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granted to plaintiffs a decrce of foreclosure. The finding that the interest had not been paid is attacked as unsupported by the evidence. It appears, without contradiction, that on October 11, 1904, six days before the commencement of the action, the defendant Elliott, who had assumed the payment of the note and mortgage, tendered to the plaintiffs the interest then due, comprising the two installments payable, respectively, on July 11, 1904, and October 11, 1904, and amounting to about $368.20. The tender was refused on the ground that plaintiffs had exercised their option "of considering both principal and interest due on that note and that the [their] money was not sufficient." The defendant Elliott immediately deposited the the sum of $375 in gold coin in the name of plaintiffs in a bank of deposit of good repute and gave notice thereof to plaintiff. Civ. Code, § 1500. There is no evidence that at any time prior to October 11th the plaintiffs notified any of the defendants they had elected to declare the principal of the note due, or that they ever demanded payment of such principal. Evidence offered by defendants to show that plaintiffs had not given such notice or made such demand was excluded. The agent of plaintiffs was allowed to testify, over defendants' objection, that two weeks before the commencement of the suit he had elected to declare the whole note due and payable, and had directed the attorneys of the plaintiffs to proceed to foreclose the mortgage. The note and mortgage, being parts of one transaction, are to be read together, and the plaintiffs may therefore rely on the provision contained in the mortgage, making the principal due for nonpayment of interest at the payees' option, although the note contains no such provision. Phelps v. Mayers, 126 Cal. 549, 58 Pac. 1048; Meyer v. Weber, 133 Cal. 681, 65 Pac. 1110. The contention of the appellants is that they had the right to pay the accrued interest and defeat the right to exercise this option, at any time before it had actually been exercised, and that it could not be validly exercised by any determination reached in the creditors' own minds, and not communicated in any way to the debtors.

It is settled by several decisions of this court that the holder of an instrument of this kind need not, before commencing his action, give any notice to the defaulting maker of his election to declare the principal due for nonpayment of interest. Hewitt v. Dean, 91 Cal. 5. 27 Pac. 423: Sichler v. Look, 93 Cal. 600, 29 Pac. 220; Clemens v. Luce, 101 Cal. 432, 35 Pac. 1032: Bank of Commerce v. Scofield, 126 Cal. 156, 58 l'ac. 151. As was said in Hewitt v. Dean, supra: "The commencement of the action was notice of the exercise of the option *

and no previous notice or demand was necessary." But, while a formal notice before suit is not ne:essary, the principal sum does not become

due ipso facto upon default in the payment of interest. The clause in question gives to the holder of the note a mere option which he may take or waive. Belloc v. Davis, 38 Cal. 242. He is entitled to a reasonable time in which to determine whether or not he will claim his right. Hewitt v. Dean, supra; Fletcher v. Dennison. 101 Cal. 294, 35 Pac. SGS. If after a default in the payment of interest the holder accepts the overdue interest (Belloc v. Davis, supra), or delays unreasonably before electing to declare the principal sum due (Crossmore v. Page, 73 Cal. 213. 14 Pac. 787, 2 Am. St. Rep. 789), the right to exercise the option is lost. And we think it is equally lost if, before the option has been in fact exercised, the defaulting debtor pays or offers to pay the overdue interest. Until such option has been exercised, the principal of the note is not due. Until then the holder has a mere option to declare it due. During this interval he has, by his failure to act, in effect declared that he will not regard the delay already past as sufficient ground for asserting the right given him. The delay to that extent is waived by him. If then, before the exercise of the option, the debtor pays the accrued interest, the condition upon which the holder may declare the whole note not due does not exist. The interest is no longer unpaid, and the creditor cannot take advantage of a prior delay, which he has already waived. Here the debtor, by his tender, followed by the deposit in bank, extinguished the obligation to pay the interest then due. Such tender and deposit constituted a payment (Civ. Code, § 1500), if made before the plaintiffs had exercised their option to declare the principal due. And the offer of payment, without the deposit in bank, was equally effectual to destroy the right of the plaintiffs to declare the principal of the note due. Civil Code, § 1504. The plaintiffs cannot therefore rely upon the commencement of the suit as an exercise of their option. When the complaint was filed, the interest had already been paid. Nor can any effect, as against the defendants, be given to the statement made by the agents of plaintiff's in response to the tender, that the plaintiffs had exercised their option of considering both principal and interest due. Such statement was made after the rights of the defendants had become fixed by their tender. It is true that the court finds that the plaintiffs had on or about the 3d day of October, 1904, elected to declare the principal and interest due.

This finding is based upon the testimony that the plaintiffs had on or about the date last stated directed, their attorneys to proceed to foreclose. We think the rights of the defendants could not be cut off by such ex parte determination, not communicated to them. The plaintiffs had a right of elec tion, and, having elected, had the right to proceed without notice to the defendants, but

they cannot be said to have exercised their option until by some outward act beyond a mere mental determination or a direction to their own agents they had manifested their election. Furthermore, the complaint does not allege any election prior to the commencement of the action. The allegation is that plaintiffs "elect to declare the whole of said principal sum and interest thereon from April 11, 1904, now due and payable." This statement, which is in the present tense, must be taken to refer to the time of filing the complaint. It was not denied. The allegation was probably unnecessary, as the filing of the complaint seeking the relief claimed sufficiently evidenced an exercise of the option at the time of such filing. But, under the averment as made, evidence of a prior election was outside of the issues, and was objected to on this ground. For the same reason the finding of an election on October 3, 1904, is entitled to no consideration.

It follows that, in the present condition of the pleadings and the evidence, the action seems to have been prematurely begun, the principal sum sued for not being due when the complaint was filed.

The judgment and order appealed from are reversed, and the cause remanded for a new trial. The plaintiffs, if so advised, should have leave to amend their complaint.

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Under St. 1901, p. 27, c. 32, authorizing cities to acquire or construct any municipal improvement, including street work, etc., and property necessary or convenient to carry out the objects, purposes, and powers of the municipality, and Oakland City Charter, art. 3. § 31. St. 1889, p. 524, authorizing the city to acquire lands for public parks, etc., it may purchase lands for park and boulevard purposes. 3. SAME.

St. 1901, p. 27, c. 32, authorizing cities to acquire land for parks, and providing a proposition to incur debt therefor shall be submitted to the voters, does not contemplate that each price of land desired for a park should be voted upon separately, where there is a single scheme of park improvement, including several parcels of land widely separated, to be converted into separate parks.

In Bank. Petition by the city of Oakland for mandamus to Frank R. Thompson, city

clerk, to compel him to countersign bonds. Peremptory writ ordered to issue.

J. E. McElroy, City Atty., for petitioner. Allen & Walsh and Ben. F. Woolner, for respondent.

HENSHAW, J. This is a petition for mandate against the respondent, who is city clerk of the city of Oakland, to compel him as such official to countersign certain municipal bonds of petitioner. The proceedings, culminating in the voting of the bonds, are set forth in full.

The respondent pleads by demurrer, and admits the due performance of all the acts taken by the officers of the city, and admits likewise the regularity and sufficiency of the election proceedings and of the election. He bases his refusal to countersign the bonds upon two grounds: First, that the proceedings culminating in the special election whereat the bonds were voted were had under a statute not applicable to the purpose; and, second, that the election, calling, as it did, for the acquisition of certain detached pieces and parcels of land for public parks, was irregular and void, in this: that each piece and parcel of land proposed to be purchased should have been submitted to the voters to be voted upon as a separate and distinct proposition; whereas, by the method adopted, it was made necessary for the voters to vote for or against the acquisition of all of these detached parcels as a single unit.

1. Under the first objection, it is contended that the proceedings should have been had, the election called, and the bonds issued, under an act of the Legislature entitled "An act to enable incorporated cities and counties, and towns to acquire, maintain, and improve public parks and boulevards." St. 1889, p. 361, c. 248. In fact, the proceedings were had under the authority of the act of 1901, entitled "An act authorizing the incurring of indebtedness by cities, towns, and municipal corporations for municipal improvements, and regulating the acquisition, construction, and completion thereof." St. 1901, p. 27, c. 32. It is argued that the act of 1889 deals expressly with the subject-matter of the petitioner's bond election; that there is no repugnancy between it and the later act of 1901, which is general in its nature; and that it must be held, therefore, that the Legislature in the act of 1889 has set forth the single and controlling method whereby municipalities may acquire lands for park and boulevard purposes. It may freely be conceded that no repugnancy exists between the act of 1889 and the act of 1901, but it does not necessarily follow therefrom that the act of 1889 provides the sole and exclusive method by which a municipal corporation may acquire land for park purposes. Thus, if it shall be determined that the act of 1901 is in its scope broad enough to include the acquisition of lands for park and boulevard

purposes, there is no constitutional inhibition forbidding the Legislature from providing two independent schemes, to either of which a municipality may have resort as it shall deem expedient. Indeed, the essential difference between the act of 1889 and that of 1901 is in the life of the bonds; the act of 1889 providing for 20-year bonds, and that of 1901 for 40-year bonds. One city might consider it to be more to its advantage to use the longer term bonds, while another might be of contrary opinion, and, as we have said, there is no constitutional or other objection which prevents the Legislature from giving cities their option and choice in this matter. The language of the act of 1901 is certainly general enough to empower a city to purchase lands for park and boulevard purposes. declares: "Whenever the legislative branch of any city, town or municipal corporation shall, by resolution passed by vote of twothirds of all its members and approved by the executive of said municipality, determine that the public interests or necessity demands the acquisition, construction or completion of any municipal improvement, including bridges, waterworks, water rights, sewers, light or power works or plants, buildings for municipal uses, school houses, fire apparatus, and street work, or other works, property, or structures necessary or convenient to carry out the objects, purposes and powers of the municipality."

It

Herein is a declaration empowering a city to bond itself for the acquisition "of any municipal improvement" including the acquisition of any "property * * * necessary or convenient to carry out the objects, purposes, and powers of the municipality.' It will not be questioned but that the acquisition of parks is, without any express words of authorization, included, whenever a grant of power is conferred to acquire property for "municipal purposes." Law v. San Francisco, 144 Cal. 384, 77 Pac. 1014; City of Lexington v. Kentucky, etc., Assembly, 71 S. W. 943, 114 Ky. 781; In re Mayor, etc., 2 N. E. 642, 99 N. Y. 569; In re North Terrace Park, 48 S. W. 860, 147 Mo. 259. But, in addition to this, the charter of the city of Oakland expressly contemplates the exercise of this power, when in section 31 thereof it declares that "the council shall have power to pass ordinances

* 40, to acquire lands for public parks and to improve and maintain such lands for the benefit of all the inhabitants of the city." Charter of City of Oakland, art. 3, § 31; St. 1889, p. 524. The effort of respondent to limit the scope of the act of 1901 to enumerated matters under the rules of noscitur a sociis and expressio unius is untenable. The language, "including bridges, waterworks, water rights, sewers, light or power works, or plants, buildings for municipal purposes, school houses, fire apparatus," is more obviously designed to in

clude in the phrase "municipal improvement," subject-matters concerning which doubt might be entertained as to their proper place in such a category, than to limit the kind of public improvements to those specifically designated. Thus, to illustrate: While it would be unhesitatingly said that a sewer, or a bridge, or buildings for municipal use, were public improvements, it might be debatable in a town adequately supplied with light by a quasi public corporation whether the acquisition of a lighting plant by a city could, in strictness, be denominated a public improvement, and it was to relieve from any necessity of construction that light works, power works, waterworks, and water rights were expressly enumerated. It was thus not designed to limit the meaning of the phrase "municipal improvements," but rather to broaden its scope to include any of these matters which might otherwise be considered doubtful.

2. The second objection urged by the respondent is equally untenable. The scheme had in contemplation the acquisition of sev eral distinct parcels of land, widely separated, to be converted into separate parks for the enjoyment of all the inhabitants of the city. The scheme is a single scheme, the purpose a single purpose, and came clearly within the authority of the act of 1901, which provides that the proper authorities may "call a special election and submit to the qualified voters of said city, town, or municipal corporation, the proposition of incurring a debt for the purposes set forth in said resolution." The law does not contemplate-much less compel that each piece and parcel of land which may be desired for a park should be voted upon separately. The plan is a single plan for the acquisition of all of these lands for park purposes, and in recognition of the jealousies which so often arise in wards and sections of a municipality it may easily be believed that it would be disastrous to the municipal scheme if the other course were adopted-the jealousies of the inhabitants of one section prompting them to vote for lands for a park, if it were to be situated in their own district, and to vote against it if it were not-thus rendering it difficult, if not impossible, for the city ever to acquire park lands at all. Certainly the plan adopted was within the discretionary power of the council under the law, and it enabled every voter to express himself as being for or against the whole proposition. More than this was not required.

It appearing, therefore, that the objections of the respondent are untenable, it is ordered that a peremptory writ of mandate issue, directing him forthwith to contersign petitioner's bonds as prayed for.

We concur: BEATTY, C. J.; LORIGAN, J.; MCFARLAND, J.; SHAW, J.; SLOSS, J.

(151 Cal. 561) DURKEE v. CHINO LAND & WATER CO. (L. A. 1.892.) (Supreme Court of California. July 30, 1907.) 1. ANIMALS--TRESPASSING-OWNER'S DUTY. The owner of cattle of known roving and destructive tendencies must take commensurate precautions to prevent their escape to the lands of others.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 2. Animals, § 338.]

2. SAME-ACTION FOR DAMAGE - EVIDENCESUFFICIENCY.

Evidence in an action for damage caused by trespassing cattle held to sustain a finding that defendant had neither taken sufficient precaution to prevent trespass by its cattle nor exercised due diligence in removing them.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 2. Animals, § 360.]

3. DAMAGES--EVIDENCE-SUFFICIENCY.

Evidence in an action for damage caused by trespassing cattle held to sustain findings of damage in plaintiff's favor.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Damages, § 511.]

4. APPEAL - PRESENTATION OF OBJECTIONS BELOW-NECESSITY-THEORY OF CAUSE.

Where, in an action for damages, the rule adopted by plaintiff for the measurement thereof was acquiesced in by defendant, who raised no objection to the evidence given, which sustained the findings, defendant is concluded from questioning the sufficiency of the evidence when tested by some other rule.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1054, 1055.]

Department 2. Appeal from Superior Court, San Bernardino County; Frank F. Oster, Judge.

Action by Daniel Durkee against the Chino Land & Water Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

J. S. Chapman and Ward Chapman, for appellant. E. W. Freeman and A. D. Laughlin, for respondent.

LORIGAN, J. This action was brought by plaintiff to recover damages from the defendant, claimed to have been sustained by him on account of the defendant wrongfully and negligently allowing its cattle to trespass upon certain grain and pasture lands owned and leased by him in the vicinity of Chino, in San Bernardino county. The complaint stated four causes of action and judgment was rendered in favor of plaintiff upon the first three, but denied upon the fourth.

The first count alleged the trespass of said cattle on 320 acres of land belonging to plaintiff between December 1, 1902, and September 1, 1903, during which time they ate up and injured growing hay and verdure thereon, to the damage of plaintiff in the sum of $175. The court allowed damages on this count on the sum of $150. The second count alleged the trespass by the cattle of defendant, between the same dates, on other tract in possession of plaintiff containing 120 acres; that they ate up and destroyed

the grain, hay, grass, and verdure thereon, causing the loss of pasture to the amount of $1,080; that said cattle broke down the fences on said tract and damaged plaintiff in the further sum of $150; that as a result of such trespass by the cattle of defendant, and destruction of said fences, 10 head of cows belonging to plaintiff mingled with the trespassing cattle of defendant and with them escaped from said tract of land and were lost, to the further damage of plaintiff in the sum of $500, making in all a total of $1,630 damages. On this count the court allowed $720 for the loss of grass and pasture; for destruction of fences $50; and for the loss of cows $500, making $1,270. It deducted from this, however, the sum of $105, an installment of rent on a lease of these premises due from plaintiff to defendant. The third count alleged a further trespass of defendant's cattle, between the same dates, upon two other tracts of land in possession of plaintiff, aggregating 1,500 acres, and constituting practically one pasture, whereby the fences of said tract were broken down, and the grass, hay, and verdure destroyed; that, on account of the destruction of said grass, hay, and verdure, plaintiff was compelled to purchase alfalfa hay at the expense of $1,500, which expenditure would have been unnecessary save for the destruction by said cattle of the hay, grass, and verdure growing on said lands. It was further alleged in this count that, by reason of the destruction of said grass and verdure, 60 head of young cattle belonging to plaintiff, of the value of $500, were deprived of proper food, and perished. Plaintiff laid his damages resulting from the destruction of said grass, hay, and verdure on said land, and the breaking down of said fences, in the sum of $2,599.80. The court allowed on this count for the destruction of grass, $900 damages, and fences $600, but found against plaintiff for the alleged loss of 60 head of young cattle. In relation to the fourth count, the court found against plaintiff as to its allegations, and it is unnecessary to particularly refer to them. Judgment was given plaintiff for the amounts found in his favor on the three counts, aggregating the sum of $2,815. The defendant moved for a new trial upon various grounds; the principal claim in support of it being that the evidence was insufficient to support the finding of negligence on the part of defendant in caring for its cattle, and, further, that there was no evidence sufficient to support the findings of the court of the amount of damages suffered by plaintiff, or any of its various items. In disposing of the motion for a new trial, the court ordered a reduction of $20 to be made from the judgment on the first count and $180 from the judg ment on the second count, and that, if this reduction was accepted by plaintiff, the mo. tion for a new trial be denied. The reduction was accepted by the plaintiff, and the defendant thereupon appealed from the judg

ment and order denying its motion for a new trial.

The evidence shows that the vicinity in which the trespasses complained of by plaintiff occurred was devoted largely to the cattle business, the people living there being principally engaged in dairying. conducting it with gentle, native, dairy cows. The plaintiff was thus extensively engaged, using the fields upon which the trespass of the cattle occurred for such dairy purposes. The defendant was not engaged in dairying, but in raising cattle for the market. The ranch upon which its cattle were supposed to range consisted of some 46,000 acres, and upon this were carried at the dates involved in this action something over 3.000 head of cattle. of which, by far, the larger number were what is called Sonora or Mexican cattle. It was these Mexican cattle which entered upon the fields of plaintiff, depastured and destroyed the growing crops and natural feed thereon, broke down his fences, and caused all the damage to him which the court found he sustained, and upon which it awarded him. judgment. As to the disposition of these Mexican cattle, their roving and destructive propensities, there is a unanimity in the testimony of the witnesses on the subject. They were wild "long horned cattle." which wandered on or off the range at will, and whose roving disposition was not restrained by the presence of any ordinary fence. Excerpts from the testimony of a few of the witnesses called (and the same views are expressed by all who spoke upon the subject) so sufficiently describe the character of these cattle as to make further reference to it unnecessary. One witness, speaking upon the subject, said: "I don't believe there is a ranch in that country that they have not looted, and to do it they would have to break half a dozen fences. It is no more trick to go through half a dozen fences for that band of steers than to go along the road peaceably on a Sunday afternoon." Another: "They would jump and run and go right through the fences." And a third: "The Chino cattle were wild and fences did not stop them. They were monarchs of all they surveyed." And the foreman of the defendant is also credited in the testimony with having summarized the evil tendencies of these animals in the declaration that "a whirlwind isn't in it with these cattle." We refer to the characteristics of these cattle in connection with a claim of appellant that the evidence was insufficient to sustain the finding of the court that defendant was negligent in their care.

It was the duty of the defendant, in view of the roving and destructive tendencies of these cattle, to take commensurate precautions to prevent their escape from the range upon which they were placed. Reasonable care on account of their known disposition required that a greater diligence should have

been exercised concerning them than would be required relative to ordinary range cattle. The evidence on behalf of defendant tended to show that it had, at most, four vaqueros to ride along and repair the fences, which extended eight or nine miles around the ranch, and to look after all the cattle on the range, and that they rode these fences, as one testified, once or twice, another two or three times, a week. No particular attention was given to the fences on the ranch in the vicinity of the vicinity of the premises of plaintiff where these cattle of marauding tendencies were ranging, or to keep them back on the range, and, under the circumstances, the court would be justified in finding that no sufficient care over them was exercised by defendant. Aside from this, the evidence on behalf of plaintiff warranted the court in finding that even the attention claimed to have been given was not sufficient, as that testimony showed that the cattle were constantly in the fields of plaintiff while the feed there lasted, and, when driven out one day, returned the next, and that defendant had information and knowledge of their constant and continued depredations. The plaintiff made frequent complaints from the beginning to the end of the trespassing of these cattle. He testified that he complained at the head office of the company in San Francisco, at the main office at Chino, and to the superintendent of the corporation at the ranch. He told them that these cattle were destroying all the feed in his fields and breaking his fences; that he had kept men riding after them; that his horses were worn out; and that he had to have relief. To these appeals he received only evasive answers, and gives what he terms "a fair illustration" of the result of one of them and the general result of all. He stated: "I went to the office and saw the clerk there in charge in the Chino office and I stated the case very thoroughly, that there were 200 or 300 head of their steers there; that they were there for a long time, and that I wouldn't have a thing if there wasn't something done; and the agent asked me what time I could get up in the morning. I told him I could get up in the dead hour of the night if I could get relief. He said: 'You get up tomorrow morning bright and early, and be here about the home ranch, and you will meet the vaqueros, and you state your case to them.' I got up before daylight, and it was very cold, and I drove up about sunrise, and I met Mr. Williams and four others all mounted, coming leisurely from the home ranch, and I stopped the gentlemen and stated my case to them. Mr. Williams was very kind, so far as he had anything to say, and he said: "Mr. Durkee, we can't do anything for you. We have to go to work at the silo on the east side.' I asked if I could not have one man, and that my horses were woru

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