says, 'She commenced shooting,' and he says, 'I threw up my hands and hollered, "for God's sake stop. You have shot me now;" and he says, 'I was retreating back in the bedroom as fast as I could,' and he says, 'She kept on shooting and me bleeding.' He was just merely relating what he had related to Connelly and myself. She turns right around to me and looks at me and says: 'Yes,' she says, 'he ought to have stopped when I told him to.' I don't know but what that is about all of the story."

It is the contention of counsel for the appellant that the admission of these recitals in evidence was error. They argue, first, that it was not shown that they were madein the presence or hearing of the respondent, or, if in her hearing, that they were not made under such circumstances as called for a denial upon her part; and second, that if any part of it was admissible the court opened the door too wide, in that he permitted the witnesses to recite statements denunciatory of the appellant which could not have been evidence against her even had the person making the statements been upon the witness stand himself.

But, before discussing these objections, it is necessary to notice for a moment the legal aspects of the question. Counsel for the state contend broadly that any statement or declaration of the person injured made to a third person, in the presence or hearing of the accused, either charging him directly with the crime or pertaining to matters otherwise relevant to the issue, if not denied by the accused, may be given in evidence against him as an admission on his part. On the other hand, the appellant contends that the mere presence or hearing of the accused is not alone sufficient to render the evidence admissible, but the statements must relate to the matter at issue, must be addressed to the accused, or made under such circumstances as would ordinarily and naturally call for some action or reply from persons similarly situated, and that, if the condition be one of doubt as to whether a reply should or should not have been made, the evidence should not be received. There are cases which support the respondent's contention many of which are collated in its brief. But we think the better authority is with the appellant. Greenleaf, in his work on Evidence, while stating that admissions may be implied from the silent acquiescence of a party in the statements of another, adds that nothing can be more dangerous than evidence of this kind, and that it should always be received with caution, and never received at all unless the evidence is of direct declarations of that kind which naturally calls for contradiction, and then makes this general observation: "The evidence, consisting as it does in the mere repetition of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own

meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say." Greenleaf on Evidence (14th Ed.) § 200. In 1 Encyclopædia of Evidence, p. 367, the rule is stated as follows: "So the silence of a party when a statement is made in his presence against his interest, and is heard and understood by him, and is made in such way as to call upon him to deny it, if untrue, and the facts are within his knowledge, and the statement is made under such circumstances as naturally to call for a reply, amounts to an admission of the truth of the statement made, and may be sufficient to establish the fact as against him." In People v. Koerner, 154 N. Y. 355, 374, 48 N. E. 730, 736, the rule is stated as follows: "That, under some circumstances, admissions by a party may be implied from his acquiescence in the statement of others, is an established principle of the law of evidence. A party's acquiescence, to have the effect of an admission, must exhibit some act of voluntary demeanor or conduct. When the claimed acquiescence is in the conduct or in the language of others, it must plainly appear that such conduct or language was fully known and fully understood by the party before any inference can be drawn from his passiveness or silence. Moreover, the circumstances must not only be such as afforded him an opportunity to act or to speak, but also such as would properly or naturally call for some action or reply from men similarly situated. Declarations or statements made in the presence of a party are received in evidence, not as evidence in themselves, but to ascertain what reply the party to be affected makes to them. If he is silent when he ought to have denied, the presumption of acquiescence arises. But it is clearly otherwise when his silence is of a character which does not justify such an inference. Thus, when a person is asleep, or intoxicated, or deaf, or a foreigner unable to understand the language employed, he cannot be prejudiced by statements made by others in his presence. Nor is such silence an assent, unless the statements were such as to properly call for a response." See, also, Davis v. State, 131 Ala. 10, 31 South. 569; Ackerson v. People, 124 Ill. 563, 16 N. E. 847; Commonwealth v. Brown, 121 Mass. 69: People v. O'Brien, 68 Mich. 468, 36 N. W. 225; State v. Swisher, 186 Mo. 1, 84 S. W. 911; Phelan v. State, 114 Tenn. 483, 88 S. W. 1040; People v. Amaya, 134 Cal. 531, 66 Pac. 794; and in this court the question suggested, while it has not been before us in the form here presented, is not entirely new. In Miller v. Territory, 3 Wash. 554, 19 Pac. 50, where it was shown that the accused when arrested and charged with the murder of one of his neighbors displayed some agita

tion, and afterwards, when brought into presence of the body of the murdered man and accused directly of the crime, made no answer, but turned away, and refused to again look upon the corpse, the court said that there was nothing in the defendant's conduct "which the most ingenious imagination could torture into an incriminating act." In State v. McCullum, 18 Wash. 394, 51 Pac. 1044, the defendant was jointly informed against with one Wilson for having burglarized a saloon building and stealing therefrom a quantity of cigars. On his trial an officer was permitted to testify that Wilson made a confession to him implicating McCullum; that he had McCullum and Wilson brought before him, when Wilson repeated his statement, and that McCullum when asked what he had to say concerning it said there was nothing in it. It was held error to admit this testimony, the court saying: "The fact that in this case Wilson's statement was made in the presence of the appellant and directed in part to the appellant did not thereby render it admissible. The fact that it was so made loses force when we come to consider that appellant was not voluntarily present did not acquiesce in it, and was obliged to remain and listen to it whether he would or not." And in McCord v. Seattle Electric Co. (Wash.) 89 Pac. 491, it was held that the statement of a third person concerning who was to blame for a street collision, made to the plaintiff while she was recovering from the shock of the accident, was not admissible as an admission by her, since under the circumstances she could not reasonably have been expected to reply to it.

Adopting the rule contended for by the appellant, it is plain that she has just cause for complaint against the broad ruling made by the trial court. All that the deceased said concerning the shooting itself and its immediate cause, his conduct and the conduct of the appellant while it was going on, in fact, anything related by him that might properly be said to be a part of the res gestæ, while the parties were in the position described by the witness Connelly, was properly admitted. The position of the parties at that time was such that it can be said that the statements were made in the presence of the appellant, and the circumstances were such that she might reasonably have been expected to reply, had she not intended to acquiesce in them. But this is as far as the statements were admissible. Anything said by him after the witness Steele left the room, closed the door between the two rooms, and engaged the appellant in conversation could not be admissible. Even if she could under those circumstances hear if she listened acutely the recitals made by the deceased, clearly the circumstances excused her from replying to them. The statements were not addressed to her, neither were they made in her presence. She could not be certain that Steele heard them, and it is too much to

say that she ought to have opened the door and denounced them as falsehoods, or that she should have interrupted her conversation with Steele to declare to him their untruth if she did not intend to acquiesce in them.

We think, too, that the second ground of the appellant's objection is well taken. Both the prosecuting attorney and the trial judge seem to have proceeded on the theory that anything said by the deceased at this time touching his relations with the appellant was admissible as an admission on her part. The questions propounded to both Connelly and Steele, it will be noticed, called for the entire recital made by Mr. Baruth, regardless of its relevancy to the question in hand. The witnesses were permitted to detail his statements concerning the appellant's conduct towards him at other times than at the time of the shooting, the fact that he was at one time possessed of considerable property which he lost through her misconduct, and even the expressions of malice and hatred the deceased made against her. made against her. Manifestly this was improperly admitted. Her conduct towards him at other times than at the time of the shooting as related by these witnesses could hardly have been admissible as evidence had the deceased himself been on the stand, testifying for the state, much less was it admissible when its only relevancy rests on the assumption that the appellant admitted the truth of the recitals by her silence. The statement concerning the loss of his property was irrelevant for any purpose, and his expressions of malice and hatred towards the witness, while perhaps harmless under normal conditions, were here highly prejudicial. since the recitals under the circumstances detailed by the witnesses took on the guise and solemnity of dying declarations, while they were, in fact, nothing more than the rancorous expressions of a partisan, bent on justifying his own conduct, and condemning that of his assailant. The recitals should have been confined to what was said concerning the immediate offense. See People v. Smith, 172 N. Y. 210, 231, 64 N. E. 814.

The appellant called as a witness one Dr. Byrne, and proceeded to interrogate him concerning the character of the wounds received by Baruth, whether or not they were mortal, or of such a nature as to necessarily cause death. On an objection being interposed, the appellant's counsel stated that he purposed to show "that the wounds received by the deceased as proven in this case were not mortal wounds; that the best authorities state that in wounds of the upper arm death results in approximately 1 per cent. of the cases; that septicemia or blood poisoning is not the usual or necessary consequence of bullet wounds; that the Welch or gas bacillus does not of itself cause death, and that, if it was present in the wound, it would have shown in the internal organs of the deceased; and that the treatment afforded the deceased by the physicians in charge was not the best

It

medical treatment." On this statement being made, the court excluded any further evidence concerning the nature of the medical treatment, to which ruling the appellant duly excepted and assigns the same as error. is at once manifest that the statement of counsel, even if proven, would afford no defense to the crime charged against the appellant. Where one unlawfully inflicts upon the person of another a wound calculated to endanger or destroy life, it is no defense to a charge of murder where death ensues to show that the wounded person might have recovered if the wound had been more skillfully treated. Even unskillful or negligent treatment of the wound on the part of the wounded person or his physicians which may have aggravated the wound and contributed to the death does not relieve the assailant from liability. He must show that the negligent and unskillful treatment was the sole cause of death, before he can escape the consequences of his unlawful act on this ground. State v. Edgerton, 100 Iowa, 63, 69 N. W. 280; State v. Landgraf, 95 Mo. 97, 8 S. W. 237, 6 Am. St. Rep. 26; Daughdrill v. State, 113 Ala. 7, 21 South. 378; Sharp v. State, 51 Ark. 147, 10 S. W. 228. 14 Am. St. Rep. 27; State v. Strong, 153 Mo. 548, 55 S. W. 78; Denman v. State, 15 Neb. 138, 17 N. W. 347; Wharton on Homicide (3d Ed.) § 35. Measured by this test, the court did not err in excluding the proofs offered. These proofs did not tend to show that the subsequent treatment of the wound was the sole cause of the death, but that the treatment was unskillful, and, at most,' only contributed thereto. This did not constitute a defense.

The remaining assignments of error require no separate consideration. The legitimate evidence was sufficient to make a case for the jury, and no error was committed by the court in refusing to sustain the appellant's challenge thereto. Nor can we consider the assignment based on the failure of the court to give cautionary instruction concerning the evidence, relating to the appellant's admission by silence. While doubtless cautionary instructions would have been proper, yet none were requested by the appellant, and it is the rule in this state that even positive errors must be called to the attention of the trial court, and that court given a chance to correct them before they can be available here.

For the error above noticed, the judgment is reversed, and a new trial granted.

HADLEY, C. J., and RUDKIN, CROW, ROOT, DUNBAR, and MOUNT, JJ., concur.

(152 Cal. 31)

MANNIX v. TRYON et al. (Sac. 1,507.) (Supreme Court of California. Sept. 19, 1907.) 1. APPEAL NOTICE-ADVERSE PARTIES - WIIO ARE-STATUTORY PROVISIONS.

Under Code Civ. Proc. § 940. providing for the service of notice of appeal on the adverse

party, persons whose interest in the subjectmatter is determined by the judgment appealed from, and which interest will be injuriously affected by its reversal, are adverse parties.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 2137, 2138.] 2. COURTS--JURISDICTION-MECHANICS' LIENS -AMOUNT IN CONTROVERSY.

When the superior court acquires jurisdiction by the filing of a suit to enforce a lien of mechanics' and others, under the statute relating to such liens, it has jurisdiction to render judgment for the amount claimed, though less than $300 and though the right to a lien is denied.

3. APPEAL-NOTICE-ADVERSE PARTIES.

Code Civ. Proc. § 940. require the service of a notice of appeal on the adverse party. Section 1193 provides that, where a lien is filed on an indebtedness due from the original contractor to the lien claimant, the original contractor shall defend at his own expense; that during the action the owner may withhold from the contractor the amount for which the lien is filed; that on judgment against the owner or his property he shall be entitled to deduct the amount thereof from any sum due the contractor; and that, if the judgment exceed the amount due, he may recover the excess from the contractor. In an action to enforce a mechanics' lien, a personal judgment for $178 was rendered against defendant contractor, a lien on the lot of the owner being decreed, with a provision for the sale thereof, and a deficiency judgment against the contractor if the proceeds of the sale were insufficient to pay the judgment. Held that, on appeal by the owner, the contractor was not an adverse party on whom a notice of appeal should have been served.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 2138.]

4. CONTRACTS-SUBCONTRACTORS.

A subcontractor is not bound by the terms of the original contract where the same are not embodied in the contract between him and the original contractor.

5. SAME-WARRANTIES.

Under Civ. Code § 1770. providing that one who manufactures an article under an order for a particular purpose warrants by the sale that it is reasonably fit for that purpose, a contractor who uses the materials called for by the specifications in plastering the walls of a building. and does the work according to the contract, is not liable under an implied warranty that the walls should be white.

In Bank. Appeal from Superior Court, Sacramento County; J. W. Hughes, Judge.

Action by D. J. Mannix against William M. Tryon and another. From the judgment, defendant Tryon appeals. Modified, and, as modified, affirmed.

See 84 Pac. 278.

A. L. Shinn and R. L. Shinn, for appellant. R. Platnauer, for respondent.

LORIGAN, J. This is an action to foreclose a mechanic's lien. The defendant Tryon, owner of a lot in the city of Sacramento, contracted with the defendant Harris to erect a three-story building according to certain plans and specifications. The plaintiff, as a subcontractor, entered into a contract with the original contractor, Harris, to do the plastering and hard finish work according to said specifications, and, claiming to have per. formed it, and that a balance of $178 was due

him therefor, filled a lien and commenced this action against the original contractor and the owner of the lot to enforce its payment. A personal judgment was rendered in favor of plaintiff against the original contractor, Harris, for the amount claimed, and it was then further decreed in the judgment that a lien on the lot of the defendant Tryon existed in favor of plaintiff for said amount, provided for a sale of the lot and the application of the proceeds to the payment of the judgment, and, in the event that the proceeds were insufficient for that purpose, that there be "docketed a judgment against the defendant J. E. Harris for the amount of such deficiency which may remain unpaid on the judgment of plaintiff, and that plaintiff have execution against the defendant for the amount thereof." The defendant Tryon appealed from the judgment, a bill of exceptions accompanying his appeal therefrom, and served his notice of appeal on the plaintiff alone. The notice of appeal given by defendant Tryon was only intended to embrace an appeal from the judgment in so far as it affected him by decreeing a lien upon his property, providing for the sale thereof and application of the proceeds to the satisfaction of the claim of plaintiff. The original contractor, Harris, against whom the personal judgment was entered, took no appeal, nor was any notice of appeal served on him by the appellant Tryon. The District Court of Appeal for the Third Appellate District, before which this matter came up originally, dismissed the appeal on motion of respondent, on the ground that Harris, the original contractor, was an adverse party within the meaning of section 940 of the Code of CivProcedure, and should have been served with notice of appeal; that he was interested in maintaining the judgment of lien; that a reversal of the judgment in that respect would be against his interest; and, not having been served with such notice, the court was without jurisdiction to determine the appeal on its merits. A petition by appellant for a further hearing and determination of the cause before this court was granted, and upon the hearing here the motion to dismiss the appeal is renewed and submitted with the submission of the cause upon its merits.

The rule, of course, is that, in order to confer jurisdiction upon an appellate court to entertain an appeal, all adverse parties-parties to the controversy whose interests would be injuriously affected by a reversal of the' judginent-must be brought before the court. Persons whose interest in the subject-matter is determined by the judgment appealed from, and which interest will be injuriously affected by its reversal, are adverse parties within the meaning of section 940 of the Code of Civil Procedure upon whom notice of appeal must be served. It is said "an adverse party to an appeal means the party whose interest in relation to the subject of the appeal is in conflict with a reversal of the order

or the decree appealed from, or the modification sought by the appeal." Randall v. Hunter, 69 Cal. 80, 10 Pac. 130; Green v. Burge, 105 Cal. 52, 38 Pac. 539, 45 Am. St. Rep. 25; Pacific Mut. Life Ins. Co. v. Fisher, 106 Cal. 224, 39 Pac. 758; Mohr v. Byrne, 132 Cal. 250, 64 Pac. 257.

If this is the relation which the original contractor, Harris, bears to the appeal, if his interest in the judgment appealed from is such that its reversal will injuriously affect him, then as an adverse party he should have been served with the notice of appeal. Respondent insists that such is his relation to it, his contention being that it is to the interest of the original contractor that the judgment of the trial court establishing the lien should stand, because, by enforcing the lien against appellant's property, a sufficient sum might be realized through a sale of it to fully discharge the indebtedness due to plaintiff and relieve the original contractor from all obligation to plaintiff; that to reverse the judgment so as to defeat the lien would deprive the original contractor of such advantage under the judgment establishing it, and leave him subject to have the personal judgment recovered against him enforced under execution. In this view, it is insisted by respondent that, as the original contractor will be injuriously affected in his interest if it is reversed, it was essential that notice of appeal be served upon him.

The position of appellant is that a reversal of the judgment so far as the lien is concerned, which alone is involved on this appeal, cannot injuriously affect the original contractor; it being asserted that, if the lien be eliminated from the judgment by a reversal, the effect would be, although no appeal was taken by the original contractor therefrom, to destroy the personal judgment against him; that within the doctrine of Miller v. Carlisle, 127 Cal. 327, 59 Pac. 785, the jurisdiction of the superior court to entertain this action as the claim was for less than $300, depended solely on the assertion of the right of lien and its establishment by that court. and, if it should be determined upon this appeal that there was no lien, then as the amount of the claim asserted was less than $300 the superior court had no jurisdiction to enter a personal judgment against the original contractor for $178; that the personal judgment is void and falls with the reversal of the judgment establishing the lien ou which jurisdiction of the superior court in the cause alone depended. And it is further insisted by appellant that even if, as claimed by respondent, the personal judgment against the contractor is a valid one which would be unaffected by this appeal, the contractor could not be prejudiced by a reversal of the judgment establishing the lien; that the liability of the contractor for the full amount of the claim is fixed by it, and such liability would not be affected whether that portion of the

judgment establishing the lien be reversed or affirmed.

Un

It is only proper in connection with this statement of appellant's position to say that when his briefs were filed and the case of Miller v. Carlisle was cited and relied on in support of that position, the case of Becker v. Superior Court (Cal.) 90 Pac. 689, had not been decided. In this latter case a conclusion was reached that the rule stated in Miller v. Carlisle was not the correct one, but, on the contrary, the true doctrine is that when the superior court acquires jurisdiction by the filing of a suit to enforce a lien of mechanics and others, under the statute relating to such liens, it has jurisdiction to render a personal judgment for the amount claimed, although the right to a lien is denied and the amount claimed is less than $300. We mention this in justice to appellant, while at the same time a reference to this latter case of Becker v. Superior Court shows that the personal judgment entered against the original contractor in this case is a valid, subsisting judgment, which, as it is not appealed from, stands unaffected or unaffectable by any action which this court may take on the appeal of appellant involving the validity of the lien. der this personal judgment, the primary obligation to pay the amount due plaintiff is fixed upon the original contractor; such primary obligation being secured by a lien enforced against the property of the owner. This being the condition and effect of that judgment, it will be seen upon a little reflection, and consideration of the record before us on its merits, that it can be of no moment to the contractor whether upon this appeal of Tryon, the owner, it be determined the lien is valid or invalid-whether the judgment as to it be affirmed or reversed. say, upon the record before us, because it is upon an examination of that record in connection with the rights of owners charged with a lien as against original contractors under the mechanic's lien law, that we feel satisfied warrants a conclusion that no right of the original contractor here can be affected adversely or at all by a reversal of the judgment as to the lien. It, of course, appears from the record before us that the primary obligation to pay the indebtedness for which the judgment was obtained was upon the original contractor. He was personally responsible to the subcontractor for the payment of the claim under his contract with him. The law merely gave the subcontractor. in default of payment by the contractor, a right of lien against the owner's property enforceable by foreclosure to secure the payment which the contractor was primarily obligated to make. But the law also (section 1193, Code Civ. Proc.) provides that, where a lien is filed against the property of the owner on an indebtedness due from the original contractor to the lien claimant, the original contractor shall defend against any action

brought thereon at his own expense; that during the pendency of the action the owner may withhold from the contractor the amount of money for which such lien is filed; that, in case of judgment against the owner or his property upon the lien, he shall be entitled to deduct from any amount due the contractor the amount of such judgment and costs. and, if the amount thereof shall exceed the amount due by the owner to the contractor. or if he has settled with the contractor in full, he shall be entitled to recover back from he contractor any amount paid by him in excess of the contract price and for which the contractor was originally the party liable.

It appears from the record here that there is in the hands of the appellant, owner of the lot, over $1,900 due from him to the original contractor. Under these circumstances, while it may be said theoretically and on the face of the judgment itself that the contractor would be benefited by having the judgment of lien stand and satisfaction of the claim of plaintiff had by a sale of the owner's property, yet, practically and by vir tue of the section of the Code referred to, no advantage or benefit accrues to him at all thereby. In any event-reversal or affirmance his primary liability for payment of the claim to plaintiff remains unaffected under the personal judgment obtained against him. Under any theory he can only claim that he would be injuriously affected by a reversal because under the judgment as it stands he is benefited by the enforcement of the lien. But, under the section of the Code referred to and upon the record, this theory is illusive. If the judgment establishing a lien stands and is enforced by a sale of the property, or is discharged by the owner through payment of the judgment, the owner is entitled to reimburse himself from the moneys in his hands due the contractor, which in this particular case the record shows are ample for that purpose. All this being true, it is obvious that in this particular case on a consideration of the motion on the merits of the appeal neither an affirmance nor a reversal of the judgment so far as it establishes a lien against appellant's property could be of any advantage to the original contractor. If it were reversed, he would be still liable under the personal judgment against him, which is unaffected by this appeal, and under which the primary liability on his part to plaintiff is fixed, and, if it were affirmed, the owner would have the right, which in this case could be effectively exercised of reimbursing himself or discharging the judgment as a lien against his property from moneys in his hands due the original contractor, or could pay the judgment in discharge of the lien to the subcontractor directly. Under this view, it appears to us that it is a matter entirely immaterial to the original contractor whether it be decided on appeal that the portion of the judgment decreeing a lien be valid or in