due the said K. Lundeen upon the signing of this contract by both parties hereto, and the said K. Lundeen is to perform no further services for either party hereto after this contract is signed." The exchange of properties was finally consummated and upon defendant's refusal to pay his portion of the amount agreed to be paid to Lundeen as agent this action was brought. In the answer of defendant it was alleged that plaintiff had misrepresented the dimensions of the property which defendant received in exchange for that which he transferred to Norswing, and that by reason of the alleged misrepresentations defendant was damaged in a large sum of money. The trial court found on the issues in favor of plaintiff and against defendant.

On this appeal it is urged first that the contract imposed no liability on the part of Nowlin to pay plaintiff commissions, as plaintiff was not a party to the exchange and therefore not entitled to enforce any claim against defendant. It appears from the face of the writing as it is there expressly stated that the parties agreed to pay to Lundeen, the plaintiff, the respective amounts mentioned, and an acceptance of this agreement, or offer of agreement, if we may choose so to term it, was indorsed upon the writing under date of the day following the execution thereof. It is provided by section 1559 of the Civil Code, that "A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it." This contract was not rescinded and undoubtedly upon default being made by either of the parties contracting in that regard a cause of action arose in favor of plaintiff. (Washer v. Independent M. & D. Co., 142 Cal. 702, [76 Pac. 654]; Stanton v. Carnahan, 15 Cal. App. 527, [115 Pac. 339]; Page on Contracts, vol. 3, sec. 1308.) have examined the statement used on the motion for a new trial, and also the specifications in which error is assigned on the alleged ground that the findings made by the court are not supported by the evidence. On the question of misrepresentations alleged to have been made by plaintiff as to the dimensions of the ground which defendant received in the exchange of properties, it must be said that there was some evidence to sustain the findings of the court, and that under the familiar rule that a state of conflict in the evidence 20 Cal. App.-27

presents a condition not subject to review by an appellate court, we have no function to perform in determining upon which side the weight of evidence rested. In our opinion, there is presented by the record no error entitling defendant to have the judgment or order denying his motion for a new trial reversed.

The judgment and order are affirmed.

Allen, P. J., and Shaw, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on December 27, 1912, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 22, 1913.

[Civ. No. 1068. First Appellate District.-November 27, 1912.] C. B. MYERS, Respondent, v. CHITTYNA EXPLORATION COMPANY (a Corporation), and JENNIE G. MACKINLEY, Appellants; GEORGE M. PERINE, Codefendant.

ACTION FOR CONVERSION OF STOCK OF CORPORATION-SALE UNDER INVALID ASSESSMENT JUDGMENT FOR PAR VALUE-IMPROPER RULING-ESTOPPEL AND EVIDENCE DISALLOWED.-In an action for the conversion of the stock of a corporation sold to one of defendants, under an assessment alleged to be invalid, in which the court rendered judgment for its par value, and ruled in the action that defendants were estopped to deny that the stock was not worth its par value, and refused therein to allow the defendants to testify that the stock was worth no more than the amount of the assessment, it is held upon defendants' appeal, that there is no principle of estoppel applicable to any phase of the case, and that the court erred in disallowing defendants' offer of evidence.

ID. MEASURE OF DAMAGES FOR CONVERSION.-In an action for the conversion of personal property, the measure of damages, under section 3336 of the Civil Code, is the value of the property at the time of the conversion, with the interest from that time, or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion

and the verdict, without interest, at the option of the injured party; and a fair compensation for the time and money properly expended in pursuit of the property.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. J. C. B. Hebbard, Judge.

The facts are stated in the opinion of the court.

W. C. Graves, and J. S. Spillman, for Appellants.

Booth & Bartnett, and W. J. Bartnett, for Respondent.

KERRIGAN, J.-This is an action brought by the plaintiff against the defendants to recover the value of ten shares of the capital stock of the Chittyna Exploration Company, a corporation, sold to the defendant Jennie G. MacKinley under an assessment alleged in the complaint to be invalid.

The plaintiff recovered judgment for one thousand dollars, found by the court to be the value of said shares, and the appeal is by the defendant corporation and defendant MacKinley (the two of the defendants against whom the judgment was rendered) and is from the judgment and order denying their motion for a new trial.

Appellants have filed a brief in support of their appeal, but no answer thereto has been made by the respondent.

From the record it appears that in the month of May, 1899, one Allis was the owner and holder of ten shares of the capital stock of the corporation defendant, represented by a certificate; that while he was thus the owner he pledged the same to plaintiff to secure an indebtedness of four thousand five hundred dollars; that thereafter this stock was sold to pay an assessment which had been levied thereon by a resolution of the board of directors of the corporation.

The complaint is in two counts, the first of which proceeds upon the theory that the levying of the assessment and sale of the stock were void, and the second merely alleged that the defendants converted the shares to their own use.

The case was tried upon the theory that there has been a conversion of the stock by the defendants, for which the plaintiff was entitled to recover its reasonable value, which

he alleged to be three thousand dollars. Testimony was admitted on behalf of the plaintiff tending to show that the ten shares of stock in controversy were worth between two thousand dollars and three thousand dollars. But when the defendants attempted to rebut this testimony and show that the stock was worth in fact not more than the amount of the assessment, to wit, ten dollars per share, the court refused to permit them to do so, holding that they were estopped to denying that the shares were worth their par value, and on this theory the court found the stock to be worth one thousand dollars, and rendered judgment for that sum against the appellants.

The refusal of the court to receive the proffered testimony was error. There is no principle of estoppel applicable to any phase of this case, and the law we think is plain that in an action for conversion, the measure of damages is the value of the property at the time of the conversion, with interest . . . or where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest. . . and a fair compensation for the time and money properly expended in the pursuit of the property (Civ. Code, sec. 3336).

The judgment and order are reversed.

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

[Crim. No. 194. Third Appellate District.-November 27, 1912.] THE PEOPLE, Respondent, v. PHILLIP ROSELLE, Appellant.

CRIMINAL LAW-MURDER-CONVICTION OF MANSLAUGHTER-SUPPORT OF VERDICT-CIRCUMSTANTIAL EVIDENCE-TESTIMONY AS TO SELF-DEFENSE PROVINCE OF JURY.-Where the defendant charged with murder, was convicted of manslaughter, and there was circumstantial evidence that defendant killed the deceased, though the only witnesses to the homicide were the deceased and the defendant, who testified that the killing was in self-defense, the jury may believe the evidence as to the killing, and disbelieve it as to the self-defense,

and may judge whether, on defendant's own story, and under the instructions of the court, the defendant was justified in self-defense in going to the extremity of killing the deceased; and its verdict of manslaughter is sufficiently supported. ID.-INSTRUCTION AS TO MANSLAUGHTER NOT PREJUDICIAL-INAPPLICABLE RULE. The rule that an instruction as to manslaughter may be refused, at defendant's request, if the evidence is all one way as to his guilt of murder, has no application to the converse, where the instruction as to manslaughter, under a charge of murder, is made at the request of the prosecution, and cannot be prejudicial to the defendant in giving latitude to the jury, which resulted in defendant's advantage.

ID. INSTRUCTION NOT FOR A COMPROMISE VERDICT-CLAIM OF SELF-DEFENSE. The instruction as to manslaughter cannot be said to have been an invitation to the jury to render a compromise verdict on account of the defendant's claim of self-defense. The instruction did not interfere with the liberty of the jury to acquit the defendant, if they believed such claim to be true. But they may have decided that the defendant was not justified in killing the deceased, even if he were in some degree the aggressor.

ID. MISCONDUCT OF JUROR AS TO APPARENT SLEEP NOT SHOWN-DURATION NOT PROVED PRESUMPTION.-It is held that the alleged misconduct of a juror as to apparent sleep in the jury box, is not sufficiently shown where the duration of his apparent condition was not proved. It cannot be presumed that it was of such a length of time as to have prevented his understanding of the testimony given.

APPEAL from a judgment of the Superior Court of Mendocino County and from an order denying a new trial. J. Q. White, Judge.

The facts are stated in the opinion of the court.

W. D. L. Held, and T. J. Weldon, for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

CHIPMAN, P. J.-Upon an information charging defendant with murder for the killing of one Erick Nilsen, the jury returned a verdict as follows: "We, the jury, find the defendant guilty of manslaughter, and we strongly recommend him to the mercy of the court.' Before judgment, defendant made application for a new trial, which being denied,