excepted. and now assigns such ruling as error. The defendant thereupon filed an amended answer properly verified, upon which the application was subsequently heard and judgment rendered in his favor. A motion by the plaintiff for judgment upon the pleadings is in the nature of a demurrer to the answer (Taylor v. Palmer, 31 Cal. 240); and if, upon the hearing of the motion, it is made to appear to the court that the defect in the answer is owing to any oversight or misprision on the part of the defendant, or that the defect can be so remedied as to present an issue to be tried and determined, it is within its discretion to permit an amendment that will obviate such defect (Fitzgerald v. Neustadt, 91 Cal. 600, 27 Pac. 936). The discretion of the court is at all times properly exercised by allowing parties to so frame their pleadings that the controversy between them may be determined. upon its merits: and the rule is equally applicable whether the objection arises by reason of the failure to verify a pleading, or in the mode in which the defense has been pleaded. Whenever such defect is pointed out, and the defendant satisfies the court of his ability to obviate it, the court should grant him leave therefor (Kelley v. Kreiss. 68 Cal. 210. 9 Pac. 129: Guidery v. Green, 95 Cal. 630, 30 Pac. 786).

2. The finding that the appellant ceased to be qualified to discharge the duties of his office on July 15, 1900, has no support in the facts upon which the cause was submitted. ilis arrest and confinement on that day upon a charge of felony did not of itself operate as a disqualification, and would not have the effect to create a vacancy in the office until his conviction upon such charge. As he was never tried upon the charge, and consequently never convicted of the felony. and the charge was subsequently dismissed by the court without any hearing thereon, it must be assumed for the purposes of this case that he was innocent of the offense for which he was arrested. The ground upon which the respondent chiefly relies in support of the judgment is the finding of the court that "the office became vacant and said plaintiff ceased to be such constable on the 15th day of October, 1900, and was not such constable at any time between the 1st day of April, 1901, and the 15th day of August, 1902." It is, however, one of the agreed facts that from the time of the dismissal of the charge against him June 26, 1902, until the 16th day of August, 1902, he performed the duties of constable of that township. His performance of the duties of the office during this period of time, in the absence of any contrary showing, must be assumed to have been by virtue of his right thereto. Whether the duties of the office were performed by any one in his behalf or at all during the period of his confinement in the county jail is not stated in the agreed facts, and is not found by the court; but it

is stated therein that the board of supervisors did not at any time after his original appointment to the office take any action declaring said office vacant, or ousting the plaintiff from said office, and that the plaintiff never resigned his position or voluntarily ceased to perform any of the duties of the office. It may therefore be assumed that there was no other incumbent of the office during the period of his confinement. To the extent, therefore, that the court finds that the appellant was not constable during the period between his discharge June 26, 1902, and August 16, 1902, the finding is not sustained by the agreed statement of facts. The finding of the court that "the office became vacant and the plaintiff ceased to be such constable on the 15th day of October, 1900" is based upon the provision of section 996 (7) of the Political Code, that an office becomes vacant by the "ceasing of the incumbent to discharge the duties of the office for the period of three consecutive months except when prevented by sickness, or when absent from the state by permission of the Legislature"; and it is urged that inasmuch as the appellant was continuously held in confinement at San Jose for a period of more than three consecutive months from the date of his arrest, he of necessity ceased to discharge the duties of his office during that period, and therefore at the expiration of three months from his arrest his office ipso facto became vacant. We are of the opinion, however, that this is not a proper construction to be given to this provision of the section, but that, in order to create a vacancy in the office. the cessation to discharge its duties for the designated period must be the voluntary act of the incumbent. The section provides for many of the contingencies upon which a vacancy will be created, and it will be noted that with the exception of the death of the incumbent each of these contingencies contemplates some proceeding against him, in which he will have an opportunity to controvert the ground on which the vacancy is claimed, or some act initiated by himself and voluntarily carried into effect. It is in harmony with the other provisions of the section that, in order to create a vacancy in the office, the cessation to discharge its duties for the period of three consecutive months must have been voluntary on his part, and we hold that such construction must be given to the provision. The provision is to be likened to a case of nonuser or abandonment of the office which, in the absence of any statutory provision, would be a ground for declaring a forfeiture of the office. The period during which such abandonment or nonuser must continue is fixed by the Code at three consecutive months, but as the term "abandonment" of itself implies a volition on the part of the incumbent against whom it is charged, such volition is essential to a cessation to discharge its duties before the penalty can be invoked. At common law a

and the 11th day of December, both inclusive, A. D. 1888, at the city and county of San Francisco, state of California, plaintiff, at the special instance and request of the defendant, furnished, paid, and laid out to and for the use and benefit of defendant the sum of two thousand seven hundred and twenty-seven and thirty-six hundredths ($2,727.36) dollars, which defendant then and there agreed to repay to plaintiff at said city and county of San Francisco on demand, together with legal interest. That, though requested thereto by plaintiff, defendant has not paid the same nor any part thereof, except the sum of nine hundred and sixty-two and forty-six hundredths ($962.46) dollars, and there is now due and owing to plaintiff from defendant therefor the sum of one thousand seven hundred and sixty-four and ninety hundredths ($1,764.90) dollars, with legal interest thereon from the 11th day of December, 1888." The complaint in this case does not differ in any material respect from the complaint in Pleasant v. Samuels, 114 Cal. 34, 45 Pac. 998, which was held to be good as against a general and special demurrer in all respects similar to the demurrer in this case. We therefore hold that no error was committed by the court in overruling the demurrer.

The court made findings following the language of the complaint, and the point principally urged for a reversal of the judgment is that the evidence is insufficient to support the findings. It appears that in 1888 the defendant Dowie was engaged in conducting "missions," teaching and expounding certain doctrines and beliefs held by himself. The expenditures sued for in this action were made by plaintiff in connection with a "mission" held at the Grand Opera House in the city and county of San Francisco in that year by defendant, and the vital matter in dispute, between plaintiff and defendant is as to whether the expenditures were made by plaintiff as a voluntary offering on his part toward advancing the doctrines taught by Dowie, or were made by plaintiff at the request of Dowie on his promise to repay the

same.

The testimony given by plaintiff, which is corroborated by witnesses Cadman and Thomas, fully sustains his theory of the transaction. Plaintiff testified that the defendant urged him to advance the money for the expenses of the "mission" at the Opera House, and that "he undertook to make good any deficiency; that he would pay back to me any money that I advanced which did not come back from the collections which were taken at the mission. The collections that were taken at the mission were to be applied to pay back my advances." In regard to the same matter the witness Cadman said (referring to a conference between plaintiff, defendant, and the witness): "He [Dowie] said that he felt that he ought to have a bigger place to hold his meetings, and that if he could get a big mission started he could make a success of it, but that he

had not the means to do it with, and he wanted to have the money advanced until the mission was started, and he felt confident that the mission would pay for itself. He said and always said that he would make good any deficiencies, but he felt sure there would be no deficiencies, and it was simply a matter of form to put this money up to pay these expenses until the mission could get on its feet, and that he would make the shortage good if there were any, but he felt sure there would not be any." The testimony of the witness Thomas was corroborative of the foregoing. As against this, appellant urges upon our attention expressions in letters, and conduct on the part of plaintiff, which he claims are inconsistent with the existence on his part of any claim to be reimbursed for his expenditures for the Grand Opera House mission. But all these matters concern the weight of the evidence and the credibility of the witnesses. The trial court having found the facts upon a conflict of evidence, we may not interfere.

Among the items going to make up the amount found by the court to have been expended by plaintiff for defendant are two items for interest paid to a bank for overdrafts, amounting to $30.08. When plaintiff agreed to make the necessary advances to carry on the mission he opened a special account at the bank for the expenditures in connection with the mission, and arranged for an overdraft, agreeing at the closing of the mission to give the bank a check for any deficiency there might be. Plaintiff testified that defendant understood perfectly the method adopted by plaintiff in opening the account with the bank and the matter of the overdraft, and though the testimony, perhaps, is not as clear as it might be that defendant consented to and approved of the payment of this interest on his account, we are not prepared to say that the court was not justified in so holding and charging him with it.

The court allowed interest on the demand of plaintiff from December 11, 1888, while the evidence showed that demand was not made for payment of the deficiency before December 31, 1888. The interest for the period between December 11 and December 31, 1888, it is conceded amounts to $8.33, and respondent concedes should not have been allowed to plaintiff. Further, it appeared in the evidence of plaintiff that Cadman (who had agreed to advance one-half of the expenses of the mission until defendant should repay the same) had paid to plaintiff interest on the amount that he, Cadman, had agreed to advance to the amount of $80.48, and respondent concedes that defendant should have received a credit therefor. It was agreed and stipulated by the parties in this court, and the same matter is set forth in respondent's brief, that two weeks before the taking of the appeal in this matter plaintiff served on defendant and filed in the trial court a document, executed by plaintiff, reciting the facts

of such errors, and remitting from the judgment, and requesting the clerk to credit upon the judgment as of the date of the entry thereof, the sum of $80.48 and the sum of $8.33. We think that justice will be subserved and the law not violated by recognizing this action of plaintiff as curing the error of the trial court.

The judgment is affirmed, with directions to the trial court to cause a partial satisfaction thereof to the amount of $88.81 to be entered thereon as of date of the 11th day of March, 1905, in accordance with the request of plaintiff filed in said court April 19, 1905.

We concur: HARRISON, P. J.; COOPER, J.

(4 Cal. App. 60)

SEFTON V. ROACHI. (Court of Appeal, Second District, California. July 6, 1906.)

TENANCY IN COMMON-AGREEMENTS BETWEEN CO-TENANTS-SHARES ON PARTITION.

A contract between two equal owners in common of land that, in case of its sale within a fixed time at a stated price, one of the parties shall first receive a certain sum from the proceeds, the remainder to be equally divided, does not entitle such party to more than an equal share of the land on its partition after the term of the contract has expired.

Appeal from Superior Court, San Diego County; N. H. Conklin, Judge.

Action by J. W. Sefton against Viola M. Roach as executrix and personally. From the judgment, defendant appeals. Affirmed.

Puterbaugh & Puterbaugh, for appellant. Stearns & Sweet, for respondent.

SMITH, J. The suit is for partition of the land described in the complaint, and by an interlocutory decree there was awarded to plaintiff and to defendant, as successors in interest of Henry Roach, deceased, to each an undivided one-half of the land. The defendant appeals from the judgment, and from an order denying her motion for a new trial.

It appears from the findings and the stipulation of facts appearing in the bill of exceptions that, August 8, 1891, the land in question was vested in the plaintiff, who on that day conveyed to Henry Roach an undivided one-half interest therein; and on the same day a contract in writing was executed between Sefton and Roach, wherein, after reciting that the parties "are the owners onehalf each of the property in controversy, occurs the following: "Now, therefore, for the purpose of managing and disposing of said property, it is hereby agreed between the parties hereto, that the said property shall not be sold for less than $30,000 prior to the 1st day of January, 1892, and that thereafter the price of said property is to be ad

vanced $2,000 each and every six months until $40,000 is reached, and thereafter such advance shall be made as may be agreed upon between the parties hereto. It is further agreed, that whenever a sale is effected within the figures above mentioned, then both parties hereto are to execute to the purchaser a deed conveying all their interest in said land. That neither party is to sell or dispose of his interest in said property without the consent of the other, and to act and exercise the highest good faith the one towards the other in the management and control of said property. * * * It is further agreed, that upon the sale of said property there shall be paid to the said Henry Roach out of the first proceeds the sum of $2,000, and that thereafter all suns received from the sale of said lands shall be divided equally between the parties hereto, share and share alike."

It is claimed by the appellant that under, and by virtue of, this agreement Roach "acquired and became vested of a first and prior interest in and to [the land in controversyl to the extent of two thousand dollars over and above an undivided one-half interest therein, and that in equity and good conscience there should first be allotted and set apart to these defendants sufficient of said above described lands, at their present marketable cash value, to equal the full sum of said two thousand dollars." But we can see no grounds for this contention. The agreement, though of the same date, follows the conveyance, and the interests of the parties in the land are expressly stated to be, respectively, "one-half." So far as the legal title is concerned, therefore, there can be no question. The claim of the defendant is, therefore, to an equitable title, and we can conceive of no principle upon which this can be based other than that of specific performBut the agreement is not that Roach should be paid $2,000 out of the proceeds of sale absolutely, but that he should be paid that sum out of the proceeds if sold at the prices mentioned in the contract. Upon familiar principles, therefore, the contract was not susceptible of specific performance subsequent to the year following the date at which the price of the land, according to the terms of the contract, was to be $40.000, which would be June 1, 1894; nor prior to that date, except upon the event of a purchaser being found at the price specified. Thereafter there was no provision for a sale, except upon agreement of the parties as to price; and, indeed, until thus renewed, there was no longer a contract between the parties.

We are of the opinion that the judgment and order appealed from should be affirmed, and it is so ordered.

(4 Cal. A. 137)

PEOPLE v. LOWRIE.

(Court of Appeal, First District, California. July 19, 1906. Rehearing Denied by Supreme Court Sept. 17, 1906.)

1. CRIMINAL LAW-TRIAL RECEPTION MOTION TO STRIKE OUT-TESTIMONY FROM PRIVATE RECORD-EVIDENCE.

In prosecution for burglary a witness who was employed by a railroad company as ticket clerk examined certain tickets and testified that one of them was sold by him after 7 o'clock on the evening of April 27, 1905. On cross-examination he testified that he made the statement from the fact that the records of the office showed that a certain number of tickets were used on that evening and that he was the only person there to sell tickets. It appeared that the records were not kept by the witness, whereupon the testimony concerning the records was stricken. Held, that the balance of the testimony was admissible, there being nothing to show that the witness had testified as to that from a record not made by himself.

2. SAME-DISCRETION OF Court.

8. BURGLARY-DEGREES EVIDENCE.

Where, in a prosecution for burglary. it was shown that, when the family of F. awoke, at 5:30 a. m., they found that the house had been entered during the night and various articles stolen therefrom, the evidence was sufficient to justify a verdict that the entry constituted burglary in the first degree, which depended on the time it was committed.

Appeal from Superior Court, Alameda County.

C. D. Lowrie was convicted of burglary, and he appeals. Affirmed.

W. T. Hume, for appellant. Atty. Gen., for the People.

U. S. Webb,

what purported to be a record kept by the railroad company of the numbers of the daily sales of tickets, prior to its connection being proved, on the statement of the district attorney that he intended to establish that the record was a book of original entries by the testimony of the witness who made the entries.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1611.] 3. SAME-OPINION.

In a prosecution for burglary, a question whether there was any way that witness could tell or estimate the time that a certain railroad ticket was sold, from the ticket, of the witness' own knowledge, was not objectionable as calling for the witness' opinion.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, 88 1035-1055.] 4. BURGLARY-STOLEN PROPERTY-EVIDENCE.

Where, in a prosecution for burglary, the state claimed that the works of two watches were part of the property stolen by the person who committed the burglary, evidence of the finding of the works of two watches in a suit case in defendant's room was admissible to prove guilt.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Burglary, § 91.]

5. SAME-EXCULPATORY CIRCUMSTANCES.

In a prosecution for burglary, evidence that a witness examined defendant's room and that she did not find burglar's tools or implements, files, or keys therein was inadmissible to show Innocence.

6. WITNESS' REFRESHING MEMORY - DUPLICATE ENTRIES.

Where, after a railroad ticket agent's report of daily sales of tickets was made out, a letter press copy thereof was taken from the original, such copy or duplicate might be properly used by the agent who made the original to refresh his memory, to enable him to testify as to ticket sales on a particular date.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, § 874.]

7. CRIMINAL LAW-APPEAL-RECORD-OBJECTIONS TO EVIDENCE-REVIEW.

Where the record on appeal in a criminal case did not show the contents of a letter which was excluded, nor its substance, nor by whom it was written, it would be presumed that the ruling was correct.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3029.]

hence it is not necessary to discuss it in detail, nor the questions raised as to its sufficiency.

Defendant assigns as error the refusal of the court to strike out the direct testimony of the witness Bailey, who was employed on the 27th day of April, 1905, by the Southern Pacific Railroad Company at the local ferry office as ticket clerk. Bailey, while on the stand, examined a number of tickets shown to him, and testified that a ticket shown to him was sold by him after 7 o'clock on the evening of April 27, 1905, at the ferry ticket office in San Francisco, at the foot of Market street. On cross-examination he testified that he made the statement from the fact that the records of the office showed that certain numbers of tickets were used on that evening, and that he was the only person there to sell tickets. The defendant did not object to the testimony when offered, but moved to strike it out on the ground that the same was incompetent and not the best evidence, which motion was denied, and is the ruling complained of. Without passing upon the question as to whether or not the ruling was erroneous, it is sufficient to say that, after further examination, when it was discovered that the records in the office as to tickets sold were not kept by the witness Bailey, the court, on the defendant's motion, struck out the testimony of the witnesss concerning the record, on the ground that the same was hearsay, incompetent, and irrelevant. After the testimony of the witness as to the record was stricken out, his testi. mony as to other matters was then competent, for the reason that there was nothing to show that he had testified from a record not made by himself. In all cases where a motion is made to strike out testimony which was not objected to at the time, much discretion is necessarily vested in the trial court. It would require a plain abuse of such dis