existence of the same; that the deceased did not step or stumble over or into any excavation; and that none of said excavations caused or contributed in any manner to the collision between deceased and the defendant's car. As to all of these findings there was, taking the most favorable view to appellant, a substantial conflict of evidence, and hence the finding of the court will not be disturbed. Having made the above finding, the court further found, upon the issue of contributory negligence alleged in the answer, "that said collision between the said John T. Higgins and the said car of said defendant, and his death resulting therefrom, were caused wholly and entirely by the fault, carelessness, and negligence of said John T. Higgins, and without any fault, carelessness, or negligence upon the part of the said defendant or any of its servants, agents, or employés"; and further, by finding 8. "that the said John T. Higgins was guilty of negligence which directly and proximately contributed to the collision between himself and the said car, and his death resulting therefrom." In support of these findings, one Newton, who was walking north on Central avenue, testifying on behalf of plaintiff, says: "When I got within about 50 feet of Sixth street, I saw a car coming towards me on Central avenue, and I saw a man coming diagonally across Sixth street. I saw the man by the light of the headlight. I think I was about 50 feet from him when he was hit." He further said that he could see the hole into which the man stepped from that distance, and that deceased was in as good a position to see the hole as he was. "IIis range of vision," says the witness, "was better than mine, and he ought to see it better than I did. The car was anywhere from 8 to 10 feet from the man when I first saw him." He further says that the man stumbled across a pile of dirt when he was 8 or 10 feet from the car; that the man seemed to stumble over a pile of dirt between the two tracks, there being double tracks on Central avenue, and the deceased having crossed the east track, the injury occurring on the west line of track upon which the car was traveling south. No other evidence was offered upon this point by plaintiff. The uncontradicted evidence of the motorman is that he rang the gong twice as the car came into Sixth street; that the deceased was 10 to 15 feet in front of the car when he first saw him: that upon seeing him he rang the gong and shouted and applied the air hard to his brake: that deceased paid no attention, but jumped on the track in an attempt to cross, without increasing his pace, and when he reached the west rail of the west track the car hit him. Another witness, who was in the car, testified that he saw deceased suddenly walk into the rays of the headlight about 10 to 15 feet from the car and in the act of stepping across the east rail of the west track. Other uncontradicted evidence was

to the effect that deceased seemed preoccupied and apparently unconscious of the near approach of the car; that "he didn't seem to see or hear anything. IIe seemed to be in deep thought. That was the appearance to me when he went between the tracks."

It thus conclusively appears by appellant's testimony the car was 8 to 10 feet, and by that of defendant, 10 to 15 feet, distant from the point where deceased first stepped upon the east rail and was struck by the car when he had reached the west rail of the track. The headlight, plainly visible, and the ringing of the gong, was notice and warning of the approach of the car, and the court might well conclude from the evidence that the deceased failed to exercise that degree of care and prudence ordinarily exercised by men possessing those qualities. The evidence justified the finding of the court as to contributory negligence on the part of appellant's intestate. Bailey v. Market Street Ry. Co., 110 Cal. 320, 42 Pac. 914; Portsmouth Street Ry. Co. v. Peed's Adm'r (Va.) 47 S. E. 850: Jewett v. Paterson Ry. Co., 41 Atl. 707, 62 N. J. Law, 424; Schwanewede v. North Hudson Ry. Co., 51 Atl. 696, 67 N. J. Law, 449.

As to errors excluding testimony, the court sustained defendant's objection, upon the ground that he was not an expert, and no foundation was laid, to a question asked of witness Newton as to how fast the car was running at the time deceased was struck. Later the witness testified that the car was running 25 to 30 miles per hour. Conceding that the court erred in sustaining defendant's objection to the question asked as to the speed of the car when the collision occurred, it was cured by the fact that he subsequently answered it. Harrington v. Los Angeles Ry. Co., 140 Cal. 525, 74 Pac. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85. Witness Rowe was asked a similar question, to which the court sustained defendant's objection made upon like grounds. Admitting, but not holding, this ruling to be error, it could not have prejudiced appellant, in view of the finding that the injury resulting in the death of deceased was due to his own negligence. Wolfskill v. Los Angeles Ry. Co., 129 Cal. 114, 61 Pac. 775: Sego v. Southern Pac. Co., 137 Cal. 405, 70 Pac. 279. Five witnesses testified that the car was running at a speed not to exceed eight miles per hour. Had the testimony of Rowe upon this point been admitted, and conceding that his evidence and that of Newton had justified the court in finding that the car was running at a speed of 25 or 30 miles per hour, could such fact have warranted the court in finding otherwise than it did upon the question of contributory negligence? Assuming the evidence tendered by plaintiff as to the speed of the car, of the exclusion of which appellant complains, had been admitted, deceased would still have been guilty of contributory negligence. It is manifest that the reception of this evidence could not have changed the result, and therefore appellant

suffered no injury by reason of said ruling. Code Civ. Proc. § 475; Est. of Morey, 147 Cal. 495, 82 Pac. 57.

At the close of defendant's evidence, plaintiff called Alex Geddis in rebuttal and asked: "Was there any lights or lamps or lanterns anywhere at the intersection of Sixth and Central avenue at that time (7:30 p. m.) that night?" The court sustained respondent's objection thereto upon the ground that the testimony sought to be elicited by the question was not rebuttal. In presenting her evidence in chief, appellant offered several witnesses who testified to the absence of signal lights at the point in question.

No excuse

was suggested for not calling this witness at that time. The evidence tendered was not in rebuttal, and no reason was offered calculated to appeal to the discretion of the court, or which would warrant any other ruling than that made. Patterson v. San Francisco, etc., Ry. Co., 147 Cal. 178, 81 Pac. 531.

The order and judgment appealed from are affirmed.

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

(5 Cal. App. 722)

(Civ. 347.)

EWSOM v. WOOLLACOTT. (Court of Appeal, Second District, California. June 14, 1907.)

1. PLEADING-JUDGMENT ON PLEADING.

In an action for services performed, where defendant pleaded an accord and satisfaction, and inserted in his answer a check, which he alleged was given to defendant as payment of his claim, the failure of plaintiff to serve and file an affidavit denying the check, as provided in Code Civ. Proc. § 448, was only an admission of the genuineness of the check, and not an admission of accord and satisfaction, or that the check related in any way to the transaction sued on, all of which, under the express provisions of Code Civ. Proc. § 462, must be deemed to be controverted.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39. Pleading, §§ 864-879.]

2. PLEADING ANSWER WRITTEN INSTRUMENT FAILURE TO DENY EXECUTION.

Code Civ. Proc. § 448, makes the failure of a party to deny by affidavit the genuineness and due execution of a written instrument, a part of an adverse pleading, an admission of the same. In an action to recover for services in connection with a certain building, defendant pleaded accord and satisfaction, and set forth in his answer a check given plaintiff, on which was written that it was in full for fees in connection with the building. Plaintiff did not deny by affidavit the execution of the check. Held an admission of the same, and, where plaintiff offered no evidence to controvert the instrument, or to show that it had no connection with the demand sued upon, he was presumed to have had knowledge of the memorandum on the check, so that it was error to instruct that, notwithstanding the jury found the check was intended to apply to the demand sued upon, they must also find, in order to render a verdict for defendant, that plaintiff was aware of the memorandum on the check at the time of its delivery to him, or that he knew of it before the check passed out of his possession.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 861-879.]

SHAW, J. The respondent, who is an architect, alleges that he was employed by appellant to prepare certain plans and specifications and receive estimates for, and superintend the erection of, a three-story hotel on the southwest corner of Ninth street and Grand avenue, in the city of Los Angeles, of the estimated cost of $64.000; that the reasonable value of the services agreed to be performed by respondent for appellant was the sum of $2,560; that respondent entered upon said employment, prepared the necessary plans and specifications for said building, and received estimates for the erection thereof; that, notwithstanding the fact that respondent at all times was ready and willing to perform his part of said agreement, he was, about June, 1904, wrongfully discharged by appellant. In his answer, appellant denies all of said allegations, and sets up another agreement, under which respondent was to submit plans for a building which should not involve an expenditure to exceed $25,000; that the plans submitted called for the expenditure of an amount largely in excess of said sum; that respondent admitted that such plans were not in conformity with their agreement; that thereupon plaintiff and defendant, after a full discussion of plaintiff's claim for compensation, had a full accounting and accord and satisfaction, wherein it was agreed that defendant should pay plaintiff the sum of $150 in full of all demands which plaintiff might have or claim against defendant by reason of his negotiations, labors, or otherwise, in connection with the proposed building on Ninth street and Grand avenue, which sum appellant paid to respondent in full satisfaction of all his demands in the premises; that said payment was made by a check, payable to the order of plaintiff, in the lower left-hand corner of which was a memorandum in the words and figures following. "In full for Ninth and Grand avenue fees," which check was duly indorsed and cashed by plaintiff. A copy of this check, with the indorsement thereon, is made a part of defendant's answer. No affidavit denying the check was served or tiled by plaintiff, as provided in section 448, Code Civ. Proc. Defendant's motion for judgment on the pleadings was denied. The case was tried before a jury, which gave a verdict for plaintiff, and judgment was entered accordingly. The appeal is from the judgment and

an order denying defendant's motion for a new trial.

There was no error in the denial of appellant's motion for judgment on the pleadings. Admitting the execution and genuineness of the check was not an admission of the new matter set up in the answer by way of accord and satisfaction, or that the check related in any way to the transaction set forth in the complaint; all of which, under section 462, Code Civ. Proc., must be deemed to be controverted. It therefore devolved upon defendant to connect this check with the transaction upon which plaintiff based his action and prove that it was given and received as alleged in the answer. In the absence of evidence establishing such facts, it did not in itself constitute sufficient evidence in support of the new matter alleged in the answer. While plaintiff admitted receiving the check, and that it was genuine and duly executed, he did not admit that it was received as set forth in the answer. "The effect of an admission of the genuineness and due execution of an instrument pleaded by a defendant, and not denied, as provided by section 448 of the Code of Civil Procedure, is to avoid the necessity of proof of its genuineness and due execution, and nothing more; and whether it is proven, or its execution is admitted, its terms and legal effect are to be determined by an inspection of the instrument." Carpenter v. Shinners, 108 Cal. 362, 41 Pac. 473.

At the trial the appellant offered no evidence whatever. He now contends that the evidence was insufficient to justify the verdict, and that the court erred in its charge to the jury. The court instructed the jury as follows: "If you find that the check was intended to apply to the demand here sued upon, and that plaintiff accepted the check with words written thereon indicating that it was to be in full payment of all of such demands, and that he was aware of the presence of such words, then the check should be received by you as evidence of a complete settlement of such demand." In another part of the charge the jury were instructed upon the theory that it was for them to find from the evidence whether or not plaintiff had knowledge of the presence of the memorandum at the time of the delivery of the check to him, or knew of the writing upon such check, before it passed out of his possession.

Having failed to file the affidavit of denial required by section 448 of the Code of Civil Procedure, respondent is deemed to have admitted the execution and genuineness of the instrument. Notwithstanding this admission, he may controvert the instrument by evidence of mistake, fraud, and like defenses, or show that it had no connection with the demand sued upon. Moore v. Copp, 119 Cal. 429, 51 Pac. 630. He offered no evidence touching the question, and, in the absence of any testimony, the instrument

stands as an exponent of the facts therein set out, and its terms and legal effect are to be determined by an inspection of the instrument. Carpenter v. Shinners, supra. In the absence of any evidence to the contrary respondent is chargeable with what the instrument purports on its face to be, and it must be taken for just what it appears to mean. Petersen v. Taylor (Cal.) 34 Pac. 724; Brooks v. Johnson, 122 Cal. 569, 55 Pac. 423. Having failed to controvert it, respondent must be presumed to have had knowledge of the existence of the memorandum on the check at the time of the delivery thereof to him, and to have known of the writing thereon before it passed out of his possession. No proof of this fact was necessary. It was therefore error to instruct the jury, in effect, that, notwithstanding they found the check was intended to apply to the demand sued upon, they must nevertheless, in order to render a verdict for defendant, find the further fact that respondent was aware of the presence thereon of the words, "In full for Ninth and Grand avenue fees," and that respondent "had knowledge of the presence of the memorandum written on the check at the time of its delivery to him," or that "he knew of the writing upon such check before it passed out of his possession." All that can be claimed for this check is that it constituted a receipt for money paid to respondent pursuant to the alleged settlement. As such, it is open to contradiction or explanation by parol testimony. In the absence of such contradiction or explanation, respondent is bound by what it purports on its face to mean. Simmons v. Oullahan, 75 Cal. 508, 17 Pac. 543; Snodgrass v. Parks, 79 Cal. 55, 21 Pac. 429. There is nothing in Greer v. Laws, 18 S. W. 1038, 56 Ark. 37, or in Rapp v. Giddings, 4 S. D. 492; 57 N. W. 237, cited by respondent, inconsistent with the general rule.

The judgment and order are reversed.

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

(6 Cal. App. 20)

YORDI v. YORDI. (Civ. 300.) (Court of Appeal, Third District, California. June 20, 1907. Rehearing Denied by Supreme Court Aug. 19, 1907.)

1. DEEDS-ACTIONS TO SET ASIDE-EVIDENCESUFFICIENCY.

Evidence examined, and held to show that a deed executed by a wife to her husband was procured by undue influence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deeds, § 641.]

2. APPEAL-REVIEW-HARMLESS ERROR-EVI

DENCE-ADMISSION.

Code Civ. Proc. 1962, subd. 2, provides that the presumption of the truth of the facts recited in a written instrument shall be deemed conclusive between the parties thereto or their successors in interest. A wife reconveyed to her husband premises which had been conveyed by him to her before their marriage by a deed wherein she was described as his wife. Held,

in an action to set aside her deed for undue influence, that evidence that the deed to her was delivered before the marriage ceremony was performed, though on the same day, was without prejudice to defendants.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4153.]

3. WITNESSES-CROSS-EXAMINATION.

Where, in an action by a widow to set aside a deed executed to her husband in his lifetime of premises he had previously conveyed to her, the notary who prepared her deed merely testified on direct examination that the husband instructed him to prepare a deed similar to another given him, statements on his cross-examination that the husband had told him that the deed to his wife should not have been recorded, was recorded by mistake, and that they were going to change it were properly stricken out as improper cross-examination.

4. EVIDENCE-DECLARATIONS-SELF-SERVING.

In an action by a widow to set aside a deed to her husband in his lifetime of premises he had previously conveyed to her, evidence by the notary who prepared her deed as to statements by the husband that the deed to his wife should not have been recorded, was recorded by mistake, and that they were going to change it, not made in the wife's presence, were properly stricken out.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1068, 1069.]

5. WITNESSES-EXAMINATION-REDIRECT.

Where, in an action by a widow to set aside a deed executed to her husband in his lifetime, she was cross-examined as to whether she had told her defendant stepchildren that the property was hers, to which she replied that she had not, she was properly permitted to explain on redirect examination why she was silent.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 50, Witnesses, § 1000.]

6. EVIDENCE-OPINION EVIDENCE-CONCLUSION OF FACTS-DEEDS-WANT OF CONSIDERATION.

In an action by a widow to set aside a deed executed to her husband in his lifetime of premises he had previously conveyed to her, she was properly permitted to state that the same was executed without consideration, and such answer was not equivalent to permitting her to testify that she did not hold the premises on an implied trust for the benefit of her husband.

7. DEEDS - VALIDITY - UNDUE INFLUENCEPLEADING--SUFFICIENCY.

A complaint in an action by a widow to set aside on the ground of undue influence, a deed to her husband in his lifetime, alleging the marriage relation, intimidation by the husband, the exertion of his predominating influence over her, the taking advantage by him of the confidence reposed in him, and that she acted without independent advice, stated a cause of action, though not setting out the acts constituting the alleged intimidation or undue influence.

8. PLEADING — DEMURRER-Grounds-UNCERTAINTY.

Uncertainty is not a good ground of general

demurrer.

the adverse party allow an amendment to any pleading, a complaint may be amended in the discretion of the court after submission of the cause, but before entry of the judgment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 664, 666.]

Appeal from Superior Court, Sonoma County; S. K. Dougherty, Judge.

Action by Sarah J. Yordi against Flora I. Yordi and others. From a judgment for plaintiff, and from an order denying their motion for a new trial, defendants appeal. Affirmed.

William B. Bosley, for appellants. John O'Gara, for respondent.

CHIPMAN, P. J. Action to compel a reconveyance of real property from defendants to plaintiff. Plaintiff had judgment, from which and from the order denying their motion for a new trial defendants appeal.

Plaintiff and Fred Yordi, father of defendants, intermarried on July 5, 1898. On their wedding day, and before the wedding ceremony, Yordi conveyed the premises in dispute to plaintiff by deed of gift. At that time Yordi was a widower and occupied the premises together with his children, three sons and three daughters (the latter defendants). Thereafter he continued to reside thereon with plaintiff and defendants at the town of Cloverdale, until his death, May 22, 1901. Plaintiff's deed was not recorded until November 14, 1900, and on November 20, 1900, plaintiff reconveyed the premises to her husband, which was recorded November 21, 1900, and on May 3, 1901, he conveyed the said premises by deed of gift to defendants, which was not recorded until May 22d, on the day of his death. The deed from plaintiff to Yordi purports to be a grant, bargain, and sale conveyance, and recites a consideration of $10, but the uncontradicted evidence was, and the court found, that it was without consideration. About June 22, 1901, plaintiff notified defendants that she rescinded the conveyance made by her to said Fred Yordi and demanded that defendants convey to her the said premises, which, being refused, plaintiff on July 3, 1901, filed her complaint herein. The ground of the action was undue influence of plaintiff's husband in procuring the deed from her to him of date November 20, 1900. The defendants in their answer denied the allegations of undue influence, and averred that the deed from their father to plaintiff was given in trust with the promise to hold the legal title to said premises for his use and benefit, and that she would, whenever requested so to do, reconvey the same to him, and that meantime she would refrain from recording said deed. Upon the issues the court found the facts in favor of plaintiff and against defendants. Appellants challenge the sufficiency of the evidence to support the findings. Certain errors of law are assigned in the admission or exclusion of testimony. It

is also contended that the demurrer to the second amended complaint should have been sustained, and also that the court erred in permitting plaintiff to so amend the complaint, after the cause was submitted, as to offer what are claimed to have been issues of fact differing materially from the issues on which the cause was tried.

1. Much of the discussion in the briefs is directed to the inquiry whether a presumption of undue influence arises out of the marriage relation alone in a transaction where the wife conveys real property to the husband; and, assuming that there is no such presumption, does the evidence establish undue influence? There is printed in the record the written opinion of the learned trial judge which holds with appellants as to the presumption referred to above. But his conclusion was that the evidence was sufficient to establish undue influence. In its main features we are impressed with the correctness of the conclusions reached upon the evidence and have adopted the opinion as our own. It is as follows:

"Sarah J. Yordia, a resident of San Francisco, prosecutes this action to have a certain deed of conveyance executed by her to her husband, Fred Yordi, on the 20th day of November, 1900, canceled and set aside. The defendants are her stepchildren, and they reside in Cloverdale. The property involved was the home of the plaintiff and her husband from the time of their marriage on July 5, 1898, to the time of his death in May, 1901. It has always been the home of the defendants, and they claim to own the property by deed of gift made to them by Fred Yordi, their father, on the 3d day of May, 1901. Fred Yordi and the plaintiff, Sarah J. Yordi, were married in San Francisco between 5 and 6 o'clock p. m. on the 5th day of July, 1898. After their marriage they went to Cloverdale, and resided there with six children by a former wife. Prior to the marriage he made and executed to her a deed of his home in Cloverdale. The consideration of this deed was love and affection. Its value was about $4,000, and he handed the deed to her in the presence of her aunt, Mrs. Duffy, with the words, 'Here, my dear, this is yours.' The presentation and delivery of this deed vested her with the absolute title to the property in fee simple. This deed was not recorded at the time, and the reason therefor, fairly deducible from the facts proved, was to keep peace in the family. They lived happily together for two years and three months, when Mr. Yordi died of consumption after a lingering illness. During their married life she always reposed great confidence in him. A few months before his death, when it became manifest to - Mrs. Yordi that her husband was commencing to settle up his worldly affairs and had converted his mercantile store at Cloverdale into a corporation and had given the shares thereof to his children, she had her ante

nuptial deed recorded. Its existence had never been known to the children. The recording of this deed becoming known to one of the sons through the newspapers, a condition of affairs arose that was unpleasant to the Yordi family. The recording of the deed first became known to Carl Yordi. He informed his father thereof. The next day, when Mr. Yordi went home to his dinner, he had an interview with his wife. What was said in that conversation was privileged, and not permitted to be stated by her as evidence in the case. After this conversation Mr. Yordi went down town and employed a notary to prepare a deed to be signed by his wife conveying this property to him. About an hour afterwards Mrs. Yordi went down to Mr. Yordi's store, into his office, and met her husband and notary there, and, amid profound silence, she signed the deed and went back home.

"From these facts plaintiff contends that the transaction was one between husband and wife, and when this is shown she has made out a prima facie case and the fairness of the transaction must be proven by the defendants, and a failure on their part to do so would entitle her to judgment. The defendants take issue with plaintiff upon this principal of law, and contend that the presumption of unfairness does not exist in transactions between husband and wife. They rely on Tillaux v. Tillaux, 115 Cal. 671, 47 Pac. 691; Dimond v. Sanderson, 103 Cal. 97, 37 Pac. 189; Stiles v. Cain, 66 Pac. 232, 134 Cal. 170. These decisions are cited and approved in the recent case of McDougall v. McDougall (decided January 8, 1902) 67 Pac. 778, 135 Cal. 316, wherein the court says: There was, in fact, no evidence tending to show undue influence, unless it be the relation of husband and wife existing between the parties to the deed, and this relation, under the authority of Tillaux v. Tillaux, 115 Cal. 670, 47. Pac. 691, White v. Warren, 120 Cal. 324, 49 Pac. 129, 52 Pac. 723. Sheehan v. Sullivan, 126 Cal. 192, 58 Pac. 543, and Stiles v. Cain (Cal.) 66 Pac. 231, must be regarded as of itself, having no such effect.' These decisions establish the law of this state, and from the mere relation of husband and wife a business transaction between them will not be tainted with any suspicion of undue influence; that, notwithstanding the influence which may exist by the one over the other, a transaction will not, from this relation alone, be presumed to be made under undue influence These decisions may also be said to fix the law of this state that this confidential relation, coupled with an entire want of consideration, will not rais an inference of any unfairness in a transaction between them, but this is the scope of the California cases. Therefore, if plaintiff's case extends no further than this, but is confined within the limits fixed by them, her case is lost. If she has simpi