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her abode on said ranch as her residence and intended to give the running of the said ranch her personal attention; that she was making her home upon said ranch and expected to develop said ranch and put it upon a paying basis; that to affiant's knowledge she had been on said ranch for a period of several months prior thereto, and ever since the said date of said conversation at affiant's offices, defendant has been an actual bona fide resident of the county of Napa, state of California."
In his affidavit, G. W. Watson declared that “he has known the defendant above named since the time of her birth; that he has been acquainted with her place of residence from her said birth up to the time of the making of this affidavit and does now depose and say; that she, at the time of the commencement of the above entitled action, was a resident of the county of Napa, and had been for a long time prior thereto, and is still at the present time a resident of the county of Napa; that she lived upon the adjoining premises to those occupied by this affiant, situate in Napa County, California, as her place of residence for a period of more than four months prior to the commencement of this action, and that said defendant actually occupied said premises as her home and place of abode during all the times herein mentioned."
G. W. Marston, the plaintiff, also deposed and said: “That for more than four months prior to the commencement of this action, he was residing upon the ranch commonly known as the ‘Ring Watson Ranch' situate in the county of Napa; that during all that time the defendant Rowena Watson was keeping house and residing upon said premises; that at no time during that period did Rowena Watson live outside of the county of Napa; that said defendant Rowena Watson up to said time and up to the time of making of this affidavit has been actually a resident of the county of Napa, state of California.''
It may be admitted that the declaration in said affidavits that defendant is a “resident of said Napa County is a mere conclusion and should be disregarded but, nevertheless, sufficient facts are set out to justify the trial court in reaching the conclusion that defendant did actually reside in Napa County.
Residence, in the language of the code (Pol. Code, sec. 52) is “the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns in seasons of repose. In the Civil Code the term is used as synonymous with “domicile" (sec. 129).
Residence indicates permanency of occupation as distinct from lodging or boarding or temporary occupation. If a person actually “lives" in a certain place with the intention of remaining there indefinitely that place must be said to be his residence. In other words, the abiding is animo manendi when residence is acquired.
But as to the significance of the term there is no controversy and we proceed to recapitulate the facts which must be taken as true in the determination of this appeal. At the time the order denying the motion was made and for four months prior thereto the defendant was keeping house upon the ranch known as the “Ring Watson Ranch”in Napa County; that at no time during said period did she “live” outside of Napa County ; that she actually occupied said premises as her home and place of abode during said time and that about two weeks prior to the commencement of the action she declared that she had leased the ranch from her mother, that she had taken up her abode there and intended giving the running of the ranch her personal attention; that she was making her home there and she expected to develop the ranch and put it upon a paying basis. Believing the foregoing, as we must assume he did, it would be not only a rational but probably the only rational conclusion that the trial judge could reach that defendant had established her home in Napa County and intended to remain there indefinitely; in other words, that she was a resident of Napa County.
The cases cited by appellant are so dissimilar to this in their facts that no specific notice of them is deemed necessary.
The order is affirmed.
Chipman, P.J., and Hart, J., concurred.
(Civ. No. 1111. First Appellate District.—November 29, 1912.] CHARLES M. ROUSSEAU and ARTHUR F. ROUSSEAU,
Copartners etc., Respondents, v. MORRIS COHN, Appellant.
APPEAL_REVIEW OF INSUFFICIENCY OF EVIDENCE GENERAL SPECIFICA
TION-PARTICULARS REQUIRED EXCEPTION - PARTICULAR FINDING ASSAILED AS WHOLLY UNSUPPORTED.-Upon appeal from a judg. ment and from an order denying a new trial, where insufficiency of the evidence is relied upon for a reversal, a general specification "that the evidence is wholly insufficient to justify a judgment in favor of the plaintiffs,” is improper, as not in compliance with sec. tion 648 of the Code of Civil Procedure, requiring a specification of the particulars wherein the evidence is insufficient to justify the decision. But where a particular finding is assailed as being wholly without evidence to support it, a more particular specification is not
required. ACTION FOR SERVICES OF ARCHITECTS-COMPLIANCE WITH CONTRACT
PREVENTION OF COMPLETE PERFORMANCE - REMEDY REASONABLE COMPENSATION AND DAMAGES.—In an action for the services of architects, who prepared plans and specifications for the construction of a building, and found a builder, as stipulated, who would construct the building within the price agreed, who furnished a satisfactory bond for the performance of the contract, as required, and the architects had thus complied with the terms of their contract, but the defendant refused to permit the architects to proceed further, they are entitled to recover reasonable compensation for the services performed, and the damages arising from a prevention
of complete performance. ID. STIPULATION FOR ACCEPTANCE OF PLANS AND SPECIFICATIONS IN
WRITING-WAIVER — ACCEPTANCE AS SATISFACTORY — FAILURE TO COMPLAIN.—Although the contract with the architects called for approval of the plans and specifications in writing, that provision was waived where the evidence shows that they were approved by the defendant as satisfactory and he wholly failed to complain thereof
at any time, or upon appeal. LD.-PROVISION FOR APPROVAL OF CONTRACTOR_ARBITRARY REJECTION
NOT ALLOWED_OBJECTION NOT SHOWN IN RECORD.—Under a provi sion for the approval of the contractor by the defendant, the de fendant is given no right to reject such contractor arbitrarily, whers there is nothing in the record to show that the contractor was in any sense objectionable
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. George H. Cabaniss, Judge.
The facts are stated in the opinion of the court.
Schlesinger & Shaw, for Appellant.
tum Suden & tum Suden, for Respondents.
KERRIGAN, J.—This is an appeal from a judgment against the defendant and from an order denying his motion for a new trial in an action for services rendered by plaintiffs as architects.
Defendant relies for a reversal of the judgment and order upon the insufficiency of the evidence. The only specification of such insufficiency is “That the evidence is wholly insufficient to justify a judgment in favor of the plaintiffs." We think, with the plaintiffs, that this is not a compliance with section 648 of the Code of Civil Procedure, requiring a specification of the particulars wherein the evidence is insufficient to justify the decision. (Matter of Baker, 153 Cal. 537, [96 Pac. 12); Meek v. Southern Cal. Ry. Co., 7 Cal. App. 607, (95 Pac. 166); Porter v. Counts, 6 Cal. App. 551, [92 Pac. 655].) But as defendant claims that there is an entire absence of evidence to support the finding assailed-in which event he asserts that a specification of particulars is unnecessary (San Luis Water Co. v. Estrada, 117 Cal. 168-184, [48 Pac. 1075])—we have examined the evidence, and will therefore rest our decision upon the principal point in the case, without further noticing respondents' claim that the specification set forth above is entirely insufficient.
Plaintiffs prepared plans and specifications for the construction of a building to be erected in San Francisco; a builder was found who would construct the building for less than fourteen thousand dollars, and who furnished at once a satisfactory bond for the performance of his contract. these things were according to the terms of plaintiffs' contract with defendant, they were entitled—the defendant having refused to permit them to proceed further—to recover a reasonable compensation for services already rendered, and the damages arising from a prevention of complete performance.
It is true that the contract also stipulated that the plans and specifications were to be accepted by the defendant in writing, and that the contractor was to be satisfactory to defendant. But while the plans and specifications were not accepted by the defendant in writing, the evidence introduced by plaintiffs shows that they were satisfactory to him and were approved by him; and this is doubtless true, for the defendant does not even now complain of the plans and specifications. While, as just stated, a provision of the contract was that the defendant was to be satisfied with the contractor, this did not give the defendant a right to reject a builder arbitrarily; and there is not a word of evidence in this record to show that this contractor was in any sense objectionable. His bid was just a little within the figure which the defendant agreed to pay for the erection of the building, and he provided a good bond for the faithful performance of that contract. In fact, according to the witnesses for the defendant, his only excuse for failing and refusing to permit the plaintiffs to perform their part of the contract was that he had heard some rumors that if the plaintiffs were permitted to proceed with the work, the contract would be violated and the defendant involved in the annoyance and expense of litigation.
In brief, there is evidence in the record to sustain the view that the defendant, without good reason, refused to permit the plaintiffs to complete their contract, which they were willing and able to do. It follows that the judgment and order of the trial court should be affirmed, and it is so ordered.
Lennon, P. J., and Hall, J., concurred.
(Civ. No. 1094. Second Appcllate District.-November 29, 1912.]
ROSALIND O. BUTTERFIELD, Respondent, v. EMILY J.
HARRIS, Executrix of the Estate of John T. Harris,
Deceased, Substituted for John T. Harris, Appellant. ACTION TO ENFORCE TRUST IN PATENTS FOR INVENTION—CAUSE OF AC
TION NOT STATED—AGREED TRANSFER TO CORPORATION-INTEREST IN STOCK-CONDITIONS.—A complaint in an action to enforce a trust in one-fourth interest in an invention of the defendant, which sets