How. 610. The requirements of the statute were not pursued in the contract for publishing the delinquent list. (Ordinance 113, sec. 72; Williams v. Sacramento County, 58 Cal. 237; Wade on the Law of Notice, secs. 1105-15; Civ. Code, sec. 1624; Times Pub. Co. v. Alameda County, 64 Cal. 469; Maxwell v. Supervisors of Stanislaus County, 56 Cal. 114.) The court erred in admitting the block-books and the remark of witness Gutierrez as to the ownership of the property in evidence. (Pol. Code, sec. 3650; Ex parte Christensen, 85 Cal. 208; People v. Hastings, 29 Cal. 449, 450; People v. Lansing, 55 Cal. 393; Keane v. Cannovan, 21 Cal. 297.) The valuation of the property is uncertain.

Thomas McNulta, for Respondent.

(Ordinance No. 113.) In(Ordinance No. 113, sec.

The complaint is sufficient. terest was properly allowed. 146; Civ. Code, secs. 3287, 3288.) The taxpayer is personally liable for taxes in an action for the same. (People v. Seymour, 16 Cal. 332; 76 Am. Dec. 521; People v. Frisbie, 18 Cal. 403; Moore v. Patch, 12 Cal. 270; Guy v. Washburn, 23 Cal. 116; Oakland v. Whipple, 39 Cal. 112; San Francisco Gas Co. v. Brickwedel, 62 Cal. 645, 646; Pol. Code, sec. 3716; 2 Dillon on Municipal Corporations, 3d ed., sec. 817, and cases cited, among them Dugan v. Baltimore, 1 Gill & J. 499, cited in San Fran cisco Gas Co. v. Brickwedel, 62 Cal. 641, 646.)

TEMPLE, J.-This is the second appeal in this case (see 95 Cal. 378), and is taken from the judgment and from a refusal of a new trial.

The action was brought to collect a municipal tax, and to the complaint a general demurrer was interposed. It was overruled, and defendant answered. He now

specifies a great many alleged defects in the complaint. Many of them are, in effect, that the complaint is ambiguous or uncertain. Such objections cannot be reached on general demurrer. Nor can the other objections, which merely amount to criticisms upon the

sufficiency of the statement, as that the essential facts appear only inferentially, or as conclusions of law, or by way of recitals, prevail on such demurrer. There must be a total absence of some material fact to justify us in sustaining a demurrer of this character.

The only points which I think worthy of notice on the demurrer are the objections to the assessment.

It is claimed that it is invalid because:

1. It does not show that the real estate is situated within the city of Santa Barbara. The first column after taxpayers' names is headed "Description of Property according to Map-book of the City of Santa Barbara." The next column is headed "Lot," and the next "Block." In the first of these columns are the words "City Lot." In the second "2," in the third "110." I think this sufficient to show that the property is in Santa Barbara.

2. It is not essential to the assessment that it should state that the taxpayer owned the property assessed on the first Monday of March, or that the city had a mapbook.

3. The slovenly entries by the tax-collector, intended to show that a portion of the tax had been paid, do no injury. Interpreted as claimed by appellant they are meaningless, and would do no harm.

4. There is no uncertainty in the figures which show the total value of all property after equalization.

Ordinance 113, which provides for the levy and collection of the tax, ought to have been more fully set out, at least in effect. The allegations are, however, sufficient to support a judgment, and as no special demurrer was interposed they are sufficient on this appeal.

The delinquent list as published stated that the tax and costs amounted to two hundred and forty-six dollars and ninety-one cents, when, as it is contended, the correct amount was two hundred and forty-five dollars and ninety-one cents, just one dollar too much.

The common council of the city of Santa Barbara, as they were authorized to do under the ordinance which

provided for the levy and collection of taxes, passed a resolution to the effect as to all assessments upon which taxes amounted to less than three hundred dollars, that where the property has been offered for sale at least once, and there is no purchaser in good faith, the taxcollector shall proceed to collect the same by civil action in the name of the city.

The complaint recites that all this has been done, and that therefore the tax-collector brings this suit in the name of the city of Santa Barbara.

In his statement on motion for a new trial the defendant has not charged that the evidence is insufficient to support this finding. We cannot, therefore, grant a new trial upon that ground.

A recovery was had of the sum of eighty-one dollars and sixty-five cents for interest.

No interest is claimed in the complaint, and there is no allegation under which interest could be allowed. Furthermore the defendant has specified in his statement on motion for a new trial that the evidence does not justify the finding that interest was due. If, therefore, there was any thing in the ordinance to justify the finding, the city attorney should have seen that it was in the statement. The objection to the allowance of interest must therefore be sustained.

A new trial will not be necessitated thereby, for the judgment can easily be modified by striking out the allowance of interest.

The defendant cannot object that the requirements of the statute were not pursued in the contract for publishing the delinquent list. His liability is created by a valid assessment, and, if that was made, no irregularity in the attempt to collect the tax will discharge him from the liability.

The publication was for the proper period.

I think there was no error in admitting the blockbooks; and the remark of the witness Gutierrez that it appeared from them that Alice Eldred owned three lots is of no moment.

The defendant admitted by not denying that he owned the property; besides the assessment put the burden upon him. (Pol. Code, sec. 3900.)

The case is remanded, with directions to the trial court to modify the judgment by deducting the interest allowed. In all other respects the judgment is affirmed.

MCFARLAND, J., and HENSHAW, J., concurred.

(No. 19458. Department Two.-July 31, 1895.] HARRY PHILIP, RESPONDENT, v. J. E. DURKEE, AP

PELLANT.

CONTRACT FOR MANUFACTURE AND ERECTION-PLEADING DELIVERY -UNCERTAINTY AS TO DAMAGES.-In an action by the assignee of contractors who agreed to manufacture iron gates and lamps, and to erect them upon foundations to be prepared and designated by the defendant for an agreed sum, a complaint alleging that the assignors manufactured the gates and lamps, and that since a certain date they have been able, ready, and willing to erect the same in accordance with the contract, and that the gates are specially adapted to the places for which they were made, and cannot be sold elsewhere without enormous loss, amounting to almost the entire contract price; that the assignors requested the defendant to accept the gates and lamps, and to permit their erection, and to pay the agreed sum, which defendant refused to do, does not state a cause of action for the price of the goods for want of an averment of delivery, or offer to deliver them, sufficient to pass the title; and, though it states a cause of action for damages for breach of the contract, is subject to a special demurrer for uncertainty as to what the damage consists of, or as to the extent of the damage, or as to how much injury was sustained by the refusal of the defendant to permit the completion of the contract. ID.--IMMATERIAL AVERMENT OF DAMAGE TO ASSIGNEE.-The averment that the plaintiff, who was the assignee of the contract, was damaged to the extent of the agreed sum, is immaterial, the defendant not having contracted with the plaintiff, and cannot help out a failure to aver to what extent the assignors were damaged by the breach of the contract.

ID.-PRACTICE-FAILURE TO PRESENT DEMURRER-RULE OF COURTDECISION OF ISSUE OF LAW.-A demurrer raises an issue of law, and to overrule it decides that issue; and it is immaterial that the court overruled the demurrer because the defendant failed to appear and present it, or that a rule of the superior court provides that a demurrer will be overruled for want of presentation.

ID.-DUTY OF COURT-DECISION OF DEMURRER-REVIEW UPON APPEAL-The code allows an issue of law to be made by a demurrer, and

unless the demurrer is waived, or gotten rid of in some lawful mode. the court must decide the questions raised, regardless of whether the defendant fails to appear and present it or not; and if, on appeal, there is prejudicial error in the action upon the demurrer the case may be reversed for that reason.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. WALTER VAN DYKE, Judge.

The facts are stated in the opinion of the court.

Chapman & Hendricks, for Appellant.

The court erred in overruling the demurrer to the complaint. (Civ. Code, secs. 1141, 1485, 1489, 1502, 1503, 2466-68, 3310, 3311; Hallidie v. Sutter Street R. R. Co., 63 Cal. 575; Wing Ho v. Baldwin, 70 Cal. 194.)

Houghton, Silent & Campbell, for Respondent.

The demurrer was properly overruled. (Hallidie v. Sutter Street R. R. Co., 63 Cal. 576; Civ. Code, secs. 1511, 1512, 2466, 3049, 3311; Pendleton v. Cline, 85 Cal. 142; Wing Ho v. Baldwin, 70 Cal. 195.)

TEMPLE, J.-Defendant appeals from the judgment and from an order refusing a new trial.

The complaint was demurred to, and the demurrer is insisted upon here.

Plaintiff sues as assignee of Fruhling Bros., and avers in his complaint that Fruhling Bros. contracted with Durkee to manufacture out of materials to be furnished by them, and to erect upon foundations to be prepared and designated by Durkee, certain iron gates and lamps, for which Durkee agreed to pay Fruhling Bros. four hundred and thirty dollars. Also that Fruhling Bros. did construct and manufacture said gates and lamps. and the work of manufacture was completed about October 1, 1891, "and they have ever since been able, ready, and willing to erect the same in accordance with said contract."

Further, the gates are specially adapted to the places