appeal. Section 953a, Code Civ. Proc., provides that any person desiring to appeal "may in lieu of preparing and settling a bill of exceptions," pursuant to section 650, do certain things in preparing a transcript to be used on the appeal. After the judge has certified the transcript which has been made, it is provided that the same shall "be and become a portion of the judgment roll and may be considered on appeal in lieu of the bill of exceptions now provided for by law." The transcript so allowed and certified becomes a part of the judgment roll only in the same sense that a bill of exceptions was made a part thereof by section 670, Code Civ. Proc.; that is, to serve as part of the record on appeal under section 950. (Since the amendment of section 670 in 1907 bills of exception are no longer made a part of the judgment roll.) [itors of the seller, evidence held to sustain a finding that the sale was not accompanied by immediate delivery, and followed by actual and continuous possession by the buyer. [Ed. Note.-For other cases, see Fraudulent Conveyances, Dec. Dig. § 299.*] 2. FRAUDULENT CONVEYANCES (§ 299*)-SALE OF GOODS-CHANGE OF POSSESSION - EVIDENCE. there must be a change of possession of personal Under Civ. Code, § 3440, providing that property sold to be valid against creditors of the seller, the employment by the vendee of the vendor after the sale is some evidence that there has been no actual change of possession. [Ed. Note.-For other cases, see Fraudulent Conveyances, Dec. Dig. § 299.*] Appeal from Superior Court, San Bernardino County; Frank F. Oster, Judge. Action by Joseph Bucher against W. D. F. Allen. From a judgment for defendant, plaintiff appeals. Affirmed. C. C. Haskell, for appellant. Byron Waters, for respondent. ALLEN, P. J. Appeal by plaintiff upon bill of exceptions from judgment rendered against him and in favor of defendant. There is no express authority for the appellant being relieved from printing his transcript on appeal in any case except one in which the transcript has been settled and allowed by the trial court in accordance with section 953a. This is true whether it consists of a judgment roll only, or a record made up under the alternative method in lieu of a bill of exceptions; and, while the statute is open to the construction that the original of such a transcript-that is, the record prepared in accordance with sections 953a and 953b-may be sent up to the appellate court, it was clearly not intended to authorize the clerk of the trial court to send up his original files in the action, consisting of the pleadings, findings, judgment, and other papers made a part of the judgment roll by section 670. To do this would not only deprive the office of the papers and records which the law makes it the duty of the clerk of the superior court to preserve, but would render him unable to enter up the remittitur of this court sent down upon this proceeding. Section 958, Code Civ. Proc. If the papers on file in this court be the original records of the superior court, the clerk of that court is granted leave to withdraw the same, and within 20 days from the date of filing of this decision is directed to file with the clerk of this court a duly certified copy of such rec-actual and continuous possession, as required ords in lieu of the originals so withdrawn. Judgment affirmed. We concur: ALLEN, P. J.; SHAW, J. BUCHER v. ALLEN. (Civ. 653.) (Court of Appeal, Second District, California. Nov. 2, 1909.) 1. FRAUDULENT CONVEYANCES (§ 299*)-SALES -CHANGE OF POSSESSION-EVIDENCE. On an issue as to the validity of a sale of hotel fixtures and personal property, under Civ. Code, § 3440, requiring a change of possession of personal property sold to be valid against cred The case is this: On December 24, 1906, one Hicks and wife owned certain real property in the city of San Bernardino, Cal., upon which was a house used as a lodging house. Hicks and wife sold the real property and the furniture and fixtures of the lodging house to plaintiff, who paid the full consideration therefor. The lodging house had been operated before the sale by the wife of Hicks, who was indebted to parties in San Bernardino. These creditors instituted a suit against Mrs. Hicks, and, on December 27, 1906, levied an attachment upon the lodging house, furniture, and fixtures. This writ was executed by defendant, a constable, and the personal property on that date reduced to possession by him. In order to recover possession from defendant this action in claim and delivery was brought by plaintiff. The right of possession to the personal property hinges upon the validity of its sale as affecting creditors of Mrs. Hicks. The court finds that such sale was not accompanied by immediate delivery, and followed by by section 3440, Civ. Code. This finding appellant attacks as having no support in the evidence. An examination of the record discloses that plaintiff testified that he took possession of the personal property through one Von Boven as his agent on the 24th of December, while Mrs. Hicks testified: "I offered the keys on the 24th to Mr. Bucher, and he asked me to look after the house for him in his interest until I went out on the 29th; and on the 26th I was called to Los Angeles on business, and I handed the keys to Charles Von Boven in the presence of Mr. Waldon, and told him to take care of these all allegations in the complaint as to shrinkage Dig. § 384.*] 4. WITNESSES (§ 269*)-CROSS-EXAMINATION- rooms and take care of the house for Mr. | fruit, though having an option on more, and Bucher. * * * I delivered the keys to Mr. Von Boven for the reason that Mr. Bucher told me that Von Boven was in his employ, and that I should deliver the keys to him if I went away from the house." Von Boven testified that when he was handed the keys by Mrs. Hicks she said to him, "I may be back to-morrow." The evidence as to the change of possession was conflicting. It was a question of fact for the trial court to determine. We cannot say that there is We cannot say that there is no evidence in support of the finding of the court. Our Supreme Court in Goldstein v. Nunan, 66 Cal. 544, 6 Pac. 451, has said that the employment by the vendee of one of the vendors after the sale tended to prove that there had been no actual change of possession. There was, then, evidence introduced which tended to show that the vendor A witness having merely testified that he purchased fruit of plaintiff at a certain price, and that this was the highest price attainable at the time and place, and not having been asked on direct examination as to any subsequent transaction concerning it, refusal to allow him to be asked on cross-examination as to when, where, and for how much he resold the fruit was not error, no statement as to what was expected to be shown by the question having been made. [Ed. Note. For other cases, see Witnesses, Dec. Dig. 269.*] continued in possession, and the require 5. APPEAL AND ERROR (§ 1057*)-HARMLESS ments of the section of the Code above referred to were unsatisfied. Without reference to other testimony, which was to the effect that Von Boven disclaimed any agency on behalf of plaintiff, and insisted that he was acting, while in charge of the property, for Mrs. Hicks, we think it cannot be said that the conclusion of the trial court is manifestly without sufficient support in the evidence. The judgment being thus supported by sufficient findings, we are relieved from the necessity of considering other questions presented in the record which relate to the construction which should be given to that portion of section 3440 requiring public recorda tion of intended sales in certain instances. Judgment affirmed. We concur: SHAW, J.; TAGGART, J. FRISBIE v. ROSENBERG BROS. & CO. (Civ. 631.) (Court of Appeal, Third District, California. Nov. 1, 1909.) 1. SALES (§ 181*)-COMPLIANCE WITH CONTRACT EVIDENCE. Evidence in an action for refusal of defendant to comply with his contract of purchase of plaintiff's crop of pears to be cured by plaintiff held sufficient to sustain findings that plaintiff tendered the entire crop purchased, and that the pears were properly cured. [Ed. Note. For other cases, see Sales, Dec. Dig. 181.**] 2. SALES (§ 332*)—REFUSAL OF PURCHASER TO ACCEPT-RESALE. A seller complies with his duty, under Civ. Code, § 3353, as to estimating damages, where, 13 days after the buyer refuses to accept, he sells the articles to another at the place of delivery at the highest price attainable. [Ed. Note. For other cases, see Sales, Cent. Dig. 915; Dec. Dig. § 332.*] ERROR-EXCLUSION OF EVIDENCE. Any error in exclusion of evidence to show that the price obtained was the market price, or to discredit the witness who testified it was the market price, was harmless; it being admitted such price was obtained. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4197, 4198; Dec. Dig. § 1057.*] Appeal from Superior Court, Shasta County; Charles M. Head, Judge. Action by S. H. Frisbie against Rosenberg Bros. & Co. Judgment for plaintiff, and defendant appeals. Modified and affirmed. A. H. Hewitt and W. D. Tillotson, for appellant. T. W. H. Shanahan, for respond ent. BURNETT, J. The action is for damages for defendant's refusal to comply with its agreement to pay for certain dried fruit sold to it by plaintiff. On September 4, 1906, the parties entered into a written contract providing that "Rosenberg Bros. & Co. have this day bought of S. H. Frisbie and said seller has this day sold to said buyer the entire crop of pears estimated at fifteen tons now growing and grown on the orchard situate-Anderson-of which orchard is the owner and of which said crop seller declares that he is owner and represents that he is duly authorized to sell the whole thereof. Prices and seller's estimate of quantity as follows, to wit: About 15 tons pears a 8c per lb. It is expressly understood and agreed that buyer is not obliged to accept fruit in excess of amount approximated above by more than ten per cent., but may do so at his own option. Seller hereby agrees to cure said entire crop properly and to have said entire crop ready for delivery and to deliver the same at Anderson. * * Seller hereby guarantees that all of the fruit hereinabove specified shall be choice, well cured, original condition, and free from damage. * Buyer hereby 3. SALES (§ 384*)-BREACH OF CONTRACT BY BUYER-DAMAGES-PLEADING AND PROOF. Defendant, under his contract of purchase. being required to accept only 161⁄2 tons of dried agrees to pay for said fruit upon completion | The character of their testimony may be ilof delivery." Plaintiff claims to have performed all of the conditions required of him by said contract, and on October 10th to have notified defendant that he was ready and desired forthwith to deliver 33,000 pounds of cured pears under said contract. Defendant refused to accept any part of them, and plaintiff held them subject to defendant's order till October 25th. It is alleged "that at said time the said dried pears were losing weight through shrinkage, and additional costs of insurance and keeping the same were necessarily being incurred." It is further alleged that plaintiff sold them on October 25th for 6 cents per pound, the highest market price obtainable, and that he was damaged by defendant's refusal to carry out its contract in the sum of $925. Plaintiff recovered judgment in the sum of $921. In support of its appeal from the judgment and order denying its motion for a new trial, appellant mainly relies upon two grounds: "First, plaintiff did not cure and deliver or offer to deliver his entire crop of pears; and, second, the pears that he did offer to deliver were not properly cured." We are not required, probably, to do more than to say that the findings of the court as to these material matters are amply supported by the evidence, but as appellant appears to be serious in these contentions, and that our declaration may be shown not to be arbitrary, some of the testimony upon each of these points is presented. 1. The plaintiff testified: "Mr. Luyster went with me that day and examined all of those pears before we signed the contract. *On the trees in the orchard and the orchard which I had leased there was a little over a hundred tons I am sure, all of which I was the sole owner of. The 110 tons of pears on the trees, in the boxes and windrows and on the ground were the pears I had in mind and intended to convey under the contract. They were all the pears I owned on that day. I didn't sell a pear of this lot green. I dried every one of them. The amount I secured from that lot-eighteen and one-half tons were what they turned out to be. When the pears were dried I took them to the Earl Fruit Company's packing shed. That is the lot of pears I notified Rosenberg Bros. & Company that I was ready to deliver and make a tender of; and is the same lot I afterwards sold to the Sanitary Fruit Company." He is corroborated by Mr. Luyster, who testified that when he entered into the contract he had in mind the entire crop of pears of Mr. Frisbie. The evidence, indeed, shows without any conflict that the entire crop purchased was tendered by plaintiff. 2. While there is evidence to the contrary on the part of appellant, yet six witnesses testified for respondent that the pears were lustrated by the following statement of Earl Downing, an experienced fruit man: "The seventeen tons of cured fruit, the S. H. Frisbie fruit, in the Earl warehouse, which were inspected between the 12th and 15th days of October, 1906, I would call properly cured, well cured, choice, in original condition, free from damage, dried pears or cured pears." There are a few additional considerations inviting brief attention. As to the contention of appellant that there is no allegation of shrinkage, the portion of the complaint heretofore set out is a sufficient answer, if indeed such an allegation were necessary. Appellant must have forgotten that in its amended answer this language is used: "And it denies that said dried pears were losing weight through shrinkage, or that they did lose weight by shrinkage." As appellant, on October 12th, refused to accept the pears, it was the duty of respondent to dispose of them in accordance with section 3353 of the Civil Code, providing that, "In estimating damages, the value of property to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale." They were sold at Anderson, the place where they were to be delivered, 13 days after appellant rejected them, and there is testimony of witnesses that they were sold for the highest price obtainable therefor. Respondent seems thus to have done all that the statute requires as to the disposition of the property. Appellant complains because the court charged defendant with shrinkage on 36,264 pounds, whereas, under the contract, there was no obligation to accept more than 33,000 pounds. Respondent's answer to this contention is that he "resold the fruit all of which appellant had an option on for the best obtainable price at the nearest market. Appellant would not exercise its option by taking the entire crop nor would it examine or take the part or any portion of the part it was obligated to take, 33,000 pounds, when the same was ready for delivery. If appellant had accepted the 33,000 pounds on October 12, 1906, and no more, there would have been no shrinkage for which appellant would have been liable, and respondent would have been free of the option on the 'entire crop' and free to dispose of the balance. As it was, respondent was held by appellant for the ‘entire crop,' none of which it would accept." Respondent's argument seems plausible, but there is no allegation in the complaint as to this element of damage-the allegation of shrinkage being confined to the 33,000 pounds. Hence the finding as to the excess of 3,264 pounds is out would hardly justify the conclusion that more than 161⁄2 tons of the fruit was of good quality. No allowance could properly be made for the shrinkage of this excess, which the evidence does not satisfactorily show was of any value. The result is that the judgment should be reduced by the small amount of $23.50. This appears from the finding itself. It is only a matter of simple calculation, and the error does not require a new trial. The only other point suggested by appellant is that the court erred in sustaining an objection to questions asked on cross-examination of Mr. Stice as to when and where he sold the fruit and what price he received. He purchased the fruit from plaintiff, and had testified that 6 cents per pound was the highest price obtainable at Anderson at that time. If he obtained a higher price at a different place and at a different time it would have no tendency to discredit his testimony as to the price at Anderson. It does appear that he shipped the fruit, but to what point is not disclosed. Since the witness had not been asked in the direct examination as to any subsequent transaction concerning the fruit, appellant, in the absence of any statement as to what was expected to be shown by the questions, cannot complain of the ruling of the court. Indeed, if error was thereby committed by the court, it was absolutely without prejudice, in view of the admission of appellant in its brief that "defendant does not contend that the price for which the pears were so sold was not the full market value of the same." If Stice paid the full market value of the pears it is, of course, entirely immaterial where he sold them or what price he received. prove fraud, according to its effect as influenced by other facts, and whether the fact was important as showing fraud must depend largely on the other circumstances characterizing the transaction. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 235; Dec. Dig. § 91.*] 3. CONTRACTS (8 76*)-CONSIDERATION-DEBT BARRED BY LIMITATIONS-MORAL OBLIGATION. A debt barred by limitations does not release the debtor of the moral duty of paying it, the statutory bar affecting the remedy only; and hence such a debt may constitute a valuable consideration for a contract. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 362; Dec. Dig. § 76.*] 4. NEW TRIAL (8 64*) — INSUFFICIENCY OF FINDINGS-EFFECT. -- A new trial on the ground of the failure of the court to find on a material issue may be denied, where on the evidence the finding must have been adverse to the moving party. Cent. Dig. § 129; Dec. Dig. § 64.*] [Ed. Note.-For other cases, see New Trial, Appeal from Superior Court, Mariposa County; J. J. Trabucco, Judge. Action by Reuben Hoover against Joseph Wasson and another. From a judgment for defendant John L. Wasson, who appeared and answered, plaintiff appeals. Affirmed. John A. Wall, for appellant. J. W. P. Laird and Rowan Irwin, for respondent. HART, J. This is a suit to quiet title to certain timber land situate in Mariposa county to which plaintiff claims title under and by virtue of a sheriff's deed; said land having been sold by that officer to plaintiff at a pretended sale under an execution issued upon a judgment for the sum of $1,676.88, rendered and entered by the superior court of Tulare county in favor of said plaintiff' and against the defendant, Joseph Wasson. The defendant John L. Wasson answered the complaint herein, specifically denying the material averments thereof, and particularly that Joseph L. Wasson was, at the time We concur: CHIPMAN, P. J.; HART, J. of the levy of said execution and the sale Twenty-three dollars and fifty cents should be subtracted from the amount of the judgment, leaving a balance of $897.62, and, as thus modified, the judgment and the order denying the motion for a new trial are af firmed. HOOVER v. WASSON et al. (Civ. 613.) 1. FRAUDULENT CONVEYANCES (§ 298*) Conveyances, Cent. Dig. §§ 892-895; Dec. Dig. BY LIMITATIONS-EFFECT. thereunder, the owner of the land as to which title is sought to be quieted, and alleging title to and ownership of said land in himself. Joseph Wasson made no reply to the complaint and, as to him judgment by default was entered. The court below awarded judgment to John L. Wasson that he is the owner of the land described in the complaint, and that the plaintiff "has no right, title, or interest in or to said land," from the judgment and the order denying etc. The appeal here is by the plaintiff his motion for a new trial. The appellant contends that the evidence does not support certain findings of fact, The fact that the consideration for a con- and upon this contention insists that the veyance alleged to be fraudulent as against creditors was a note barred by limitations was judgment and order should be reversed. It only a circumstance which might or might not appears from the evidence that on the 15th *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes action thereon was barred by the statute of limitations. It further appears that in the year 1904 Joseph Wasson sold the orange crop gathered from the land which constituted the subject of the contract between himself and plaintiff for the sum of $1,000. In the month of December of that year plaintiff went to the "orange ranch" and made a demand on Joseph for the money then due under their contract. After some discussion of the matter, in the course of which Wasson declared that he desired to make some improvements on the land, the plaintiff was accompanied by Wasson to the Porterville Bank, where plaintiff was paid by Wasson on account of their contract the sum of $150. The bulk of the money remaining of the $1,000 received for the orange crop was used by Joseph, with the consent of plaintiff, in constructing flumes on and otherwise improving the land for orange growing purposes. The plaintiff testified: "A short time after the improvements were completed, I then sued him (Joseph) for the moneys that became due on the 1st day of January, 1905. I afterwards received possession of all the orange land with the improvements thereon and have since sold the same." Plaintiff admitted that the first time he ever talked with the respondent John L. Wasson about the land in controversy was during the harvest time of the year 1905-more than a year after the deed had been made by Joseph Wasson to John L. Wasson, conveying to the last named said land. day of January, 1902, a written agreement | the time of the execution of said deed by was executed by the plaintiff and the de- Joseph, the note which was the considerafendant Joseph Wasson, whereby the first-tion moving Joseph to so convey said propnamed agreed to sell, and said Wasson erty was "outlawed," or, in other words, agreed to purchase, for the sum of $8,000 a certain tract of land situated in the county of Tulare. The agreement stipulated that Wasson was to pay the principal sum in installments as follows: Fifteen hundred dollars on the day on which the agreement was executed; $500 on or before the 1st day of January, 1905, and $1,000 on each succeeding 1st day of January until the principal, together with interest on the deferred payments, at the rate of 7 per cent. per annum, was fully paid. The title to the land was to remain in plaintiff until the principal and all interest accruing thereon was paid. The land described in the agreement was devoted by Wasson to orange growing, to which, it is admitted, it is peculiarly adapted. Joseph Wasson was, at the time of the making of said contract, the owner of the land involved in this litigation. On the 30th day of April, 1904, Joseph Wasson conveyed, by deed, said land to his brother, the respondent herein, and said deed was recorded in the office of the county recorder of Mariposa county on the 2d day of May, 1904. The plaintiff, in the year 1905, instituted an action against the defendant Joseph Wasson for the purpose of recovering the sum of $500, the first installment of principal due on the contract between himself and said Joseph for the sale and purchase of the orange land, together with unpaid interest. In this action plaintiff obtained a judgment, on the 12th day of June, 1905, for the sum of $1,676.88. As before stated, execution was issued on said judgment, and the same sought to be levied on the land in dispute here, which, as seen, had been conveyed in the year 1904 by Joseph Wasson to his brother, the respondent. The land was, as seen, sold under said execution and purchased at said sale by the plaintiff himself. The good faith of the transaction between the Wassons by which the respondent became the owner of the land in controversy is challenged by the complaint. It is therein alleged that the conveyance of the land by Joseph to his brother, the respondent, resulted from a transaction conceived in fraud and was executed by said Joseph "with a view to conceal his said property from plaintiff and to hinder, delay, and defraud plaintiff in his collection of his said demand now included in the judgment heretofore described"; but we observe no reason for doubting that the evidence sufficiently supports the finding of the trial court against that claim. In the first place, it may be noted, the conveyance of the land concerned here was executed in the year 1904, approximately a year before there was anything due the plaintiff from Joseph Wasson under the The respondent explained the transaction by which his brother conveyed to him the land in controversy as follows: "When he let go of the ranch down there, which I sold him, the man who bought the place assumed the mortgage on the ranch and gave this timber land in payment. After I came back from Los Angeles a few years later, Joe told me that when he sold the timber land he would pay me the balance due. We talked over either buying the ranch and his selling to get my money out of it, at different times. In the fall of 1903 I was talking about buying the timber land from him, and so Joe and I and my boy drove from where we lived in Delano up into Mariposa county, distance of '200 miles or so, to look at the timber land. After we looked the timber land over, I at that time told him I would take the timber land for what he owed me, and he said that he would deed it to me when he got back. It was agreed between us then that he was to go before some attorney or notary when he got back and make out a deed to me. That was in the fall of 1903, and ran along then until April 30, 1904, when Joe had this deed made out and had |