disclosed in its application, and its failure to read the policy will not relieve the insurer, whose duty it would be to make the policy conform to the facts received from the insured. (McElroy v. British Assurance Co., 94 Fed. 990.) If, then, Harrison & Co. would have been liable to the respondent for this loss had they directly issued this policy, is not the appellant to whom Harrison & Co. parceled out its share of this risk also liable? Harrison & Co. were the general agents of several insurance companies engaged locally in the marine insurance business. Edgar Alexander was the marine secretary and local general agent of the New Zealand Insurance Company, engaged locally in the same business. A. R. Fritschi was a broker representing no insurance company, but having an office or headquarters, desk room free, in the offices of the New Zealand Insurance Company. There was a custom among the local agents of insurance companies to exchange or divide up business among the several companies represented by them, so that if one of their number received an order for a block of insurance larger than he could or was willing to carry in his particular company he parceled it out among his fellow agents who were willing to assume for their principals a share in the risk. In accordance with this custom Harrison & Co., through the medium of Fritschi, placed the share of this insurance in question with their fellow agent Alexander, who took the same for his company, knowing that it was, so to speak, overflow insurance being passed out by Harrison & Co., with whom he had done business before, and in accordance with the aforesaid custom with which he was familiar. The policy when written was delivered to Harrison & Co., and it was from that firm the appellant received its share of the commission. Under such conditions the appellant must be held to stand in the place of Harrison & Co., to be bound by their knowledge, and to be liable to the same extent that they would have been liable if they had directly issued this policy. (May v. Western Assur. Co., 27 Fed. 260; Queen Ins. Co. v. Union Bank & Trust Co., 111 Fed. 697; Mesterman v. Ins. Co., 32 Pac. 458; McGraw v. Ins. Co., 94 Fed. 990; Insurance Co. v. Hartwell, 24 N. E. 100; Insurance Co. v. Ewing, 90 Fed. 217.)

The case of Parrish v. Rosebud M. & M. Co., 140 Cal. 635, is not in conflict with these views nor with the authorities above cited, since the reasoning of that case would only go to the extent of creating Strong, Belden & Farr the agents of the insured, but would not so extend that agency as to include Harrison & Co., to whom, as general agents doing marine insurance, the application of the insured was made.

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

We concur:

KERRIGAN, J.
LENNON, P. J.

Civil No. 1281. First Appellate District. December 30, 1913. STEFANO VENTRE, Plaintiff and Respondent, v. ANTONIO TISCORNIA et al., Defendants; ANTONIO TISCORNIA, Defendant and Appellant.

[1] ACTION FOR PARTITION-EXPENDITURES FOR PRESERVING AND IMPROVING COMMON PROPERTY-CONTRIBUTION FROM COTENANT-COST OF LEVELING LAND-CONSTRUCTION OF BULKHEAD-FINDINGS CONTRARY TO EVIDENCE. It is held in this action for partition of certain real property wherein the defendant by way of cross-complaint sought judgment against the plaintiff, as an incident of the partition, for money expended in improving and preserving the common property, that the findings fixing the cost of leveling the land and refusing to allow the defendant anything for the construction of the bulkhead are contrary to the evidence, which fails to show a substantial or any conflict either as to the necessity for the improvements or their cost.

PATION

[2] ID.-ID.-ID.—WANT OF CONSENT TO IMPROVEMENTS-PARTICIIN BENEFITS-LIABILITY FOR CONTRIBUTION.-The fact that such improvements were made without the consent of the plaintiff is no defense to the claim for contribution, where he participated in the resulting benefits and profits.

[3] ID. IMPROVEMENTS UPON COMMON PROPERTY-CONTRIBUTION AS CONDITION 10 PARTITION EQUITABLE RULE.-A cotenant seeking partition of the common property at the hands of a court of equity will be granted relief only upon the condition that the equitable rights of his cotenant will be respected and protected, and therefore, where it is shown that one tenant has, in good faith, with or without the consent of his cotenant, expended money in making permanent improvements which were necessary to the preservation of the common property, partition should not be decreed without first counting the cost of such improvements and making a suitable allowance for the same.

[4] ID. LANDLORD AND TENANT-RELATION BETWEEN TENANTS IN COMMON-CONTRIBUTION FOR IMPROVEMENTS.-Tenants in common may by contract create the relation of landlord and tenant between themselves, and no claim for contribution can be made upon partition for improvements made by the tenant in promoting an individual enterprise upon the premises.

[5] ID. CASE AT BAR-FINDINGS NOT SUPPORTABLE UPON THEORY QF LANDLORD AND TENANT. It is held herein that the findings relating to the necessity and cost of the improvements cannot be justified upon the theory that the same were made by the defendant in the character of an ordinary tenant at will of the plaintiff. Appeal from the Superior Court of the City and County of San Francisco-E. N. Rector, Judge.

For Appellant-Devoto, Richardson & Devoto.

For Respondent-Sullivan & Sullivan and Theo. J. Roche. These are appeals from an interlocutory decree and from an order denying a new trial in an action for the partition of real property, in which the plaintiff and the defendant Tiscornia as tenants in common claim an undivided interest.

The defendant Tiscornia answered, and joined in the plaintiff's prayer that the property be partitioned in accordance with their respective interests, but by way of cross-complaint claimed that he had expended certain sums of money in the preservation and improvement of the common property, for which sums he sought judgment against the plaintiff as an incident of the partition.

The plaintiff answered, and denied the allegations of the crosscomplaint concerning the claim for moneys expended in the preservation and improvement of the property; and in that behalf, after pleading the statute of limitations against such claim, alleged that whatever moneys said defendant had expended in or about the land sought to be partitioned were expended by him for his individual use and benefit and not for the common benefit of plaintiff and said defendant.

The undisputed facts of the case as disclosed by the evidence are these: The land in controversy, consisting of some 12 or 13 acres, was originally purchased by the plaintiff and defendant Tiscornia as tenants in common, and occupied by them as copartners in the business of raising vegetables for the market. Upon the dissolution of the partnership and for several years thereafter Tiscornia used and occupied the entire premises, maintaining thereon a truck garden, for which use and occupation he paid to the plaintiff the sum of $25 per month. Finally the plaintiff and Tiscornia joined in a ten years' lease to the defendant Lou Hoy of several acres of the common property for the total rental of $7,200, payable at the rate of $60 per month. Tiscornia, during the time he was in the exclusive use and occupation of the common property, made certain permanent improvements thereon, which consisted in part of leveling the acreage leased to the defendant Lou Hoy, and erecting and maintaining a fence in the nature of a bulkhead some 2,000 feet in length for the purpose of preventing the storm waters of severe winters from washing away and thereby rendering valueless a considerable portion of the property. The leased land prior to the leveling was unimproved and yielded no profit in rent or otherwise. The plaintiff contributed nothing towards the expense of this improvement and preservation of the common property, but afterwards claimed and received one-half of the increased income. It was an admitted fact in the case that Tiscornia, for the use and occupation of that portion of the common property remaining in his exclusive possession after the execution of the lease to the defendant Lou Hoy, was indebted to the plaintiff in the sum of $150, and that at the time of the commencement of the action there was due and unpaid to the plaintiff, as his share of the rent reserved under the lease, the sum of $300 which had been collected and retained by Tiscornia.

The foregoing facts being undisputed or admitted, and the title and interests of the respective parties, together with the necessity for partition, being conceded, the only controversy which developed upon the trial related solely to the question as to whether or not the improvements and preservation of the property as made by Tiscornia were for the common benefit, and worth the sum claimed to have been expended by him for that purpose.

The trial court, upon the issue relating to the improvement and preservation of the property, found that Tiscornia had expended $100 in leveling the leased portion of the land, but found against him in so far as the construction and cost of the fence or

bulkhead were concerned; and after deducting one-half of the cost of levling from the sum admittedly due to plaintiff, judg ment was entered in his favor for the sum of $400.

[1] Upon this phase of the case we think the findings are clearly contrary to the evidence. It will be remembered, as previously pointed out, that it was not disputed that Tiscornia had leveled the leased portion of the land and erected the bulkhead. His testimony as to the necessity for and the approximate cost of these improvements is substantially as follows: Within ten years preceding the commencement of the action he had leveled from time to time four or five acres of the partitioned property. Such leveling was necessary to prevent small streams of flood waters having their sources in a creek which ran through the property, from carrying away the soil. Without leveling, this particular piece of property was not rentable, but as a consequence of the leveling it was leased to the defendant Lou Hoy for a term of ten years at the monthly rental of $60, thereby and to that extent increasing the rental value of the entire tract. The leveling occupied about three months' time in all, and cost approximately $500. A year or two after the dissolution of the copartnership the construction of the bulkhead was commenced, and was continued piecemeal from time to time until completed. It was three or four feet high, 2,000 feet in length, and cost approximately $1,000. In its construction some $500 worth of material was used, and the services of from seven to nine men, laborers and carpenters, were needed and employed at odd times, some of whom were paid $4.50 per day and found, and others at the rate of from $30 to $50 per month. The bulkhead was necessary to protect the greater part of the entire tract from being inundated and partially washed away by the storm waters from wet winters.

con

Plaintiff contends that the findings fixing the cost of leveling the leased land and refusing to allow anything for the struction of the bulkhead, are justified and should be sustained because of a claimed conflict in the evidence, and the asserted inherent improbability of Tiscornia's testimony.

We fail to find, after a careful scrutiny of the record, a substantial or any conflict in the evidence either as to the necessity for the improvements mentioned or their cost; and we are not convinced that the testimony of Tiscornia, standing as it does uncontradicted and unimpeached, was rightly ignored by the lower court in making up its findings.

The plaintiff was a witness in his own behalf, and his defense to the claim for contribution to the expenses of improving and preserving the common property was practically rested upon his testimony alone. As a witness he did not deny that, in order to successfully cultivate the leased land, it was necessary to divert several small streams which overflowed from the creek; nor did he deny that the leveling done by Tiscornia accomplished this result. Neither did he deny that such leveling was the proximate cause of the lease to the defendant Lou Hoy, and also of a material enhancing of the rental value of the entire property.

True the plaintiff did testify that "the leveling was done to plant vegetables", and that "it was not necessary to prepare the land to do any leveling". This, however, was not in contradiction of anything testified to by Tiscornia. The latter did not claim that the leased land needed preparation by leveling or otherwise to make it productive. His testimony rather was to the effect that without leveling the overflow from the creek would render the cultivation of vegetables unprofitable if not impracticable; and therefore it may be fairly said that he and the plaintiff were in substantial accord as to the reason and necessity for leveling. The claim of Tiscornia that a fence or bulkhead was necessary to preserve the property from the ravages of storm waters was not even attempted to be disputed, but, to the contrary, was in a measure corroborated rather than contradicted by the evidence of the plaintiff, who testified that the bulkhead in controversy was the continuation of a fence which had been erected by both parties previous to the dissolution of the copartnership for the purpose of protecting the vegetables from the wash of the waters of the creek, which at times arose to the height of the fence.

It will thus be seen that there is no conflict in the evidence relating to the question of the necessity for the improvement and preservation of the common property by leveling and bulkheading.

With reference to the cost of these improvements the plaintiff merely testified, "If I had five men I could do the leveling in a week, and if seven or eight men worked continuously it would take less than a week to build the fence."

This testimony constitutes the sole basis for the claimed conflict in the evidence concerning the cost of improving and preserving the property; but we are at a loss to perceive how such testimony can be fairly said to controvert Tiscornia's testimony that he had expended $500 in leveling the land, and $1,000 in the construction of the bulkhead. The plaintiff did not deny that these sums were so expended, nor did he otherwise attempt to show the contrary. He merely ventured the assertion that he could have completed the leveling and constructed the bulkhead in considerably less time than did Tiscornia. Plaintiff did not say, however, by what method the work could be done in so short a time; nor did he pretend to know what the cost would be for the labor in one instance, and for labor and material in the other. Surely such testimony cannot be deemed to be satisfactory evidence, which alone will justify a decision. (Code Civ. Proc., 1835.) It did not disprove or tend to disprove the testimony of Tiscornia that from time to time the sums mentioned were necessarily expended by him in the manner and for the purpose stated. Such facts were all of an open and notorious character which could have been readily disproved if false; and the failure of the plaintiff to produce any evidence to the contrary must be taken as confirmatory of Tiscornia's testimony. (Cavanaugh v. Wholey, 143 Cal. 164.)

In short, the claimed conflict in the evidence on this phase