the guarantor's liability was conditional upon Provan's credit being limited by the Hitchcock-Hill Company to the sum of one thousand dollars.

We think the court was right in the first instance, and that the mere extension of credit to Provan beyond the sum named did not exonerate the obligor.

In 14 Am. & Eng. Ency. of Law, 2d ed., p. 1140, par. 4, the general rule on the subject is laid down as follows: "Where the guaranty contains a limitation as to the amount for which the guarantor will be bound, but contains no limitation as to time, and there is nothing in the circumstances surrounding the execution of the contract to evince a contrary intention, it will in general be construed to be a continuing guaranty and operative until revoked, and the guarantor will be held liable to the extent of his guarantee, notwithstanding the principal debtor may have during the existence of the contract contracted debts to an amount equal to or greater than the sum named in the guaranty. The limitation mentioned in the guaranty has reference to the amount of the guarantor's liability, and not to the amount of the dealing between the purchaser and the one who gives the credit."

It is well settled that any ambiguity in a contract of guaranty, concerning the liability of the guarantor, will be resolved in favor of protecting the creditor to the extent of the sum named therein; in other words, that such a provision will be construed as a limitation upon the amount of the guarantor's liability rather than as a condition upon which any liability whatever attaches.

In the present case we think the words "provided that the amount due or to become due shall at no time exceed the sum of $1,000" refer to the liability to be assumed by the guarantor. The authorities support this conclusion.

In the case of Fisk et al. v. Stone, 6 Dak. 35, [50 N. W. 125], the language of the instrument was that if the amount due should not "at any time" exceed three hundred dollars, the guarantor would see that it was paid in full. A credit of about four hundred dollars was given, and this was held not to constitute a breach of the guaranty.

In the case of Pratt v. Matthews, 24 Hun, (N. Y.), 386, the defendants executed an instrument, whereby they agreed with plaintiff's assignors that one Pope, who had purchased

or was about to purchase coal of said assignors, should and would pay for all coal delivered to him up to a certain date, and in default of his so doing they agreed to pay for the same, provided the amount so in default should not at any time exceed the sum of one thousand dollars. In the course of the dealings which followed, Pope became indebted for more than the amount of the guarantee, and the guarantors contended that the condition of the bond was broken, and that they were not liable for any sum at all. The court, after referring to a rule in that state, which prevails here, i. e., that in interpreting contracts of suretyship the same rules of construction are applicable as to other contracts (Civ. Code, sec. 2837; Sather Banking Co. v. Briggs, 138 Cal. 724, [72 Pac. 352]), held that the fact that the indebtedness due from Pope for coal exceeded at times the sum of one thousand dollars did not relieve the guarantors from liability upon the contract.

In the case of Schinasi v. Lane, 118 App. Div. 76, [103 N. Y. Supp. 127], the language of the guaranty was "providing the amount of credit shall not exceed $5,000 at any one time." The court held that "the defendant did not intend by his contract of guaranty to deprive or hinder" the debtor "from obtaining credit. . . . There is nothing," says the court, "to show that the defendant deemed a greater credit injurious to the company, or that the guarantor meant to exert through his contract of guaranty a controlling supervision over the indebtedness of the company." The court concluded its opinion with the statement that "the general rule is that such words of limitation in a guaranty are to be construed as intending to limit the liability of the guarantor, and not a condition as to the extent of credit to be given, the breach of which would relieve the guarantor" (citing many cases). (See, also, Crittenden v. Fiske, 46 Mich. 70, [41 Am. Rep. 146, 8 N. W. 714]; Sturges v. Robbins, 7 Mass. 301.)

In the case at bar it does not appear clearly that the guarantor feared that a credit in excess of the amount stated in the instrument would be injurious to her, or that she desired to control the amount of credit which the Hitchcock-Hill Company might extend to Provan; but, on the other hand, it does appear that the form of the guaranty entered into was supplied by the Hitchcock-Hill Company, who may well

be presumed not to have intended by the proviso under discussion to confine their protection within the narrow limits contended for by appellants. That that corporation understood the proviso inserted by it to be a limitation not upon the amount of credit to be extended to Provan, but upon the amount of the guarantor's liability, may also be inferred from the fact that said corporation almost immediately extended credit to Provan beyond that sum. Moreover, the guarantee being given for the benefit of the creditor, it should be construed so as best to effect that purpose if it fairly can be. We think the construction we have placed upon it merely holds the guarantor to the extent of her engagement.

We have examined the other grounds upon which the motion for a new trial was based, but find nothing in them which would warrant the court's order granting the motion. Moreover, it appears that the new trial was granted upon the ground that we have just considered.

The order appealed from is reversed.

Lennon, P. J., and Hall, J., concurred.

[Civ. No. 997. Third Appellate District.-October 31, 1912.] JOAKIM LANG, Administrator of the Estate of Albert Lang, Deceased, Appellant, v. THE LILLEY & THURSTON COMPANY (a Corporation), et al. Defendants: JOHN J. MAHONY and JEREMIAH MAHONY, Copartners etc., Respondents.

ACTION FOR DEATH AGAINST COPARTNERS-NEGLIGENCE IN OPERATION OF ELEVATOR-PLEADING-INSUFFICIENT COMPLAINT-PARTICULARS CAUSING DEATH NOT SHOWN.-The complaint in an action for the death of plaintiff's intestate as the result of the alleged negligent operation of an elevator, does not state a cause of action, where it fails to specify the particular act or acts of negligence which proximately caused the accident; and also fails to specify in what respect the elevator was negligently operated, or any facts having a causal connection with the death of plaintiff's intestate. LD. MODE OF PLEADING NEGLIGENCE GENERAL TERMS-PARTICULAR ACTS NEGLIGENTLY DONE-INSUFFICIENT CHARGE OF NEGLIGENCE

OF UNSKILLED EMPLOYEE.-While it is sufficient to charge negli gence in general terms, it is necessary to specify the particular acts alleged to have been negligently done. It is not sufficient to charge that the elevator in question was then and there operated in a negligent manner by an incompetent and unskilled employee.

ID. NECESSITY OF DECEASED TO BE IN ELEVATOR SHAFT NOT SHOWN— LEGAL DUTY OF COPARTNERS TO OPERATE ELEVATOR NOT AVERRED. The complaint is further insufficient in not making it appear that it was necessary that the deceased should have been in the elevator shaft to do the work required of him by the corporation by which he was employed; and it must be assumed that any work so done by him was not any part of the work that the corporation, as a subcontractor, was employed by the copartners, as contractors, to perform, The complaint does not therefor show that the copartners owed to deceased any legal duty. ID.-NEGLIGENCE IMPLIES A CORRESPONDING DUTY-SHOWING OF LEGAL DUTY IN COMPLAINT ESSENTIAL.-There can be no negligence without the existence of a corresponding duty. The complaint against the copartners must set out facts showing by what duty, or by what right the injured person was on the premises at the time of receiving the injuries complained of, as causing his death, whether as a trespasser, a licensee, or an employee; otherwise, it will fail to state a cause of action.

ID.-EFFECT OF LICENSE TO COME UPON PREMISES.-The license to the deceased to come upon the premises would not give him the right to roam at will in a manner disconnected from and not pertaining to the business in hand.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion of the court, and in the opinion reported ante, p. 223.

Costello & Costello, for Appellant.

Linforth & Herrington, and C. H. Wilson, for Respondents.

BURNETT, J.-The question for solution on this appeal by plaintiff involves the legal integrity of the ruling of the lower court sustaining the demurrer of defendants, the Mahony Bros., to plaintiff's second amended complaint. In an opinion rendered by this court and filed the twenty-third day of the present month and reported ante, p. 223, [128

Pac. 1028], the order of the lower court sustaining the demurrer of The Lilley & Thurston Company was upheld, and to that decision reference is made for a fuller exposition of plaintiff's pleading. The demurrer of respondents herein, which was both general and special, directs attention to several asserted defects in said second amended complaint. Of these, brief consideration will be given to two only. The ruling was justifiable for the reason that there was a failure to specify the particular act or acts of negligence which proximately caused the accident. It is not sufficient to allege that the elevator was negligently operated and thereby the injury was produced. Defendants should have been informed, by appropriate allegation, in what respect the contrivance was negligently operated and it should have appeared that the recited facts had a causal connection with the death of plaintiff's intestate. We are left entirely to surmise whether the elevator was moved too suddenly or too rapidly or too far or without warning or, in other words, what particular act was negligently performed. If the case were tried on the pleading as it stands it is evident that additional facts to those alleged would have to be proved in order for plaintiff to recover. If a witness were asked, in the language of the complaint, whether the elevator was operated in a "careless and negligent manner," it is quite apparent that it would call for the opinion of the witness, and, in the face of a proper objection, no answer would be permitted. Or if a witness should be called upon to state the facts as he observed them or to describe what he saw in reference to the operation of the elevator, it would hardly be contended that he might answer without challenge that the "elevator and counterweight were then and there operated in a careless and negligent manner by an incompetent and unskilled employee." As said in Cary v. Los Angeles Ry. Co., 157 Cal. 603, [21 Ann. Cas. 1329, 27 L. R. A. (N. S.) 764, 108 Pac. 684]: "While it is permissible to charge negligence in general terms, it is nevertheless necessary to specify the particular act or acts alleged to have been negligently done. (Stephenson v. Southern Pacific Co., 102 Cal. 144, [34 Pac. 618, 36 Pac. 407]; Smith v. Buttner, 90 Cal. 95, [27 Pac. 29].) If appellants had desired to predicate negligence