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prescribes two different methods of performing an act, upon the due and proper execution of which depends the legality or validity of the result or product of such act, a party must first clearly disclose by his complaint which of the methods prescribed had been adopted for the performance of such act, and that a failure to so point out the particular method followed is fatal to a proper statement of a cause of complaint. It is claimed that plaintiff's complaint is subject to this objection, for which reason the special demurrer should have been sustained upon the ground of uncertainty.

The complaint, in paragraph 2 thereof, alleges that "defendant. B. Kelsey, is the owner and holder of a certain deed made by the tax collector of the county of Alameda, and issued to and in the name of said B. Kelsey by said tax collector, on the 13th day of July, 1901"; and in paragraph 3 it is alleged that "said tax collector did on behalf of said sanitary district No. 2. a corporation, and at its request, hold a pretended sale of said property for the nonpayment of said pretended taxes." etc. The statute, it will be observed, provides that the tax collector of the county upon the transmission to him by the sanitary board or by the assessor of such district of a duplicate list of the assessments made in the district and for the purposes thereof shall proceed to the collection of the taxes showr by said list to be due, "in the same manner as he collects the county taxes," and that "all the provisions of the laws of the state as to the collection of taxes and delinquent taxes, and the enforcement of the payment thereof, so far as applicable, shall apply to the collection of taxes for sanitary purposes." We think the complaint is sufficiently clear, in its allegations as to the method for the collection of the taxes adopted by the board of trustees under the discretion in that particular conferred upon it by the statute, to successfully resist the force of the special demurrer upon the point. Counsel for appellant does not question the sufficiency of the allegations of the complaint to show that the tax collector of Alameda county was the official to whom the sanitary board, under its power under the law, committed the duty of collecting the taxes, but declares that the tax collector, for aught that is shown by the complaint, might have acted in the matter of the collection of the taxes under the provisions of a system established by the sanitary board itself, and which might be altogether different from those of the system by which the tax collector must be governed in the discharge of his duties as a tax gatherer under the general laws of the state. It is therefore claimed that it was the duty of respondent to have shown by the pleaded facts that the sanitary board did not adopt a system of its own, as it is provided it may do by the law, or that the tax collector was not, if such were the fact, charged with the duty of collecting the taxes in a mode or manner different from that prescribed for the collection of state and

county taxes. This position finds no support. in the language of the statute. In the first place, there is, it seems to us, no conceivable ground or reason upon which to rest a successful contradiction of the proposition that the Legislature has absolutely no power to delegate to the sanitary board provided for in the act under consideration the right or authority to confer upon a county officer new or additional official duties. The power of the Legislature to charge the tax collector with the duty of collecting the taxes levied in and for the benefit of a sanitary district in any proper manner it may deem wise to prescribe, or to collect such taxes in the same manner as state and county taxes are collected, cannot be questioned; but to undertake to maintain that the manner or mode of discharging any official duties which the general laws of the state require that officer to perform may be changed by a mere regulation of a sanitary board, or upon the mere whim or caprice of the members of such board, is a proposition which can find no encouragement in any rule of law with which we are familiar under our system of government. In the second place, we think it is manifestly clear that the Legislature, in the enactment of the law governing the organization of sanitary districts, has not attempted nor indicated any intention of attempting to invest such boards with any such power. There is, it is true, a provision in the law that the board may, at any time, by order entered in its minutes, provide a system for the collection of delinquent taxes, or make any change in the manner of their collection, "which as to such taxes shall have the force of law." By this provision the Legis lature evidently intended to grant to the board the right and authority to collect the taxes levied for the purposes of the corporation through its own agent, directly appointed by itself, and to enforce the collection of such taxes by such regulations, consistent with the general laws of the state, as it might deem prudent to adopt. The act, as we have seen by express language, provides that if the tax collector is called upon by the constituted authorities of the corporation to collect the taxes, he must conduct and perform that duty "in the same manner as he collects the county taxes." and that "all the provisions of the laws of the state as to the collection of taxes and delinquent taxes, and the enforcement of the payment thereof, so far as applicable, shall apply to the collection of taxes for sanitary purposes," and that he and his sureties on his official bond "shall be responsible for the due performance of the duties imposed upon him by this act." The Legislature itself, it thus clearly appears, has expressly pointed out how and in what manner the tax collector of the county shall gather such taxes when called upon to perform that duty by the sanitary board. The statute contains no language which can be interpreted or construed into giving the board any power whatever to authorize, when the duty of collecting the sanitary taxes is imposed upɔn

the county tax collector, a departure from the mode prescribed by the statute itself for the collection of such taxes by substituting therefor, through an order or regulation of its own, another and different plan or mode by which that duty shall be performed by that officer. In other words, the Legislature itself having prescribed the method and manner of collecting such taxes by the tax collector of the county, there is no power in the sanitary board to modify, amend, or in any particular change the provisions of the law respecting that subject.

The complaint charges that the proceedings in the matter of the sale of property for the delinquent taxes, which were required to be taken by the tax collector by sections 3764, 3765, 3766, and 3769 of the Political Code, as those sections read in the year 1891, when the Legislature passed the law for the creation of sanitary districts, were not followed or observed by that officer. The sections mentioned provided for the sale of property upon which taxes were delinquent to individuals See St. 1885, p. 326, c. 218. The Legislature of 1895, however, made a radical change in the system of selling property for delinquent taxes and by said amendment authorized and required that all such property should be sold to the state. It is obvious, from the facts stated in the complaint, that there is no pretense that the property involved here was sold in pursuance of the provisions of the law upon the subject of tax sales as amended by the Legislatures of 1895 and 1897. It is also alleged that the requirements of section 3785 of the Political Code (Deering's Annotated Codes and Statutes), as it existed and read prior to said amendments of 1895 and 1897, making it the duty of the purchaser of property at tax sale, or of his assignee, to serve upon the owner or occupant of the property 30 days prior to the time of the redemption of the property a notice, giving the date of sale, the amount of property sold and the amount for which it was sold, etc., were not complied with. The demurrer of course, admits all the material allegations of the complaint to be true. The failure or omission of the tax collector, as charged in the complaint, to comply with all the provisions of the statute prescribing the proceedings essential to effecting a sale of property for delinquent taxes, is fatally defective to a valid sale thereof. "All proceedings in the nature of assessing property for the purpose of taxation and in laying and collecting taxes thereof, are in invitum, and must be stricti juris." Weyse v. Crawford, 85 Cal. 196, 24 Pac. 735; Hearst v. Eggleston, 55 Cal. 365; Shipman v. Forbes, 97 Cal. 574. 32 Pac. 599; Gwynn v. Dierssen, 101 Cal. 566, 36 Pac. 103; Merced County v. Helm, 102 Cal. 159, 36 Pac. 399; Dranga v. Rowe, 127 Cal. 509, 59 Pac. 944. It will thus readily be perceived that the sale here was no sale at all under the law and it necessarily follows that the purported tax

deed executed by the tax collector to the defendant was and is void.

Counsel for appellant contends that respondent, by proceeding in this action under section 3412 of the Civil Code, is "seeking to enforce the wrong remedy," and that, inasmuch as the facts pleaded show the deed held by defendant to be void and therefore no title under it acquired by appellant, the remedy of respondent was under section 738 of the Code of Civil Procedure. Some authorities are cited by counsel which he contends support this suggestion. But the point is technical in the extreme, even if it be admitted that, strictly viewing the proposition, it might be held that there is some merit in it. There is, however, in our opinion nothing in the contention. Section 3412 of the Civil Code provides that "a written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled." Section 738 of the Code of Civil Procedure provides for actions to quiet title by persons against others who claim an estate or interest in real property adverse to them. The remedy here invoked appears to be peculiarly appropriate to the facts as pleaded in the complaint. Besides, an action under section 738, Code Civ. Proc., could accomplish in effect nothing more or nothing less than the object of the present action.

Other points are discussed, which, under the views expressed in this opinion, it is un. necessary to consider.

The judgment is affirmed.

We concur: CHIPMAN, P. J.; BURNETT, J.

(5 Cal. App. 562) VISHER v. WILBUR. (Civ. 317.) (Court of Appeal, Third District, California. June 20, 1907.)

1. APPEAL - REVIEW-HARMLESS ERROR-ADMISSION OF EVIDENCE.

Where it is established that an action is barred by the statute of limitations, evidence that may have been offered in response to the issues on the merits becomes of no consequence, and errors in admitting or rejecting such evidence are without prejudice to the party against whom made.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4035.]

2. LIMITATION OF ACTIONS-SUFFICIENCY OF ACKNOWLEDGMENT.

A claim filed against a decedent's estate showing that at one time claimant was indebted to decedent, but that through expenditures made by claimant for decedent there was a balance due claimant, was not an acknowledgment of indebtedness to decedent, reviving a barred cause of action for the same, notwithstanding the expenditures may have themselves been barred or constituted a demand otherwise not enforceable against the estate. 3. SAME.

A declaration in writing cannot revive a barred cause of action, unless it contains an express promise to pay the debt or an acknowledgment from which a promise may be implied, and such acknowledgment must be a direct aud

unqualified admission of an existing debt the debtor is willing to pay.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Limitation of Actions, §§ 599, 600.]

On petition for rehearing. Petition denied.

For former opinion, see 90 Pac. 1065.

HART, J. It is conceived proper in denying the petition for a rehearing herein to add to what has been said in the main opinion that, from our original examination of the record in this cause, we felt justified in concluding that the trust theory of the complaint was adopted for no other reason than to obstruct the successful interposition of the statute of limitations against plaintiff's right of action. We concluded, from what we conceived to be a painstaking examination and careful analysis of the complaint, that the facts pleaded, with the exception of a few general averments amounting to mere conclusions of the pleader, failed to show the transaction between the deceased and the defendant to have been of a fiduciary nature. The evidence, as disclosed by the record, fully sustains this conclusion. We were convinced that the relations, if, indeed, any at all existed at the time of Visher's death, between the defendant and the deceased, were merely those of ordinary debtor and creditor, bearing none of the essential characteristics of a trust, except the bare fact, as alleged, of the possession of money belonging to the deceased by the defendant. Under this view of the record, the evidence, we think, irrefragably established a bar to the action under the terms of section 337 of the Code of Civil Procedure.

Upon

the theory that the action was for money had and received upon a stated account, any evidence relevantly bearing upon the question of the alleged bar was admissible. Of equal soundness is the proposition that the moment the court finds, upon sufficient evidence, that the claim that an action is barred by the statute is sustained, and that such special plea is therefore well taken, any evidence that might have been offered and received in response to the issues upon the merits of the case, such evidence having no bearing whatever upon the special plea in bar, is, whether improperly admitted or not, of no consequence, and errors in the rulings of the trial court in admitting or rejecting evidence so confined to the merits are without significance or prejudice to any rights of the plaintiff or party against whom such rulings are made. But counsel argues in his petition that the errors of the trial court in the admission and rejection of evidence "become the more apparent" if, as we have held, the action is on an account stated, and adds: "We have already pointed out in the petition that where an account is stated between the parties thereto, it cannot be disputed, questioned, modified, or changed, except for mistake or fraud, which must be set up in the pleadings." This contention goes to the mer

its of the case, and, as we have suggested, has no force in its application to the evidence bearing upon the special plea in bar. It is only the statement of a cardinal rule of evidence to say that any competent proof was admissible which would show or tend to show that the debt declared upon was created at such point of time with reference to the time of the commencement of the suit as would bar a right of action thereon. And the defendant, if he so elected, could entirely ignore the issues involving the merits of the case, and rely solely upon his special plea in bar. The record in this case discloses no errors in the rulings of the court admitting evidence directed to the issue tendered by the special plea.

The point made by appellant in his original argument, and vigorously renewed in his petition, that the filing by the defendant against the estate of a claim, showing that at one time defendant was indebted to the deceased, but that through disbursements of certain moneys for and on behalf of deceased by the defendant, the latter became a creditor rather than a debtor of the deceased, is an acknowledgment of the debt, and restores to plaintiff a right of action for the same, is, we think, without merit, and so plainly did it so appear to us in our original investigation of the record that we did not feel called upon to give it extended notice in the main opinion. Counsel, however, seems to give the question such serious consideration in his petition for a rehearing that we feel justified in giving it briefly further attention. The argument is that the items set forth in the claim and which show money to have been paid out for the benefit of the deceased by the defendant and which were so set out in said claim as a set-off to any amount which might at one time have been due deceased cannot be considered, because they had not been presented, as required by law, to the administrator of the estate of said deceased for allowance and payment; that "such claims cannot be pleaded in bar of any action, or paid until they have been thus presented, and either allowed or disallowed"; that, therefore, the admission in said claim of the original indebtedness to the deceased constitutes an acknowledgment from which the law will imply a promise to pay the debt, hence the right of recovery thereon in the plaintiff is revived. The view, briefly expressed, as to this point in the original opinion, was that there could be no such acknowledgment of an "outlawed" debt as would restore a lost right of action thereon, where a party files or submits in writing against another a claim, as to which an action could not be maintained for any legal reason, said claim showing a mutual account, according to which it appears that at one time the claimant was indebted to the party against whom it is presented, but that the latter, at the time of the filing or submission of such claim, is indebted to the claimant.

How can such a claim be construed to be an acknowledgment of an old debt when the defendant by the very nature of said claim in effect says: "Instead of being indebted to the plaintiff, the latter is indebted to me?" It must, of course, be clear to the most obtuse understanding that by filing the lain it was the intention of the defendant to convey the notion that the plaintiff's intestate was indebted to him and not he to the estate. There is but one sensible interpretation of the language of the claim filed against the estate by the defendant, and that is that the defendant not only claims but in substance declares that he is in no way indebted to said estate in any sum or amount whatsoever. The contention that the items in said claim purporting to have been expended for the benefit of deceased by defendant are barred, or constitute an otherwise illegal demand upon the estate, cannot affect the determination of the question we are considering. Let it be granted that those items are barred, and that the defendant could not maintain an action upon them. The decision of the question here can in no manner or degree be influenced by that fact. The sole question is as to the effect of the language of the claim so filed. Does it admit an old or any indebtedness, or does it deny it? It seems to us that there can be no two sides to the question. A declaration in writing, in whatever form of language it may be made, cannot revive a right of action once barred, unless it involves an express promise to pay the debt, or an acknowledgment from which the law will imply a promise. And, as we have seen from an examination of the authorities cited in the main opinion, such acknowledgment must be clear, distinct, and direct-not vague, indeterminate, and uncertain. It will not be contended that the claim contains language expressly promising to pay the debt, to recover which the suit is brought, and, as previously suggested, the very nature of the document itself-the very intrinsic character of it, in purpose and effect-completely negatives the idea of an admission of any acknowledgment of an indebtedness to the deceased or his estate by the defendant. The petition for a rehearing is denied. We concur: CHIPMAN, P. J.; BURNETT, J.

(6 Cal. App. 113)

RICKEY LAND & CATTLE CO. v. GLAD

ER. (Civ. 307.)

(Court of Appeal, Third District, California. July 10, 1907.)

1. COURTS-DISTRICT COURT OF APPEALS-JURISDICTION--EQUITY CASES.

Under Const. art. 6. § 4. conferring exclusive jurisdiction in all cases of appeals in equity on the Supreme Court, a District Court of Appeals had no jurisdiction of an appeal from a judgment in a suit to restrain defendant from diverting the waters of a creek, without reference to whether the judgment involved the merits of the controversy.

2. SAME--TRANSFER.

Where an appeal in an equity suit was erroneously taken to the District Court of Ap

peals, the appeal was not lost, but woule be transferred to the Supreme Court, as authorized by Const. art. 2, § 4.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, § 1303.]

Appeal from Superior Court, Mono County; J. D. Murphey, Judge.

Action by the Rickey Land & Cattle Company against C. P. Glader. From a judgment for defendant, plaintiff appeals. Transferred to Supreme Court.

Jas. F. Peck, Wm. O. Parker, Alfred Chorty, and Chas. C. Boynton, for appellant. Richard S. Miner, for respondent.

CHIPMAN, P. J. This cause was argued and submitted upon the unquestioned assumption that this court had jurisdiction to entertain the appeal. Upon an examination of the record, it clearly appears that the action is in equity, being an action to restrain defendant from diverting the waters of a certain creek. Appellate jurisdiction in all cases in equity is given to the Supreme Court. Article 6, § 4. Const. Cal.

We have no doubt that this court is without jurisdiction to entertain an appeal involving the merits of the action; and it seems to us to be equally clear that we cannot entertain an appeal from any judgment entered in the case whether or not involving the merits of the controversy. Logically it would appear to be reasonable that if an appeal would not lie to this court from the judgment on the merits it cannot lie from any judgment growing out of the case. Otherwise there might be an appeal pending here by plaintiff from the present judgment and an appeal pending in the Supreme Court by defendant from the judgment on the merits.

In this view it becomes our duty to transfer the case to the Supreme Court, under article 6. § 4, of the Constitution. The appeal, though improperly taken to this court, is not lost. Id.

The cause and all the papers relating thereto are, under rule 32 (78 Pac. xiii), transferred to the Supreme Court.

We concur: BURNETT, J.; HART, J. (6 Cal. App. 1) AMERICAN COPYING CO. v. LEHMANN et al. (Civ. 371.)

(Court of Appeal, Second District, California. June 20, 1907.)

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A contract whereby plaintiff agrees to print in its stamp directory the name and business of defendant, and to secure orders from at least 100 persons for portraits to be given free by defendants on presentation of stamps worth $25, and whereby defendants agree to pay plaintiff $175 for 100 frames on the completion of the canvass, and to receive from plaintiff stamps to carry out the scheme, paying therefor 50 cents per 100, and which stipulates that it is a part of the agreement that 160 persons shall order 160 frames, is not a severable contract, and plaintiff performing it in part is not entitled to recover, especially where it fraudulently altered orders for portraits procured by it.

Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, § 754.]

2. SAME RESCISSION.

Where a party to a contract, bound to procure orders for portraits, only attempted to perform its agreement by procuring orders which it fraudulently altered, the other party was not obliged to rescind to defeat a recovery.

Appeal from Superior Court, Ventura ! County; Felix W. Ewing, Judge.

Action by the American Copying Company against Leon Lehmann and another. From a judgment for defendants, plaintiff appeals Affirmed.

Shepherd & Barnes, for appellant. I. W. Stewart and Blackstock & Orr, for respondents.

TAGGART, J. Plaintiff appeals from judgment in favor of defendants.

Plaintiff is an Illinois corporation, engaged in supplying trading stamps, and free enlarged portraits, and paid-for frames therefor, to merchants desirous of increasing trade by such methods. Defendants are merchants in the town of Oxnard, Ventura County, Cal. From the complaint it appears that plaintiff and defendants entered into a contract in writing, whereby the former agreed to print the name and business of defendants in its citizens' stamp directory, to canvass and deliver to the homes of Oxnard and vicinity copies of the stamp directory, explain the use of it, and to secure orders from at least 100 persons for portraits, to be given free by defendants upon presentation of $25 worth of stamps. In consideration for this the defendants were to pay to plaintiff $175 for 100 oval frames, upon the completion of the canvass. and to receive from plaintiff a sufficient amount of stamps to carry out the scheme shown in the contract, paying therefor 50 cents per 100 for all stamps used, to make weekly settlements, and to promptly return all redeemed stamps. The contract to continue for two years. Upon the face of the order for frames set out in the complaint appears the words: "This is part of the agreement that 100 persons are to order 100 frames." It is alleged in the answer, and found by the court, that these words were written in at the request of defendants. and were intended to and did obligate the plaintiff to secure orders for 100 picture frames to be purchased from defendants at $3 per frame. being the same frames which defendants purchased from plaintiff at $1.75 per frame. The complaint further alleges a full compliance with the contract by plaintiff, the delivery to defendants of 23 stamp books of 5,000 stamps each, to be paid for at the rate of 50 cents per 100, and demands judgment for $575. The court finds that the plaintiff made a canvass of the town of Oxnard, procured 124 orders for portraits. each including an agreement to trade the amount of $25 at defendants' store, each person so ordering to receive an enlarged portrait, called a "Demar portrait" in the order. These orders were signed by the respective persons giving them, and near the signature

on each was stamped with a rubber stamp the words. "Reserve for me one frame," and delivered to the defendants by the solicitor for plaintiff as and for the orders provided for in the contract. The defendants thereupon paid said sum of $175 for the frames, and received the 100 picture frames. The words, "Reserve for me one frame" were not on said orders when signed by the respective parties signing the same, but were stamped thereon between the time they were signed and the time of delivery to the defendants, and the agent of plaintiff represented to defendants that said words were placed thereon prior to signature. The signers of said orders repudiated said orders as altered and refused to take or pay for said frames, and defendants notified plaintiff of such repudiation. but plaintiff did not procure other or further orders or canvass therefor, whereupon defendants ceased to use said trading stamps. The defendants received 23 books of said stamps and used 18 thereof. Judgment was for defendants for costs, and against their counterclaim for damages for loss of trade because of failure of plaintiff to carry out the contract.

Appellant contends that the contract is severable, and that plaintiff is entitled to a judgment for the 18 books at 50 cents per 100 on the findings made. We cannot agree with this contention. An examination of the entire scheme discloses that the purpose and intent of the contract as made was to secure a return to the defendants of all the moneys which they obligated themselves to pay to plaintiff, and thereby receive at no cost to themselves the advertising and patronage resulting from the scheme, while all the money profits went to the plaintiff. By the contract the signers of the orders were to bind themselves to trade $25 worth at defendants' store, pay $3 for the privilege, and receive nothing in return but the article which defendants now say was worthless. The merchant was to receive the benefit of the patronage secured by the scheme, and in return was to advance $175 to plaintiff, which he was in time to collect from the customer, be responsible for the balance of the $3 per frame, collect the same, and remit it to plaintiff. The reasons upon which the Supreme Court held the anti-trade stamp act unconstitutional would hardly apply to this scheme. Ex parte Drexel, 147 Cal. 763, 82 Pac. 429, 2 L. R. A. (N. S.) 5SS. Conceding, however, that public policy would not prevent a court of justice from enforcing such a contract if carried out in good faith, an examination of the findings requires the consideration of the further fact of the false and fraudulent alteration of the orders by plaintiff after procuring the signatures thereto. One of the moving considerations to defendants to enter into the contract was the sale of the frames at $3 each, that they might thereby get their money back. No such sales were made by plaintiff. Nothing was done by it to comply

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