that said defendant denies that said invoice price to plaintiff, plus the sum of 5%, amounts to the sum of $1797.03, or any other sum in excess of the sum of $1400." By way of alleged cross-complaint, it was set up that the plows agreed to be furnished were furnished under a representation and guaranty of plaintiff that they would be adapted to the particular needs of the farmers of Orange county, where the soil was very heavy, and that the plows would turn such soil satisfactorily and make a furrow of the depth desired. It was alleged that the plows would not so operate and that the defendant was unable to sell all of them, and that he was damaged in the sum of $400. The trial judge in the findings of fact determined that the amount of the invoice price, plus five per cent, was the sum of $1400, as admitted in the answer of the defendant, and found against the claim of warranty as alleged. The evidence showed that a demand had been made, prior to the suit being brought, for payment of the sum of $1737.49, that being the amount claimed by plaintiff to be due, and also showed that after much negotiation had occurred between the plaintiff and defendant and his counsel, defendant made payments in the sum of $844.70, which sum deducted from the invoice price admitted by defendant left remaining the amount for which judgment was entered. [1] It is claimed that the evidence was insufficient to warrant the court in fixing the amount of the invoice price as the findings determined it to be; but the answer to that contention is that, while plaintiff offered some evidence showing the invoice price to be of a greater amount than that allowed it by the court, the trial judge based his judgment upon the sum which defendant by his answer admitted to be true. Of course, it was first necessary that the plaintiff should, under the general denial contained in the answer, make out a prima facie case, but this it did do quite clearly, and under the condition of the pleading as referred to herein, defendant was not in a position to complain of the finding as to the amount fixed as owing by him.

[2] And it may also be said that no damage was shown to have been caused to defendant by reason of any alleged breach of warranty. Defendant testified that he first sold several of the plows and that they failed to give satisfactory service and that he was unable to make sale of the remainder a retail. He testified further, however, that he did sell all of the plows later, along with his stock of merchandise, to a man who became his successor in the implement business. The burden was upon defendant to show both the making of the warranty, its breach and resulting damage. For aught that appeared in evidence, he may have received the full market price for all of the plows. Therefore, even though it be conceded that the evidence tended to show the making of the warranty as alleged, in opposition to the finding to the contrary, no prejudice could have resulted, for a different finding as to that fact would not have changed the judgment.

A very careful examination of the entire record compels the

conclusion that none of the alleged errors urged by appellant possesses substantial merit.

The judgment and order are affirmed.

We concur:

CONREY, P. J.

SHAW, J.

JAMES, J.

Civil No. 1408. Second Appellate District. February 14, 1914. CHARLES A. MEYER, Plaintiff and Appellant, v. JAMES W. MCALLISTER, Defendant and Respondent.

[1] SALE-BREACH OF CONTRACT BY BUYER-SALE BY VENDORMEASURE OF DAMAGES.-The measure of damages caused to the vendor by the breach of a buyer's agreement to purchase personal property, where the property has been sold without notice to the latter is the excess, if any, of the amount due from the buyer under the contract over the value to the seller.

[2] ID.-ID.-ID.-EVIDENCE-VALUE OF PROPERTY TO SELLERMARKET VALUE.-Where in such a case the vendor in proof of the value of the property to the seller assumes such value is ascertainable by proving the market value and in proof thereof offers evidence of the amount received therefor at a fair sale, it is proper to permit evidence by the defendant of the market value of such property.

Appeal from the Superior Court of Los Angeles CountyFranklin J. Cole, Judge Presiding.

For Appellant-Stutsman & Stutsman.

For Respondent-Randall & Bartlett.

In this action plaintiff seeks to recover damages in the sum of $1345 incurred by defendant's breach of a contract made with plaintiff's assignor, wherein the defendant agreed to purchase from the vendor certain machinery at the agreed price of $2145. Judgment was awarded in the sum of $429, and the Flaintiff appeals from the judgment, as well as from an order denying his motion for a new trial.

As both parties assume, in accordance with the record, that there was a contract and that there was a breach thereof by the defendant, the only questions presented on appeal relate to the plaintiff's claim that the evidence is insufficient to sustain the finding limiting plaintiff's damages to the amount named in said judgment; and incidentally to the claim that the court erred in receiving certain evidence offered by the defendant concerning the value of the property described in the contract.

After the vendor had, as required by the terms of the contract, shipped the machinery to Chino, California, and the defendant had further confirmed his refusal to accept the same, the vendor made some efforts to sell the property at and in the vicinity of Chino and finally, at a time within two months after the shipment had been made, sold said property publicly for $800, which was the highest and best bid made at that time. The representative of the vendor who made the sale testified

to his efforts with respect to making a sale and that he could not get any higher bid.

a

[1] The sale was made without actual notice thereof to the defendant. Therefore, the amount received at the sale is not conclusive evidence of value by which to measure the damages for which the defendant is liable. For the same reason (and also because title had not passed from the vendor), the first subdivision of section 3311 of the Civil Code is not applicable to the case. The detriment caused to the vendor by the defendant's breach of his agreement is to be measured by subdivision 2 of said section 3311, and in the present case consists in the excess, if any, of the amount due from the buyer under the contract over the value to the seller. (See also, sec. 3353. Civ. Code.) [2] In offering the above mentioned evidence the plaintiff was seeking to prove "the value to the seller", and was proceeding upon the theory that the value to the seller was the price obtained at a sale fairly made in the market at Chino. This would be evidence of the market value taken as equivalent to the value of the property to the seller. In response to the evidence thus produced, the defendant offered the testimony of a witness familiar with machinery of the kind in question and with the sale or market value thereof, who testified that the value of the machinery uninstalled at Chino, as described to him and set forth in the contract, was between $1700 and $1800. The testimony of this witness, especially on cross-examination, shows that he was speaking of market value, or the price at which such property was being sold and reasonably could be sold. "The value in the market up there of the engine would be somewhere in the neighborhood of $1400. The pump was worth somewhere in the neighborhood of $300 or $400." Objection was made to this testimony on the general grounds, and particularly that the witness should have been asked to fix, "not the market value, but the value to the seller at that time". But as we have rointed out, the plaintiff himself had assumed that the value to the seller was to be ascertained by proving the market value, and this he had undertaken to do by showing the amount that he had been able to obtain at a sale which he contended was a fair sale. Therefore, the testimony objected to was clearly admissible. This being so, there was thereby created a conflict in the evidence as to what was the value of the property to plaintiff's assignor at the time in question. The finding of the court as to value is substantially supported by the testimony, and this is sufficient to determine the case.

The judgment and order denying a new trial are affirmed.
CONREY, P. J.

We concur:

JAMES, J.
SHAW, J.

Civil No. 1087. Third Appellate District. February 14, 1914. VALLEJO AND NORTHERN RAILROAD COMPANY (a Corporation), Plaintiff and Respondent, v. REED ORCHARD COMPANY (a Corporation), et al., Defendants and Appellants.

[1] APPEAL-EMINENT DOMAIN-"FINAL JUDGMENT"-WHAT CONSTITUTES. The judgment entered upon the general verdict in a condemnation suit assessing the amount to be paid and adjudging the necessity for the taking, and not the final order of condemnation provided for in section 1253 of the Code of Civil Procedure, is the "final judgment" from which an appeal may be taken, notwithstanding that after the entry of the former the court is required, upon the payment of the money assessed to make what is called "a final order of condemnation”.

[2] ID.-JUDGMENT-FORCE AND EFFECT.-When a judgment is once entered of record it must stand as the judgment until it is vacated, modified or disposed of by some means provided by 'aw, and entering additional judgments is not one of them.

[3] ID.-EMINENT DOMAIN "PRELIMINARY ORDER AND JUDGMENT FOR CONDEMNATION”—APPEAL WITHIN SIX MONTHS AFTER ENTRYNOTICE NOT GIVEN-VALID APPEAL.-An appeal from a "preliminary order and judgment for condemnation", taken within six months after its entry, is in time, where no notice of entry is given.

[4] ID. TRIAL-FORMATION OF JURY-PEREMPTORY CHALLENGESMANNER OF EXERCISE-PROPER PRACTICE. The correct practice in exercising peremptory challenges in the formation of a jury is to have twelve jurors in the box before requiring the parties to exercise their peremptory challenges, and then to call another juror whenever a peremptory challenge shall have been exercised, and the parties must challenge alternately as provided by section 601 of the Code of Civil Procedure.

[5] ID.-ACTION IN EMINENT DOMAIN-CORPORATION PLAINTIFF— EVIDENCE-ARTICLES OF INCORPORATION-CLOSE RESEMBLANCE OF NAME TO EXISTING CORPORATION-INSUFFICIENT OBJECTION.-An objection to the introduction in evidence in a condemnation proceeding by a cornoration of its articles of incorporation on the ground of want of authority of the secretary of state to file the same because of the close resemblance of the name to an existing corporation, is untenable, in the absence of any statute declaring such official act to constitute a forfeiture or penalty, and where it is affirmatively shown that such corporation was formed for the express purpose of acquiring all the properties and franchises of the existing corporation.

[6] ID.-ID.-ID.-ID.-EXTENSIVE PURCHASES OF OTHER LANDSEVIDENCE GOOD FAITH NOT QUESTIONED IMPROPER EVIDENCE. It is error in such an action to admit evidence of the extensive purchases of lands elsewhere, where the good faith of the plaintiff in seeking condemnation is not questioned, as the same is prima facie established by proof of incorporation.

[7] ID.-ID.-ID.-MAGNITUDE OF PROJECT OPPOSITION OF LARGE INTERESTS-IMPROPER EVIDENCE.-Evidence of the efforts that had been put forth to carry out the projects of the plaintiff and of the opposition encountered from large interests is improper.

[8] ID.-ID.-ID.-SIMILAR IMPROPER EVIDENCE.-Evidence of a complaint and summons in a suit brought by the plaintiff against an opposing company to condemn a strip of land some forty miles distant from the land involved, and a final order of condemnation in another case and certain applications for a franchise, are also inadmissible.

[9]_ID.-ID.-ID.-REITERATION OF MATTERS IN CROSS-EXAMINAION-ERROR NOT WAIVED.-The error in the admission of such matters is not waived or cured by their reiteration in the crossexamination of the witnesses.

[10] ID.-ID.-ID.-PREPONDERANCE OF EVIDENCE FOR PLAINTIFFERROR UNAFFECTED BY.-The error in the admission of such matters cannot be said to be without prejudice for the reason that the preponderance of the evidence was in favor of the plaintiff.

[11] ID.-EVIDENCE-CROSS-EXAMINATION CONCERNING OBJECTIONABLE MATTER ABSENCE OF WAIVER.-When a witness, on direct examination, over objection, gives certain testimony, the opposing party is not precluded from cross-examination as to the alleged objectionable statements on penalty of condoning the error waiving the objection.

or

[12] ID.-ERECTION, CONSTRUCTION AND OWNERSHIP OF WHARVES -RIGHT OF RAILROAD CORPORATION-GRANT OF AUTHORITY FROM SUPERVISORS.-A railroad corporation has power to erect, construct and own wharves and to condemn land for such purpose, without obtaining any authority from the supervisors of the county as a condition precedent to the exercise of such right.

[131 ID. CORPORATION LAW-BRIDGE AND WHARF CORPORATIONSCIVIL CODE SECTIONS IN APPLICABLE TO RAILROAD CORPORATIONS.-The provisions of sections 528 to 531 of the Civil Code apply only to a character of corporation whose sole or principal business is other than railroad business, or, in fact, whose sole or principal business is the establishment and conduct of a wharf, ferry, bridge, chute or pier in contemplation of revenue to be derived directly therefrom.

[14] ID.-ID.-CONSTRUCTION OF WHARVES-GRANT OF AUTHORITY BY SUPERVISORS POLITICAL CODE SECTIONS INAPPLICABLE TO RAILROAD CORPORATIONS.-The provisions of sections 2906 to 2921, inclusive, of the Political Code, giving boards of supervisors power to grant authority to construct wharves, etc., apply only to the construction of a wharf, chute or pier in connection with a license to take tolls and do not include a case where the wharf is a mere adjunct to the business of a railroad and is to be used merely as an aid in the reception, discharge, loading and forwarding of freight and

passengers.

[15] ID.-ACTION IN EMINENT DOMAIN-CONDEMNATION OF LAND FOR RAILROAD PURPOSES-EVIDENCE-OPERATION OF STEAMERS-ERROR. -In an action brought to condemn land for railroad purposes exclusively it is error to admit in evidence and give instructions upon the theory that the plaintiff would operate a line of steamers in connection with its railroad.

[16] ID. RAILROAD CORPORATIONS-RUNNING OF STEAMERS.-The business of running a line of steamers cannot properly be said to be an adjunct to the railroad business.

[17] ID. CONDEMNATION OF LAND-EXTENT OF LAND-EVIDENCE-— NATURE OF COUNTRY-QUALITY AND VARIETY OF PRODUCTS.-It is proper in an action to condemn land for railroad purposes to admit evidence of the nature of the country through which the road will pass and of the quantity and variety of its products, to show the extent of land needed.

[18] ID.-ID.-ID.-ID.-OTHER CIRCUMSTANCES.-The character and number of the population, the progress of industrial development and the nature and importance of commercial enterprises in the district are also proper subjects of inquiry.

[19]

ID.-ID.-ID.-ID.-PRODUCTION OF CEMENT PLANTS ALONG ROUTE OF ROAD PROPER TESTIMONY.-Testimony as to the existence, capacity and volume of production of cement plants along the route of the road, while near the border line of mere speculation, is admissible as tending, in connection with other evidence, to show what traffic might be reasonably expected.

[20] ID.-ID.-ID.-ID.-ID.-CONVERSATIONS AS TO FUTURE BUSINESS HEARSAY.-Conversations and negotiations with other parties looking to future business with the plaintiff are hearsay and incompetent.

[21] ID.-ID.-ID.-ID.-CONSTRUCTION OF ANOTHER RAILROAD