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CHIPMAN, C. Action to have a certain conveyance of real property to defendant declared to be void, and for a decree adjudging the property to belong to the insolvent estate of defendant's husband. The cause was tried by the court without a jury, and it found the following facts: That on December 6, 1893, defendant purchased with her own means lot 108 in Brook's addition to the city of Los Angeles for the sum of $500, "and as part of the consideration undertook and promised to pay off an incumbrance of two hundred and fifty dollars then resting on said lot"; that the deed, when first drawn, made her the sole grantee, but before delivery her husband requested that he be made one of the grantees, to which defendant consented, "upon his promise to pay off said incumbrance of two hundred and fifty dollars, whereupon his name was inserted and the deed delivered"; that he failed to pay said mortgage, and defendant thereupon paid the same "with means furnished to the defendant by a son of defendant, who gave his earnings to said defendant for the purpose of paying off said incumbrance, and thereby acquire an unincumbered home"; that defendant's husband never paid any part of the consideration for said lot; that defendant frequently requested him to execute a deed to her, for the reason that he had failed to keep his promise to pay off the mortgage, and because he had only a nominal interest in the lot, and that on January 14, 1896, he did execute to her a deed for said lot, conveying his interest therein, "the consideration named in said deed being ten dollars and love and affection"; that said deed was made within one month prior to the filing of petition in insolvency by Mueller, and after he had become insolvent, but at the time of said transfer "defendant did not know, or have any reasonable cause to believe, that her husband was insolvent, or was about to file his petition in insolvency, or that such conveyance to her was made with the view to prevent his property from coming to his assignees in insolvency," or to in any way hinder, delay, or defraud his creditors, or to evade any of the provisions of the insolvency laws of this state. The court gave judgment for defendant, from which, and from an order denying motion for new trial, plaintiff appeals.

The evidence is meager.

Plaintiff's evi

dence consists of the deed of 1893 from defendant's grantor, and the testimony of the insolvent, Mueller, that he filed his petition in insolvency January 18, 1896, at which time, and when he conveyed to his wife, he had no property, and owed four hundred or five hundred dollars debts; that he knew when he made the deed that he could not pay these debts. This is all the evidence of plaintiff. The deed from Mueller to his wife is not given in the transcript. The evidence of defendant consists of the testimony of herself and her son, from which it appears that the findings of facts are amply supported; and, unless they fail to sustain the conclusion of law, the judgment and order must be affirmed.

Appellant claims that the deed of Mueller to his wife was absolutely void, and no testimony was necessary to establish that fact; citing Cook v. Cockins, 117 Cal. 140, 48 Pac. 1025. As the court found that Mueller was insolvent when he made the deed, and that he made it within one month of filing his petition in insolvency, the conveyance is void as to the then existing creditors if "made or given voluntarily, or without a valuable consideration" (section 3442, Civ. Code), or the transfer was made with a view to give a preference to Mrs. Mueller, and she had reasonable cause to believe that her husband was insolvent at the time, and that he made the transfer with a view to prevent his property from coming to his assignee in insolvency, or to hinder, delay, or defraud his creditors, and the transfer was made within one month before the filing of his petition in insolvency (Insolvent Act, § 59; St. 1895, p. 131). The evidence shows that defendant paid no money to her husband when he made the deed, and the recital of the deed is that the consideration was $10 and love and affection. But the evidence also shows that Mrs. Mueller originally bought the property, in 1893, with her own means, the consideration being $525, and the deed was made out to her as grantee. At the time of the purchase there was a mortgage indebtedness resting on the property, which she testified she assumed when she bought the property. Before the deed was delivered, her husband promised that, if he was made co-grantee in the deed with his wife, he would pay the mortgage indebtedness, and accordingly it was drawn, making Mueller and wife grantees, and it contained the following clause: "This deed is · made subject to a mortgage now on said lot, given by M. H. Pollard, to secure a note of two hundred and fifty dollars (being part of the purchase price of said lot), with accrued interest on said note." Mueller failed to pay this mortgage debt, and Mrs. Mueller paid it, and finally conveyed his interest in the property to his wife, four days before filing his petition in insolvency. She testified that she had no knowledge of his being in debt, or that he was insolvent or contemplated insolvency, or had any intention to hinder, delay, or defraud his creditors.

Respondent relies upon the cases involving the principles governing resulting trusts. It seems to us that the facts show that Mrs. Mueller was a creditor of her husband. When she paid the mortgage debt, there arose an implied obligation on his part to pay her the amount of that obligation. When he conveyed his interest in the property to her, it was in discharge of this obligation; and this was a valuable consideration for the deed (Saunderson v. Broadwell, 82 Cal. 132, 23 Pac. 36). and takes the case out of the operation of section 3442, supra. The evidence is, and the court found, that defendant had no knowledge of her husband's insolvency, and had no reasonable cause of believing him to be insolvent, or that he made the deed with intent to defraud his creditors. The case is thus taken out of the operation of the insolvent act. Saunderson v. Broadwell, supra; Bernheim v. Christal (Cal.) 18 Pac. 683; Haskin v. James, 96 Cal. 258, 31 Pac. 36. I advise that the judgment and order be affirmed.

We concur: GRAY, C.; COOPER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

TEMPLE, J. I concur in the judgment.

(127 Cal. 26)

COUNTY BANK OF SAN LUIS OBISPO v. GREENBERG et al. (L. A. 600.)

(Supreme Court of California. Nov. 22, 1899.) PLEADING-BANKS-OVERDRAFTS-BILLS AND

NOTES-INSTRUCTIONS-JUDGMENT.

1. Where the amended complaint on a note given to secure an overdraft showed the existence of an overdraft in excess of the note at the time the action was brought, and that no part of either the note or the overdraft had been paid, a demurrer to such complaint was properly overruled.

2. Where a note was given to secure an overdraft, and when the note was sued on the overdraft exceeded the value of the note and interest, judgment should be rendered for the value of the note and interest only.

3. Under Code Civ. Proc. § 447, providing that the due execution of a written instrument sued on is admitted unless the answer denying same is verified, it was not error, where a copy of a note was set out in the amended complaint, and the answer was not verified, to give an instruction that the answer admitted the execution of the note.

4. It was not error to refuse an instruction setting forth the rate of interest to be charged, in the absence of a special agreement, where the action was on a note given to secure an overdraft, and there was no question but that the amount of the overdraft and legal interest thereon exceeded the amount of the note.

5. Where an action was brought on a note given to secure an overdraft, the amount of which had varied from time to time, but which was treated by the parties as one obligation, it was not error to refuse instructions based on the theory that there were several obligations between the parties.

6. Code Civ. Proc. § 726, providing that there can be but one action on a mortgage debt, does

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GRAY, C. The defendant Schwartz appeals from a judgment in plaintiff's favor and from an order denying a new trial. The case was here on a former appeal (Bank v. Greenberg, 116 Cal. 467, 48 Pac. 386), wherein will be found a statement of the facts.

1. On the return of the case to the trial court the complaint was amended so as to make it show that Greenberg Bros., between the making and delivery of the note on which the suit is based and the time it was due, March 5, 1895, had overdrawn their account with plaintiff to an amount considerably in excess of the note, that said note was given to secure said overdraft, and that no part of said overdraft had been paid. This amendment cured the defect in the complaint for which the judgment was reversed on the former appeal. The complaint, as thus amended, showed the existence of the overdraft at the time the action was brought, that no part of either the note or overdraft had been paid, and clearly showed a liability of Schwartz to plaintiff for the full face value of the note. There is, therefore, no merit in the argument that the demurrer to the amended complaint should have been sustained.

2. The overdraft, with interest at the legal rate, after giving proper credit for the several payments thereon, exceeds the amount due on the note on the date of the rendition of the verdict, November 19, 1897. The note was dated March 5, 1894, and was given for $5,000, with interest at 10 per cent. per annum, payable quarterly, and, if not so paid, to be added to the principal, and bear like interest. According to its terms, there was due on the note on November 19, 1897. $7,210.07, and the verdict should have been limited to this amount. The judgment is therefore $148.55 in excess of the amount to which the plaintiff was entitled at the date of its entry. 3. The refusal of the court to give instruction No. 8, setting forth the rate of interest to be charged in the absence of a special agreement, could not injure defendant in any way, for the reason that plaintiff's action was based on a written obligation, and he was entitled to recover the face value of the note, if the overdraft, with interest thereon, reached that amount; and there is no question on the evidence that it did reach that amount, even if we allow interest on the overdraft at

no more than the legal rate. There is no specification in the record that the verdict is contrary to evidence for having allowed interest at the legal rate on the overdraft. Indeed, appellant seems to have proceeded at the trial on the theory that such interest was to be allowed. His eighth instruction and second specification of particulars indicate this, and render it unnecessary to decide the point made in the concluding paragraph of appellant's brief.

4. The instruction that the answer of the defendants admits the due execution by all of them of the note sued on was not error. A copy of the note was set out in the amended complaint, and the answer was not verified. The genuineness and due execution of the instrument are therefore deemed admitted. Code Civ. Proc. § 447.

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5. Instructions 6 and 7 offered by appellant and refused by the court are inapplicable to the undisputed facts of the case. There were no "several obligations" from Greenberg Bros. to plaintiff, as is assumed in these instructions. Greenberg Bros. had but one obligation at the plaintiff's bank, and that was the overdraft that the note sued on was given to secure. All that was paid into the bank by the firm was paid on that overdraft, and all that was drawn out was added to it. The amount of the overdraft varied from time to time, no doubt, but the parties treated it as one concrete obligation, and so it should be treated on the trial of the case. It was held on the former appeal that the note was given "to secure whatever overdraft might exist on March 5, 1895, not exceeding the amount of the obligation and accrued interest thereon, and contemplated continued transactions between them and the bank." The amount of the overdraft was the question for the jury to determine, and that was to be fixed by subtracting all that had been paid into the bank from all that had been drawn out, giving such credits on account of interest as the law or the agreement between the parties might indicate. These instructions, therefore, based on the theory of several obligations between the parties, could only confuse and mislead, and were properly refused.

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6. The mortgage that was foreclosed at the suit of plaintiff herein against Meyer Greenberg was not given to secure the obligation upon which the present action is based. To quote from appellant's brief, "The makers of the note are sureties or guarantors for the payment of the overdraft," and the mortgage, by its terms, was limited to a security for the performance of the original obligation of the Greenbergs to pay this overdraft, and in no sense was it a security for the performance of the collateral personal obligation of appellant on the note given to secure the same overdraft. Hence we say that the previous suit on the mortgage given to secure the overdraft was no bar to this suit on the note given as collateral security for the same

overdraft. Code Civ. Proc. § 726, providing that "there can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage," is inapplicable to the case in hand, and therefore instructions 4 and 5 were properly refused. These views find support in the following well-considered cases: Vandewater v. McRae, 27 Cal. 596; Bank v. Casaccia, 103 Cal. 641, 37 Pac. 648; Carver v. Steele, 116 Cal. 116, 47 Pac. 1007. We advise that the judgment and order be reversed, and the cause remanded, with directions to the court below to proceed to try the case anew, unless within 20 days after the filing of the remittitur in the court below the plaintiff shall file with the clerk of that court a written consent that the judgment be modified by striking out the amount therein awarded, and inserting in lieu thereof the sum of $7,210.07, and, on such consent being filed, it is ordered that the judgment be modified accordingly as of the date of the original judgment.

We concur: CHIPMAN, C.; COOPER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded, with directions to the court below to proceed to try the case anew, unless within 20 days after the filing of the remittitur in the court below the plaintiff shall file with the clerk of that court a written consent that the judgment be modified by striking out the damages therein awarded, and inserting in lieu thereof the sum of $7,210.07, and. on such consent being filed, it is ordered that the judgment be modified accordingly as of the date of the original judgment.

(126 Cal. 640)

FRESNO MILLING CO. v. FRESNO CANAL & IRRIGATION CO. (S. F. 839.) (Supreme Court of California. Nov. 10, 1899.) CONTRACTS-ACTION FOR BREACH-DAMAGES.

The

A canal company was to supply plaintiff with water from its canal, constructed on a public highway, but was not to be liable for damages for nondelivery of water if it was lawfully "restrained from such delivery." county supervisors filled in the canal, which was never reconstructed. Plaintiff sued the company for damages for breach of its contract. Held that, as the company was to supply the water from the particular canal so long as it was permitted to do so, it was not liable.

In bank. Appeal from superior court, Fresno county.

Action by the Fresno Milling Company against the Fresno Canal & Irrigation Company. From a judgment for defendant, plaintiff appeals. Affirmed.

T. P. Ryan, for appellant. F. H. Short and Geo. E. Church, for respondent.

HENSHAW, J. Plaintiff, as its name implies, is a milling corporation, engaged in the

manufacture of flour in the city of Fresno. Defendant is a corporation engaged in the distribution and sale of water under the laws of the state. Plaintiff sues to recover damages for the breach of two certain contracts for the sale of water made by defendant with plaintiff's predecessors in interest. Appellant contends that the right to the water was appurtenant to the mill site, and passed to it by mesne conveyances from the original contracting parties. By the first of these contracts the defendant agreed, under certain limitations and restrictions, to furnish sufficient water to "carry three runs of stones." By the second contract, made with one Deming, and by Deming assigned to the plaintiff, the defendant, under similar limitations and restrictions, sold "all the water that may be required, not exceeding at any time eighty-three and one-third cubic feet per second, to be supplied by and through the canal known as the 'Mill Ditch,' on Fresno street, in the town of Fresno, county of Fresno, state of California." It is insisted by appellant that under these contracts it is entitled to 83% cubic feet of water per second, and so much more as might be necessary to carry three runs of stones, estimated to be about 52 cubic feet of water per second. By respondent it is maintained that the later agreement for 83% cubic feet provided for all the water to which, under any circumstances, the plaintiff was entitled. Regardless of the determination of the trial court upon this matter, we think its consideration unnecessary here, for the terms of the two contracts upon the question hereinafter to be considered are well-nigh identical. Plaintiff does not seek to have the water which the defendant for a long time admittedly has ceased to supply to the mill restored, but asks merely for damages for its failure to supply the water down to a given date. If, under the facts and under the terms of the contracts, plaintiff is not entitled to damages, the quantum of water ceases to be an important consideration.

Under the evidence, it appears that the defendant contracted to supply the water from an open canal constructed in part upon a county highway, and in part upon a public street of the city of Fresno; that in October, 1891, the road overseer of the county, acting under direction of the supervisors, went with men, teams, plows, and scrapers, and filled in the canal upon the county highway, and leveled the road to its grade. Thereafter that portion of the canal within the city was likewise filled, and its character as a canal destroyed. Cross actions for injunctions were brought by the canal company to restrain the overseer from destroying its canal, by the road overseer to restrain the canal company from its alleged unlawful use of the highway, and by the city against the canal and milling company to abate the canal as a nuisance per se. The destruction of the canal has never been repaired, and no water since the date of the destruction has been supplied to plaintiff's mill. The first contract contained the follow

ing covenant: "It is understood and agreed that the party of the first part [the Fresno Canal and Irrigation Company] shall be liable to no damage claimed by the party of the second part hereto for nondelivery of water as herein agreed, in case such first party shall be lawfully or forcibly restrained from such delivery." The second contract contained the following: "It is covenanted and agreed that said party of the first part [the Fresno Canal and Irrigation Company] shall not be responsible for deficiency of water caused by drought, insufficiency of water in the river, hostile diversion or obstruction, forcible entry, temporary damage by flood, or other accident, but shall use all due diligence in restoring and protecting the flow of water in said canal."

The court found "that since the execution of said contract the defendant had duly, faithfully, and fully performed each and every one of the terms, conditions, and provisions of the contract upon its part to be kept or performed, wherever the same could be done or performed by the defendant, and when not prevented by obstruction or force that could not be overcome by the use of due diligence and every possible diligence on the part of the defendant." This finding is assailed, and the appellant demands the application to these contracts of the rule declared in Klauber v. Car Co., 95 Cal. 353, 30 Pac. 555, where the sound principle is enunciated that if one has unconditionally contracted to do a particular thing, and seeks relief because of the impossibility of performance, the impossibility of performance must be shown to attach to the thing to be done, and not to him alone who has contracted to do it. It must be an impossibilitas rei, as distinguished from an impossibilitas facti. But in this case the defendant made no unconditional promise to supply the water, but hedged its liability with the covenants above quoted. That there was a hostile obstruction sufficient to prevent its supplying the water is shown, not only from the physical acts of the authorities and their abettors in filling the canal, but also by the injunctions under which both this plaintiff and defendant were placed. But to this appellant replies that it was the duty of the defendant to have maintained a suitable ditch or canal, and one which would not have interfered with the public's right upon the highways, and that, if it had so done, there would have been no interference with its use of the water. But it may be answered that, viewing the contract in the light of the circumstances under which it was made, and bearing in mind further that defendant's agreement went but to the supplying water from a given named canal, it is reasonable to conIclude, as the trial court must have done, that defendant was to supply the water from this particular canal, so long as it was permitted to do so, and that it was not within the contemplation of the parties that the entire construction of the canal should be changed, as would have been necessary, to prevent either an anticipated interference with its use, or to

enable it to continue to supply the water should such interference take place. Still further it appears that, after leaving the main canal of the company, the water used by the mill was conveyed by a smaller canal,-the mill ditch,-itself constructed upon the public highway by the plaintiff, and that, still upon the public highway, were constructed and maintained by plaintiff certain necessary head works to enable it to use the water. Plaintiff itself was under injunction restraining it from using the street for the indicated purposes, and its head works had been destroyed; and it is argued with much force that, if the defendant had succeeded in restoring the flow of water to its main canal, water would still have been unavailable to the plaintiff, by reason of the destruction of its works, and the disability of the injunction under which it labored, and that therefore it was suffering no damage, since it could not have used the water even if the defendant had supplied it.

As, under the uncontroverted facts applied to the contracts as thus construed, the plaintiff would not be entitled to a recovery, the other points made upon this appeal need not be considered. The judgment and order appealed from are affirmed.

We concur: MCFARLAND, J.; HARRISON, J.; GAROUTTE, J.; VAN DYKE, J.

(126 Cal. 683)

HINES et al. v. MILLER et al. (Sac. 538.) (Supreme Court of California. Nov. 16, 1899.) MECHANICS' LIENS-PERSONAL JUDGMENTDEFICIENCY.

A judgment foreclosing mechanics' liens on a mine, which provides that judgment be entered in favor of plaintiffs in certain specified sums, and that the liens of plaintiffs be foreclosed against the defendants, and that the property be sold by the sheriff, and, if the proceeds be not sufficient to pay plaintiffs in full, then, on the coming in of the sheriff's return on such sale, the clerk shall docket the judgment for such deficiency against the defendants, is not a personal judgment except for such deficiency as might be shown by the sheriff's return on the sale; and is not in violation of Code Civ. Proc. § 1194, providing that whenever, in the sale of the property subject to the lien, there is a deficiency of proceeds, judgment may be docketed for the deficiency as in actions for the foreclosure of mortgages.

Department 1. Appeal from superior court, Tuolumne county.

Action by William Hines and others against Frank Miller and others to foreclose mechanics' liens. From a judgment for plaintiffs, defendants appeal. Affirmed.

A. E. Rogers, for appellants. Otis & Street, for respondents.

HARRISON, J. Judgment was rendered against the appellants herein upon their default for failure to answer the complaint, and they have appealed therefrom upon the judgment roll. An appeal from the same judgment, taken by certain other defendants who had answered the complaint, was considered

by this court (122 Cal. 517, 55 Pac. 401), and the judgment was affirmed. In the opinion then given, the character of the action is sufficiently stated, and need not be here repeated. The present appeal is urged upon the ground that under the provisions of section 1194, Code Civ. Proc., the court was not authorized to render a personal judgment against the defendants except for such deficiency as might appear from the sheriff's return after his sale of the property charged with the lien. That section provides: "Whenever in the sale of the property subject to the lien there is a deficiency of proceeds, judgment may be docketed for the deficiency in like manner and with like effect as in actions for the foreclosure of mortgages." A proper construction of the judgment in the present case shows that it does not violate the provisions of this section. After declaring "that judgment be, and the same is hereby, entered in favor of plaintiffs and against defendants" in certain specified sums, and "that the liens of the plaintiffs upon the mining claim be, and the same are hereby, foreclosed against the defendants," it directs that said property be sold by the sheriff in the manner provided by law, and, "if the amount derived from the sale of said property be not sufficient to pay each of the plaintiffs in full, then, upon the coming in of the return of the sheriff of said county on the said sale, the clerk of the court docket the judgment for such deficiency against the defendants" (naming them). Under these provisions there could be no judgment docketed against them until after a sale by the sheriff and his return showing a deficiency of proceeds. The judgment itself was not enforceable as a personal judgment against the appellants, except for such deficiency as might be shown upon such return. Mill Co. v. Center, 107 Cal. 193, 40 Pac. 334. See, also, Painter v. Painter, 98 Cal. 625, 33 Pac. 483; Kreling v. Kreling, 116 Cal. 458, 48 Pac. 383. The judgment, as entered, is within the allegations of the complaint, and it does not appear that any execution has issued upon the judgment, or that any judgment has been docketed against the appellants. It was necessary that the court should ascertain and determine the amount for which the defendants were liable to the plaintiffs, in order that it might be seen, when the sheriff's return came in, whether there would be a deficiency in the proceeds of the sale. This determination by the court was its "judgment" upon the allegations of the plaintiffs in that respect, and, under section 668, Code Civ. Proc., was properly entered by the clerk in the "judgment book.” Section 1194, Id., is silent upon the "entering" of judgment, but provides for "docketing" the judgment for whatever deficiency there may be in the proceeds of the sale. The court properly allowed to the plaintiffs interest upon their claims. Insurance Co. v. Fisher, 106 Cal. 224, 39 Pac. 758; Macomber v. Bigelow (Cal.) 56 Pac. 449. The judgment is affirmed. We concur: GAROUTTE, J.; VAN DYKE, J.

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