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they pray for relief in accordance with the denials and averments of their answer.

Upon the issues thus made the cause was tried to the court without a jury, and a great deal of evidence was taken on the trial. Judgment was entered in favor of the plaintiff, from which judgment this appeal is taken. As this action is based upon the contract and declaration of trust hereinbefore set forth, we will first consider the duties assumed by Clarence Cunningham in the execution of said contract. However, before taking that up in detail, we will state some of the facts that appear from the record. On May 15, 1900, an option for the purchase of certain mining claims, including at least a part of those mentioned in said contract, was given by the defendant Kerns and the said Elom, now deceased, to Clarence Cunningham, for $12,000. A considerable amount of work was done upon said claims under this option by Cunningham and his associates. By mutual consent that option was terminated, and in October, 1900, a new contract was entered into. Under the new contract work continued during several months. Thereafter, in February, 1901, said Elom died, and after his death the contract sued on herein was entered into. It appears that this last contract was really a continuation of the two former ones, excepting that it was on more liberal terms. At the time the first contract was entered into Cunningham had associated with him several persons, residing in Spokane and elsewhere, who carried on the work and development of said mining claims as an association doing business under the name of the Olympia Mining Company. It appears that the work under the first two contracts was practically continuous up until the time of entering into the contract sued on herein. The defendant Kerns was aware of the fact that Cunningham had associates connected with him in said matter, and, we think, understood that these associates were assisting Cunningham in the payment of the development work done on said mines, and that Cunningham and his associates expended something over $21,000 in such development work; and it also appears that Kerns subscribed for 10,000 shares of the stock of said corporation, to be thereafter formed, at 10 cents per share, and paid the sum of $50 on such shares, leaving a balance of $950 owing to said corporation.

It is contended, in limine, by counsel for respondent, that, as some of the questions raised on the rehearing were not raised on the original hearing, they cannot now be considered. In reply to this we say that the rehearing was granted generally, and upon no specified points or questions, and therefore any questions that could have been properly raised on the original hearing could be presented on the rehearing. But, as we understand the record, the appellant Kerns did raise the questions referred to on the first hearing. As we view this case, we need only

pass upon, in this decision, a few of the errors assigned.

Counsel for appellant first contend that the judgment and decree of the lower court does not provide a specified time in which respondent shall pay to appellant the sum of $900, the balance due on the purchase price, and turn over to him 100,000 shares of stock, and that it does not provide that respondent shall proceed to work, prospect, and develop their property in dispute until the proceeds of the 900,000 shares of stock at 10 cents per share shall have been expended. On an examination of the judgment, we find that it provides in part as follows: "It is further ordered, adjudged. and decreed that the defendant Abner G. Kerns, upon delivery to him by the plaintiff of the $900 due under the contract herein, with legal interest from the time the same became due until May, 1905, and upon the delivery to said Kerns of one hundred thousand (100.000) shares of the capital stock of said plaintiff corporation, paid up to the amount of 10 cents per share, do forthwith execute and deliver to the plaintiff, Olympia Mining Company, a good and sufficient deed conveying to said plaintiff an undivided three-fourths interest in and to the said above described mining claims; that, in the event of his failure to execute and deliver such conveyance within 30 days after the entry of this decree, then and in that event Stanley P. Fairweather, Esq., clerk of this court, and, in case of his death or inability to act, then his successor in office, is hereby appointed as a commissioner of this court, and as such commissioner is hereby ordered and directed in the name of the defendant to execute and deliver to the plaintiff a deed conveying to it the said three-fourths interest in said mining claims above described. And it is further ordered and adjudged that said deed of said commissioner, when executed and delivered, shall have the same force and effect as though executed by the defendant."

It will be observed that that provision of the judgment or decree is not in accordance with the terms of the contract sued on, which contract is above set out in full in this opinion. Under that provision of the decree it is provided that Kerns, upon the payment to him by plaintiff of $900 and the delivery to him of 100,000 shares of the capital stock of said corporation, "paid up to the amount of 10 cents per share," should forthwith execute and deliver to the plaintiff a good and sufficient deed to an undivided three-fourths interest in the mining claims mentioned, and that, in the event of his failure to do so within 30 days after the entry of the decree, then in that event the clerk of the court should make such conveyance. Of course, the decree provides that Kerns shall make such deed upon the payment of said sum of money and the delivery of said shares of stock; but it provides that, in case he fails to execute and deliver such deed within 30 days after the

entry of this decree, the clerk shall execute the deed, regardless of whether said $900 had been paid and said 100,000 shares of stock delivered. For that reason said provisions of the judgment are not in accord with the covenants in said contract. Said judgment provides that the respondent shall deliver to Kerns 100,000 shares of the capital stock of said corporation, "paid up to the amount of 10 cents per share," while the contract provides that said corporation shall deliver to Kerns one-tenth of its capital stock, which, on the basis of 1,000,000 shares, would be 100.000 shares, and provides as follows: "Which stock shall be fully paid up and nonassessable until after all of the other ninetenths of the stock have paid 10 cents per share to said corporation for the development of said mining claims." It will be observed, from this provision of the contract, that the 100,000 shares of stock to be delivered to Kerns was to be fully paid up-not, as provided in said decree. "paid up to the amount of ten cents per share," but fully paid up and nonassessable until all of the other nine-tenths of the stock have paid 10 cents per share to said corporation for the development of said mining claims. Under the decree the 100,000 shares of stock to be delivered to Kerns were to be paid up to the amount of 10 cents per share, when under the contract it was to be fully paid up and nonassessable until all of the other ninetenths of the stock had paid 10 cents per share in assessments toward the development of said mining claims. If Kerns' stock was to be paid up to the amount of 10 cents on the share only, the par value being $1. it would leave his stock at the mercy of the "mutatious whims" of the other stockholders in creating indebtedness in the operation and development of said mines; and, if they failed to pay any and all indebtedness incurred in the development of said mines up to $90,000, the creditors could recover of Kerns to the extent of 90 cents per share on his stock, as the stock mentioned in said decree is only paid up to the extent of 10 cents per share.

We held in the former opinion that under the provisions of said contract Cunningham had obligated himself to organize the corporation referred to in said contract, and that the organization of the respondent corporation was a sufficient compliance with said provisions. The provision of said contract in that regard is as follows: "Whereas, It is the desire of the parties hereto to purchase the interest of said estate in said properties, if the same can be bought for a reasonable sum and upon reasonable terms, for the purpose of consolidating all of the interests therein, and forming a mining corporation to prospect, develop and work said mining claims." Under the provisions of that clause of the contract it was the desire of the "parties" thereto to form a corporation, and the clear inference therefrom is 91 P.-7

that the "parties" were to form a corporation, and the "parties" were Kerns and Cunningham. Now, it appears from the record that Kerns was not consulted in any manner in the formation of the foreign corporation, the Olympia Mining Company, and that said corporation was organized under the laws of the state of Washington; and it is earnestly contended by counsel for respondent Kerns that the organization of such corporation is not in compliance with said terms of the contract. It appears from the record that Kerns insisted that the corporation should be organized under the laws of the state of Idaho, and thereby become subject to the jurisdiction of the courts of this state, the same as a private individual. Under the provisions of the contract Kerns had a right to insist on the organization of such corporation under the laws of the state of Idaho. That being the conclusion we have reached after a careful consideration of this case on the petition and arguments on the rehearing, the decision of that question ends this case; for, until a corporation is organized in compliance with the provisions of said contract, neither Cunningham nor the respondent corporation can enforce the provi. sions of said contract against Kerns. Until a corporation has been organized under the provisions of the contract, and has fully complied with the terms and provisions of said contract, the contract cannot be enforced against Kerns. As that is a controlling question in this case, it is not worth while for us to consider the other questions raised.

Under the provisions of this agreement Kerns was entitled to the same voice as Cunningham in the organization of the corporation. It is true that it would take more than two persons to organize a corporation under the laws of this state, or, for that matter, under the laws of Washington. Still, had the corporation been organized in compliance with the provisions of this agreement, Kerns would have been entitled to a voice in the selection of the other directors and incorporators, and he would also have been entitled to a voice in determining where the corporation should be organized, whether it should be a domestic or foreign corporation. Again, after the organization of the corporation, under the cumulative method of voting stock at stockholders' meetings (article 11, § 4, Constitution), Kerns might have been able to name at least one director, and would by this method have been enabled to have a continuing voice in the business and affairs of the corporation. While it is true the contract does not provide in terms that the corporation to be organized should be a domestic corporation, at the same time the appellant had reserved to himself by the terms of the contract as much power and authority and an equal voice with the other party to the contract. The corporation could not own any property, and had no corporate

stock to be represented by stockholders until after it was organized. Therefore Kerns would have had as much power and authority in the matter of the organization as Cunningham, even though Cunningham and his associates were to own nine-tenths of the capital stock after the organization. The contract is not one providing for Cunningham and his associates to organize a corporation, but for Cunningham and Kerns to organize a corporation. A corporation organized under the laws of Washington, with its principal place of business in Spokane, and its corporate stock books in a foreign jurisdiction, is not the kind of a corporation and the kind of protection that Kerns would likely have sought or availed himself of, where he was turning over all his property to the corporation and in turn taking a minority of the stock. The courts of Idaho could not reach the books and officers for the purpose of ordering a specific performance in directing issuance of stock, or requiring performance of work, or directing, supervising, or ordering assessments.

It is next urged that the judgment does not bind or obligate the plaintiff to the defendant Kerns, or to any of the defendants. to perform its contract with Kerns, or to pay the $3,300 and interest to the Federal Mining Company, and that the evidence shows that the defendant Kerns could not maintain an action in Idaho against the plaintiff for the specific performance of the contract. Counsel for respondent declares this proposition to be absurd, for the reason that respondent has an agent in Idaho authorized to accept service of process, and has mining property in this state in which it has invested over $21,000, and that ought to be ample to make such judgment collectible. Counsel thus concedes that for a complete settlement of this matter it will require further litigation, and that this judgment does not settle all of the rights of the parties in the subject-matter of this litigation. It is certainly cold satisfaction to the appellant to be informed that he may proceed and get judgment for the amount of money due him and a decree for the delivery of the 100.000 shares of stock. It is clearly evident that the judgment is far short of what it ought to have been. The respondent should have been compelled to keep its tender of the $900 and 100.000 shares of stock good. The contract clearly contemplates the performance of development work on said mining claims to the extent of $90,000, and it is admitted by counsel for respondent, in his brief filed the 2d day of April, 1907, that neither that amount nor no part of it has been expended in the development of said mines, by stating that said corporation had invested over $21,000 in said mining claims, which amount, the record shows, was invested long prior to the commencement of this suit. Under this judg ment the respondent, a foreign corporation, is not required to pay to the appellant Kerus

at any certain time the $900, with interest thereon. It is not required to deliver to said Kerns one-tenth of its capital stock, which stock should be fully paid up and nonassessable until after all of the other nine-tenths of the stock has paid 10 cents per share to said corporation for the development of said mining claims. The provisions of the contract on which this action is based require those things to be done, and the judgment utterly fails to give Kerns the relief he is entitled to in this suit, if he is compelled to perform his part thereof.

The judgment entered in this case does not conform to the provisions and requirements of the contract entered into between the appellant and Cunningham, and we have concluded that it should be reversed, and a new trial granted. We are not in a position to direct a judgment in this case. It has now been more than a year since the case was tried in the lower court, and while it has been suggested, and even shown by affidavit, that no attempt has been made on the part of this respondent to comply with the terms of the decree, still the matter is not presented here in such a manner as to justify us in ordering a judgment thereon. The conduct of the respective parties since the entry of this decree with reference thereto, and also touching the subject-matter and under the contracts which were the basis of this action, will be proper subjects for consideration, and they will necessarily influence the trial court in the further proceedings had herein.

The judgment is therefore reversed, and the cause remanded, with direction to the trial court to take such further action in the matter. in harmony with the views herein expressed as to the law of the case, as may seem proper under any additional showing that may be made. Costs awarded in favor of appellant.

AILSHIE, C. J., concurs.

(151 Cal. 407) COSGRIFF v. BOARD OF ELECTION COM'RS OF CITY AND COUNTY OF SAN FRANCISCO et al. (L. A. 1.982.)

(Supreme Court of California. June 19, 1907.) 1. TIME-COMPUTATION-EXCLUDING FIRST OR LAST DAY-ELECTIONS-FILING CERTIFICATE OF NOMINATION.

Pol. Code, § 1192, as amended in 1901, provides that certificates of party nominations may be filed not less than 20 days before the day of election. Held, that a certificate of party nominations offered for filing on October 17th, containing the names of persons to be voted for at an election on November 6th, was in time. 2. ELECTIONS-ACCEPTANCE OF CERTIFICATE FOR

FILING.

Where a certificate of party nominations was presented to the registrar of voters after the hour prescribed by law for closing his office, but before it was closed, it was his duty to receive and file it.

In Bank. Application for a writ of mandamus by E. H. Cosgriff, to compel the board of election commissioners of the city and county of San Francisco and G. P. Adams, registrar of said city and county, to receive and file in the registrar's office a certificate of nominations. Granted.

Page, McCutchen & Knight, for petitioner. Thos. V. Cator, for respondents.

SHAW, J. This is an original proceeding in mandan us to compel the board of election commissioners of the city and county of San Francisco, and G. P. Adams, as registrar of voters of said city and county, to receive and file in the registrar's office a certificate of nominations of certain persons as candidates of a political party, styling itself in said certificate the "Nonpartisan Judicial Party," to be voted for at the election in November, 1906, for the offices of justices of the superior court and justices of the peace of said city and county, and to compel said board and registrar to place the names of said candidates upon the official ballots to be used at said election, as party candidates, in a party column under said party name. The cause was decided for the petitioner by this court in October, 1906, and a peremptory writ was issued at that time, as prayed for.

The certificate of nomination, duly verified, with the requisite number of signatures of electors thereto, was duly presented to the registrar for filing on October 16, 1906, after 5 o'clock in the evening. It was again duly presented on October 17, 1906, during the usual and lawful business hours. The offer of October 16th was refused, because it was made after 5 o'clock in the afternoon, and that of October 17th, because, as it is claimed, it was not made within the time limited by law. It is provided in section 1192 of the Political Code, as amended in 1901, that being the law in force in 1906, that certificates of party nominations not made by a party convention, but by electors signing the same and designating themselves as a political party with a specified party name, may be filed "not more than 50 days nor less than 20 days before the day of election."

The word "days," as here used, refers to a day as a unit of time, and not as an aggregation of a certain number of hours, minutes, or seconds. In this sense, and for the purpose thus used, a day is not capable of subdivision into hours, minutes, or seconds, but is to be taken as a whole. In such computations the hours are not counted to ascertain whether a period of 24 hours, or a given number of such periods, have elapsed between the act to be done and the day from which the time is to begin running. The fractions of the days are no more taken into consideration than are the fractions of the seconds. The consequence is that every day, and every part of that day, is, by this rule,

one day before every part of the succeeding day. The last moment of any day is, in contemplation of law in such cases, one day before the first moment of the next day, although the elapsed time is infinitesimal. The rule is strictly one of convenience. Any other method of computation would require an accurate account to be kept of the exact hour, minute, and second of the occurrence of the act to be timed, would produce endless confusion and strife, and would prove impolitic, if not wholly impracticable. By the method stated, it is clear that the offer of October 17th was in time. Manifestly, on that theory, the 5th day of November would be one day before the 6th day of that month, and not less than one day before, since the number 5 is one less than 6. So, by counting the consecutive days backward from November 6th, it will be found that October 17th was 20 days, and if 20 days, then not less than 20 days before November 6th. This is what is contemplated by section 12 of the Political Code, declaring that in computing time by days the first day is to be excluded and the last day included. Excluding November 6th, the first day, we find October 17th, to be the twentieth day, or the last day of the period, and as it is to be included in the count, it must be counted as part of the period. Thus, it makes the full number of 20 days before the day of the election, and it cannot be "less than 20 days before" that day. This application of the rule is well established. Misch v. Mayhew, 51 Cal. 514; Hagenmeyer v. Mendocino Co., 82 Cal. 217, 23 Pac. 14; Derby v. Modesto, 104 Cal. 522, 38 Pac. 900: Bates v. Howard. 105 Cal. 182, 38 Pac. 715; Bellmer v. Blessington, 136 Cal. 4, 68 Pac. 111; Hannah v. Green, 143 Cal. 21, 76 Pac. 708.

The petition is in two counts. The first count presents the single question whether or not the offer of the certificate after 5 o'clock in the afternoon of October 16th was a lawful offer with respect to the time of the day at which it was made. A separate general demurrer to this count was filed, and the disposal of this demurrer renders it necessary to decide the question. While we do not hold that the registrar would be required to keep his office open for such business after the hours prescribed by law, yet we have no doubt that, in cases like this, where the political rights of citizens are involved, if he does keep his office open after those hours, it is his duty to receive and file such a document, though presented after the lawful hours. The certificate should have been received and filed when offered, and the names of the candidates should have been placed on the ballots as party nominations, in a party column, under the designated party name.

We coneur: BEATTY. C. J.; McFARLAND. J.; LORIGAN, J.; SLOSS, J.; HENSHAW, J.; ANGELLOTTI, J.

(151 Cal. 458) LAMBERSON v. SUPERIOR COURT OF TULARE COUNTY et al. (L.

A. 2,013.)

(Supreme Court of California. June 25, 1907.) 1. CONTEMPT-MISCONDUCT IN PRESENCE OF

COURT.

An attorney, presenting to the judge in open court a scandalous affidavit in support of an application for a change of judges, commits contempt in the presence of the court, within Code Civ. Proc. § 1211, providing that, where a contempt is committed in the presence of the court, it may be punished summarily, etc., notwithstanding section 1209, subd. 12, defining contempt, so that the court may proceed summarily or by citation to show cause, and may allow a showing in defense, extenuation, or mitigation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Contempt, § 142.]

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A party after obtaining a new trial on appeal for error in rulings at the trial presented an affidavit in support of an application to change judges. The affidavit declared that the party believed that the judge's rulings were made willfully and corruptly, and that the party believed that the judge knew that such rulings were erroneous, etc. Held, that the affidavit constituted contempt of court on the part of affiant, notwithstanding Code Civ. Proc. § 170, subd. 4, acthorizing the filing of affidavits in support of a motion for a change of judges on the ground that the party cannot have a fair and impartial trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Contempt, § 9.]

4. SAME MISCONDUCT AS OFFICER OF COURT. An attorney, who knowingly presents on behalf of his client an affidavit containing averments attacking the integrity of the judge and containing defamatory matter, is guilty of contempt.

In Bank. Application for a writ of prohibition by Charles G. Lamberson against the superior court of the county of Tulare and another. On disagreement of the judges of the District Court of Appeal, the proceedings were certified to the Supreme Court. Writ discharged.

Alfred Daggett, for petitioner. W. B. Wallace, in pro. per.

HENSHAW, J. Petitioner was and is the attorney at law of John Bashore, who is plaintiff in two actions pending before the superior court of Tulare county. John Bashore made application for a change of judges in these actions, supporting his application by his own affidavits, verified before petitioner as notary public, and by petitioner filed with and presented to the court. Two of these affidavits were filed in connection with separate applications for change of

judges in one of the cases, while the third was presented in support of the application for a change of judges in the other case. Both actions are still pending. The first two applications were met with counter affidavits and denied. The third affidavit contained substantially all of the alleged defamatory and contemptuous matter embodied in the preceding affidavits, and went even further in attacking the integrity of the judge. Upon presentation of this last affidavit, the judge, believing that he could not with self-respect longer sit at the hearing of these causes, announced that John Bashore could have a change of judges in any case pending in his court, whether theretofore denied or not, upon application, and without the filing of any affidavit. He then issued a citation to petitioner to show cause why he should not, as the attorney for John Bashore, and as an officer of the court who had presented these scandalous affidavits, be punished for contempt in so doing. This citation to show cause set forth at length the proceedings had in the matter and the language of the affidavits which the court regarded as unwarranted, contemptuous, and deliberately designed to bring into disrepute himself, as judge, and the court over which he presided. Petitioner then applied for and obtained from the district court of appeal an alternative writ of prohibition. The questions involved were considered by that tribunal, and, upon disagreement of the judges, the proceedings were certified to this court.

Dealing first with the questions of procedure which petitioner presents, this contempt (assuming for the moment that a contempt was actually committed) was one which took place in the immediate view and presence of the court, and the citation to show cause, which was timely made, did not require an affidavit to support it. The second and third affidavits were filed and presented to the judge in open court. In McCormick v. Sheridan (Cal.) 20 Pac. 24, an attorney had presented to this court a petition for a rehearing, whose language reflected upon an opinion written by one of the commissioners. Some days thereafter, when the matter of the petition had come under review, an order was issued from this court, which order was in fact a citation directed to the offending attorney, and commanding his presence to show cause why he should not be punished for contempt. A hearing was had, and this court declared: "Upon the facts contained in the petition for rehearing, and quoted above, we adjudge the respondent Waterman guilty of contempt, committed in the face of the court." In re Foote, 76 Cal. 543, 18 Pac. 678, declares merely that in contempt proceedings, which contempt consisted of contumelious language addressed to the judge in the trial of a cause, an order adjudging an attorney in contempt made 50 days thereafter and in his absence, and without citation or notice to him of any kind, was improper,

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