Argument for Appellant. former. It includes the former, and unless the plaintiffs are allowed to try the first case in this, they cannot show that they have been injured and defrauded by the manner in which it was compromised. It is very clear that unless they were defrauded by the compromise, they have no cause to complain of the judgment, and have, therefore, no cause of action. The first case is, therefore, a part of this, and the plaintiffs were entitled to the testimony which was excluded. Judgment and order reversed and a new trial granted. By CROCKETT, J.: I concur in the judgment. JEFFREY NUNAN, APPELLANT, v. THE CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT. PLEADINGS DAMAGES.- Damages, in excess of its value, for the destruction of a book, containing a subscription list, cannot be recovered, when the complaint does not allege special damage. IDEM. There is no necessary connection between the destruction of an account-book, and the loss of a debt therein charged. CONSTRUCTION ΟΙ PLEADINGS ADMISSION.- When a complaint alleges the value of all the property destroyed, for which sult is brought, In gross for some items of which no recovery can be had an answer, which contains no denial of the averment of value, will not be held as admitting the value of the property for which a recovery may be had. PRACTICE - JUDGMENT FOR A LESS SUM THAN THAT ADMITTED TO BE DUE. - It is error to render judgment for a less sum than that which is admitted to be due by the pleadings. APPEAL from the District Court of the Fourth District, City and County of San Francisco. The case is stated in the opinion. R. F. Ryan, for Appellant, cited the following authorities: Blankman v. Vallejo (15 Cal. 628); Greenleaf on Evidence, Vol. V, 394; Mulford v. Estudillo (32 Cal. 450); Patterson v. Ely (19 Cal. 28); Thompson v. Lee (8 Cal. 275.) Joseph M. Nougues, for Respondent. VOL. XXXVIII.— 44 RHODES, J., delivered the opinion of the Court: The defendant admitted that the plaintiff had sustained damage by reason of the matters stated in the complaint, in the sum of $500, but the jury rendered a verdict for $350. This is clearly an error. The plaintiff offered to prove that his book, containing the names of the subscribers to his newspaper, was destroyed, and that it cost him two dollars to obtain each subscriber; and the evidence was excluded upon the objection of the defendant. The plaintiff was entitled to recover the value of his subscription book, but not the amount that the subscription cost him. The proper enquiry is not what any article of property cost, but what it was worth when destroyed. If the plaintiff has sustained any damage by the destruction of the book, in excess of its value as a subscription list, he cannot recover therefor in this action, for this, among other reasons: that he has not alleged in his complaint that he sustained, by the destruction of the book, any special damage. He would incur expense in restoring the list, and he might not recover all the names; but it is idle to say that the destruction of the list deprived him of his subscribers. The offer was not of proof of the destruction of the book and of its value, but of proof of its destruction, together with proof of the amount that it cost him to procure the subscribers. The offer, as made, was properly rejected. The objections are equally apparent to the plaintiff's offer to show the destruction of his cash-book, and that by reason of its destruction he lost debts to the amount of $6,700. The pleadings do not authorize the admission of the evidence. There is no necessary connection between the de struction of an account-book, and the loss of a debt therein charged. The The point that the answer admits the value of the property described in the complaint, is not well taken. value of all the property alleged to have been destroyed· including the good will and advertising patronage- is averred in gross. The averment is not denied, but as no recovery can be had in this action, in respect to such good will and advertising patronage, the answer will not be held as admitting the value of the other property mentioned in the complaint. Judgment reversed, and cause remanded for a new trial. By CROCKETT, J.: I concur in the judgment. J. J. DU PRATT, RESPONDENT, ♥. JAMES LICK, APPELLANT. DAMAGES FOR PERSONAL INJURIES THROUGH NEGLIGENCE.- When the owner of fixed property, requiring repairs, employs a contractor to do the entire work with his own means and by his own servants, he is not responsible for personal injuries to third persons occurring through negligence in the performance of the work. IDEM. Responsibility for injuries in such cases is upon him who has the contract and management of the work; and unless the relation of master and servant exists between the owner and the person through whose negligence the plaintiff sustained his injury, the doctrine of respondeat superior does not apply. APPEAL from the District Court of the Twelfth District, City and County of San Francisco. The case is stated in the opinion. Barstow & Garber, for Appellant. SANDERSON, J., delivered the opinion of the Court: This is an action to recover damages for personal injuries sustained by falling through a sidewalk into the area underneath, in the city of San Francisco; which sidewalk was in front of the property of the defendant, and was being repaired at the time; it being alleged that the repairs were being made by the defendant negligently, and in such a manner that the plaintiff, who was passing that way, fell through the sidewalk, without any fault on his part. It was contended at the trial, on the part of the defendant, that the repairs were not being made by him or his ser vants, but by persons who were in no wise subject to his orders, or under his control, and who were the servants of one Farrell, who was doing the work, as alleged, under a contract with him, as a contractor, and not as a servant, and this he was proceeding to prove, when the plaintiff objected. Upon what ground is not stated, but it is presumed that it was upon the ground that, if true, the defendant's liability would be unaffected thereby. The Court sustained the objection, and the defendant excepted. The Court also charged the jury that the defendant could not relieve himself from responsibility by showing that the repairs were being made by a contractor and not by himself or his servants, to which the defendant also excepted. Of these rulings the defendant predicates error. The question presented by these exceptions is not an open one in this Court. In Boswell v. Laird (8 Cal. 469), it was most elaborately argued by counsel, and considered by the Court, and it was held, after a review of all the cases, that the responsibility in cases of this character is upon him who has the control and management of the work; or, in other words, that the doctrine of respondeat superior has no application where the relation of master and servant does not exist; that unless the relation of master and servant exists. between the defendant in an action of this character and the person through whose negligence the plaintiff sustained his injury, the very reason upon which the doctrine of respondeat superior is founded is wanting; that where there is no power of selection or direction there can be no superior; and that where a man is employed to do the work with his own means and by his own servants, he has the power of selection and direction, and he, and not the person for whom the work is primarily done, is the superior. The doctrine of that case has been since recognized in the case of Fanjoy v. Seales (29 Cal. 243.) We are entirely satisfied with it, and find no occasion to renew the discussion. Judgment and order reversed, and a new trial granted. Opinion of the Court-Sprague, J. H. P. BUEL, RESPONDENT, v. ALEXANDER FRAZIER and Others, APPELLANTS. FORCIBLE ENTRY AND DETAINER. When the plaintiff's evidence entirely fails to disclose anything approximating to force, violence, or any effort at intimidation or threats of force or violence on the part of the defendants, or either of them, at the time they entered into the possession of the premises in controversy, or at any time thereafter, he makes no case under the first or second sections of the Forcible Entry and Detainer Act of April 2, 1866, entitling him to the summary remedy provided by the Act. IDEM THE POSSESSION REQUISITE TO MAINTAIN THE ACTION.- Stock ranging over unenclosed public lands is not evidence of such a possession of any specific portion of such lands in the owner of the stock as will enable him to maintain this action. ORAL EVIDENCE OF A TRANSFER OF AN INTEREST IN A POSSESSORY CLAIM. Oral evidence of a transfer of title or interest to land claimed under the Possessory Act is not admissible. APPEAL from the County Court of Monterey County. The case is stated in the opinion. Gregory & Webb, for Appellants. T. Beeman, for Respondent. SPRAGUE, J., delivered the opinion of the Court: This action is for a forcible entry and detainer, alleged against the defendants as having occurred since the Forcible Entry and Detainer Act of April 2, 1866. The complaint contains but a single count, in which it is alleged that on the 11th day of December, 1868, plaintiff was "in the actual, peaceable and undisturbed possession, and for a long time prior thereto had been and now is entitled to the possession" of certain described lands situate in Carmel Valley, County of Monterey, and State of California. "That while plaintiff was in such peaceable, quiet, exclusive, undisturbed and actual possession of said lands, the defendants, on the day and year last aforesaid, without the consent and against the will of plaintiffs, with force and violence, and strong hands, and multitude of people, unlawfully entered into and upon said lands and premises and ousted and ejected plaintiff therefrom, and since said date |