use; the right of the city to erect the proposed library on the public park to be limited to its use solely for public library purposes. The judgment is reversed, and the cause remanded for a new trial.

scription of the property an exception which, if inserted, would have excluded from the description certain territory embraced within the lines of a tract described in the deed by metes and bounds. The court found that

We concur: SHAW, J.; ANĠELLOTTI, J.; SLOSS, J.; MCFARLAND, J.; BEATTY, C. J.; HENSHAW, J.

(150 Cal. 21)

LOS ANGELES & R. R. CO. et al. v. NEW LIVERPOOL SALT CO. (L. A. 1,657.) (Supreme Court of California. Oct. 11, 1906.) 1. REFORMATION OF INSTRUMENTS LEASE CONSTRUCTION-MISTAKE.

A lease granted premises. described on a blue print attached. reserving from the said "leased premises" that portion lying between the tracks of the L. Railroad, as shown on such blue print, and also reserving a strip of land 10 feet on either side of said railroad tracks. Another clause granted the lessee an option to purchase the said "leased premises' at a certain price. Held, that the saving clause was not a reservation of an easement merely, but reserved from the operation of the lease the fee of the portion reserved, and, such reservation having been omitted from a deed executed on the exercise of the option, the grantor was entitled to have the mistake corrected.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42. Reformation of Instruments, §§ 69-71.] 2. SAME-DEFENSES-NEGLIGENCE.

A lease, having attached thereto a plat of the premises, contained an option for sale, on the exercise of which the plat and lease were sent to an abstract company by the grantor's attorney with instructions to prepare a certificate of title, and also a description for insertion in the deed. The description written on a slip of paper was returned to the attorney. but, in some unexplained manner, an exception or reservation mentioned in the lease was not inserted in such description, and with this mistake it was copied into the deed by the typist. Held, that the negligence was not so gross as to constitute a neglect of legal duty, or forfeit the right of either party to relief from the mistake by reformation of the deed.

Department One. Appeal from Superior Court, Los Angeles County; D. K. Trask, Judge.

Bill by the Los Angeles & Redondo Railroad Company and others against the New Liverpool Salt Company. From a judgment and from the order denying a new trial, defendant appeals. Affirmed.

Purcell Rowe and J. S. Chapman, for appellant. Borden & Carhart, for respondents.

SHAW, J. This is an action to correct a mistake in a deed executed by the plaintiffs to the defendant. The plaintiff Redondo Improvement Company was merely a nominal party to the deed as well as to this action. In mentioning the plaintiff in this opinion, we refer only to the railroad company.

The mistake alleged to have been made consisted of the failure to insert in the de

judgment for the reformation of the deed as prayed for. The principal contention upon the appeals, which are taken from the judgment and from the order denying a new trial, is that the evidence does not sustain the finding or judgment. In July, 1901, the plaintiff executed to the defendant a lease, for the term of seven years, upon certain described property. The lease contained a clause to the effect that, at any time during the term the defendant, at its option, might purchase of the plaintiff the leased premises for the price of $12.500. In May, 1902, the defendant elected to buy the property in pursuance of the option. The deed in controversy was executed in compliance with the obligation to convey, which, by the exercise of the option, became operative and binding upon the plaintiff. There is no pretense on the part of the defendant that there was any new or additional agreement, or modification of the old agreement, whereby the plaintiff became bound to convey any other property, or greater quantity of land, than was embraced in the option. The claim of the defendant is that there was no mistake; that the option covered the entire tract of land, including that reserved or excepted from the description in the lease, and that it was, therefore, in precise accord with the intention of the parties and necessary in order to comply with the option agreement, that the space of ground reserved from the operation of the lease, should be conveyed to the defendant upon the exercise of the option, and that the exception, or reservation, which constituted part of the description in the lease, was purposely and properly omitted from the deed. Unless this construction of the option contract is correct, there can be no doubt that there was a mistake, and that the evidence

amply supports the findings and judgment.

We are of the opinion that the option cannot be so construed. The description of the land leased is as follows: "Situate at Redondɔ Beach in the county of Los Angeles, state of California, and being a portion of the property known as and called the 'Pacific Salt Works Tract,' a portion of said tract hereby leased being more specifically delineated and described upon the blue print hereunto attached and made a part hereof, the said. leased premises being inclosed in red lines upon said annexed blue print and consisting of two parcels, the larger of which contains, as shown upon said blue print, 17.07 acres of land and the smaller of said parcels, as shown upon said blue print, containing 2.31 acres of land; saving and reserving from the said leased premises that portion thereof lying between the tracks of the Los Angeles & Redondo Railway Company, as shown on said

foundation for the defendant's contention that the evidence is insufficient to prove a mistake in the preparation and execution of the deed. It is not important to determine whether it was a mutual mistake, or a mistake of plaintiff alone, known or suspected by the defendant. The complaint was in two counts and alleged the mistake in both forms. either was proven the plaintiff was entitled to the relief given.

If

The claim of the defendant that the term "leased premises" in the option clause was therein used in the same inaccurate sense which appears to have been given to it where it is used in the reservation clause in the description, and, consequently, that the option covered the entire area inclosed in the red lines, including the railroad tracks, is shown to be untenable by the context, the surrounding circumstances and the conduct of the parties, as well as by the natural meaning of the words. Conditions in the lease require the lessee to "maintain on said leased premises" the present salt plant, and also require of the lessee a certain method of operation of the "leased premises," and provide that, upon a breach of the conditions, the lessor may resume possession of the "leased premises." In each of these instances the phrase does not embrace the excepted area. The lessee did not take possession of the railroad tracks, and claimed no right to do so, until long after the execution of the deed in question, and the lessor operated the tracks continuously during the whole of the intervening period. The short section of the tracks included within the red lines was but a small part, in length, of the spur tracks of the plaintiff, and was absolutely necessary to the use of the part extending beyond these lines and which would be cut off from connection with plaintiff's main line if plaintiff were prevented from crossing the land with its cars. Its traffic over these spur tracks was important and valuable. The short pieces of track within the red lines would be of no substantial value to the defendant. The saving clause in the description is not a reservation of an easement, merely, over a part of the leased premises. Its effect is to save and except from the operation of the lease the fee of the area' between the tracks and for 10 feet on each side of the center thereof, and hence the lease did not transfer any estate in that part of the space inclosed in the red lines. That space formed no part of the leased premises, and was not covered by the option clause giving the right to purchase the premises actually leased. Sears v. Ackerman, 138 Cal. 586, 72 Pac. 171; Butler v. Gosling, 130 Cal.

There is no merit in the objection that the mistake was due to the forgetfulness of the attorneys and officers of the plaintiff who drew and executed the deed, or by their neglect in failing to compare the description in the deed as prepared, with that in the lease. The course of decision in this state has not been entirely consistent on the general subject of the effect of neglect as a reason for refusing relief in equity. The decisions in Hawkins v. Hawkins, 50 Cal. 558, Senter v. Senter, 70 Cal. 619, 11 Pac. 782, Metropolitan L. A. v. Esche, 75 Cal. 513, 17 Pac. 675, and Crane v. McCormick, 92 Cal. 181, 28 Pac. 222, are cited by defendant as authority for the proposition that a written contract will not be reformed in equity on the ground of mistake at the instance of a party who neglected to read the instrument when he had a full opportunity to do so before its execution, and the defect is of such a character that he could easily have discovered it if he had read it with attention. The cases do not sustain the proposition to the full extent necessary to its application to the present case, although some expressions might seem to go so far as that. Hawkins v. Hawkins was criticised and explained in Wilson v. Moriarity, 88 Cal. 213, 26 Pac. 85. It was not. technically, a suit to correct a mistake in the written contract for the sale of the grain in question. It was an action to cancel the writing and to recover a balance due on the alleged previous verbal contract of sale. The preliminary statement of facts, made by the reporter, if correct, would seem to make a clear case of mistake of one party known to the other, in which case, under the principles stated in sections 3399 and 3402 of the Civil Code, the plaintiff might have had the written contract corrected, and might have recovered the balance that would be due according to its terms as revised. Such relief was not asked, and the opinion, which is very general in its terms, seems to treat the cause of action as one founded upon alleged fraud, and applies the principle that, before entering into a contract, one must use the opportunities open to him to discover the facts affecting it, and, if he negligently fails to do so, he cannot obtain relief from the fraud which, by his neglect, he suffered to be practiced upon him. It does not hold that the failure to read a contract with sufficient care to perceive a mistake in its terms will, of itself, prevent relief by way of a correction of the mistake. In Senter

of the defendant to plaintiff concerning the same, and was held that the plaintiff was entitled to have the correction made. Hawkins v. Hawkins is cited and is declared to be not in point. In Metropolitan L. A. v. Esche, the alleged mistake was made by sureties in a bond for the performance by the principal of certain duties to the obligee during a term of office. The obligee was not aware of any mistake on the part of the sureties, and accepted the bond and allowed the principal to continue in its service upon the faith of it. There was, therefore, neith er mistake nor fraud of which the sureties could complain. Crane v. McCormick was a similar case and the facts were declared not to make out a case of mutual mistake.

It has been frequently decided that the mere failure of a party to read an instrument with sufficient attention to perceive an error or defect in its contents will not prevent its reformation at the instance of the party who executes it thus carelessly. In Higgins v. Parsons, 65 Cal. 280, 3 Pac. 881, the plaintiff signed a contract believing that it contained a certain stipulation agreed

The defendant knew that it did not contain the stipulation and also knew that the plaintiff believed that it did. The plaintiff had an opportunity to read the contract before signing. It is said that the conditions on which a contract may be reformed are specified in section 3399 of the Civil Code, and that, as that section does not authorize the refusal of such relief because the party asking it might have discovered the mistake before signing, the court is not at liberty to exact such diligence as a condition. Perhaps the court there should have added that the carelessness did not constitute a neglect of legal duty, within the meaning of section 1577 of the Civil Code. In Wilson v. Moriarity, 88 Cal. 213, 26 Pac. 85, it was held that the neglect of the plaintiff, when the lease was read to her by the notary, to pay sufficient attention to discover that it was for 10 years, instead of five years, as she supposed, was not sufficient to defeat her action for its reformation in that particular. In Sullivan v. Moorhead, 99 Cal. 159, 33 Pac. 796, the deed was executed in compliance with a previous contract of sale, and in that respect it was similar to the case at bar. The contract was for the sale of lots 10, 11, 12, and 13 in

certain block. The deed described the land as lots 10, 11, 12, and "a part of 13." The plaintiff read the deed, but did not observe the variance. The court said: "The fact of his having read the instrument would not prevent the court from finding that it was made under a mistake." There are many authorities from other states to the effect that a written contract will be corrected in equity, although the mistake was patent on the face of the document, and

tention. Albany C. S. I. v. Burdick, 7 N. Y. 46; Story v. Gammell (Neb.) 94 N. W. 982; Andrews v. Gillespie, 47 N. Y. 487; San Antonio v. McLane (Tex.) 70 S. W. 201; Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Lloyd v. Phillips (Wis.) 101 N. W. 1092; Taylor v. Glen. Falls I. Co. (Fla.) 32 So. 887; Kilmer v. Smith, 77 N. Y. 226, 33 Am. Rep. 613; Synder v. Ives, 42 Iowa, 162.

There was, it is true, some negligence on the part of the plaintiff in the case at bar. But it was an inadvertence of a character which will sometimes occur in the conduct of men of prudence and caution. The plat and lease were sent to an abstract company by plaintiff's attorney with instructions to prepare a certificate of title and also a description for insertion in the deed. This was done, and the description, written on a slip of paper, was returned to the attorney, but in some way not explained the exception mentioned in the lease was not inserted therein. It was copied into the deed by the typewriter in this erroneous form. The attention of all the parties was particularly directed to other features of the transaction and to other parts of the description, the omission of the exception clause was not observed by any of them, and all signed the deed believing that the description therein was the same as in the lease. The negligence was not so gross as to constitute a neglect of legal duty, or forfeit the right of either party aggrieved to relief from the mistake.

The judgment and order denying a new trial are affirmed.

We concur: ANGELLOTTI, J.; SLOSS, J.

(150 Cal. 31) BELL V. SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO et al. (S. F. 4,591.) (Supreme Court of California. Oct. 11, 1906.) COSTS-TAXATION OF COSTS-PROCEEDINGSSTATUTES.

Code Civ. Proc. 1034, provides that a party claiming costs awarded to him by the appellate court must deliver to the clerk of the court below a memorandum of his costs, etc. Section 1033 provides that a party claiming costs on recovering a judgment, must file and serve a memorandum thereof on the adverse party, and if the latter is dissatisfied with the costs claimed, he may move to retax them. Held, that a party seeking to have costs, awarded generally in the appellate court, taxed in the lower court, must comply with the provisions of section 1033 with respect to the service of notice on the adverse party, as otherwise section 1034 would be violative of Const. art. 1, § 13, providing that no person shall be deprived of his property without due process of law, which means a notice and an opportunity to be heard in the matter in which the judgment follows. Shaw, J. dissenting.

In Bank. Writ of Review to Superior Court, City and County of San Francisco; J. C. B. Hebbard, Judge.

Petition for a writ of review by Teresa Bell against the superior court of the city and county of San Francisco and another. Writ dismissed.

T. Z. Blakeman, for petitioner. Edmund Tauszky and Wallace A. Wise, for respondents.

LORIGAN, J. This is a petition for a writ of review. On November 19, 1904, in the case of Teresa Bell v. Mary E. Pleasant et al., on appeal to this court, the judgment and order of the superior court, denying the motion of plaintiff for a new trial, was reversed (Bell v. Pleasant, 145 Cal. 410, 78 Pac. 957, 104 Am. St. Rep. 61), and the cause remanded to the superior court for a new trial, with costs allowed said plaintiff on appeal. On the day plaintiff filed the remittitur from this court in the superior court, she also filed in said court a memorandum duly verified of her costs on said appeal, amounting to the sum of $269.50, and subsequently had an execution issued thereon as upon a judgment, as provided by seetion 1034 of the Code of Civil Procedure. Upon the issuance of said execution, the defendants served and filed a notice of motion in said action for an order of the superior court striking from the files thereof the memorandum of costs of plaintiff, and to vacate and annul the said execution. Said motion was based upon the ground that neither said memorandum of costs allowed on appeal, nor notice of the filing thereof had ever been served upon defendants, and supported the motion by an affidavit showing the fact of such nonservice, which was not controverted. Upon the hearing the superior court made an order granting said motion. and struck out said memorandum of costs, and vacated and annulled said execution. Thereupon this proceeding was commenced by plaintiff to have these orders of the superior court, striking out said memorandum of costs and quashing said execution, set aside and annulled as in excess of its jurisdiction.

Proceeding now to a consideration of the matter on its merits. In the chapter in the Code of Civil Procedure on "Costs," it is provided by section 1033 thereof, stating its provisions generally, that a party in whose favor judgment is rendered, and who claims costs, must file and serve a verified memorandum thereof upon the adverse party within a given time, and that if the party so served is dissatisfied with the costs claimed, he may, within a certain time, move to retax them. Section 1034, immediately following, provides that "whenever costs are awarded to a party by an appellate court, if he claims such costs, he must, within thirty days after the remittitur is filed with the clerk below, deliver to such clerk a memorandum of his costs, verified as prescribed by the preceding section, and thereafter he may have an execution therefor as upon a judgment." It will be observed that this

latter section does not, in terms, provide for service of any notice on the adverse party relative to such memorandum, and it is insisted by petitioner that, as he complied literally with the provision of that section by filing his cost bill within 30 days after the filing of the remittitur, that is all that the law required of him, and he was entitled to execution; that not only is no notice required to be given by that section. but that the section itself contains no specific provision for retaxing costs, and that if illegal or excessive items of costs are charged, application must be made to this court for relief, or an independent action in equity be brought for that purpose. But this court has nothing to do with the particular items of costs to which a party may be entitled under a judgment rendered therefor by this court. The effect of our judgment is simply that a party is entitled to costs. What they are, the specific amount which he would be entitled to have fixed or allowed therefor, are matters to be determined by the trial court to which the cause is remanded, or to which the remittitur runs. The determination of that court on the subject necessarily constitutes the definite and specific judgment concerning which the general right to recover was declared by this court. There is no provision of law authorizing this court to tax or retax the costs it allows on appeal from a judgment, or order of the superior court, either reversed or affirmed. That is a matter solely for consideration in the lower court.

And, it is true that section 1034 does not provide for any right of the party against whom costs are claimed to have them retaxed. The section, as literally construed, provides neither for a notice of the filing of the cost bill, nor for any right to the adverse party to be heard concerning the legality or propriety of any of the items in it. And herein rests the vice of the section if it is to be construed as contended for by plaintiff, that there is no provision in the law requir ing notice of the filing of the memorandum, or affording defendants a right to be heard concerning its items, because, under such circumstances, costs are imposed and the judg ment for them obtained without affording any right or opportunity to defendants to be heard in the matter. Any and all kinds of illegal and excessive charges may be made. No authority is conferred on the court by the section to revise them. The memorandum is simply filed with the clerk, and execution therefor may immediately be issued and the property of defendants taken upon such execution under judgment for costs obtained against them without notice. It hardly needs to be suggested that if the section in question is to be so construed, that it is violative of the constitutional provision (Const., art. 1, § 13) that no person shall be deprived of his property without due process of law which is held to mean upon notice and an opportunity to be heard in the matter

before it for consideration.

It is suggested. too, that the section itself was notice to the defendants that within 30 days after the filing of the remittitur the plaintiff might file a memorandum of costs, and that it was the duty of defendants to look out for such filing, and, if they questioned the items of the memorandum, to file a motion to retax costs. But, if we assume that the section is itself notice, still the constitutional objection is not obviated, because there is nothing contained in section 1034 conferring any right upon the adverse party to question the tax bill, by either a motion to retax, or in any other manner. He is given no right whatever to be heard, assuming that the section gives notice. He is given only a partial measure of his constitutional rights—notice—but the right to be heard before a judgment which may deprive him of his property on execution thereunder is made is not given him at all. Hence the claim of petitioner as to the section giving notice, does not obviate the constitutional difficulty, which the failure to confer any right upon the adverse party to be heard, presents. In view of our discussion so far, relative to section 1034 alone, this situation presents itself, that, while this court is authorized under the law to award costs upon appeal, and the lower court to which our mandate runs, is the tribunal where they are to be specifically ascertained, yet the judgment of this court as to such award is rendered ineffectual because no provision is made, in the section in question under which such costs are to be ascertained, for notice to the party sought to be charged with their payment, or an opportunity afforded him to be heard in the lower court relative to them; in effect that if the right of the prevailing party to have his costs on appeal fixed and an execution issued therefor depends solely upon the provisions of section 1034, then no such right exists, as the section is unconstitutional on account of its failure to provide for notice and an opportunity for the adverse party to be heard. It is with extreme reluctance that courts feel constrained to hold any law unconstitutional, and only do so when no other alternative presents itself whereby it can be avoided. In the present case, however, we think that it can be avoided by treating sections 1033 and 1034 -sections found in the general chapter on "costs"-as analogous, as was done by the Supreme Court of Montana, where kindred

In the state of Montana the Code of Civil Procedure there, in the general chapter concerning costs, contains provisions identical with the sections of our Code above referred to, and the same question presented here was presented to the Supreme Court of that state in a proceeding similar to this. Section 1867 of the Montana Code corresponds with section 1033 of ours, and the Montana Code section 1869 with section 1034 of this state. The same point was raised in the Supreme Court of Montana as raised here, namely, that section 1869 of the Montana Code (section 1034 of ours) in failing to provide for notice to the adverse party of the filing of the memorandum of costs and providing an opportunity for him to be heard relative thereto, was unconstitutional as depriving one of his property without due process of law. In discussing the points the court there said: "We do not think it necessary to hold section 1869 unconstitutional. The chapter of which this section is a part has to do with costs and the mode by which they may be collected. Section 1867 points out the mode to be pursued for the collection of costs in the district courts, and also in original proceedings in this court; at least it does not in terms apply to district courts exclusively. Section 1869 points out the mode by which they may be collected when awarded on appeal; but we think that all the analogies, as was stated in State ex rel. Hurley v. District Court, supra, 27 Mont. 40, 69 Pac. 244, require notice of the claim to be given under the provisions of section 1867, or that they should be denied. While the exact point now before the court was not raised in State ex rel. Hurley v. District Court, supra, yet what was there said as to the necessity of notice was not impertinent, and is wholly applicable in this case. This rule must govern or the conclusion is inevitable that section 1869 is invalid, and that parties have no means provided by which they may collect costs awarded to them by this court on appeal. Section 1867 clearly does apply to proceedings in this court in some respects. We think it must be held to apply also to the method of claiming in the district court costs awarded by this court on appeal, and that the method pointed out must be pursued, else the court has no power to settle controversies in any manner concerning them. * * * Costs, as costs, are allowed only by statute and can be collected only by the method pointed out by the statute. Citing authorities. When, therefore, the party claiming costs has failed to claim them as directed by the statute, his right to them has not attached, and the court has no other power in the premises than to strike out and disallow them on motion of the adverse party. For these reasons we think that the district court, in proceeding to tax and allow any portion of the bill in controversy, was wholly without jurisdiction,