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however, for the purpose of introducing a new description. Thus, where the subject of & contract of sale was a certain quantity of fruit from sundry orchards in Ontario and Cucamonga, parol evidence was held admissible to identify the orchards. Ontario, etc., Ass'n v. Cutting F. P. Co., 134 Cal. 21, 66 Pac. 28, 53 L. R. A. 681, 86 Am. St. Rep. 231. Here the description in the contract is

Plaintiff brought this action to recover the possession of certain premises rented of plaintiff by defendants. The complaint way framed upon the theory that the defendants were tenants from month to month and were holding over after one month's notice terminating their tenancy. Defendants pleaded that they leased the premises for one year ending October 1, 1906, and at the trial in

definite, certain, and complete, and it is troduced in evidence in support thereof a

sought by parol evidence to show that the subject of the contract was entirely a different piece of land. This would be in violation of express statutory provision, Section 1741, Civ. Code. "It must, of course, appear from the memorandum what is the subject-matter of the defendant's engagement. Land, for instance, which is purported to be bargained for, must be so described that It may be identified." Browne on Stat. of Frauds, $ 385; Ferguson V. Blackwell, 58 Pac. 619, 8 Okl. 489.

The judgment is affirmed.

writing signed and delivered to defendants by plaintiff in the words following, to wit:

“Fresno, Cal., Sep. 25, 1905. "Received of Pasch Bros. Twenty and 10/100 dollars on a/c of old Schien store at a monthly rental from Oct. 1, of $125.00 per month for first 6 months, i. e. to April 1st; of $75.00 per month for the remainder of the year closing Oct. 1, 1906. $105 (one hundred and five) due and payable. "$20 n0/100

Fred Dodd."

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

(5 Cal. A. 686)

DODD V. PASCH et al. (Civ. 339.) (Court of Appeal, First District, California.


Where, on an issue as to whether a lease was from month to month or for a year, the tenant produces a written lease for a year, it was error to admit oral evidence to show an understanding that it was to be from month to month,

[Ed. Note.For cases in point, see Cent, Dig. vol. 20, Evidence, $ 1741.] 2. LANDLORD AND TENANT - LEASE - REQUISITES.

A written lease is binding when signed by the lessor, though not signed by the lessee, when the lessee has taken possession thereunder.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, $ 66.] 3. SAME.

A written instrument, reciting that the owner of certain premises had received a certain sum on account of the premises at a monthly rental from October 1st, for the first six months, and at a certain other sum per month for the remainder of the year closing the first of the next October, constituted a lease for a year.

[Ed. Note.For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, $ 61.)

Appeal from Superior Court, Fresno County; H. Z. Austin, Judge.

Action by Fred Dodd against H. C. Pasch and another. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Reversed.

Johnston & Jones and W. P. Thompson, for appellants. Lewis H. Smith, for respondent.

Defendants went into possession October 1, 1905, and paid all rent up to March 1, 1906, at which time they tendered the rent for March, which was refused by plaintiff'; he having on February 28th given defendants a notice to surrender possession March 1, 1906. The trial court, over the objection and exception of defendants, permitted the plaintiff to give testimony of an oral agreement to the effect that he leased the premises sued for, known as the old Schien store, to defendants from month to month, although he admitted that he executed and delivered to defendants the writing above set forth, and that the money specified had been paid. The court made findings in accord with the theory of plaintiff, and gave judgment accordingly.

Defendants contend that the writing above set forth constituted a written contract of lease for the term of one year ending October 1, 1906, and that no evidence of any oral agreement contrary to the terms thereof was admissible. of the correctness of this contention we have no doubt. The instrument clearly shows the contracting parties, the premises leased, the rent, and the term, which is clearly one year, ending October 1, 1906. These are all the essential requisites or a lease that need be specified in the contract of lease. Other conditions usually contained in leases are nonessential. The time of payment even need not be specified, for when not stated in the lease, nor governed by usage, it is fixed by the law. Civ. Code, $ 1947. "To constitute a lease no particular form of words is necessary. Whatever words show an intention on the part of the lessor to dispossess himself of the premises, and on the part of the lessee to enter and hold in subordination to the lessor's title, are sufficient." 18 Am. & Eng. Ency, of Law, 605. Munson V. Wray, 7 Blackf. (Ind.) 403, was an action against Mrs. Munson for holding over her term as tenant, brought on the theory that she was a tenant at will or at sufferance.

HALL, J. Appeal from judgment and or. der denying defendants' motion for a new trial

Defendant (Mrs. Munson) gave in evidence

(5 Cal. A. 674) an instrument in writing signed by the com PEOPLE Y. MEYERS. (Cr. 83.) plainant as follows: "Rec'd of Mrs. Mun

(Court of Appeal, First District, California. son $3.50 for rent of my brick house in Cov.

June 4, 1907.) ington for one month, with privilege of keep 1. LARCENY.-EVIDENCE-SUFFICIENCY. ing it six months at the same rate. No. 91

On a trial for larceny, evidence examined,

and held to support a conviction. or 95. Dec'r 1st, 1813"-and proved that it

[Ed. Note.For cases in point, see Cent. Dig had reference to the premises sued for. The vol. 32, Larceny, 88 161-169.] court held it a good lease, and that the lessee

2. CRIMINAL LAW – VERDICT — CONCLUSIVEcould not be dispossessed, if she paid the rent, NESS. until the expiration of the six months. In

Under Const. art. 6, § 4, as amended NoEastman v. Perkins, 111 Mass. 30, a writing

vember 8, 1903, conferring on District Courts of

Appeal jurisdiction of questions of law alone in at the foot of a receipted bill for hay in

criminal cases, a verdict in a criminal case, supthese words: "Left at stable on Oak street, ported by legal evidence, is conclusive on apwhere Andrew J. Perkins takes possession, peal. Rent to begin October 1, 1870, for one year

[Ed. Note.-For cases in point, see Cent. Dig. at $150. John C. Hoadley"-was held to be a

vol. 15, Criminal Law, 88 3074 3076.] good lease. The court said: “The memo Appeal from Superior Court, City and Counrandum affixed to the bill of parcels express ty of San Francisco; Carroll Cook, Judge. es the consent of the owner that the defend George Meyers was convicted of larceny, ant should have immediate possession of the and he appeals. Affirmed. stable, and should continue to occupy it at a

E. W. Rowland and J. J. Earle, for appelspecified rent and for a definite time. Al

lant. U. S. Webb, Atty. Gen., for the People. though brief and informal, therefore, it had all the essential elements of a present demise KERRIGAN, J. Defendant was charged [citing cases). Being accepted by the defend- with the crime of grand larceny, and upon ant, it gave him all the rights of a lessee.”

the trial was found guilty. His motion for In the case at bar, defendants, by paying

a new trial was denied, and appeal is taken the rent and entering into possession of the

from the judgment and from the order denypremises, accepted the lease. It was not

ing such motion. The sole point made by the necessary for the lessee to sign the lease.

appellant is that the verdict of the jury is Johnson, Landlord & Tenant, $ 77; Taylor

entirely unsupported by the evidence. on Landlord & Tenant, $ 147; 18 Am. &

Briefly, the testimony is as follows: Eng. Ency. of Law, 606; Castro v. Gaffey,

Mrs. Grace Hopkins testified: “On the 96 Cal. 421. 31 Pac. 363; Scott v. Glenn,

evening of November 23, 1905, at about mid97 Cal. 513, 32 Pac. 573. The instrument in

night, in front of a hotel on Mason street question being a valid lease, and unambigu- | in San Francisco, I saw Arnold, Noelke, ous as to the term of the tenancy, it was and defendant, Meyers, all strangers to me. error to allow oral evidence that the tenancy

There three men and myself, at the invitation was from month to month. Civ. Code, 8

of Arnold, went into a saloon nearby, and 1625; McDonald v. Poole, 113 Cal. 437, 45 had several drinks of whisky, the last of Pac. 702.

which looked smoky. At that time I had $48 The cases relied on by respondents on this

in a purse in my stocking, and on my fingers question are not in point. In Kreuzberger v.

three diamond rings worth $125, $90, and Wingfield, 96 Cal. 251, 31 Pac, 109, the writ

$60, respectively. While in the saloon, in ing relied on was a mere memorandum so

attempting to remove my glove, Arnold saw vague and uncertain as not to constitute a

my rings and made a grab for my hand. I contract at all.

withdrew my hand and replaced my glove." The case at bar was not an attempt to ex

She further testified: "I remember nothing plain a clause or term susceptible of two

that happened for several hours after my different interpretations (Williams v. Ash

drinking that smoky liquor. The next thing urst, 144 Cal. 619, 78 Pac. 28), or to prove a that I recollect is awakening in a filthy room collateral parol agreement not inconsistent

in which I had never been before. I was in with the writing (Sivers v. Sivers, 97 Cal.

bed, and not entirely dressed, but my clothes 518, 32 Pac. 571; Guidery v. Green, 95 Cal. had been loosened. My dress was open. My 630, 30 Pac. 786), but a bald attempt to con

corset strings had been cut, and the corset tradict the terms of the written contract.

removed and thoroughly searched. My shoes Neither can the action of the trial court be

and stockings were on the floor and had been sustained on the theory that the writing was

carefully examined; even the soles of the a receipt, for, while it is a receipt, it is also

shoes having been inspected. My rings were something more. It is a coutract of lease

not to be found, and on the dresser I discovof the premises described for the term of

ered my purse inverted and empty." one year.

The defendant, George Meyers, testified: The judgment and order are reversed.

"I am one of the defendants charged jointly

with Arnold and Noelke. I have known We concur: COOPER, P. J.; KERRI Noelke for some time. I first met Arnold on GAN, J.

the night of November 23, 1905. Noelke in

troduced us. About half-past 1 in the morning of November 24, 1905, the three of us were standing on Mason street in front of the Alturas, where Noelke lived, when Mrs. Hopkins passed by. She was intoxicated, and asked us: 'Which of you is going to buy me a drink?' Arnold said that he would do so, and started down the street with her. Xoelke and I followed, and the four of us went into a saloon near the Linwood. Arnold sat next to Mrs. Hopkins at the table. We had several drinks, but I did not notice any that appeared cloudy or smoky. We left the saloon about 2:30 a. m. and went into the Linwood; Arnold and Mrs. Hopkins leading the way. Arnold went to the desk and engaged a room, and the night clerk took him and Mrs. Llopkins up in the elevator. Arnold motioned to Noelke and me to remain in the office, and we did so. Later I took Voelke home to the Alturas. He was quite drunk. When I left bim there he said to me: 'Arnold has a good job at the Park, and I'd hate to sec bim lose it on account of a woman. Don't let him oversleep, but send him out to work. I returned to the Linwood, inquired of the clerk the number of the room occupied by Arnold and Mrs. Hopkins, and having been refused the key went upstairs and pounded on the door to arouse Arnold. This I was doing as an accommodation to my friend Noelke, as I had no interest in Arnold, having only met him the night before. Before I had received any response from Arnold, I was compelled to desist by the night clerk, who told me that I was disturbing the whole house. I returned to the office, but presently went upstairs again hoping that I might awaken Arnold, renewed the knocking at the door less violently than before, and was asked by Arnold what I wanted. I told him to get up, that it was time for him to go to work, and he said: right, I'll be out in a minute.' I waited for him. Presently he came out and asked me to go with him and have a drink, and we left the Linwood together. I had not entered the room occupied by Arnold and Mrs. Hopkins since she went up with Arnold in the elevator. I did not take or assist in taking any property from her person. On leaving the Linwood, Arnold and I had a drink together, and he then asked me if I was acquainted at any pawnshop in the city. I said that I knew a clerk at a place on Kearny street, and Arnold asked me to take him there, and said that his girl had given him some things to pawn for her. So I went with him to Jacobs', and there he pawned three rings for $100. I had never seen the rings before that moment, and had no idea where he obtained them, except from his statement that his girl had given him some articles to pawn. We left the pawnshop together and had another drink. We then separated, and I do not know what Arnold did during the rest of the day. After that I saw

Arnold nearly every day until we were arrested, about a week later. We were arrested by Officer Ryan, with whom I subsequently talked once or twice about the case. IIis account of our conversations was in the main correct. I never received any money from Arnold on account of the deal between him and the pawnbroker, nor on any other account; and I never said that I did."

Charles Clark testified: "I was on duty as night clerk at the Linwood Hotel on Mason street at about 2 o'clock November 24, 1905, when Mrs. Hopkins, Arnold, Voelke, and defendant, Meyers, arrived. Arnold came to the desk and engaged a room. I asked him his name, and he replied: 'Any old name, say Burke. The room I assigned them was on the second floor. I entered the elevator to take the party up. Arnold and Mrs. Hopkins stepped in, and Noelke and Meyers started to follow, when Arnold motioned them to stay back, and they retired. They remained in the office while I took the others upstairs. Mrs. Hopkins remarked while in the elevator that the place was 'dirty' and 'a pretty poor looking duinp.' I showed them to the room, and saw them enter and shut the door. The door locked with a snap lock. I then returned to the office, where Noelke and Meyers were waiting. They remained for some time, then went out, and returned. Noelke was quite drunk. At about 5:30 o'clock Meyers and he went outside, and Noelke did not return. Meyers returned in a few minutes. He said something about getting Arnold up and sending him to work. Ile learned which was his room, and then ran upstairs. He asked me for the key to the room, which I refused to give him, as Arnold had given me particular instructions not to allow any one to enter the room. Presently I heard a terrible racket upstairs. I went up and found Meyers in the hall outside of the door of the room which I had given to Arnold and Mrs. Hopkins. He was pounding and kicking on the door. I forced him to stop and to go down to the office with me as he was creating a sufficient disturbance to arouse the whole house. Presently Meyers went up again and made a good deal of noise, but was not quite so boisterous as on the former occasion, so I did not disturb him this time. I do not know whether he was in the room on these several trips or not. Presently he and Arnold came down to gether and left the hotel at about halfpast 7."

H. Wilkins and A. E. Trimple testified that they were clerks at the Jacobs' pawnshop; that they knew Meyers; that on No vember 24, 1905, at about 8 o'clock in the morning, Meyers and another man, whose name was given as Burke, called at the pawnshop, and Burke pawned three diamond rings for $100. It is conceded that it was Arnold, under the name of Burke, who pledged the diamond rings.

James L. Ryan, a member of the detective | 2. APPEAL – REVIEW – APPEAL FROM FINAL force of the city and county of San Fran


Where, after an order was made August cisco, testified that Meyers told him that he

10th, setting aside a sale of decedent's property (Meyers) had received from Arnold a com and ordering a resale, the bidder filed an affimission of $15 out of the $100 in the pawn clavit purporting to embody his objection to shop transaction.

granting the order, and October 12th the affi

davit was ordered stricken from the files, no If there was no legal evidence to support

appeal being taken from that order, neither the verdict of the jury in this case, as is con the affidavit nor the ruling in striking it may tended liy appellant, then there would be

be considered on an appeal from the order set

ting aside the sale taken three weeks before presented a question of law upon which, of

October 12th, course, this court would have jurisdiction to

Appeal from Superior Court, Los Angeles pass. The record, however, shows clearly

County; G. A. Gibbs, Judge. there was legal evidence to prove all the

In the matter of the estate of Louisiana R. facts constituting the crime alleged. In such

Long, deceased. E. R. Fox appeals from an a case the decision of a jury, in so far as

order setting aside a sale of real estate of the this tribunal, is concerned, is absolutely final.

estate to him and ordering a resale. AfArticle 6, § 1, Const. Cal. amended November

firmed. 8, 1903; People v. Maroney, 109 Cal. 279, 41 Pac. 1097; People v. Fitzgerald, 138 Cal. 41,

L. M. Fall and E. R. Fox, for appellant. 70 Pac. 1014; People v. Donnolly, 143 Cal.

Frank James, for respondents. 398, 77 Pac. 177; People v. Gonzales, 143 Cal. COC, 77 Pac. 418. In People v. Maroney,

SHAW, J. This

This is an appeal from an orsupra, it is said: “The power of a jury in

der of the court setting aside a sale of cerdetermining the weight to be given to testi

tain real estate belonging to the estate of

Louisiana R. Long, deceased, and ordering a mony is, within the rules of evidence, exclu

resale of the property. sive and supreme, and appeals to this court

The only facts material to the case are in criminal cases do not lie from the verdict

that on March 6, 1906, appellant in open of the jury upon controverted questions of

court bid $15,100 cash for certain real estate fact, but solely upon propositions of law."

belonging to the estate of deceased, upon In People v. Fitzgerald, supra, it is said:

condition that he should be furnished an un"By the Constitution appellate jurisdiction

limited certificate of title showing the propis conferred upon this court in 'criminal cas

erty entirely clear of all liens or clouds. es prosecuted by indictment or information

The bid was accepted, appellant paid $1,550 in a court of record on questions of law

on account of the purchase price, and therealone.' Where there is evidence therefor to

upon the court made its order confirming the sustain the verdict, a question of law cannot

Thereafter, on July 20, 1906, pursuarise, but only in a case where there is in

ant to notice duly given, respondents moved effect an entire lack of evidence.”

the court to set aside the sale so made to The judgment and order are affirmed.

appellant and order a resale of the property ;

the grounds of the motion being that said apWe concur: COOPER, P. J.; HALL, J. pellant had neglected and refused to pay the

balance of the agreed purchase price of the property. The hearing of this motion was.

at the request of appellant, continued from (5 Cal. App. 68-1)

July 20th to August 10th, on which lastIn re LONG'S ESTATE. (Civ. 367.)

mentioned date the court made the order (Court of Appeal, Second District, California. setting aside the sale, and from which this June 5. 1907. Rehearing Denied by appeal is prosecuted. Supreme Court Aug. 3, 1907.)

Some time in June, 1906, there was deliver1. EXECUTORS AND ADMINISTRATORS–JUDICIAL ed to appellant a certificate of title executed SALE-ORLERING RESALE-DISCRETION.

by the Title Insurance & Trust Company of Code Cix. Proc. $ 1551, provides that if, aft Los Angeles, and appellant then accepted the er the confirmation of the sale of decedent's estate, the purchaser neglects or refuses to comply

title to the property as shown by this certifiwith the terms of sale, the court may order à

cate, provided the respondents, who were the resale. Decedent's property was bid in March executors of the estate of said deceased, Oth, on condition that the bidder be furnished

would credit him on his bid with the sum a certificate showing clear title, and the bid was confirmed. On July 20th, motion was made

of $63 paid on a street improvement bond, to set aside the sale and order a resale for the

to all of which the executors consented and bidder's neglect to pay the balance; the hear agreed. A tender of the deed and a demand ing of the notion being continued to August for the balance of the purchase price was 10th at the bidder's request, and he stating that he could not then raise the money. Title

admitted. The only objection urged against had been accepted in June, and a tender of the granting this motion was the condition of the derd and a demand for the balance of the pur money market; Fox stating that he was not chase price were adınitted. Held, that there

able at that time to raise the balance of the was no abuse of discretion in ordering a resale.

purchase price. Whereupon the court, at his [Ed. Note.--For (ases in point, see Cent. Dig.

request, continued the hearing to August 10, vol. 22, Executors and Adininistrators, $ 1517.) 1906, at which time the order granting the

motion was made. Section 1554, Code Civ. left her without means, she received the money Proc., provides: “If, after the confirmation,

in payment of a note, of which they were the the purchaser neglects or refuses to comply

joint payees, and used it for the necessaries of

life. with the terms of the sale, the court may, on motion of the executor or administrator, and

Appeal from Superior Court, City and after notice to the purchaser, order a re-sale

County of San Francisco; Frank H. Kerrito be made of the property." Under this gan, Judge. provision of the statute, the making of the

Action by Robert Whittle against Annie order was a matter solely within the discre

Whittle, sued as Anne Whittle. Judgment tion of the court. The record discloses no

for plaintiff. Defendant appeals. Reversed. abuse of discretion. Indeed, the circumstan J. C. Bates, for appellant. P. J. Mogan ces would seem to permit no other course and M. S. Eisner, for respondent. than that pursued. After the order was made, appellant filed an affidavit, which pur

COOLER, P. J. The complaint alleges ported to embody his objections to the grant

that the plaintiff and defendant are husband ing of the motion. This affidavit was, by an

and wife, but that they have been living order of the court made October 12, 19906,

separate and apart since August, 1893; that stricken from the files. Yo appeal was tak

in November, 1893, the defendant received en from this order, and neither the affidavit

$1,097.CO to and for the use of plaintiff: nor the ruling of the court in striking it from that said money was partly the separate the files can be considered on this appeal,

property of plaintiff and partly community. which was taken some three weeks prior to

property; and that defendant has not paid said October 12th.

the same nor any part thereof. The answer The order appealed from is affirmedl.

alleges that all the money received by the

defendant was received by her as the wife We concur: ALLEX, P. J.; TAGGART, J. of the plaintiff, and was necessarily used by

her for the necessaries of life for her board

maintenance after plaintiff had will(5 Cal. App. 696)

fully deserted and separated from her withWIIITTLE v. WHITTLE. (Civ. 275.) out just cause. The cause was tried, find(Court of Appeal, First District, California. ings filed, and judgment thereupon entered June 6, 1907.)

for plaintiff. This appeal is from the judg1. APPEAL-RECORD-REVIEW.

ment and the order denying defendant's moThe record is not in condition for review of tion for a new trial. the overruling of defendant's objection to pro

Several errors are assigned and argued in ceeding with the case till the original pleadings were produced or other papers were substituted appellant's brief, which we will notice in the therefor; the pleadings being in the record on order in which they are discussed. It is appeal, and it not appearing that they are not claimed that error was committed in trying the original papers, nor that they were not found and used on the trial.

the case without the pleadings being before 2. WITNESSES — EXAMINATION – REFRESIIING

the court. It appears from the bill of exJIEMORY: -WRITINGS ADMISSIBLE.

ceptions that the plaintiff's attorney stateil The complaint, in an action for money had to the court that the papers in the case were and received, having alleged the money was re

missing from the files, but that he had copies ceived from c., plaintiff may introduce a note executed by c. to plaintiff and defendant. pre that he could supply in case the originals liminary to asking defendant, who was being were not found. Defendant's attorney obexamined as a witness for plaintiff, if she col

jerted to proceeding with the case until tile lected part of the note.

original papers were produced or other pa3. LIMITATION OF ACTIOXS-MOXEY RECEIVED.

pers substituted in lieu thereof. The court The statute commences to run against an action for money had and received from the overruled the objection, and the trial protime the money was received, and not from the

ceeded. The correct practice would have time the note, in payment of which the money

been to find the originals or supply copies was received, was due.

before the trial of the case, but that may [Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, $$ 268, 269.] have been done. The pleadings are now bere 4. JUDGMENT-RES JUDICATA.

as a part of the record, and it does not apThe judgment of defendants, in an action pear that they are not the original docuon a note by one of the joint payees a gainst the

ments, nor does it appear that they were not maker and the other payee, the latter being made

found and used during the trial. No further a defendant because she would not consent to become a plaintiff, and the judgment being be question appears to have been raised (oncause of the maker having paid the note to the cerning them, and no injury to defendant is defendant payee, is not a bar to an action by

made to appear. the former payee against the latter payee, for money had anil received of the maker in pay

The plaintiff offered in evidence a note for ment of the note.

$921.00, dated February 19, 1891, made by Ed. Yote-For cases in point, see Cent. Dis. Jary 1). Carpenter and payable to plaintiff rol. 30, Judgment, $$ 1092-10:37.]

and defendant. To this the defendant ob5. MONEY RECEIVED - DEFENSES – IIUSBAND jected upon several grounds, among others AyD WIFE.

that it was not admissible under the pleadTo an action for money had and received it is a good defense that defendant is the wife of

ings, and that it appeared to be barred loy the plaintif, and that, after he had deserted and statute of limitations. The court overruled

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