Where the contract is silent as to which party shall collect cattle for selection, parol evidence that the vendors were to do so is admissible. Id. Evidence necessary to the full and fair enforcement of a written contract may be given. Id. The rule that a written contract expressing the entire agreement in which there is no latent ambiguity, is the sole expositor of the intention of the parties, and that in the absence of fraud, parol evidence cannot be received to "contradict, add to, or vary its terms," is subject to exception. Id. Parol evidence is admissible to show that a note made payable to the cashier, "is owned by the bank.' Walker v. Popper, 2 U. 96. Parol evidence is admissible to show what the figures in the columns headed "valuation," on the assessment roll, signify. Crismon v. Reich, 2 U. 111. Parol evidence is admissible to show a deed absolute on its face to be a mortgage. Wasatch M'g Co. v. Jennings, 5 U. 243; 15 P. 65. Parol testimony will not be received to contradict the official record that a statute which appears to have been duly passed was approved after the period limited by law for the session of the legislature had expired. People, ex rel. Haller, v. Clayton, 5 U. 598; 18 P. 628. Parol evidence of certain proceedings is admissible notwithstanding the fact that unauthorized records thereof had been kept. Peay v. Salt Lake City, 11 U. 331; 40 P. 206. Where a contract of sale of cattle provided that the parties of the first part would sell, transfer. and deliver to the parties of the second part all of their herds of cattle excepting one thousand head of steers reserved and theretofore contracted to be sold, parol evidence is admissible to show that the one thousand head of steers so reserved and theretofore sold were two years old and upwards. Buford v. Lonergan, 6 U. 301; 22 P. 164. Affirmed, Lonergan v. Buford, 148 U. S. 581. Where the question is whether a certain signed memorandum of prices was the contract, it was error to exclude testimony as to the circumstances under which such memorandum was executed. Hawley v. Corey, 9 U. 175; 33 P. 695. When the meaning of an expression in a written contract is doubtful, it is proper to place the facts in view of the parties when making the contract before the court when construing it. Bartels v. Brain, 13 U. 150; 44 P. 715. An entry on the record discharging and satisfying a mortgage is a mere receipt explainable by parol evidence. Thompson v. Avery, 11 U. 214; 39 P. 829. In an action upon a promissory note against an indorser, parol evidence is admissible to prove that the contract of indorsement was never consummated. Gregg v. Groesbeck, 11 U. 310; 40 P. 202. Evidence as to the condition, situation, and adaptation of land for the particular use, and that it had no rental value for any other purpose, and the understanding of the parties by their declarations in the form of a verbal agreement, is admissible to show the intent of the parties in the use in the lease of the phrase, "reasonable use." Bartels v. Brain, 13 U. 162; 44 P. 715. EXPERT TESTIMONY. Expert testimony proper is given on questions of science, skill, or art, by persons educated or experienced and deemed competent to speak concerning the matters at issue; but on matters which are open to common observation, and in regard to which a jury are supposed to have knowledge or experience, the witness must state the facts only and not give opinions. Kahn v. Old Tel. M. Co., 2 U. 174. Under the facts, held that expert testimony was admissible upon the question of the continuity of a vein. Kahn v. Old Telegraph M. Co., 2 U. 174. Testimony of experts as to their opinion arising from a comparison of the handwriting in dispute with other writings admitted to be genuine, already in evidence for other purposes, is admissible. Durnell v. Sowden, 5 U. 216; 14 P. 334. An expert may testify as to his opinion formed from a comparison of signatures admitted to be genuine, whether such genuine signatures are in evidence for other purposes or not. Tucker v. Kellogg, 8 U. 11; 28 P. 870. The plaintiff in a suit for personal injury was asked, "State whether or not in your opinion as an expert railroad man, if the car from which you fell had been thoroughly examined at certain places by the defendant through its proper employees. the defect of the round which gave way would have been discovered?" and was permitted to answer; held, error as permitting the expert to make his own facts upon which to base his opinion. Allen v. U. P. Ry. Co., 7 U. 239; 26 P. 297. One need not be an expert to testify to the speed of a train of cars. Chipman v. U. P. Ry. Co., 12 U. 68; 41 P. 562. Whether a witness is shown to be qualified to testify as to matters of opinion is a preliminary question for the trial judge to pass upon, and his discretion is conclusive unless manifestly erroneous, and the running and management of locomotives is so far outside of the experience and know!edge of ordinary jurors as to render expert testimony proper and admissible. Wright v. Southern Pacific Co., 14 U. 383; 49 P. 309. WEIGHT AND SUFFICIENCY. Where title is traced through corporations, which are not parties to the record and with which defendant has no privity, proof of their existence as corporations de facto by their articles of incorporation duly made, is sufficient prima facie. Tarpey v. Deseret Salt Company, 5 U. 494; 17 P. 631. Where the evidence showed that defendant had promised in writing to pay plaintiffs their account, but not stating what account, and there was but one account; held, that the account was sufficiently identified. Gruenberg v. Buhring, 5 U. 414; 16 P. 486. In an action for damages for a breach of contract not to engage in the hotel business, evidence of a loss of customers without specifying the individuals and general damage in decrease of profits, shows general damages. Lashus v. Chamberlain, 6 U. 355; 24 P. 188. While the request to charge that positive evidence is of more weight than negative evidence might have been given without impropriety, yet under the circumstances of this case the court held it was not error to refuse such charge. Olsen v. O. S. L. & U. N. Ry., 9 U. 129; 33 P. 623. Where witnesses, after a lapse of years, testify to admissions made by a person since deceased res pecting matters in which witness had no special interest, such testimony is weak and will be closely scrutinized. Chambers v. Emery, 13 U. 374; 45 P. 3480. Rules of evidence applicable to jury trials applicable to others. The provisions contained in this part of the code respecting the [C. L. § 3980. evidence on a trial before a jury, are equally applicable on the trial of a question of fact before a court, referee, or other officer. Cal. C. Civ. P. 2103. General provisions applicable to trial before referee, ? 3177. 3481. All referees, etc., must meet, but majority may act. When there are three referees, or three arbitrators, all must meet, but two of them may do any act which might be done by all. Cal. C. Civ. P. 1053. Appointment of referee, 3174. Authority of arbitrators, 3223. Words giving authority to [C. L. § 3710. three or more, construed as giving authority to a majority, 2496. 3482. Court may authorize substitution of copy for lost original. If an original pleading or paper be lost, the court may authorize a copy thereof to be filed and used instead of the original. [C. L. § 3702. Cal. C. Civ. P. 1045. 3483. Papers with defective titles, when valid. An affidavit, notice, or other paper, without the title of the action or proceeding in which it was made, or with a defective title, is as valid and effectual for any purpose as if duly entitled, if it intelligibly refer to such action or proceeding. [C. L. § 3703. Cal. C. Civ. P. 2 1046. 3484. Clerk to receive money deposited in court. Whenever moneys are paid into or deposited in court, the same shall be delivered to the clerk in person, or to such of his deputies as shall be specially authorized by his appointment in writing to receive the same. [C. L. § 3981. Cal. C. Civ. P. ? 2104*. Deposit in court, 223120-3122. 3485. Offer in writing equivalent to tender, when. An offer in writing to pay a particular sum of money, or to deliver a written instrument or specific personal property, is, if not accepted, equivalent to the actual production and tender of the money, instrument, or property. [C. L. § 3964. Cal. C. Civ. P. 2 2074. Offer to allow judgment to be taken for specified amount, effect, 3217. Refusal of tender, costs, 3347. Where a tender of purchase money is made on condition that the husband, who has made a contract for the sale of land, will cause his wife to convey her dower interest in the land; held, that such tender being upon a condition that could not be required to be performed was not good. Kelsey v. Crowther, 7 U. 519; 27 P. 695. If a vendee elects to enforce a contract of sale, he must tender an instalment of the purchase price when due, even though the vendor may not be able to give such a deed as the contract calls for. Coughran v. Bigelow, 164 U. S. 301; same case, 9 U. 260; 34 P. 51. This statute excuses debtor from actually producing the money at the time, but dispenses with no other requirement of a valid tender. Hyams v. Bamberger, 10 U. 3; 36 P. 202. A purchaser of land subject to a mortgage payable at a certain place, which fact was not known to and could not be ascertained by the purchaser, in order to release the land from the lien, with costs and interest after maturity, should have made a tender at the place of business or residence of the maker. McCauley v. Leavitt, 10 U. 91; 37 P. 164. Under the facts as shown; held, that permitting the tender made by the defendant in the presence of the jury to stand, was error; and further, that under the pleadings the value of the property received by the plaintiff was not in issue. Hecht v. Metzler, 14 U. 408; 48 P. 37. 3486. Receipt must be given on payment or delivery. Whoever pays money, or delivers an instrument or property, is entitled to a receipt therefor from the person to whom the payment or delivery is made, and may demand a proper signature to such receipt, as a condition of the payment or delivery. [C. L. § 3965. Cal. C. Civ. P. 2 2075. 3487. Objection to tender must be specified. The person to whom the tender is made, must, at the time, specify any objection he may have to the money, instrument, or property, or he must be deemed to have waived it; and, if the objection be to the amount of money, the terms of the instrument, or the amount or kind of property, he must specify the amount, terms, or kind which he requires, or be precluded from objecting afterward. Mont. Civ. P. ? 3412. 3488. Successive actions on same contract permitted. Successive actions may be maintained upon the same contract or transaction, whenever, after the former action, a new cause of action arises therefrom. [C. L. § 3704. Cal. C. Civ. P. ? 1047. Successive actions on bond of officer, 1675. Successive action on bond of executor, etc., 3830. 3489. Consolidation of actions. Whenever two or more actions are pending at one time between the same parties and in the same court upon causes of action which might have been joined, the court may order the actions to be consolidated. [C. L. § 3705. Cal. C. Civ. P. 1048. 3490. Action deemed pending, when. An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied. [C. L. § 3706. Cal. C. Civ. P. 2 1049. Action commenced, how, ? 2938. 3491. Action to determine adverse claim. By surety against principal. An action may be brought by one person against another for the purpose of determining an adverse claim, which the latter makes against the former for money or property upon an alleged obligation; and also against two or more persons, for the purpose of compelling one to satisfy a debt due to the other, for which the plaintiff is bound as a surety. [C. L. § 3707. Cal. C. Civ. P. 1050. Action to determine adverse claim to real property, 3511. 3492. Judgment against sureties on indemnity bond to sheriff. Notice. If an action is brought against a sheriff for an act done by virtue of his office, and he give written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered therein is conclusive evidence of his right to recover against such sureties; and the court or judge, in vacation, may, on motion, upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs. [C. L. § 3712. Cal. C. Civ. P. 2 1055. Sheriff may have execution or attaching creditor made a party, ? 2922. more. 3493. Qualifications of sureties generally. Affidavits. Three or In all cases where an undertaking or bond, with sureties, is required by the provisions of law, the officer taking the same must require the sureties to accompany it with an affidavit that they are each residents and householders or freeholders within the state, and are each worth the sum specified in the undertaking over and above all his just debts and liabilities, exclusive of property exempt from execution; but when the amount specified in the undertaking exceeds two thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking, if the whole amount be equivalent to that of two sufficient sureties. [C. L. § 3713. Cal. C. Civ. P. ? 1057*. Undertaking on civil arrest, 22 3013-3025; on replevin, 3048. Loan, trust, and guaranty asso ciations may act as sureties, 424. Attorney may not be surety, when, 133. 3494. Money may be deposited in lieu of undertaking. Withdrawal. In all cases where an undertaking or bond with sureties is required by the provisions of law, the plaintiff or defendant may deposit with the clerk of the court or justice of the peace, as the case may be, a sum equal to the amount required by the undertaking or bond, which shall be taken as security in the place thereof. At any time such deposit may be withdrawn by the party making it, upon giving the undertaking with sufficient sureties as required by law, approved by the clerk or justice, upon notice to the adverse party or his attorney, who may object to the sufficiency of the sureties in the same manner as though the undertaking were filed in the first instance. Mont. Civ. P. 1904. 3495. Undertaking not required of state or public corporation. In any civil action or proceeding wherein the state is a party plaintiff, or any state officer, in his official capacity, or on behalf of the state, or any county, or city, or other public corporation, is a party plaintiff or defendant, no bond, written undertaking, nor security can be required of the state, or any officer thereof, or of any county, or city, or other public corporation, but on complying with the other provisions of this code, the state, or any state officer acting in his official capacity, or any county or city, or other public corporation, has the same rights, remedies, and benefits, as if the bond, undertaking, or security were given and approved as required by this code. [C. L. § 3714. Cal. C. Civ. P. 2 1058*. Payment of costs by state or county, ?? 3356-3357. 3496. Subrogation of surety to rights of judgment creditor. Whenever any surety on an undertaking on appeal executed to stay proceedings upon a money judgment, pays the judgment, either with or without action, after its affirmation by the appellate court, he is substituted to the rights of the judgment creditor, and is entitled to control, enforce, and satisfy such judgment in all respects as if he had recovered the same. [C. L. § 3715. Cal. C. Civ. P. 1059. Judgment may direct that property of principal debtor be first exhausted, 23185. Contribution as between joint debtors, ? 3270. 3497. Officer not to charge for copies furnished by party. In all cases where copies of pleadings, affidavits, or other papers are to be served, neither the sheriff, constable, or clerk shall charge or receive any fee for making such copies when the same are furnished to such officer by the party. Mont. Civ. C. ? 1905*. CHAPTER 59. FORECLOSURE OF MORTGAGES. 3498. But one action for debt secured by mortgage. Judgment. Docketing. There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate or personal property, which action must be in accordance with the provisions of this chapter. Judgment shall be given adjudging the amount due, with costs and disbursements, and the sale of the mortgaged property, or some part thereof, to satisfy said amount, and directing the sheriff to proceed and sell the same according to the provisions of law relating to sales on execution. Such judgment may be docketed at any time. [C. L. § 3460*. Minn. (1894) ? 6059; Cal. C. Civ. P. ? 726*, see Sup. '93, p. 970, Sup. '95, p. 24. Covenants implied in statutory mortgage, ? 1983. Action brought in county where property situated, 2928. When a receiver will be appointed on foreclosure, 3114. Foreclosure of chattel mortgage, 152. Mortgage not deemed a conveyance whatever its terms, 3517. A sold B certain premises, for which B promised verbally to pay three thousand dollars. To secure this sum, B executed and delivered to A a mortgage on said premises, containing a power to sell at public auction. The premises were sold by A, and seven hundred dollars realized thereby; held, that an action for the balance of twenty-three hundred dollars due on the original contract after the sale did not extinguish the debt, and is no bar to an action on the verbal contract; and, further, that the contract was not merged in the mortgage, but existed independently of it, and parol evidence was admissible to prove the terms thereof. Savage v. Stone, 1 U. 35. A conveyance of land as security for a debt may be enforced as a mortgage, even though the conveyance contain no clause authorizing a foreclosure. Territory v. Golding, 3 U. 39; 5 P. 546. G., a collector of taxes, having failed to pay into the proper treasury tax moneys by him collected, executed a mortgage to S. to secure the moneys which thus became due respectively to the territory and county. In an action to foreclose; held, first, that the mortgage was such a one as G. could execute and S. receive for the beneficiaries named therein, and that in the absence of a statute to the contrary, the territory and county each could accept of the act of S., the trustee, and sue to convert into money the property thus voluntarily appropriated by G. to secure his debt; second, that S., the trustee, and the territory and county were proper parties plaintiff in the action to foreclose. Territory v. Golding, 3 U. 39; 5 P. 516. Where a foreclosure sale of a railroad and its franchises is made under a decree, the wrong to the stock holders, if any, is to be found in the decree itself, and not in the sale made pursuant thereto; and a motion to set aside the sale, by a person not a party to the record, is not a proper way to review the errors in the decree, or committed by the court anterior to it. The decree is final until reversed or annulled. Meyer v. Utah & P. V. Ry. Co., 3 U. 280; 3 P. 393. Suit pending on note secured by mortgage without asking foreclosure, is a bar to a foreclosure suit. Bacon v. Raybould, 4 U. 357; 10 P. 481; 11 P. 510. Where a mortgagor has sold the mortgaged premises and given warranty deed without mention of mortgage or assumption thereof by grantee, and suit is brought to foreclose against the mortgagor as well as the administrator of the grantee of the land, the district court of Utah territory has authority under its grant of general jurisdiction to render decree settling the rights of the parties, and may direct that execution be levied first against the mortgagor and then, if any deficiency remain, that the mortgaged premises be sold. Brereton v. Miller, 7 U. 426; 27 P. 81. Where property is held in trust to secure certain debts, the fact that the trustees are partners with certain creditors does not affect their right to foreclose. Gallagher v. Yosemite Mining Co., 10 C. 189; 37 P. 264. A trust deed given to secure a debt is, in effect, a mortgage, and the beneficiaries may foreclose in equity, the power of sale being merely a cumulative right. Dupee v. Rose, 10 U. 305; 37 P. 567. Where a party holds two mortgages under two separate debts on the same property, the lien of the mortgage foreclosed in the second action is not lost by reason of the first suit, but the plaintiff will be allowed costs in one suit only. Thompson v. Skeen, 14 U. 209; 46 P. 1103. A provision in a decree of foreclosure permitting any party to buy at the sale, does not authorize a trustee to purchase trust property for his own benefit. Hamilton v. Dooly, - U. —; 49 P. 769. 3499. Execution for deficiency issued only after sale. If it appears from the return of the officer making the sale that the proceeds are insufficient, and a balance still remains due, execution may be issued for such balance as in other cases; but no such execution shall issue until after the sale of the mortgaged property and the application of the amount realized as aforesaid. [C. L. § 3460*. Minn. (1894) 6063*; Cal. C. Civ. P. ? 726*. Where property is ordered sold to satisfy the lien of the mortgage, the judgment debtor has the right to have the full amount of his lien attempted to be realized in money, until the property is exhausted. Kershaw v. Dyer, 6 U. 239; 24 P. 621; reversing same case, 21 P. 1000. Under section 3460, C. L. 1888, property mortgaged must be subjected first to the payment of the debt, and the mortgagee or assignee of the note cannot recover a personal judgment unless the proceeds of the sale of the property mortgaged prove to be insufficient. Donaldson v. Grant, U.; 49 P. 779. Under section 3460, C. L. 1888, until sale of mortgaged property has been made and the amount of deficiency ascertained, no judgment can be docketed against the party personally liable, nor any execution issued. (Distinguishing Brereton v. Miller, 7 U. 426; 27 P. 81.) Russell v. Hank, 9 L. 309; 34 P. 245. Prayer for general relief entitles plaintiff to such deficiency judgment in a proper case. Id. 3500. Holder of unrecorded conveyance, etc., not made a party. Judgment. No person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the proper office, at the time of the commencement of the action, need be made a party to such action, and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to the action. [C. L. § 3460. Cal. C. Civ. P. 2 726*. Parties defendant, generally, 2914. Maker and indorser of note may be joined in foreclosure suit, and deficiency judgment had against both. Smith v. McEvoy, 8 U. 58; 29 P. 1030. Potter v. Hussey, 1 U. 249. 3501. Surplus paid to person entitled. Deposit in court. If there be surplus money remaining after payment of the amount due on the mortgage, lien, or incumbrance, with costs, the court may cause the same to be paid to the person entitled to it, and in the meantime may direct it to be deposited in court. [C. L. § 3461. Cal. C. Civ. P. ¿ 727. 3502. Sale of property when debt due in instalments. If the debt for which the mortgage, lien, or incumbrance is held, is not all due, as soon as sufficient of the property has been sold to pay the amount due, with costs, the sale must cease, and afterward, as often as more becomes due for principal or interest, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest where such rebate is proper. [C. L. § 3462. Cal. C. Civ. P. ? 728. Complaint drawn on the theory that whole indebtedness is due, will not support a decree for sale of whole property hereunder. Hartog v. Tibbetts, 1 U. 328. |