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valid. No substantial right of the original lant entered into a contract with J. E. Harcontractor under the judgment of lien is af- ris to erect a building for him for the sum fected. Hence he was not a party interested of $7,000, according to certain plans and specin maintaining it, and not an adverse party ifications, and the respondent as subcontractupon whom a notice of appeal should have or contracted with the latter to do the plastbeen served.

ering and hard finish work according to specThe District Court of Appeal in dismissing ifications providing therefor for the sum of this appeal when the matter was before it $730. As the work progressed, he was paid based its decision on Lancaster y. Maxwell, the amount of his contract price, except $178, 103 Cal. 67, 36 Pac. 951, which it cited as for which the lien herein was filed and to justifying its action. In that case, however, recover which the suit was brought. The it does not appear that any personal judg. court found that plaintiff completed his conment was rendered against the original con- tract according to its terms, and it is claimtractor fixing a primary liability on his part ed that this tinding is not supported by the to the subcontractor for the entire amount evidence because there were certain discoloof his claim. The personal judgment there rations on the plastering appearing after the rendered was for such a deficiency as ap- completion of the work. The contract bepeared after the sale of the property, and tween the owner and the original contractor this fact seems to have controlled the deci- for the construction of the building containsion. In the case at bar the personal judg. ed specifications relative to the plastering ment is for the entire amount of the claim, thereof, and the contract between plaintiff separate and distinct from any deficiency and said original contractor embraced these judgment which it is provided shall be dock- latter specifications. The specifications set eted against the original contractor. Noth- forth in detail the character and quality of ing is said in the portion of the judgment the material to be furnished for the mortar providing for such docketing that it shall and hard finish to be used in the work, the be docketed as a personal judgment. This manner in which they should be compounded would be its effect, not, however, by virtue and applied and the work done, and the eviof the provision for docketing, but because dence shows that in discharging his conindependent of it there was a personal judg- tract plaintiff used exactly the materials ment expressly given against the original that were required by the specifications and contractor in another part of the judgment. performed the work in a workmanlike manIf, in the case at bar, the judgment, so far ner, but that upon its completion portions of as it established a lien, were reversed and the surface of the walls showed a yellowish the deficiency judgment provided to be dock- tint appearing in some places in streaks and eted against the original contractor were to in others in spots of a cloudlike form. How fall with it, this would nevertheless leave these discolorations were caused is not disthe personal judgment against the original closed by the evidence. In fact, the testicontractor entered against him elsewhere un- mony showed that the cause of them was affected and subject to enforcement upon unknown. Such discolorations might occur, execution. Aside from this, in the Max- the evidence shows, from various extraneous well Case, the effect of section 1193 of the causes having no relation to the character of Code of Civil Procedure upon the rights of the materials used or the workmanship emthe owner of the premises affected by the ployed, and might occur where the best matelien against the original contractor did not

rial and workmanship, as in the case at bar, seein to have been presented for considera- were used and employed and still be inextion, nor the record examined upon the mer- plicable. The usual result, however, of the its of the appeal to ascertain whether ap- use of good materials properly applied is to plying this section to the matters disclosed produce a white coat or surface on the walls, by it, and properly to be considered on the and it is insisted by appellant that because motion, any injury to the original contractor that was not the result of the work of plaincould possibly result from a reversal of the tiff his contract was not properly performed ; judgment establishing the lien. The con- that it was the duty of plaintiff to show that sideration of these matter's differentiates this such discolorations were occasioned by some case from the Waxwell Case sufficiently to cause for which he was not responsille. In make the ruling there inapplicable here,

that connection it is insisted that there was even if that ruling should be deemed cor- both an express and implied warranty acrect in principle upon the record to which it companying his contract that the rooms is applied, which, we think, is extremely should be finished so that the walls would be doubtful. The inotion to clisiniss the appeal white. The express warranty is based upon is therefore deniedl.

a provision of the main contract between the Now, as to a consideration of the appeal owner and the original contractor that the on its merits. Aside from the question of latter was to deliver appellant the building attorney's fees, the principal contention of properly and entirely finished and win an unappellant is that the findings inade by the danaged state." It is sufficient, however, on court in support of the judgment in favor of this point to say that the subcontractor was the plaintiff are not sustained by the evi- not a party to this main contract, its providence. As we have heretofore stated, appel- sions were not incorporated in his contract

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. 1990; McKnight-Flintic Stone Co. v. Jayor, 160 N. 9. 72-81, 51 N. E. 661.

There is nothing in the other points maile by appellant. save as to the allowance to plaintiff of $10 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 judgment be modified by striking out therefrom the allowance of attorney's fees, and, as so modified. the judgment is affirmed.


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 callel 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 uo express warranty as to results


CISCO. (S. F. 4.8.3.) (Supreme Court of California. Sept. 23, 1907.) 1. GRAND JURY-TERM OF SERVICE.

When, in obedience to Const. art. 1, $ 8, and Code Civ. Proc. $ 241, requiring the impaneling of a grand jury once each year, a new grand jury is impaneled, the life of the former grand jury ends. 2. SAME.

Pen. Code, $ 506, 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 orerruled, unless clearly erroneous.

[Ed. Wote.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 311.] 4. GRAND JURY-TERM OF SERVICE-STATUTES ---CONSTRUCTIOX.

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 serve ice, and has no reprend to the life of a grand jury drawn from their number,

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5. SAME.

operation of law not later than February Code Civ. Proc. $ 210, providing that reg.

12, 1907, and that, by reason thereof, the ular jurors shall serve for one year, and until other persons are selected and returned, when

members have ever since constituted not a considered in connection with sections 214, re- grand jury, but an illegal and unauthorized lating to the drawing, of jurors for courts of body of men, without power to perform any record, and section 241, providing for the im

function of a grand jury. paneling of grand juries, and Pen. Code, SS 906, 1140, declaring that a grand jury shall be dis

The facts relied on as accomplishing this charged by the final adjournment of the court, discharge of the grand jury by operation of and providing for the discharge of a jury unable


law are as follows: On January 27, 1907, in to agree, has nothing to do with the life of a jury, grand or petit, and under it a grand jury

conformity with section 201, Code Civ. Proc., does not end because the clerk, in conformity the judges of said superior court made an with Code Civ. Proc. $ 209, writes down the

order designating the estimated number of námes in the list furnished in accordance with section 204, and deposits the same in the grand

grand jurors, and also the number of trial jury box, where no proceedings have been had jurors, that would, in the opinion of the under section 241 for impaneling any of the court, be required for the transaction of the grand jurors from such list.

business of the court and the trial of causes 6. SAME.

therein during the ensuing year, which numThe object of Code Civ. Proc. $ 210, providing that regular jurors shall serve for a year,

ber of grand jurors was 144. Immediately and until other persons are selected, is not to after said order designating the estimated prevent the keeping in existence any particular number of grand jurors had been made, said grand jury for an indefinite time, that being the

court selected and listed the grand jurors purpose of Pen, Code, & 906, enacted at the same tine, which expressly limits the life of a grand required by said order to serve as grand jury to the term of court for which it is im- jurors in said superior court duing the ensupaneled.

ing year, or until a new list should be proMcFarland, J., dissenting.

vided, which list of persons so selected was In Bank. Application for writ of prohibi- at once placed in the possession of the countion by Theodore V. Halsey against the su- ty clerk, and said clerk, on receiving said perior court of the city and county of San list, filed the same in his office. On February Francisco to restrain the court from pro- 12, 1907, in conformity with section 209, Code ceeding with the trial of petitioner under an Civ. Proc., said county clerk wrote down the alleged indictment. Denied.

names contained on said list on separate Bert Schlesinger, William P. Humphreys, pieces of paper, of the same size and appearand D. M. Delmas, for petitioner. W. H

ance, and deposited the same in the grand Langdon, Dist. Atty., and William Hoff Cook,

jury box of said city and county. No proAsst. Dist. Atty. (Francis J. Heney and

ceedings have been had under section 241, Charles W. Cobb, of counsel), for respondent.

Code of Civil Procedure, in drawing, im

paneling, or summoning any of the grand PER CURIAM. The petitioner seeks a

jurors from said list of grand jurors so selectwrit of prohibition to restrain the superior ed in January, 1907, by the said court as court of the city and county of San Francisco

aforesaid. from proceeding with his trial under a paper

The claim of petitioner in this regard is purporting to be an indictment, charging him necessarily based on the language of section with having committed a felony, which paper

210 of the Code of Civil Procedure, for there was presented and filed in said court as an

is no other provision of our law, constituindictment by a body of men assuming to act

tional or statutory, that affords any basis for and acting as a grand jury of such city and

such a claim. Our Constitution simply procounty. It is claimed by petitioner that at

vides that "a grand jury shall be drawn and the time of the finding and presentation of

summoned at least once a a year in each this indictment (March 20, 1907) this body of county.” Article 1, $ 8. Our Code of Civil men did not constitute a grand jury at all,

Procedure provides (section 241) that every and that consequently the indictment is a

superior court, whenever in the opinion of the nullity and the superior court is without

court the public interest requires it, must power to try him on the charge therein made.' proceed to impanel a grand jury, and “in all

counties there shall be at least one grand Upon the oral argument it was admitted, for all the purposes of this proceeding, that jury drawn and impaneled in each year.” this body of men was regularly and legally Nowliere, unless it be in said section 210, drawn from the names in the grand jury box

Code Civ. Proc., is there any express limitafor the year 1906, and regularly impaneled tion on the life of the grand jury so impaneland organized as the grand jury of said city ed in pursuance of the authorization and reand county on the 9th day of November, 1906, quirement of the law, or any implied limitaand has never been discharged by any order tion except such as may be implied from the of the court, but erer since such impanelment requirement that at least one grand jury and organization has continued to act as the must be impaneled in each year. When, in grand jury of the city and county, and has obedience to this mandate, a new grand jury always been recognized by the superior court is impaneled, the life of the former grand as such grand jury. Petitioner's claim here jury must necessarily end. Section 906 of is that this grand jury was discharged by the Penal Code, adopted as part of the original Code in 1872 and never amended, pro- Section 210, Code Civ. Proc., has existed in vides that, on the completion of the business practically its present form ever since the before them, the grand jury must be dis- adoption of the Codes in 1872, and there has charged by the court, "but, whether the busi- been no change in any other statutory proviness is completed or not, they are discharged sion applicable to jurors or juries that is by the final adjournment of the court.” This material to the controversy here. The presection was adopted at a time when we had cise question here presented as to the effect terms of court. As, under the Constitution of the provisions of section 210 upon a grand of 1879, we now have no such terms of court, jury regularly impaneled from the list of and the superior court is always open for busi- the preceding year, was considered by this ness, there is no such thing as a final ad- court in bank in the year 1886 in the cases journment of the court, and the quoted por- of In re Gannon, 69 Cal. 511, 11 Pac. 210, tion of the section is no longer effectual. It, and Kelly v. Wilson (Cal.) 11 Pac. 244. In however, assists somewhat in ascertaining the Gannon Case the court, in reply to the the proper construction of section 210, Code claim that the grand jury had ceased to exCiv. Proc., as we shall hereafter note.


ist for the reasons stated, and was not a letion 210, Code Civ. Proc., is contained in gal body, said: "But, while the statutory the article relating to the "selecting and re- law fixes the time within the year for the turning jurors for courts of record" (ar- court to order the selection and return of ticle 3, c. 1, tit. 3), the article having to do grand jurors liable to serve in the capacity with the selection and placing in the general of a grand jury, and limits the time in which jury box of the county by the proper officers they shall serve for the purpose of the drawof the names of persons who may be drawn

ing and impanelment of a grand jury, it as required for actual service as jurors, both prescribes no specific time for the drawing of grand and trial, in the court. The preceding the grand jury, or for its official existence sections of the article having provided for the

after it has been drawn and impaneled. fixing by the court in January of each year

These the law seems to have left to the juof the estimated number of the grand and

dicial discretion of the court, for it provides trial jurors that will be required for the

that every superior court, whenever, in the transaction of the business of the court and

opinion of the court, the public interest must the trial of causes therein during the ensu

require it, may make an order directing a ing year, the immediate selection of that jury to be drawn' (Code Civ. Proc. $ 241): number by the officers designated for that

and, when the proceedings put in motion by purpose, the placing of the lists of such per

an order made for the purpose result in the sons in the possession of the county clerk, the

drawing and impanelment of a grand jury, filing of the same by that officer, the writing

it is, as an organized body, in the exercise by him of the names on separate pieces of

of its functions and in its official existence,

subject to the control of a court that is 'alpaper, and the deposit of such papers in the "grand jury box” and “trial jury box," re

ways open,' and may at any time, in the ex

ercise of its jurisdiction, order it to be disspectively (sections 204 to 209), section 210

charged. Pen. Code, $ 906. A grand jury provides: "The persons whose names are so returned shall be known as regular jurors,

cannot dissolve itself (Clem v. State, 33 Ind.

414); and as the grand jury whose authorand shall serve for one year, and until other

ity is challenged was not impaneled for any persons are selected and returned.” Section

particular time prescribed by law, and has 211 provides that “the names of persons

not been discharged by the court in which it drawn for a grand jury shall be drawn from

is acting, it still exists as an original body, the grand jury box and the names of per

with power to perform its duties.” Six of sons for a trial jury from the trial jury box,

the seven justices concurred in this opinion. and if, at the end of the year, there shall be

Kelly v. Wilson, supra, which was a prothe names of persons in either of the said

ceeding in prohibition by an indicted person jury boxes who may not have been drawn

to restrain the superior court from trying during the year to serve, and have not served

him, under precisely similar facts to those as jurors, the names of such persons may be existing here, was decided on the authority placed on the list of jurors drawn for the

of the Gannon Case. It is strongly urged succeeding year." Subsequent articles pro- that the language above quoted was not necvide for the method of drawing from these essary to the decision in the Gannon Case. boxes and summoning jurors, both grand and This is true in the sense that the case could trial, for actual service in the court as they

have been disposed of on other grounds may be required and ordered by the court. stated in the opinion. It is to be observed. The claim of petitioner is that, under section however, that the case of Kelly v. Wilson, in 210, the grand jury drawn and impaneled in which a decision upon this question was abthe year 1906 from the persons selected solutely essential to a denial of the writ listed, and returned as grand jurors for that sought, was presented by the same counsel year, was discharged by operation of law up- appearing in the Gannon Case, and was deon the selection, listing, and returning of the cided on the same day as the Gannon Case. 144 grand jurors for the year 1907.

It is thus apparent that the two cases were This is not a new contention in this court. under submission at the same time and were considered together, and practically consti- the term during which they serve in that tuted but one case in which the question be- capacity, the term during which they may fore us was necessary to a decision. It be drawn or selected for actual jury service. thus appears that the court in these cases This is the only possible reasonable construcconstrued section 210, Code Civ. Proc., as tion of the language of section 210 as to the only limiting the time in which the persons term of service, in the connection in which selected shall serve for the purpose of the it is used. The meaning thus given to the drawing and impaneling of a jury, and as word "serve" is an entirely permissible one, having nothing whatever to do with the life and the fact that the same word is obviously of a jury, either grand or trial, once regu- used in a different sense in other connections larly drawn and impaneled. No different con- is not important. struction has been given the section by any An examination of other provisions of later case. People v. Leonard, 106 Cal. 302, law enacted at the same time as section 210, 39 Pac. 617, certainly cannot be held to have so Code Civ. Proc., demonstrates that the Legisdone. While the court in that case did "ob- lature could not have intended the section serve that it did not eren appear that the new to operate as a discharge of any impaneled jurors had been selected and returned, and jury. As we have seen, the section applies that, if they had not been, it was clearly prop- to both grand and trial jurors, and the clain) er to continue the jury of the preceding year of petitioner leads to the result that the seuntil such event happened, it also apparent- lection and return to the county clerk of the ly adopted the reasoning of the Gannon Case list of jurors for the succeeding year and as one of the grounds of its decision. The the placing of those names in the general above cited decisions as to the proper con- jury box ipso facto discharges from service struction of the section under consideration, and dissolves any impaneled jury, grand or rendered 21 years ago, and, it is fair to as- trial, that may then be in attendance on the sume, ever since followed by the courts of court, members of which were drawn from the state, certainly should not be overruled the lists of the preceding year. It is inconunless they are clearly erroneous. No such ceivable that there was any such intention situation is here presented. On the contrary, as to trial juries. It would be a most abit is our opinion that the construction given surd provision that a jury engaged in the the section by our predecessors was the cor- actual trial of a cause, and perhaps just rect one.

about to render a verdict after a long and Neither section 210 nor any other section expensive trial, should be deprived of power contained in the article of which it is a to act further in the case solely by reason part assumes to deal with any impaneled of the fact that a new list of available jurors jury, grand or trial. As to these, elaborate for the ensuing year had been returned to the provision is elsewhere made. These sections county clerk, and the names had been derelate exclusively to the setting apart of a posited in a trial jury box. Such a provisufficient number of persons eligible for jury sion could accomplish no good, and would be duty from whom may be drawn and brought productive of great injury. The intention of into court from time to time so many as are the Legislature as to such juries is clearly required to render actual jury service in shown by the other section of the Code court. Section 210 refers only to the persons adopted at the same time, specially relating so set apart, and to them solely in that ca- to juries. It is apparent therefrom that a pacity; i. e., in the capacity of persons set jury impaneled to try a case was to conapart as a body from which a jury may be clude that case, if possible. As to criminal drawn when wanted. In that capacity all cases, after providing for the discharge of the persons so set apart are, by express pro- the impaneled jury in certain contingencies vision of the section, known as “regular only, such as sickness of a juror, etc., it was jurors," although many of them may never provided in section 1140 of the Penal Code be drawn and summoned to attend upon the that, except as otherwise provided, a jury court at all. In that capacity alone they "cannot be discharged after the cause is "serve for one year and until other persons submitted to them until they have agreed on are selected and returned" to take their their verdict and rendered it in open court," places. When, serving in that capacity, some except by consent of the parties or by the of them are drawn and summoned into court court when the jury is unable to agree. and impaneled on a jury, they there render Practically the same was true as to viril an entirely different and additional service, cases. We cannot reconcile these provisions which is regulated both as to manner of with section 210 of the Code of Civil. Proservice and time of discharge by the pro- cedure if that section is to be construed as visions of the law relating to impaneled ju- urged by petitioner. ries. Section 210 refers only to the two spe- The intention as to grand juries is equally cial classes from which jurors are to be tak- clear. Express provision as to the time duren, and it is only as members of those spe- ing which an impaneled grand jury shall concial classes one for grand juries and the oth- tinue in existence was made in the Penal er for trial juries, that these so-called regu- Code. Unless sooner discharged by the court, lar jurors are required to serve by that sec- they were discharged only by the final adtion. The term of service there mentioned is journment of the court for the term. Section

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