them [certificates] at the house with her. Two or three days subsequent to that she sent for me and wanted me to take these certificates and pass book and keep them for her, subject to her order call. She said if she did not get well, and anything happened to her, to notify the people to whom these certificates had been assigned and send for them and deliver them to them. She said she would use more or less of it, and what was left at the time of her death was to be given to the people mentioned by her. In pursuance of that, I presume I took the certificates. I took certificate No. 465 which has been read in evidence. After this occurrence I had occasion to visit Mrs. Lee again. She sent for me, because she said she needed some money and wanted to surrender one of those certificates of stock she held. I took the certificate No. 480 for one share out with me." After this he went out to her house with said certificates as she desired to get money on them. He continues: "After the cancellation of the last certificate, on the 28th day of February, 1903, the remainder of the certificates were handed back to me. Mrs. Lee told me to take and keep them the same as I had done before-to keep them for her. There were 19 certificates of this stock, and all issued in the name of Deborah H. Lee. She afterwards, but on the same day, gave me a list in writing of the persons to whom she wanted the stock assigned, and the assignments were made on the back of the certificates."

It thus clearly appears that Deborah H. Lee did not and never intended to part with control of her title to said stock while she lived. On March 12, 1903, she died without having revoked said assignments, or any of them. The certificates were then in the safe in the possession of Noble, who afterwards delivered certificate No. 465 to Gennis H. Learned, she being the one named therein as assignee. The finding is warranted by the evidence. Noble v. Garden, 146 Cal. 225, 79 Pac. 883. This, then, disposes of the issue that Noble held the certificate as trustee, against the contention of appellant. A similar case to the one before us, and involving the same question as to delivery and title of others of these identical certificates of stock, was well considered and decided in Noble v. Garden. 146 Cal. 225, 79 Pac. 883. The court there held under the same state of facts that Deborah H. Lee retained control and dominion of these certificates; and that the title did not vest in the parties to whom the assignments were made because she expressly stated it should remain in deceased. Upon the authority of Noble v. Garden, supra, the judgment of the lower court must be upheld. Judgment is affirmed.

(4 Cal. App. 225)

PEOPLE v. McMAHILL. (Cr. 54.) (Court of Appeal, First District. California. Aug. 15, 1906. Rehearing Denied by Supreme Court Oct. 4, 1906.) EMBEZZLEMENT-INDICTMENT-CONVERSION. Under Pen. Code, §§ 950-952, requiring an indictment to be direct and certain, and to contain such a statement of the facts that a person of common understanding may know what is intended, an indictment charging that an agent and servant did "willfully, unlawfully, and fraudulently," "appropriate to his own use" certain money of his employer does not charge an embezzlement under section 504, which requires the appropriation to be to a "use or purpose not in the due and lawful execution of his trust."

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Embezzlement, §§ 51, 52.]

Appeal from Superior Court, Santa Clara County; J. R. Welch, Judge.

I. B. McMahill was convicted of embezzlement, and appeals. Reversed, with direc tions.

C. F. Hanlon, G. W. Waldorf, E. Coolidge, and W. A. Bowden, for appellant. U. S. Webb, Atty. Gen., for the People.

COOPER, J. The information charged as follows: "The said defendant, on or about the 25th day of April, A. D. 1905, at the county and state aforesaid, did willfully, unlawfully, and fraudulently, and while said defendant was the secretary, agent, and servant of the San José Chamber of Commerce, an association, appropriate to his own use the sum of $901.67 in lawful money of the United States, the property of said San José Chamber of Commerce, which money was on said date in the control and care, and had come into the control and care of said defendant solely by virtue of his said employment as such secretary, agent, and servant." To this information the defendant interposed a demurrer upon the grounds that it does not substantially conform to the requirements of sections 950, 951, and 952 of the Penal Code, and that the facts therein stated do not constitute a public offense. The demurrer was overruled, and defendant entered his plea of not guilty. After trial he was convicted and sentenced to a term of two years in the state prison. This appeal is from the judgment and order denying defendant's motion for a new trial.

The important and controlling question in the case is as to whether or not the demurrer should have been sustained. It is conceded that the district attorney in the information intended to charge the crime of embezzlement under section 504 of the Penal Code, which, so far as material here, is as follows: "Every ** clerk, servant, * who

or agent of any association * fraudulently appropriates to any use or purpose not in the due and lawful execution of bis trust, any property which he has in his possession or under his control by virtue of his trust is guilty of embezzle

ment." The gist of the offense under the statute is the appropriation to a use or purpose not in the due and lawful execution of the trust. The information must charge the offense in ordinary language, so that a person of common understanding may know by reading it what is intended, and the facts stated in the information must necessarily charge a crime. If the facts stated may be true, under certain circumstances, and yet not constitute a crime the information will be held insufficient. The information in this case, when divested of the adverbs "unlawfully, feloniously, and fraudulently" simply states the fact that defendant appropriated to his own use $901.67, the property of the San Francisco Chamber of Commerce, which had come into his control and care by virtue of his employment as such secretary, agent, and servant. The conditions of the trust are not stated, nor is there any attempt to state them. The object and purpose for which the money came into defendant's possession is not stated. No attempt is made to state that defendant appropriated the money for a purpose not in the due and lawful execution of the trust. It may, for aught that appears in the information, have come into his control for his own use. There are many ways in which an agent might lawfully come into control of the money of his principal for his own use. We must presume that defendant is not guilty of any crime, and that he came into the control of the money for his own uses and purposes, and not for uses and purposes which may have existed in the imagination of the pleader. If the money was given to him for his salary, it was for his own uses and purposes. If it came into his control to reimburse him for moneys laid out and expended for his principal, it was for his own use. While it is ordinarily sufficient to charge a crime substantially in the language of the statute defining it, yet the information cannot be aided by inference or presumption. We cannot presume that the use of money which had come into the control of defendant was "not in the due and lawful execution of his trust." In all the cases which we have examined under the section the informations which have been held valid allege that the money was appropriated to a use not in the due and lawful execution of the trust, or words of similar import. In People v. Gale, 77 Cal. 120, 19 Pac. 231, the indictment alleged that "defendant did then and there, as such administrator, fraudulently appropriate to his own use and purpose the sum of $94, which said money then and there belonged to the estate of the said Warren Polley, deceased." The ruling of the court below sustaining a demurrer to the indictment was upheld. In People v. Ward, 134 Cal. 301, 66 Pac. 372, where the words used were that defendant did "feloniously convert, embezzle, and appropriate to his own use, contrary to his said. trust as such officer as aforesaid," the in

formation was held sufficient upon the ground that "contrary to his trust" was the equivalent of "not in the due and lawful execution of his trust." In People v. Shearer, 143 Cal. 66, 76 Pac. 813, it was held that the charge that defendant fraudulently appropriated the sum of $105, the property of Sonoma county, which had come under his control by virtue of his trust as county physician was insufficient, because the term "county physician" did not show that defendant held any trust relation to the county. It is there said: "Embezzlement is purely a statutory offense. Under the provisions of our statute it is essential to the commission thereof that there should be a fraudulent appropriation of property to some use or purpose not in the due and lawful execution of his trust by one into whose possession it has come by reason of some relation of trust or confidence mentioned in the statute, and existing between him and another, and it is therefore necessary that an indictment or information for embezzlement should allege the trust relation, in order that it may be determined therefrom whether there has been any such violation of a trust or confidence reposed in the defendant." The rule is that it must clearly appear from the facts alleged that a crime has been committed. People v. Terrill, 127 Cal. 99. 59 Pac. 836.

The judgment and order are reversed, and the court below directed to make an order sustaining the demurrer to the information.

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

(4 Cal. App. 184) GUTHRIE v. SUPREME TENT KNIGHTS OF THE MACCABEES OF THE WORLD. (Civ. 284.)

(Court of Appeal, Second District, California. July 31, 1906. Rehearing Denied by Supreme Court Sept. 28, 1906.)

1. INSURANCE-POWERS OF MUTUAL BENEFIT INSURANCE ASSOCIATION-CONTRACT-CONSTRUCTION.

A certificate of insurance provided for one assessment on the membership not exceeding $2,000 as a benefit to his daughter on satisfactory proof of his death, and, in case of total or permanent disability "or on attaining the age of 70 years," he would be entitled to receive one-half of the endowment as provided by the laws of the order. Held, that such contract should be construed to entitle the insured to one-half of the endowment in case of permanent disability, of which the attaining the age of 70 years was to be conclusive proof, and, as so construed, the contract was within the charter powers of the society, which was authorized to make payment of monthly and weekly sums in case of disability, etc.

2. SAME-BY-LAWS - CHANGE-RETROACTIVE OPERATION.

The act under which a mutual benefit insurance society was organized provided that the trustees should adopt by-laws, but that no bylaws adopted, affecting the rights and benefits belonging to or to be derived by the members of such corporation, should be changed by the trustees. Held, that by-laws adopted by trustees which materially changed the benefits to be

derived under contracts written by the association would be construed not to apply to contracts made prior to their adoption.

[Ed. Note. For cases in point, see vol. 28, Cent. Dig. Insurance, § 1855.]

Appeal from Superior Court, Los Angeles County; Charles Monroe, Judge.

Action by Francis B. Guthrie against the Supreme Tent Knights of the Maccabees of the World. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Frank James and D. D. Aitken (De Vere Hall, of counsel), for appellant. E. M. Guthrie, for respondent.

ALLEN, J. Action upon a written agreement. Judgment for plaintiff and an order denying a new trial, from which judgment and order defendant appeals.

The defendant is a corporation created under a legislative act of the state of Michigan, which authorized the incorporation of associations for certain purposes, among which were that of "*** securing a certain sum of money weekly or monthly to any member disabled by sickness or other disability." The act required that persons desiring to form such associations must file in certain public offices articles of association, which, among other things, should state the business of the corporation and the terms and conditions of membership. The act further provided that the trustees of such association named in the articles should adopt by-laws, but that no by-laws adopted affecting the rights and benefits belonging to or to be derived by the members of such corporation should be changed by such trustees. Pursuant to this act, certain persons, in the year 1885, filed with the proper officers the articles of association described, defining the purposes of the association, among other things, to be to give material aid to its members; to establish a benefit fund or funds from which, on satisfactory evidence of the death or disability of a member who has complied with all its lawful requirements, the sum of $2,000, in case of death, shall be paid to his family, orphans, dependents, or legal heirs, as such member may direct; and, in the case of total or permanent disability, such sum as may be designated in the endowment laws of such corporation. One of these endowment laws provides: "A total and permanent disability to perform or direct any kind of labor or business, or upon reaching the age of 70 years, shall entitle a member holding a certificate of endowment, so disabled or aged, to the payment of one-half of the endowment to which he would be entitled at death, provided, however, that in case of a total and permanent disability, satisfactory proofs must be submitted to the supreme medical examiner and board of trustees before payment is made, showing that such disability is permanent; and that it did not arise from his voluntary

act, or from intemperance or any immoral or unlawful conduct on his part, or from the violation of the laws of the country, and provided further, that the member shall have paid all dues and assessments from date of initiation to date of disability, or upon reaching 70 years of age. From the date of such payment such member shall only pay pro rata or one-half as much at each assessment as prior thereto. On the death of such member his heirs or assigns shall receive his endowment, less the amount which may have been paid as provided above."

Plaintiff, during the year 1885, when this act and the by-laws and regulations above mentioned were all in force, became a member of the defendant, and there was issued to him a certificate of membership, which certified that he was a member and a beneficiary in good standing, and that, in accordance with and under the provisions of the laws governing the order, he is entitled to receive one assessment on the membership, not exceeding in amount the sum of $2,000, as a benefit to his daughter, upon satisfactory proof of his death and a surrender of the certificate, provided he shall have, in every particular, complied with all the rules and regulations of the order. In case of total or permanent disability, or upon attaining the age of 70 years, he will be entitled to receive one-half of the said endowment, as provided in the laws of the order. Under this agreement plaintiff continued the payment of all dues and performed all obligations devolving upon him thereunder; and in the year 1905, when he arrived at the age of 70 years, claimed payment of one-half of the endowment; and upon defendant's refusal to pay. instituted this action. It appears from the record that after this certificate was issued, without the consent or agreement upon plaintiff's part, the by-law hereinbefore referred to was changed in material respects, notably that instead of paying $2,000 when permanent disability should ensue, the defendant would pay 10 per cent. of the endowment fund annually during the existence of such permanent disability. It is found by the court that plaintiff and defendant both believed. when the certificate was issued, that the corporation possessed the power to issue the same in the manner of its issuance, and to enter into the contract thereby made, and that plaintiff, without knowledge upon his part that want of authority so to do was claimed by defendant, paid and defendant received, during the 20 years of his membership, all dues and assessments levied or assessed against him. The court further finds that plaintiff had no actual notice of any changes in the by-laws affecting his rights. The trial court also finds that the defendant corporation, from its organization up until 1899, provided for the payment of benefits to its members when they reached the age of 70 years; and further, that assessments had been made and funds existed

out of which plaintiff's claim was payable, and that he was entitled under his contract to receive $1,000, with interest from February 15, 1905, and the sum of $6, assessments overpaid; for which it rendered judgment.

Defendant's principal contention upon this appeal is that the contract sued upon was ultra vires and void; that the stipulation therein that payment should be made at the age of 70 years was not authorized by the act under which the association was formed; and in support of this contention cites as authority certain decisions of the Supreme Court of Michigan, construing a similar act, in which it was held that a contract to pay a stipulated sum in a hundred months was ultra vires and void; and cites other authorities in support of the proposition that if the contract is ultra vires the corporation is not estopped to deny its character. This last proposition is a much controverted one, and the converse thereof has been held by our own Supreme Court in numerous cases. We are of opinion, however, that this question is not necessarily involved upon this appeal; for it is not apparent from the language of the agreement that want of authority existed.

Section 1643 of the Civil Code of this state provides: "A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties"; and section 3541, Civil Code, provides that "an interpretation which gives effect is preferred to one which makes void." The contract involved in this case is susceptible of two constructions: One that a payment is absolutely due when the age of 70 years is attained; the other, that payment is due when permanent and total disability ensues, and that the attainment of 70 years is an evidential fact of such permanent and total disability. Our general government, in its administration of the pension laws of this country, has, through its duly authorized officials, promulgated a rule based upon a statement that old age is an infirmity, the average nature and extent of which the Pension Bureau has established with reasonable certainty, that in the adjudication of pension claims which are payable on account of disability, "it shall be taken and considered as an evidential fact, if the contrary does not appear, and if all other legal requirements are properly met, that when a claimant has passed the age of * * seventy years" he is entitled to the full pension for total disability. That this contract was made with reference to the intent that 70 years should be a conclusive evidential fact of permanent disability is obvious from the by-law of the corporation, adopted a fortnight before the statute was amended, in which are found provisions with regard to old-age disability as distinguished from disability arising from other causes, and fur

ther provisions in relation to permanent disability benefits, whether the same were from disease, accident, or old age, and that disability claimed before such age must be established by proof; and we think that a reasonable and proper construction of this contract, one which will give it effect and carry out the intention of the parties, is to say that, under this contract, total and per manent disability was the event which matured the claim, and that the 70 years mentioned therein was but a term employed as establishing by agreement an age when such condition was conclusively presumed to exist. This construction was not permissible in the cases before the Supreme Court of Michigan, and in many other cases referred to by counsel for appellant; for in those cases the sum was payable within less than 9 years from the issuance of the certificate, regardless of age or the physical condition of the member, and it was apparent that the intent was to make the expiration of a fixed time the event which should mature the claim, and not disability, total or partial. Entertaining these views, we are led to the conclusion that the act authorizing the payment of a sum when disability should arise, even though it limited such payment to monthly or weekly sums, is sufficient warrant, coupled with the other provisions of the act relative to the articles of association, and the by-laws authorized, to render this contract within the pow ers of the corporation. Certain it is that the power to contract with reference to a payment upon disability is given, and none of the authorities cited go to the extent of determining that where the general power to do the act is given, a corporation is not estopped when the manner of the exercise of the power only is involved.

Appellant next contends that the subsequent changes in the endowment laws had the effect to alter and vary this contract. We find nothing in the contract or record which would indicate an intention upon the part of either of the contracting parties to reserve, or to permit to be reserved, to the association the right to alter or modify the written agreement originally executed. Nor do we find anything in this subsequent change of the by-laws which of necessity changed previously existing contracts; in fact, the statute recognizes the trustees as alone having power to enact by-laws and by its previous by-laws such trustees are prohibited from making any change affecting the rights or benefits of members. A reading of these modifications of the by-laws would indicate that they only purport to be, and we think their only legal effect could be, to affect the relations of those contracting after their enactment. There is nothing suggested in the nature of the amendments or modifications of these by-laws which necessarily alters the terms of the written agreement, and it is not claimed that any executed parol agreement had such effect. The author

ities cited in the appellant's brief, namely, Supreme Council v. M'Alearney, 135 Fed. 72, 67 C. C. A. 546, and Clymer v. Supreme Council (C. C.) 138 Fed. 470, to the effect that one contracting party must be presumed to have consented to the abrogation of the provisions in the certificate providing for the payment of a fixed sum, if no action was taken by him after notice of such change, even if ac cepted as correct expositions of the law, are not controlled in a case where the plaintiff had no knowledge that the defendant intended to dispute the validity or amount on maturity of his claim. In so far as any constructive notice is concerned, the notice in the statute that no by-law could be changed affecting plaintiff's rights should certainly operate as an assurance to him that changes made in such by-laws were not intended to affect his vested rights as to benefits due him from membership.

We find no error in the record, and the judgment and order are affirmed.

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

(4 Cal. App. 228)

BECKETT v. MORSE et al. (Civ. 193.) (Court of Appeal, First District. California. Aug. 15, 1906. Rehearing Denied Sept. 13, 1906.)

1. MUNICIPAL CORPORATIONS - PUBLIC IMPROVEMENTS-PROPOSAL FOR BIDS-NOTICESTATUTES-COMPLIANCE.

A resolution ordering a public work was passed by a city council December 16th. On the same day it directed its clerk to post for five days a notice thereof, with specifications, inviting sealed proposals, and to cause such notice to be published for five days. The notice. was posted and published. On or before December 30th following several sealed proposals were presented, and the city council in open session examined the proposals and by resolution awarded the contract to one of the bidders. Held, that the council complied with Street Improvement Act, § 5 (St. 1891, p. 199), providing that, before the awarding of any contract by a city council for doing any work, it shall cause notice, with specifications, to be posted for five days and to be published in a newspaper published in the city, etc., and the fact that the council did not fix a day or hour prior to which, or at which, it would receive or open proposals for doing the work, nor direct its clerk to fix such day or hour, did not invalidate the assessment.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 857, 860.] 2. SAME--ACTION FOR STREET ASSESSMENTEVIDENCE-BURDEN OF PROOF.

Where, in an action on a street assessment, the court found that the averments in the complaint of the making and recording of the assessment, warrant, and diagram, with the affidavit of demand and nonpayment, were true, plaintiff was prima facie entitled to recover, and defendant had the burden of showing a defect in the prior proceedings sufficient to overcome the prima facie case.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1282.] 3. PLEADING-CONCLUSION OF LAW.

An allegation, in an action on a street assessment, that the superintendent of streets did

not make the assessment in the manner prescribed by law, without setting forth the particulars in which the assessment was defective. is but an averment of a legal conclusion, and not of a fact.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 19.]

4. MUNICIPAL CORPORATIONS - ACTION ON STREET ASSESSMENT-DEFENSES.

An averment that a lot was not assessed for a public improvement for any one of the separate sums stated in the complaint in an action on a street assessment is insufficient as a defense to an action for the aggregate of the sums, where such separate sums could have been properly assessed against the lot for its proportion of the costs of the entire work. 5. SAME-ASSESSMENT-VALIDITY-REVIEW.

Street Improvement Act, subd. 7 (St. 1891, p. 202), provides that, where a subdivision street terminates in another street, the expense of the work done on one-half of the width of the subdivision street shall be assessed on the lots fronting on such termination. A city ordered the construction of a sewer in an avenue. A lot against which an assessment was made was described as situated on the easterly side of the avenue. The lot was assessed to pay for frontage work and for termination work on the easterly half of the avenue opposite the termination of certain streets. Held, that the assessment was in accordance with the statute; but, if the facts were otherwise, or if by reason of the position of the streets the assessment for termination work was not authorized, the remedy was by appeal to the city council.

6. SAME.

Where a lot fronting on an improvement was assessed for more than its lawful proportion of the cost, whether by reason of an erroneous computation or an improper distribution of the cost on the lands assessable, error was waived by a failure to appeal to the city council, and in the absence of such appeal the objection could not be made for the first time in an action to enforce the assessment.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1269.] 7. SAME.

The validity of a street assessment is not impaired by the fact that the proportion of the cost for which a lot is chargeable is subdivided into several amounts; the cost of the entire work being apportioned in separate amounts to the several portions of the territory chargeable therewith in accordance with their relative position to the work, and the several amounts so apportioned being assessed against the lots within the respective territories chargeable therewith. [Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $ 1109.]

Appeal from Superior Court, Alameda County; F. B. Ogden, Judge.

Action by John P. Beckett against Harry N. Morse and others. From a judgment for defendants, plaintiff appeals. Reversed. Fitzgerald & Abbott, for appellant. R. M. F. Soto, for respondents.

HARRISON, P. J, Action upon a street assessment in the city of Oakland. Judgment was rendered in favor of the defendants, and the plaintiff has appealed therefrom upon the judgment roll without any bill of exceptions. The complaint is in the ordinary form and sets forth all the facts necessary to entitle the plaintiff to recover judgment. The court found that, with the exception of cer