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valid. No substantial right of the original contractor under the judgment of lien is affected. Hence he was not a party interested in maintaining it, and not an adverse party upon whom a notice of appeal should have been served.

The District Court of Appeal in dismissing this appeal when the matter was before it based its decision on Lancaster v. Maxwell, 103 Cal. 67, 36 Pac. 951, which it cited as justifying its action. In that case, however, it does not appear that any personal judgment was rendered against the original contractor fixing a primary liability on his part to the subcontractor for the entire amount of his claim. The personal judgment there rendered was for such a deficiency as appeared after the sale of the property, and this fact seems to have controlled the decision. In the case at bar the personal judg ment is for the entire amount of the claim, separate and distinct from any deficiency judgment which it is provided shall be docketed against the original contractor. Nothing is said in the portion of the judgment providing for such docketing that it shall be docketed as a personal judgment. This would be its effect, not, however, by virtue of the provision for docketing, but because independent of it there was a personal judgment expressly given against the original contractor in another part of the judgment. If, in the case at bar, the judgment, so far as it established a lien, were reversed and the deficiency judgment provided to be docketed against the original contractor were to fall with it, this would nevertheless leave the personal judgment against the original contractor entered against him elsewhere unaffected and subject to enforcement upon execution. Aside from this, in the Maxwell Case, the effect of section 1193 of the Code of Civil Procedure upon the rights of the owner of the premises affected by the lien against the original contractor did not seem to have been presented for consideration, nor the record examined upon the merits of the appeal to ascertain whether applying this section to the matters disclosed by it, and properly to be considered on the motion, any injury to the original contractor could possibly result from a reversal of the judgment establishing the lien. The consideration of these matters differentiates this case from the Maxwell Case sufficiently to make the ruling there inapplicable here, even if that ruling should be deemed correct in principle upon the record to which it is applied, which, we think, is extremely doubtful. The motion to dismiss the appeal is therefore denied.

Now, as to a consideration of the appeal on its merits. Aside from the question of attorney's fees, the principal contention of appellant is that the findings made by the court in support of the judgment in favor of the plaintiff are not sustained by the evidence. As we have heretofore stated, appel

lant entered into a contract with J. E. Harris to erect a building for him for the sum of $7,600, according to certain plans and specifications, and the respondent as subcontractor contracted with the latter to do the plastering and hard finish work according to specifications providing therefor for the sum of $750. As the work progressed, he was paid the amount of his contract price, except $178, for which the lien herein was filed and to recover which the suit was brought. The court found that plaintiff completed his contract according to its terms, and it is claimed that this tinding is not supported by the evidence because there were certain discolorations on the plastering appearing after the completion of the work. The contract between the owner and the original contractor for the construction of the building contained specifications relative to the plastering thereof, and the contract between plaintiff and said original contractor embraced these latter specifications. The specifications set forth in detail the character and quality of the material to be furnished for the mortar and hard finish to be used in the work, the manner in which they should be compounded and applied and the work done, and the evidence shows that in discharging his contract plaintiff used exactly the materials that were required by the specifications and performed the work in a workmanlike manner, but that upon its completion portions of the surface of the walls showed a yellowish tint appearing in some places in streaks and in others in spots of a cloudlike form. How these discolorations were caused is not disclosed by the evidence. In fact, the testimony showed that the cause of them was unknown. Such discolorations might occur, the evidence shows, from various extraneous causes having no relation to the character of the materials used or the workmanship employed, and might occur where the best material and workmanship, as in the case at bar, were used and employed and still be inexplicable. The usual result, however, of the use of good materials properly applied is to produce a white coat or surface on the walls, and it is insisted by appellant that because that was not the result of the work of plaintiff his contract was not properly performed; that it was the duty of plaintiff to show that such discolorations were occasioned by some cause for which he was not responsible. In that connection it is insisted that there was both an express and implied warranty accompanying his contract that the rooms should be finished so that the walls would be white. The express warranty is based upon a provision of the main contract between the owner and the original contractor that the latter was to deliver appellant the building properly and entirely finished and "in an undamaged state." It is sufficient, however, on this point to say that the subcontractor was not a party to this main contract, its provi sions were not incorporated in his contract

with the original contractor, and he is not bound by its terms. His contract was with the original contractor alone, and related solely to doing the plastering and hard finishing according to the requirements of the specifications in the main contract, and he is only bound by the terms of his agreement in that respect, and it is not claimed that the agreement between plaintiff and the original contractor contained any requirement or warranty that the walls should be of any particular color.

But it is said there was an implied warranty that they should be white; that as the usual result from the use of the materials specified and their application would be to produce a white surface, this result was contemplated and impliedly warranted, and it is insisted that this contention is supported by sections 1769 and 1770 of the Civil Code. The only one of these sections which could possibly have any relevancy is section 1770. That section provides that "one who manufactures an article under an order for a particular purpose warrants by the sale that it is reasonably fit for that purpose." But it is obvious that this section has no application to the matter under consideration. As its language imports, the section only applies where an article is manufactured for a particular purpose. It contemplates that the

manufacturer has selected the materials and determined the workmanship whereby the finished article is supplied for the particular purpose designed. It does not apply where the article to be furnished is to be supplied under a contract requiring that it be made according to a certain plan or certain specifications. Now, in the case at bar, we have seen that there was no express agreement that the plaintiff should plaster and hard finish the appellant's house so as to leave the walls white. There was no agreement that any particular result should follow. He did not agree generally to plaster the dwelling, which would leave to him the selection of the materials and the method of doing the work. His agreement was to do it in a way that the owner and the original contractor had designed, according to the specifications which they had agreed on. He had no discretion in the matter. When he followed strictly those specifications, used exactly the materials they called for in the composition of the mortar and hard finish, and applied them in a workmanlike manner, he did all his contract called for. He did not contract for results, but only to do the work in a specified way. If the usual result of white walls and ceilings did not follow, he was not responsible for it, unless there was some default on his part in furnishing the materials called for in the specifications or in doing the work with them. The court found, and the evidence fully sustained the finding. that the plaintiff had not been remiss in either particular. Under these circumstances, as he made no express warranty as to results

and plastered and hard finished the rooms with the materials specified in the contract and did the work skillfully, he did all that he had contracted to do. He did not expressly warrant any particular color, the specifications did not call for any, and, the work being done in a workmanlike manner with the materials designated in the specifications to be used, the plaintiff is not responsible under any implied warranty for the result. Bancroft v. San Francisco Tool Co., 120 Cal. 228, 52 Pac. 496; McKnight-Flintic Stone Co. v. Mayor, 160 N. Y. 72-84, 54 N. E. 661.

There is nothing in the other points made by appellant, save as to the allowance to plaintiff of $40 attorney's fees in the foreclosure of the lien. Since the appeal herein was taken, it has been decided by this court that the statute allowing attorney's fees in an action to enforce a mechanic's lien is unconstitutional. Builders' Supply Depot et al. v. O'Connor et al. (Cal. Sup.) 88 Pac. 982. This, however, only requires a modification of the judgment.

In that respect it is ordered that the judg ment be modified by striking out there from the allowance of attorney's fees, and, as so modified. the judgment is affirmed.

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Pen. Code, $ 906. providing for the discharge of a grand jury by the final adjournment of the court, adopted as a part of the Code in 1872, when terms of court existed, is not effectual in discharging a grand jury after the Constitution of 1879, under which there are no terms, and the superior court is always open for business.

3. COURTS-RULES OF DECISION.

A decision construing a statute, which has been followed for over 20 years, will not be overruled, unless clearly erroneous.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 311.]

4. GRAND JURY-TERM OF SERVICE-STATUTES -CONSTRUCTION.

Code Civ. Proc. $210, declaring that the persons whose names are returned, as provided in preceding sections for selecting jurors, shall be regular jurors, and shall serve for one year," refers only to the persons set apart as a body, from which a jury, grand or petit, may be drawn, and in that capacity they serve for one year, the term of service being the time during which they may be drawn for actual jury serv ice, and has no reference to the life of a grand jury drawn from their number.

5. SAME.

Code Civ. Proc. § 210, providing that regular jurors shall serve for one year, and until other persons are selected and returned, when considered in connection with sections 214, relating to the drawing of jurors for courts of record, and section 241, providing for the impaneling of grand juries, and Pen. Code, §§ 906, 1140, declaring that a grand jury shall be discharged by the final adjournment of the court, and providing for the discharge of a jury unable to agree, has nothing to do with the life of a jury, grand or petit, and under it a grand jury does not end because the clerk, in conformity with Code Civ. Proc. § 209. writes down the names in the list furnished in accordance with section 204, and deposits the same in the grand jury box, where no proceedings have been had under section 241 for impaneling any of the grand jurors from such list.

6. SAME.

The object of Code Civ. Proc. § 210, providing that regular jurors shall serve for a year, and until other persons are selected, is not to prevent the keeping in existence any particular grand jury for an indefinite time, that being the purpose of Pen. Code, § 906, enacted at the same time, which expressly limits the life of a grand jury to the term of court for which it is impaneled.

McFarland, J., dissenting.

In Bank. Application for writ of prohibition by Theodore V. Halsey against the superior court of the city and county of San Francisco to restrain the court from proceeding with the trial of petitioner under an alleged indictment. Denied.

Bert Schlesinger, William P. Humphreys, and D. M. Delmas, for petitioner. W. H Langdon, Dist. Atty., and William Hoff Cook, Asst. Dist. Atty. (Francis J. Heney and Charles W. Cobb, of counsel), for respondent.

PER CURIAM. The petitioner seeks a writ of prohibition to restrain the superior court of the city and county of San Francisco from proceeding with his trial under a paper purporting to be an indictment, charging him with having committed a felony, which paper was presented and filed in said court as an indictment by a body of men assuming to act and acting as a grand jury of such city and county. It is claimed by petitioner that at the time of the finding and presentation of this indictment (March 20, 1907) this body of men did not constitute a grand jury at all, and that consequently the indictment is a nullity and the superior court is without power to try him on the charge therein made. Upon the oral argument it was admitted, for all the purposes of this proceeding, that this body of men was regularly and legally drawn from the names in the grand jury box for the year 1906, and regularly impaneled and organized as the grand jury of said city and county on the 9th day of November, 1906, and has never been discharged by any order of the court, but ever since such impanelment and organization has continued to act as the grand jury of the city and county, and has always been recognized by the superior court as such grand jury. Petitioner's claim here is that this grand jury was discharged by

operation of law not later than February 12, 1907, and that, by reason thereof, the members have ever since constituted not a grand jury, but an illegal and unauthorized body of men, without power to perform any function of a grand jury.

The facts relied on as accomplishing this discharge of the grand jury by operation of law are as follows: On January 27, 1907, in conformity with section 204, Code Civ. Proc., the judges of said superior court made an order designating the estimated number of grand jurors, and also the number of trial jurors, that would, in the opinion of the court, be required for the transaction of the business of the court and the trial of causes therein during the ensuing year, which number of grand jurors was 144. Immediately after said order designating the estimated number of grand jurors had been made, said court selected and listed the grand jurors required by said order to serve as grand jurors in said superior court duing the ensuing year, or until a new list should be provided, which list of persons so selected was at once placed in the possession of the coun ty clerk, and said clerk, on receiving said list, filed the same in his office. On February 12, 1907, in conformity with section 209, Code Civ. Proc., said county clerk wrote down the names contained on said list on separate pieces of paper, of the same size and appearance, and deposited the same in the grand jury box of said city and county. No proceedings have been had under section 241, Code of Civil Procedure, in drawing, impaneling, or summoning any of the grand jurors from said list of grand jurors so selected in January, 1907, by the said court as aforesaid.

The claim of petitioner in this regard is necessarily based on the language of section 210 of the Code of Civil Procedure, for there is no other provision of our law, constitutional or statutory, that affords any basis for such a claim. Our Constitution simply provides that "a grand jury shall be drawn and summoned at least once a year in each county." Article 1, § 8. Our Code of Civil Procedure provides (section 241) that every superior court, whenever in the opinion of the court the public interest requires it, must proceed to impanel a grand jury, and “in all counties there shall be at least one grand jury drawn and impaneled in each year.” Nowhere, unless it be in said section 210, Code Civ. Proc., is there any express limitation on the life of the grand jury so impaneled in pursuance of the authorization and requirement of the law, or any implied limitation except such as may be implied from the requirement that at least one grand jury must be impaneled in each year. When, in obedience to this mandate, a new grand jury is impaneled, the life of the former grand jury must necessarily end. Section 906 of the Penal Code, adopted as part of the origi

nal Code in 1872 and never amended, pro- | Section 210, Code Civ. Proc., has existed in vides that, on the completion of the business before them, the grand jury must be discharged by the court, "but, whether the business is completed or not, they are discharged by the final adjournment of the court." This section was adopted at a time when we had terms of court. As, under the Constitution of 1879, we now have no such terms of court, and the superior court is always open for business, there is no such thing as a final adjournment of the court, and the quoted portion of the section is no longer effectual. It, however, assists somewhat in ascertaining the proper construction of section 210, Code Civ. Proc., as we shall hereafter note. Section 210, Code Civ. Proc., is contained in the article relating to the "selecting and returning jurors for courts of record" (article 3, c. 1, tit. 3), the article having to do with the selection and placing in the general jury box of the county by the proper officers of the names of persons who may be drawn as required for actual service as jurors, both grand and trial, in the court. The preceding sections of the article having provided for the fixing by the court in January of each year of the estimated number of the grand and trial jurors that will be required for the transaction of the business of the court and the trial of causes therein during the ensuing year, the immediate selection of that number by the officers designated for that purpose, the placing of the lists of such persons in the possession of the county clerk, the filing of the same by that officer, the writing by him of the names on separate pieces of paper, and the deposit of such papers in the "grand jury box" and "trial jury box," respectively (sections 204 to 209), section 210 provides: "The persons whose names are so returned shall be known as regular jurors, and shall serve for one year, and until other persons are selected and returned." Section 211 provides that "the names of persons drawn for a grand jury shall be drawn from the grand jury box and the names of persons for a trial jury from the trial jury box, and if, at the end of the year, there shall be the names of persons in either of the said jury boxes who may not have been drawn during the year to serve, and have not served as jurors, the names of such persons may be placed on the list of jurors drawn for the succeeding year." Subsequent articles provide for the method of drawing from these boxes and summoning jurors, both grand and trial, for actual service in the court as they may be required and ordered by the court. The claim of petitioner is that, under section 210, the grand jury drawn and impaneled in the year 1906 from the persons selected. listed, and returned as grand jurors for that year, was discharged by operation of law upon the selection, listing, and returning of the 144 grand jurors for the year 1907.

This is not a new contention in this court.

practically its present form ever since the adoption of the Codes in 1872, and there has been no change in any other statutory provision applicable to jurors or juries that is material to the controversy here. The precise question here presented as to the effect of the provisions of section 210 upon a grand jury regularly impaneled from the list of the preceding year, was considered by this court in bank in the year 1886 in the cases of In re Gannon, 69 Cal. 541, 11 Pac. 240. and Kelly v. Wilson (Cal.) 11 Pac. 244. In the Gannon Case the court, in reply to the claim that the grand jury had ceased to exist for the reasons stated, and was not a legal body, said: "But, while the statutory law fixes the time within the year for the court to order the selection and return of grand jurors liable to serve in the capacity of a grand jury, and limits the time in which they shall serve for the purpose of the drawing and impanelment of a grand jury, it prescribes no specific time for the drawing of the grand jury, or for its official existence after it has been drawn and impaneled. These the law seems to have left to the judicial discretion of the court, for it provides that 'every superior court, whenever, in the opinion of the court, the public interest must require it, may make an order directing a jury to be drawn' (Code Civ. Proc. § 241); and, when the proceedings put in motion by an order made for the purpose result in the drawing and impanelment of a grand jury, it is, as an organized body, in the exercise of its functions and in its official existence, subject to the control of a court that is 'always open,' and may at any time, in the exercise of its jurisdiction, order it to be discharged. Pen. Code, § 906. A grand jury cannot dissolve itself (Clem v. State, 33 Ind. 414); and as the grand jury whose authority is challenged was not impaneled for any particular time prescribed by law, and has not been discharged by the court in which it is acting, it still exists as an original body, with power to perform its duties." Six of the seven justices concurred in this opinion. Kelly v. Wilson, supra, which was a proceeding in prohibition by an indicted person to restrain the superior court from trying him, under precisely similar facts to those existing here, was decided on the authority of the Gannon Case. It is strongly urged that the language above quoted was not necessary to the decision in the Gannon Case. This is true in the sense that the case could have been disposed of on other grounds stated in the opinion. It is to be observed. however, that the case of Kelly v. Wilson, in which a decision upon this question was absolutely essential to a denial of the writ sought, was presented by the same counsel appearing in the Gannon Case, and was decided on the same day as the Gannon Case. It is thus apparent that the two cases were under submission at the same time and were

capacity, the term during which they may be drawn or selected for actual jury service. This is the only possible reasonable construction of the language of section 210 as to the term of service, in the connection in which it is used. The meaning thus given to the word "serve" is an entirely permissible one, and the fact that the same word is obviously used in a different sense in other connections is not important.

considered together, and practically consti- | the term during which they serve in that tuted but one case in which the question before us was necessary to a decision. It thus appears that the court in these cases construed. section 210, Code Civ. Proc., as only limiting the time in which the persons selected shall serve for the purpose of the drawing and impaneling of a jury, and as having nothing whatever to do with the life of a jury, either grand or trial. once regularly drawn and impaneled. No different construction has been given the section by any later case. People v. Leonard, 106 Cal. 302, 39 Pac. 617, certainly cannot be held to have so done. While the court in that case did "observe that it did not even appear that the new jurors had been selected and returned, and that, if they had not been, it was clearly proper to continue the jury of the preceding year until such event happened, it also apparently adopted the reasoning of the Gannon Case as one of the grounds of its decision. The above cited decisions as to the proper construction of the section under consideration, rendered 21 years ago, and, it is fair to assume, ever since followed by the courts of the state, certainly should not be overruled unless they are clearly erroneous. No such situation is here presented. On the contrary, it is our opinion that the construction given the section by our predecessors was the correct one.

Neither section 210 nor any other section contained in the article of which it is a part assumes to deal with any impaneled jury, grand or trial. As to these, elaborate provision is elsewhere made. These sections relate exclusively to the setting apart of a sufficient number of persons eligible for jury duty from whom may be drawn and brought into court from time to time so many as are required to render actual jury service in court. Section 210 refers only to the persons so set apart, and to them solely in that capacity; i. e., in the capacity of persons set apart as a body from which a jury may be drawn when wanted. In that capacity all the persons so set apart are, by express provision of the section, known as "regular jurors," although many of them may never be drawn and summoned to attend upon the court at all. In that capacity alone they "serve for one year and until other persons are selected and returned" to take their places. When, serving in that capacity, some of them are drawn and summoned into court and impaneled on a jury, they there render an entirely different and additional service, which is regulated both as to manner of service and time of discharge by the provisions of the law relating to impaneled juries. Section 210 refers only to the two special classes from which jurors are to be taken, and it is only as members of those special classes one for grand juries and the other for trial juries, that these so-called regular jurors are required to serve by that section. The term of service there mentioned is

An examination of other provisions of law enacted at the same time as section 210, Code Civ. Proc., demonstrates that the Legislature could not have intended the section to operate as a discharge of any impaneled jury. As we have seen, the section applies to both grand and trial jurors, and the claim of petitioner leads to the result that the selection and return to the county clerk of the list of jurors for the succeeding year and the placing of those names in the general jury box ipso facto discharges from service and dissolves any impaneled jury, grand or trial, that may then be in attendance on the court, members of which were drawn from the lists of the preceding year. It is inconceivable that there was any such intention as to trial juries. It would be a most absurd provision that a jury engaged in the actual trial of a cause, and perhaps just about to render a verdict after a long and expensive trial, should be deprived of power to act further in the case solely by reason of the fact that a new list of available jurors for the ensuing year had been returned to the county clerk, and the names had been deposited in a trial jury box. Such a provision could accomplish no good, and would be productive of great injury. The intention of the Legislature as to such juries is clearly shown by the other section of the Code adopted at the same time, specially relating to juries. It is apparent therefrom that a jury impaneled to try a case was to conclude that case, if possible. As to criminal cases, after providing for the discharge of the impaneled jury in certain contingencies only, such as sickness of a juror, etc., it was provided in section 1140 of the Penal Code that, except as otherwise provided, a jury "cannot be discharged after the cause is submitted to them until they have agreed on their verdict and rendered it in open court," except by consent of the parties or by the court when the jury is unable to agree. Practically the same was true as to civil

We cannot reconcile these provisions. with section 210 of the Code of Civil. Procedure if that section is to be construed as urged by petitioner.

The intention as to grand juries is equally clear. Express provision as to the time during which an impaneled grand jury shall continue in existence was made in the Penal Code. Unless sooner discharged by the court, they were discharged only by the final adjournment of the court for the term. Section

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