by which, as his counsel states in his brief, "manufacturers of farm machinery sent their wares to their general agents in Portland, who, in their turn, sent them to local dealers in Eastern Oregon to be sold. The local dealers sold the machinery, usually taking notes in payment therefor, which notes they guarantied, and sent to the general agents. As the notes matured they were returned to the local agents who had sold the machinery, and they collected the money thereon, and remitted it to the general agents, acting as the agent for the collection of the notes." And while there are numerous assignments of error in the record, arising upon objections to the admission of testimony tending to show this alleged custom, and upon instructions to the jury in reference thereto, the sole point in the case is whether proof of such a custom would be sufficient evidence of the authority of Filloon Bros. to receive payment of the notes upon which this action is based, without having them in their possession. It is a general rule of law that, if money be due on a negotiable promissory note, it is the duty of the debtor, before paying the same, to see that the person to whom he pays is in possession of the note, and whoever pays without such evidence of the right to make the collection does so at his own risk, unless he can prove that such right actually existed at the time of payment. Smith v. Kidd, 68 N. Y. 130, 138. A custom or usage such as is claimed in this case would perhaps be sufficient proof of the authority of an agent who had possession of the notes to make the collection, but the admitted facts do not bring the case within the alleged custom. It will be noted that it is one of the essential and controlling facts going to make up such a custom that the note should be returned to the local agents for collection, and there was no evidence given or offered tending to show that under this or any other custom a local agent for the sale of machinery had a right to make collection of the notes taken therefor in the name of his principal, unless he had them in his possession at the time. Accordingly it was error in the trial court to admit in evidence proof of the alleged custom, and to instruct the jury that if they believed it was the custom, in the general course of business, for the general agents of farm machinery in Portland to ship the machinery received by them from the manufacturers to the local agents doing business in the towns of Eastern Oregon, and through such local agents to sell such machinery and implements, and to authorize such local agents to take notes in payment thereof, and to collect the notes when due, they must find for the defendant, because the admitted and undisputed facts did not bring the case within the custom. follows that the judgment of the court below must be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion.

It

(126 Cal. 635)

GRANGER v. RICHARDS et al. (Sac. 515.) (Supreme Court of California. Nov. 10, 1899.) APPEAL-DISMISSAL.

Appeal will be dismissed, it purporting to be from judgment entered after nonsuit as to some of the defendants, and no judgment appearing in the transcript, and the certificate to the judgment roll, which disclosed no judgment. reciting that the foregoing is a true copy of the order granting nonsuit, and that the foregoing papers constitute the judgment roll.

Department 2. Appeal from superior court, Nevada county.

Action by Samuel Granger against W. G. Richards and others. There was a nonsuit, and plaintiff appeals. Dismissed.

A. D. Mason, for appellant. C. W. Kitts, J. M. Walling, and P. F. Simonds, for respondents.

PER CURIAM. This is a purported appeal from the judgment entered after nonsuit granted in favor of certain of the defendants. The notice of appeal states that the appeal is taken from the judgment of nonsuit entered "on the first day of December, 1897, rendered on the 29th day of November, 1897," etc. But nowhere in the transcript does such or any judgment appear. Even the judgment roll as made up by the clerk discloses no judgment, although it is his duty to make up the judgment roll only after judgment entered. The clerk's certificate to the judgment roll is to the effect that he certifies "the foregoing to be a true copy of the order granting motion for a nonsuit entered in the above-entitled action, and recorded in minute and order book 10 of said court at page 340; and I further certify that the foregoing papers hereto annexed constitute the judgment roll in said action." As this appeal can be prosecuted only from the judgment, and as it is not made to appear that any judgment has been given and entered in the action, it follows that this court is without jurisdiction to entertain the appeal, and it is therefore dismissed.

(126 Cal. 621)

AS

WHITE v. HAYDEN. (L. A. 460.) (Supreme Court of California. Nov. 9, 1899.) COUNTY SUPERVISORS — COMPENSATION ROAD COMMISSIONERS-DUTY OF AUDITOR. 1. There being no requirement that the board of county supervisors should designate the particular fund out of which a claim allowed and certified by it should be paid, such a designation by it will not affect any duty of the county auditor, under County Government Act, § 121, and Pol. Code, § 4223, to so designate.

2. A member of the county board of supervisors, who, as ex officio road commissioner, performs his duties within his road district, under the direction and supervision of the board, which, as a body, has general supervision of all the roads in the county (Pol. Code, §§ 2643, 2645), is in such respect a county officer, not a roaddistrict officer, and performs services "required of him by law" as a county officer, and his compensation is a "salary" to be paid out of the county salary fund; County Government Act

March 24, 1893 (St. 1893, p. 346) § 216, providing the salaries and fees provided by the act shall be in full compensation for all services rendered by the officers named, as officers or "ex officio" officers; section 197 providing, in counties of the thirty-fifth class, the county officers shall receive as compensation for the services required of them by law" certain amounts, "supervisors $6 per day for each day while in service of the county, and 30 cents per mile for traveling"; and other sections providing the compensation in other counties for services rendered as road commissioner; section 220 declaring that, for the purpose of paying the "salaries" provided for by the act. all fees directed to be paid into the county treasury shall be set apart as a separate fund, to be known as the "Salary Fund," to be applied to the payment of "said salaries"; section 221 providing the salaries of such officers named in the act as are entitled to salaries shall be paid monthly out of the county treasury on the warrant of the auditor, and the treasurer shall pay the warrants out of the salary fund: section 25, subd. 12, making it the duty of the board to examine and allow all legal claims against the county, "except salaries of officers," and order warrants to be drawn on the county treasurer therefor; and section 51 providing that all claims against the county presented by members of the board of supervisors for per diem or mileage, or other services rendered by them, must be itemized, and before allowance must be presented to the district attorney, who must indorse thereon his opinion as to their legality.

Department 2. Appeal from superior court, Kern county.

Action by John W. White against B. A. Hayden. Judgment for defendant. Plaintiff appeals. Reversed.

Cannon & Freeman and J. W. Ahern, for appellant. J. E. Patton, for respondent.

PER CURIAM. This cause and L. A. 461 (59 Pac. 1113), between the same parties, present the same question. Plaintiff is a member of the board of supervisors for Kern county. He rendered services as supervisor and ex officio road commissioner, for which he was allowed by the board the sum of $1,803.50, and on July 18, 1896, payment was ordered to be made out of the salary fund of the county, and a warrant was ordered drawn on the treasury for the amount. The auditor refused to draw his warrant, whereupon this action was brought to compel him to do so. A general demurrer to the complaint was sustained, and judgment of dismissal entered. The appeal is from this judgment. Thereafter, to wit, on December 7, 1896, the board passed a resolution vacating so much of their order of allowance as required payment of the claim out of the salary fund, and ordered the same to be paid out of the road-district fund of the Fourth road district. This order was duly certified to the auditor and treasurer, and on December 8th plaintiff demanded of the auditor a warrant on the treasurer, which was refused, and thereupon the second action (L. A. No. 461) was brought to compel the auditor to draw his warrant. A general demurrer to the petition was sustained as be fore, and the appeal in that case is from the judgment. Respondent contends that the

claim could not be paid out of the salary fund nor yet out of the road fund, and that the auditor could not designate the fund out of which it could be paid. It is hence claimed that it could not be paid at all.

Appellant contends (1) that the compensation of the road commissioner is a "salary," within the meaning of subdivision 20, § 25, of the county government acts of 1891 and 1893, and payable out of the salary fund; (2) if not, it is a charge against the road-district fund, and payable out of that fund; and, (3) if not payable out of either of these funds, it was the duty of the auditor to draw his warrant upon the proper fund. It is alleged that there was sufficient money in the treasury, and also in the designated funds, to pay the claim.

1. It is conceded that the claim was just and legal, and that it was duly allowed and certified. In all respects (leaving out of view for the moment the fact that the allowance designated the fund out of which the claim should be paid) it was a claim, coming to the auditor as it did, such as devolved upon him the duty to issue his warrant therefor. St. 1893, p. 484, § 197, subd. 16; St. 1891, p. 402; Ellis v. Tulare Co. (Cal.) 44 Pac. 575; McFarland v. McCowen, 98 Cal. 330, 33 Pac. 113; Sehorn v. Williams, 110 Cal. 621, 43 Pac. 8; Lamberson v. Jefferds, 116 Cal. 492, 48 Pac. 485.

2. It was held in Babcock v. Goodrich, 47 Cal. 509, where the order of the board did not specify the fund on which the warrant was drawn, that the statute (Pol. Code, § 4046) "did not impose on the supervisors the necessity of specifying in each order the fund on which the order is drawn. The auditor is sufficiently informed on what fund to draw when the order of the board specifies the liability for which it is drawn." The Code at present is substantially the same as when that case was decided, and there is now no requirement that the board should designate the particular fund out of which a claim is to be paid. It is not entirely clear that the law makes it the duty of the auditor to designate the fund out of which all warrants drawn by him are to be paid, or that the treasurer would be bound by the auditor's designation of the fund, although section 121 of the county government act, and section 4223, Pol. Code, would seem to imply that he should make the designation, and it is proper that he should do so. However this may be, if it be the auditor's duty to designate the fund, and as no such duty is imposed upon the board, we do not see that the auditor would be bound by the act of the board, but that it would rather be his duty to draw the warrant on the proper fund, whether the board had designated the fund or not. The board has performed its legal function when it has allowed and certified the claim, and if it has made a mistake in indicating the fund, or has gone beyond its powers to designate the fund, the duty of the auditor remains to draw his

warrant as the law in the particular case would authorize.

3. It seems to us that the claim should be paid from the salary fund. Supervisors have been ex officio road commissioners since the Codes were adopted, if not before, but, as the section stood up to a recent date, they were to receive no compensation for services as commissioners. Pol. Code, § 2641. The supervisors were empowered to appoint road overseers for each road district, and if none were appointed the road commissioners, within their respective districts, were to perform the duties of road overseers. Id. §§ 2642, 2645. The road overseer when appointed was to be paid from money in the treasury belonging to his road district, but when the road commissioner performed the duties he received no pay except his pay as a supervisor. Sections 2641, 2645. The act of March 9, 1887 (St. 1887, p. 77), provided for the election of the road overseer, who was to perform his duties under the direction of the road commissioner (Pol. Code, § 2642). That act made no provision for the pay of the road overseer, nor did it prescribe his duties, but this was done by the act of March 19, 1889 (St. 1889, p. 339); and it was there provided that he should be paid from his road-district fund (Pol. Code, § 2645). By the act of March 31, 1891 (St. 1891, p. 474), the office of road overseer was abolished from and after the Monday following the first Monday in 1893. By an amendment to section 2645, Pol. Code, the act devolved certain duties upon the road commissioner, "under the direction and pursuant to the orders of the board of supervisors," and declared what that compensation should be, as follows: "(5) When not otherwise provided by law, he shall receive for his services as such road commissioner twenty cents per mile one way, for all distances traveled by him in the performance of his duties: provided, that he shall not in any one year receive more than three hundred dollars." But the act did not provide from what fund this payment was to be made. This section was amended by act of March 9. 1893 (St. 1893, p. 113). omitting all its provisions after paragraph 3; and section 2641, Pol. Code, was amended as to the road commissioner by allowing him 20 cents per mile one way when traveling in the performance of his duties as road commissioner, not to exceed $300 in any one year. But so far as the compensation of the road commissioner is in this act provided for, the provision is superseded by the county government act of March 24, 1893 (St. 1893, p. 346). Section 216 provides: "The salaries and fees provided in this act shall be in full compensation for all services of every kind and description rendered by the officers therein named, either as officers or ex officio officers, their deputies and assistants, unless in this act otherwise provided. Section 197 provides: "In counties of the thirty-fifth class [to which Kern county belongs] the county officers shall

*

receive as compensation for the services required of them by law the following salaries, to wit: (16) Supervisors, six dollars per day for each day while in service of the county, and thirty cents per mile for traveling from residence to county seat." Other sections of the act fix different compensation in different counties for services rendered as road commissioner, and in still others making similar provision to that for Kern county. Subdivision 20, § 25, of the act gives the board the power "to establish a salary fund, and also such other county funds as they may deem necessary for the proper transaction of the business of the county, and to transfer moneys from one fund to another, as the public interest may require." Section 220 (St. 1893, p. 509) provides: "For the purpose of paying the salaries provided for in this act, all fees directed to be paid into the county treasury shall be set apart therein as a separate fund, to be known as the salary fund, to be applied to the payment of said salaries," and provides for a transfer of funds to this fund "as may be necessary to pay said salaries as they become due." The only difficulty in giving construction to the above provisions, as to the fund from which the road commissioner is to be paid, arises from the following section 221: "The salaries of such officers named in this act as are entitled to salaries shall be paid monthly out of the county treasury; and it shall be the duty of the auditor, on the first Monday of each and every month, to draw his warrant upon the county treasurer in favor of each of said officers for the amount of salary due him under the provisions of this act for the preceding month;" and the treasurer is directed to pay the warrants out of the salary fund. Now subdivision 12, § 25 (St. 1893, p. 353), makes it the duty of the board "to examine, settle and allow all accounts legally chargeable against the county, except salaries of officers, and order warrants to be drawn on the county treasurer therefor"; and section 51 (St. 1893, p. 365) provides: "All claims against the county presented by members of the board of supervisors for per diem or mileage, or other service rendered by them, must be itemized, * and before allowance must be presented to the district attorney, who must indorse thereon, in writing, his opinion as to the legality thereof," etc. It is urged by respondent that the word "salary," as used in the act, is used in a limited sense, and refers only to officers whose compensation is a sum fixed by law, which may be paid without being allowed by the board. In section 197 the compensation is denominated a "salary," but, in the nature of the case, the amount must be ascertained by the board, for it is variable, and the act, therefore, devolves upon the board the duty of ascertaining and allowing the amount before it can be paid. The compensation, however, is none the less salary because the board must ascertain its amount. We think it was the inten

tion of the legislature, by section 220, to provide for the payment of all county officers out of the salary fund, and to include supervisors as county officers, whose compensation must first be determined. by the board, as well as those officers whose compensation is definitely fixed by the act itself. The supervisor, in acting as road commissioner, is none the less a county officer, and his duties as such commissioner are performed by virtue of his office as supervisor. The board, as a body, has general supervision of all the roads in the county (Pol. Code, § 2643); and the road commissioner, although one of the board, acts as a supervisor under the direction and supervision of the board in its collective capacity (Id. § 2645). The road commissioner is not a road-district officer. He is a supervisor charged with duties relating to the road district, but his identity as supervisor is not lost or changed. We can find no authority for making his compensation a charge upon the roaddistrict fund, while we do find, what seems reasonably clear, that the law contemplates that he should be paid out of the salary fund. Whether the duties are performed in his legislative or judicial capacity, while sitting with the board or whether acting ex officio as road commissioner, he is performing duties devolved upon him by law as a supervisor. As he is a county officer, and as there is a salary fund created out of which county officers are to be paid, we see no reason why he should not be paid his entire compensation allowed by law as supervisor out of that fund. "Salary" and "wages" are synonymous. Both mean a sum of money periodically paid for services rendered (And. Law Dict.), and it is immaterial how the value of the services is ascertained. Much of this ground was traveled over in the case of Ellis v. Tulare Co. (Cal.) 44 Pac. 575, and the provisions of the county government act of 1891, which are similar to those above referred to in the act of 1893, were considered. The conclusion was there reached that, in a county of a class such as Kern, the supervisor, while acting as road commissioner, is performing services "required of him by law," and is entitled to the compensation which the statute provided a supervisor should receive in such case. The question as to the fund from which he should be paid did not there arise. The judgment is reversed, and the cause remanded.

BEATTY, C. J. I concur in the judgment solely because it is a necessary conclusion from the point decided in Ellis v. Tulare Co., 44 Pac. 575. That case was decided in department, but a petition for a rehearing in bank was denied, and the decision, therefore, became the decision of the whole court. I thought at the time, and still think, the statutory provisions relating to the compensation of supervisors, when acting as road commissioners, were misconstrued in that case, but when acting as a member of a department c?

Attachment of a stock of goods as the property of H. is good, as against his parents, though he had previously executed to his wife a conveyance of an interest therein, there being no change in possession or management thereof, and though he testified that he located a mine in the name of himself, his father, and P., and that they traded the mine for the store business. and in making the trade were equal partners therein, and that he bought the interest of P.; there being no evidence that the father had anything to do with locating the mine or trading it for the business, or that he ever took any part in the business or knew anything thereof, and application of the word "partner" being a mere legal conclusion.

Department 2. Appeal from superior court, Kern county.

Action by Edmund Hammond, Sr., and another against H. L. Borgwardt, Jr., and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

C. Linkenback, for appellants. Bledsoe & Bledsoe and S. N. Reed, for respondents.

PER CURIAM. This action was brought to recover possession of 200 pairs of shoes seized by the defendants, as sheriff and deputy sheriff, as the property of Edmund Hammond, Jr. The court below granted judgment for defendants, and the plaintiffs appeal from the judgment, and from an order denying a new trial.

The shoes in question were part of a stock of goods in a store in which a mercantile business was carried on under the name of Hammond & Co., and the attachment was levied on the 21st day of June, 1897; and the court found that from the 10th day of December, 1896, until the said 21st day of June, the said Hammond, Jr., was the owner of, and in possession of, the store and the stock of goods, including those described in the complaint. It is contended by appellants that this finding was not warranted by the evidence, but the contention cannot be maintained.

As to the plaintiff Winnie Hammond, who is the wife of Edmund Hammond, Jr., the court found that on the 28th day of January, 1887, Hammond, Jr., executed to the plaintiff Winnie an instrument by which he purported to sell and convey to her an undivided twothirds of certain land upon which the store stood, together with an undivided two-thirds of the stock of goods therein, and that on the 15th day of June, 1887, he executed to her another deed, by which he conveyed the interest above stated, and also the same interest in a wagon and certain horses, and in

certain book accounts owing to the firm of Hammond & Co., but that there was no change of possession of any of said property, or any change in the management thereof; and this finding is amply sustained by the evidence.

As to the plaintiff Edmund Hammond, Sr., it is contended by appellants that the court should have found that he was at least a partner in the firm, and that therefore no particular part of the goods belonging to the firm could be taken on attachment as the property of Hammond, Jr., and that all that could have been attached as the property of Hammond, Jr., was his interest in all the property of the partnership. But the court was not called upon by the evidence to find that Hammond, Sr., was a partner, and it did not err in not so finding. The only evidence

of any facts tending to show the partnership is to be found in the following testimony of Hammond, Jr., who is the son of Hammond, Sr., while on the witness stand: "I was in possession of a stock of goods, wares, and merchandise in Randsburg from some time in December, 1896, to January, 1897. I located a mining claim, known as the 'Winnie,' which location was made in the name of myself, my father, and a gentleman named Prosser. We traded the mine for the store, and in making the trade for the store we were all equal partners in the same,-each owning one-third. I bought Mr. Prosser out in December, 1896." If, in this testimony, the word "store" means merely the house in which the business was conducted, it has no significance in consideration of the question of partnership in the business. But, in any event, the mere use of the word "partners" by the witness would not be sufficient in this case to compel the court to find the fact of partnership. Partnership is a relation which grows out of a contract, either express or implied; and there is no evidence in this case that Hammond, Sr., ever entered into such a contract. There is no evidence that he ever had anything to do with the locating of the mine or the trading of it for the store, or that he ever took any part in the business that was conducted in the store, or that he ever knew of any of these things or took any part in them. He was never at the store, he always lived in another state, and there is no evidence that he was ever in the state of California. No evidence was introduced of any of his acts by which he showed any consent to be a member of this partnership, or by which he participated in it in any way. He made no appearance and cuts no figure in any of the transactions. His first appearance on the scene is when his name was used as a party plaintiff to this action. The business was conducted by Hammond, Jr., down to the time of the levy of the attachment. Considering all these facts, we think the court was warranted in not finding that Hammond, Sr., was a partner, although Hammond, Jr., and one other witness applied to him the word

"partner," which is, at best, a mere legal conclusion.

With respect to appellants' technical objec tion to the sufficiency of the certificate of the justice of the peace to the judgment roll in the case in his court against Hammond, Jr., in which the attachment was issued, and to the proof of the writ under which the defendants acted, it is enough to say that we think such certificate and proof were sufficient. The judgment and order appealed from are affirmed.

(126 Cal. 628)

BARBOUR et al. v. FLICK. (L. A. 580.) (Supreme Court of California. Nov. 9, 1899.)

DECEIT-DAMAGES-RECOUPMENT-PAROL EVIDENCE-FINDINGS-OBJECTIONS NOT RAISED BELOW.

1. Finding that the property traded by defendant to plaintiffs would have been worth $30,000 if his representations had been true is not inconsistent with the admission of the answer that it would have been worth $48,000 if the representations alleged in the complaint had been true; one of these, that its market value was $48,000, not being found to have been made, and, if made, not being a representation of fact.

2. Plaintiffs, having tried the case on the theory that an issue as to value of property was raised, cannot for the first time on appeal contend that there was no such issue to try.

3. When, in an action for false representations as to land traded by defendant to plaintiffs, defendant seeks to recoup by showing that the land traded by plaintiffs was worth less than represented, and the court finds for both parties on their several contentions, plaintiffs are properly awarded the difference between the market value of the property traded to them and the market value of the land traded by them.

4. Where property standing in the name of the wife was traded for other property, title to which was taken in her name, it may, in an action by her and her husband for false representations in regard to the land received, be shown by parol that the wife held the legal titles for the joint use of both, and that he was an equal owner with her.

5. It is not an attempt to rescind in part a trade of land, where, in an action for false representations in regard thereto, plaintiffs ask that the note and mortgage given by them, in addition to their land, be canceled, as part of their recovery of damages.

6. Where a note given in exchange for land is decreed to be canceled for fraud, the party holding the same is not entitled to interest up to the time of cancellation.

Department 1. Appeal from superior court, San Diego county.

Action by S. A. Barbour and another against Warren J. Flick. From the judgment, both parties appeal. Affirmed.

Puterbaugh & Puterbaugh, for plaintiffs. Patterson Sprigg and McDonald & McDonald, for defendant.

VAN DYKE, J. This action is based upon fraud and deceit alleged to have been perpetrated by the defendant in effecting an exchange of his property for that of the plaintiffs. In August, 1896, the plaintiffs were residents of, and owned property in, the city of Chicago; and the defendant owned a ranch