BONA FIDE PURCHASER (Continued).

PROOF.-Where one holding under an unrecorded deed brings an action involving the respective titles to the land against a subsequent grantee under a deed which is first recorded, the first grantee will prevail, unless the second grantee not only shows the making and recording of his deed, but also that he made his purchase and paid the price in good faith, and without the knowledge of the rights of the previous grantee. (Purcell v. Victor Power & M. Co., 504.)

2. RULE WHEN INAPPLICABLE.-Such rule, however, is inapplicable to the plaintiff in an action to quiet title to a portion of a lode mining claim, where the deed under which the defendant relied was not made known until after the plaintiff rested his case. (Id.)

BOUNDARY.

CITY LOTS-SUFFICIENCY OF EVIDENCE.-In this action in ejectment and for damages for the unlawful detention of land, which involved the location of the boundary line between two lots in the city of Sacramento, upon the dividing line of which a fence had existed for probably forty years, or more, it is held that in view of the meager character of the evidence of the real boundary line as located and fixed by the original survey of the city (Sutter survey of 1848 or 1849), and in accordance with which the deeds of the parties were made, and of the existence of the fence, and of the inclusion of the disputed strip in the inclosure of the defendant, the court was justified in finding that the plaintiffs had failed to establish any title to the property in controversy. (Perich v. Maurer, 293.) See Criminal Law, 66-70.

BROKER.

1. CONTRACT-OPTION TO SELL REAL PROPERTY-SALE BY OWNER AFTER EXPIRATION RECOVERY OF COMMISSIONS. - Under an option to sell real estate which expressly limits the life thereof to a period of ninety days from its date, a provision therein that in the event that the owner should sell the property to anyone to whom the property had been recommended by the brokers within ninety days after the expiration of the option, he would pay them a commission of five per cent on the gross amount for which he might so sell the property, contemplates that such commission should be payable only in the event that a sale was thus made to a party to whom the brokers had recommended the property while the option agreement was still in force; and where a sale is thus made to a party recommended by them after the expiration of the ninety day period, they are not entitled to the commission. (Elsea v. Fassler, 187.)

2. CONTRACTS-SALE OF REAL ESTATE BROKER'S COMMISSION.-A contract authorizing real estate brokers to sell property which makes the brokers the exclusive agents for the sale of the property but does

BROKER (Continued).

not clothe them with the exclusive right to sell the property, does not entitle the brokers to a commission on a sale made by the owner unaided by the agents. (Snook v. Page, 246.)

3. RATIFICATION-SALE BY OWNER.-The sale by the owner does not constitute a ratification within the meaning of a contract providing that the owner shall be liable for commission on any sale made by the agents, "or ratified" by the owner during the life of the agreement.

(Id.)

4. DEFINITION OF "RATIFICATION."-The terms "adopt" and "ratify" are properly applicable only to contracts by a party acting or assuming to act for another. (Id.)

5. REAL ESTATE BROKERS-DIVISION OF COMMISSIONS-UNEQUAL PROPORTIONS-STATUTE OF FRAUDS.-An oral agreement between real estate brokers to divide commissions on sales of real estate in unequal proportions is not within the statute of frauds. (Hellings v. Wright, 649.)

6. ACTION TO RECOVER COMMISSIONS PLEADING COMPLIANCE WITH AGREEMENT SUFFICIENCY OF COMPLAINT.-In an action brought to recover commissions due under such an oral agreement, the omission to allege in the complaint that the plaintiff "obtained agreements from purchasers to pay the balance in monthly installments," etc., which was part of the sale plan, does not destroy the sufficiency of the complaint, as against a general demurrer, where it is alleged that sales were made under such plan, and that monthly payments were made by the purchasers. (Id.)

See Contract, 5; Statute of Frauds, 1-5.

BUILDING CONTRACT. See Assignment; Specific Performance.

CHECK. See Criminal Law, 50-54; Garnishment; Sale, 15-18.

CLAIM AND DELIVERY.

1. PLEADING VALUE OF PROPERTY.-A complaint in an action to recover the possession of mortgaged personal property, which contains no allegation showing the value of the demanded property other than that contained in a copy of the mortgage attached to the complaint, which purports to give the value of some of the mortgaged articles, is insufficient, as an allegation of value at the time of filing the complaint. (Keiser v. Levering, 41.)

2. RECITALS IN CONTRACT-INSUFFICIENT PLEADING.-Recitals in a contract incorporated in a complaint will not supply the want of essential averments in the pleading. (Id.)

3. JUDGMENT FOR VALUE OF PROPERTY-EXCESS OF INDEBTEDNESS.— In such an action a judgment for the possession of all the mortgaged property or for its value in case delivery thereof cannot be had is

CLAIM AND DELIVERY (Continued).

excessive, where the indebtedness for security of which the property was mortgaged does not amount to one-half of such value. (Id.) 4. JUDGMENT-ALTERNATIVE FORM.-In an action to recover the possession of personal property, while the judgment must ordinarily be in the alternative, yet a judgment that is not in that form is not void, and whether or not it is even erroneous must depend upon the facts of the particular case. (Id.)

5. JUDGMENT FOR RETURN OF PROPERTY-TENDER-UNJUSTIFIED REFUSAL TO ACCEPT.-In an action in claim and delivery to recover possession of an automobile, where judgment was rendered in favor of the defendant for the recovery of the property, or the amount found to be its value if return could not be had, the defendant was not justified in refusing to accept a return of the property four months after the entry of judgment, upon the sole ground of its depreciation in value merely by lapse of time, and under the circumstances she cannot maintain an action to recover the value of the automobile upon an undertaking given in the original action to procure delivery of the property to the plaintiff therein. (Martin v. United States Fidelity & Guaranty Co., 499.)

COMMUNITY PROPERTY. See Deed, 3.

CONSIDERATION. See Promissory Note, 1-3, 11-15; Specific Performance, 4.

CONSTITUTIONAL LAW. See Appeal, 12; Eminent Domain, 1, 4; Insane Persons, 4, 5; Negligence, 8; Office and Officers, 1, 7, 8; Street Assessment, 1.

CONTRACT.

1. ARCHITECT'S SERVICES-DRAWING OF PLANS-SUFFICIENCY OF EVIDENCE. In an action to recover for services of an architect in drawing plans for a house, where the plaintiff testified that the preparation of the plans and the making of changes thereafter were at the request of the defendant, but the testimony was radically conflicting as to what the agreement was between the parties, the decision of the trial court in favor of the plaintiff will be upheld on appeal. (Salfield v. Cohn, 417.)

2. COVERING METAL DOORS-SUFFICIENCY OF EVIDENCE.-In this action to recover for services in covering with leather metal doors, the judgment of the lower court is affirmed upon the sole question as to whether certain instructions were given to the company perform. ing the services. (Mayers v. San Francisco Cornice Co., 485.)

3. EMPLOYMENT TO PICK FRUIT-DISCHARGE OF EMPLOYEES-REMEDY. In an action by an employee to recover for breach of an

CONTRACT (Continued).

agreement by his employer in which the former was employed to pick fruit, where the court found upon sufficient evidence that the employee was discharged by the defendant and prevented from completing his contract without sufficient cause, the former was entitled to sue for the agreed price of the fruit actually cared for according to the terms of the contract, and was not compelled to sue in quantum meruit for the reasonable value of the services performed. (Johns v. Sanfilippo, 494.)

4. FINDINGS-INCONSISTENCY OF LACK OF INJURY.-In such a case a finding that the plaintiff's assignors "neglected to furnish a sufficient number of pickers and cutters to pick, harvest, and cut said grapes, and neglected to pick said fruit as directed by defendant," if inconsistent with the finding that the defendant was not damaged by this neglect in any sum whatever, does not injure the defendant, where the evidence is fairly in conflict as to any injury which the defendant sustained by reason of said neglect, the conflict having been resolved in favor of the plaintiff, and for that reason not to be disturbed on appeal. (Id.)

5. BROKER'S COMMISSION MANNER OF PAYMENT-CONSTRUCTION.— Where a written contract, employing a real estate broker to effect an exchange of properties, provided for payment of a certain sum to the broker, and from the record it appears that after the negotiations for the exchange of properties were completed the defendant informed the broker that he would have to wait until a crop of potatoes belonging to him was harvested, which was agreed upon, and the parties then entered into a written addition to the agreement providing that when the crop was sold "the proceeds to the amount of $1,650 is to be turned over to me in liquidation of above indebtedness," the quoted language of the contract was merely a limitation upon the amount of money to be paid to the broker from the proceeds of the crop, and where the crop sold for less than the amount of the broker's commission, the latter was entitled to recover the difference from the defendant. (Evans v. Hindes, 708.)

6. BENEFIT OF THIRD PARTY-ENFORCEMENT.-In order to sustain an action for the enforcement of a contract made for the benefit of a third person there must have been an intent clearly manifested on the part of the contracting parties to make the obligation inure to the benefit of the third party, or, as declared in section 1559 of the Civil Code, the contract must be one "made expressly for the benefit of a third person." (Wilson v. Shea, 788.)

7. INCIDENTAL BENEFIT.-When two persons, for a consideration sufficient as between themselves, covenant to do some act which, if done, would incidentally result in the benefit of a mere stranger, that stranger has not a right to enforce the covenant, although one of the contracting parties might enforce it as against the other. (Id.)

CONTRACT (Continued).

ADDENDUM

ENFORCEMENT BY

GUARANTY PURCHASER.-A pur

8. PURCHASE OF CONTRACT RIGHTS IN REAL PROPERTY CONTRACTchaser of contract rights in certain real property, who was given a guaranty contract signed alone by the original owner of such rights guaranteeing the securing of a good title to the property, has no right of action, against certain other persons, who were to share the commissions on the sale, and who, at the request of the signer of the guaranty, after its execution and delivery to the purchaser, signed an addendum to a copy thereof, which recited that the responsibility of the guaranty was shared by the signers with the original guarantor in proportion to the amount of the commission on the sale which each received, where it is made to appear that such purchaser did not rely upon such addendum clause and had no knowledge of its existence until several months after the purchase. (Id.)

9. ACTION ON CONTRACT APPEAL BY SIGNERS OF ADDENDUM CONTRACT SERVICE OF NOTICE-ORIGINAL GUARANTOR NOT AN ADVERSE PARTY. In an action brought by the purchaser against the original guarantor and signers of the addendum contract, wherein judg ment was rendered for the full amount of the guaranty against the former and against the latter in such proportions as the amounts of their commissions bore to the whole amount of the guaranty, it is not necessary upon the taking of an appeal from the judgment by the signers of the addendum contract, that the original guarantor be served with notice of the appeal. (Id.)

See Broker; Building Contract; Dairy; Novation; Sale; Statute of Frauds.

CORPORATION.

1. CORPORATION LAW-STOCKHOLDERS' LIABILITY-STATUTE OF LIMITATIONS. An action to enforce the liability of stockholders of a corporation is, under the provisions of section 359 of the Code of Civil Procedure, an action to enforce “a liability created by law," and is barred at the expiration of three years from the time when the liability was created, and not at the expiration of such period from the discovery of the facts creating such liability. (Johnson v. Hinkel, 78.)

2. BREACH OF LEASE-LIABILITY OF STOCKHOLDERS-TIME OF CREATION -STATUTE OF LIMITATIONS.-In an action to recover damages upon a stockholder's liability for breach of the terms of a lease of land made by the corporation, the statute of limitations runs from the time of breach, and not from the time of the execution of the lease. (Id.)

3. JURISDICTION OF SUPERIOR COURT.-The superior court has no jurisdiction as to defendants in an action upon a stockholders' liability