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60 to 90 feet from the crossing, when he suddenly turned his horses upon the track, with the result that a collision occurred in which said Peter Bohn was killed. His administrator sues for damages. At the close of plaintiff's evidence, defendant moved for a nonsuit, which was denied. Defendant then introduced its evidence and renewed its motion for a nonsuit, which motion the court granted, and judgment was entered for defendant. Plaintiff's motion for a new trial was denied, and he appeals from that order.

"If,

The error assigned is the order granting the motion for nonsuit. It is not claimed that the deceased was not guilty of gross negligence, as he clearly was, but it is contended that the motorneer in charge of said car saw the deceased upon the track in time to have stopped the car, and by the exercise of ordinary care he could have stopped the car after he saw the danger to which said deceased was exposed by reason of his position. Appellant contends that the action of the court in granting the motion was in violation of section 2101, Code Civ. Proc., and section 7, art. 1, of the Constitution of this state, which provides: "The right of trial by jury shall be secured to all, and remain inviolate." Like constitutional provisions are contained in the organic law of every state in the Union; yet, notwithstanding this fact, the courts of last resort recognize the right of the trial judge in proper cases to direct a verdict in favor of the plaintiff, or to grant a nonsuit. The practice has from the earliest date in the history of this state received judicial sanction. In Ringgold v. Haven, 1 Cal. 115, the court says: therefore, upon a given state of facts, a court would be obliged to set aside a verdict of the jury as against the evidence, we see no reason or propriety in submitting such facts to them for their consideration. When their determination will be a nullity, why compel them to deliberate? Such a course is neither creditable to the law, nor complimentary to the jury." This language was cited with approval in Mateer v. Brown, 1 Cal. 221, 52 Am. Dec. 303; and again in Geary v. Simmons, 39 Cal. 224, the court says: "A court is justified in granting defendant's motion for nonsuit, after the evidence on both sides has been heard, in a case where, if the motion had been denied and a verdict found for plaintiff, it would have been set aside as not supported by, but contrary to, the evidence." In Fox v. Southern l'acific Co., 95 Cal. 234, 30 Pac. 384, a second motion for nonsuit was made and granted after all the evidence was in. In reviewing this ruling the court says: "Practically, therefore, the real question in the case at bar is whether or not the court abused its discretion in holding that the evidence was insufficient to support the verdict; and it is clear to us, from an examination of the evidence, that this question must be answered in the negative." To the same effect is Vanderford v. Foster, 65 Cal. 49,

2 Pac. 736, and Fagundes v. R. R. Co., 79 Cal. 97, 21 Pac. 437, 3 L. R. A. 824. In Estate of Morey, 147 Cal. 495, 82 Pac. 57, the court in discussing a similar question says: "With regard to the granting of a motion for nonsuit made at the close of the evidence for plaintiff and defendant, the rule seems to be well established that the trial court has discretion, and that it is not error to grant the motion where, upon all the evidence, it is clear that if a jury should bring in a verdict against the defendant it would be the duty of the court to set it aside and order a new trial." To the same effect is Estate of Dole, 147 Cal. 188, 81 Pac. 534.

Nor is the practice confined to this state. Quoting from Cooper v. Waldron, 50 Me. 81: "When in any case it is clear that upon the evidence verdict for the plaintiff cannot stand, that in the end judgment must be rendered for the defendant, what good reason can be assigned for submitting the case to the jury? If their verdict is right, nothing is gained; and, if it should happen to be wrong, it must be set aside. To withhold a case from the jury is no greater interference than to set aside their verdict. To set aside their verdict impliedly impeaches either their intelligence or their integrity, and tends to lessen public confidence in the usefulness of the institution. * * * If the presiding judge is of the opinion that the facts admitted or clearly established are not sufficient to prove a want of probable cause, he must either nonsuit the plaintiff or direct the jury to find a verdict for the defendant. The better course is for the judge to nonsuit the plaintiff, for it is idle to submit to the jury a question that can be answered in only one way." And in Reed v. Inhabitants, 8 Allen, 522, the court held: "Where the whole evidence introduced by the plaintiff, if believed by the jury, is so insufficient to sup port a verdict that the court would not permit one to stand, it is the duty of the court to instruct the jury, as a matter of law, that there is not sufficient evidence to warrant a verdict for plaintiff." "Judges are no longer required to submit a case to the jury merely because some evidence has been introduce:1 by the party having the burden of proof, unless the evidence be of such a character as that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence." Byrd v. So. Express Co., 51 S. E. 851, 139 N. C. 273. "There is in every case a preliminary question, which is one of law, namely, whether there is any evidence upon which the jury could properly find the verdict for the party on whom the onus of proof lies. If there is not, the judge ought to withdraw the question from the jury and direct a nonsuit, if the onus is on the plaintiff, or direct a verdict for the plaintiff, if the onus is on the defendant." The above is the English rule as expressed by Mr. Justice Willes in Rider v. Wombell, L. R., 4 Ex. 38, and the same

rule obtains in practically all of the states of the Union.

Measured by this rule, the question before us is one solely of an abuse of discretion by the trial court; and upon the evidence as disclosed by the record we are firmly convinced there was no abuse of discretion on the part of the court in making the order of which appellant complains. The evidence in support of the allegation that the motorman operating the car could, by the exercise of ordinary care, have stopped the car after he had become aware of the dangerous position occupied by deceased, is not only meager but of a character entitling it to little, if any, weight. Had the case been submitted to the jury and a verdict for plaintiff followed, it is clear that it would have been the duty of the court to have set the same aside and ordered a new trial. Under such conditions, no good purpose could be subserved by submitting the case to the jury. The same object is accomplished by a shorter legal route in ordering a nonsuit. As said in Estate of Morey, supra, the practice is only justified in very clear cases, and where there is even an approach to a substantial conflict in the evidence the issue should be left with the jury. The right of the court to set aside a verdict which is unwarranted by the evidence is beyond question. We are unable to perceive any constitutional distinction between the exercise of such right and the right to order a nonsuit in a proper case at the close of the evidence.

There was no abuse of discretion in granting the motion for nonsuit, and the order denying a new trial is affirmed.

We concur: ALLEN, P. J.; TAGGART, J.

(5 Cal. A. 603) CARSTENBROOK et al. v. WEDDERIEN et al. (Civ. 293.) (Court of Appeal, Third District, California. May 27, 1907.)

1. LANDLORD AND TENANT-RENT-ACTIONSTIME TO SUE.

Under the terms of a farm lease, the lessors were to receive one-third of all crops grown and harvested by the lessees. The lessees, in addition to a sum paid upon the execution of the lease, were to advance on demand $54 per month during the period of the lease, which was to be repaid by the lessors at the time of harvest; the lessees having a lien upon the lessors' share of the crops for the amount. Before the last monthly advancement was due, a flood rendered the raising of a crop impossible. Held, that the lessees were not required to wait until demand and payment of the last monthly amount before bringing an action against the lessors for the advancements.

2. TRIAL-FINDINGS-RESPONSIVENESS TO IS

SUE.

In an action by lessees to recover from their lessors advancements of rent, an issue tendered by the lessors' counterclaim was that the lessees used the premises for pasturage purposes solely, and that the reasonable value of the pasturage was $1,000. Held, that a finding that the lessees were entitled to all the pasturage

during the term of the lease, and that the lessors take nothing by reason of their counterclaim, was sufficient to cover the issue. 3. LANDLORD AND TENANT-ENJOYMENT OF PREMISES-PASTURAGE RIGHTS.

Where there was no provision in a lease for years reserving to the lessors the right to the pasturage, the lessees were entitled to it, under Civ. Code, § 819, providing that a tenant for years, unless he is a wrongdoer or holding over, may take the annual products of the soil.

Appeal from Superior Court, Yuba County; E. P. McDaniel, Judge.

Action by H. J. Carstenbrook and another against W. A. Wedderien and another. From a judgment for plaintiffs and an order denying a new trial, defendants appeal. Affirmed.

W. H. Carlin and Waldo A. Johnson, for appellants. M. F. Brittan and J. E. Evert, for respondents.

HART, J. This action is brought by plaintiffs to recover the sum of $591, together with interest thereon at the rate of 8 per cent. per annum, alleged to have been loaned and advanced to defendants under and by virtue of the terms of a certain written agreement of lease entered into between the parties, involving the leasing of certain lands to plaintiffs by defendants. A jury was waived by the parties, and the case tried by the court. Plaintiffs were awarded judgment for the sum of $659.86, which includes the principal sum sued for and interest in the sum of $68.86. Defendants take this appeal from said judgment and an order denying their motion for a new trial.

By the terms of the said written agreement or lease, which was executed by the parties on the 21st day of January, 1904, the defendants leased to the plaintiffs certain real property, situated in Yuba county; said lease to take effect on and from the said date of its execution and to continue in force until and including the 28th day of September, 1904. It was provided in the lease that the plaintiffs should have the option, upon the expiration of the term thus expressly agreed upon, of extending the term of their lease of said lands for a further period of four years. The lease is made a part of the complaint and is set out in hæc verba in the findings, and so much thereof as may be necessary to an understanding of the issues presented by the pleadings reads as follows:

"Upon the following terms and conditions, to wit: Said second parties will at all proper times and seasons during the term of this lease, and according to the terms of good husbandry practiced in the neighborhood, crop said lands and premises to grain and hay and such other crops as they shall in their sound discretion deem advisable; that they will carefully plant, care for, protect and harvest all of said crops without any expense to said first parties except for sacks as hereinafter mentioned, and will deliver to said first parties, or their order, within a reasonable time after said crops shall have been gathered and

harvested, subject to the lien for advancements made hereunder and to be made hereunder by said second parties to said first parties as hereinafter mentioned, at such place as said first parties shall designate in the city of Marysville, one-third of all of said crops of grain, said first parties to furnish at their own expense sufficient sacks to contain their rental or share of one-third of all crops of grain grown and harvested upon said lands under the terms of this lease; and said second parties will further deliver to said first parties properly stacked on said premises one-third of all hay grown and cut upon said premises under the terms of this lease.

"Said second parties hereby covenant and agree to pay to said first parties, at the date of the execution of this lease, the sum of two hundred and thirteen dollars ($213.00), and upon the request and demand of said first parties the further sum of fifty-four dollars ($54.00) on the first day of each and every month commencing with the first day of February, 1904, during the period of this lease. that is, up to and including the 28th day of September, 1904, and the further sum of fifty-four dollars ($54.00), on the like request and demand of said first parties, on the first day of each and first day of September, 1908, if said period or every month thereafter up to and including the term of said lease be continued and extended to September, 1908, as hereinabove provided. Said sum of $213.00 and said sum of $54.00 to be paid monthly as herein specified, shall be deducted with interest as herein specified, by said second parties, when paid, from the one-third share of said first parties in the crops raised under the terms of this lease and shall bear interest from the date of their several payments at the rate of eight (8) per cent. per annum, and said sum with interest as aforesaid shall be and constitute a lien on said one-third portion of said crops reserved herein as and for rental for said first parties, in favor of said second parties, until the same together with interest as aforesaid be repaid by said first parties to said second parties, and should the total of said advancements, together with interest as aforesaid, in any season, exceed said lessors' (said first parties) share in the entire crops for said season, then in such event said first parties shall pay to said second parties the excess thereof received by them from said second parties.

"It is further agreed by and between the parties hereto that said advancements made and to be made hereunder by said second parties to said first parties, together with interest as aforesaid, shall be repaid by said first parties to said second parties at the harvest of said crops. in gold coin of the United States of America."

The complaint is verified. The answer admits that the plaintiffs paid to the defendants the sum of $591, but specifically denies all the other material averments of the complaint, and sets up a counterclaim upon a

quantum valebat, for the sum of $1,000, alleged as the reasonable value of the use of the leased lands for the purposes of pasturage, to which use, it is alleged, it was converted by plaintiffs; said pasturage being, it is claimed, the sole and exclusive property of defendants. It is insisted that the judgment should be reversed for two reasons: "(1) Because the demands sued upon were not due when the action was commenced; (2) because the findings do not cover all the material issues raised by the pleadings."

The action was commenced on the 8th day of August, 1904. A demurrer was sustained to the original complaint, and thereafter and on the 6th day of February, 1905, plaintiff filed an amended complaint, which (a demurrer thereto having been overruled) tendered the issues of fact upon which the cause was tried. The court found from the evidence "that pursuant to the terms of said agreement said plaintiffs did, at the proper time in the year 1904, and in accordance with the terms of good husbandry as practiced in the neighborhood in which said lands are situated, carefully crop and plant said lands and premises to grain and hay, and did carefully care for and protect said crops during the said year 1904, and that thereafter and during the said year of 1904, and before the time for harvesting the said crops, the whole of said crops were totally destroyed by an act of God and without any fault or neglect of said plaintiffs, or either of them, and as a result thereof there were no crops or any crop to harvest upon said lands and premises described in said agreement during said year of 1904." The court was fully warranted in making this finding from the evidence received. The plaintiffs testified that, having entered into the possession of the lands referred to in the lease between the 10th and 15th of February, 1904, at once proceeded to plow the arable or tillable portions thereof, preparatory to seeding and cultivating the same in obedience to the covenants and conditions of the lease. The property, or the "ranch," as in common vernacular it is designated, embraces some 393 acres of land, of which 205 acres are "farming" lands, or lands adapted to and suitable for the cultivation of cereals. Approximately 140 acres of the land were plowed; the balance being too wet to undergo that process to any practical purpose. A short time thereafter heavy rains came, the water in the Feather river, on which the lands are situated, rose to such an extent as to overflow its banks, and the flood waters inundated a large part of the land; the same remaining thereon so that the land could not be utilized for farming purposes for a long period of time. The plaintiff H. J. Carstenbrook testified: "Some time in May I sent my teams there again and summer-fallowed 85 acres, on the north side of the road, and also a piece on the south side that had been winter plowed. All told, I replowed about 115 acres during that year

after I had entered into the lease. I made two plowings that year on the place. After the first plowing. I did not sow the piece on the south side of the house, next to the levee, because I could not get on it, because of the water on it. The other part I had just seeded to barley, when the water came up on it. This was about 70 acres. There were about 85 acres in the whole piece, but I did not seed 10 or 15 acres of it, because it was too wet. About 85 acres I plowed the second time. The portion of the land north of the house, about 85 acres, I seeded to barley twice, and the water came up and drowned out both times. The water came up the second time about the 28th of March and remained over it fully three weeks, and probably longer, and the ranch was not at any time afterward in such condition that it could have been cropped." This witness also testified to having had 22 years' experience in the business of farming in Sutter and Yuba counties. He stated that after the water had finally subsided and receded from the land there was nothing left "but a water hole," and that it was not possible under the conditions then existing to cultivate a crop of any character; that there was no volunteer crop in that year upon the 115 acres which were replowed and summer-fallowed; that the vegetation on the land after the floods was not such as could be made into good hay; and that therefore he turned about 288 head of sheep and 8 or 9 head of other live stock upon the land, and thus, from the latter part of June or the first of July to a short time before the 28th of September, used said land "off and on" for pasturage purposes. He testified that he and his coplaintiff had under lease at the time an adjoining farm, on which they also pastured their sheep and other cattle, alternately running them on the land leased from defendants and then on the adjoining land mentioned. The other plaintiff, J. D. Carstenbrook, corroborated the testimony thus given by his partner and coplaintiff as to the unfavorable conditions with which they were confronted in an effort to cultivate the land in accordance with the terms of the lease and their failure to do so for the reasons stated by the first-named witness, and also upon the point that the grass or vegetation on the land after the flood waters had receded, and it was too late to do anything in the way of seeding the land in wheat and barley or either, was unfit to be profitably mown for hay. Some five or six other witnesses-farmers residing and who had for many years lived and farmed in the neighborhood of the land in question-gave testimony corroborative of that given by plaintiffs. All of them testified that plaintiffs, by the exercise of the most prudent husbandry, did their utmost to cultivate and grow suitable crops upon the land, but fail ed because of the intervention of unfavorable climatic conditions; that, under the circumstances, it was impossible to crop the land;

that there grew upon the land after the wate ter from the overflow of the river had disappeared "dog-fennel" and other weeds unfit even for the purposes of pasturage; that, while there was a small quantity of grass growing on the land upon which sheep and other cattle could thrive for a very limited time, it was measurably insignificant, and in consequence, for purposes of hay, not worth its cutting. In fact, the testimony of these witnesses was uniform upon the point that a crop of hay could not have been cut from the land after the recession of the waters of the overflow. From the conditions existing and as thus briefly described, it was manifestly impossible to have cultivated and advanced to a state of fruition any kind of a crop upon the land, and therefore it irresistibly followed that the terms upon which the plaintiffs took possession thereof under the lease could not be by them met and carried out. These conditions, as the court found, and as the evidence conclusively demonstrates, were not brought about through the fault or the negligence or default of the plaintiffs, but were the consequences of the course of nature and resulting circumstances, to repel, overcome, or control which is, of course, beyond the power of any known human agencies, except, perhaps, through efficient levee fortifications, constructed to guard against over. flows of the flood waters. Under the stipu lations of the lease, as will be observed, the defendants, in consideration of transferring the possession and use of their land to plaintiffs, were to receive one-third of any and all crops grown and harvested by said plaintifs, "subject to the lien for advancements made hereunder and to be made hereunder" by said plaintiffs. The latter, under the terms of the lease, advanced to defendants, upon the execution of the instrument, the sum of $213, and were to thereafter further advance to them on the first day of each month the sum of $54 "commencing with the first day of February, 1904, during the period of this lease, that is, up to and including the 28th day of September, 1904"; said advances to be made "upon the request and demand" of said defendants.

The contention is that the action was prematurely brought because the plaintiffs defaulted in making the last advance of $54; that is, the advance which they would have been required to make upon demand of defendants if the land had been successfully farmed. In other words, the sum of $54 not having been advanced or loaned to appellants for the month of September, no right of action accrued to respondents for the total amount already so received by defendants. The contention is, in our opinion, wholly without any reason for its support. Upon the question of the time of repayment, the agreement is in no sense obscure. It provides that said "advancements made and to be made hereunder by said second parties, together with interest as aforesaid, shall be

repaid by said first partles to said second parties at the harvest of said crops, in gold coin," etc. It certainly would not be attempted to be maintained that this clause of the lease means that the money should not be returned until crops had been actually harvested, and it is not so contended. The proper and the only true construction of it is that the money should be repaid at that time of the season when crops, if there were any, should be harvested, or at any other time, we think, when it could become a certainty or settled fact that it was impossible, from the inordinate quantity of water from the river overflows covering the land, to grow crops thereon. The evidence shows that it was plainly apparent to the parties to the lease, at and before the time at which crops should have been harvested upon the land had they been seeded and grown, that there was no possibility of securing crops from the land, and, in consequence, no possibility of the receipt by the defendants of the compensation to which they would have been entitled had the season been more propitious. The conditions upon which the land was leased necessarily involved returns to both parties from their investment, as it may properly be styled, as indeterminate, uncertain, and problematical as must be usual to enterprises which, like this, are required to depend, as among the prime factors essential to their prosperousness and final success, upon favorable meteorological and other conditions. Each of the parties, in other words-the defendants as well as the plaintiffs-by their written covenants manifested, mutually, a willingness to take a chance of reaping the benefits which ordinarily attend such a venture, and of suffering together the disadvantages and losses which the interference of adventitious circumstances too often bring to it. The termination of the lease was fixed for the latter part of September in order, without doubt, that the entire harvesting season would thus be included in and covered by the lease, thereby giving plaintiffs full opportunity to properly gather whatever crops they might deem it the part of wisdom to grow. There is nothing in the language of the lease, reasonably construed, which bound plaintiffs to advance the $54 a month after it became certain that there could be no possible hope or expectation of harvesting a crop of any character from the land. The moneys received by defendants from plaintiffs were, it is admitted, mere loans, to secure repayment of which it was agreed that plaintiffs should retain, until their accounts were adjusted, the share to which the defendants, by the terms of the lease, would be entitled, of any crops which might be harvested upon the land. That point or stage of the season having been reached where it must have been absolutely clear to both parties that no crop of any kind whatsoever could be gathered from the land, owing to the un

favorable conditions which existed, by what process of reasoning can it be maintained that, under the terms of the lease, interpreted agreeably to reason, the plaintiffs were in no position to sue for advances already made, because they had not made the further loan of $54, which they would probably have been required to make in the event that the land had been successfully cropped? The lease may well be construed as obligating plaintiffs to make the loans to defendants as stipulated therein so long as there existed a prospect or hope of realizing some returns from the cultivation of the land in the manner agreed upon, and that, when the time arrived that any reason for such prospect or hope ceased to exist, then the obligation to make such advances ceased to be binding or of any force. We can conceive of no reason, under a fair interpretation of the language of the lease, why the plaintiffs should have been forced, before acquiring a right to sue for moneys already loaned to defendants, to go through the form of advancing a further sum of $54. The logic of the argument may be stated thus: "We owe you, it is true, the sum of $590," say the defendants, "but you have no right now to sue us, nor can you ever acquire any such right until you have made the advance to us of the further sum of $54. The reason for such further loan has, of course, ceased to exist, but we are, nevertheless, under the strict letter of the lease, entitled to a further advance of $54. When you have thus carried out your part of the agreement, you are then authorized to and have the legal right, immediately thereafter to sue us, not only for the last advance made, but for the whole amount loaned to us." This, it seems to us, is the necessary effect of the argument, and the proposition is obviously a reductio ad absurdum.

We think the findings sufficiently respond to and include all the material issues tendered by the pleadings. The specific complaint upon this point is that the court omitted to make any finding upon the issue involved in the alleged counterclaim set up by the defendants to the effect that "during the period of the lease plaintiffs used the leased premises for pasturage purposes solely," etc., and that "the reasonable value of this pasturage was the sum of $1,000." The finding of the court upon this question is as follows: "That said plaintiffs, under the terms of this agreement, are entitled to all of the pasturage on said land during the terms of said lease, and that said defendants take nothing by reason of their counterclaim." This finding is sufficient to cover the issue to which It relates. It appears to be clear enough to require no amplification or explanation to comprehend its meaning. The plain meaning of it is (and it can be construed as meaning nothing else) that the pasturage on the land was the property of plaintiffs, and that therefore the claim of defendants that it be

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