was performed within the time given in certain extensions; that the resolutions granting said extensions were not given within the 20 days mentioned in the contract, but were given before the work was completed, "with full knowledge that said work was not completed, and to induce said plaintiff to complete the same." formed all the conditions according to the The court found the fact to be, as alleged terms of the contract, and to the satisfac- by defendant, that the work was done un. tion of the superintendent; that the con-der the contract set forth in the answer; tract price of the work was $3,728.50. The that the work was not performed within complaint then alleges that in December, the 20 days mentioned in the contract, but 1863, that portion of Third street in question having been constructed to the satisfaction of the superintendent and committee of streets, said committee recommended the adoption of a resolution by the board of supervisors accepting said portion of Third street, "excepting the sewering necessary in Third opposite the small or subdivision streets;" that such resolution, It has been held in many cases that neiafter being passed to print and published ther the board of supervisors nor the superfive days, was adopted by the board on intendent of streets possesses the power to January 4, 1864, and signed by the mayor. grant any extensions of time for the perThe only allegation of non-payment of formance of work under such a contract, plaintiff's demand is "that on the 2d day of after the expiration of the time limited in January, 1877, plaintiff presented to said the contract, and that any order granting board of supervisors a demand for the pay- such extension is absolutely void. Beverment of said sum of $3,728.50 for said work, idge v. Livingstone, 54 Cal. 54; Fanning v. but that said board rejected and disallowed Schammel, 68 Cal. 428, 9 Pac. Rep. 427; said claim, and refused to pay the same." Dougherty v. Coffin, 69 Cal. 454, 10 Pac. Rep. The amended answer sets out, in substance, 672. It is claimed, however, by respondent that the only contract between plaintiff that the rule laid down in these cases does and the superintendent of streets for said not apply in an action brought against the work was made on October 12, 1876. A city on a contract for performing the work copy of the contract is annexed to the an- for the city; that the cases cited were beswer. By the terms of this contract the tween contractors and property owners, plaintiff was to perform the work in a good and were based upon the principle that in and workman-like manner, commencing all proceedings in invitum an assessment the same within five days, and completing cannot be imposed without a strict complithe same within twenty days after the date ance with the law. There is nothing said, of said contract, at the rate of $4.50 per however, in the cases cited, which limits the front foot for sidewalks, and $75 for each rule to actions upon assessments against crossing; and that the said superintendent abutters. The decisions in those cases seem should make an assessment to pay for the to have been based upon the idea that the same; and that the said city and county statute itself makes time the essence of conshould in no case be liable therefor, (except tracts for street work. The provision which where otherwise provided in the acts men- is construed to prohibit the extension of tioned in said contract,) or for any delin- the time of performance after the expiration quency in said assessment. It is further al- of the time named in the contract, or any leged that the plaintiff did not perform the previous extension, evidently was not inwork in a good or workman-like manner, tended simply to protect abutters, because or within the time specified in said contract, the same provision in terms applies where and that no extensions of said time were the owners themselves undertake to perever given, or permitted to be given, except form the work. St. 1871-72, p. 808. It seems certain attempted extensions, none of which to have been the intention of the legislature were given within the 20 days specified in to secure punctual completion of street the contract. The answer denies that the improvements, whoever might undertake board of supervisors ever acquired jurisdic- them, and to prevent the revival of contion to adopt a resolution accepting that tracts long after they had expired, and at portion of Third street referred to, or that a time when, under a new contract, the imthe street was ever constructed to the sat-provement might be made more cheaply. isfaction of the superintendent or said committee, or that the resolution of acceptance was ever published, or legally passed. The answer further alleges that certain specific sums, amounting to $549.40, were at various times paid and accepted by the plaintiff on an assessment which had been made by the superintendent pursuant to the contract. 66 The object is equally important whether work is to be paid for by the city or by the owners, and there is no reason why an improvement upon an unaccepted street should be completed within the time prescribed in the contract, while contractors for work on accepted streets should be permitted to perform the work at their leisure, under grants of extensions made through It is claimed by counsel for the appellant the grace or improvidence of the board of that, inasmuch as it is not shown, either supervisors. Accepted streets" are genby the pleadings or in the findings, that erally in those portions of the city in the portion of Third street in question had which traffic and travel are greatest. It ever been constructed so as to give the would seem that greater promptitude board jurisdiction to accept it, and that should be required with respect to them the alleged acceptance was partial only, the than in the case of "unaccepted streets," proceedings of the board were void, and the where a fewer number would suffer from defendant was not liable, under any circum- the effects of torn-up pavements, débris, etc. stances, for work performed on said street. The provision which forbids extensions of In view of the conclusion we have reached time after the expiration of the contract upon another point in the case, we deem it time is general and comprehensive, and apunnecessary to pass upon this question.plies to all contracts made under the act. There is nothing in the language used to limit it to any particular class of contracts, or to any particular class of streets, and we could not, without ingrafting an exception upon the statute, sustain the contention of the appellant in this regard. act have become a part of the contract, and the rights of the parties should be measured by them. It is a contract to make an assessment to pay for the proposed improvement. There is no allegation or finding that the defendant or its agents have The fact that the extension was made refused to comply with the terms of the with the knowledge that the work had not contract, and there is no finding that the been finished, and that upon the faith of assessment agreed to be made was not in such extension plaintiff expended money in fact made, as alleged in the answer. Theregood faith, as is found by the court below, fore, if there could be a recovery upon an cannot cure the invalidity of the extension. implied contract or quantum meruit, upon A knowledge that the work has not been a failure to follow the mode prescribed by completed is presumed always from the fact law, plaintiff is not entitled to recover here, of extension. There would be no necessity because, as we have seen, there are no averfor an extension of time, if the work were ments or findings of fact from which such finished. It is doubtless true, also, that implied contract could arise. It will not when work is performed under a contract do for the plaintiff to say that an assessof this sort, after the contract has expired, ment, if issued,could not have been enforced; it is done upon the faith of the extension; that the abutters could not have been combut," where there is no power or authority pelled to pay for the work. It is not entirevested by law in officers or agents, no void ly clear that such would be the fact, (San act of theirs can be cured by aid of the doc- Francisco v. Certain Real Estate, 42 Cal. 513; trine of estoppel." 2 Herm. Estop. 1365; State v. Newark, 37 N. J. Law, 424;) but, Martin v. Zellerbach, 38 Cal. 300; Thomp- assuming it to be so, before the plaintiff son v. Doaksum, 68 Cal. 593, 10 Pac. Rep. can recover on an implied contract, he must 199; Zottman v. San Francisco, 20 Cal. 96. show either that no assessment has been There are other matters fatal to a recov-made, or that, if made, there has been a failery by plaintiff herein. It was expressly ure to enforce it through no fault of his agreed by the parties to the contract that own. Judgment reversed, and cause rethe city and county should not "be liable manded for a new trial. for any portion of the expense of the work aforesaid, nor for any delinquency of the persons or property assessed," except where it is otherwise provided in the acts referred to. If the plaintiff can hold the city and county liable at all under this contract, (Supreme Court of California. June 26, 1888.) it must be upon a failure to obtain payment through the assessment; and to recover it would be necessary for him to allege and show, either that no assessment had been made, as provided in the contract, or that after the issuance of such assessment the property holders had resisted the assessment, and had not paid the amounts assessed to them. No such thing is averred, proved, or found herein. Furthermore, it is alleged in the answer that some of the lot-owners have paid their assessments, amounting in all to $549.40. Upon this issue the findings are silent. The court has found, it is true, that the city has paid no part of the $3,728.50, but there is nothing to show how much, if anything, has been paid by the abutters. We concur: BEATTY, C. J.; WORKS, J. PEOPLE V. O'LEARY. CRIMINAL LAW-PLEAS. 1. Pen. Code Cal. § 1017, provides that pleas must be oral, and entered upon the minutes in substantially the following form, if defendant fendant pleads that he has already been convicted plead a former conviction or acquittal: "The de[or acquitted] of the offense charged by the judgment of the court of," specifying the time, place, and court. If he plead once in jeopardy: "The defendant pleads that he has been once in jeopardy for the offense charged, "specifying the time, place, and court. Defendant's pleas, as entered on the which were much fuller,) were: minutes, (though his counsel offered written pleas "First, defendant pleads not guilty of the offense charged; second, a former acquittal; third, once in jeopardy." Held, that the two latter pleas were insufficient. 2. Under Pen. Code, § 1185, providing that a motion in arrest of judgment may be "founded on any defects in the indictment or information mentioned in section 1004," a bill of exceptions, preen-pared for and used only upon a motion in arrest, cannot properly contain a written plea offered by defendant; and the contents of such writing cannot be looked to in this court to aid the pleas actually entered on the minutes. If it be claimed that the plaintiff is titled to recover upon a quantum meruit, it is sufficient to say that there is nothing in the complaint and nothing in the findings to sustain a judgment for the plaintiff on any such theory. The complaint counts entirely upon the express contract, and the findings follow it. There is no averment that the work performed by plaintiff was worth anything. Plaintiff's action is founded upon a contract which shows upon its face that it was made under the provisions of the act of April 1, 1872. The contract shows upon its face that it was the intention of the parties thereto to be governed by the provisions of that act. That is to say, if defendant can be held liable at all, it is clear that the parties understood that the plaintiff was first to exhaust his remedy against the owners and their land by an assessment before the city should in any event be liable. The provisions of the allowance of a demurrer to an indictment or in- * * In bank. Appeal from superior court, Yolo county; C. H. GAROUTTE, Judge. Information against Arthur O'Leary for practicing medicine without a certificate. Defendant was convicted. The opinion of the commissioners is reported in 16 Pac. Rep. 884. Pen. Code, § 1008, provides that, "if the demurrer is allowed, the judgment. is final upon the indictment or information to present exceptions to the rulings of the demurred to, and is a bar to another pros- court, upon any other matter than that of ecution for the same offense, unless the the motion in arrest of judgment. The court, being of the opinion that the objec- written plea referred to is not properly in tion on which the demurrer is allowed may the bill of exceptions. Section 1185, Id., prebe avoided in a new indictment or informa- scribes the grounds upon which a motion tion, directs the case to be submitted to an- in arrest of judgment may be made. It is other grand jury, or directs a new informa-"founded on any defects in the indictment tion to be filed. R. Clark, for appellant. Geo. A. Johnson, Atty. Gen., for the People. PATERSON, J. The defendant was charged In the information with having practiced medicine without having first obtained a certificate authorizing him to do so as required by the "Act to regulate the practice of medicine in the state of California." Deer. Pen. Code, 625-629. The language of the information is sufficiently full and explicit in charging the offense, and we think that the court did not err in overruling the demurrer. The appeal is from the judgment only. The bill of exceptions contains none of the evidence. We cannot say, therefore, that the court erred in refusing certain instructions referred to in appellant's brief. In the former decision filed herein (16 Pac. Rep. 884) it was held that "the pleas of former acquittal and once in jeopardy, as the defendant asked to have them entered, were in substantially the form required by the Code." In support of this proposition there was quoted in the opinion a portion of the contents of a written plea offered by defendant's counsel, and it was said: "If the clerk failed to make the entry as fully as he ought to have done, the defendant cannot be made to suffer for that failure." The pleas actually entered upon the minutes of the court were as follows: "First, defendant pleads not guilty of the offense charged; second, a former acquittal; third, once in jeopardy." The jury found the defendant guilty, but did not find on the issues of former acquittal and once in jeopardy. The pleas, as entered upon the minutes, were insufficient. Section 1017, Pen. Code, prescribes the form for such pleas. If the defendant plead a former conviction or acquittal the form is as follows: "The defendant pleads that he has already been convicted [or acquitted] of the offense charged by the judgment of the court of -, [naming it,] rendered at [naming the place,] on the-day of If he plead once in jeopardy, the form is as follows: "The defendant pleads that he has been once in jeopardy for the offense charged, [specifying the time, place, and court.]" The object of these forms is plain. The people should be informed of the circumstances as to time, place, and court. None of these circumstances are named in the plea actually entered upon the minutes of the court below; and we cannot resort to the written document, which, it is claimed, was filed at the time the plea was entered in aid of the plea actually entered. Section 1017, supra, provides that "every plea must be oral, and entered upon the minutes of the court in substantially the following form: The bill of exceptions in the record before us was prepared for and used only upon the motion in arrest of judgment. The bill of exceptions does not purport to be a bill prepared or information mentioned in section 1004." There was no error in the ruling of the court below upon the defendant's motion in arrest of judgment, and, the pleas referred to not being in the form required by the Code, it was not necessary for the jury to find on them. We see no merit in the contention that the defendant should have been discharged from custody because the court below failed to render an opinion that the objection to the information to which the demurrer had been sustained could be overcome by filing another. The court directed the district attorney to file a new information, and this was a sufficient compliance with section 1008 of the Penal Code. It was not said in People v. Jordan, 63 Cal. 219, that the court must, in addition to directing the district attorney to file a new information, render an opinion that the objection to the information could be overcome by filing another. Judgment and order affirmed. We concur: SEARLS, C. J.; MCFARLAND, J.; THORNTON, J. (80 Cal. 118) SIMONS V. MILLS. (Nos. 13,082, 13,083.) (Supreme Court of California. Aug. 2, 1889.) ARBITRATION AND AWARD. 1. Under a submission to arbitrators of all ques tions in difference between the parties concerning been engaged as partners, so that all rights of acthe business of brick-making, in which they had tion arising therefrom may be conclusively settled, the arbitrators have power to determine what amount of the uncollected assets are due to each party. 2. It is no objection to an award that the arbitrators took advice relative to the questions before them if they decided on their own judgment. In bank. Appeals from superior court, Los Angeles county; A. W. HUTTON, Judge. A. N. Metcalfe and W. T. Williams, for appellants. M. C. Hester, for respondent. THORNTON, J. Appeal from a judgment entered on an award of arbitrators, and also from an order denying a motion to vacate the award. We see no error in the proceeding brought here to be reviewed on appeal. The submission provided that it should be entered as an order of court. The matters were such as could be submitted to arbitration under the statute. The court below had jurisdiction of the proceeding. No objection appears to have been made in the court below that the submission was not entered as required by law, and therefore should not be considered here. The motion to set aside the award was made on the grounds of misconduct of the arbitrators, and that the arbitrators exceeded their powers. Painter was not an arbitrator. Though the arbitrators consulted with him, they acted on their own judgment in making their determination. EVIDENCE. 79 Cal. 633 This clearly appears from the affidavits of authority, as existing under the terms of the arbitrators. The question presented the partnership agreement, and properly as to the determination by the arbitrators directs that after Mills has collected the is similar to that of the verdict of a jury bills referred to Simons will be entitled to where it is agreed that each juror shall set two-fifths and Mills to three-fifths of such down in figures what shall be the amount moneys; in other words, that when Mills of their verdict, and divide the whole sum collects the moneys referred to he will owe by 12 to fix the amount, without agreeing Simons two-fifths of such collections, and to be bound by it, then afterwards agree- he (Mills) will be entitled to retain threeing to determine the same upon considera- fifths, expense of collection to be deducted. tion of the evidence. A verdict so found This division of the moneys to be realized has been held to be good. Wilson v. Berry-on collections made is also in accordance man, 5 Cal. 45. with the terms of the agreement of partWe do not think the arbitrators exceeded nership. The amount due by Mills to Simtheir powers under the submission. The ons when he has made the collections rematters referred to the determination of ferred to was thus determined, and correctthe arbitrators related to a certain differ-y determined. We think this was within ence which had arisen between the parties, the submission. We find no error in the the powers conferred on the arbitrators by growing out of partnership transactions in making and selling bricks. The articles records, and the judgment in one case, (13,of copartnership were made part of the 082,) and the order denying the motion to submission, and were attached to it as an vacate the award in the other case, (13,083,) exhibit. The submission provided that are affirmed. Ordered accordingly. the arbitrators "shall decide upon the We concur: SHARPSTEIN, J.; WORKS, J.; amounts of money that each party hereto PATERSON, J.; MCFARLAND, J. may owe the other party hereto at the date of this submission, arising or becoming due upon any of the transactions, acts, SHARON V. SHARON. (No. 11,991.) or omissions referred to in the preambles (Supreme Court of California. July 17, 1889.) to this submission, and, having found such amounts, shall therefrom arrive at their APPEAL-RECORD-RES ADJUDICATA-MARRIAGEaward, and said award may be entered as a judgment," etc. It is declared in the sub- 1. Where certain exhibits, claimed to have been mission that the reference to arbitrators is used in evidence, are referred to in the body of the made "in order that all matters in differ statement on motion for new trial, as, "Plaintiff's ence now existing between" the parties, statement," and such exhibits are set out in an apExhibit, No.-, [giving the number,] see end of "in reference to said brick-making busi-pendix to such statement, properly numbered, preness," and " that all rights of action of each ceded by the recital, "The following are the exof said parties against the other arising hibits offered and read in evidence on behalf of the out of said brick business may be conclu- plaintiff, and mentioned in the foregoing statesively settled." This the arbitrators pro-ment," they are thereby sufficiently identified and ceeded to do, and determined, first, that of incorporated in, and made a part of, such statethe profits Simons had received in money, in excess of his share, $1,926.73, for which sum Mills was entitled to a judgment against him. There were bills due the concern, not collected at the date of the submission, a list of which is appended to the award, as to which the arbitrators made the following finding: "That there are still assets existing under the terms of said agreement in the shape of 'bills receivable,' which are due to said Mills as trustee for said Simons and Mills under the terms of said agreement, and of which, after collections are made and expenses of collection paid, Simons will be entitled to two-fifths, and Mills to three-fifths." We are of opinion that the arbitrators were called in, under the terms of the submission, to determine what amounts were due to each of the uncollected assets, styled in the above finding 5. Where an exhibit is omitted from the state"bills receivable." Under the articles of ment, and no objection is made, and the attorpartnership all moneys received on account The foregoing statement agreed to by us," and neys for respondent indorse on the statement, of the business of brick-making were to be the same is thereupon signed by the judge, the paid to and disbursed by the parties of the objection that such exhibits have been omitted first part. These parties of the first part is waived, and such omission presents no cause were originally Mills and one Rosenberger. in this court for striking out the statement, or Mills acquired by purchase Rosenberger's any part of it. interest. and Mills then represented the par- 6. Where counsel stipulate that all deposities of the first part. The above finding of tions on file may be "read and referred to on the the award is objected to by counsel for Si-hearing of defendant's motion for a new trial mons as giving Mills the authority to col- herein as part of the foregoing statement," and the same "shall be printed in the transcript on lect the uncollected assets. But this view appeal," and "form a part of the statement," a is erroneous. Mills had that authority un- strict compliance with the requirements of the der the articles, and the statement in the statute as to the manner of making them parts finding is a reference to and recital of that of such statement is waived. ment. 2. The certificate of the judge that "the foregoing statement on motion for a new trial has been settled and allowed by me" includes and authenticates such exhibits, as a part of such statement, although the certificate is attached to the body of the statement and precedes the exhibits. Kimball V. Semple, 31 Cal. 657; People v. Bartlett, 40 Cal. 146: Bush v. Taylor, 45 Cal. 112; Thompson v. Patterson, 54 Cal. 542, distinguished on this point. 3. Where such exhibits appear to have been included in the statement, in the manner above stated, the fact that some of them have been omitted from the transcript is not ground for striking out the whole statement. The remedy of the responden is to suggest a diminution of the record, and have them brought up. THORNTON, J., dissenting. 4. Depositions, being on file, may be made part of the statement, by calling for them by the words "here insert" at the proper place; and when the transcript is made up they should be copied, in full, where called for." 7. The point that the subject-matter of this action has been adjudicated and determined against the respondent by a United States circuit court cannot be presented for the first time in this court by the presentation of the proceedings and judgment of said court, where it appears that, conceding said last-named judgment is paramount to that of the court below, both of said courts had jurisdiction of the subject-matter and the parties, and that, without the pendency of the action in the federal court being brought to its attention, the court below proceeded to final judgment. 8. The fact that two courts of concurrent jurisdiction render judgments antagonistic to each other, involving the same subject-matter, does not prove that the judgment of either is void, or, necessarily, that either is erroneous, but, the question being which shall prevail, the question may be raised when an attempt is made to enforce the judgment in the court below. 9. Whether the federal court had, or had not, jurisdiction, and the question as to which of the judgments referred to should prevail, not decided. 10. Where two appeals are taken in the same case,-one from the judgment, and the other from the order denying a new trial,-a judgment of this court on the appeal from the judgment, which has not been acted upon by the court below, or the parties, does not become the law of the case, so far as to affect the right or power of this court to determine any and all questions presented on the appeal from the order denying a new trial, to the extent, if necessary, of modifying the former decision. THORNTON, J., dissenting. 11. Where there are two such appeals, the whole case must be held to be under the control of this court until the whole is disposed of and the cause remanded for further proceedings in the court below. THORNTON, J., dissenting. 12. Where there is a substantial conflict of evidence, the findings of the court below will not be disturbed on the ground that such findings are not sustained by the evidence. 13. A finding that the plaintiff and defendant lived and cohabited together in a way usual with married people, and that they assumed towards each other marital rights, duties, and obligations, is not sustained by evidence that after executing a contract of marriage they secretly occupied the same bed, concealed the fact that such a contract had been executed, or that they were husband and wife, and held themselves out to the public as single and unmarried people, occupied separate dwelling places, had no common home, and in all things conducted themselves towards the public as unmarried people. THORNTON, J., dissents on ground of forher adjudication. 14. The mere fact that parties who have agreed to become husband and wife thereafter have sexual intercourse is not sufficient, of itself, to show a consummation of the marriage, or that they have assumed towards each other marital rights, duties, and obligations, within the meaning of section 55 of the Civil Code. THORNTON, J., dissents on ground of former adjudication. 15. Consent to marry is not enough under section of the Civil Code. It must be followed by solemnization or a mutual assumption of marital rights, duties, and obligations. Cohabitation is a "living together as husband and wife," and will amount to a consummation or mutual assumption of marital rights, duties, and obligations, but sexual intercourse in the manner usual with man and mistress, and without living together as husband and wife, will not amount to such consummation. THORNTON, J., dissents on ground of former adju dication. 16. Whether, giving full credit to it, the evidence proves a mutual assumption by the parties of marital rights, duties, and obligations, is a question of law, and not a question of the weight of evidence. 17. The validity of a written marriage contract otherwise valid as a consent to marry, is not affected by a covenant therein by one of the parties that the contents of the writing and its existence shall be kept secret for a certain time after its execution, unless the other party shall see fit to make it known. 18. Evidence on the part of the plaintiff that she had, long prior to any difficulty between herself and the defendant, shown to a third party what she alleged to have been a marriage contract between them, and which the defendant claimed to have been a forgery, was competent, as tending to show its genuineness. 19. A witness cannot be impeached by evidence of particular wrongful acts, nor is it proper to question the witness as to such matters on crossexamination. THORNTON, J., reserves his opinion. 20. But where such a question is asked, but no answer is required or given, no available error is committed. 21. Where a question as to a particular wrongful act is asked, and objected to, and the court states to counsel what he may ask, and he proceeds to ask further questions as directed by the court, but within the objection already made, a further objection to each of the questions so askeȧ is not necessary to raise the question of the competency or relevancy of the evidence in this court. 22. Whether the question put is pertinent or not, the witness may decline to answer on the ground that to do so would tend to criminate him; but, where the question is not pertinent, the party introducing him may object thereto, and his objection should be sustained, whether the witness objects to answering or not. THORNTON, J., reserves his opinion. 23. The testimony of a witness as to conversations with a party to an action cannot be excluded on the ground that the witness was an attorney at law, and the communication was confidential, unless it appears that he was the attorney for the party, and the communication was made in the course of professional employment. 24. And it must appear that the communication was in fact confidential, or at least that it was so regarded at the time by the party making it. 25. The burden is upon the party seeking to suppress the evidence to show that it is within the terms of the statute relating to confidential and privileged communications. 26. The presumption is that all communications between attorney and client are confidential, but this presumption may be rebutted. 27. Where the witness has testified, and his testimony is stricken out, on motion, on the ground that the same relates to communications that were confidential, the question as to the correctness of such ruling is properly preserved by an exception thereto, and may be presented to this court by assigning the same as an error of law. 28. That a witness who has testified to a conversation is not positive that the person with whom he had such conversation was the party, but gives it as his opinion that she was, his testimony cannot be stricken out on the ground that he has not identified the person. Whether he has or not goes to the weight to be given to the evidence, and not to its competency or relevancy. 29. Where the plaintiff had testified that during a certain time she was the wife of the defendant, evidence of a statement by a third party, in her presence and hearing, during said time, that she, the plaintiff, desired to bring a suit against the defendant for breach of promise of marriage, was competent and material. (Syllabus by the Court.) In bank. Appeal from superior court, city and county of San Francisco; J. F. SULLIVAN, Judge. William Sharon, since deceased, for a decree Action by Sarah Althea Sharon against declaring valid an alleged marriage, by contract, without solemnization, between defendant and plaintiff; for divorce, and a share of the community property. The court below declared the contract valid, and granted the divorce and a share of the community property. From an order denying defendant's motion for a new trial, Frederick W. Sharon, as executor, appeals. For former decisions, see 7 Pac. Rep. 456, 635, |