an action to which he was not a party. His right to possession by virtue of his title must be made the issue in an action of ejectment, and be determined, before it can be said to be an adjudication. We recommend that so much of the order of the trial court that undertakes to determine his right of possession be reversed.

PER CURIAM. It is so ordered; all the justices concurring.

(84 Cal. 201)

GRANGERS' BUSINESS ASS'N OF CALIFORNIA v. CLARK. (No. 12,677.)

(Supreme Court of California. May 31, 1890.) PLEADING-REPLY-EVIDENCE-ATTORNEY'S FEE.

1. Defendant secured an indebtedness to plaintiff by a mortgage on real estate and a chattel mortgage on growing wheat. Thereafter plaintiff loaned other money to defendant. The wheat when harvested was placed in a warehouse, and receipts therefor obtained in plaintiff's name, and delivered to him. He sold the wheat, and applied the proceeds to the unsecured debt. In an action to foreclose the real estate mortgage, defendant answered that the crop mortgage was given at the same time to secure the same debt, and that, in accordance with its terms, the wheat was harvested and delivered to plaintiff, to be applied on the debt secured thereby. Held that, under Code Civil Proc. Cal. § 462, providing that "the statement of any new matter in the answer, in avoidance or constituting a defense or counter-claim, must, on the trial, be deemed controverted by the opposite party," plaintiff could introduce evidence of a verbal agreement with defendant that the wheat, when harvested and delivered to plaintiff, should be held as security for the new indebtedness, and the proceeds thereof applied, first, to such indebtedness, and then to the mortgage debt, though this was not pleaded.

2. As the verbal agreement related to the wheat "when it should be harvested and deliv

" the

ered," and Civil Code Cal. § 2955, specifying what personal property may be mortgaged, does not mention grain except as "growing crops, agreement was not the creation of a verbal mortgage, in violation of section 2922.

3. It was competent for the parties to agree that the wheat should be diverted from the satisfaction of the mortgage debt, and converted into a pledge to secure the subsequent indebtedness.

4. A mortgage provided for an attorney's fee, in case of foreclosure, not exceeding $500, and 10 per cent. on the amount found due. The mortgage was originally for $5,135, but about $1,300 had been paid on it. The court allowed $1,000. Held that, under act Cal. March 27, 1874, § 1, (St. 1873-74, p. 707,) providing that the attorney's fee shall be fixed by the court in which the proceedings of foreclosure are had, any stipulation in the mortgage to the contrary notwithstanding, $600 being a reasonable amount, the sum allowed would be reduced $400.

Commissioners' decision. Department 1. Appeal from superior court, Alameda county; W. E. GREENE, Judge.

Mich. Mullany and Wm. Grant, for appellant. Estee, Wilson & McCutchen, for the State.

GIBSON, C. Defendant appeals from a judgment and order denying a new trial in an action to foreclose a mortgage on real estate.

The defendant, on the 19th of March, 1880, being indebted to the plaintiff corporation in the sum of $5,135, for money loaned to and expended for him, gave to plaintiff

his note for that amount, payable one day after date, bearing interest at the rate of 1 per cent. per month from date, payable quarterly, and, if not so paid, to be compounded quarterly. To secure this note he executed and delivered to plaintiff, on the same date with that of the note, two mortgages,—one upon 160 acres of land in Alameda county, and the other a chattel mortgage upon a certain crop of wheat then growing upon about 480 acres of land, also in the same county. At divers times from the same day this transaction was had until July 1, 1881, the plaintiff loaned to and advanced for defendant other amounts of money, aggregating the sum of $3,407.06. Previous to the execution of the note and mortgages, the defendant had delivered a lot of hay, worth $703, to the plaintiff that it had not accounted for to him, and it was agreed that the amount should be credited upon the note. Plaintiff, however, first deducted $30 that had been advanced to the defendant, and credited the remainder upon the note. The crop of wheat described in the chattel mortgage was by the defendant harvested prior to October, 1880, and placed in a warehouse at Livermore, and receipts therefor obtained in the name of the plaintiff, which were delivered to it. On a sale of this wheat by the plaintiff, on July 1, 1881, it realized the sum of $4,061.99. This amount the plaintiff applied to the payment of defendant's indebtedness of $3,407.06, which had, as above shown, accrued after the making of the note and mortgages, and the overplus was applied upon the said note. Defendant contends that the whole amount realized from the wheat should have been applied upon the note. This raises the principal question, upon the solution of which the case depends. Plaintiff, in its complaint, seeks to foreclose the mortgage upon the real estate, and admits therein that a certain amount has been paid upon the note, which is secured by the mortgage. The answer of defendant admits the making of the note and mortgage sued upon, and avers that the crop mortgage, above mentioned, was also made at the same time to secure the same note; and that in accordance with its terms the crop of wheat covered by it was duly harvested and delivered to plaintiff, to be applied to the payment of the note; and that the load of hay above mentioned was delivered to plaintiff for the same purpose.

Thus we perceive that the main issue tendered is whether the note was paid. To meet the affirmative matter set up in defendant's answer the plaintiff interposed a replication, which traverses such new matter, and, among other things, avers that the proceeds of the sale of the hay and wheat were applied to the payment of the loans and advances other than those included in the note, according to the agreement of the parties. This reply was unnecessary, and has no place in our system of pleading, because the Code of Civil Procedure provides, in section 462, that "the statement of any new matter in the answer, in avoid

ance or constituting a defense or counterclaim, must, on the trial, be deemed controverted by the opposite party." Thus in Curtiss v. Sprague, 49 Cal. 301, this court, with respect to the same provision in the practice act said: "The counter-claim was barred by the statute of limitations, and. under the provisions of the practice act, the plaintiff must be considered to have pleaded the statute by way of replication to the counterclaim." So, in the present case, the plaintiff must be deemed to have pleaded the verbal agreement between itself and defendant, whereby the grain covered by the chattel mortgage, when the same was harvested and delivered to it, should be held as security for the advances made, and to be made, to and for the defendant, and the proceeds of the sale of the grain should he applied, first, to the payment of such advances, and the remainder, if any, to the payment of the note; and it was proper for the court to receive evidence in support of such agreement. Although the two mortgages are separate and distinct from each other, they were given for the sole purpose of securing the same note, a copy of which is set forth in each of them. This is found as a fact by the court, and is not disputed; and it is also found that at or about the time the note and mortgages were made, and at different times until July 1, 1881, "the defendant orally, but not in writing, promised and agreed, in consideration of said advances and loans being made, and to be made, from time to time by plaintiff to defendant, that the plaintiff should have and hold, as fast as the same could be delivered, all produce raised by the defendant, including the wheat mentioned in defendant's answer, as security for the payment of all moneys so loaned, paid out, and advanced by plaintiff to defendant in excess of the note described in the complaint;" and that all the proceeds of the sale of such produce should be applied by plaintiff to the payment of moneys advanced, and the remainder, if any, to the payment of the note.

The evidence in support of the finding as to the verbal agreement is not as satisfactory as it might be, but the, testimony of the defendant to the contrary presents such a conflict as to preclude us, under the settled rule in this regard, from disturbing it. But it is earnestly urged by counsel for appellant that, even if the evidence relevant to the issue involving the verbal agreement was properly received, and is sufficient to support the finding respecting it, such an agreement in effect created a chattel mortgage contrary to section 2922 of the Civil Code, which provides that "a mortgage can be created, renewed, or extended only by writing executed with the formalities required in the case of a grant of real property." A complete answer to this is, the finding shows the verbal agreement related to the grain, when it should be harvested and delivered, and such grain could

not be made the subject of a chattel mortgage, under section 2955 of the Civil Code, in which the only personal property capable of being mortgaged is specified. But we think it was perfectly competent for them by agreement to divert the grain from the satisfaction of the debt for which it was first agreed, in the chattel mortgage, it should be security for, and convert it into a pledge to secure the payment of defendant's other and subsequent indebtedness. This, it is true, affected the written mortgage, but, instead of it being modified or changed by such verbal agreement, it was extinguished when such agreement was executed.

The mortgage on the real estate provides that, in the event of a suit being brought to foreclose the mortgage, an attorney's fee, not exceeding $500, and 10 per cent. upon the amount found due to plaintiff on the note and mortgage, shall be allowed. At the trial the counsel for the respective parties agreed to leave the amount of such fee to the court, and the court thereupon found and allowed $1,000 as a reasonable attorney's fee. Defendant's counsel now claim-First, that no attorney's fee should be allowed in view of an offer they made to permit judgment to pass against the defendant for the amount due upon the note after deducting the payments claimed to have been made thereon; and, second, that the amount allowed is unreasonable and excessive. The offer referred to was made upon the theory that plaintiff could not prove and recover upon the verbal agreement above mentioned, which, as we have seen, it was properly permitted to do. In view of the record here, we are constrained to say that the amount fixed by the court appears to be too great, and that $600 would, in our opinion, be a fair and reasonable compensation for plaintiff's counsel. The stipulation in the mortgage is not controlling, as the law provides: “In all cases of foreclosure of mortgage the attorney's fee shall be fixed by the court in which the proceedings of foreclosure are had; any stipulation in said mortgage to the contrary notwithstanding." Act March 27, 1874, § 1, St. 1878-74, p. 707. And when on appeal the sum fixed by the trial court exceeds a reasonable amount, it will be corrected by this court. Mascarel v. Raffour, 51 Cal. 242. We therefore advise that the judgment be modified by deducting $400 from the sum allowed therein as an attorney's fee, and, as thus modified, it and the order denying a new trial be affirmed.

We concur: BELCHER, C. C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is modified by deducting $400 from the sum allowed therein as an attorney's fee, and, as thus modified, it and the order denying a new trial are affirmed.

(Supreme Court of California. May 2, 1890.) APPEAL OBJECTIONS NOT RAISED BELOW.

Where, with plaintiff's consent, defendant in divorce files an amended cross-complaint setting up adultery committed by plaintiff since the beginning of the action, plaintiff, after going to trial on the issues raised thereby, cannot object for the first

time on appeal that the amended cross-complaint contained no prayer for affirmative relief.

Department 2. Appeal from superior court, city and county of San Francisco; F. W LAWLER, Judge.

Fisher Ames and George D. Collins, for арpellant. William C. Flint and F. Wm. Reade, for respondent.

MCFARLAND, J. Action for divorce. Judgment for defendant, and plaintiff appeals from the judgment upon the judgment roll alone. The ground of divorce set up in the complaint was extreme cruelty. Defendant filed an "answer and cross-complaint" in which he denied the alleged acts of cruelty, and set up affirmatively extreme cruelty by plaintiff and prayed for a divorce on the latter ground. Plaintiff answered the cross-complaint, denying its averments as to cruelty. The amended complaint was filed September 26, 1886. Afterward, on January 10, 1887, defendant, "by consent of plaintiff, and by leave of court," filed "amendment to answer and supplemental cross-complaint," in which he averred that, "on divers days and times between the 3d day of September, 1886, and the 1st day of January, 1887, and particularly on the 30th day of November, 1886, the plaintiff herein committed adultery with" a certain person named at a certain named place. The plaintiff made no objection whatever to this last-named pleading, but answered it, calling it in her answer “Defendant's Supplemental Cross-Complaint," and denied the averments of adultery. wards plaintiff herself filed a supplemental complaint, averring additional acts of cruelty committed since the commencement of the action, viz., on January 13, 1887. Defendant answered, denying its averments. parties went to trial on the issues raised by these last-named pleadings, as well as upon other issues; and the court found against all the averments of cruelty, but found, also, "that, on divers days and times between the 3d day of September, 1886, and the 1st day January, 1887, and particularly on the 30th day of November, 1886, the plaintiff committed adultery with" the person and at the place stated in said so-called "supplemental cross-complaint.” No motion for a new trial was made, no evidence is brought here by bill of exceptions, and the record does not show any objection or exception whatever.

After

The

Appellant now asks a reversal of the judgment on the sole ground that the so-called "supplemental cross-complaint" of defendant was insufficient; that it must be regarded as only a defense; that it sets up a new cause of action accruing after the commencement of

the action; that there is no prayer for relief, etc. But the case comes clearly within the rule that, where a case is tried upon the theory that the issues are properly joined in the trial court, and no objection or exception is taken there, it is too late to raise such objections here. Hiatt v. Board, 65 Cal. 481, 4 Pac. Rep. 464; Spiers v. Duane, 54 Cal. 176; Cave v. Crafts, 53 Cal. 141; Van Maren v. Johnson, 15 Cal. 313. The judgment is affirmed.

PEOPLE 2. RAISCHKE. (No. 20,518.) (Supreme Court of California. March 31, 1890.) LARCENY-WEIGHT OF EVIDENCE.

On a prosecution for larceny the evidence was that defendant, by previous arrangement with two persons alleged to be his partners, tried to buy the goods; that the owner was willing to sell, provided the title should remain in him until they were paid for, and that, with this understanding, they were delivered to the alleged partners, defendant having at the commencement of the negotiations proposed to purchase the goods, to be used in a legitimate business to be carried on by the three jointly; that the goods were first taken to the premises where the three were represented to, and supposed by, the owner to have gone into business; that the owner took a note for the price from the other two; that thereafter some of the goods were found buried on defendant's land, and secreted in various places on his premises, after he had denied having any of the goods there; that defendant did not deny that the goods were to remain the property of the owner until they were paid for; that an expressman was hired by said pretended partners to, and did, take certain goods, similar, at least, to those in question, from the place where they were first delivered to defendant's place at 5 o'clock in the morning. Held, that a verdict of guilty would not be disturbed.

FOOTE, C. The defendant was convicted of grand larceny. From the judgment rendered against him, and an order denying a new trial, he appeals. The case has been here before. 73 Cal. 378, 15 Pac. Rep. 13. The defendant was then awarded a new trial because of an erroneous instruction granted by the court below. It was contended on that appeal that there was no evidence of any larceny of the goods charged to have been stolen by the defendant, and the same point is made now. Upon that contention the appellate court determined adversely to the defendant.

We have carefully examined and compared the evidence as set out in the transcript of both appeals, and find no material difference, so far as the main points of the evidence are affected. That which was testified to by Bernard, the owner of the goods alleged to have been taken and stolen, as it appears in the present record, is not so full in some particulars as on the former trial. Bernard was alive at the time, but died before the second

trial was had; and his evidence was introduced at the later period in the form of a long hand transcription of the reporter's notes of his evidence taken before the police court on the preliminary examination of the defendant, properly certified and filed. This evidence indicates that the defendant, by preconcerted arrangement with two other persons claimed to be his partners, endeavored to buy the goods in question in the first instance; that Bernard, the owner, was willing to sell them, provided the title to the articles should remain, as it then was, vested in him, until they were paid for, and with this understanding he delivered the goods to the two other persons, Lewandowsky and Furlong, the alleged partners of the defendant, the latter having in the beginning of the negotiation proposed to purchase the goods to be used, as he represented, in a legitimate business to be carried on by the three jointly; that the goods were first taken to the premises whereon these three persons were together represented to, and supposed by, Bernard, to have set themselves up in business; and that Bernard took a note for the price of the goods from Lewandowsky and Furlong. A short time after this delivery of the goods, having his suspicions aroused to the effect that a swindle had been perpetrated upon him, Bernard sought the aid of the police with a search-warrant; and, after Raischke, the defendant, had denied having any of the goods on his premises, some of them were found thereon, secreted in various places,-a portion of them in a potato-patch, buried 9 or 10 inches in the earth. This witness was corroborated by his daughter in his statement that he told the defendant the title to the property remained in him until it should be paid for, and by Mr. Rogers, a police officer; the last witness further stating that, when he and Bernard went to Raischke's to hunt for the goods, Bernard said: "Raischke, I told you the goods were mine until you paid for them; and I haven't got my goods, and you say you haven't got them. You took them away." "He told him a dozen times that he continned to own the goods. Raischke never denied anything of the kind, except that he hadn't the goods, or any of them, about the premises. O'Brien, an expressman, testified to having been employed by Furlong, one of the alleged partners of the defendant, to haul away from the place of business of the defendants Furlong and Lewandowsky certain articles of glassware, etc., which were similar to those obtained from Bernard; that he took these things, "boxed up," to Raischke's place, about 5 o'clock in the morning.

The appellate court on the former appeal (73 Cal. 382, 15 Pac. Rep. 14,) laid down the rule of law as applicable to cases of larceny of the kind of which this is contended by the people to be in this language: "That where, notwithstanding a delivery by the owner in

fact, the legal possession remains exclusively in him, larceny may be committed exactly the same as if no delivery had been made. (2) That where, by the delivery, a special property, and consequently a legal possession, apart from any felonious intent, would be transferred, if it be found that such delivery were fraudulently procured, with a felonious intent to convert the property so acquired, then, also, the taking amounts to larceny." The evidence quoted, as well as some circumstances in the record, as we think, tend to show that the defendant and his two alleged partners bought these goods under pretense that they intended to use them in a legitimate business; that they did not intend so to use, or in good faith to pay for, them, but, after taking them to the place where they were claiming to carry on business, they had them removed to the premises of Raischke, who converted them to his use with the intent, feloniously, to deprive the owner of them. Under these circumstances, no reason is apparent for disturbing the verdict of the jury. We therefore advise that the judgment and order be affirmed.

We concur: BELCHER, C. C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(83 Cal. 618)

LANGAN d. LANGAN. (No. 13,620.) (Supreme Court of California. April 30, 1890.) In bank. Appeal from superior court, city and county of San Fransisco; WALTER H. LEVY, Judge.

Wickliffe Matthews, for appellant. John E. Lundstrom and Manuel Eyre, for respondent.

MCFARLAND, J. The record in this case shows that an action for divorce between the parties herein is pending and undetermined in the superior court; that the court made an order that defendant pay to plaintiff $25 per month alimony; and that afterwards, the court made another order that defendant pay to plaintiff $150 counsel fees. Defendant takes a separate appeal from each of said orders, and respondent moves to dismiss the appeal from the order allowing the counsel fees. (As respondent does not move to dismiss the appeal from the order allowing alimony, that question is not before us.) The appeal from the order allowing $150 counse! fees must be dismissed, because the amount in dispute is too small to give the court jurisdiction. The appeal from the order allowing counsel fees is dismissed.

We concur: BEATTY, C. J.; Fox, J.; SHARPSTEIN, J.; PATERSON, J.; THORNTON, J.