is hereby ordered and adjudged that the said portion of said decree be, and the same is, hereby annulled accordingly. And it is hereby ordered and adjudged that until the further order of the court the defendant

hereby be, and he hereby is, wholly relieved and exempted from paying any sun whatever to the plaintiff as alimony or as allowance for her support." In thus "annulling" that portion of the decree the court exceeded its jurisdiction. The decree which was rendered in 1896 was a determination of the rights of the parties, and had become final, except as the power was reserved to the court by section 139 to modify "from time to time" that portion directing the payment of alimony. By that decree the court adjudged that the plaintiff was entitled to alimony from the defendant; but the effect of an order annulling this portion of the decree would be to vacate and set aside that portion of the court's adjudication, and leave the decree as if the court had omitted to make any provision for her support, and the parties would thereupon be in the position presented in Howell v. Howell, supra: whereas, the only authority given to the court by section 139 is to modify this portion of the decree "from time to time" as the court may deem just in view of any changed circumstances of the parties. The closing paragraph of the order by which the court orders that the defendant be "wholly released and exempted" from the payment of alimony "until the further order of the court" is inconsistent with the provision of the order annulling that portion of the decree which provides for the payment of alimony, but is in accordance with the provisions of section 139, and in direct harmony with the findings of the court.

7. The appellant has assigned as error many of the rulings of the court upon the admission of evidence at the hearing: but we are of the opinion that the appellant suffered no prejudice thereby, and that the conclusion of the court was in no respect affected by its rulings on such objections.

The cause is therefore remanded to the superior court, and that court is directed to modify its order by eliminating therefrom all the provisions purporting to annul any portion of the original decree of December 19, 1896, and, as so modified, the said order shall stand affirmed. Each party to pay its costs incurred upon this appeal.

We concur: HALL, J.; COOPER. J.

(7 Cal. Unrep. 275)

CROCKER et al. v. GARLAND. (Court of Appeal. Second District. California. July 9, 1906.)

1. NEW TRIAL-FINDINGS EVIDENCE.

Where, in an action against a broker for fraud in the sale of plaintiff's land, the findings, which were in favor of the defendant. were either in express conflict with the allegations of

87 P.-14

defendant's answer or were in conflict with the testimony, and there was also evidence opposea to the general finding, it was proper for the court to grant plaintiff a new trial.

[Ed. Note. For cases in point, see vol. 37. Cent. Dig. New Trial, §§ 135-143.] 2. APPEAL-NEW TRIAL-REVIEW.

The dis retion of the trial court in granting a new trial for insufficiency of the evidence will not be disturbed, except in cases of manifest abuse.

3. PLEADING--VARIANCE.

Where an objection to the sufficiency of the complaint to entitle plaintiffs to the profit made by defendant on a sale of certain property presented at most a mere question of variance, the court was authorized to disregard the same by Code Civ. Proc. § 469.

County: N. P. Conrey, Judge.
Appeal from Superior Court, Los Angeles

Action by Henry J. Crocker and others against William M. Garland. From an order granting plaintiffs' motion for a new trial. defendant appeals. Affirmed.

Clarence A. Miller and George J. Denis, for appellant. Hunsaker & Britt, Mastick, Van Fleet & Mastick, and Edward F. Treadwell. for respondents.

SMITHI, J. This is an appeal from an order granting the plaintiffs' motion for a new trial.

The suit was brought by the plaintiffs for damages for fraud of the defendant, committed by him while acting as their agent for the sale of the land described in the complaint. The nominal purchaser was Schweppe, with whom the defendant as plaintiffs' agent had made a contract of sale August 21, 1901. for the sum of $25,000, and to whom a deed of conveyance, executed to him as grantee by the plaintiffs and placed in escrow for delivery on receipt of the purchase money, was delivered on the 16th day of October. Schweppe had executed a prior unrecorded deed of the land to one Hinman; but the land was shortly afterwards reconveyed to him, and by him conveyed to one Earl by deed of date November 12, 1891. It is alleged in the complaint that Schweppe was not the real purchaser; that he was an intimate associate and blood relation of the defendant and Hinman, who was his fatherin-law, and by agreement with the defendant permitted him to use their names in the transaction, but that in truth they had no interest in the purchase, but took the deeds referred to for the use and benefit of the defendant; and that the defendant fraudulently represented to the plaintiffs that Schweppe was the real purchaser, which was believed by them. The answer of the defendant alleges, in effect, that the real purchaser of the property was the said Hinman, and that the deed was taken by Schweppe in trust for him and as his agent; that neither he nor any one except Hinman had any beneficial interest in such sale; that the entire purchase money of $25.000 was paid by Hinman; that the defendant had no interest whatever

in the said sale of the said property or any portion thereof; that the plaintiffs knew and had reason to believe that Schweppe was not in truth or in fact the real purchaser of the land, but knew that the real purchaser was some person living "at or near Dunkirk, the residence of Hinman"; and that Hinman was known to them as the real purchaser from and after October 14th. The sale to Earl, it appears from the defendant's evidence, included a lot adjoining the plaintiffs', standing in the name of Schweppe, but belonging to the defendant, who had paid therefor the sum of $14,000. The aggregate purchase money received for the two lots was $60,000, of which $30,000 was paid to Hinman and the balance retained by the defendant.

The case was tried by a jury, who rendered a general verdict for the defendant, with special findings on certain questions submitted to them, among which were the following: (1) That the defendant did not conceal from plaintiffs the name of the real purchaser of the property; (2) that prior to the closing of the sale the defendant had no agreement with Hinman to the effect that the defendant should have the profits which might be made upon a resale of the property over and above the sum of $5,000; (3) that the real purchaser of plaintiffs' property under the deed was Schweppe; and (4) that the plaintiffs, prior to the closing of the sale, did discover who was the real person to whom the property was being sold. On the motion for a new trial, these findings, as well as the general verdict, were attacked on the ground of insufficiency of the evidence to sustain them; and the motion for new trial was granted on the grounds, so far as the sufficiency of the evidence is concerned, (1) that the evidence was insufficient to support the special findings enumerated, and (2) that by reason of the insufficiency of the evidence to sustain the special findings, it was insufficient also to sustain the general verdict; and the question is whether, on the record before us, these rulings of the court can be sustained.

With regard to the special findings, the first and third of the findings enumerated are in conflict with the express allegations of the answer; the fourth, if it can be construed as referring to Hinman, is without any evidence to sustain it; and the second is in direct conflict with the testimony of the defendant, who admits that he did have such agreement with Hinman prior to the closing of the sale. It is clear, therefore, that as to these findings, the ruling of the court cannot be disturbed. With regard to the general finding, it may be inferred from the special findings that it was based on the assumed fact that Schweppe was the real purchaser; and upon this, indeed, is based the principal argument of the appellant on this appeal, which is, in effect, that the functions of the defendant as agent of the plaintiffs ceased upon the execution of the con

tract made by him with Schweppe on August 21st. But this argument assumes, not only that the contract was thus made to Schweppe as the bona fide purchaser, but that Schweppe continued to be ready and willing to perform the contract, and that in fact the deed was made to him as the real purchaser. But not only is this in conflict with the repeated and explicit allegations of the answer, but the evidence at least tends to show that the contract was in fact abandoned by Schweppe almost immediately after it was made, and that the defendant, after that, proceeded as the agent, not of Schweppe, but of the plaintiffs, availing himself of the contract with Schweppe merely for the purpose of gaining time to effect the sale at the price specified. The evidence may, indeed, be susceptible of a different construction; but, if it could be assumed that the issue was before the jury, a finding of the jury to the effect stated, approved by the court, would have been conclusive, and equally the action of the court in granting a new trial would be within its discretion. Here not only is the evidence bearing upon the question inconclusive, but the actual fact found by the jury and relied upon by the appellant is in conflict with the allegations of the answer. We do not doubt, therefore, that it was within the discretion of the lower court to set aside the general verdict on this ground. Nor upon a review of the evidence can we say, as a matter of law, that the court was not justified in granting a new trial on other grounds. We are of the opinion, therefore, that the order of the lower court must be affirmed, not only upon the special grounds above stated, but on the general ground that the discretion of the lower court in granting a new trial for insufficiency of the evidence will not be disturbed, except in cases of manifest abuse.

An objection is made by the appellant to the sufficiency of the complaint to entitle the plaintiffs to the profit made by the defendant by the sale of the property to Earl. But this, at most, was a mere question of variance, which it was within the right of the court to disregard (Code Civ. Proc. § 469 et seq.), and which in fact it did disregard in its instructions.

Other objections are urged to the instructions; but, as the case is presented to us, we do not deem it necessary to consider them. The order appealed from is affirmed.

tract is modified by parol, the statute is complied with by the subsequent execution of the contract as modified.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 283, 284.]

Appeal from Superior Court, Riverside County; J. S. Noyes, Judge.

Action by E. J. Oatman and others against R. A. Eddy and others. From an order denying plaintiffs' motions for a new trial, they appeal. Affirmed.

Purington & Adair, for appellants. Collier & Carnahan, for respondents.

SMITH, J. The suit was brought to recover the price of plaintiffs' orange crop, alleged to have been sold under a contract between plaintiffs and defendants, of date November 26, 1900, set out below. It was found by the court that the plaintiffs were indebted to the defendants in the sum of $1,509.05, as the balance due them for advances to plaintiffs over the receipts from sales and interest; and judgment was entered accordingly. The plaintiffs appeal from an order denying their motion for a new trial.

The contract referred to above is as follows: "Riverside, Cal., November 26, 1900. In consideration of the Highgrove Fruit Company having this day advanced us the sum of three thousand ($3,000) dollars, on our present orange crop at Highgrove, the receipt of which is hereby acknowledged, we have agreed for the handling of same through said. Highgrove Fruit Company on the following terms and conditions: We agree to pick and deliver our crop at Highgrove Fruit Company's packing house, fruit to be delivered at times mutually agreed upon. Highgrove Fruit Company agree to sell all fancy and choice grades oranges, at the ruling f. o. b. price at the time of shipment. Highgrove Fruit Company to receive for their services for handling and selling said crop fifty (50c) cents per box. Highgrove Fruit Company further agree to render account sales at time of shipment. Also agree to advance two thousand ($2.000) dollars on December 10th, 1900." There was sold under this contract, during the year 1900, 888 boxes of oranges, about which there is no dispute, and during the month of January and the first part of February, there was sold 2.094 boxes, about which there is no dispute, except that it is claimed by the appellants that the amount found by the court to have been received by the defendants was too little by $86.55; and on this point the finding seems to be sustained by the evidence. The principal, and, indeed, the only serious, question, therefore, is as to the oranges sold subsequent to the 25th day of March, 1901, amounting to 4,068 boxes. As to these it is found by the court: That prior to the 25th day of March, 1901, the original agreement was modified by an oral agreement between the parties, made at the request of the plaintiffs,

and afterwards fully executed, by the terms of which it was agreed "that said remaining oranges should be shipped east and sold at auction in the cities of New York and Boston"; that the oranges were sold at auction pursuant to this agreement, "and were not sold at ruling f. o. b. prices at Highgrove,” as stipulated in the original agreement; and that defendants received therefrom as net proceeds the sum of $1,326.34, and no more. This finding seems to be fully supported by the evidence; and, if we understand it rightly, the position of appellants is that a contract in writing can be altered only by a contract in writing, or by an oral agreement executed at the time of its inception. Civ. Code, § 1698. But we do not understand this to be the law, and are of the opinion that the provisions of the statute are complied with by the subsequent execution of the contract. We are also of the opinion that the modified contract took the place of the original contract, and that it was correctly construed by the court.

The order appealed from is affirmed.

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

(4 Cal. App. 90) JOHNSTON v. SUPERIOR COURT OF SACRAMENTO COUNTY.

(Court of Appeal, Third District, California. July 9, 1906.) PROHIBITION-GROUNDS FOR RELIEF-ADMISSION OF EVIDENCE.

Writ of prohibition will not lie to prevent a court, in a proceeding for appointment of an administrator, of which it has jurisdiction, admitting evidence on the issue of kinship, that deceased, to whom a petitioner for letters of administration was married, had not, at the time. of the marriage ceremony, mental competency to contract: this at most being error, for which appeal furnishes adequate remedy.

[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Prohibition, §§ 4-19.]

Petition by Josephine A. C. Johnston for writ of prohibition to the superior court of Sacramento county, P. J. Shields, Judge. Writ denied.

C. M. Beckwith and A. L. Shinn, for petitioner. White & Miller, for respondent.

MCLAUGHLIN, J. Petitioner and one Frank A. Edinger are rival applicants for letters of administration of the estate of William Johnston, deceased. The petition of Edinger was first filed, and it is therein alleged that the sole heirs at law of said deceased are two daughters and one son, all of whom have signed and filed a written request that he be appointed administrator. The petitioner, however, in her answer to Edinger's petition, and in her application for letters, alleges that she is the surviving wife of decedent, having been married to him about two months prior to his death. Edinger, in his answer to her petition for letters of

tive writ the medium through which appellate courts could exercise supervisory control over inferior tribunals acting within the scope of their legitimate powers. We are not unmindful of cases holding that prohibition will issue even where an appeal lies, if the delay incident to an appeal will result in irreparable injury or great and useless expense for which petitioner cannot be compensated. But in the case at bar none of these conditions are shown. The court has jurisdiction of the persons of the contending applicants for letters, and of the subject-matter of the contest, and even grossly erroneous rulings during the progress of the hearing cannot oust it of jurisdiction nor vest this court with arbitrary power to interfere with and direct the course of such proceedings. The contest must proceed even if the objectionable defense be eliminated, for the propriety and relevancy of other questions raised by Edinger's answer stand unchallenged. The delay incident to such contest, and a probable or possible appeal from the order the court may make at its close, cannot be avoided, and there is no apparent reason for holding that this case falls within the exception to the general rule forbidding interference by prohibition unless urgent necessity demands such course. The writ is denied.

JONES et al. v. DEARDORFF et al. (Court of Appeal, Third District, California. June 23, 1906.)

CHIPMAN, P. J. Action to quiet title. It is alleged in the complaint that plaintiff Mrs. Jones is the owner, as her separate estate, of section 4, township 19 S., range 22 E., in Kings county, and also of all water ditches passing across said land, except what is called the "Settlers Ditch"; that defendants claim some interest or estate in said premises, namely, the right to run water over said land in ditches now existing on said land, but that said claim is without right, etc.

Defendants in their answer deny that plaintiff Mrs. Jones is or ever was the owner of the water ditch mentioned in the complaint; allege that in 1897 one Mary Kirkendall was the owner of said land and at the same time one Mary Deardorff, wife of Samuel Deardorff, was the owner of the north half of section 8 in said township and range, and that defendant, together with one Oscar Deardorff, are now the owners thereof; that said Mary Kirkendall conveyed in said year by deed a right of way for a lateral ditch through her said land from the said Settlers ditch, for the benefit of said land in said section 8, which deed was duly acknowledged and recorded; that immediately thereafter said Samuel and Mary Deardorff constructed a ditch along the right of way so deeded, and that "ever thereafter until about the first of January, 1904, they and their successors and grantees of said land in said section 8 maintained and used said ditch in conveying water to and upon said land"; that said deed provided that said ditch should be used to convey water to the lands in both said sections. A prescriptive right to said right of way is also pleaded; defendants also

REVIEW.

3. SAME-APPURTENANT EASEMENT - DEEDSCONSTRUCTION.

A deed providing that the grantee should not use an irrigation ditch except to convey water to the north half of a certain section for use thereon, unless by the consent of the grantor, created an easement which, by use became appurtenant to such section, and was not a mere easement in gross personal to the grantee. [Ed. Note. For cases in point, see vol. 17, Cent. Dig. Easements, §§ 8-12.]

Appeal from Superior Court, Kings County; M. L. Short, Judge.

Action by Mrs. A. B. Jones and another against John Deardorff and another. From a judgment for defendants, plaintiffs appeal.

Affirmed.

of cross-complaint defendants set forth the facts as above stated in their answer; alleged that large and valuable crops of alfalfa and pasturage are produced on said section. by defendants by means of said ditch and that the water carried through said ditch is essential to the growing of said crops; alleged that in January, 1904, plaintiffs against the will of defendants wrongfully placed obstructions in said lateral ditch and diverted defendants' water therefrom to their irreparable damage; and they pray, among other things, for an injunction restraining plaintiffs from further interference in the said ditch.

Answering defendants' cross-complaint, plaintiffs deny most of its allegations; allege that the said deed executed by Mary Kirkendall contained the following provision, to wit: "The said water ditch is not to be used by S. F. Deardorff except for conveying of water to the N. 1 of Sec. 8, said township and range, for use therein without the consent of myself, nor for conveying water to any other person without my consent" and that "such consent was never obtained from Mrs.

ning in said lateral ditch should be used by