briefs, it is not contended that if section 4024 of the Political Code is of effect as governing the manner of appointment of assistant probation officers, the letters would be sufficient evidence of compliance with the requisite formalities. That section provides as follows: "Every county, township, or district officer, except a supervisor or judicial officer, may appoint as many deputies as may be necessary for the prompt and faithful discharge of the duties of his office. Such appointment must be made in writing, and filed in the office of the county clerk; and until such appointment is so made and filed, and until such deputy shall have taken the oath of office, no one shall be or act as such deputy." While it is not argued, we have taken notice of the fact that the provisions of section 4024 might be construed as applicable only to deputies or assistants appointed in excess of those specifically provided for by law. In that event the section would not apply to the assistant probation officers. For that reason we have called attention to section 894 of the Political Code, which provides: "The appointment of deputies, clerks, and subordinate officers, when not otherwise provided for, must be made in writing, filed in the office of the appointing power or the office of its clerk." If we are to say that the last provision-was the one under which the appointment should have been made, then it would have been the duty of the chief probation officer to make a record of the appointment in his office in some substantial form and for the person so appointed to take the oath of office. The question is not raised, but, parenthetically, we may suggest that nowhere in the findings of fact does it appear to have been determined that the petitioner ever took an oath of office. That point, however, not having been suggested, reason for this decision is not in any particular to be ascribed to the lack of such finding. The evidence, to our minds, in no wise shows that Gibson, the probation officer, ever selected as his appointee, directly or impliedly, this petitioner. It appears expressly by the evidence that such selection was made by the judge of the juvenile court who, as we have heretofore determined, had no power to appoint. By every reasonable inference to be drawn from the testimony, it seems clear beyond any doubt whatsoever that the chief probation officer assumed that the judge had the right to make the appointment, and accepted the appointment of the petitioner because of that fact and that fact alone. We attach no weight as

determinative of this matter to the statement contained in the evidence that the probation officer consented to and was willing that the petitioner be appointed to the position. He did not so appoint her, and the letters written by him were apparently merely by way of compliance with the regulations of the civil service commission, under the control of whom, as to the making of the reports of his office, he seemed to be.

Having reached the conclusion that the evidence was insufficient to justify the material finding made by the court that petitioner was regularly appointed to her position, we do not think it necessary to pass upon the question suggested in conclusion by the appellant. In the petitioner's complaint it did not appear that the auditor, before demand for the salary warrant was made upon him, had received a certificate from the civil service commission certifying to the correctness of the demand, as section 38 of the Los Angeles County charter provides. Appellant has contended that the auditor could not be compelled by mandate to act until such certificate had been furnished him. In answer to this proposition, respondent contends that the general duties of the auditor, as set forth in section 4091 of the Political Code, do not admit of this certificate being insisted upon as a prerequisite to the issuance of a warrant for a salary amount which is fixed by law. There is no doubt at all but that in defining the duties of the civil service commission it was competent for the charter to provide that such commission should furnish to the auditor evidence that the officers had performed their duties. As to whether, however, the presence of this certificate was a necessary prerequisite to the issuing of the warrant to an officer whose salary is fixed by law, we do not decide.

Under the conclusions expressed it must follow that the petitioner is not entitled to the relief.

The judgment is reversed.

Conrey, P. J., and Shaw, J., concurred.

[Civ. No. 1562. First Appellate District.-November 20, 1915.], HENRY LUND et al., Copartners, etc., Appellants, v. ARTHUR LACHMAN, Respondent.

SALES-ACTION BY SELLER-BREACH OF CONTRACT TO PURCHASE BOTTLES -Measure of DAMAGES-SECTION 3353, CIVIL CODE.-In an action by a seller for breach of a contract to purchase a certain specified quantity of quart bottles, the measure of damages is that fixed by section 3353 of the Civil Code, which provides that in estimating damages the value of property to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed with reasonable diligence for the seller to effect a resale. ID.-EVIDENCE-LACK OF DILIGENCE IN MAKING SALES-NOMINAL DAMAGES.—Where, in such an action, it is shown that the seller, upon the refusal of the buyer to accept the goods, removed the same to a warehouse, where they were stored and insured, and from time to time sold at private sale at varying prices for an aggregate sum less than the sum total of the contract price, instead of being taken to the nearest market, where they could have been sold at an advance of the contract price, the seller is entitled at most to but nominal damages.

ID.-DUTY OF SELLER-PROCURING OF HIGHEST MARKET PRICE-CONSTRUCTION OF SECTION 3353, CIVIL CODE.-Under the provisions of section 3353 of the Civil Code, it is the duty of the seller, regardless of his business capacity or ability along the particular line of goods forming the subject matter of the broken contract, to go into the open market and obtain for the rejected goods the highest obtainable market price therefor.

ID.-MARKET VALUE-MEANING OF.-The market value of a commodity is the highest price in the market where it is offered for sale which those having the means and inclination to buy are willing to pay for it.

ID.-EVIDENCE-PREVAILING MARKET PRICE.-In such an action it is not error to permit evidence of the prevailing market price during the period following the tender and rejection of the bottles. ID.-FAILURE TO ALLOW NOMINAL DAMAGES INSUFFICIENT GROUND FOR REVERSAL.-In such an action, the refusal to allow the plaintiff at least nominal damages will not warrant the reversal of the judgment or the granting of a new trial, as such a judgment would not carry costs.

ID.-NOMINAL DAMAGES-COSTS.-Nominal damages have been defined

to mean merely an inconsiderable, trifling sum, such as a penny, one cent, six cents, and to carry costs a judgment of the superior court must amount to the sum of three hundred dollars.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. B. V. Sargent, Judge presiding.

The facts are stated in the opinion of the court.

H. W. Glensor, for Appellants.

Jesse H. Steinhart, for Respondent.

LENNON, P. J.-This is an action for damages for the alleged breach of a contract to purchase personal property. The appeal is from the judgment in favor of the defendant and from the order denying a new trial.

The facts of the case as revealed by the pleadings and proof are substantially these: On November 30 and December 1, 1910, the defendant entered into two contracts with the plaintiffs for the purchase of certain specified quantities of claret quart bottles, to be shipped from Sweden during the months of February or March, 1911. The contract price was $5.85 per gross, and delivery was to be made from the ship's side at San Francisco. The bottles arrived at San Francisco on the steamship "Strathbeg" on June 15, 1911. They were tendered to the defendant on June 16, 1911, and refused by him. The bottles were thereupon removed to a warehouse by the plaintiffs, where they were stored and insured, and from time to time sold at private sale at varying prices for the aggregate sum of $2,912.85, which was $12.15 less than the sum total of the purchase price specified in both contracts.

The trial court in its findings of fact found that the plaintiffs did not use due or any diligence in making sales of the bottles; that the several sums obtained therefor at the several sales were not separately or in toto the highest obtainable market price; and that plaintiffs were not compelled to have such bottles removed to a warehouse because of the defendant's breach of the contracts.

The bottles having been sold at private sale, and it being an admitted fact in the case that title to the bottles had not passed from the plaintiffs, it is conceded, as it must be, that plaintiffs' only remedy was damages for the breach of the contracts (Cuthill v. Peabody, 19 Cal. App. 304, [125 Pac. 926]); and that the measure of the damages alleged to have been thereby

sustained is to be found in section 3353 of the Civil Code, which provides that "In estimating damages, the value of property to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale."

In addition to claiming that the findings are contrary to the evidence concerning the market value of the bottles and the necessity for their removal to a warehouse as a result of the defendant's breach of the contracts, it is insisted that the plaintiffs should have been allowed five per cent commission as compensation for the cost of making the several resales of the bottles.

The evidence adduced on behalf of the plaintiffs shows that the bottles were sold at a series of sales made during a period of time extending from July 6, 1911, to March 20, 1912, at approximately $5.75 per gross, and there was some evidence, competent and uncontradicted, adduced upon behalf of the defendant, to the effect that during the month of June, 1911, there was in the city and county of San Francisco, the place where the bottles should have been accepted by the defendant, a well-established and active market price for bottles similar to those contracted for by the defendant, which ranged from $6.25 to $7.25 per gross. The evidence also shows that the business of the plaintiffs was that of steamship freighters, importers, and exporters, and that the sale of the bottles in question was intrusted to a salesman of the plaintiffs, whose specialty was that of selling iron, coke, and pig iron; and Carl Bundschu, manager of the Gundlach-Bundschu Wine Company, as a witness for the defendant, testified that "About the month of July, 1911, there was sold to us by Henry Lund & Co. a gross of claret bottles at $5.85 a bale. That was below the market price, cheaper than I could buy elsewhere." The salesman of the plaintiffs, in explanation and justification of the price procured for 387 bales of the bottles in question, which he had sold in or about the month of March, 1912, to one Rosenberg, testified that at that time he was unaware of the fact that there was a scarcity of bottles in the local market resulting from a scarcity of bottles in Germany and Sweden,

29 Cal. App.-3