statements of jurors regarding such miscon-¡ all kinds, printing presses, windows, etc. It duct. People v. Azoff, 105 Cal. 632." is made from cast-off articles of clothing and The minutes of the court show the fol- instance by ragpickers, and cut sufficiently rejected fabrics, usually gathered in the first

lowing:

"It is ordered that said motion for a new trial be and the same is hereby granted upon all the grounds set forth in said motion, and particularly upon the ground that the evidence is insufficient to sustain the verdict."

"This court has frequently commented upon the wide extent of the discretion of the trial court, in granting or denying a new trial for insufficiency of evidence. 'Its action,' as was said in Domico v. Casassa, 101 Cal. 411 [35 Pac. 1024], 'is conclusive upon this court, unless there has been an abuse of discretion.' And, if there is a substantial conflict in the evidence, the trial court will not be deemed to have abused its discretion when it has determined that the verdict or the finding is against the weight of the evidence, and that there should be a new trial. When the evidence is conflicting, the trial court is authorized to review it, and if, in its opinion, the verdict is against the weight of evidence, it is its duty to grant a new trial.'" Merralls v. Southern Pacific Co., 182 Cal. 19, 186 Pac. 778; Biaggi v. Ramont, 189 Cal. 675, 209 Pac. 892; Soto v. Globe Grain & Milling Co., 55 Cal. App.

large to serve the purpose for which it is intended. The negotiations which resulted in the contracts in question were carried on between Jos. Rosenberg, representing the plaintiffs, and A. Juell, representing the defendant. These men had been acquaintances [2, 3] Inasmuch as the court specified in for many years. The defendant had importits order that the motion was granted upon ed large quantities of roofing rags from Eurthe ground that the evidence was insufficient ope. In February, 1921, Rosenberg suggestto sustain the verdict, the only question re-ed to Juell that, inasmuch as the defendant maining concerns the correctness of the order was importing roofing rags it might also made on that ground. It has therefore be- be able to import wiping rags. Acting upon come necessary to examine the record in or- the suggestion Juell cabled to European der to determine what evidence, if any, would clients of his firm, and in a few days resupport the ruling of the court, having in ported to Rosenberg that he had prices from mind the rules governing such examina- two different concerns, the price of one betion and determination. These rules are well ing considerably higher than the other. Neiestablished. In Gordon v. Roberts, 162 Cal. ther Rosenberg nor Juell at that time knew 506, 123 Pac. 288, it was said: anything about European wiping rags, so they agreed to order a quantity from each concern, and determine upon arrival which one furnished the better goods, and which one was the more reliable concern, all as a basis for possible additional orders in the future. These two shipments were referred to in the evidence as the Heymann & Co. and the Van der Haege shipments; the former being the more expensive merchandise. Before these shipments arrived Juell told kosenberg that, because of the unsatisfactory conditions of exchange, it would be advisable for him to order more wiping rags from Heymann & Co., and that he would be taking no chances, because Heymann & Co. was a responsible firm. As a result of this conversation additional contracts covering 325 tons of wiping rags were executed. When the first order arrived, early in April, 1921, the goods were received and paid for by the plaintiffs. Upon inspection it was found that the Heymann shipment contained satisfactory wiping rags, but that the Van der Haege shipment contained a large percentage of roofing rags or shoddy rags, that is, rags not usable as wiping rags. As to the latter shipment the parties agreed that the plaintiffs should grade the same and be allowed for rejections. Accordingly the merchandise was taken to the plaintiffs' warehouse and sorted, and the plaintiffs were allowed the sum of $841.40 on account of the portion of the Van der Haege shipment that did not constitute wiping rags. After the plaintiffs' inspection of the Heymann & Co. portion of the first shipment, plaintiffs ordered under contracts dated April 19, 1921, approximately 550 tons of wiping rags, with the understanding that they should come from Heymann & Co.

532, 203 Pac. 830.

In considering the question of the correctness of the order the presumption on appeal is in favor of the order and against the verdict. Marr v. Whistler, 49 Cal. App. 364, 193 Pac. 600; Roberts v. Southern Pacific Co., 54 Cal. App. 315, 201 Pac. 958. With these rules in mind, the record has been examined with a view to determining whether it can be said that the trial court abused its discretion in granting the motion.

It would be impracticable and unnecessary to undertake an extensive review of the evidence which is contained in a voluminous record. Only those portions, either controverted or admitted, which tend to support the order appealed from will be adverted to. The plaintiffs were manufacturers and dealers in wiping rags in San Francisco, and the defendant was engaged, at least in part, in the importing business in said city. A wiping rag is described in the evidence as a soft cloth of cotton or wool, or both cotton and wool, having absorbent qualities which make it useful in wiping machinery of

The contracts were in similar form. They referred to the parties hereto as the seller and purchasers, that shipment should be by "prompt steamer from Antwerp to San Fran

(229 P.)

cisco"; the quantity and the price were definitely stated, and it was provided that payment should be "net cash as soon as documents arrive at San Francisco; i. e., prepaid steamer bill of lading Antwerp to San Francisco, consular invoice, weight list, and bill of health certificate." The descriptions of the merchandise were as follows: Contract number 249, "dark and light wipers"; contract number 250, "light, dark, fine, and light print wipers"; contract number 256, "washed and trimmed dark and light wipers in bales"; contract number 259, "washed and trimmed heavy dark cottons and linsey wipers in bales"; contracts numbers 260 and 266, "washed and trimmed white wipers in bales"; contract number 264, "washed and trimmed light wipers in bales"; contract number 265, "dark (heavy and light mixed) washed and trimmed wipers in bales," and contract number 267, "ordinary light unwashed wipers in bales."

After the examination of the first ship ment and after contracts had been executed for the additional tonnage, but before the arrival of the latter, Rosenberg learned that a shipment of wipers had arrived in San Francisco from Heymann & Co. to Charles Harley Company. Rosenberg testified that he inspected them, and found that there were very few wiping rags among them. He communicated with Mr. Juell and stated to him that if the Heymann & Co. rags which he had bought were anything like those received by the Charles Harley Company he would reject them. Shortly thereafter Juell informed Rosenberg that he had cabled Heymann about the rags, and had received a reply in which Heymann had stated that the wipers which had been shipped were all good wipers, but that if the matter was serious he would come to San Francisco. On cable advice from Juell he came to San Francisco, arriving about the time of the arrival of some 200 tons of the merchandise which had been shipped by him on the steamer "Transvaal" intending the same to be in fulfillment of certain of said contracts. For these goods the plaintiffs paid defendant the sum of $17,433.35 upon presentation of the documents as required by the contracts. This shipment was hauled to the warehouse, where it was inspected by Juell, Heymann, and Rosenberg. Heymann was shown his first shipment, which was satisfactory to all parties concerned, and, referring to the same, stated that that was the way he always packed wiping rags. During the inspection of the "Transvaal" shipment he admitted that numerous articles taken from the bales were not wiping rags and should not be included therein. He stated that he had not packed the "Transvaal" shipment but that the same had been packed by different packers. As to what further took place during that inspection, Rosenberg testified as follows:

"I told Mr. Juell then, in the presence of Mr. Heymann, who was also present at the same time, at that same conference, that I absolutely would not accept the rags unless Mr. Juell would relieve me definitely of all responsibility intended to sort out and grade out all of these in connection with the rejections; that we had wipers; that we would charge him back with all the labor; and that we would only keep the rejections at what we could sell them for, and I would have to have that in writing with Mr. Juell. And I told him that I intended to embody this in a letter at once, and forward it to his office, and would expect his reply imagreeable to him and that he would accept that mediately. Mr. Juell told me that that was proposition. I think Mr. Heymann was at our place, altogether, maybe three-quarters of an hour, and he left rather angrily."

Heymann departed almost immediately for New York city. Following the conversation and oral understanding between Rosenberg and Juell, as above outlined, the plaintiffs under date of July 11, 1921, transmitted to the defendant a letter in which was incorporated the following:

"After examination of wiping rags sold by you to us, taken from the steamer "Transvaal,' with your Mr. Juell, Mr. Heymann, and our Mr. Jos. Rosenberg, we find that after opening several bales, that they contain rags other than wiping rags, and that they are only fit for roofing rags, and can only be used as such by us, and before taking these wiping rags to account, we shall ask you to definitely permit us to sort these wiping rags and reject all such rags that are not fit for wiping rags. We are perfectly willing to hold these rejected rags subject to your order. All shipments now enroute from Europe to be governed in the same manner as above outlined, in so far as rejec‐ tions are concerned."

Under date of July 12, 1921, the defendant replied as follows:

"We beg to acknowledge receipt of your letter of the 11th inst. and confirm arrangement as outlined by you. Refund for rejects or adjustments of same is to be made by us after our invoices are paid by you in accordance with terms of contract."

After these letters had been exchanged the parties became involved in a controversy in advance of the actual sorting of the goods as to the percentage of rejections which would be allowed. Rosenberg testified that the defendant insisted upon a definite percentage, which the plaintiffs refused to consider. The parties thus reached an impasse, and the litigation followed.

[4] It is the contention of the defendant that the contracts provided for a definitely described article of merchandise, and contained no warranty of quality; that the parties contracted with respect to European wiping rags; and that there is no evidence in the record that the wipers delivered and tendered to the plaintiff did not answer the description of European wiping rags. It is

urged with great insistence that the plaintiffs having purchased European wiping rags were only entitled to and were bound to accept "wiping rags of the grade, kind, and quality and standard produced in Europe, whether better or worse than that of wiping rags produced in California." It is not contended by plaintiffs, and from the language of the contracts it could not properly be contended, that the defendant expressly warranted the quality of the wiping rags that were purchased, but it is the position of the plaintiffs that the subject-matter of the contracts was wiping rags, and that the contracts contained an implied warranty that the goods would be wiping rags, and not shoddy rags or something other than wiping rags. An examination of the record impels the conclusion that what the parties had in mind at the time of the execution of the contracts was the purchase and sale of wiping rags. At the time they knew nothing about European wiping rags other than the knowledge which they had gained from an inspection of the first shipment from Heymann & Co. and Van der Haege, and it was particularly the merchandise contained in the Heymann & Co. shipment that the parties had in mind at the time the contracts were signed.

been made in accordance with the terms of
the contracts as alleged, but denied that
said rags were not wiping rags, and alleged
that they were European wiping rags as
called for in the contracts. The situation is
still more directly presented with reference
to the "Transvaal" shipment. It was that
shipment on which the plaintiffs paid in the
sum of $17,433.35 in accordance with the
terms of the contracts, as alleged in the sec-
ond cause of action, that is, upon presenta-
tion of the documents, and on account of
which payment the plaintiffs are claiming
the sum of $9,276.86 as having been paid for
the rags which were not wiping rags.
three promissory notes, aggregating $6,000,
were a portion of said payment of $17,433.35.
These promissory notes formed the basis of
the three causes of cross-complaint on the
part of the defendant, and the amounts of
which the jury included in its verdict, thus
holding in effect that the plaintiffs were not
entitled to reimbursement on account of
extraneous material, which the evidence
showed amounted in some cases to more than
90 per cent. of the whole.

The

was entitled, and in doing so be free from the charge that it had abused its discretion in deciding the motion in favor of the moving party.

[6] It is contended by the plaintiffs in support of their claim for reimbursement of

[5] We are not unmindful of the fact that the verdict was a general verdict, and that in its deliberations the jury may have balanced the claims of the parties except as to the It may be assumed, as defendant contends, amount of the verdict, but if there was sufthat when the plaintiffs contracted to buy ficient evidence before the jury to sustain a wiping rags of a certain designated descrip- verdict for the plaintiff, either on the comtion to be shipped from Antwerp, the con- plaint or as against the cross-complaint, then tract was performed by the defendant when it may be said that it was within the prov it furnished wiping rags answering the de-ince of the trial court to weigh that evidence, scription specified in the contract according and give it the force and effect to which it to the standards of the Antwerp market, but from this assumption it would not follow that the contracts would be performed by the furnishing of merchandise which was something other than wiping rags. All of the contracts provided for the purchase and sale of wiping rags, and such was the clear in-moneys paid for rags other than wiping rags, tention of the parties. Whether the rags shipped by Heymann & Co. were wiping rags according to the European standard or according to the California standard is not determinative. Whether they were wiping rags at all or what proportion thereof was rags other than wiping rags was the issue before the court and jury. This was especially true with reference to the first three causes of action set forth in the complaint. Therein the plaintiffs allege the payment of sums aggregating $39,623.09 in accordance with the contracts, and for which payment wiping rags were thereafter to be delivered; that the rags were delivered; but that a large proportion thereof did not constitute wiping rags but were shoddy rags. In these three causes of action the plaintiffs claimed reimbursement for rejections after the rags had been sorted in the total sum of $16,112.44, and there was evidence to support the claim. The defendant in its answer admitted that the payment of said $39,623.09 had

that it was the intention of the parties at the time of the execution of said contracts subsequent to the trial shipment that they would not be required to pay for any rags that were not wiping rags. It is urged that such intention is manifest by a practical construction placed upon the contracts covering the trial shipments whereby the plaintiffs were allowed a refund of $841.40, on account of rags in that shipment which were not wiping rags. This refund was made under date of April 30, 1921, after the last contracts had been executed. Accompanying the remittance was a letter in which the defendant stated to the plaintiffs:

"We beg to acknowledge receipt of your favor of the 28th inst., inclosing your invoice this shipment for wipers not coming to reamounting to $841.40, covering claim against quired quality, and we are enclosing our check in payment of same. As you are aware, you have only paid us 80% of the value of the wipers, amounting to $2,420.99, leaving a bal

(229 P.)

ance due us of $605.25 payable on delivery of, in the darks and heavy light cottons and linsey wipers after inspection, and you will therefore realize that the claim made by you is very heavy. As previously advised you, we are fortunate enough to have on hand $714.13 for account of the suppliers, and to enable us to reimburse you, we will have to pay the difference out of our own pocket and can only hope that we will eventually be reimbursed for this amount by the suppliers. We certainly do

On July 13, 1921, Juell telegraphed Hey- count, mann en route eastward as follows:

"It is very evident that Rosenberg intends making large rejections and frankly we feel that he is more or less justified. We on our part cannot undertake responsibility of adjusting this claim and must for our protection reject shipment. Have cabled your office to this effect and to withhold further shipment pending, settlement. Duval Moore suggests it is imperative for you to return here immediately and settle matter as it is assuming much more serious proportions than anticipated when talking with you. From further inspection on the dock this morning there is no question that the wipers are not properly trimmed and there is a considerable portion of the bales which contain rags not suitable for wipers, especially

graded which weighed 500 pounds, and contained 40 pounds of wiping rags. Rosenberg testified that at the close of that inspection Moore said to him:

"There is no question, Rosenberg, that you have a claim, and if we can get together on a reasonable claim, I will get in touch with Heymann and see what I can get Heymann to allow us, and I will make an allowance and try to get this thing cleared up quickly."

the trial court and in view of the evidence,
including the many declarations and admis-
sions of the defendant above referred to, it
cannot be said that the court abused its dis-
cretion in granting the motion.
The order is affirmed.

We concur: MYERS, C. J.; RICHARDS, J.; LAWLOR, J.; LENNON, J.; WASTE, J.; SEAWELL, J.

We therefore have in the evidence in support of the ruling of the court numerous contracts, all providing for the purchase and sale of wiping rags; a practical construction placed thereon by the parties that the plaintiffs would not be required to take without. reimbursement therefor the materials in the

several shipments which did not constitute wiping rags; the statements of Heymann, the European shipper of the merchandise, in the presence of both parties, with no contradiction thereof, that there was material therein which did not constitute wiping rags and which was, in effect, an admission that the rags shipped by him were at least in part not wiping rags under European standards; a cablegram from the defendant to Heymann advising the latter of the presence in portions of the shipment of as high as 90 per cent. of rags that could not be justified as wipers, and acknowledging the justice of the plaintiffs' claim on account of rejections; the exchange of letters between the parties amounting to a modification of said contracts in providing for a refund to plaintiffs on account of rejected rags, and the telegrams from defendant to Heymann further admitting the validity of plaintiffs'

claim.

As an indication of the views of the trial court on the question of the proper construction of the contracts the jury was instructed: "That it was the duty of the defendant to deliver to the plaintiffs rags answering the description named in the contract, to wit, wipers, i. e., rags suitable for wiping purposes"; also, "that it is generally the accepted rule of law that on a sale of personal property as being of a particular kind or description stated as a fact in the contract, there is an implied agreement that the article sold is of that kind or description, and the description is thereby warranted. * * You are instructed that under the terms of said contracts it was the duty of the defendant to deliver to plaintiff rags suitable to the purposes for which they were sold; i. e., rags such as described in the contracts must be suitable for wiping purposes."

[8] The defendant admits and declares that the jury was properly instructed. The weight to be given the evidence was in the first instance for the jury to determine. In the second instance it was to be considered and determined by the trial court on the motion for a new trial. In view of the admittedly proper instruction of the jury by

Homicide

(Cr. No. 2647.) PEOPLE v. YEAGER et al. (Supreme Court of California. Sept. 22, 1924.) 29-Which of two guilty participants fired shots immaterial. participants in murder and fled to avoid conWhich of two defendants, who were guilty sequences, fired shots is immaterial. Code, §§ 30, 31.

2.

Pen.

Homicide 111-Whether officer shot by one of defendants fired first shot held immaterial.

Whether traffic officer, shot by one of two automobilists charged with his murder, fired first shot held immaterial.

3. Homicide 249-Claim that defendant appealing from conviction of himself and codefendant fired fatal shot held supported by evidence.

In prosecution of two automobilists for murdering traffic officer, evidence held sufficient to support claim that appellant fired fatal shot. 4. Homicide 330 Jury rendering adverse verdict against defendant assumed to have rejected his exculpatory testimony.

In prosecution of two automobilists for murdering traffic officer, it must be assumed from adverse verdict against one that jury rejected his testimony as to his motive in passing weapon to codefendant, who fired fatal shot. 5. Homicide 281-Contradictions and inconsistencies in defendant's testimony held for jury.

Contradictions and inconsistencies in defendant's testimony as to codefendant having fired fatal shot held for jury.

6. Homicide 253(3)-Verdict of first degree murder held justified by evidence.

Evidence held sufficient to sustain verdict of first degree murder, as justifying conclusion of deliberate and premeditated taking of human life.

7. Homicide

2822,

329-Punishment of first degree murder within jury's discretion. Punishment for first degree murder is within sound discretion of jury, with whose decision neither court below nor Supreme Court may interfere; all disputed questions of fact being resolved on side of judgment. 8. Criminal law 511(2)-Evidence corroborating accomplice must tend at least slightly to implicate defendant.

Under Pen. Code, § 1111, evidence corroborating accomplice must tend, at least slightly,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes