corporation; and the said minutes, upon being read and approved at a subsequent meeting of the board, shall be conclusive upon the question of service". The service of notice of this called meeting was not entered on the minutes, nor were such minutes read or approved at a subsequent meeting of the board. Upon this state of the record the plaintiff announced that he rested his case; whereupon the defendant moved for a non-suit. Upon such motion being made the plaintiff offered to prove by another witness that the two absentees had been duly served with written notice of the meeting. The court refused to allow this proof to be given "upon the ground that the service of notice was not entered on the minutes, nor did it appear that the minutes were read and approved at a subsequent meeting of the board"; and thereupon the court granted the motion for non-suit.

[5] We think that, as to the reason given by the court for its refusal to permit the plaintiff to make proof of the due service of notice upon the absentees from the meeting, such reason is not sufficient. [6] The object of the requirement in the by-laws that the fact of service of due notice of special meetings shall be entered in the minutes is in order that the recital of such fact therein shall be of itself prima facie proof of such notice, which may become conclusive by the subsequent approval of the minutes; but it cannot be held to be the only permissible proof of such service or of the regularity of such meeting; otherwise the secretary, by the omission of this clerical duty, could destroy the legality of any special meeting of the board of directors, and thereby nullify its acts. The same reasoning applies to the reading and approval of the minutes at a subsequent meeting of the board. These requirements in the by-laws are intended to facilitate the proof of the regularity of the board's proceedings, but not to limit such proof to the minute entries and clerical acts of the clerk. The reasons of the court, therefore, were not only insufficient, but the ruling itself was error. [7] One of the chief objects subserved by a motion for non-suit is to point out to the court and to opposing counsel the specific oversights and defects in plaintiff's proof of his case; and this in order that, as to the latter, he may supply if possible the specified deficiencies in his proof. (Coffey v. Greenfield, 62 Cal. 602; Palmer & Rey v. Marysville etc. Publishing Co., 90 Cal. 168.) When the plaintiff in this case, his attention being called to the matter, offered to do this, it was the duty of the court to permit him to supply the missing evidence; and it was error to refuse this privilege to the plaintiff and, after such refusal, to grant a motion for non-suit. (Low v. Warden, 70 Cal.

19.)

[8] But our reasoning upon the merits of this motion for non-suit carries us back a step further. The plaintiff had presented and read in evidence without objection the minutes of the special meeting of the board of directors of the F. P. Cutting Company, at which a resolution expressly authorizing F. P. Cutting to endorse the commercial paper of the corporation was passed. The correctness of these minutes is not called in question, and it appears therefrom that a quorum of the board was present; it

also appears that two members of the board were absent, but whether or not these two absentees had been duly served with notice of the meeting did not appear either in the minutes, or in the proof of plaintiff at the time the motion for non-suit was made. We do not think it essential that such proof should so appear. [9] While it is true that special meetings of the directors of corporations are not legal unless called and noticed as the by-laws require, or unless these requirements are waived by the members of the board, either expressly or impliedly, by their presence and participation in the meeting, yet it is not incumbent upon a party relying upon the regularity of acts done at such meeting, to show affirmatively that the meeting was in fact called and noticed in the manner specified in the by-laws. The meeting having been held, and a quorum of the board being present, and having done the act in question, their meeting and action are presumed to be regular and legal in the absence of a showing to the contrary; and it is incumbent upon those who assail the legality of the meeting and of the act in question to show that the meeting was not called and noticed as the by-laws require. (Granger v. Oriental Empire etc. Co., 59 Cal. 678; Stockton etc. Works v. Houser, 109 Cal. 1; Barrell v. Lakeview Land Co., 122 Cal. 129; Balfour, Guthrie Co. v. Woodworth, 124 Cal. 169; Robinson v. Blood, 151 Cal. 504; Sargent v. Webster, 13 Metcalf, 497.) We think for this reason also the court was in error in granting the motion for non-suit herein.

The judgment and order denying a new trial are reversed.
RICHARDS, J.

We concur:

LENNON, P. J.

KERRIGAN, J.

Civil No. 1401. Second Appellate District.

February 25, 1914.

LOS ANGELES OLIVE GROWERS' ASSOCIATION (a Corporation), Plaintiff and Appellant, v. PACIFIC SURETY COMPANY (a Corporation), Defendant and Respondent.

[1] CONTRACT-DAMAGES FOR BREACH-FIXING OF AMOUNT-WHEN VALID.-Under the provisions of sections 1670 and 1671 of the Civil Code, an agreement whereby the parties to a contract fix the amount of damages for a breach of its obligations in anticipation thereof may be enforced as a valid contract where, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.

[2] ID. RECOVERY UPON AGREEMENT EXCEPTION TO RULEPLEADING EVIDENCE.-The rule stated in section 1670 of the Civil Code making all contracts for liquidated damages void, except as expressly provided in section 1671, must be presumed to apply in all cases, unless the party seeking to recover upon the agreement shows by averment and proof that his case comes within the exception.

[3] ID.-ACTION FOR DAMAGES-PLEADING EXCEPTION TO RULESUFFICIENCY OF ALLEGATION.-An allegation in an action for damages upon a surety bond conditioned for the faithful performance of a contract "that it would be and was and is impracticable or extremely difficult to fix the actual damages suffered by the plain

tiff by reason of" the breach of the contract, and that by reason thereof a fixed amount was agreed upon, is sufficient to bring the case within the exception.

[4] ID.-ID.-ID.-ACTUAL DAMAGE-SUFFICIENCY OF COMPLAINT. -Where the complaint in such an action shows the making of the contract, the giving of the bond to secure its performance, and a breach of its covenants, with a sufficient allegation of damage, a cause of action for actual damage is stated, and the provision of the contract fixing the damage may be disregarded as immaterial and surplusage.

[5] ID.-ID.-ID.-BREACH OF CONTRACT-NOTIFICATION OF SURETY -PLEADING-GIVING OF DUE NOTICE-SUFFICIENT ALLEGATION.—An allegation in such a complaint that the plaintiff gave due notice to the defendant of the breach of the contract as provided in the bond is sufficient, without alleging the facts as to the giving of such notice.

Appeal from the Superior Court of Los Angeles County-Curtis D. Wilbur, Judge.

For Appellant-Anderson & Anderson.

For Respondent-Parker & Moote.

Action to recover damages upon a surety bond conditioned for the faithful performance of a contract made by plaintiff with one Rukichi Tajiri whereby the latter, for the consideration therein specified, agreed to furnish plaintiff with capable Japanese labor in the picking and harvesting of plaintiff's olive crop.

Defendant interposed a demurrer to the complaint, which was sustained without leave to amend. Judgment of dismissal followed, from which plaintiff appeals.

The contract and bond are both set out in haec verba in the complaint, from which it appears that on October 10, 1910, Tajiri entered into a contract with plaintiff which, among other things, provided that he should furnish plaintiff orderly and capable Japanese men to pick the olives then growing in plaintiff's olive orchards. The contract contained the following, among other provisions:

"It is further understood that the party of the second part (Tajiri) is to furnish a good and acceptable bond to the party of the first part in the amount of $1000, which amount it is hereby agreed shall be the amount of damages to the party of the first part in case the party of the second part (Tajiri) fails to fulfill this agreement."

Pursuant to the provision of the contract requiring him so to do, Tajiri secured from defendant a bond executed by it in the sum of $1000, payable to plaintiff, and conditioned that Tajiri should well and faithfully perform said contract so made with plaintiff, according to its terms and conditions, in which case it was declared the bond should be null and void; otherwise to remain in full force and effect. This bond, as declared therein, was executed by the Surety Company upon certain express conditions, namely: that plaintiff as obligee therein should fully perform all the covenants contained in said contract on its part agreed to be performed, and notify the surety “in writing of any act on the part of the said principal or his agents or employees which may involve a loss for which the said surety is responsible

hereunder, within ten days after the obligee or any representative duly authorized by him to oversee the performance of said contract shall learn of said act; and a registered letter mailed to the general agents of said surety at their office in Los Angeles, Cal., shall be the notice required within the meaning of this bond". The complaint further alleged that on December 1, 1910, Tajiri entered upon and proceeded with the performance of the contract, and "about January 1, 1911, when said contract had been only partially performed, wholly failed, neglected and refused to further carry out or fulfill the terms and conditions, or any of the terms and conditions, of his said contract with the plaintiff, and wholly abandoned the same and failed, neglected and refused to further carry out and perform the same or any of the same or any part thereof; and that the said contract was never carried out or performed by the said Tajiri or otherwise or at all; of all of which the plaintiff duly notified the defendant Pacific Surety Company in writing as in and by said bond provided".

"That plaintiff did and performed each and every and all things required of it by its said contract with the said Tajiri prior to the said abandonment thereof, and was at all times ready, able and willing to carry out and complete the same according to the terms and tenor thereof.

"That it would be and was and is impracticable or extremely difficult to fix the actual damages suffered by the plaintiff by reason of the said breach, to wit: the said abandonment by the said Tajiri of the said contract, and by reason of such impracticability or extreme difficulty of fixing such damages the sum of $1000 was agreed upon by plaintiff and the said Tajiri in said contract as liquidated damages for such breach and not as a penalty; but that plaintiff is informed and believes and upon its information and belief alleges that said damages exceeded the sum of $1000.

"That though often requested so to do the defendant Pacific Surety Company and the said Tajiri and each of them have failed, refused and neglected, and still fail, refuse and neglect to indemnify plaintiff for its damages suffered by reason of the abandonment by the said Tajiri of his said contract with plaintiff."

The prayer was for judgment against defendant for the sum of $1000.

In addition to the general demurrer interposed, it was also alleged that the complaint was uncertain, ambiguous and unintelligible for the reason, among others, that it could not be ascertained therefrom "at what time or in what manner the plaintiff notified the defendant of the failure of R. Tajiri to carry out said contract".

By the terms of the contract Tajiri covenanted to do a number of things varying in degree of importance. He was to furnish bedding and food for the men; keep one general foreman who spoke English, and a boy who spoke English with every twenty men; pick the fruit clean; not thrash the trees with clubs; and

not allow any one connected with the Japanese camp to furnish intoxicating liquors to any of plaintiff's white help. For a failure to comply with any one of these provisions, it was stipulated in the contract that the amount of damage sustained by reason of such non-compliance should be the sum of $1000. Says Mr. Pomeroy in his work on Equity Jurisprudence, section 443: "Where an agreement contains provisions for the performance or non-performance of several acts of different degrees of importance, and then a certain sum is stipulated to be paid upon a violation of any or of all of such provisions, and the sum will be in some instances too large and in others too small a compensation for the injury thereby occasioned, that sum is to be treated as a penalty, and not as liquidated damages." Applying this rule, respondent insists that the sum of $1000 damages stipulated in the contract must be regarded as a penalty. [1] Looking to the code, however, we find the rule modified by section 1670, Civil Code, as follows: "Every contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section." The next section, 1671, Civil Code, provides: "The parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage." It thus appears that an agreement whereby the parties to a contract fix the amount of damages for a breach of its obligations in anticipation thereof may be enforced as a valid contract where, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. [2] The rule stated in section 1670, Civil Code, must be presumed to apply in all cases, unless the party seeking to recover upon the agreement shows by averment and proof that his case comes within the exception mentioned in section 1671. (Long Beach City S. Dist. v. Dodge, 135 Cal. 401.) [3] Plaintiff alleged "that it would be and was and is impracticable or extremely difficult to fix the actual damages suffered by the plaintiff by reason of said breach, towit: the abandonment by the said Tajiri of the said contract”. This, in our judgment, is sufficient to bring the case within the exception. The demurrer, of course, admits this allegation to be true. Whether or not the evidence adduced at the trial will support the allegation, is a question which does not now arise. It may or may not show the contract which Tajiri is alleged to have abandoned was one the nature of which rendered it impossible to fix actual damages, but with this question we are not row concerned. [4] Moreover, conceding the clause which fixed the damage for a breach of the terms of the contract to be void, such fact did not, as claimed by respondent, render the entire agreement invalid, or affect the remainder of the contract whereby Tajiri obligated himself to perform the covenants on his part contained therein. Save as to such provision, which could not be enforced, the contract was otherwise a valid and binding agree