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however, for the purpose of introducing a new description. Thus, where the subject of a contract of sale was a certain quantity of fruit from sundry orchards in Ontario and Cucamonga, parol evidence was held admissible to identify the orchards. Ontario, etc., Ass'n v. Cutting F. P. Co., 134 Cal. 21, 66 Pac. 28, 53 L. R. A. 681, 86 Am. St. Rep. 231. Here the description in the contract is definite, certain, and complete, and it is sought by parol evidence to show that the subject of the contract was entirely a different piece of land. This would be in violation of express statutory provision. Section 1741, Civ. Code. "It must, of course, appear from the memorandum what is the subJect-matter of the defendant's engagement. Land, for instance, which is purported to be bargained for, must be so described that it may be identified." Browne on Stat. of

Frauds, 385; Ferguson v. Blackwell, 58 Pac. 649, 8 Okl. 489.

The judgment is affirmed.

We concur: ALLEN, P. J.; TAGGART, J.

(5 Cal. A. 686)

DODD v. PASCH et al. (Civ. 339.) (Court of Appeal, First District, California. June 5, 1907.)


Where, on an issue as to whether a lease was from month to month or for a year, the tenant produces a written lease for a year, it was error to admit oral evidence to show an understanding that it was to be from month to month.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 1741.]



A written lease is binding when signed by the lessor, though not signed by the lessee, when the lessee has taken possession thereunder.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 66.] 3. SAME.

A written instrument, reciting that the owner of certain premises had received a certain sum on account of the premises at a monthly rental from October 1st, for the first six months, and at a certain other sum per month for the remainder of the year closing the first of the next October, constituted a lease for a year.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 61.]

Appeal from Superior Court, Fresno County; H. Z. Austin, Judge.

Action by Fred Dodd against H. C. Pasch and another. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Reversed.

Johnston & Jones and W. P. Thompson, for appellants. Lewis H. Smith, for respondent.

HALL, J. Appeal from judgment and order denying defendants' motion for a new trial.

Plaintiff brought this action to recover the possession of certain premises rented of plaintiff by defendants. The complaint wa framed upon the theory that the defendants were tenants from month to month and were holding over after one month's notice terminating their tenancy. Defendants pleaded that they leased the premises for one year ending October 1, 1906, and at the trial introduced in. evidence in support thereof a writing signed and delivered to defendants by plaintiff in the words following, to wit:

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. "Fresno, Cal., Sep. 25, 1905. "Received of Pasch Bros. Twenty and no/100 dollars on a/c of old Schien store at a monthly rental from Oct. 1, of $125.00 per month for first 6 months, i. e. to April 1st; of $75.00 per month for the remainder of the year closing Oct. 1, 1906. $105 (one hundred and five) due and payable. "$20 no/100 Fred Dodd."

Defendants went into possession October 1, 1905, and paid all rent up to March 1, 1906, at which time they tendered the rent for March, which was refused by plaintiff; he having on February 28th given defendants a notice to surrender possession March 1, 1906. The trial court, over the objection and exception of defendants, permitted the plaintiff to give testimony of an oral agreement to the effect that he leased the premises sued for, known as the old Schien store, to defendants from month to month, although he admitted that he executed and delivered to defendants the writing above set forth, and that the money specified had been paid. court made findings in accord with the theory of plaintiff, and gave judgment accordingly.


Defendants contend that the writing above set forth constituted a written contract of lease for the term of one year ending October 1, 1906, and that no evidence of any oral agreement contrary to the terms thereof was admissible. Of the correctness of this contention we have no doubt. The instrument clearly shows the contracting parties, the premises leased, the rent, and the term, which is clearly one year, ending October 1, 1906. These are all the essential requisites of a lease that need be specified in the contract of lease. Other conditions usually contained in leases are nonessential. The time of payment even need not be specified, for when not stated in the lease, nor governed by usage, it is fixed by the law. Civ. Code, § 1947. "To constitute a lease no particular form of words is necessary. Whatever words show an intention on the part of the lessor to dispossess himself of the premises, and on the part of the lessee to enter and hold in subordination to the lessor's title, are sufficient." 18 Am. & Eng. Ency. of Law, 605. Munson v. Wray, 7 Blackf. (Ind.) 403, was an action against Mrs. Munson for holding over her term as tenant, brought on the theory that she was a tenant at will or at sufferance.

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Defendant (Mrs. Munson) gave in evidence an instrument in writing signed by the complainant as follows: "Rec'd of Mrs. Munson $3.50 for rent of my brick house in Covington for one month, with privilege of keeping it six months at the same rate. No. 91 or 95. Dec'r 1st, 1843"--and proved that it had reference to the premises sued for. The court held it a good lease, and that the lessee could not be dispossessed, if she paid the rent, until the expiration of the six months. In Eastman v. Perkins, 111 Mass. 30, a writing at the foot of a receipted bill for hay in these words: "Left at stable on Oak street, where Andrew J. Perkins takes possession. Rent to begin October 1, 1870, for one year at $150. John C. Hoadley"-was held to be a good lease. The court said: "The memorandum affixed to the bill of parcels expresses the consent of the owner that the defendant should have immediate possession of the stable, and should continue to occupy it at a specified rent and for a definite time. Although brief and informal, therefore, it had all the essential elements of a present demise [citing cases]. Being accepted by the defendant, it gave him all the rights of a lessee."

In the case at bar, defendants, by paying the rent and entering into possession of the premises, accepted the lease. It was not necessary for the lessee to sign the lease. Johnson, Landlord & Tenant, § 77; Taylor on Landlord & Tenant, § 147; 18 Am. & Eng. Ency. of Law, 606; Castro v. Gaffey, 96 Cal. 421. 31 Pac. 363; Scott v. Glenn, 97 Cal. 513, 32 Pac. 573. The instrument in question being a valid lease, and unambiguous as to the term of the tenancy, it was error to allow oral evidence that the tenancy was from month to month. Civ. Code, 8 1625; McDonald v. Poole, 113 Cal. 437, 45 Pac. 702.

The cases relied on by respondents on this question are not in point. In Kreuzberger v. Wingfield, 96 Cal. 251, 31 Pac. 109, the writing relied on was a mere memorandum so vague and uncertain as not to constitute a contract at all.

The case at bar was not an attempt to explain a clause or term susceptible of two different interpretations (Williams v. Ashurst, 144 Cal. 619, 78 Pac. 28), or to prove a collateral parol agreement not inconsistent with the writing (Sivers v. Sivers, 97 Cal. 518, 32 Pac. 571; Guidery v. Green, 95 Cal. 630, 30 Pac. 786), but a bald attempt to contradict the terms of the written contract.

Neither can the action of the trial court be sustained on the theory that the writing was a receipt, for, while it is a receipt, it is also something more. It is a contract of lease of the premises described for the term of one year.

The judgment and order are reversed.

We concur: COOPER, P. J.; KERRIGAN, J.

(5 Cal. A. 674)

PEOPLE V. MEYERS. (Cr. 83.) (Court of Appeal, First District, California. June 4, 1907.)


On a trial for larceny, evidence examined, and held to support a conviction.

[Ed. Note.-For cases in point, see Cent. Dig vol. 32, Larceny, §§ 161–169.]


Under Const. art. 6, § 4, as amended November 8, 1903, conferring on District Courts of Appeal jurisdiction of questions of law alone in criminal cases, a verdict in a criminal case, supported by legal evidence, is conclusive on appeal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3074-3076.]

Appeal from Superior Court, City and County of San Francisco; Carroll Cook, Judge. George Meyers was convicted of larceny, and he appeals. Affirmed.

E. W. Rowland and J. J. Earle, for appellant. U. S. Webb, Atty. Gen., for the People.

KERRIGAN, J. Defendant was charged with the crime of grand larceny, and upon the trial was found guilty. His motion for a new trial was denied, and appeal is taken from the judgment and from the order denying such motion. The sole point made by the appellant is that the verdict of the jury is entirely unsupported by the evidence.

Briefly, the testimony is as follows:

Mrs. Grace Hopkins testified: "On the evening of November 23, 1905, at about midnight, in front of a hotel on Mason street in San Francisco, I saw Arnold, Noelke, and defendant, Meyers, all strangers to me. There three men and myself, at the invitation of Arnold, went into a saloon nearby, and had several drinks of whisky, the last of which looked smoky. At that time I had $48 in a purse in my stocking, and on my fingers three diamond rings worth $125, $90, and $60, respectively. While in the saloon, in attempting to remove my glove, Arnold saw my rings and made a grab for my hand. I withdrew my hand and replaced my glove." She further testified: "I remember nothing that happened for several hours after my drinking that smoky liquor. The next thing that I recollect is awakening in a filthy room in which I had never been before. I was in bed, and not entirely dressed, but my clothes had been loosened. My dress was open. My corset strings had been cut, and the corset removed and thoroughly searched. My shoes and stockings were on the floor and had been carefully examined; even the soles of the shoes having been inspected. My rings were not to be found, and on the dresser I discovered my purse inverted and empty."

The defendant, George Meyers, testified: "I am one of the defendants charged jointly with Arnold and Noelke. I have known Noelke for some time. I first met Arnold on the night of November 23, 1905. Noelke in

troduced us. About half-past 1 in the morning of November 24, 1905, the three of us were standing on Mason street in front of the Alturas, where Noelke lived, when Mrs. Hopkins passed by. She was intoxicated, and asked us: 'Which of you is going to buy me a drink? Arnold said that he would do so, and started down the street with her. Noelke and I followed, and the four of us went into a saloon near the Linwood. Arnold sat next to Mrs. Hopkins at the table. We had several drinks, but I did not notice any that appeared cloudy or smoky. We left the saloon about 2:30 a. m. and went into the Linwood; Arnold and Mrs. Hopkins leading the way. Arnold went to the desk and engaged a room, and the night clerk took him and Mrs. Hopkins up in the elevator. Arnold motioned to Noelke and me to remain in the office, and we did so. Later I took Noelke home to the Alturas. He was quite drunk. When I left him there he said to me: 'Arnold has a good job at the Park, and I'd hate to see him lose it on account of a woman. Don't let him oversleep, but send him out to work. I returned to the Linwood, inquired of the clerk the number of the room occupied by Arnold and Mrs. Hopkins, and having been refused the key went upstairs and pounded on the door to arouse Arnold. This I was doing as an accommodation to my friend Noelke, as I had no interest in Arnold, having only met him the night before. Before I had received any response from Arnold, I was compelled to desist by the night clerk, who told me that I was disturbing the whole house. I returned to the office, but presently went upstairs again hoping that I might awaken Arnold, renewed the knocking at the door less violently than before, and was asked by Arnold what I wanted. I told him to get up, that it was time for him to go to work, and he said: 'All right, I'll be out in a minute.' I waited for him. Presently he came out and asked me to go with him and have a drink, and we left the Linwood together. I had not entered the room occupied by Arnold and Mrs. Hopkins since she went up with Arnold in the elevator. I did not take or assist in taking any property from her person. On leaving the Linwood, Arnold and I had a drink together, and he then asked me if I was acquainted at any pawnshop in the city. I said that I knew a clerk at a place on Kearny street, and Arnold asked me to take him there, and said that his girl had given him some things to pawn for her. So I went with him to Jacobs', and there he pawned three rings for $100. I had never seen the rings before that moment, and had no idea where he obtained them, except from his statement that his girl had given him some articles to pawn. We left the pawnshop together and had another drink. We then separated, and I do not know what Arnold did during the rest of the day. After that I saw

Arnold nearly every day until we were arrested, about a week later. We were arrested by Officer Ryan, with whom I subsequently talked once or twice about the case. IIis account of our conversations was in the main correct. I never received any money from Arnold on account of the deal between him and the pawnbroker, nor on any other account; and I never said that I did."

Charles Clark testified: "I was on duty as night clerk at the Linwood Hotel on Mason street at about 2 o'clock November 24, 1905, when Mrs. Hopkins, Arnold, Noelke, and defendant, Meyers, arrived. Arnold came to the desk and engaged a room. I asked him his name, and he replied: 'Any old name, say Burke.' The room I assigned them was on the second floor. I entered the elevator to take the party up. Arnold and Mrs. Hopkins stepped in, and Noelke and Meyers started to follow, when Arnold motioned them to stay back, and they retired. They remained in the office while I took the others upstairs. Mrs. Hopkins remarked while in the elevator that the place was 'dirty' and 'a pretty poor looking dump.' I showed them to the room, and saw them enter and shut the door. The door locked with a snap lock. I then returned to the office, where Noelke and Meyers were waiting. They remained for some time, then went out, and returned. Noelke was quite drunk. At about 5:30 o'clock Meyers and he went outside, and Noelke did not return. Meyers returned in a few minutes. He said something about getting Arnold up and sending him to work. Ile learned which was his room, and then ran upstairs. He asked me for the key to the room, which I refused to give him, as Arnold had given me particular instructions not to allow any one to enter the room. Presently I heard a terrible racket upstairs. I went up and found Meyers in the hall outside of the door of the room which I had given to Arnold and Mrs. Hopkins. He was pounding and kicking on the door. I forced him to stop and to go down to the office with me as he was creating a sufficient disturbance to arouse the whole house. Presently Meyers went up again and made a good deal of noise, but was not quite so boisterous as on the former occasion, so I did not disturb him this time. I do not know whether he was in the room on these several trips or not. Presently he and Arnold came down together and left the hotel at about halfpast 7."

H. Wilkins and A. E. Trimple testified that they were clerks at the Jacobs' pawnshop; that they knew Meyers; that on November 24, 1905, at about 8 o'clock in the morning, Meyers and another man, whose was given as Burke, called at the pawnshop, and Burke pawned three diamond rings for $100. It is conceded that it was Arnold, under the name of Burke, who pledged the diamond rings.


James L. Ryan, a member of the detective | 2. APPEAL - REVIEW - APPEAL FROM FINAL force of the city and county of San Francisco, testified that Meyers told him that he (Meyers) had received from Arnold a commission of $15 out of the $100 in the pawnshop transaction.

If there was no legal evidence to support the verdict of the jury in this case, as is contended by appellant, then there would be presented a question of law upon which, of course, this court would have jurisdiction to pass. The record, however, shows clearly there was legal evidence to prove all the facts constituting the crime alleged. In such a case the decision of a jury, in so far as this tribunal. is concerned, is absolutely final. Article 6, § 4, Const. Cal. amended November 8, 1903; People v. Maroney, 109 Cal. 279, 41 Pac. 1097; People v. Fitzgerald, 138 Cal. 41, 70 Pac. 1014; People v. Donnolly, 143 Cal. 398, 77 Pac. 177; People v. Gonzales, 143 Cal. G06, 77 Pac. 448. In People v. Maroney, supra, it is said: "The power of a jury in determining the weight to be given to testimony is, within the rules of evidence, exclusive and supreme, and appeals to this court in criminal cases do not lie from the verdict of the jury upon controverted questions of fact, but solely upon propositions of law." In People v. Fitzgerald, supra, it is said: "By the Constitution appellate jurisdiction is conferred upon this court in 'criminal cases prosecuted by indictment or information in a court of record on questions of law alone.' Where there is evidence therefor to sustain the verdict, a question of law cannot arise, but only in a case where there is in effect an entire lack of evidence."

The judgment and order are affirmed.

We concur: COOPER, P. J.; HALL, J.

(5 Cal. App. 68-1)

In re LONG'S ESTATE. (Civ. 367.) (Court of Appeal, Second District, California. June 5. 1907. Rehearing Denied by Supreme Court Aug. 3, 1907.)


Code Civ. Proc. § 1554, provides that if, after the confirmation of the sale of decedent's estate, the purchaser neglects or refuses to comply with the terms of sale, the court may order a resale. Decedent's property was bid in March 6th, on condition that the bidder be furnished a certificate showing clear title, and the bid was confirmed. On July 20th, motion was made to set aside the sale and order a resale for the bidder's neglect to pay the balance; the hearing of the motion being continued to August 10th at the bidder's request, and he stating that he could not then raise the money. Title had been accepted in June, and a tender of the deed and a demand for the balance of the purchase price were admitted. Held, that there was no abuse of discretion in ordering a resale.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 1517.]

Where, after an order was made August 10th, setting aside a sale of decedent's property and ordering a resale, the bidder filed an affidavit purporting to embody his objection to granting the order, and October 12th the affidavit was ordered stricken from the files, no appeal being taken from that order, neither the affidavit nor the ruling in striking it may be considered on an appeal from the order setting aside the sale taken three weeks before October 12th.

Appeal from Superior Court, Los Angeles County; G. A. Gibbs, Judge.

In the matter of the estate of Louisiana R. Long, deceased. E. R. Fox appeals from an order setting aside a sale of real estate of the estate to him and ordering a resale. Affirmed.

L. M. Fall and E. R. Fox, for appellant. Frank James, for respondents.

SHAW, J. This is an appeal from an order of the court setting aside a sale of certain real estate belonging to the estate of Louisiana R. Long, deceased, and ordering a resale of the property.

The only facts material to the case are that on March 6, 1906, appellant in open court bid $15.400 cash for certain real estate belonging to the estate of deceased, upon condition that he should be furnished an unlimited certificate of title showing the property entirely clear of all liens or clouds. The bid was accepted, appellant paid $1,550 on account of the purchase price, and thereupon the court made its order confirming the same. Thereafter, on July 20, 1906, pursuant to notice duly given, respondents moved the court to set aside the sale so made to appellant and order a resale of the property; the grounds of the motion being that said appellant had neglected and refused to pay the balance of the agreed purchase price of the property. The hearing of this motion was. at the request of appellant, continued from July 20th to August 10th, on which lastmentioned date the court made the order setting aside the sale, and from which this appeal is prosecuted.

Some time in June, 1906, there was delivered to appellant a certificate of title executed by the Title Insurance & Trust Company of Los Angeles, and appellant then accepted the title to the property as shown by this certificate, provided the respondents, who were the executors of the estate of said deceased, would credit him on his bid with the sum of $63 paid on a street improvement bond, to all of which the executors consented and agreed. A tender of the deed and a demand for the balance of the purchase price was admitted. The only objection urged against granting this motion was the condition of the money market; Fox stating that he was not able at that time to raise the balance of the purchase price. Whereupon the court, at his request, continued the hearing to August 10, 1906, at which time the order granting the

motion was made. Section 1554, Code Civ. Proc., provides: "If, after the confirmation, the purchaser neglects or refuses to comply with the terms of the sale, the court may, on motion of the executor or administrator, and after notice to the purchaser, order a re-sale to be made of the property." Under this provision of the statute, the making of the order was a matter solely within the discretion of the court. The record discloses no abuse of discretion. Indeed, the circumstances would seem to permit no other course than that pursued. After the order was made, appellant filed an affidavit, which purported to embody his objections to the granting of the motion. This affidavit was, by an order of the court made October 12, 1906. stricken from the files. No appeal was taken from this order, and neither the affidavit nor the ruling of the court in striking it from the files can be considered on this appeal, which was taken some three weeks prior to said October 12th.

The order appealed from is affirmed.

We concur: ALLEN, P. J.; TAGGART, J.

(5 Cal. App. 696)

WHITTLE v. WHITTLE. (Civ. 275.) (Court of Appeal, First District, California. June 6, 1907.)


The record is not in condition for review of the overruling of defendant's objection to proceeding with the case till the original pleadings were produced or other papers were substituted therefor; the pleadings being in the record on appeal, and it not appearing that they are not the original papers, nor that they were not found and used on the trial.


The complaint, in an action for money had and received, having alleged the money was received from C., plaintiff may introduce a note executed by C. to plaintiff and defendant, preliminary to asking defendant, who was being examined as a witness for plaintiff, if she collected part of the note.

3. LIMITATION OF ACTIONS-MONEY RECEIVED. The statute commences to run against an action for money had and received from the time the money was received, and not from the time the note, in payment of which the money was received, was due.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 268, 269.] 4. JUDGMENT-RES JUDICATA.

The judgment of defendants, in an action on a note by one of the joint payees against the maker and the other payee, the latter being made a defendant because she would not consent to become a plaintiff, and the judgment being because of the maker having paid the note to the defendant payee, is not a bar to an action by the former payee against the latter payee, for money had and received of the maker in payment of the note.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, $$ 1092-1037.] 5. MONEY RECEIVED AND WIFE.


To an action for money had and received it is a good defense that defendant is the wife of plaintif, and that, after he had deserted and

left her without means, she received the money in payment of a note, of which they were the joint payees, and used it for the necessaries of life.

Appeal from Superior Court, City and County of San Francisco; Frank H. Kerrigan, Judge.

Action by Robert Whittle against Annie Whittle, sued as Anne Whittle. Judgment for plaintiff. Defendant appeals. Reversed.

J. C. Bates, for appellant. P. J. Mogan and M. S. Eisner, for respondent.

COOPER, P. J. The complaint alleges that the plaintiff and defendant are husband and wife, but that they have been living separate and apart since August, 1893; that in November, 1893, the defendant received $1,097.60 to and for the use of plaintiff: that said money was partly the separate property of plaintiff and partly community. property; and that defendant has not paid the same nor any part thereof. The answer alleges that all the money received by the defendant was received by her as the wife of the plaintiff, and was necessarily used by her for the necessaries of life for her board and maintenance after plaintiff had willfully deserted and separated from her without just cause. The cause was tried, findings filed, and judgment thereupon entered for plaintiff. This appeal is from the judgment and the order denying defendant's motion for a new trial.

Several errors are assigned and argued in appellant's brief, which we will notice in the order in which they are discussed. It is claimed that error was committed in trying the case without the pleadings being before the court. It appears from the bill of exceptions that the plaintiff's attorney stated to the court that the papers in the case were missing from the files, but that he had copies that he could supply in case the originals were not found. Defendant's attorney objected to proceeding with the case until the original papers were produced or other papers substituted in lieu thereof. The court overruled the objection, and the trial proceeded. The correct practice would have been to find the originals or supply copies before the trial of the case, but that may have been done. The pleadings are now here as a part of the record, and it does not appear that they are not the original documents, nor does it appear that they were not found and used during the trial. No further question appears to have been raised concerning them, and no injury to defendant is made to appear.

The plaintiff offered in evidence a note for $924.60, dated February 19, 1891. made by Mary D. Carpenter and payable to plaintiff and defendant. To this the defendant objected upon several grounds, among others that it was not admissible under the pleadings, and that it appeared to be barred by the statute of limitations. The court overruled

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