Company, and it is upon his testimony and upon the cross-ex amination of Mr. Beggs that the objections now urged to the judgment by appellant are chiefly based. Figel was examined at great length and with much minuteness as to the extent and character of his business, his relations to his assignee, Beggs, and his financial condition at the time of the assignment.

Mr. Beggs testified, on his cross-examination: "The consideration for that assignment is for several purposes; primarily to pay me for legal services, me and Mr. McComish for legal services already rendered and to be rendered for him, and costs and expenses of litigation." He was asked what services he had rendered Figel prior to March 28 and answered: "Considerable. I can't say the exact amount, but very many consultations; a suit had been brought in his favor against the state of California for some $6,000 in round figures, upon which nothing had been paid, for a fee; all of his affairs had been gone into, and they were considerable; had taken up both my time and Mr. McComish's for upwards of a month before this, or more, for quite a long time; I can't say the exact time, but quite a long time, and by this time they were getting very strenuous. Q. At that time did you expect an attachment by the Cowell Company? A. No, sir, not an attachment; we expected a suit but not an attachment." When asked if he knew whether Figel had any money or property, he answered: "Oh, I knew he had large assets." As to his fee for services he testified: "At the time of the assignment I did not have an agreement with Mr. Figel for a definite sum as to the amount of fees I was to receive. There was absolutely no definite sum agreed upon. I communicated to him approximately what it would be, about. In the state case that had already been filed, at least a thousand dollars, and whatever the expenses would be in addition to that; and there were a large number of other cases threatened that would be proportionately; the Engstrom company was threatening to sue Mr. Figel for four or five thousand dollars damages; and there were at least six other people outside of Cowell threatening to litigate certain claims that they had against Mr. Figel for considerable sums of money." The suits last referred to were for damages caused by using this "popping" lime. He presented a list of the assigned claims and testified that they were all assigned to him on March 28, 1911. Being asked whether the assignment was for future services, he answered that it was not. "Q. What did he give them to you for? A. For not only the services that I had rendered up to that time-or rather Mr. McComish and I had rendered, and for any other attorneys that would be necessary to employ in any of the litigation that was threatened in several directions and in several places, the expenses of that litigation, and damages that were claimed from various customers of Mr. Figel growing out of popping lime jobs. Q. Why was he turning money over to you to pay for damages that might result from suits brought against him by other people? A. I can't say; that is what was done; these claims had to be paid as soon as they were definitely settled, and I was authorized to settle them, and we proceeded

to do so. I have settled some. The claim of the Engstrom Company which as presented was some four or five thousand dollars was settled for between twenty-one hundred and twenty-two hundred dollars. What money was paid was money collected out of these assignments. . .. There was a hundred dollars paid to a man named Herman, paid out of money collected on these assignments. Q. What else? A. I think those are the only actual sums of money that I paid out of these collected. There are quite a number that are in dispute, and as soon as the amounts are definitely fixed they are going to be paid; we are trying to get them down low. Q. Which ones are in dispute? A. Well, there is Dr. Belknap, in East San Jose, who is raising some new claims; there is the First National Bank in this city, raising some very large claims; it runs up into the thousands; there is Dr. Osborne, out at Santa Clara, also raising claims; there are several others that I just don't have in mind now. ... Q. Well, now, when you took these assignments did you agree to pay the damages that people might make for popping? A. The understanding, as I understood it, was this: That out of these moneys as they were collected the costs and expenses of any litigation that Mr. Figel might have, should first be paid, including the attorneys' fees; the surplus should be used so far as it could be to pay off any judgments for damages or any claims that might be settled, growing out of these popping lime claims, and the surplus, if any, should be then paid Mr. Figel. Q. Some of these claims, you say, the bank amounted to thousands of dollars? A. Yes. Q. More money than you got? A. Well, no, not more. I am in hopes that it will be cut down, that is why they have not yet been paid. The First National Bank wants a very large sum of money paid. Q. But supposing you have to pay the First National Bank, what do you get? A. I get mine first. Q. How much do you get first? A. I can tell you after it is collected and after the work is performed. cannot tell? A. I cannot tell."

Q. You

It appears from Beggs' testimony that he had collected of these assigned accounts $3,667.66, and had paid out in settlement of three of the "popping" claims $2,580.00, leaving in his hands $1,087.66 and the uncollected claims amounting to $4,848.54. Several contractors and others were called as witnesses who had claims for damages, from whose testimony it appears at least problematical whether any surplus will remain to come back to Figel after claims for damages are paid and his attorneys settled with, even if Mr. Beggs should succeed in collecting the balance of the accounts assigned to him, and whatever that balance may be is secured to the Cement Company by its attachment. In fact, except as to what may be the attorneys' fees, the Cement Company is getting the benefit of all these assigned claims by the money being used to discharge liabilities for which it is answerable. Figel explained at some length why he found it necessary to employ attorneys and his explanation seems reasonable. Speaking of the assignment to Beggs, he testified: "I went through my books and I picked out those accounts that were kind

of long-winded coming in. I did not give them any nice, good accounts because I needed that money to pay your client with, you see? (addressing the Cement Company's attorney, interrogator); I kept paying your client all my ready cash, and I depended upon Mr. Beggs and Mr. McComish to make good on those popping lime jobs. I did not expect them to work for nothing; and that is how I came to make the assignment." He testified that he had paid the Cement Company $10,000.00 on its account, reducing it to about $30,000.00. We cannot undertake to give even an epitome of the succeeding hundred folios of Figel's testimony. He was required to bring his books into court and explain in detail everything pertaining to his accounts and to explain over and over again why he found it necessary to employ attorneys and to assign to Beggs the accounts mentioned. We have failed to discover in his answers and explanations any sound reason for holding that the conclusions reached by the learned trial judge as to the bona fides of the transaction were unsupported by sufficient evidence. Figel made no concealment of what he was doing but gave notice of the assignment to the several persons concerned before the Cement Company commenced its action. Nor can we say that evidence was wanting to justify the finding that Figel and Beggs did not conspire to defraud the Cement Company. Figel's troubles arose out of defective material purchased from that company which it had guaranteed and his efforts to settle the claims arising from its use by Figel's customers was a duty placed upon him the discharge of which the Cement Company should have encouraged rather than retarded.

In its finding that Figel was solvent at the time said assignment was made, the court doubtless took into consideration, as it very properly could, the amount of offsets to the Cement Company's claim which the evidence showed would, in all probability, be successfully urged. Figel testified that he owed no debts except this claim of the Cement Company and none were disclosed by his books. He had an established business which had some value though no price was put upon it. Aside from any good will, he showed visible assets in excess of the amount which would be due the Cement Company after it made good the losses claimed by Figel to be justly chargeable to the Cement Company. The burden of establishing his insolvency at the time of the assignment was on the Cement Company, as was the charge of fraud, and both should have been shown by clear and satisfactory evidence to have warranted a finding favorable to defendant's contention. Although the offsets to the Cement Company's claim were in some degree contingent and uncertain as to their amount, we do not think the trial court would have been justified in disregarding them in order to find Figel insolvent.

[3] It is urged that because the assignee was Figel's attorney and the assignment was for future services it is void against creditors. Some of the services were rendered before the assignment and the assignor had a right to secure the services ren

dered and to be rendered. (Morrel v. Miller, [Ore.], 43 Pac. 490, 493; In re Luce, 83 Cal. 303.) Figel's principal object by the assignment was first, to secure his attorneys for their services, which he had a right to do, and second, to have the proceeds used to settle the "popping" claims as to which both Figel and the Cement Company were liable. That any surplus should come to him would be implied had it not been so understood. The fact. that Figel thought Beggs a better collector than himself was not the motive for the assignment. Incidentally he may have so thought but we cannot see that this element in the transaction is of serious consequence.

Nor does it appear to us that any part of the assignment was void and thus, had it been true, making applicable the rule, if it is the rule, contended for, that the entire assignment is void. Figel could, as we have seen, secure his attorneys, and he had a right to make some provision to settle those harassing "popping" claims. Respondent cannot complain should there be a surplus for it is secured to respondent by its attachment.

[4] No attempt was made to assign these claims for the benefit of all creditors nor was there an assignment of all of Figel's property-not even all his outstanding accounts. It was not a general assignment such as in Sabichi v. Chase, 108 Cal. 86, cited by appellant. At most it was an assignment for the benefit of his attorneys and to pay certain creditors by way of compromising, where possible, their claims for damages. Such an assignment the law permits. (In the Matter of Muller v. Kennedy, 118 Cal. 432; Heath v. Wilson, 139 Cal. 362.) It seems to us that the evidence shows that Figel was proceeding under sections 3431 and 3432 of the Civil Code, if he had the code in mind at all, and not, as claimed by appellant, under sections 3449, et seq., and that the assignment, though preferring a creditor, was, therefore, valid. (See cases last above cited; also, Lawrence v. Neff, 41 Cal. 566; approved in Wood v. Franks, 67 Id. 32; Sanderson v. Broadwell, 82 Id. 132, and in Heath v. Wilson, supra. See, also, Roberts v. Burr, 135 Cal. 156; Crane Co. v. Dryer, 9 Cal. App. 290.)

The judgment is affirmed.

We concur:

HART, J.

BURNETT, J.

CHIPMAN, P. J.

Civil No. 1215. Third Appellate District. June 4, 1914. CHARLES R. PARKINSON CO., Plaintiff, Cross-Defendant and Respondent, v. FRED H. FIGEL, Defendant and Respondent. HENRY COWELL LIME & CEMENT CO., Defendant, Cross-Defendant and Appellant, WILL M. BEGGS, Defendant, CrossComplainant and Respondent.

Appeal from the Superior Court of Santa Clara County-John E. Richards, Judge.

For Appellant-Mastick & Partridge.

For Respondents-Rogers, Bloomingdale & Free, R. C. McComish.

By stipulation, this case was to be heard and decided on the same transcript as in the case of Parkinson Bros. Co. against the same parties, No. 1214, this day decided. Upon the authority of the judgment in that case, the judgment in this case is affirmed. CHIPMAN, P. J.

We concur:
HART, J.

BURNETT, J.

Civil No. 1240.

Third Appellate District. June 5, 1914. C. F. CARR and M. A. CARR, Plaintiffs and Appellants, v. THOMAS KING and JOHN STARRETT, Defendants and Respondents.

[1] LEASE DEMISE OF SMALL PORTION OF TRACT OF LAND-HOTEL AND SUMMER RESORT PURPOSES—AGREEMENT NOT TO "DEMISE OR LET" OTHER PORTIONS FOR LIKE PURPOSES-SALE TO OTHERS-USE FOR SAME PURPOSES-RESTRICTIVE COVENANT NOT VIOLATED.-A provision in a lease of two acres of a one thousand acre tract of land for hotel and summer resort purposes, that the lessors "will not demise or let any other part of their said premises to be used for like purposes as those herein let to the said party of the second part, and that they will not grant similar rights and privileges upon their said premises to any other persons as those granted to the said party of the second part herein", is not violated by the sale, during the existence of the lease, of portions of the one thousand acre tract to others, who proceeded to conduct the same character of business on the granted premises as that conducted by the lessees.

[2] ID. DEMISE MEANING OF WORD.-The word "demise" used as a verb means to lease for a term of years.

[3] ID.-ID.-ID.—ID.—ID.-ACTION FOR BREACH OF COVENANT— REFORMATION OF INSTRUMENT-EXCLUSION OF PAROL PROOF-ABSENCE OF ERROR. It is not error in an action for damages for the alleged breach of such a covenant to refuse to permit the plaintiff to prove by parol testimony that it was the intention and understanding that the lessors should not sell any part of the tract to other persons to be used for hotel and summer resort purposes, where there is no allegation in the complaint that any of the terms of the lease were omitted through fraud or the mistake of the parties, or either of them.

[4] ID.-CONTRACT-REVISION-PLEADING-ESSENTIAL ALLEGATIONS, -To state a case for the revision of a written instrument, under section 3399 of the Civil Code, it is incumbent upon the pleader to show, by direct averment, that, by reason of fraud practiced by one of the parties, or of the mutual mistake of the parties, or of a mistake of one of them, which the other at the time knew or suspected, there were thus omitted from the instrument certain material terms and conditions, or, in other words, that the language of the writing failed, for some reason, to express the intention of the parties.

Appeal from the Superior Court of Sonoma County-Emmet Seawell, Judge.

For Appellants-J. A. Barham, Phil Ware and J. H. S. Bartholomew.

For Respondents-Thomas J. Geary.