ID.—TENDER-WAIVER OF.-In such a case, where the purchasers notified the sellers that they had revoked and countermanded the order, it was not necessary for the latter to make a tender of the physical property agreed to be sold before bringing suit for the purchase price.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Louis W. Myers, Judge.

The facts are stated in the opinion of the court.

Henry K. Norton, and Wilbur Bassett, for Appellant.

Schweitzer & Hutton, for Respondent.

JAMES, J.-Defendants by written contract agreed to purchase from the plaintiff three billiard-tables for an aggregate price of $975. The office of plaintiff was at the city of San Francisco. In this contract it was agreed that $225 should be paid as the initial payment and the sum of $30 per month thereafter paid until the whole amount mentioned had been satisfied. The contract also contained this clause: "Shipped to Los Angeles on or about the 5th day of June, 1913, . . The contract in its other terms provided that when the total price had been paid a bill of sale should be given, and further provided that if the purchaser should "refuse to accept delivery of or to return the said goods, then the entire unpaid balance of this contract, with interest, shall in either of said cases immediately become due and payable and the said Passow & Sons may enforce payment of the entire amount, principal and interest then unpaid, or, if they so elect, they may cancel this contract and take possession of said goods, without legal process. A clause in the latter portion of the writing reads as follows: "In all matters herein mentioned time is declared the essence of this contract." Defendants at the time they entered into this contract owned three old tables, which it was agreed should be valued at $225 and that amount credited as the initial payment on the contract for the new tables. Defendants refused to receive the new tables when offered to them and converted the old tables to their own use; whereupon this action was brought to recover the balance due under the contract for the sale of the new tables,

and also the sum of $225 as the value of the old tables. Judgment was in favor of plaintiff. A motion for a new trial being denied, this appeal was taken from the order made in that regard and also from the judgment.

The evidence showed that upon the making of the contract plaintiff caused the new tables to be shipped from Chicago to San Francisco, at which latter place they were received. On June 9th the tables had not been shipped from San Francisco to the vendees in Los Angeles, and on that date the defendants wrote to the plaintiff that they had not sold any of the old tables, but that the plaintiff could, any time after June 20th, ship the three new tables to them. In a letter dated June 10th the defendants again wrote the plaintiff as follows: "I am writing to let you know that we sold the 3 tables about 1 hour after I wrote you yesterday. . . . You can ship 3 tables any day that will be convenient to you." In a letter dated June 11th the plaintiff replied: "Your three new tables will be shipped from here June 17th and will arrive in your city about three days later." In a letter dated June 16th defendants wrote the plaintiff as follows: "I wish to say that it will not be necessary for you to ship the tables ordered, and I herewith notify you that I countermand this order, as I have made other arrangements." The plaintiff immediately wired in response to this letter, stating to the defendants that it would insist upon the contract being enforced, and in a letter of the same date reiterated their determination in that regard, and requested that defendants give advice as to what date they desired the tables shipped; otherwise that the plaintiff would proceed against them. To this letter the defendants made response by telegram as follows: "Do not ship tables we revoked and countermanded order letter June sixteenth refuse to accept." The testimony showed that immediately following the receipt of this telegram the agent of plaintiff came to Los Angeles and demanded the delivery of the three old tables purchased by the plaintiff, and was told by one of the defendants that the tables were gone and that he did not know where they were. Defendants offered no testimony, but depended for their defense upon two principal contentions: First, that the condition as to delivery of the new tables on or about the 5th of June was not complied with, and that therefore the plaintiff was in default as to its obligation in that particular. Second, that there

29 Cal. App.-36

was no sufficient tender made of the articles purchased prior to suit brought. We think there is no merit in either of these contentions, and that the failure of the defendants to fulfill their agreement is wholly without excuse in the law. It would appear that the phrase in the contract making time the essence thereof was more particularly designed to affect the conditions required of the defendants in the matter of the making of payments. But even though it may be said that strict compliance was agreed to be made as to all matters embraced within the terms of the contract, the parties themselves failed to make the delivery date certain and specific, for they provided that the delivery of the new tables should be "on or about the 5th day of June, 1913." "On or about" does not mean exactly, and to such a phrase the court would apply the construction that that condition is satisfied where delivery was made within a reasonable time after the 5th of June. And it may be fairly said that there had been no unreasonable lapse of time when, on June 9th, the defendants wrote stating in effect their inability to then receive the tables and requesting that they be shipped after the 20th of June. Then, on the 10th of June, after giving this last-mentioned notice, they advised the plaintiff that the three tables might be shipped on any day that was convenient. The plaintiff immediately advised them that the tables would be shipped on the 17th, one week later. No objection was raised to this date until the day before the 17th, when the defendants attempted to rescind their contract. In their correspondence they seem not to have complained of any delay in the matter of the delivery of the new tables, and it is very apparent that the reason for their action was something quite foreign to a contention of that sort. There is every reason for holding that the defendants by their conduct are estopped from raising any question as to the failure of the plaintiff to deliver in time. We think that the trial judge's conclusion, as it inferentially appears from the findings made, that no default was committed by the plaintiff in the performance of any of its obligations, is fully sustained by the evidence.

The plaintiff, upon the announced refusal of the defendants to proceed further under their contract or to accept the tables purchased, was under no obligation to make a tender of the physical property agreed to be sold. It acted strictly in accordance with a term of the contract which we have

quoted which covered the precise contingency that arose between the parties to the contract here involved. Moreover, plaintiff's action was directly in accordance with the provisions of the statute. "If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract such notice before the time at which performance upon his part is due, such other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party." (Civ. Code, sec. 1440.)

There are no further points presented which call for or merit consideration.

The judgment and order appealed from are affirmed.

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

[Crim. No. 454. Second Appellate District.-February 4, 1916.]

THE PEOPLE, Respondent, v. JOHN A. WILSON, Appellant.

CRIMINAL LAW-MURDER-INSTRUCTIONS-WHEN REFUSAL TO INSTRUCT ON MANSLAUGHTER ERRONEOUS.-In a prosecution for murder the court may properly refuse to instruct the jury that they may return a verdict of manslaughter, if the evidence clearly shows that the crime committed was not manslaughter; but where the evidence is such that the jury would be warranted in returning a verdict of manslaughter, it is prejudicial error for the court to refuse, at the request of the defendant, to instruct the jury that it might, if the evidence warranted it, find the defendant guilty of manslaughter. ID.-MANSLAUGHTER DEFINITION.-Manslaughter is the unlawful killing of a human being, without malice; and one of the conditions described in the code definition is that of an involuntary killing “in the commission of an unlawful act, not amounting to felony."

APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. W. B. Wallace, Judge.

The facts are stated in the opinion of the court.

Farnsworth & McClure, for Appellant.

U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Respondent.

CONREY, P. J.-Defendant was convicted of the crime of murder in the second degree and sentenced to imprisonment for the term of twenty years. His appeal is from the judgment and from an order denying his motion for a new trial.

The principal assignment of error refers to the court's instruction to the jury that it might find the defendant guilty of murder in the first degree, or murder in the second degree, or not guilty, and the court's refusal to add to these alternatives an instruction that they might, if the evidence warranted it, find him guilty of manslaughter. The general rule is, as stated in the Penal Code, section 1159, that "the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." The attorney-general has called our attention to decisions of the supreme court which hold that in a prosecution for murder the refusal of the court to instruct the jury that they may return a verdict of manslaughter is not error, if the evidence clearly shows that the crime committed was not manslaughter. (People v. Lee Gam, 69 Cal. 552, [11 Pac. 183]; People v. Fellows, 122 Cal. 233, [54 Pac. 830], and other cases cited in those decisions.) We do not question the rules as stated, but they are not applicable to the record in this case. Brinkley, the deceased, was about 23 years old, and an attachment had grown up between him and a fifteen year old daughter of the defendant. The defendant had informed his daughter that he was opposed to her association with Brinkley, and had sent to the young man information to the same effect. On the morning of June 6, 1915, Brinkley went out riding on a motorcycle with defendant's daughter. The defendant purchased a revolver and started down the road in the direction they had taken. The defendant testified that he saw them coming toward him on the motorcycle and waved his hands, but they seemed to be coming faster. He testified further as follows: "Then I thought if I would pull the gun out of my pocket and wave