, about the case; and also instructed them not to drink any intoxicating liquors during the progress of the trial. One of the grounds urged for a new trial and upon the appeal is that before the final submission of the cause certain of the jurors separated from the others, and from the officer who had them in charge, and that certain of the jurors did before the final submission of the case to them drink intoxicating liquors. It appears that after an adjournment upon one of the days while the cause was on trial certain of the jurors, while upon the street in company with the sheriff, joined a crowd of people who were listening to the utterance of a street fakir, and were for a few minutes out of the sight or custody of the sheriff; that on a Sunday which intervened during the trial, eight of the jurors, in company with a deputy sheriff, attended church separately from the remaining four, and that some of the other four listened to the singing and preaching of the Salvation Army in the streets of Woodland; that one of the jurors, in the company of a deputy sheriff, visited his place of business, without being accompanied by the others; that individual jurors were several times during the trial separated from the body of jurors for a few minutes at a time, and occasionally were out of sight of the officer who had them in charge; that several of the jurors, at various times during the trial, drank intoxicating liquors, and at times engaged in conversation with other persons. It was not shown that anything was said to either of the jurors concerning the case before them, or that they were at any time during their separation guilty of any misconduct, or that they did any act inconsistent with their duties as jurors. The amount or character of the intoxicating liquors which they drank is not shown, nor the time or frequency of such drinking, and it was not claimed that either of them was in any visible way affected thereby. Ten of the jurors were severally sworn before the court, and denied that they had conversed with any person respecting the case, or been influenced by any matter other than the evidence before them; and those who drank the intoxicating liquors denied that they had been affected thereby. Two of the jurors were not examined upon these points, but there was no showing made against their conduct. We cannot hold that these facts constituted such misconduct as to justify setting aside the verdict. The direc tion to the sheriff to keep the jury together, as well as the instruction to the jurors themselves not to drink any intoxicating liquors during the progress of the trial, was for the purpose of having the trial conducted in an orderly and discreet manner, and was evincive of the desire of the court to prevent the jury from being affected by any improper influences. The ultimate object of these instructions was not to keep the jury together,

but to prevent them from improper intercourse with others, and their being kept together was merely a means of accomplishing this ultimate purpose. The direction of the court did not give to the defendant the right to control the action of the jury or of the officer in that respect during the pendency of the trial, nor the right to any exception for error or misconduct by reason of a failure to literally comply therewith. The mere fact that the direction of the court was violated does not give to the defendant the right to have the verdict set aside. He must show as fully as if the direction had not been given that one or more of the jurors was influenced in his verdict by some outside influence during or in consequence of such separation. Neither does the mere fact that a juror drank intoxicating liquor during the trial show that his verdict was affected thereby. The defendant, in addition thereto, should show that the juror was affected by the liquor which he drank, or should at least show the quantity and character of the liquor, so that there might be a basis for the court to determine whether it would presumptively affect his capacity as a juror. The failure on the part of the people to call two of the jurors to exonerate themselves from the charge of having been influenced in their verdict by reason of the violation of the above direction of the court does not strengthen the position of the defendant. The burden of showing error was upon him, and, in the absence of any showing that these two jurors had themselves drank any liquor, or conversed or been spoken to about the case, the people were not required to introduce negative testimony upon these points. 2. It was held upon the appeal from the former trial of the defendant (87 Cal. 117, 25 Pac. Rep. 266) that the dying declarations of the deceased were properly received in evidence. The testimony at the present trial concerning the circumstances under which they were made does not differ in any material respect from that presented upon the former trial.

3. The objection that the court erred in permitting the district attorney to crossexamine the defendant upon matters not brought out in direct examination is not sustained by the record. The bill of exceptions merely shows that the court permitted him to be cross-examined "upon the transcript of the reporter's notes of his testimony at the former trial." In the absence of the testimony given by him, we cannot say that it was upon matters to which he did not testify at the present trial. The statement of such testimony in the assignment of errors cannot be regarded as a part of the record for this purpose. People v. Faulke, 96 Cal. 17, 30 Pac. Rep. 837.

4. Objections are made by the appellant to some of the instructions given to the jury, but, after a careful examination thereof, we are unable to say that the court committed

any error. The instructions are very voluminous, occupying 50 pages of the printed transcript, and informed the jury very fully upon the law applicable to the defenses presented at the trial. The chief argument of the appellant is directed to showing that the court erred in instructing the jury upon the subject of insanity, and that the burden of showing that defense was upon the defendant, and must be established by a preponderance of evidence. This rule was, however, affirmed in People v. Travers, 88 Cal. 238, 26 Pac. Rep. 88, and cannot any longer be regarded as an open question in this state. The judgment and order are affirmed.

1. A building contract provided for adding to an old building on a part of a lot, and the erection of a new building on the other part. Mechanics' liens were filed for the construction of additions to the building situated on that portion of the lot covered by the old building. The complaint in an action to foreclose such liens alleged that the contractor agreed to proride all materials, and change into a two-story building the one-story building then on the premises described, (referring to the entire lot,) and such allegations were not denied. The findings supported the allegations, and the judgment followed the findings. Held, that the judgment was not open to the objection that it was invalid because the liens were filed on a portion of the building only.

2. The fact that the notice of liens describes the building as situated on a specified number of feet of a certain lot, while the complaint describes it as situated on the entire lot, causes no variance, and is immaterial.

Department 1. Appeal from superior court, Mendocino county; Robert McGarvey, Judge. Action by F. Brunner, Sr., and others, against A. Marks and B. Marks and others, to foreclose mechanics' liens. From a judg ment for plaintiffs, defendants appeal. Affirmed.

T. L. Carothers and E. H. Wakeman, for appellants. J. M. Mannon and J. A. Cooper, for respondents.

GAROUTTE, J. In this action judgment was rendered foreclosing certain mechanics' liens, and the appeal is prosecuted from that judgment, and the order of the court denying a new trial.

Various liens were filed against the property by different mechanics, and actions brought thereon, which were subsequently consolidated under an order of the court. Appellants were the owners of a lot in the city of Ukiah, described as being 66 feet front upon State street, with a depth of 86 feet upon Perkins street. There was a

building situated upon this lot, covering a frontage of 48 feet, at the time the contract was entered into with one Ludwig, upon which this action arose. The contract, as stated by Ludwig, was to build a one-story brick building, and to extend to two stories an old brick building. The old building here referred to is the building covering 48 feet of said lot, the one-story building to De erected covering the remaining 18 feet of the lot. The contract price was $8,000 for the entire work, and one contract covered it all.

Appellant relied upon 29 assignments of errors of law, but states his principal one to be that all the liens but one were filed against that part of the structure situated upon the lot described as having a frontage of 48 feet, the remaining lien being filed against that portion of the building not covered by other liens; "that is to say, all the liens but one are filed against that portion of the structure covered by 48 feet frontage, and the remaining one against the balance of the structure, covering about 18 feet frontage." It will be seen that appellants' contention is that the liens were filed upon a portion of the building, and not upon it all; and that, consequently, no valid judgment could be rendered foreclosing them, inasmuch as no judgment could embrace more than is included in the claim of lien. This principle is supported by Mills Co. v. Kremer, 94 Cal. 210, 29 Pac. Rep. 635, where the court said: "The statute gives a lien upon the entire building for any portion of the labor done or materials furnished therefor, and there is no provision for a lien upon a portion of a building, or for the sale of a part of a building to satisfy a lien upon the whole." There can be no question but that a fatal variance might be created between the claim of lien and the complaint upon the one side, and the proof upon the other, by showing that the lien did not cover the entire building; but in the present case the liens, save one, are claimed for labor and materials furnished in the improvement and construction of additions to that certain building or structure situated upon the portion of appellants' lot having 48 feet frontage, and covered by the old building. In direct line with the claim made by the lien follows the allegation of the complaint, as follows: "That on or about the 25th day of October, 1889, the defendant T. J. Ludwig entered into a contract with the defendants A. Marks and B. Marks, whereby the said Ludwig agreed to provide all materials, and add to and change into a two-story brick building the one-story brick building then upon the premises above described." (Referring to the entire lot.) This allegation of the complaint is not denied, and therefore no issue is made by the pleading as to whether or not the claim of lien covers an entire building or only a part

thereof. Such being the fact, appellant was not authorized to introduce evidence against his own admission. The findings of the court also fully support the allegations of the complaint in this regard, and the judgment follows the findings; hence the difficulties that arose in the Willamette Case are not present here. These views also dispose of the ruling of the court upon the question addressed to the witness Copeland as to the character of the structure erected upon the lot.

The fact that the liens described the building as situated upon 48 feet of the lot, and the complaint described the building as situated upon the entire lot, causes no variance, and is entirely immaterial. The description of the land upon which the structure is erected, required to be set out in the claim of lien, is not a technical description, and is demanded only for the purposes of identification, although in this case it appears that the description in these liens was technically correct. Having disposed of appellants' principal point, we will not notice the little ones in detail, but simply say that after a due consideration of them we think them too small to justify a reversal of the case. For the foregoing reasons, let the judgment and order be affirmed.

SALE

OPTION TO PURCHASE -ACCEPTANCE-ACTION FOR FAILURE TO DELIVER INABILITY TO PERFORM CONTRACT-SUFFICIENCY OF EVIDENCE.

1. In a letter to plaintiff, defendant and another agreed to take 2,000 shares of stock of a specified corporation, subscribed by the former, and granted him "the privilege of calling for all or any part of said 2,000 shares, at any time during the next two years from the date of this letter, at $30 per share." Within the two years, plaintiff told defendant he wanted the stock. Held, that the written offer to plaintiff, and the latter's statement to defendant, constituted an agreement to sell and buy, containing concurrent conditions, mutually dependent on each other.

2. Under Civil Code, § 1439, providing that, before any party to an obligation can require another party to perform any act under it, he must be able, and offer, to fulfill all conditions imposed on him on the like fulfillment by the other party, plaintiff was not entitled to maintain an action on such agreement against defendant for failure to deliver such stock on demand, in the absence of an offer by him to pay for it, unless defendant's conduct was such as to excuse the failure of such offer.

3. A direction by defendant, to his agent, to tell plaintiff "that he will get his stock. Our stock is all hypothecated,-tied up. As soon as we are free, I will give him his stock,”—did not constitute such refusal to deliver the stock as will excuse the failure of plaintiff to offer to perform on his part, where neither party regarded it as a refusal at the time.

4. It appeared that, during the times plaintiff demanded such stock, large amounts of it were for sale; that buyers were few; and that

an offer of the agreed price per share would have secured to defendant any reasonable amount of it. Held that, though defendant's stock was held by third persons as collateral, the evidence was insufficient to support a finding that defendant had placed it out of his power to deliver the stock.

Department 1. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge.

Action by Charles Hanson against Henry B. Slaven on a contract for the sale to plaintiff of certain shares of stock of the American Contracting & Dredging Company of New York. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Galpin & Zeigler, for appellant. W. C. Belcher and E. P. Cole, for respondent.

GAROUTTE, J. This is an appeal from a judgment of nonsuit in an action brought to recover the sum of $1,270,000, as damages for a breach of contract to deliver 2,000 shares of stock of the American Contracting & Dredging Company of New York city. The contract was executory, and in the following words: "San Francisco, June 10, 1882. Charles Hanson, Esq. Dear Sir: We hereby agree to take and pay for the amount of stock subscribed by you, namely, two thousand shares, at $30 per share, in a company now being organized, and to be known as the American Contracting and Dredging Company of New York city. We further grant to you the privilege of calling for all or any part of said two thousand shares at any time during the next two years from the date of this letter, at thirty dollars per share. Respectfully, yours, H. B. Slaven. M. A. Slaven." The latter portion of the writing forms the basis of plaintiff's cause of action, he claiming to have been damaged by reason of the failure and refusal of respondents to deliver the stock as therein provided.

The motion for a nonsuit was based upon very narrow grounds,-grounds that could well have been enlarged. It was made upon the ground that plaintiff had failed to prove the payment or tender of the purchase price of said stock, to wit, $60,000 mentioned in the option, within the time therein stated, to wit, two years from date, and there was no waiver of such tender or excuse for the making of the same. The evidence bearing upon the question of nonsuit may be summarized as follows: Robert F. Pratt, who had charge of certain branches of Slaven's business, testified: "In January, 1883, Hanson called me into his private office, and said: 'I want my stock. You tell H. B. Slaven I want my stock.' I said, 'All right. H. B. Slaven is in town, and I will report to him just what you say.' And I did report the conversation to Slaven, who said: "Tell good friend Hanson that he will get his stock. Our stock is all hypothecated,— tied up. As soon as we are free I will give him his stock.' In March, Hanson

again asked me for his stock, but he never tendered me any money at any time. I told Hanson what Slaven said about it." Plaintiff Hanson testified: "I told Slaven in December, 1882, I wanted the stock, and he said he would get it for me, but he never did. I told him again in February that I wanted the stock, and he said he would get it for me. I never tendered any money to Slaven at any time. Never offered to pay him any, either in writing or otherwise. Never at any time tendered any money to Pratt, or to any person. Never offered to pay any person any money for this stock." That portion of the writing involved in the consideration of this case constitutes, under section 1727 of the Civil Code, an agreement upon the part of the Slavens to sell to Hanson 2,000 shares of stock, or any part thereof, at the price stated, at any time within two years from date. If, at any time within the two years, Hanson accepted the Slavens' proposition, as stated in their agreement, then the contract, under section 1729 of the Civil Code, became an agreement to sell and buy, containing concurrent conditions mutually dependent upon each other. Taking a broad and liberal view of the testimony cited, it may be fairly construed to constitute a notification to the Slavens by Hanson of an acceptance upon his part of the offer to sell previously made by them. His testimony as to his statements made to Slaven is a little more explicit than his demands and claims made through the medium of the witness Pratt, but in neither case did he state that he would take the entire 2,000 shares. His option extended to all or any part, and it would seem but fair to the vendors that they should know the exact amount he elected to buy. Still, we pass the point, conceding it to be a fair inference of fact from the evidence that his acceptance extended to the entire amount. We then have an agreement upon the one part to sell to Hanson 2,000 shares of stock, and an agreement upon the part of Hanson to pay therefor, to the Slavens, the sum of $60,000. Upon this state of facts, let us see wherein lies plaintiff's cause of action for a breach of the contract. Section 1439 reads: "Before any party to an obligation can require another party to perform any act under it * * he must be able, and offer, to fulfill all conditions concurrent, so imposed upon him, on the like fulfillment by the other party, except as provided by the next section." This section is equally applicable to obligations arising either upon agreements for the sale of realty or personalty, and the authorities, both before and since the adoption of the Codes, recognize that fact. It follows therefrom, in order that one party may place the other party in default upon a contract consisting of mutually dependent obligations, he must not only be able to perform, but must offer to perform. If he is able to perform, and offers

to perform, he has done his part, and a refusal to accept such offer, and thereby meet him halfway, creates a breach of the contract, and gives an immediate right of action. Whatever courts of other states may have held upon this question, the provisions of our Code are plain and explicit, and demand that an offer of performance be made. See section 1485, Civil Code, et seq. In Englander v. Rogers, 41 Cal. 422, it was held that a complaint which stated that the plaintiff was "ready and willing" to perform failed to state a cause of action, as it showed no default upon the part of the defendant, the complaint failing to allege a tender. In Loan Soc. v. Hildreth, 53 Cal. 721, the complaint was held fatally defective in failing to allege an offer to perform. In this case the plaintiff testified that he made no offer to perform; that he made no offer to pay the $60,000; and that was the concurrent condition assumed by him under the contract.

Plaintiff, having failed to make an offer of payment of the $60,000, has no cause of action for a breach thereof, unless the defendant's conduct was such as to excuse the failure of an offer. As showing such excuse, appellant contends (1) that respondent refused to deliver the stock; and (2) that he had placed it out of his power to deliver it. All the evidence in the record tending to show a refusal to deliver is the evidence of the witness Pratt, wherein Slaven said to him, in answer to a request or demand for the stock from Hanson: "Tell good friend Hanson that he will get his stock. Our stock is all hypothecated,-tied up. As soon as we are free, I will give him his stock." Under no recognized principle governing the construction of language can this statement of Slaven be construed into a refusal to deliver the stock. It was a promise to deliver the stock at a future day, and indicated a perfect willingness to deliver it. The authorities all agree that, in order to constitute an implied waiver of an offer or tender, the refusal must be explicit and positive. In the latest edition of Mr. Benjamin's work on Sales it is said, in section 568: "It must be a distinct and unequivocally absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for, if he afterwards continue to urge or demand compliance with the contract, it is plain that he does not understand it to be at an end." And this language is approved in Smoot's Case, 15 Wall. 36. We have in the present case no such refusal as is contemplated by the law, and plaintiff's requests for his stock, made subsequently to the foregoing statement of Slaven, and Slaven's promise to deliver the stock, made subsequent to this statement, clearly indicate that neither party regarded Slaven's language at this time as constituting a refusal. When Hanson was told by Pratt what Slaven said in reference to the