and damaged; that is to say, the same was damaged and injured to the extent of $2,174.45." It is upon these two allegations of the complaint that plaintiff must rest his cause of action, if the pleading states one, and our consideration will now be addressed to their sufficiency.

The claim presented to the executrix, upon which the allegations of the complaint just quoted are based, is in its nature essentially a contingent claim. Section 1498 of the Code of Civil Procedure declares when actions must be brought upon claims due and claims not due at the date of rejection. The claim here presented cannot be classed in either category, and the declaration of this principle finds full support in the case of Verdier v. Roach, 96 Cal. 474. We find no other provision in the statute prescribing the time within which suit must be brought upon rejected claims; hence, as to rejected contingent claims, the matter may be said to be enveloped in some doubt. As was said in Verdier v. Roach, supra: "The allowance of such a claim would have admitted and established the validity of the obligation, and would have entitled it to be filed in court," etc. And, while it is possible that an action upon a rejected contingent claim may be brought to secure a judgment, giving the claim the same status as would come to it by its allowance, still we find upon examination of the complaint in this case, and especially of the allegations previously quoted, that no such judgment is here sought, but a money judgment for damages pure and simple is asked for. These allegations of the complaint have a twofold character. They lay a claim for damages in the sum of $1,000 for furniture, etc., lost and destroyed by the lessee, and also a claim of $2,174.45 for furniture, etc., injured and damaged. As to the damage for injury to the personal property leased by plaintiff, we are clear that any action for such damages will be premature until the expiration of the lease term. The lessor under his contract agreed to return this personal property "in as good condition as said articles now are, cause of action for a breach of that covenant

and no

could arise until the time came for a return of the property. The mere fact that it was injured and damaged at some time during the life of the lease would not show that it could not be returned subsequently in substantially its original condition. It would not show but that repairs would place it in the same condition as when leased. As to the claim of $1,000 for property destroyed and lost, it must be assumed that such property not caly was placed beyond repair, but could not be returned, and, such being the fact, it may be conceded, for present purposes, that a cause of action in damages for its loss would arise at the date of its destruction, regardless of the time of the expiration of the lease; for, even though the lessee's stated time for performance had not yet arrived, if he voluntarily placed it out of his power to perform he committed a breach of the contract and was liable at once. It may also be conceded that the covenants of his contract as to returning this property could not be satisfied by a return of other property of a similar kind and character. But for other reasons we think this claim of $1,000 for damages does not state a cause of action, and those reasons also furnish additional grounds for defeating the plaintiff's claim of damages for property injured and damaged.

The allegation of the complaint in this regard is that, "before the filing of the complaint to which this is amendatory, the said T. J. Sherwood had carelessly and negligently permitted a large amount of personal property," etc. It will be observed that the claim presented and rejected was a contingent claim. No damages were alleged, and no allowance for damages asked. The complaint, as we see, asks for damages. Upon such a state of facts it is necessary to the statement of a cause of action that an allegation be found therein that such damages arose from a breach of the contract occurring since the presentation and rejection of the contingent claim. No claim for damages was presented to the executrix of the estate. She had no opportunity to allow such a claim, and necessarily rejected no such claim. No such claim

ever being presented and rejected, no action for damages upon a claim of that character will lie, for its presentation and rejection were conditions precedent to the bringing of an action. An allegation of the character suggested would seem to be as necessary to a complaint in this class of actions as an allegation showing that the breach of the contract occurred during the life of the guarantee. The complaint upon its face must show a present liability to the guarantor. It must show a presentation and rejection of the claim upon which the action is brought or a legal reason excusing such presentation and rejection. This the complaint does not do. If a complaint showed an action against an administrator or executor upon a claim against a decedent, without alleging its presentation and rejection, no cause of action would be stated, and in this case there is no cause of action stated against defendant, inasmuch as there is no allegation that this breach of contract was made subsequent to the presentation and rejection of the contingent claim. An allegation in the one case is no more important than in the other.

For the foregoing reasons the judgment is affirmed.

MCFARLAND, J., and HARRISON, J., concurred.

[No. 19567. Department Two.-July 31, 1895.] THE CITY OF SANTA BARBARA, RESPONDENT v.

PLEADING

A. ELDRED, APPELLANT.
AMBIGUITY-UNCERTAINTY-CONCLUSIONS

OF LAW-DEMURRER. Objections that a complaint is ambiguous or uncertain, or that essential facts appear only inferentially, or as conclusions of law, or by way of recitals, must be raised by special demurrer, and cannot be reached on general demurrer. CITY TAXES-ASSESSMENT-LIST-DESCRIPTION OF PROPERTY.--Where the assessment-list for taxes of the city of Santa Barbara is headed in the first column over taxpayers' names "Description of Property according to Map-book of the City of Santa Barbara," under which are the words "City Lot," and the succeeding columns are headed "Lot" and "Block" under which are given respectively the number of

the lot and the number of the block, the assessment-list is sufficient to show that the lot assessed is situated within the city. ID.-TIME OF OWNERSHIP OF PROPERTY ASSESSED-MAP-BOOK.-It is not essential to the assessment that the list should state that the taxpayer owned the property assessed on the first Monday of March, nor that the city had a map-book.

ID.-ENTRIES BY TAX-COLLECTOR.-Entries by the tax-collector upon the assessment-list intended to show that a portion of the tax has been paid do no injury.

ID. PLEADING-CITY ORDINANCE-SPECIAL DEMURRER.-A city ordinance which provides for the levy and collection of city taxes should be fully set out in a complaint for city taxes, at least in effect; but where the allegations respecting the ordinance are uncertain or defective, without a total absence of a material fact, they are sufficient to support a finding for the collection of the taxes, in the absence of a special demurrer. ID.-AUTHORITY OF TAX-COLLECTOR-RESOLUTION OF COMMON COUNCIL-SUIT FOR TAXES UPON REAL ESTATE.-Where a city ordinance which provides for the levy and collection of taxes authorizes the common council of the city to pass a resolution to the effect that, where real estate has been offered for sale upon which the taxes amounted to less than three hundred dollars, and there is no purchaser in good faith, the tax-collector shall proceed to collect the same by civil action in the name of the city, such resolution authorizes the bringing of an action by the tax-collector, for the collection of taxes on real estate, if the complaint recites a case falling within the resolution. ID.-INTEREST UPON TAXES-PLEADING FINDING AGAINST EVIDENCE -MODIFICATION OF JUDGMENT.-Where no interest upon the amount of taxes due is claimed in the complaint, and there is no allegation under which interest could be allowed, and the evidence does not justify a finding that interest was due, the objection to the allowance of interest must be sustained upon appeal, and the judgment must be modified by striking out the interest. ID.-EVIDENCE--ADMISSION OF BLOCK-BOOKS-IMMATERIAL REMARK OF WITNESS-OWNERSHIP.-In an action for the recovery of taxes the block-books are admissible in evidence; and it is immaterial that a witness remarks in his evidence that it appears from the blockbooks that the defendant owned a lot assessed. ID.-ADMISSION OF OWNERSHIP.-Where the complaint alleges the ownership of the property assessed by the defendant, the defendant admits the ownership by not denying the allegation.

ID.-EFFECT OF ASSESSMENT BURDEN OF PROOF.-The assessment puts the burden of proof upon the defendant.

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

The facts are stated in the opinion of the court rendered upon the former appeal, reported in 95 Cal. 378, and in the opinion of the court rendered upon this appeal.

B. F. Thomas, for Appellant.

The demurrer to the complaint should have been sustained, because the assessment was invalid. (See Knott v. Peden, 84 Cal. 302; Pol. Code, secs. 3650, 3651.) There is nothing to show in the assessment that the land assessed or the mortgages assessed were on land within the city of Santa Barbara. (Pol. Code, sec. 3651.) The complaint is defective because it fails to allege that defendant owned the property assessed to him on the first Monday in March, 1888. (City of Los Angeles v. Signoret, 50 Cal. 298; Lambert v. Haskell, 80 Cal. 613; Burkett v. Griffith, 90 Cal. 532; 25 Am. St. Rep. 151; People v. Central Pac. R. R. Co., 83 Cal. 400.) The complaint is fatally defective because it does not allege a compliance with the sections of ordinance 113 of plaintiff which correspond with sections 3766, 3767, and 3768, of the Political Code. (Hall v. Theisen, 61 Cal. 524.) Without the publication of the delinquent list in a paper, as required by section 3766 of the Political Code, there could be no legal attempt at a sale. (People v. Rains, 23 Cal. 131; Himmelmann v. Townsend, 49 Cal. 150; 25 Am. & Eng. Ency. of Law, 256.) The excess of one dollar, as published in the delinquent list, over the correct amount due for the tax and costs vitiates the offer to sell. (Axtell v. Gerlach, 67 Cal. 483; Boston Tunnel Co. v. McKenzie, 67 Cal. 485; Knox v. Higby, 76 Cal. 267; Treadwell v. Patterson, 51 Cal. 637; Harper v. Rowe, 53 Cal. 236; Ordinance 113, sec. 79, Pol. Code, sec. 3651.) The publication of notice of time of sale was insufficient. (Ordinance 113, sec. 74. See Blackwell on Tax Titles, 5th ed., secs. 420, 430, 431, 434, 435, 440; Weltby on Assessments, sec. 221; Early v. Doe, 16 How. 610.) As to what is a day, see Pol. Code, sec. 3259; Alameda Macadamizing Co. v. Huff, 57 Cal. 332; Bidwell v. Webb, 10 Minn. 59; 88 Am. Dec. 56; Polk v. Rose, 25 Md. 153; 89 Am. Dec. 773; Eaton v. Lyman, 33 Wis. 36; Collins v. Smith, 57 Wis. 286; Ward v. Walters, 63 Wis. 39; Cooley on Taxation, on Notice of Sale, 334; Early v. Doe, 16