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to her was given in discharge thereof, and was dence consists of the deed of 1893 from denot void as being without a valuable consideration.

fendant's grantor, and the testimony of the

insolvent, Mueller, that he filed his petition Commissioners' decision. Department 2. Ap

in insolvency January 18, 1896, at which time, peal from superior court, Los Angeles county.

and when he conveyed to his wife, he had no Action by Henry Greenawalt, assignee in property, and owed four hundred or five huninsolvency, against Mary Mueller, to set aside

dred dollars debts; that he knew when he a conveyance of real estate. From a judg- made the deed that he could not pay these ment in favor of defendant, and from an or- debts. This is all the evidence of plaintiff. der denying a motion for a new trial, plain- The deed from Mueller to his wife is not given tiff appeals. Affirmed.

in the transcript. The evidence of defendant R. Dunnigan, for appellant. Murphy & consists of the testimony of herself and her Gottschalk, for respondent.

son, from which it appears that the findings

of facts are amply supported; and, unless CHIPMAN, C. Action to have a certain they fail to sustain the conclusion of law, the conveyance of real property to defendant de- judgment and order must be affirmed. clared to be void, and for a decree adjudging Appellant claims that the deed of Mueller the property to belong to the insolvent estate to his wife was absolutely void, and no testiof defendant's husband. The cause was tried mony was necessary to establish that fact; by the court without a jury, and it found the citing Cook v. Cockins, 117 Cal. 140, 48 Pac. following facts: That on December 6, 1893, 1025. As the court found that Mueller was defendant purchased with her own means lot ipsolvent when he made the deed, and that 108 in Brook's addition to the city of Los he made it within one month of filing his Angeles for the sum of $500, "and as part of petition in insolvency, the conveyance is void the consideration undertook and promised to as to the then existing creditors if "made or pay off an incumbrance of two hundred and given voluntarily, or without a valuable confifty dollars then resting on said lot"; that sideration” (séction 3412, Civ. Code), or the the deed, when first drawn, made her the sole transfer was made with a view to give a grantee, but before delivery her husband re- preference to Mrs. Mueller, and she had reaquested that he be made one of the grantees, sonable cause to believe that her husband to which defendant consented, "upon his was insolvent at the time, and that he made promise to pay off said incumbrance of two the transfer with a view to prevent his prophundred and fifty dollars, whereupon his erty from coming to his assignee in insolvenname was inserted and the deed delivered"; cy, or to hinder, delay, or defraud his creditthat he failed to pay said mortgage, and de- ors, and the transfer was made within one fendant thereupon paid the same “with means month before the filing of his petition in infurnished to the defendant by a son of de- solvency (Insolvent Act, $ 59; St. 1893, p. 131). fendant, who gave his earnings to said de- The evidence shows that defendant paid no fendant for the purpose of paying off said in- money to her husband when he made the cumbrance, and thereby acquire an unincum- deed, and the recital of the deed is that the bered home"; that defendant's husband never consideration was $10 and love and affection. paid any part of the consideration for said But the evidence also shows that Mrs. Vuellot; that defendant frequently requested him ler originally bought the property, in 1893, to execute a deed to her, for the reason that with her own means, the consideration being he had failed to keep his promise to pay off $525, and the deed was made out to her as the mortgage, and because he had only a grantee. At the time of the purchase there nominal interest in the lot, and that on Jan- was a mortgage indebtedness resting on the uary 14, 1896, he did execute to her a deed property, which she testified she assumed for said lot, conveying his interest therein, when she bought the property. Before the "the consideration named in said deed being deed was delivered, her husband promised that, ten dollars and love and affection"; that said if he was made co-grantee in the deed with deed was made within one month prior to the his wife, he would pay the mortgage indebtfiling of petition in insolvency by Mueller, edness, and accordingly it was drawn, makand after he had become insolvent, but at the ing Mueller and wife grantees, and it contime of said transfer "defendant did not tained the following clause: “This deed is · know, or have any reasonable cause to be- made subject to a mortgage now on said lot, lieve, that her husband was insolvent, or was given by M. H. Pollard, to secure a note of about to file his petition in insolvency, or that two hundred and fifty dollars (being part of such conveyance to her was made with the the purchase price of said lot), with accrued view to prevent his property from coming to interest on said note.” Mueller failed to pay his assignees in insolvency,” or to in any this mortgage debt, and Mrs. Mueller paid it, way hinder, delay, or defraud his creditors, and finally conveyed his interest in the propor to evade any of the provisions of the in- erty to his wife, four days before filing his solvency laws of this state. The court gave petition in insolvency. She testified that she judgment for defendant, from which, and had no knowledge of his being in debt, or that from an order denying motion for new trial, he was insolvent or contemplated insolvency, plaintiff appeals.

or had any intention to hinder, delay, or deThe evidence is meager.

Plaintiff's evi- fraud his creditors.

Respondent relies upon the cases involving not bar a suit on a note given to secure the paythe principles governing resulting trusts. It

ment of an overdraft, where a suit to foreclose seems to us that the facts show that Mrs.

a mortgage given as security for the original

obligation by one of the depositors had been preMueller was a creditor of her husband. When viously brought. she paid the mortgage debt, there arose an

Commissioners' decision. Department 2. implied obligation on his part to pay her the

Appeal from superior court, San Luis Obispo amount of that obligation. When he con

county. veyed his interest in the property to her, it

Action by the County Bank of San Luis was in discharge of this obligation; and this

Obispo against Meyer Greenberg and others. was a valuable consideration for the deed (Saunderson v. Broadwell, 82 Cal. 132, 23 Pac.

From a judgment for plaintiff, defendant B.

Schwartz appeals. Reversed, with conditions. 36), and takes the case out of the operation of section 3442, supra. The evidence is, and Graves & Graves, for appellant. Wilcoxon the court found, that defendant had no knowl- & Bouldin, for respondent. edge of her husband's insolvency, and had no reasonable cause of believing him to be GRAY, C. The defendant Schwartz apinsolvent, or that he made the deed with in

peals from a judgment in plaintiff's favor tent to defraud his creditors. The case is

and from an order denying a new trial. The thus taken out of the operation of the in

case was here on a former appeal (Bank v. solvent act. Saunderson V. Broadwell, su

Greenberg, 116 Cal. 467, 48 Pac. 386), wherein pra; Bernheim v. Christal (Cal.) 18 Pac. 683;

will be found a statement of the facts. Haskin v. James, 96 Cal. 258, 31 Pac. 36. I 1. On the return of the case to the trial advise that the judgment and order be af- court the complaint was amended so as to firmed.

make it show that Greenberg Bros., between

the making and delivery of the note on which We concur: GRAY, C.; COOPER, C.

the suit is based and the time it was due,

March 5, 1895, had overdrawn their account PER CURIAM. For the reasons given in

with plaintiff to an amount considerably in the foregoing opinion, the judgment and or

excess of the note, that said note was given der are affirmed.

to secure said overdraft, and that no part of

said overdraft had been paid. This amendTEMPLE, J. I concur in the judgment.

ment cured the defect in the complaint for which the judgment was reversed on the for

mer appeal. The complaint, as thus amend(127 Cal. 26)

ed, showed the existence of the overdraft at COUNTY BANK OF SAN LUIS OBISPO v.

the time the action was brought, that no part GREENBERG et al. (L. A. 600.).

of either the note or overdraft had been paid, (Supreme Court of California. Nov. 22, 1899.) | and clearly showed a liability of Schwartz to PLEADING-BANKS-OVERDRAFTS-BILLS AND

plaintiff for the full face value of the note. NOTES-INSTRUCTIONS-JUDGMENT. There is, therefore, no merit in the argu1. Where the amended complaint on a note

ment that the demurrer to the amended comgiven to secure an overdraft showed the existence of an overdraft in excess of the note at the

plaint should have been sustained. time the action was brought, and that no part 2. The overdraft, with interest at the legal of either the note or the overdraft had been paid, rate, after giving proper credit for the several a demurrer to such complaint was properly overruled.

payments thereon, exceeds the amount due 2. Where a note was given to secure an over

on the note on the date of the rendition of draft, and when the note was sued on the over- the verdict, November 19, 1897. The note draft exceeded the value of the note and inter

was dated March 5, 1894, and was given for est, judgment should be rendered for the value of the note and interest only.

$5,000, with interest at 10 per cent. per an3. Under Code Civ. Proc. $ 447, providing that num, payable quarterly, and, if not so paid, the due execution of a written instrument sued

to be added to the principal, and bear like on is admitted unless the answer denying same

interest. According to its terms, there was is verified, it was not error, where a copy of a note was set out in the amended complaint, and

due on the note on November 19, 1897, $7,210.the answer was not verified, to give an instruc- 07, and the verdict should have been limited tion that the answer admitted the execution of

to this amount. The judgment is therefore the note.

4. It was not error to refuse an instruction $148.55 in excess of the amount to which the setting forth the rate of interest to be charged, plaintiff was entitled at the date of its entry. in the absence of a special agreement, where the 3. The refusal of the court to give instrucaction was on a note given to secure an overdraft, and there was no question but that the

tion No. 8, setting forth the rate of interest amount of the overdraft and legal interest there

to be charged in the absence of a special op exceeded the amount of the note.

agreement, could not injure defendant in any 5. Where an action was brought on a note way, for the reason that plaintiff's action was given to secure an overdraft, the amount of which had varied from time to time, but which

based on a written obligation, and he was was treated by the parties as one obligation, it entitled to recover the face value of the note, was not error to refuse instructions based on if the overdraft, with interest thereon, reachthe theory that there were several obligations ed that amount; and there is no question on between the parties. 6. Code Civ. Proc. $ 726, providing that there

the evidence that it did reach that amount, can be but one action on a mortgage debt, does even if we allow interest on the overdraft at no more than the legal rate. There is no overdraft. Code Civ. Proc. $ 726, providing specification in the record that the verdict is that "there can be but one action for the recontrary to evidence for having allowed inter- covery of any debt, or the enforcement of any est at the legal rate on the overdraft. In- right secured by mortgage," is inapplicable deed, appellant seems to have proceeded at to the case in hand, and therefore instructions the trial on the theory that such interest was 4 and 5 were properly refused. These views to be allowed. His eighth instruction and find support in the following well-considered second specification of particulars indicate cases: Vandewater V. McRae, 27 Cal. 596; this, and render it unnecessary to decide the Bank v. Casaccia, 103 Cal. 611, 37 Pac. 648; point made in the concluding paragraph of Carver v. Steele, 116 Cal. 116, 47 Pac. 1007. appellant's brief.

We advise that the judgment and order be 4. The instruction that the answer of the reversed, and the cause remanded, with direcdefendants admits the due execution by all of tions to the court below to proceed to try the them of the note sued on was not error. A case anew, unless within 20 days after the copy of the note was set out in the amended filing of the remittitur in the court below the complaint, and the answer was not verified. plaintiff shall file with the clerk of that court The genuineness and due execution of the a written consent that the judgment be modinstrument are therefore deemed admitted. ified by striking out the amount therein Code Civ. Proc. $ 447.

awarded, and inserting in lieu thereof the 5. Instructions 6 and 7 offered by appel- sum of $7,210.07, and, on such consent belant and refused by the court are inapplica- ing filed, it is ordered that the judgment be ble to the undisputed facts of the case. There modified accordingly as of the date of the were no "several obligations” from Green- | original judgment. berg Bros. to plaintiff, as is assumed in these instructions. Greenberg Bros. had but one We concur: CHIPMAN, C.; COOPER, C. obligation at the plaintiff's bank, and that was the overdraft that the note sued on was PER CURIAM. For the reasons given in given to secure. All that was paid into the the foregoing opinion, the judgment and orbank by the firm was paid on that overdraft, der are reversed, and the cause remanded, and all that was drawn out was added to it. with directions to the court below to proceed The amount of the overdraft varied from time to try the case anew, unless within 20 days to time, no doubt, but the parties treated it after the filing of the remittitur in the court as one concrete obligation, and so it should below the plaintiff shall file with the clerk of be treated on the trial of the case. It was that court a written consent that the judgheld on the former appeal that the note was ment be modified by striking out the damagiven “to secure whatever overdraft might ges therein awarded, and inserting in lieu exist on March 5, 1895, not exceeding the thereof the sum of $7,210.07, and, on such amount of the obligation and accrued interest consent being filed, it is ordered that the judgthereon,

and contemplated contin- ment be modified accordingly as of the date of ued transactions between them and the bank." the original judgment. 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

(126 Cal. 640) paid into the bank from all that had been FRESNO MILLING CO. v. FRESNO CANAL drawn out, giving such credits on account of & IRRIGATION CO. (S. F. 839.) interest as the law or the agreement between

(Supreme Court of California. Nov. 10, 1899.) the parties might indicate. These instruc

CONTRACTS-ACTION FOR BREACH-DAMAGES. tions, therefore, based on the theory of several A canal company was to supply plaintiff obligations between the parties, could only with water from its canal, constructed on a confuse and mislead, and were properly re

public highway, but was not to be liable for

damages for nondelivery of water if it was lawfused.

fully "restrained from such delivery.' The 6. The mortgage that was foreclosed at the county supervisors filled in the canal, which was suit of plaintiff herein against Meyer Green- never reconstructed. Plaintiff sued the comberg was not given to secure the obligation

pany for damages for breach of its contract.

Held that, as the company was to supply the waupon which the present action is based. To

ter from the particular canal so long as it was quote from appellant's brief, “The makers of permitted to do so, it was not liable. the note are sureties or guarantors for the

In bank. Appeal from superior court, Frespayment of the overdraft," and the mortgage,

no county. by its terms, was limited to a security for

Action by the Fresno Milling Company the performance of the original obligation of

against the Fresno Canal & Irrigation Compathe Greenbergs to pay this overdraft, and in

ny. From a judgment for defendant, plainno sense was it a security for the perform

tiff appeals. Affirmed. ance of the collateral personal obligation of appellant on the note given to secure the T. P. Ryan, for appellant. F. H. Short and same overdraft. Hence we say that the pre- Geo. E. Church, for respondent. vious suit on the mortgage given to secure the overdraft was no bar to this suit on the HENSHAW, J. Plaintiff, as its name imnote given as collateral security for the same plies, is a milling corporation, engaged in the

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manufacture of flour in the city of Fresņo. ing covenant: “It is understood and agreed Defendant is a corporation engaged in the that the party of the first part [the Fresno Cadistribution and sale of water under the laws nal and Irrigation Company] shall be liable to of the state. Plaintiff sues to recover dam- no damage claimed by the party of the second ages for the breach of two certain contracts for part hereto for nondelivery of water as herein the sale of water made by defendant with agreed, in case such first party shall be lawplaintiff's predecessors in interest. Appellant fully or forcibly restrained from such delivcontends that the right to the water was ap- ery.” The second contract contained the folpurtenant to the mill site, and passed to it by lowing: “It is covenanted and agreed that mesne conveyances from the original contract- said party of the first part [the Fresno Canal ing parties. By the first of these contracts the and Irrigation Company) shall not be responsidefendant agreed, under certain limitations and ble for deficiency of water caused by drought, restrictions, to furnish sufficient water to "car- insufficiency of water in the river, hostile diry three runs of stones.” By the second con- version or obstruction, forcible entry, tempotract, made with one Deming, and by Deming rary damage by flood, or other accident, but assigned to the plaintiff, the defendant, under shall use all due diligence in restoring and prosimilar limitations and restrictions, sold "all the tecting the flow of water in said canal." water that may be required, not exceeding at The court found "that since the execution any time eighty-three and one-third cubic feet of said contract the defendant had duly, faithper second, to be supplied by and through the fully, and fully performed each and every one canal known as the 'Mill Ditch,' op Fresno of the terms, conditions, and provisions of the street, in the town of Fresno, county of Fres- contract upon its part to be kept or performed, no, state of California." It is insisted by ap- wherever the same could be done or performpellant that under these contracts it is entitled ed by the defendant, and when not prevented to 831/3 cubic feet of water per second, and so by obstruction or force that could not be overmuch more as might be necessary to carry come by the use of due diligence and every three runs of stones, estimated to be about 52 possible diligence on the part of the defendcubic feet of water per second. By respond- ant." This finding is assailed, and the appelent it is maintained that the later agreement lant demands the application to these contracts for 8312 cubic feet provided for all the water of the rule declared in Klauber v. Car Co., 95 to which, under any circumstances, the plain- Cal. 353, 30 Pac. 555, where the sound printiff was entitled. Regardless of the determina- ciple is enunciated that if one has unconditiontion of the trial court upon this matter, we ally contracted to do a particular thing, and think its consideration unnecessary here, for. seeks relief because of the impossibility of the terms of the two contracts upon the ques- ) performance, the impossibility of performance tion hereinafter to be considered are well-nigh must be shown to attach to the thing to be identical. Plaintiff does not seek to have the done, and not to him alone who has contracted water which the defendant for a long time ad- to do it. It must be an impossibilitas rei, as mittedly has ceased to supply to the mill re- distinguished from an impossibilitas facti. stored, but asks merely for damages for its But in this case the defendant made no unconfailure to supply the water down to a given ditional promise to supply the water, but date. If, under the facts and under the terms hedged its liability with the covenants above of the contracts, plaintiff is not entitled to quoted. That there was a hostile obstruction damages, the quantum of water ceases to be sufficient to prevent its supplying the water is an important consideration.

shown, not only from the physical acts of the Under the evidence, it appears that the de- authorities and their abettors in filling the fendant contracted to supply the water from canal, but also by the injunctions under which an open canal constructed in part upon a both this plaintiff and defendant were placed. county highway, and in part upon a public But to this appellant replies that it was the street of the city of Fresno; that in October, duty of the defendant to have maintained a 1891, the road overseer of the county, acting suitable ditch or canal, and one which would under direction of the supervisors, went with not have interfered with the public's right upmen, teams, plows, and scrapers, and filled on the highways, and that, if it had so done, in the canal upon the county highway, and lev- there would have been no interference with eled the road to its grade. Thereafter that its use of the water. But it may be answered portion of the canal within the city was like- that, viewing the contract in the light of the wise filled, and its character as a canal de- circumstances under which it was made, and stroyed. Cross actions for injunctions were bearing in mind further that defendant's agreebrought by the canal company to restrain the ment went but to the supplying water from a overseer from destroying its canal, by the given named canal, it is reasonable to conroad overseer to restrain the canal company clude, as the trial court must have done, that from its

unlawful use of the highway, defendant was to supply the water from this and by the city against the canal and milling particular canal, so long as it was permitted to company to abate the canal as a nuisance per do so, and that it was not within the conse. . The destruction of the canal has never templation of the parties that the entire conbeen repaired, and no water since the date of struction of the canal should be changed, as the destruction has been supplied to plaintiff's would have been necessary, to prevent either *mlll. The first contract contained the follow- an anticipated interference with its use, or to enable it to continue to supply the water | by this court (122 Cal. 517, 55 Pac. 401), and should such interference take place. Still fur- the judgment was affirmed. In the opinion ther it appears that, after leaving the main then given, the character of the action is canal of the company, the water used by the sufficiently stated, and need not be here remill was conveyed by a smaller canal,—the mill peated. The present appeal is urged upon the ditch,-itself constructed upon the public high- ground that under the provisions of section way by the plaintiff, and that, still upon the 1194, Code Civ. Proc., the court was not aupublic highway, were constructed and main- thorized to render a personal judgment against tained by plaintiff certain necessary head the defendants except for such deficiency as works to enable it to use the water. Plaintiff might appear from the sheriff's return after itself was under injunction restraining it from his sale of the property charged with the lien. using the street for the indicated purposes, That section provides: “Whenever in the sale and its head works had been destroyed; and of the property subject to the lien there is a it is argued with much force that, if the de- deficiency of proceeds, judgment may be dockfendant had succeeded in restoring the flow of eted for the deficiency in like manner and with water to its main canal, water would still like effect as in actions for the foreclosure of have been unavailable to the plaintiff, by rea- mortgages." proper construction of the son of the destruction of its works, and the judgment in the present case shows that it disability of the injunction under which it la- does not violate the provisions of this section. bored, and that therefore it was suffering no After declaring "that judgment be, and the damage, since it could not have used the water same is hereby, entered in favor of plaintiffs even if the defendant had supplied it.

and against defendants' in certain specified As, under the uncontroverted facts applied sums, and “that the liens of the plaintiffs upto the contracts as thus construed, the plain- on the mining claim be, and the same are heretiff would not be entitled to a recovery, the by, foreclosed against the defendants," it diother points made upon this appeal need not rects that said property be sold by the sheriff be considered. The judgment and order ap- in the manner provided by law, and, "if the pealed from are affirmed.

amount derived from the sale of said property

be not sufficient to pay each of the plaintiffs We concur: MCFARLAND, J.; HARRI- in full, then, upon the coming in of the return SON, J.; GAROUTTE, J.; VAN DYKE, J. of the sheriff of said county on the said sale,

the clerk of the court docket the judgment for

such deficiency against the defendants" (nam(126 Cal. 683)

ing them). Under these provisions there could HINES et al. v. MILLER et al. (Sac. 538.) be no judgment docketed against them until (Supreme Court of California. Nov. 16, 1899.) after a sale by the sheriff and his return showMECHANICS' LIENS-PERSONAL JUDGMENT- ing a deficiency of proceeds. The judgment DEFICIENCY,

itself was not enforceable as a personal judgA judgment foreclosing mechanics' liens on

ment against the appellants, except for such a mine, which provides that judgment be entered in favor of plaintiffs in certain specified sums,

deficiency as might be shown upon such return. and that the liens of plaintiffs be foreclosed Mill Co. v. Center, 107 Cal. 193, 40 Pac. 334. against the defendants, and that the property be See, also, Painter v. Painter, 98 Cal. 625, 33 sold by the sheriff, and, if the proceeds be not sufficient to pay plaintiffs in full, then, on the

Pac. 483; Kreling v. Kreling, 116 Cal. 458, 48 coming in of the sheriff's return on such sale,

Pac. 383. The judgment, as entered, is withthe clerk shall docket the judgment for such de- in the allegations of the complaint, and it does ficiency against the defendants, is not a personal

not appear that any execution has issued upon judgment except for such deficiency as might be shown by the sheriff's return on the sale; and

the judgment, or that any judgment has been is not in violation of Code Civ. Proc. $ 1194, pro- docketed against the appellants. It was necesviding that whenever, in the sale of the property sary that the court should ascertain and detersubject to the lien, there is a deficiency of proceeds, judgment may be docketed for the de

mine the amount for which the defendants ficiency as in actions for the foreclosure of mort

were liable to the plaintiffs, in order that it gages.

might be seen, when the sheriff's return came Department 1. Appeal from superior court, in, whether there would be a deficiency in the Tuolumne county.

proceeds of the sale. This determination by Action by William Hines and others against the court was its “judgment” upon the allegaFrank Miller and others to foreclose mechan

tions of the plaintiffs in that respect, and, unics' liens. From a judgment for plaintiffs, de

der section 668, Code Civ. Proc., was properly fendants appeal. Affirmed.

entered by the clerk in the "judgment book."

Section 1194, Id., is silent upon the "entering" A. E. Rogers, for appellants. Otis & Street,

of judgment, but provides for "docketing" for respondents.

the judgment for whatever deficiency there

may be in the proceeds of the sale. The court HARRISON, J. Judgment was rendered

properly allowed to the plaintiffs interest upagainst the appellants herein upon their de

on their claims. Insurance Co. v. Fisher, 106 fault for failure to answer the complaint, and

Cal. 224, 39 Pac. 758; Macomber v. Bigelow they have appealed therefrom upon the judg

(Cal.) 56 Pac. 419. The judgment is affirmed. ment roll. An appeal from the same judgment, taken by certain other defendants who We concur: GAROUTTE, J.; VAN DYKE, had answered the complaint, was considered J.

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