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see what he would do? A. Yes, sir. Q. You knew he was drunk? A. I knew he was drunk; yes, sir. Q. You wanted to see if he would fall down or not? A. Yes, sir. Q. You stood him on his feet to see whether he could stand or fall down? A. No, sir; I did not. I picked him up to take him downstairs. Q. The first time, though, you wanted to see whether he could stand up or not? A. Yes, sir; I stood him up; yes, sir." There was much testimony as to the condition of intoxication in which plaintiff was suffering at the time and as to his treatment by the captain at the time of the injury. We are satisfied that there was sufficient evidence to justify the fourth, fifth, sixth, seventh, and eighth findings. Of the sixth finding it should be remarked that there is no direct evidence that the captain knew that plaintiff had been drinking after he came aboard the steamer, although there is evidence that the purser knew it, as is conceded by appellant. The fact is not material in view of the findings as to the drunken condition of plaintiff.

The seventh finding being a finding savoring of both fact and conclusions of law raises the question most seriously urged by appellant, and will next receive attention. Appellant's position is thus stated by its learned counsel: "It is our contention that the servants of the defendant were called upon to give the plaintiff, who was in a state of intoxication, no other or further care than they would have to, when called upon, under the law, to give him sober." "The cases," it is further contended, "all support the following rule, 'Intoxication does not excuse the omission to use the same care and prudence which are required of a sober man under the same circumstances to protect himself against injury'"-citing Fisher v. W. Va. & P. R. Co., 42 W. Va. 183, 24 S. E. 570, 33 L. R. A. 69; Price v. Pha. W. & R. R. Co., 84 Md. 506, 36 Atl. 263, 36 L. R. A. 213. In further support of its contention appellant cites Milliman v. N. Y. C. & H. R. R. Co., 66 N. Y. 643; Beach on Contributory Negligence, § 151; 1 Thompson on Negligence, p. 450; Shearman & Redfield on Negligence, § 25. There was evidence that plaintiff was lying near the cabin door, and so that, when being opened, it would strike his head, and that in lying on the floor plaintiff was violating a rule of the vessel. We cannot see that these additional facts are material in determining defendant's liability under the circumstances disclosed. Conceding that the captain was discharging a duty in removing plaintiff from a place of danger which plaintiff occupied in violation of a rule of the vessel, still the captain had no right, knowing as he did the helpless condition of plaintiff, to remove him in such a manner as he must have known would in all probability, and in fact did, cause the injury. We cannot subscribe to the doctrine contended for by appellant, that

no greater duty was cast upon defendant in dealing with plaintiff drunk than with plaintiff sober. In discussing the effect of plaintiff's drunkenness as contributory negligence, the court, in Wheeler v. Grand Trunk Ry. Co. of Canada, 50 Atl. 103, 70 N. H. 607, 54 L. R. A. 955, correctly stated the law as follows: "For an injury resulting from prior or concurrent negligence contributed he could not recover; but, if the defendants with knowledge of the plaintiff's danger in the performance of the duty owed by them could have prevented the injury, they were bound to do so, and their breach of duty would be the legal cause of the injury, unless at the time of the injury the plaintiff by the exercise of due care could have avoided it. If the plaintiff could not have prevented the injury to himself and the defendants could by the care the situation required of them they are liable if they did not, although the plaintiff's inability resulted from his prior negligence or intoxication. If due care on the part of either at the time of the injury would prevent it, the antecedent negligence of one or both parties is immaterial, except it may be as one of the circumstances by which the requisite measure of care is to be determined. In such a case the law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct. The latter * * is the cause of the danger, the former is the cause of the injury. (Citing numerous cases.) * * * The defendants' answer is that the plaintiff's incapacity was produced by his voluntary intoxication. But, if it were established that the plaintiff's incapacity and irresponsibility were known to the defendants, the cause of his condition is entirely immaterial.'" The true principle is enunciated by our Supreme Court: He who knows of a danger and can avoid it as against one who does not in fact know the danger, or as against one within whose power does not lie the ability to avoid the accident. is responsible for the injury. Esrey v. S. P. Co., 103 Cal. 541, 37 Pac. 500; Lee v. Market St. Ry. Co., 135 Cal. 293, 67 Pac. 765: Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 74 Pac. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85. Or, as is otherwise stated: "One having an opportunity by the exercise of proper care to avoid injuring another must do so, notwithstanding the latter has placed himself in a situation of danger by his own negligence." Lee v. Market St. Ry. Co., supra.

Appellant calls attention in his brief to several exceptions taken in the course of the trial. We find no prejudicial error in any of the rulings of the court. Exception numbered 19 is the only one noticed in appellant's brief, and calls only for passing comment. At the conclusion of the evidence counsel for both parties stated that they would submit the case without argument. The trial judge then stated what facts he

regarded as proven in the case, and called | September 19, 1903, the business conducted

for authorities. "upon the duty which the officers of the boat owe to a man that is drunk." In view of the statement made by the judge, as to the facts, counsel for plaintiff asked and obtained leave to amend the complaint to conform thereto. Defendant objected to leave being granted and took exception to the ruling of the court. Under section 473, Code Civ. Proc., the power to allow amendments in the interest of justice is within the discretion of the trial court, and its action will not be disturbed, except where an abuse of discretion is shown. Lee v. Murphy, 119 Cal. 364, 51 Pac. 549, 955.

There are no facts disclosed in the present case of which an abuse of discretion may be predicated.

The judgment and order are affirmed.

We concur: BURNETT, J.; HART, J.

(6 Cal. App. 101) NORTHUP v. ALTADENA MINING & IN VESTMENT SYNDICATE et al. (Civ. 344.)

(Court of Appeal, First District, California. July 10, 1907.)



Where a syndicate executed a note to plaintiff for part of the price of a business, which the syndicate thereafter transferred to a corporation in return for stock and the corporation's agreement to pay the syndicate's debts, including the note, plaintiff was entitled to sue the corporation on its agreement to pay the note, under Civ. Code. § 1559. providing that a contract made expressly for the benefit of a third person may be enforced by him at any time before the parties rescind it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 798.]

Appeal from Superior Court, Santa Clara County; A. L. Rhodes, Judge.

Action by E. J. Northup against the Altadena Mining & Investment Syndicate and another. From a judgment for plaintiff against both defendants, and from an order denying their motion for a new trial. they appeal. Affirmed.

A. A. Caldwell, for appellants. W. A. Beasly and H. Ray Fry, for respondent.

KERRIGAN, J. This is an action upon a promissory note. Plaintiff had judgment against both defendants, and from this judgment and an order denying their motion for a new trial defendants appeal.

In June, 1903, plaintiff, who for several years prior to that time had been a piano and music dealer in the city of San Jose, conducting business under the name of the "Northup Piano House," sold that business to the Altadena Mining & Investment Syndicate (hereinafter called the Altadena Syndicate), and took from it in consideration therefor the note in suit, payable August 27, 1904.

under the name of the Northup Piano House was incorporated. December 29, 1903, the business of the Northup Piano House, including all accounts, leases, books, fixtures, etc., by an instrument in writing, was transferred from the Altadena Syndicate to the newly organized Northup Piano House, a corporation. The latter corporation, as consideration for the transfer, gave the Altadena Syndicate 3,000 shares of its capital stock, and agreed to pay its debts, including the promissory note in suit here of $2,000. The Northup Piano House corporation has paid all the debts of the Altadena Syndicate thus assumed except this note, and it has paid part of that. The Northup Piano IIouse business was the principal asset of the Altadena Syndicate.

The question for decision is whether the appellant Northup Piano House, a corporation, is liable to respondent on this contract; respondent claiming that it was made for his benefit. To recapitulate the terms of the contract, appellant corporation Northup Piano House accepted a transfer from the Altadena Syndicate of the Northup Piano House business, and as a part of the consideration therefor agreed to pay the debts of the latter, including respondent's note. This contract was made for the benefit of respondent, and he has a right of action founded on it. See section 1559, Civ. Code; McLaren v. Hutchinson, 22 Cal. 190, 83 Am. Dec. 59; Sacramento Lumber Co. v. Wagner, 67 Cal. 295, 7 Pac. 705; Malone v. Cresent M. & T. Co., 77 Cal. 44, 18 Pac. 858; Tevis v. Savage, 130 Cal. 411, 62 Pac. 611; Washer v. Independent M. & D. Co., 142 Cal. 702, 76 Pac. 654. In the case of McLaren v. Hutchinson, 18 Cal. 180, Hutchinson purchased land from Beach, and as a part of the consideration therefor agreed to pay the debts due to McLaren from Beach. It was held that McLaren, the plaintiff, was not a party to the agreement, and the action could not be maintained. Speaking of this case, the Supreme Court, in Lewis v. Covillaud, 21 Cal. 189, said: "Since the case of McLaren v. Hutchinson has been decided the matter has frequently been called to our attention, and we are by no means satisfied with the rule laid down. The agreement was founded upon sufficient consideration, and the modern doctrine in such cases seems to be in favor of the maintenance of the action." In the case of Sacramento Lumber Co. v. Wagner, supra, it is said: "We are satisfied that an action like that described in McLaren v. Hutchinson may be maintained."

This disposes of the principal point in the case. Other matters discussed in the briefs do not merit attention.

It follows that the judgment and order appealed from should be affirmed; and it is so ordered.

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

(6 Cal. App. 111)

MCGINN v. WILLEY et al. (Civ. 286.) (Court of Appeal, Third District, California. July 10. 1907.)


Where school trustees in their individual capacity agree with one to employ him as a teacher and afterwards in regular session as a board repudiate or disregard the agreement, such person is without redress, since the agree ment was void, as against public policy.

Appeal from Superior Court, Tuolumne County; G. W. Nicol, Judge.

Action by Annie McGinn against Charles Willey and another. From a judgment of dismissal upon failure to amend the complaint after order sustaining a demurrer, plaintiff appeals. Affirmed.

J. F. Rooney, for appellant. E. W. Holland, for respondents.

BURNETT, J. The action is for damages for the violation by defendants of their agreement to employ plaintiff as teacher in the primary department of the public school of the Poverty Hill school district, Tuolumne county. The appeal is from a judgment of dismissal upon failure to amend the complaint after order sustaining a demurrer.

The complaint alleges "that the said defendants, as trustees of the said Poverty Hill school district, on the 1st day of July, 1905. and at other times prior thereto. promised and agreed to employ this plaintiff to teach the pupils who might attend the primary department of the public school of the said Poverty Hill school district for the ensuing term, commencing on or about the 11th day of September. 1905, and ending on


of June, 1906, at the salary of $60 per month." Then follow the averments that plaintiff agreed with said defendants to teach said school upon said terms, and that she made her application on said date to the board of trustees to be appointed to said position, and "that the said defendants on the said 1st day of July, 1905. without any cause or justification, disregarded and violated their said agreement made with this plaintiff as aforesaid, and refused to appoint this plaintiff as the teacher to teach said department, and the said defendants then and there appointed Laura Hartvig to teach said primary department." It is clear that the court below properly sustained the demurrer to the complaint. The agreement upon which plaintiff relied is against public policy, and void. If the trustees of a public school district in their individual capacity agree with a person to employ him as teacher and afterwards in regular session as a board of trustees they repudiate or disregard their agreement and en.ploy some one else, the former person is without redress. The matter is well stated in McCortle v. Bates, 29 Ohio St. 419, 23 Am. Rep. 758: "Clothed with such powers, and charged with such duties and such responsibilities, it will not be per

mitted to them to make any agreement among themselves, or with others, by which their public action is to be, or may be, restrained or embarrassed, or its freedom in anywise affected or impaired. The public for whom they act have the right to their best judgment after free and full discussion und consultation among themselves of, and upon, the public matters intrusted to them, in the session provided for by the statute. This cannot be when the members, by pre-engagement are under contract to pursue a certain line of argument or action, whether the same be conducive to the public good or not. It is one of the oldest rules of the common law that contracts contrary to sound morals, or against public policy, will not be enforced by courts of justice, and the court will not enter on the inquiry, whether such contract would, or would not, in a given case, be injurious in its consequences if enforced. It being against the public interest to enforce it, the law refuses to recognize its claim to validity." The party who brings an action for damages for the violation of such an agreement is in no better position than one who should sue for specific performance. In either case the law leaves the parties where it finds them.

The judgment is affirmed.

We concur: CHIPMAN, P. J.; HART, J.

(6 Cal. App. 83) CODONI v. DONATI. (Civ. 352.) (Court of Appeal, Second District, California. July 8, 1907.)


Desertion of a wife by her husband is a necessary element of an action by her against another for alienation of her husband's affections.


That plaintiff's husband went to an ad- . joining county without her knowledge, where he remained for seven days, was insufficient of itself to establish desertion sufficient to entitle her to maintain an action for alienation of affections.



It is the right of a husband to select the home and the duty of the wife to go to him at his request, when he furnishes the means for that purpose.

[Ed. Note. For cases in point. see Cent. Dig. vol. 17. Domicile, § 25.]

Appeal from Superior Court, San Luis Obispo County; E. P. Unangst, Judge.

Action by Rufina Codoni against V. L. Donati. From a judgment in favor of plaintiff, and from an order denying defendant's motion for a new trial, he appeals. Reversed and remanded.

A. E. Campbell and W. II. Spencer, for appellant. Louis Lamy and Wm. Mallagh, for respondent.

PER CURIAM. An action for damages claimed by reason of defendant having alien

ated from plaintiff the affections of her husband.

The principal matter relied upon by appellant relates to the sufficiency of the evidence to support the findings. An examination of the record indicates that there is no testimony in support of the implied finding that the affections of plaintiff's husband were actually alienated. There is in the record that which may be said to be sufficient to establish an attempt upon the part of defendant to create dissatisfaction upon the part of the husband, and had such effort been followed with desertion, or with proof of facts tending to show that the affections of the husband had been actually alienated, we would not be inclined to disturb the verdict. It appears, however, from the record that the relations between plaintiff and her husband were pleasant up until his departure from this country on a visit to his native land; that while the husband was on such visit defendant wrote a letter to him which might well have had the effect to induce a separation, but, notwithstanding this letter, the husband returned to his wife, brought back with him presents, resumed marital relations, and on the 26th day of September, in company with his wife, attended a picnic near their home. After their return from the picnic, the husband accepted an invitation from defendant to attend a dinner at the house of defendant, to which function the plaintiff was not an invited guest, for the admitted reason that she and the wife of defendant were not on friendly terms. The husband, however, returned to his home on the day following, spent the night of the 27th of September with his wife, and everything was pleasant and agreeable between them, on which occasion he opened his valise and distributed the presents to his wife and daughter. On the 28th of September the husband went to Salinas, from which point he wrote two letters to his wife, and also telephoned her. On the 31st of October he inclosed in one of the letters written the sum of $5 with which to pay the railroad fare of the plaintiff and her child to Salinas Neither of these letters was answered, nor did the plaintiff go to her husband. She used the money for another purpose, and her reason for not going to him upon his demand was that she thought he might be playing her a trick, and for the reason that he had published a card in the newspaper, after this suit was brought, in which he stated that he had not abandoned his wife and did not intend so to do. There is not a particle of testimony in the record from which it may be inferred that the husband ever intended to abandon his wife, or that he had lost affection for her.

This action was brought on the 5th day of October, within a week after the husband went to Salinas, and the record shows that after this action was brought the husband made all reasonable efforts to induce the

wife to go to Salinas and live with him. We are satisfied that the facts of this case bring it within the rule announced by Mr. Justice McFarland in the case of Driscoll v. Cable Railway Company, 97 Cal. 553, 32 Pac. 591, 33 Am. St. Rep. 203: "When a jury catches at a mere semblance or pretense of evidence for the purpose of somewhat equalizing financial conditions by taking money from one party and giving it to the other without legal cause, the trial judge should, without hesitation, set the verdict aside; and, in the event of his not doing so, this court will grant a new trial." In our opinion there was no evidence of desertion, without which the verdict was unwarranted. The mere fact that the husband without his wife's knowledge had gone to an adjoining county where he had remained for a périod of seven days is not sufficient to establish desertion within the meaning of the statute. It was his right to select the home, and it was the duty of the wife to have gone to him when he sent her the money with which to come. The verdict in this case seems to have been rendered upon what, at most, is "a mere semblance of evidence." The court should have granted a new trial. The judgment and order are reversed, and cause remanded for a new trial.

(6 Cal. App. 80)

STOWER v. KAMPHEFNER. (Civ. 350.) (Court of Appeal, Second District, California. July 8, 1907.)


1. PARTNERSHIP DISSOLUTION TER OF ASSETS-FINDINGS. Where, in a proceeding for the dissolution of a partnership, the referee's report found that the assets at the date of the report consisted of "unsold personal property, wagon scales, barn, two tanks, one coalhouse, one oilhouse," the report sufficiently found that the oilhouse, coalhouse, and barn were personal property.


Where a referee's report in proceedings for the dissolution of a firm purported to cover all its assets, but did not include any interest in land on which certain buildings belonging to the firm were located, it was immaterial that the court failed to find what interest, if any, the firm had in the lands.


A store building occupied by a firm was destroyed by fire in June, 1903, at which time the walls of the building belonged to the firm. A referee's report in dissolution proceedings failed to include the walls of the building as a part of the assets, but showed that a valuation had been placed thereon, and that defendant had been charged with "building" at the amount of such valuation. Held sufficient to justify a presumption on appeal that the walls had been legally disposed of, and that the proceeds had been applied in reduction of liabilities. 4. PARTNERSHIP DISSOLUTION - ACCOUNTING-FINDINGS DESCRIPTION OF REAL ES


In a proceeding for the dissolution of a firm, findings as to the assets of the firm were not objectionable for failure to specifically describe certain real estate owned by it. 5. SAME-PERSONAL DEcree.

No personal decree should be rendered in partnership dissolution proceedings against in

dividual partners until the assets have been converted into money.

Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Action by A. C. Stower against Rosa Kamphefner. From a judgment for plaintiff, defendant appeals. Affirmed.

John E. Daly, A. D. Laughlin and R. B. Bidwell, for appellant. E. A. Miller and Bowen & Miller, for respondent.

SHAW, J. Action for accounting and dissolution of copartnership. The appeal is from the judgment. The issues were referred to a referee, and upon the filing of his report the court adopted the same as its finding, and rendered an interlocutory decree dissolving the partnership and ordered the referee to sell the assets then belonging to the firm and pay the proceeds received from the sale thereof to the creditors. The referee, after making the sale and disbursement of the proceeds in accordance with the order, so reported to the court, which thereupon rendered its final decree, from which this appeal is taken.

Appellant contends for a reversal of the judgment upon the ground that there is no finding as to whether or not certain buildings belonging to the partnership constituted real or personal property. The buildings in question consisted of an oilhouse, coalhouse, barn, and walls of a store building. The objection as to all of said buildings, other than the walls of the store building, is fully answered by that part of the report wherein it is found: "The assets at this date are unsold personal property, wagon scales, barn, two tanks, one coalhouse, one oilhouse."

It is further contended the court failed to find what interest, if any, the partnership had in the lands upon which such buildings were located and in whom the title in said lands vested. The real estate upon which the buildings were erected was not included in the report of the referee, which purports to cover all the assets of the firm, and, as the assets did not include the land, it was immaterial in whom the title vested, inasmuch as it was not a partnership asset. The store building was destroyed by fire on July 16, 1903. The report of the referee was filed November 22, 1904. Among other assets, it was found that the firm at the time of the fire owned "walls of store building." These walls were not included in the assets at the time of making the report, and we must, therefore, conclude that, like other assets of the copartnership, they had been legally disposed of and the proceeds arising from such disposition applied in reduction of the liabilities. The valuation placed upon these walls is $400. Appellant is charged with "building" in the sum of $400, and it is apparent that the "walls of store building" reported among the assets after the fire and thereafter

charged to appellant as "building" are identical.

It is further objected that the findings do not describe the lot in Glendora, and hence there was no finding to support the description of this lot as set forth in the interlocutory decree. We can see no reason for giving a particular description of the lot any more than to particularly describe other of the assets belonging to the copartnership; nor does appellant cite us to any authority requiring such description.

There is no ground for the contention that the findings are inconsistent. The "sundry unpaid accounts, amounting to $392.80," added to the "balance due A. C. Stower," separately found, constitute the "present liabilities" of $1.610.26. "No personal decree is to be rendered against individual partners until the assets have been converted into money." Clark v. Hewitt, 136 Cal. 77, 68 Pac. 303; Rosenstiel v. Gray, 112 III. 282. It sufficiently appears there was a full and complete accounting of the copartnership affairs before the rendition of the final decree, and that all the partnership assets had been marshaled and converted into money before the decree was rendered.

The judgment is affirmed.

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A complaint alleging that defendant owned and operated a canal through which water was conducted for irrigation purposes, and, in connection therewith, at a place near plaintiff's land, a headgate, that the water washed out the headgate and portions of the bank and overflowed plaintiff's land, and that the damage thus caused was due to defendant's gross and willful negligence in failing to properly construct the canal and headgate, and in failing to properly maintain the headgate and to control the water in the canal, was sufficiently specific as to the manner in which defendant was guilty of the negligence charged.


Error, if any. in overruling a demurrer to a complaint on the ground of uncertainty, was cured where the answer denied all the material averments, and issues involving all the important questions which could arise were fairly made and squarely presented.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3. Appeal and Error, § 4098.] 3. SAME-DISCRETION OF COURT--ALLOWANCE AND PERFECTING OF APPEAL.

Code Civ. Proc. § 661, provides that where a motion for a new trial is made on the minutes of the court, the judgment roll, and a statement to be subsequently prepared, with a copy of the order, shall constitute the record on appeal, such statement to be proposed within 10 days of the entry of the order, or such further time as may be allowed, and to be served on the adverse party. Held, that where an

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