permissive in declaring that such prosecutions need not be by indictment or information, but it does not in terms forbid the same, or define any other mode of practice for the cases so excepted. Other sections of the code, however, prescribe the pleadings and procedure to be followed in cases classed as 1, 2 and 3, but nothing in the juvenile act, nor in the Penal Code, other than section 888 thereof, purports to provide a procedure for the prosecution of the misdemeanor with which petitioners are charged. While section 1426 of the Penal Code authorizes the prosecution of misdemeanors in justices' courts upon a verified complaint, we find no like provision which in terms authorizes a prosecution in the superior court upon such pleading. Hence, it follows that if it cannot be prosecuted by indictment or information, as provided by section 888, the law in terms makes no provision for the trial of such cases. Assuming that section 187 of the Code of Civil Procedure applies, which application may be doubted under section 31 of the Code of Civil Procedure, nevertheless the provision therein that a court vested with jurisdiction to try a case may adopt any suitable mode therefor conformable to the spirit of the code is limited to those cases where no course of procedure is pointed out by the code or some statute. Section 888 specifically points out and designates a complete mode of procedure. It expressly provides that 'All public offenses triable in the superior courts must be prosecuted by indictment or information, except as provided in the next section,' which next section refers to accusations filed in the superior court for the removal of officers in accordance with sections 758 and 759, Penal Code.

"In our opinion, subdivision 4 of section 682 cannot be construed as authorizing the prosecution and trial of petitioners on a verified complaint filed in the superior court. Moreover, such interpretation given the section would, in our judgment, render it repugnant to subdivision 3 of section 25, article IV of the constitution, prohibiting the legislature from passing special laws 'regulating the practice of courts of justice,' as well as render it obnoxious to subdivision 33 of said section which prohibits the passage of a special law 'where a general law can be made applicable.' Not only does a general law exist (section 888), which is applicable to the prosecution of all misdemeanors, jurisdiction of which is vested in the superior courts, but the provision accepting the interpretation of subdivision 4, section 682, as construed by respondents to authorize a prosecution of misdemeanors arising under section 26 of the juvenile act by complaint, is an attempt to provide and apply to such cases a special and different procedure than that prescribed by general law for the prosecution of like misdemeanors triable in the superior court. In the present case there is no conceivable reason why the prosecution of the misdemeanor in question should not be subject to the general rules in regard to pleadings and procedure made applicable to all misdemeanors triable in the superior court. (City of Tulare v. Hevren, 126 Cal. 226, 58 Pac. 530.) . . . In the Mills Sing case, 13 Cal. App. 740, 110 Pac. 694, this court said: "The juvenile act making the offense under

consideration triable in the superior court, section 888 of the Penal Code applies, which provides that all public offenses triable in the superior court must be prosecuted by indictment or information, except as to accusations for the removal of certain officers. Section 809 of the Penal Code directs the filing of an information after commitment by a magistrate, and section 950 of the Penal Code specifies what such information must contain. It follows, therefore, that the preliminary examination and commitment are precedent conditions to the information upon which, and upon which only, can the superior court proceed to try one charged with a public offense, even though it be a misdemeanor.' In our judgment, the verified complaint filed in the superior court is insufficient to give the court jurisdiction to try the petitioners for the offense charged. The prosecution in such case must, as required by section 888 of the Penal Code, if not by indictment, be conducted under an information, as a prerequisite to the issuance of which the accused is entitled (Const., sec. 8, art. I) to a preliminary exami nation and commitment, provision for which is made in sections 858 and 883 of the Penal Code, and which is applicable alike to the misdemeanor with which petitioners are charged, as well as to all others, jurisdiction to try which is vested in the superior court."

There is nothing said in the case of Edington v. Superior Court, 18 Cal. App. 739, which is in conflict with the foregoing views or which supports the position of the attorney-general in this case.

But it may be argued that it is within the competence of the legislature to confer upon the superior court, as a juvenile court, special and peculiar power with respect to misdemeanors created by the juvenile court act, and that it could, therefore, prescribe any procedure for the trial of misdemeanors arising under said act which it might deem appropriate or the more convenient.

It must be borne in mind that the legislature, by the juvenile court law, does not pretend to set up a new court or one distinct from that of the superior court. The act merely confers upon the superior courts jurisdiction of certain offenses created thereby. This is not only clearly implied from the title of the act which, after stating its purposes, among which is the creation of certain offenses, reads: "and giving to the superior court jurisdiction of such offenses," but is expressly declared by section 2 of the law, which provides, among other things, that "the superior court in every county of this state shall exercise the jurisdiction conferred by this act." (See Eddington v. Superior Court, supra.)

[3] While it is true that it is within the constitutional power of the legislature to confer upon the police or justice's courts the jurisdiction to try high grade, or what is commonly termed indictable, misdemeanors, in which case undoubtedly the procedure peculiar to those courts would be appropriate (Union Ice Co. etc. et al. v. Rose, 11 Cal. App. 537; People v. Sacramento Butchers' Association, 12 Cal. App. 471, 487; In re J. C. Westenberg, 47 Cal. Dec., 312), nowhere has it ever been held that, where juris

diction is conferred upon the superior courts of a class of misdemeanors, the legislature may adopt for the prosecution of such cases a procedure materially different from that prescribed by the constitution and the statute for the prosecution of criminal cases in said courts.

The defendant objects to the complaint for other and additional reasons, contending that it is ambiguous and uncertain in that it charges a number of different and distinct offenses under section 26 of the juvenile court law. It is further claimed that the court erred to the detriment of the defendant in certain of its rulings upon evidence and in the matter of its charge to the jury. But, since a reversal must be ordered upon the point first considered, we do not feel called upon to review and pass upon the points last referred to. Besides, we may assume that, if the people elect to proceed anew against the defendant for the offense of which it was attempted to accuse him in the document upon which he was tried and convicted in the present case (Pen. Code, sec. 997), any errors which may have been made in the purported trial with which this appeal is concerned, either in the statement of the offense or the rulings on questions of evidence and the instructions, will readily be discovered and avoided in the trial of the accused under a proper pleading.

For the reasons given in the above quoted opinion in the case of Gardner v. Superior Court, supra, the judgment and the order appealed from in the case at bar are reversed.

Civil No. 1319. First Appellate District. March 18, 1914. C. F. ELDRIDGE, Plaintiff and Appellant, v. EMMA M. MOWRY and GEORGE B. MOWRY, Her Husband, Defendants and Respondents.

[1] AGENCY-CONTRACT FOR BENEFIT OF UNDISCLOSED PRINCIPALRIGHT OF ACTION BY PRINCIPAL.-An undisclosed principal may in this state sue on a contract entered into by an agent for his benefit.

[21 ID. CORPORATION FOR RESTORATION OF RECORD TITLES-ORGANIZATION BY COPARTNERSHIP OF ATTORNEYS AT LAW-AGENCY OF COPARTNERSHIP.-A corporation formed by a copartnership of attorneys at law to restore record titles to real property whose entire capital stock is owned by the partnership and two of its employees and which conducts no other business than to receive applications for restoration of titles, is but a mere agent of such copartnership, which has the right to maintain actions on contracts executed by the corporation for the restoration of such titles.

[3] ID. CONTRACT FOR RESTORATION OF TITLE-COMPENSATION FOR SERVICE-INAPPLICABILITY IN CASE OF CONTEST-PRINTED ADDENDUM BELOW SIGNATURE-EVIDENCE-PART OF CONTRACT.-A printed addendum appearing just below the signature of the applicant on a written contract for the restoration of a record title to real property that the sum limited in the contract for the performance of the service should not apply in case of a contest, constitutes a part of the agreement, where the only evidence as to the circumstances under which the contract was executed discloses that the applicant was informed that the charges would be the same as those of an attorney who had been previously consulted and thereupon signed the contract without reading it.

EVIDENCE SUR

[4] ID.-WRITTEN CONTRACTS-CONSTRUCTION ROUNDING CIRCUMSTANCES.-In ascertaining the intention of the par

ties with reference to written contracts, courts are not always confined to the mere face of the writing, but should take into consideration the situation and relation of the contracting parties, and the circumstances surrounding the execution of the instrument.

[5] ID.-ID.-PLACE OF SIGNATURE-WHEN IMMATERIAL-A party is presumed to have assented to all the terms of a written contract when he signs it, and the place of signature is immaterial except in cases where an instrument is required by law to be subscribed.

[6] ID. PLEADING AMENDMENT OF COMPLAINT STATEMENT OF NEW COUNT-DISCRETION NOT ABUSED.-It is not an abuse of discretion in an action to recover for services performed and money expended in defending a contest to restore such a record title, to permit the plaintiff to file an amended complaint setting up a cause of action on the contract, where the original complaint proceeded on the theory of an account stated.

Appeal from the Superior Court of the City and County of San Francisco-George A. Sturtevant, Judge.

For Appellant-Brittain & Kuhl.

For Respondents-Roger Johnson; R. H. Cross; Arthur H. Brandt, of Counsel.

This is an appeal by plaintiff from a judgment rendered in favor of the defendants.

The case grows out of the destruction of the public records by the San Francisco fire of April, 1906. Upon the adoption by the legislature of the act of June 16, 1906, entitled, "An Act to provide for the establishment and Quieting of Title to real property in case of the loss or destruction of public records" (Stats. 1906, p. 73), commonly referred to as the McEnerney act, Tobin & Tobin, a copartnership of attorneys at law, took steps for the handling of suits brought under said act. Among their clients was the Hibernia Savings & Loan Society, many of whose depositors entrusted to Tobin & Tobin the work of establishing the record title to their real property. For convenience in the transaction of its business Tobin & Tobin maintained their offices in the Hibernia Savings & Loan Society building, and created a department therein specially devoted to the title restora. tion branch of their practice. They formed a corporation under the name of the Hibernia Title Restoration Company. This company's name, or the prominent words thereof, were placed on the door of one of the offices occupied by Tobin & Tobin; its entire capital stock was issued to and was owned by members of the Tobin family and two employees of the copartnership. The corporation, after its organization, so far as is disclosed by the record, never performed any corporate act. It conducted no business other than to receive applications to restore record title to real property; made no expenditures, and never brought or defended a suit. In short, its sole purpose seems to have been one of convenience to the copartnership. Emma M. Mowry and George B. Mowry, her husband, defendants and respondents herein, were borrowers from the Hibernia Savings and Loan Society, the loan being secured by mortgage on property belonging to Emma M. Mowry, valued at about $24,000, and situated at Grove and Buchanan streets in the city and county of San

Francisco. In April, 1907, George B. Mowry called at the offices of Tobin & Tobin, in the room where the work of preparing the papers in suits to restore title to real property was being carried on, and there signed a contract with the Hibernia Title Restoration Company to have the title to the property mentioned restored. Thereupon Tobin & Tobin prepared the necessary papers, and instituted the necessary action in the name of Ella M. Mowry. An answer to this action was filed by the trustee in bankruptcy of one Charles Alpers, who claimed ownership of the property. The case was tried before a jury, and after a vigorous contest of some three weeks' duration, a verdict was rendered in favor of the plaintiff therein.

At the conclusion of the case Tobin & Tobin rendered a bill to Mowry and his wife for the costs they had expended during the trial and in connection with the action, amounting to the sum of $594.61, and also made a charge of $1,000 for their services in maintaining the action. As against this amount credit was given for the sum of $75 already paid by the defendants, leaving a balance alleged to be due of the sum of $1,519.61. The defendants refused to pay this amount for the reasons hereinafter stated, and the present action was brought for its recovery by the assignee of Tobin & Tobin,

At the trial the defendants resisted the action upon two main grounds: first, that the contract sued upon was not entered into by them with Tobin & Tobin, to whom they denied any indebtedness, but with the Hibernia Title Restoration Company; and, second, that such contract limited their liability to the sum of $75.

To meet the first proposition, appellant takes the position that the Hibernia Title Restoration Company was a mere agency of Tobin & Tobin, though that agency was not disclosed to the defendants; and that the assignment to plaintiff by Tobin & Tobin was sufficient to support the action. The defendants contend that no such relationship existed between the attorneys and the corporation, either in law or in fact. If this position be correct, obviously no action could be maintained by Tobin & Tobin's assignee, and the judgment of the lower court should be affirmed.

[1] It is conceded that in the majority of jurisdictions, including California, an undisclosed principal may sue on a contract entered into by an agent for his benefit. [2] The record here does not disclose any express contract of employment or agency; and if the latter relation existed between the corporation and Tobin & Tobin it must be inferred from the circumstances surrounding the situation and transaction. We are satisfied that a consideration of those circumstances compels the conclusion that such relationship did in fact exist. The uncontradicted testimony shows that Tobin & Tobin organized the corporation and owned practically all of its capital stock; that it controlled and dictated its management; that the corporation had no office, and no employees; never brought a suit in its name; that the room on the door of which was the corporation's name, or the prominent words in that name, was but one of the offices of Tobin & Tobin;