ing unless approved by the city council. We are of the opinion that the action of the court was right. It is evident that the principal consideration for the sale of the waterworks was not the provision for possible further recompense, which was practically left to the city itself to allow if it saw fit, but was the acceptance of the plant by the city, and the agreement to connect it with the general system which it had in operation, and to maintain it, etc. There was no admission in the contract of any further indebtedness for the plant, and we are of the opinion that it was incumbent upon the plaintiff to have demanded of the arbitrators that they proceed to arbitrate with reference to further compensation, if he desired any, before the time expired; and, not having done so, the action cannot be maintained. Nor do we think the provision for the arbitration was void in consequence of the stipulation that the preliminary finding of the officers named, if in favor of the plaintiff, should be approved by the council, to be binding on the city. It amounted to an arbitration by said officers named and the council, and we think it was valid. firmed.

Af

DUNBAR and REAVIS, JJ., concur. GORDON, J., concurs in the result.

(121 Cal. 121)

KELSO v. COLE et al. (S. F. 1093.)1 (Supreme Court of California. June 2, 1898.) MUNICIPAL IMPROVEMENT-ASSESSMENT FOR PART.

Gen. Street Law, 8 122, as amended by St. 1889, p. 169, providing that the city council, instead of waiting till the completion of the improvement, may, on completion of two blocks, order an assessment for the proportionate amount of the contract completed, which may thereupon be collected, does not apply where the contract has been abandoned, and the time for its completion has expired.

SEARLS, C. Action upon a street assessment. Defendants had judgment for costs. Plaintiff appeals from the judgment, and supports his appeal by a bill of exceptions. Several points are involved in the appeal, only one of which, in our view of the case, calls for consideration.

On April 25, 1894, after the preliminary steps had been taken therefor, the superintendent of streets in and for the city and county of San Francisco entered into a written contract with J. W. Smith, the assignor of plaintiff (the appellant here), to grade to the official line and grade, to macadamize, and 1 Rehearing denied.

53 P.-23

to construct redwood curbs and rock gutter ways on Sunnyside avenue, between Circular avenue and Hamburg street, city and county of San Francisco. The prices to be paid were: for grading, per cubic yard, 14 cents; redwood curbs, per lineal foot, 13 cents; for macadamizing roadway, including rock gutter ways, per square foot, 22 cents. The contract was in the usual form, and provided that the work should be completed within 90 days. The time for the performance of the contract was extended from time to time until it finally expired December 16, 1895. On that day, and ever since, no part of the work had been performed between Gennessee and Foerster streets, being one block of Sunnyside avenue, included in the contract. The residue of the work was certified by the superintendent of streets to have been completed. On January 13, 1896, the board of supervisors ordered a proportional assessment to be made, under section 12% of the general street law, as amended in 1889. St. 1889, p. 169. The question, then, is this: Had the board of supervisors jurisdiction to order a proportional assessment under section 121⁄2 of the street act, when a portion of the work had been abandoned by the contractor, and the time for the completion of the whole contract had expired?

Section 121⁄2 is as follows: "The city council, instead of waiting until the completion of the improvement, may, in its discretion, and not otherwise, upon the completion of two blocks or more of any improvement, order the street superintendent to make an assessment for the proportionate amount of the contract completed, and thereupon proceedings and rights of collection of such proportionate amount shall be had as in sections eight, pine, ten, eleven, and twelve of the act, of which this is amendatory, is provided."

All proceedings for work upon streets, etc., in the municipalities of this state, under the act of March 18, 1885, and the amendments thereto, are purely statutory, and can only be conducted in the cases and after the manner provided by the statutes. The authority conferred by these statutes must be strictly pursued. Haskell v. Bartlett, 34 Cal. 281; Smith v. Cofran, Id. 310; Smith v. Davis, 30 Cal. 536; Brock v. Luning, 89 Cal. 316, 26 Pac. 972. Under the general law, except as amended by section 122, one of the prereq. uisites to the levy of any assessment whatever is that the entire work shall have been completed. In the language of section 8 of the act, "After the contractor of any street work has fulfilled his contract

*

the street superintendent shall make an assessment," etc. So, too, the contract must be fulfilled within the time specified therein, or within such further time as may have been given the contractor during the life of the contract, or no assessment can be levied; and if, after the expiration of the limited time, an extension is granted and the work

Is completed, it forms no foundation for a valid assessment. Raisch v. City and County of San Francisco, 80 Cal. 1, 22 Pac. 22; Dougherty v. Bank, 81 Cal. 162, 22 Pac. 513; Heft v. Payne, 97 Cal. 108, 31 Pac. 844; Brady v. Burke, 90 Cal. 1, 27 Pac. 52. The case of Fanning v. Schammel, 68 Cal. 428, 9 Fac. 427, which has been frequently referred to with approbation, was one in which the contract called for the completion of the work within 60 days. The work was not completed within the time, and subsequently the board of supervisors extended the time for its completion. It was held by this court that after its expiration the board had no jurisdiction to revive or validate the contract. The consensus of opinion, as expressed in the cases cited above, and in many others of like import, is that when the time fixed for the completion of the contract has expired, and the work has not been performed, the contract ceases to have any vitality, and jurisdiction to extend it, or to levy an assessment thereon, becomes extinct. The only power reserved is to let the completion of the work anew. This being so, we cannot see upon what principle the board of supervisors can, in its discretion, order a proportional assessment under section 12% after the contract has been abandoned by the contractor, and the time for its completion has expired. We think section 12% is intended to apply to an existing contract; to one still in force; to furnish, as we may well suppose, the contractor with funds to aid him in the completion of the work; and that it was not intended to galvanize and give new life to a dead contract,-to confer jurisdiction upon the board to do indirectly what it could not possibly do directly. In the language of the court below: "That section contemplates, as the basis of such an assessment, not only that a part of the improvement has been, but that the whole is to be, completed." We are of opinion the section is provided as a boon to the contractor who in good faith is prosecuting his work within the lines of his agreement, and not as a reward to a defaulting contractor, who has forfeited his right to any relief in the premises. It follows from these views that the assessment was void, and constituted no lien upon the lot of the defendants, and we recommend that the judgment appealed from be affirmed.

We concur: HAYNES, C.; BELCHER, C. PER CURIAM. For the reasons given in the foregoing opinion the judgment appealed from is affirmed.

(121 Cal. 30)

CITIZENS' BANK OF LOS ANGELES v. JONES. (L. A. 438.) (Supreme Court of California. May 31, 1898.) APPEAL RECORD-CERTIFICATE OF DEPOSIT-CONSTRUCTION-PAROL CONTRACT.

1. A finding of fact cannot be attacked, in the absence of a specification attacking it.

VAN FLEET, J. Appeal by defendant from the judgment, and an order denying a new trial. The action was to recover from defendant, as indorser, on a certain certificate of 'deposit. The certificate was in these words: "No. 5,927. First National Bank of Helena, Montana. (Not subject to check.) October 19, 1895. G. M. Jones has deposited in this bank ($1,000.00) one thousand dollars, payable to the order of self, on return of this certificate, twelve months after date, with interest at the rate of six per cent. per annum for the time specified only. Payable in 6 mo., if desired, with interest at 6 per cent. No interest after due. No. 70,430. Geo. F. Cooper, Cashier." It was indorsed, "G. M. Jones." The complaint alleged its presentation, with demand of payment, to the maker, on October 19, 1896, that payment was not made, and that due notice of such demand was given the defendant. The answer alleged that .defendant's indorsement to plaintiff was made on or about March 6, 1896, and was with the understanding and agreement that plaintiff should present the certificate to the maker for payment at the end of six months from its date; that at the last-mentioned date the maker thereof was in a flourishing condition, and meeting all its obligations as they matured, and that, had the paper been then presented, it would have been promptly paid; that it was the duty of plaintiff, by reason of said agreement, to make demand at said date, and by its failure to do so it had assumed all future risks of collection. The court found the facts alleged in the complaint to be true, and those stated in the answer untrue, and gave judgment for the plaintiff.

Appellant's main contention seems to be, in effect, although not so stated in terms, that the finding against his special defense is not in accord with the evidence. We regard the evidence as substantially conflicting as to the making of any such agreement as that set up in the answer. But, if this were otherwise, appellant is not in a position to assail the finding upon this issue,

or

since the record contains no specification attacking it. There is but one specification in the record, and that is directed in express terms to the first finding, which refers solely to the averments of the complaint. But, moreover, the evidence offered by defendant in support of his defense was not competent to establish it, and that objection was made; the court, however, permitting it to go in subject to the objection, and reserving its ruling. The evidence simply tended to show a verbal understanding, if any, had at the time of the transfer of the certificate to plaintiff, that the latter would present it at the end of the six months; but whether this understanding was had prior to the indorsement and delivery of the paper, or subsequent thereto, defendant could not state. Manifestly, however, whether before after, in either event the evidence was wholly inadmissible. If made before indorsement, all negotiations were merged in the writing. If made subsequently, it was made without consideration, and void. The contract between the indorser and indorsee of a negotiable instrument is a written one, and cannot be varied or changed by parol evidence of a verbal promise or agreement made at the time of the indorsement. Goldman v. Davis, 23 Cal. 256. The court below having reserved its ruling upon this evidence until final submission, its subsequent finding against appellant upon the issue to which the evidence was directed was in effect a ruling excluding the evidence; and the case may be regarded as though no evidence had been offered by defendant in support of his answer.

The further proposition apparently adranced, that the instrument was by its terms due at the end of six months, and that plaintiff was bound to present it at that time in order to hold the indorser, is not tenable. The paper did not by its terms mature until October 19, 1896. The stipulation therein that it would be paid at the end of six months, "if desired," was an option solely for the benefit of the payee, to be availed of at his election. Belloc v. Davis, 38 Cal. 355. And the instrument being negotiable, this privilege passed to the indorsee. The judg ment and order are affirmed.

present. Held, that M.'s appropriation of the money was grand larceny.

2. Pen. Code, § 503, defines embezzlement as "the fraudulent appropriation of property by a person to whom it has been intrusted." Held, that the testimony of a witness that he "intrusted" his money to defendant does not conclusive ly show that the appropriation of it by defendant was embezzlement, but that expression must be read in the light of his whole testimony and all the circumstances.

3. Where M. induced P. to place his money in a particular place, for the purpose of bringing it within the possession and control of M., intending to thereafter feloniously appropriate it, the accomplishment of such act constitutes lar ceny.

Department 1. Appeal from superior court, Los Angeles county; B. N. Smith Judge.

Louis Montarial was convicted of grand larceny, and appeals. Affirmed.

J. Marion Brooks and D. K. Trask, for appellant. Atty. Gen. Fitzgerald, for the People.

VAN FLEET, J. Appellant makes but one point in support of his appeal,-that the evidence did not warrant his conviction of grand larceny, but established, if anything, embezzlement instead. At the time the money was taken it was in two trunks belonging to defendant, $500 being in one and $300 in the other, where it had been placed by Paillac, to whom it belonged, some time before, for safe-keeping, under these circumstances: Paillac and the defendant were fellow countrymen and intimate friends, and roomed together at the same house. They had two rooms, one upstairs and the other down, but their intimacy was such that they used them in common, sleeping together in the lower room, and keeping wearing apparel and other articles in the upper one,-each having like access to both, and indifferently carrying the keys. They had been thus situated for several years. Paillac, who had accumulated several hundred dollars, had been in the habit of keeping it buried in the ground in a secret hoard. Observing that the defendant kept his money in his trunk, a discussion arose between them as to the safest way to keep money. Which one of the two first suggested the idea of placing Paillac's money in the defendant's trunks does not clearly appear; Paillac, who testified on the subject, being unable to speak English, and his evidence being given through an interpreter, and leaving the fact in some confusion. At one point he states that the suggestion came from himself, but elsewhere his statements indicate that it was made by defendant. It does appear from his evidence, however, that in the conversation defendant assured Paillac that he "might as well put the money in the trunk"; that it was "safer there than any bank"; and that Paillac had better put his money there, since the latter's trunk was old, and the lock broken,-telling him, "Don't be afraid; it will be a good, safe place;" and fur

ther, as expressed by the witness, "He said that some time I [Paillac] might die, or an accident fall to me, or I might fall off the wagon, and get killed, and then I [defendant] will know where the money is." The result of the conversation was that Paillac dug up his treasure and placed it in defendant's trunk. This was something over two years prior to the taking. At that time Paillac had some $500, and he put that amount in a purse, securely tied up in a handkerchief, and handed it to defendant, who in Paillac's presence placed it in the trunk in the upper room, where it remained undisturbed, except when inspected by Paillac, until taken by defendant. Subsequent to this first deposit the $300 fund was accumulated by Paillac. This latter was the fund to which Paillac resorted for current needs from time to time,-the $500 being kept intact, and it was kept in the trunk which stood in their sleeping room downstairs. Like the first, it was always kept in a package securely done up by Paillac himself, and which he would merely hand to the defendant to be placed in the trunk in his presence; the defendant, as the evidence clearly indicates, never being given the right to handle or disturb either package in any way, except in the presence of Paillac, and then only for the purpose of handing them out when wanted by the latter, or replacing them at his direction. And, while defendant carried the keys to the trunks, they were always at the call of Paillac whenever he wished to get at his money; the defendant on such occasions unlocking the trunks for the purpose, and handing out the package, or putting it back, as the case might be. And the evidence indicates that, while Paillac had confidence in his friend, it did not prevent him from keeping a sharp eye on his treasure whenever the defendant opened the trunks to get his clothes, or for any other purpose of his own.

Upon this evidence and some expressions in the testimony of Paillac that, because of his confidence in the defendant, he "intrusted" the money to him to keep for him, that he would not have done so but for his "confidence" in him, and that he would have looked to him to return the money had it been missing, the defendant bases a very strenuous and plausible argument that the facts show a delivery of the money to the defendant which constituted a deposit or bailment, and that in appropriating the money under such circumstances the defendant was guilty of a fraudulent appropriation or embezzlement, and not larceny. But we cannot accede to this view. Taking the whole evidence together, with all it tends to show, and we are satisfied that it does not establish a bailment or intrusting of the money to defendant. As we regard it, the evidence does not show that Paillac ever in

fact really parted with the possession of his money. While it was locked in the trunks of defendant, to which the latter retained the keys, the trunks were at all times as much in the possession of Paillac, and with practically the same freedom of access to the latter, as in that of the defendant. In legal contemplation the use of the trunks was loaned or given to Paillac as a place for keeping his money. The mere fact that defendant carried the keys is not a material consideration. As we have seen, the keys were always forthcoming when demanded by Paillac for access to his money, and the money was, therefore, to all practical intents and purposes, as much under his personal supervision and protection as of defendant; indeed, more so, since the latter had no right or authority to tamper with it in any way, except as directed by its owner.

De

Much is made by defendant of the fact that Paillac testified that he "intrusted" the money to defendant, and it is urged that this constitutes embezzlement, because that offense consists of "the fraudulent appropriation of property by a person to whom it has been intrusted." Pen. Code, § 503. But, to reach the meaning of the witness, his expressions must be read in the light of his whole testimony and all the circumstances; and when so read it is clear that his money was not intrusted to the keeping of the defendant in a manner to bring it within the definition of embezzlement. fendant let Paillac have the use of his trunks as a place of safety for his property, and the only dominion defendant rightfully exercised over it was a perfunctory handling of it in the presence of the owner. The case, although differing in its circumstances, is not to be distinguished in principle from that of People v. Johnson, 91 Cal. 265, 27 Pac. 663, where it is held that, where the owner puts his property into the hands of another to do some act in relation to it in his presence, he does not part with the possession of it, and the conversion of it animo furandi is larceny, and not embezzlement. See, also, 2 Russ. Crimes (8th Am. Ed.) 21.

Moreover, there is, as suggested by the attorney general, another aspect in which the evidence, if so construed by the jury, was sufficient to warrant a conviction of larceny. If the jury believed, as there was evidence tending to show, that the defendant orig. inally induced Paillac to place the money in his trunks for the purpose of getting it into his possession and control, with the intent to thereafter feloniously appropriate it, such act, when accomplished, constituted larceny. People v. Rae, 66 Cal. 423, 6 Pac. 1. We are satisfied that the judgment should be affirmed. It is so ordered.

(120 Cal. 695)

In re MOSS. (Sac. 457.) (Supreme Court of California. May 26, 1898.) RIGHTS OF GUARDIAN FOR INCOMPETENT-APPEAL. 1. An appeal may be taken from an order appointing a guardian for an incompetent person, under Code Civ. Proc. §§ 1763, 1764, since the main thing provided for thereby is not the adjudication as to the incompetency, but the appointment of a guardian, and hence the appeal is authorized by section 963, providing for an appeal from any order granting or refusing to grant letters of guardianship.

2. Code Civ. Proc. § 372, providing that mentally incompetent persons can take an appeal only by their general or ad litem guardian, does not apply to an appeal taken directly from the order of guardianship itself.

In bank. Appeal from superior court, San Joaquin county.

In the matter of William F. Moss, an incompetent person. From an order appoint. ing a guardian for him, he appeals. to dismiss the appeal. Denied.

Motion

J. G. Swinnerton and Budd & Thompson, for appellant.

MCFARLAND, J. This is a motion to dismiss an appeal taken by William F. Moss from an order of the superior court appointing a guardian for him upon the ground of alleged incompetency, under sections 1763 and 1764 of the Code of Civil Procedure.

1. The first contention of respondents is that the order appealed from is not an appealable order. They say in their brief that "the adjudication of incompetency is not appealable." It is not necessary to consider whether or not the order appealed from would be viewed as a final judgment if there were no express provision for an appeal from it, for the Code directly provides for an appeal from the particular order here involved. The main and ultimate purpose of sections 1763 and 1764 is the appointment of a guardian for a person found to be incompetent to manage his business and property. The Code does not seem to contemplate an adjudication of incompetency independent of the appointment of a guardian. Its purpose is to appoint a guardian for an incompetent person. Of course the incompetency would have to be found in some way by the court as a preliminary step to the appointment of a guardian; but the appointment of a guardian is the thing specially directed. Section 1763 provides that when it is represented by a verified petition that a person is insane, "or from any cause mentally incompetent to manage his property," the court must give notice to the person supposed to be incompetent of the time and place of the hearing of that matter, and that the alleged incompetent person must, if able to attend, be produced on the hearing; and section 1764 provides that "if after a full hearing and examination upon such petition it appear to the court that the person in question is incapable of taking care of himself and managing his property, such court

2. The notice of appeal is signed by Messrs. Nicol & Orr, who are attorneys of this court, and who appeared for the appellant, Moss. in the proceeding in the superior court in which the order of guardianship was made; and it is contended by respondents that, under section 372 of the Code of Civil Procedure, Moss could take an appeal only by his general guardian or by a guardian ad litem appointed by the court. But that section does not apply to a case where the very question involved is the validity of the order of guardianship itself, and where the appeal is taken directly from that order. That section applies only to a case where the order of guardianship has been finally established. But no judgment or order of a superior court is final when an appeal from it is duly pending. If the order appointing a guardian for the appellant be erroneous, it will be reversed; and the appellant's right to the control of his property cannot be held as finally concluded against him by an order from which he has appealed, and from which he has a right to appeal. Some difficulties are suggested by a consideration of the proposition that the appeal stays the execution of the order, and that, if the appellant be really incompetent, his property might be dissipated by designing persons during the pendency of the appeal. There is some force in this suggestion, and apprehended embarrassments might be remedied perhaps by some amendment to the Code in this regard; but more grievous consequen. ces might follow an erroneous adjudication of guardianship, if no appeal were allowed. 3. We see nothing in the statement of respondents that Moss is not "an aggrieved party," or in any of the other contentions made by respondents.

The motion to dismiss the appeal is denied.