The question of value, or market value, is mainly one of fact, but is usually defined as a matter of opinion gathered from facts, and as was said by Story, J., in Alfonso v. U. S., 2 Story, 421: "We must necessarily resort to opinions of merchants and others conversant in trade for market prices or values of the goods." Wharton, in his work on Evidence, (section 447,) lays down the rule as follows: "Two essentials, therefore, exist to a proper estimate of value: First, a knowledge of the intrinsic properties of the thing; second, a knowledge of the state of the markets. As to such intrinsic properties as are occult and out of the range of common observers, experts are required to testify; as to properties which are cognizable by an observer of ordinary business sagacity, being familiar with the thing, such an observer is permitted to testify." So far as the condition of the wire rope was concerned, it was a question to be determined, not from its occult qualities, but from its appearance, and from the effect produced upon it by handling; that its outer wires were broken up into short pieces; that "the goods sent were rotten, and a little broken, instead of being as the sample;" that much of it was "broken, rusty, and rotten," or, as another witness said, "in trying to undo the coils the whole thing broke to pieces, into small pieces from half an inch to two inches long." These were facts to be gleaned from observation, and were stated as such, facts open to every observer, and not requiring expert knowledge, and whether they were experts on the subject or were not is of little importance. The question of the value of the rope in the market was one upon which merchants dealing in the article in question were competent to speak. As before stated, the witnesses were all commission merchants in Japan, or were in the employ of such merchants; and it may be added that it appeared directly or incidentally that all of them who testified as to the value of the commodity were or had been engaged in the sale of the article, or were in the employ of those thus engaged. They all showed themselves to possess more or less knowledge of the efforts made by plaintiffs to dispose of the goods, and had themselves either sold, attempted to sell, or were familiar with the efforts made to sell the goods. Under such circumstances, while the depositions are not as full and satisfactory as could be wished in showing knowledge and experience on the part of some of the witnesses, I do not regard the errors assigned in the rulings upon the depositions as sufficiently established to warrant a reversal.

If, however, we are wrong in the foregoing conclusion, and should hold that the depositions were, so far as objected to, improperly admitted, it is not perceived that the court below would have been justified in reducing the amount of plaintiffs' recovery. The balance of account in favor of

plaintiffs was not only proven, but at the trial, in answer to a question by the court, "defendant's counsel announced that there was no contest on the account at all, but as an offset defendant relied on plaintiffs' assurance of disposing of the rope as sent, and that defendant had suffered loss far greater than the amount plaintiffs claimed against defendant by reason of plaintiffs' failure to do what was agreed in the matter, and that defendant asked no affirmative relief, but charged that he was damaged in the sum of $5,000 in round numbers." The case as made by the defendant failed to establish a counterclaim, and hence the evidence objected to, which tended to show why consigned goods brought no higher price, and were not sooner disposed of, was unnecessary.

There is a further contention that plaintiffs released defendant from the balance due them. On the 3d day of June, 1889, the plaintiffs, in a letter to defendant, used the following language: "Naturally you know very well that we will never consent to proceed against you legally. Our hope to reduce our loss in this transaction, if possible, to a minimum limits itself, therefore, that after the settlement of your different transactions the loss will be small," etc. Conceding, without deciding, that the quoted clause of plaintiffs' letter amounted to a release, then it should have been specially pleaded. Moss v. Shear, 30 Cal. 468; Piercy v. Sabin, 10 Cal. 22; Coles v. Soulsby, 21 Cal. 47. There was no consideration for the promise, and therefore it did not amount to a covenant not to sue. Canal Co. v. Roach, 78 Cal. 552, 21 Pac. Rep. 304. It is apparent, however, that nelther of the parties regarded the letter as amounting to a release. In the following December we find defendant writing to plaintiffs: "I refuse to participate in the loss caused by your fault and recommendations, with more than that already suffered, which amounts to nearly 30 per cent.," to which plaintiffs reply: "We hope soon to find the opportunity to dispose of the goods, and after a thorough inspection we shall consult with our Yokohama house as to what steps we shall take to compel you to the liquidation of this debt."

The account in Japan was kept, as appears, for convenience sake, in Mexican dollars. Plaintiffs aver that on the 7th day of August, 1890, there was due them $4,999.60 Mexican dollars, of the value of $4,149.67 gold coin; that on or about August 26, 1890, they submitted their account to defendant, and demanded payment, and pray judgment for such sum, with interest. It was stipulated that Mexican dollars were at the date of the commencement of the suit worth 83 cents. At the date of the demand (August 23, 1890) they were worth 932 cents, and at the date of trial 74 to 75 cents. The court gave judg ment for the value at the date of suit brought. This was more favorable to de

fendant than it would have been to have cmputed the value of the foreign silver at the date of the demand of payment, but not as advantageous to him as a computation at the date of trial. A debt contracted in a foreign country, in the absence of a contrary understanding, is payable there, and in the legal currency of that country. The parties having, by common consent, expressed their account in Mexican dollars, and the debt having been contracted in Japan, it stands on the same footing as though Mexican dollars were the currency of that country. It follows that, the debt not having been paid in Japan, and plaintiffs being compelled to sue here, they were entitled to judgment for such sum in our currency or money as was equivalent to their claim in Japan. Benners v. Clemens, 58 Pa. St. 24; Cash v. Kennion, 11 Ves. 315. In the language of the chancellor in the case last cited: "Where a man agrees to pay £100 in London upon the 1st of January, he ought to have that sum there upon that day. If he fails in that contract, wherever the creditor sues him the law of that country ought to give him just as much as he would have had if the contract had been performed." Apply the principle thus enunciated to this case, and we may say that, had defendant met his contract when it was due, that is to say, when demand was made upon him,-plaintiffs would have had $4,999.67 Mexican dollars of the value of 931⁄2 cents each, or their equivalent in our currency; a sum in excess of that which the court awarded them. If a man contracts to deliver wheat on a given day, and fails to do so, the measure of damages is the market price of the article on that day; and in principle it is difficult to see why the rule should not hold good when he agrees to deliver Mexican dollars, or other foreign money, which, in the absence of some positive law of our own, is but a commodity. There are authorities which hold that the rate of exchange at the date of the trial is the criterion by which to determine the amount of the judgment, but in most instances the only question evidently relates to the mere expense of effecting the exchange, or, in other words, the cost of transmitting the funds, for that is what it amounts to,-cases in which, so far as appears, the question of depreciation or appreciation of the currency in which the debt was payable cut no figure. In Benners v. Clemens, supra, cited by appellant, the recovery was had upon the basis of the value of legal tenders at the date of the presentation of the account. To discuss the question satisfactorily would require more space than can reasonably be accorded to it, and I content myself with saying that my conclusion, drawn from a perusal of the conflicting authorities, prompts the declaration that if any error was committed by the court below it was in favor of the defendant, and hence that he is not in a position to complain. The evidence supports the findings,

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

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

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

PEARSON v. DROBAZ FISHING CO. et al. (No. 14,985.)

(Supreme Court of California. Aug. 31, 1893.) VACATING JUDGMENT-INADVERTENCE OF COUNSEL

was

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

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

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

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

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

another court, was not present, but he had some one answer for him, to the call of the case, "Ready." The six cases preceding this one were at once continued or otherwise disposed of, and thereupon, in the absence of the defendants and their attorney, the plaintiff was called and examined as a witness in his own behalf, and the case was then submitted, and judgment given in his favor for the amount demanded in the complaint. The attorney for defendants was informed of the trial and judgment about 11 o'clock of the same day, and at about the same hour called upon the attorney for the plaintiff, and requested him to stipulate that the judgment should be set aside, which request was refused, and thereupon he at once made an affidavit setting out facts to show that the judgment was taken against defendants through their mistake, inadvertence, and surprise. On this affidavit an order was made by the court on the afternoon of the day the judgment was rendered, requiring the plaintiff to show cause on the 9th day of the same month why the judgment should not be set aside, and the defendants allowed to present evidence in support of the issues raised by their answer. At the time appointed the motion to set aside the judgment came on regularly for hearing before the court, and was submitted upon affidavits filed by the respective parties and the judgment roll in the case. The plaintiff, in his affidavit, stated that some of his witnesses were seafaring men, and had left the city of San Francisco, and that their whereabouts was unknown, and that to the best of his belief he would not be able to find them again. Thereafter, on December 1, 1891, the court denied the motion, and the defendants excepted to the ruling. From the judgment entered and the order denying their motion the defendants appeal.

The

It is contended in support of the appeal that upon the facts shown the court below should have set aside the judgment, and that its refusal to do so was not a proper exercise of its discretion, and we think it must be so held. There was undoubtedly negligence upon the part of the attorney for the defendants, but it was not inexcusable negligence, under the circumstances here appearing. It is apparent that the defendants were not seeking to delay the trial. application to set aside the judgment was made almost immediately after its rendition, and in all probability before it was actually entered. The plaintiff had notice of the fact that the application would be made. This being so, his affidavit, made two days thereafter, that his witnesses had gone, and their whereabouts were unknown, ought not to have been deemed a sufficient answer to the motion. Courts are established for the purpose of administering justice in controversies between parties, and this result will be generally best attained by a trial upon the merits, and neither of the parties should be deprived of such a trial except |

when guilty of inexcusable negligence, and we do not think such a degree of negligence appears here. "Applications of this character," said this court in Watson v. Railroad Co., 41 Cal. 20, in passing upon an appeal from an order opening a default, "are addressed to the discretion-the legal discretion of the court in which the default has occurred, and should be disposed of by it as substantial justice may seem to require. Each case must be determined by its own peculiar facts, for perhaps no two cases will be found to present the same circumstances for consideration. As a general rule, however, in cases where, as here, the application is made so immediately after default entered as that no considerable delay to the plaintiff is to be occasioned by permitting a defense on the merits, the court ought to incline to relieve. The exercise of the mere discretion of the court ought to tend, in a reasonable degree, at least, to bring about a judgment on the very merits of the case; and when the circumstances are such as to lead the court to hesitate upon the motion to open the default, it is better, as a general rule, that the doubt should be resolved in favor of the application. In connection with its allowance, terms and conditions ought generally to be imposed upon the party in default, which, of course, should be more or less severe, as the particular circumstances would seem to warrant." The application of the rule thus stated to the facts of this case must result in the reversal of the order. Judgment and order reversed.

SMITH V. SMITH et al. (No. 15,158.) (Supreme Court of California. Aug. 31, 1893.) HOMESTEAD OF WIDOW-LIMITATION ON VALUEDISCRETION OF COURT.

1. Under Code Civil Proc. § 1465, which provides that, in case no homestead has been selected by a married man in his lifetime, the court must select, set apart, and cause to be recorded, a homestead for the use of the surviving wife, the court may set apart one exceeding $5,000 in value.

2. Where the value of an estate is $85.000 in excess of debts and expenses of administration, it is not an abuse of discretion to set apart as a homestead to the surviving wife, out of the community property, premises worth $10,000, which were occupied by deceased and his family in his lifetime, and which are indi-. visible.

Appeal from superior court, Santa Clara county; John Reynolds, Judge.

Proceeding for the allotment of homestead to Catherine S. Smith, widow of E. O. Smith, deceased. From an order setting apart premises of the value of $10,000 as such homestead, J. D. Smith and others appeal. Affirmed.

S. A. Barker, for appellants. Arthur Rodgers and C. D. Wright, for respondent. S. F. Leib, amicus curiae.

MCFARLAND, J. This is an appeal by certain heirs at law of E. O. Smith, de

ceased, from a probate order setting aside certain premises as a homestead to the respondent, who is the widow of the deceased. The facts necessary to be stated are these: The said premises consist of an ordinary city lot in the city of San Jose. It has a dwelling house on it which covers nearly the entire lot, and in this house the deceased and the respondent resided for several years next before the death of the former. The said premises were community property, and there was never any declaration of homestead upon the same made by either of the spouses. The deceased purchased the lot for $4,500, paying $2,000 in cash and giving his note for $2,500; the deed remaining in escrow, to be delivered upon payment of the note. The note was not paid nor the deed delivered during the lifetime of the deceased, but afterwards the respondent procured a third person to take an assignment of the note, and thereupon the deed was delivered and recorded, said third person now holding the note. There are no minor heirs of the deceased. The premises are now of the value of $10,000, and the balance of the estate, above all debts and expenses of administration, is worth $75,000, with a rental of $5,100 per annum. The lot could not be divided without destroying its character and use as a home, and is, as the court finds, "Indivisible." There is no other land of the estate suitable for a homestead. The contest is entirely between the respondent and certain heirs at law of the deceased, the rights of creditors not being in any way involved.

Appellants contend that upon the foregoing facts the court had no power to set aside said premises to the widow as a homestead, because their value exceeds $5,000, and contend that the court should have directed that the said premises be sold, and that out of the proceeds respondent be given $5,000, and no more, in "lieu of a homestead." The position of appellants is not tenable. Section 1465 of the Code of Civil Procedure provides that in a case like the one at bar the court" must select, designate, and set apart, and cause to be recorded, a homestead for the use" of the surviving wife. This "homestead" which is to be selected, recorded, etc., is not $5,000, nor any other sum of money. It is a place of residence; it is land,-real property. When a homestead has been selected by the parties, under the provisions of the Civil Code, circumstances may arise under which they will not be able to continue to hold it. Notably is this so when the rights of a creditor are involved, and the Code provides the machinery by which, in such a case, the creditor may have the homestead sold, and the proceeds in excess of $5,000 applied to his debt. But this provision has nothing to do with the creation of a homestead, even when it is established by the parties under the Civil Code. In case of a probate homestead under the Code

of Civil Procedure, the court, in the first instance, creates the homestead, and the question there is, not what shall be done with an existing homestead, but how shall an original homestead be created by the court, and out of what property shall it be carved? And there are no existing provisions of the Code which restrain the court from selecting premises as a homestead because they exceed in value $5,000. There were such provisions in sections 1480-1484, Code Civil Proc., but those sections were repealed in 1874. If the contention of appellants be sound, then in the case at bar the court could not possibly have set aside a homestead to respondent, because there was no other land of the estate out of which a homestead could have been carved, and the premises which the court did set aside were indivisible. The appeal here is from the order setting aside the homestead, and under what provision of the Code could the court have ordered $5,000 paid to respondent, either out of the general assets of the estate, or out of the proceeds of the sale of any particular piece of property, before any homestead had been created?

If appellants' view be right, then collateral kin might drive a widow and minor children out of their home because it happened to be worth a little more than $5,000. But we think that in Estate of Walkerly, 81 Cal. 579, 22 Pac. Rep. 888, the point made by appellants was clearly decided against them. In that case the court set aside a homestead worth $18,000, and appellants there made the contention insisted on by appellants here, viz. "that the court could not set apart a probate homestead greater in value than five thousand dollars." The court, however, affirmed the order, holding that "the provisions of the Code authoriz ing a homestead to be set aside to the family of a decedent, where none has been selected before his death, contains no limitation as to the value of such homestead." The court further held that such an order will not be disturbed by this court on account of the value of the homestead, unless there had been an abuse of discretion; and, considering the condition and value of the estate in the case at bar, we see no abuse of discretion in the order appealed from. The fact that in that case the homestead was selected from the separate property of the deceased does not in any way distinguish it from the case at bar. The same principle and reasoning equally apply to both cases. See, also, Estate of Schmidt, 94 Cal. 334, 29 Pac. Rep. 714. We see nothing in the point that the provisions of the Code as above construed are unconstitutional. Order affirmed.

We concur: BEATTY, C. J.; DE HAVEN, J.; FITZGERALD, J.; HARRISON, J. GAROUTTE, J. I concur. If the question were a new one, I would dissent.

LEVI et al. v. DIMMICK et al. (No. 15,007.) (Supreme Court of California. Sept. 7, 1893.) WARRANTY-ACTION FOR BREACH-Evidence.

Where the contract for the sale of quantity of dates, of two kinds, makes no distinction as to the respective values of the two kinds, evidence is incompetent, in an action for the breach of warranty of the merchantable condition of one of the kinds, as furnished, to show that such kind was not worth as much as the other kind.

Department 2. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Action by H. Levi & Co. against Dimmick and others to recover damages for the breach of an express warranty of the merchantable character of certain dates sold by defendants to plaintiffs. From a judgment for plaintiffs, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

Rhodes & Barstow, for appellants. Wal. J. Tuska, for respondents.

MCFARLAND, J. This is an action to recover damages for the breach of an express warranty of the merchantable character of certain dates sold by defendants to plaintiffs, and paid for by plaintiffs at the contract price. Judgment went for plaintiffs, from which, and from an order denying a new trial, defendants appeal. We have considered carefully the oral and written arguments of counsel, and are satisfied that no reversible error was committed by the trial court. There is only one point which we think necessary to be specially .noticed, and that is, whether or not the court erred in excluding testimony offered by appellants to show a difference in value between two kinds of dates which are mentioned in a contract between the parties. On November 29, 1890, the parties entered into a written contract as follows: "Sold this day to Messrs. H. Levi & Co., San Francisco, 4,000 boxes dates, more or less, consisting of Hallowee AAA and Sairs, at six (6) cents per pound, delivered at the wharf at San Francisco in merchantable condition. Terms, cash on delivery. The above lot being such as are received and on the way, consigned to order of G. H. Ballou & Co. 2,500 boxes, more or less, for immediate delivery, and balance, 1,500 boxes, more or less, for delivery on arrival at San Francisco. It being understood that 1,500 are now afloat. If, by unavoidable accident, balance of 1,500 do not arrive, sale of 1,500 boxes is void. Weights to be estimated at actual gross weight, less uniform tare of 10 lbs. each box." This document was signed by appellants and respondents. It will be observed that in this contract no distinction is made between Hallowee dates and Sair dates, either as to the price or as to the quantity of either kind sold; and,

if it be true that there is a marked difference in the value of the two kinds of dates, then the case illustrates the carelessness with which contracts are frequently made, and how difficult questions are thrust upon courts by the looseness with which business is often done. It appears that 2,500 boxes of dates were delivered at the time the said contract was made, and paid for by respondents at the said price of six cents per pound, and that they were Hallowee dates. These 2,500 boxes were in merchantable condition, and with reference to them no trouble occurred. But afterwards, on December 11, 1890, the 1,500 boxes mentioned in said contract having arrived, appellants delivered them to respondents, and respondents paid appellants for them at the said contract price of six cents per pound. These 1,500 boxes were, as a matter of fact, Sair dates, and they proved to be not merchantable. The court gave judgment for the difference between the contract price of these last 1,500-six cents per pound-and their actual value as unmerchantable goods. But the appellants, having averred in their answer that Sair dates were worth less than Hallowees, asked of one or two of their witnesses the questions: "Was there any real difference at that time in the value, in this market, between Hallowees and Sair dates?". and "What is the difference between Hallowees and Sairs?" and the court sustained

objections to these questions, and we think that the objections were properly sustained. These questions amounted to nothing more or less than an attempt to show that goods sold and delivered under an express contract, at a stated price, were not worth as much as the price at which they were expressly sold, which, of course, a seller is estopped from doing, except under peculiar circumstances, not here existing. As before observed, the contract, on its face, makes no difference between Hallowee and Sair dates, either as to the amount of either or the price of either. But, as to the aggregate amount of dates, it is clear that the contract was severable as to the first lot, of 2,500 boxes, and the second lot, of 1,500 boxes. The first lot was delivered and paid for at the price named, and that ended the contract as to that lot. As to the second lot, of 1,500 boxes, the sale and delivery were contingent. They were subject to the uncertainties of a sea voyage, and it was provided that if they did not ar rive the "sale of 1,500 boxes is void." If they had not arrived the transaction would have closed with the sale of the 2,500 boxes, and the payment for them by respondents at the contract price; but, as they did arrive, payment had to be made for them by respondents at the contract price of six cents per pound, and such payment was made. If the 1,500 boxes had been lost at sea, could appellants have recovered anything of re spondents upon the theory that the 2,500