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with this provision of the contract. The only attempt to do so was the fraudulent alteration of the orders. In other words, the character of the transaction being left out of consideration, there was not such a compliance with the contract upon plaintiff's part as to permit it to recover. No rescission was necessary. Field v. Austin, 131 Cal. 379, 63 Pac. 692. Courts are not vigorous in compelling an accounting by the person defrauded at the request of the party guilty of the fraud. More v. More, 133 Cal. 493, 65 Pac. 1044. "Parties so engaged are not the objects of the special solicitude of the courts." Neblett v. Macfarland, 92 U. S. 101, 23 L. Ed. 471.

Judgment of superior court affirmed.

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

(5 Cal. App. 740)

BAILEY V. ETNA INDEMNITY CO. OF
HARTFORD, CONN. (Civ. 353.)
(Court of Appeal, Second District, California.
June 18, 1907.)

1. ATTACHMENT-UNDERTAKINGS

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LIABILITY

OF SURETY. An undertaking given to release property attached under a writ of attachment, which shows the title of the court and cause in which it was given, which recites the amount of plaintiff's claim against defendant, the issuance of the attachment and levy on "certain property and effects of" defendant, the desire of defendant to release the property, and which declares that the surety, in consideration of the premises and the release of the property, undertakes in a specified sum and promises that, in case plaintiff recover judgment in the action, defendant will pay the amount thereof with costs, substantially conforms to Code Civ. Proc. § 540, relating to undertakings on attachment, and, if voluntarily given to secure a redelivery of the property, is valid at common law.

[Ed. Note. For cases in point, see Cent. Dig. vol. 5, Attachment, § 638.]

2. SAME RECITALS - CONCLUSIVENESS ON SURETY.

The recitals in an undertaking given to procure the release of property attached under a writ of attachment are conclusive against the obligor therein, whether the underaking is a statutory or a common-law bond. 3. SAME-VALIDITY.

Where a writ of attachment directs the sheriff to take an undertaking, and either not attach the property or release the same, as the circumstances require, an order for the release of the property attached on the giving of an undertaking to procure the release thereof is not necessary.

[Ed. Note. For cases in point, see Cent. Dig. vol. 5, Attachment, § 637.]

4. SAME-RECITALS-CONCLUSIVENESS.

The surety, in an undertaking given to release property attached under a writ of attachment, is estopped by the recitals therein from asserting that no property was levied on by virtue of the writ.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Attachment, § 1243, 1244.]

5. SAME.

The recitals, in an undertaking given to procure the release of property attached under a writ of attachment, that the writ of attachment was issued and property levied on thereunder, etc., are conclusive on the surety on the ques

tions of the sufficiency of the affidavit on which the attachment was based and of the writ itself. [Ed. Note. For cases in point, see Cent. Dig. vol. 5, Attachment, §§ 1243, 1244.]

6. SAME-ACTIONS-TIME TO SUE.

Under Code Civ. Proc. § 552, providing that, where an execution be returned unsatisfied, plaintiff may prosecute any undertaking given pursuant to sections 540 and 555, relating to the giving of an undertaking on attachment, an action on an undertaking given to procure the release of property levied on under a writ of attachment may be brought immediately on the return of the execution against the judgment debtor unsatisfied, and it is not necessary to postpone the bringing of the action for six months from the date of the judgment. 7. TRIAL-FINDINGS-CONSTRUCTION.

A finding that each and every allegation contained in plaintiff's complaint is true is but the express finding of that which is impliedly found by judgment for plaintiff on the pleadings.

8. JUDGMENT JUDGMENT ON PLEADINGS.

Under Code Civ. Proc. § 581, prescribing when an action may be dismissed or a nonsuit entered, and section 582, providing that in every other case judgment must be rendered on the merits, a judgment on the pleadings is a judgment on the merits, so far as its conclusiveness is concerned.

9. ATTACHMENT UNDERTAKING ACTIONSDEFENSES-PLEADING.

A surety, when sued on his undertaking given to procure the release of property attached under a writ of attachment, cannot avail himself of the defense that the judgment in the attachment action was rendered without a fair trial. without alleging the particular facts not presented on the trial, and a surety, claiming that there was a collusive failure to introduce available evidence constituting a defense to the action, must plead the details and his ability to supply on a new trial the evidence willfully suppressed.

10. APPEAL-REVIEW-IMMATERIAL QUESTIONS.

Where a judgment was properly rendered on the pleadings, questions relating to the introduction of evidence and of the weight thereof are immaterial on appeal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3331.]

Appeal from Superior Court, Los Angeles County; W. P. James, Judge.

Action by C. C. Bailey against the Etna Indemnity Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Drew Pruitt, Charles L. Batcheller, and Thomas C. Ridgway, for appellant. Sidney J. Parsons and O. P. Widaman, for respondent.

TAGGART, J. This is an action to recover from the surety, on an undertaking given to release an attachment, the amount of the judgment rendered against the attached debtor. Judgment was for plaintiff, and defendant appeals from the judgment, and from an order denying its motion for a new trial.

Plaintiff brought an action in the superior court of Los Angeles county against the Pacific Furniture & Lumber Company to recover judgment on two promissory notes with interest, and attorney's fees as provided therein, and on an account for work and labor. He caused an attachment to be issued

and levied on the property of the said Pacific Furniture Company at the time the action was begun. On the same day (April 14, 1904) the defendant herein, the Etna Indemnity Company, executed and delivered to the sheriff, who held the attached property of the furniture company, the instrument here sued on, and the attached property was released and the attachment discharged. On the trial in the attachment suit the indebtedness was admitted by the defendant furniture company, but it was claimed that it was not due by reason of the execution by plaintiff and certain other creditors of the furniture company of a certain contract for forbearance extending the time of payment to September 23, 1903. Findings on this issue were for plaintiff, and on the 15th day of June, 1905, judgment in his favor was rendered against the Pacific Furniture Company for the full amount claimed. The present action was begun July 24, 1905, to recover from defendant herein, as surety on the undertaking given to release the attachment, the amount of such judgment. Defendant set up the same defense pleaded in the attachment suit, and alleged that the issues so raised were not fairly tried because of collusion between plaintiff and the defendant in the attachment suit, and asks that they may be tried on its answer in this action.

In support of the appeal, it is urged that it appears from the complaint that the action was prematurely brought because the judgment was not final under section 1049, Code Civ. Proc.; that there is no allegation of indebtedness from defendant to plaintiff; that the writ of attachment was void; that it was not alleged that any property was levied upon by virtue of said writ of attachment; and that, if the writ of attachment was not void, the property was not shown to have been released as required by law. The instrument sued on is attached to and made a part of the complaint. The allegations as to the manner of its execution and delivery would justify the assumption that it was given pursuant to the provisions of sections 554 and 555 of the Code of Civil Procedure, although these sections are not named. Some of appellant's objections to the pleading are based upon the instrument being so given, and upon this theory it is urged that the complaint fails to state a cause of action because it does not allege a compliance with all the steps and proceedings taken under those sections. To avoid these objections respondent claims the instrument to be an undertaking given under section 540 of the Code of Civil Procedure. An examination of the instrument itself shows that it is not strictly in the form required by either section 540 or section 555. The former section applies where the intention is to prevent the levy of an attachment, and the sheriff may accept an undertaking "in an amount sufficient to satisfy such demand (plaintiff's), besides costs, or in an amount equal to the value of 91 P.-27

the property which has been, or is about to be, attached." The latter section (555) provides for the release of an attachment by the court; in which event the court must quire an undertaking. "to the effect that in case the plaintiff recover judgment in the action defendant will, on demand, redeliver the attached property so released to the proper officer, to be applied to the payment of the judgment, or, in default thereof, that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released."

The instrument pleaded shows the title of the court and cause in which given, recites the claim and amount of plaintiff's claim against defendant, the issuance of the attachment, and levy thereof on "certain property and effects of said defendant," and that defendant desires to release said property from the attachment; that the surety (defendant herein), in consideration of the premises and the release of the property attached, undertakes in the sum of $4,350, "and promises that in case the plaintiff recovers judgment in the action defendant will pay to plaintiff the amount of whatever judgment may be recovered in said action, together with the percentage interest and costs."

The bond is not a forthcoming or delivery bond, but, as shown by its own provisions and the allegations of the complaint as a whole, was given to the sheriff under section 540 for the purpose of preventing a continuance of the levy upon or further holding of property which had already been attached. It is not strictly such an undertaking as that section directs him to take, but is an indemnity bond given for the benefit of plaintiff to secure the release of the property of defendant, and it accomplished that purpose. The condition of it is that the obligors will pay the judgment in consideration of the release of the attachment. It substantially conforms to the requirement of one clause of section 540 and the fair presumption, aided by the allegations of the complaint, is that it was executed with reference to that section. It would be immaterial here under which section it was given, if it were not that the meaning and intentions of the parties are to be ascertained by the light of the statute. Heynemann v. Eder, 17 Cal. 434. Such an undertaking may be given either to prevent or to release an attachment. Section 540; Curiac v. Packard, 29 Cal. 200. If voluntarily given to the sheriff to secure a redelivery or release of the property attached, it would be valid at common law (Palmer v. Vance, 13 Cal. 553), and its recitals are conclusive as against the obligor whether it be a statutory or common-law bond. McMillan v. Dana, 18 Cal. 339, p. 347. Quoting approvingly from the opinion in the case last cited, the Supreme Court says, in McCormick v. National Surety Co., 134 Cal. 513, 66 Pac. 741: "Nor does it matter whether the property was subject to the attachment or not,

That matter cannot be tried in this collateral way. It is enough that the plaintiff had this property levied on as subject to his debt, and that the sureties procured its release upon the stipulation that in consideration of such release they would pay the amount of the judgment to be recovered by the plaintiff in the attachment suit." The same rules apply if the bond be considered as a common-law bond. Speaking of a bond given to release an attachment which was held not to have been given pursuant to either section 540 or section 555, Code Civ. Proc., the Supreme Court says: "Whatever the obligor obligor recites in a bond to be true may be taken as true against him, and need not be averred in a complaint on such bond, or proved on the trial." Smith v. Fargo, 57 Cal. 157. Whether the undertaking be in statutory form or good only as a common-law bond is immaterial. Gardner v. Donnelly, 86 Cal. 372, 24 Pac. 1072.

Considering the points urged by appellant in the reverse order of their mention, its contention that the attachment was not released as required by law is based upon the assumption that the undertaking was given under section 555 and an order of the court necessary for the release of the attached property. No order was required, as the writ of attachment itself directed the sheriff to take such an undertaking and either not attach, or release the property attached, as the circumstances required. The allegation of the complaint that the Pacific Furniture Company "appeared in said action" may be treated as surplusage. The defendant is estopped by the recitals in its own written obligation, the bond, from saying that no property was levied on by virtue of the writ of attachment.

The complaint alleges an indebtedness from defendant to plaintiff with sufficient clearness, and the case of Provident Mutual, etc., v. Davis. 143 Cal. 253, 76 Pac. 1031, cited by appellant, has no application here. The recitals in the bond also conclude the defendant here as to the sufficiency of the affidavit upon which the attachment was based, and of the writ. itself. That the former was false, or the latter did not state the amount of the plaintiff's demands in conforinity with the complaint, cannot be questioned by defendant. If these matters, or either of them, were open to question at this time and in this manner, the rulings of the trial court in this connection would still have to be sustained. Porter v. Pico, 55 Cal. 173: Scrivener v. Dietz, 68 Cal. 1. 8 Pac. 609: Harvey v. Foster, 64 Cal. 296, 30 Pac. 849.

This is an action on a bond, and not on the judgment rendered in the action of Bailey v. l'acific Furniture Co. The bond was given to take the place of the security obtained by attaching certain personal property of the defendant in that action. The attachment issued and the property was

seized that it might be available for the execution of the judgment which plaintiff expected to and did subsequently obtain against the Pacific Furniture Company in the superior court. Unless an appeal had been taken at once, and a stay bond given, the plaintiff could, and no doubt would, have proceeded to sell the property attached to satisfy the judgment of the superior court. This, it is admitted, could have been done, but it is claimed that it is so only because of express statutuory authorization. It is provided by section 552 that, if the execution be returned unsatisfied in whole, or in part, the plaintiff may prosecute any undertaking given pursuant to either section 540 or sec tion 555; and the complaint alleges an execution was issued on the judgment and returned wholly unsatisfied.

The attachment proceeding is merely auxiliary to the main action (Porter v. Pico, 55 Cal. 173), and the latter would go forward to execution whether the sheriff hell the attached property or the undertaking given for its release. There is nothing in the statute to suggest that the bond given to release attachment shall operate as a stay bond to prevent execution on the judgment for six months after its entry. For the protection of the surety, it is required that an effort shall be first made to execute against the judgment debtor. Failing in this, the substitute for the attached property is immediately available, and the bond may be enforced at once. In Cook v. Ceas, 143 Cal. 221, 77 Pac. 65, claimed by appellant to be decisive of this case, the Supreme Court, on page 226 of 143 Cal., page 67 of 77 Pac., says: "The question, then, is reduced to this: When did the order settling the account of the guardian become a binding order?" The answer to this question was: "Not until the time for appeal had passed." The question here is: "When was execution on the judgment in the attachment suit enforceable? The answer is: As soon as entered (Code Civ. Proc. 681), unless an appeal was taken at once and stay bond given. As well could it be said that it would be necessary to await the six months within which an appeal might be taken before a demand for the return of the property taken from the sheriff on a forthcoming bond could be made, or the redelivery of the property compelled. We think the case of Cook v. Ceas is easily distinguishable from the case at bar.

The findings and judgment recite: A trial of the cause before the court on its merits; the introduction of evidence by the plaintiff and by the defendant; that the latter sought to introduce testimony which was objected to on the ground that the answer failed to state a defense, and that the defendant thereupon announced that it elected to stand upon the answer as framed and declined to amend or offer further testimony. The transcript of the proceedings at the trial support these recitals in every particular. This, appellant

the pleadings, the introduction of evidence becomes mere surplusage, and questions of Its weight and admissibility are immaterial. Judgment and order appealed from affirmed.

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

contends, shows that the judgment was on
the pleadings, and that therefore a new trial
should be ordered, that the findings on the
evidence introduced may be stricken out and
the judgment be made to declare on its face
that it is based on the pleadings. Consider-
ing the judgment as one rendered on the
pleadings (which it is), the conclusion sug-
gested by appellant does not necessarily fol-
low. There is but one finding of fact by the
court, and that is the general one that "each
and every allegation contained in the plain-
tiff's complaint are true." This is but the
express finding of that which is impliedly
found by a judgment for plaintiff on the
pleadings. A judgment on the pleadings is
a judgment on the merits under our Code. 1. SHIPPING-INJURY OF PASSENGER
Sections 581, 582, Code Civ. Proc.

The ruling of the trial court as to the sufficiency of the answer was correct. The denials therein are of conclusions of law and of those matters as to which defendant is concluded by the recitals in the bond. The facts alleged in the affirmative defense are not sufficient to constitute either a defense or counterclaim. An answer claiming the relief here sought by defendant must show not only the facts constituting the fraud which prevented a fair judgment from being rendered in the former action, but it must also show that there was a good defense to the original action upon the merits, and that the defendant will be able to present this defense upon a new trial. These matters must be alleged, not in the form of conclusions, or ultimate facts, but in the same manner as the facts constituting the fraud. That is, the particular facts which were not presented upon the trial of the original action, by reason of the fraud complained of, must be set out, and accompanied by an allegation that the complaining party has the ability to produce evidence upon any new trial that may be granted to establish such facts as alleged. In reaching this conclusion we recognize the rule invoked by appellant that each case of fraud must be determined upon its own circumstances. Here it is claimed that there was a collusive failure to introduce available evidence constituting a defense upon the original trial. The details of this failure should be pleaded and the ability of the defendant in this action to supply, upon a new trial, the evidence which was willfully suppressed upon the former trial should be clearly alleged. This is required to support a bill in equity to set aside a decree for fraud, or because of newly discovered evidence. The same rule is proper here. Mulford v. Cohn, 18 Cal. 46, concurring opinion, Harrison, J.; Whitney v. Kelley. 94 Cal. 153, 23 Pac. 624, 15 L. R. A. 813, 28 Am. St. Rep. 106.

The other objections to the count's rulings assigned as error need not be considered, as they relate to the introduction of evidence and its sufficiency. The judgment being on

(6 Cal. A. 131)

DOHERTY v. CALIFORNIA NAVIGATION & IMP. CO. (Civ. 35S.)

(Court of Appeal, Third District, California. July 12, 1907.)

DENCE.

EVI

In an action for injuries to a steamship passenger by the negligence of the captain in letting plaintiff stand unsupported while helpless from intoxication, after the captain had lifted him from the floor, so that plaintiff fell and broke his arm, evidence held to sustain a finding that the captain, with knowledge that plaintiff was intoxicated to a helpless degree, lifted him to his feet from the floor where he had been discovered asleep, and left him standing without any support, by reason of which plaintiff fell to the floor and broke his arm, without contributory negligence on his part, and that by reason thereof he suffered pain and loss to the amount of $575. 2. SAME-CARE REQUIRed.

Where the captain of a steamship discovered a passenger lying in a drunken and helpless condition on the floor; and, with knowledge of his helplessness, lifted him to his feet, and left him without any support, whereupon he fell and broke his arm, the captain did not exercise the full degree of care required by rendering assistance sufficient in the case of a sober man, but was bound to exercise such care as he could to avoid an accident in the situation presented to him.

3. APPEAL REVIEW - MATTERS OF DISCRE

TION-AMENDMENT.

Under Code Civ. Proc. § 473, authorizing the court to grant amendments in the interest of justice, the exercise of the court's discretion in that regard will not be disturbed on appeal except where abuse of discretion is shown.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3825.] 4. PLEADING PROOF.

AMENDMEnt-ConforMITY

ΤΟ

Where, in an action against the owners of a vessel for injuries to a drunken passenger, the case was submitted without argument, whereupon the trial judge stated what facts he regarded as proven, and called for authorities on the duty which the officers of the boat owed to a drunken man, it was a proper exercise of discretion to permit plaintiff then to amend his complaint to conform to the facts so proven.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 603.]

Appeal from Superior Court, San Joaquin County; Frank H. Smith, Judge.

Action by Barney Doherty against the California Navigation & Improvement Company. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Affirmed.

Arthur L. Levinsky, for appellant. D. M. Young and W. N. Rutherford, for respondent.

CHIPMAN, P. J. Action for personal injury. The cause was tried by the court sitting as a jury. Findings and judgment were for plaintiff, and the damages for the injury received by him were assessed at $575. Defendant appeals from the judgment and from the order denying its motion for a new trial.

Plaintiff paid his fare and took passage on defendant's steamer at San Francisco bound for the city of Stockton. The circumstances attending the injury and the facts upon which the judgment rests are concisely set forth in the following findings:

"Fourth. That after the payment by said plaintiff to the defendant of said fare, and while plaintiff was on said steamer as a passenger on his way from said city, of San Francisco to said city of Stockton, and before the completion of said trip, the servants and agents of the defendant, employed by said defendant in and upon said steamboat, "T. C. Walker,' and in the operation thereof, and who were at said time in charge of and in the management and control of said steamer, "T. C. Walker,' to wit, the captain of said boat, carelessly and negligently raised plaintiff from the floor of said steamboat where plaintiff was lying in an intoxicated condition, and placed plaintiff upon his feet, and carelessly and negligently turned plaintiff loose, and left him standing upon the floor of said boat unsupported while intoxicated and unable to stand without support, and that by reason of thus being raised from the floor and left standing without support when intoxicated, and being unable to stand without support, plaintiff was caused to fall upon the floor of said steamboat, and by reason of said fall plaintiff's left arm was broken.

"Fifth. That at the time the said captain of said boat raised plaintiff from the floor of said boat and left him standing unsupported plaintiff was intoxicated to a degree of helplessness and was unable to stand unsupported, was asleep or apparently asleep, and was limp and made no attempt to get on his feet, or to either assist or resist being placed upon his feet, and that before placing plaintiff upon his feet and turning him loose the said captain had knowledge of plaintiff's drunken and helpless condition, and of the fact that he was asleep or apparently asleep, and knew that he was liable to fall and sustain injury if placed on his feet and left standing unsupported.

"Sixth. That plaintiff was intoxicated when received as a passenger by defendant as herein found, and that at and before the time plaintiff was so received the said captain of said boat knew that plaintiff was intoxicated to such an extent as rendered it necessary for him to have support to enable him to stand upon his feet; and said captain knew that plaintiff continued to drink after taking passage on said boat and before he was injured.

"Seventh. That plaintiff's said injury was not proximately caused by his own carelessness or negligence or contributory negligence, or by his drunkenness, but was proximately caused by the negligent act of the captain of said boat in placing him on his feet and turning him loose unsupported when drunk to a degree of helplessness and asleep or apparently asleep.

"Eighth. That, by reason of the breaking of plaintiff's arm as above found, he suffered physical pain, and was for five months incapacitated from working, and that his arm is still sore and painful, and will be for some time, when employed at labor, by reason of all of which plaintiff has been damaged in the sum of $475, and that plaintiff was compelled to and did employ a physician and surgeon to treat his said arm and incurred an indebtedness therefor of $100, and that he was thereby further damaged in the sum of $100."

Appellant's main contention is that the decision and judgment are not supported by the evidence. There is evidence that plaintiff was intoxicated when he came aboard the steamer. The captain testified: "When I first saw him on the dock, he was drunk, but he was able to walk; that is, by steadying himself against the passenger gangway. He always steadied himself. I did not see him walk without any support. I was apprised of the fact by what I saw that he needed support to stand alone." Plaintiff found his way to the cabin, and not long after the steamer was under way he was found lying on the cabin floor in the smoking room. An unsuccessful effort was made to arouse him and set him onto a seat, but he soon resumed his sprawling position on the floor. The attention of the captain was called to him by Mr. Fraser, the purser. The captain testified: "I went with Mr. Fraser, and told him to get off the floor, and he never paid any attention to me. He was asleep. I picked him up off the floor; that is, I picked him up off the floor and stood him on his feet. When I got him on his feet, he was standing very nearly erect, and I let go again, and when I let go of him he stood for a second. and then fell backwards." Again he testified: "I saw the cabin watchman lift him off the floor previous to the time I saw him there, which was after I had collected the tickets. I would say he was drunk. He was not beastly drunk. He didn't know hardly what he was doing, anyhow. I had already seen it was necessary to pick him up when he was down." It further appeared from the captain's testimony that, when he lifted plaintiff to his feet, he made no effort to support him or prevent his falling or attempt to catch him as he was falling; that plaintiff did not help himself in being put upon his feet, but was "perfectly helpless" in the captain's hands. "He looked like he was asleep-apparently asleep. Q. You Q. To

were watching him? A. Yes, sir.

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