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are not told why the first money raised was not expended, or why an additional amount became necessary, or why the supervisors failed to make the levy large enough to raise the requisite amount estimated by the trustees. All we know is that the first estimate was for $20,000, and only $5,000 was raised, and that an amount of $10,000 additional to the $5,000 was estimated as necessary to erect the proposed building. If it be true, as claimed by appellant, that the supervisors exhausted their power to make a levy under the first estimate (which we do not decide), we see no reason why, when it was found that the building fund was inadequate, the trustees might not make a further estimate or that the supervisors might not on such estimate make a further levy.

We can discover no infirmity in the first levy. The money raised by it belongs now to the building fund and in making the second estimate the end is reached by estimating the requisite additional amount quite as definitely as by making the estimate $15,000, as is claimed it should have been. The suggestion that this view leaves the supervisors with unrestricted powers to keep on from year to year adding to the cost of the building, presupposes that both the trustees and the supervisors will proceed recklessly and without regard to the welfare of the property holders. On the other hand we must presume official duty regularly performed, and, if the power here sought to be restrained is denied, the district might find itself seriously embarrassed.

It seems to us that the statute is sufficiently broad to justify the course being taken to secure a building for the school. Respondents make the point, not raised in the lower court, that injunction will not lie in anticipation of the action of a judicial body; citing Barto v. Board of Supervisors, 135 Cal. 494, 67 Pac. 758. We have thought it more satisfactory to dispose of the questions raised by appellant without considering the point suggested by respondents.

The judgment and order appealed from are affirmed.

a club and would be remodeled into a clubhouse, and that the specified persons read the article. and, by reason thereof, they were dissuaded from going to the hotel ; and that such persons would have paid plaintiff a large sum of money from which he would have derived a specified protit--sufficiently states a cause of action for injury to plaintiff's business.

[Ed. Note.For cases in point, see Cent. Dig. vol. 32, Libel and Slander, $$ 386–390.] 2. SAME - ALLEGATION OF DAMAGES - SUFFICIENCY.

A complaint in an action by the proprietor of a hotel for injury to his business caused by a newspaper publication, which alleges that, by reason of the publication, a large number of persons who were negotiating for board at the hotel were dissuaded from making any contract in relation thereto, and were dissuaded from going to the hotel, and from paying to the proprietor for board at least a designated sum, is demurrable, because of the uncertainty of the allegation with reference to the damage.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 32, Libel and Slander, 389.] 3. SAME-PROOF OF DAMAGES.

The damages to a hotel business resulting from a false newspaper publication may be proved by showing the existence of facts which would naturally tend to diminish the business, followed by evidence that it was actually diminished thereby, which may be shown without showing the specific name or giving the personal description of each guest driven away from the hotel by reason of the publication.

Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge.

Action by A. D. Wright against J. C. Coules and others. From a judgment of dismissal on sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

Tanner, Taft & Odell, for appellant. James P. Clark, M. M. Meyers, and M. J. McGarry, for respondents.

I concur in the judgment BUCKLES, J.

I concur: MCLAUGIILIN, J.

,

GRAY, P. J. This is an action for injury to the plaintiff's hotel business alleged to have been caused by publications made by defendants in several newspapers.

A demurrer to the amended complaint as amended was sustained and the appeal from the judgment is by plaintiff.

The questions presented relate to the sufficiency of the complaint. The amended complaint as amended purports to set out three several and distinct causes of action. In the first cause of action it is alleged in substance that plaintiff was engaged in the business of an innkeeper at the Hotel Arcadia in Santa Monica, in the county of Los Angeles, on the 27th day of August, 1904, and for that purpose had a lease of the premises extending from a date at least two years prior to said date and up to and including the date of the filing of this suit, and that such business was popular and the income therefrom waf about the sum of $2,000; that at the date of the publication complained of several persons, Young, Paine, Mrs. Palne, Wilsely, and Lawrence had notified the plaintiff that they were about to come to the said Hotel Arcadia and lodge or room in the said

(4 Cal. A. 343)

WRIGHT v. COULES et al. (Civ. 257.) (Court of Appeal, Second District, California.

Oct. 16, 1906. Rehearing Denied by

Supreme Court Dec. 13, 1906.) 1. LIBEL-SLANDER OF PROPERTY-PUBLICA

TION RELATING TO CHANGE IN HOTEL BUILDING LIABILITY.

A complaint, which alleges that plaintiff was engaged in the hotel business; that at the date of the publication complained of designated persons had notified him that they were about to come to the hotel; that defendants maliciously and falsely published in a newspaper an article averring that the hotel had been purchased by

inn. It is further alleged that on said 27th be no question as to the plaintiff's right to day of August, 1904, the defendants malicious- recover the damages proven. The second ly and without reason caused to be published cause of action alleged is the same as the in the Los Angeles Examiner, a public news- first, except that it is based upon a different paper printed in the city of Los Angeles and publication, claimed to have been made Sepstate of California, and widely distributed, tember 15, 1904, in the Daily Outlook, a pubetc., among the numerous customers, board- lic newspaper printed at Santa Monica, Cal. ers, lodgers and transients of said hotel, a The same persons as stated in the first cause false and injurious article. We quote of action are alleged in the second cause of from said article,

article, as set out in the action to have been kept away from the hotel complaint, as follows: “The famous Hotel by the latter publication and the same damArcadia at Santa Monica has been purchased ages are alleged to have accrued. We think, by the Occidental Club, and will be remodel- also, the allegations of this cause of action ed into a colossal country clubhouse, the are sufficient as against both the general and largest in the world, for the use of the mem- the numerous special demurrers. The third bers and their families. The deal was ac- cause of action is based upon the said publicomplished by a double sale, 0. B. Steen, an cation in the Los Angeles Examiner on the Arizona mining man, purchasing from the 27th day of August, 1904. It also contains al. Pacific Improvement and transferring the legations similar to the first count of the property to the Angeles Investment Company, complaint touching the ownership and conthe parent corporation of the Occidental duct of the Hotel Arcadia and as to the Club. The price was well into six figures. printing and distribution of the paper conThe new owners will proceed at once to enter taining the article; but the allegation of upon the privileges of the spacious quarters damage differs from that of the other two they have acquired by the sea. They do not counts of the complaint. It reads as follows: take possession until the close of the present "That by reason of the said publication, a season, but a series of balls, planned to oc- large number of persons who were then and cur twice a week, will soon commence. In there negotiating for rooms in said Hotel the meantime, extensive alterations and re- Arcadia and for board and lodging, were dispairs will go on without interruption. * * * suaded from making any contract in relation As to the new seaside home which has for- thereto and were dissuaded from coming to merly been the aristocratic Hotel Arcadia, said Hotel Arcadia and from paying to plainit is already in high favor with the members tiff for board and lodging at least the sum of of the organization. A big bathing party $3,000. Wherefore, plaintiff prays judgment which will wind up with a dinner and dance

against the defendants for the sum of $4,000 is planned to take place in about two weeks."

damages, and for costs of suit." The complaint then alleges that the said ar

It appears from the order sustaining the ticle was false in this, that the said Hotel

demurrer and judgment of dismissal of the Arcadia had not been purchased by the said action that the several demurrers to the Occidental Club, was not to be remodeled, and

third cause of action were sustained without there had been no double sale by 0. B. Steen, leave to amend. We think that for the unan Arizona mining man, nor had the property certainty of the allegation with reference to been purchased from the Pacific Improvement the damage, quoted above from the third Company, nor had it been transferred to the cause of action, the demurrer was perhaps Angeles Investment Company, nor had there

properly sustained, but are of opinion that been any new owners thereby placed in pos- it should not have been sustained without session of the title, nor did they make or leave to amend. To be sure, we find no recbegin to make any extensive improvements or ord of any request in the transcript to amend alterations therein. It is further alleged this complaint further, and ordinarily this that the parties above specifically named would be a sufficient answer to the plainread this article, and that by reason thereof tiff's appeal from the judgment following were dissuaded from coming to the hotel and

the order sustaining the demurrer. But as did not come at all, and that these persons this case must go back to the trial court for would have paid the plaintiff as proprietor further proceedings, we deem it fair and of said Hotel Arcadia, as roomers, lodgers, just that the plaintiff should be permitted by boarders, or transients, a large sum of money the court below, on the return of the case, had they so come, from which the plaintiff to amend this allegation as to his damage so would have derived a profit of $1,000, and as to include a specific allegation that he was that by reason whereof plaintiff has been

damaged by the facts alleged in that count damaged in the sum of $1,000.

of his complaint in a specific sum, whatever We are clearly of the opinion that the that sum may be. We are of opinion that first count of the complaint, the substance damages to a hotel business may be proven of which only is stated above, states a cause by showing the existence of facts which of action; that it is so free from uncertainty would naturally tend to diminish and tear and ambiguity that the defendants will not down that business followed by evidence be misled to their prejudice for want of any showing that it was actually diminished and necessary allegation. If the facts as alleged impaired thereby, and that this may be are proved on the trial, we think there can shown without showing the specific name or giving the personal description of each guest known or discovered," to the residuary devisee who was driven away from the place or pre

who was also grantee in the deed. Held, that

such lands passed under the residuary decree. vented from coming there by reason of the

[Ed. Note.--For cases in point, see Cent. Dig. acts complained of. A general allegation

vol. 49, Wills, 88 1279-1291.] such as indicated above of people being dis

5. SPECIFIC PERFORMANCE CONTRACT TO suaded by reason of a publication from mak

MAKE W'ILL. ing any contract with or coming to the hotel In an action for specific performance of an or giving it their patronage, is sufficient.

alleged oral contract of a decedent to make a

will, the only evidence as to such contract was The judgment is reversed, with directions

evidence of decedent's statements that she was to the lower court to permit plaintiff to not to make a will, that there was no agreeamend his third cause of action, as herein ment to that effect, and that decedent never told indicated.

the witness that there was any agreement as to her disposition of the property before or upon

her death. Held sufficient to support a finding I concur: ALLEN, J.

of no contract.

[Ed. Note.--For cases in point, see Cent. Dig. SMITH, J. (concurring). I concur in the vol. 41, Specific Performance, 8 387–395.] judgment and in what is said in the opinion

Appeal from Superior Court, Stanislaus as to the first and second causes of action

County ; L. W. Fulkerth, Judge. set out in the complaint. I am also of the

Action by Vincent R. Ostrom and others opinion that the demurrer to the third cause

against N. E. De Yoe and others. From a of action was rightly sustained, for the rea

judgment in favor of defendants and an order sons stated in the opinion.

denying a new trial, plaintiffs appeal. Affirmed.

L. J. Maddux, for appellants. P. J. Hazen (4 Cal. App. 326)

and Wm. 0. Minor, for respondents. OSTROM et al. v. DE YOE et al. (Civ. 208.) (Court of Appeal, Third District, California. Sept. 26, 1906. Rehearing Denied by Su

BUCKLES, J. This is an action to enforce preme Court Nov. 22, 1906.)

a trust in certain real and personal property, 1. TAIAL-SUBMISSION OF ISSUES TO JURY- based on a supposed verbal contract, made by SPECIAL VERDICT-CONCLUSIVENESS.

Caroline De Yoe, under whom defendants An action for specific performance of an

claim, with Stephen Rogers, her then husalleged oral contract of a decedent to make a will, and to set aside certain deeds, being an

band, under whom plaintiffs claim-by which equity action, the court may disregard a special contract appellants claim said Caroline obverdict of the jury and make its own findings ligated herself to make a will, which is adof fact and conclusions of law.

mitted she never made. The action was tried [Ed. Note. For cases in point, see Cent. Dig.

by the court; certain special issues were subvol. 46, Trial, § 884; vol. 19, Equity, $s 81, 816.]

mitted to a jury which answered the same 2. DEEDS DELIVERY EVIDENCE

SUFFI

adversely to the defendants; the court reCIENCY.

served the action for further consideration, Certain deeds to a wife were found in a heard further testimony, and, when the case bank among the grantor's papers after his

was argued and submitted, made and filed death. There was testimony that the grantee during her life stated that she never saw the

its findings and decision, rendering judgment deeds until they were found after his death. thereon in favor of defendants. The plainThe scrivener delivered the deeds to the grantor, tiffs appeal from the judgment and from the and the banker could not remember the circum

order denying a new trial. Stephen Rogers stances of their deposit. Held insufficient to show a delivery.

and Caroline Rogers were husband and wife, [Ed. Note.-For cases in point, see Cent. Dig.

and, during their married life, had accumulatvol. 16, Deeds, $$ 625-634.]

ed a large amount of property. In January, 3. WILLS - CONSTRUCTION - RESIDUARY DE- 1885, Stephen Rogers made several deeds of

VISE LANDS SUPPOSED TO HAVE BEEN gift to his said wife of 1,524.06 acres of his DEEDED.

land and numerous town lots, and on DecemCertain deeds to a wife, signed by a decedent but never delivered. were found among

ber 18, 1886, he made another deed of gift to his papers after his death, and the property

the said wife of 3.967.34 acres, generally covered thereby was not specifically mentioned known as the “Oak Flat.” These deeds were in his will. Held to pass to the grantee under a devise to her of the “residue of my estate

found after Stephen Rogers' death in a tin both real and personal of whatever kind, wheth

box in which he kept his papers, deposited er chattels, lands," etc.

in the First National Bank of Modesto, and [Ed. Note.For cases in point, see Cent. Dig. were recorded March 26, 1888, at the request vol. 49, Wills, $$ 1279–129ĩ.]

of Ora McHenry. Stephen Rogers died 4. SAME-RESIDUARY CLAUSE.

testate March 21, 1888. On December 31, Certain deeds, executed by a testator but

1886, he made his will. The property deundelivered during his life, having been discovered after his death, the lands covered there

scribed in the said deeds was not described by were not returned in the inventory. The in the will nor returned in the inventory in decree of distribution under the will, which did

the probating of said will and settlement of not mention the lands, but contained a sweeping residuary clause, gave the residue of the estate

his estate. The will was admitted to probate in the hands of the executrix "and any other April 21, 1888, and the said Caroline Rogers property” belonging to the estate, "not now appointed executrix. The devises in said will

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over which this controversy arises are as fol- estate of Stephen Rogers, deceased, hereinlows:

after particularly described and now remain“Third. I give and bequeath to my grand- ing in the hands of said executrix, and any son, Stephen Roy Rogers, son of Stimpson P. other property not now known or discovered Rogers and Ella Rogers, the sum of ten which may belong to the said estate, or in thousand ($10,000) dollars, to be paid to him which the said estate may have any interest, as hereinafter directed, and only after the be and the same is hereby distributed as foldeath of my said wife Caroline if she sur- lows, to wit:" To Lizzie Kay, $1,000 if she vive me; the income from the said ten thou- survive Caroline Rogers. The remainder to sand dollars to be paid to said Stephen Roy Caroline Rogers. No objection is made to the Rogers personally for his own private use decree. On April 25, 1891, Caroline Rogers froin the time he be fifteen years old till he married N. E. De Yoe, who is a defendant in be twenty-one years old ; and then when he be this action. She died February 29, 1904. twenty-one years old, I direct that he be paid The plaintiffs in their complaint allege as folfive thousand dollars, being half of the above- lows: "That prior to, and at the time of, the named bequest, and that from the time he is making and execution of the said will hereintwenty-one till he be twenty-five (25) years before set forth by the said Stephen Rogers, old, I direct that the income from the remain- it was mutually understood and agreed by ing five thousand dollars be paid him annual- and between the said Stephen Rogers and the ly for his private use. And then, when he said Caroline De Yoe, then Caroline Rogers, the said Stephen Roy Rogers be twenty-five and the said Caroline Rogers promised and years old, I direct the remaining five thou- agreed to and with the said Stephen Rogers sand dollars paid to him personally, for his that, if the said Stephen Rogers would make own exclusive and private use. If my said and execute the will hereinbefore set forth, grandson die before arriving at the ages here- the said Caroline Rogers would make and exin named, then the remaining or unpaid ecute her will, and upon her death give and amounts of said bequest, together with the in- | bequeath all of the property owned and poscome thereon, I direct shall be distributed sessoil by the said Caroline Rogers and as the other portion of my estate shall be Stephen Rogers at the time of his death, and or shall have been distributed, namely, to the all the property possessel by her at her brothers and sisters of myself and wife Caro- death, and all the proceeds of such property, line, share and share alike.

in equal shares to Stephen Roy Rogers, if he “Fourth. The residue of my estate, both then be living, and to the brothers and sisters real and personal, of whatever kind, whether of the said Stephen Rogers and brothers and money, credits, chattels, lands, houses or sisters of said Caroline Rogers, or, if any of shares in corporations, and wheresoever situ- the said brothers and sisters be dead, then to ated, I give, bequeath, and devise to my be- their children, said children to take the share loved wife, Caroline Rogers, if she survive of the parent, respectively, save and except

And it is my will and I so direct, that Gilbert P. Ostrom and Clarence Cotton, and, my said wife also have the exclusive and ab- in case of the death of Stephen Roy Rogers, solute control, during her life, of that part of then to be willed to the brothers and sisters my estate hereinbefore devised to Lizzie Kay of Steven Rogers and Caroline Rogers, and and Stephen Roy Rogers.

their children, as aforesaid. That, pursuant "Fifth. If I survive my said wife Caroline, to said agreement, and being induced by said then I give, bequeath, and devise all the resi- agreement and promise of said Caroline Rogdue of my estate, both real and personal, and ers and relying thereon, said Stephen Rogers wheresoever situated, share and share alike. made and executed the will and testament to my grandson, the said Stephen Roy Rog- hereinbefore fully set forth." ers, if he be then living, and to my brothers The complaint prays for a specific performand sisters, and to the brothers and sisters of ance of the alleged agreement and that the my said wife Caroline; or if any of the said said deeds of Stephen Rogers to Caroline brothers and sisters be dead, and their child- Rogers be set aside. The answer denies that ren shall take the share of their parent, there ever was such a contract, admits the l'espectively, save and except only Gilbert making and execution of said deeds, and alP. Ostrom, son of Jemima Ostrom, and also leges that such deeds were delivered to CaroClarence Cotton, son of Jacob Cotton, to line Rogers and were for good and valid conwhom I bequeath nothing; and I will and be- siderations and conveyed all the interest of queath, in case I survive their parents, or Stephen Rogers in said land to Caroline Rogeither of them, the share of my estate herein- ers. After denying fully the allegations of before given to said Jemima Ostrom and the complaint the defendants for a separate Jacob Cotton, to the remaining brother and defense plead laches on the part of plaintiffs, sister of said G. P. Ostrom and Clarence Cot- and that they should be estopped from aston, respectively."

serting and claiming any right to the lands Stephen R. Rogers died May 15, 1899. The by reason of allowing the rights of defendcourt made and entered its decree of distribu- ants to accrue without any knowledge of tion of said estate, and was in accordance plaintiffs' claim; pleads the statute of limitawith said will. The decree contained the fol- tions; also that plaintiffs' alleged claim is lowing clause: "And the residue of said based upon an alleged agreement which is

void and cannot be enforced because not in writing; also that said claim cannot be enforced because an attempt is made to create a trust to hold real estate and suspend the power of alienation ; also that, if said agreement was made, it is void because made by Caroline Rogers, a married woman. This being an equity case, the special verdict of the jury was but advisory, and the court had a right to disregard it, which the court did by saying: "And the court, being fully advised in the premises, does not approve of said verdict, but now makes and files its findings of fact and conclusions of law." Galvin v. Palmer, 113 Cal. 50, 45 Pac. 172.

The testimony in the case as to the deeds was as follow's: 0. McIlenry testified that he had seen the said deeds (Stephen Rogers to Caroline Rogers) in the First National Bank of Modesto; that they were recorded by him at his father's request and that his father was the custodian thereof; and that they were recorded on the dates shown on the leeds, to wit, March 26, 1888. The deeds were introduced in evidence and the witness Miss Jennie Broughton said that Mrs. Caroline Rogers had "discovered some deeds made by Stephen Rogers with me. She said she found them in a little brown box-tin box. I think it was-that she said to me, she says, *you know that Stephen always kept his business papers in.' He had that little box on the ranch, and after he died she found the deed, she said, when she opened that box. If I remember right, she said, "The box was in the First National Bank,' and said, 'The first time she saw the deeds was after he died, and she went and opened his box.'” L. B. Walthal testified that he drew the deeds at the request of Stephen Rogers and delivered them to him. He also drew the will. J. E. Ward, cashier of the First National Bank of Modesto, testified: "I remember the deeds introduced in evidence being left in the bank, but do not remember the circumstances." This is all the evidence in relation to the deeds.

The court found as follows: "Each and all of the deeds referred to in said complaint were made, executed, and delivered, at the times of their respective dates, for good and sufficient considerations, and were valid conveyances of the property therein described, and conveyed title thereto to said Caroline Rogers as of the dates of said deeds, and she and her successors have been, since the death of Stephen Rogers, the owners in fee simple thereof, claiming title and asserting such ownership against all the world." The delivery of the deeds before the death of Stephen Rogers is not shown to have taken place. But the finding is immaterial.

is immaterial. The deeds not having been delivered, no title to the lands mentioned therein passeil under said deeds to Caroline Rogers, and said lands remained a part of said estate and would be and were

included in the residue of the estate devised to Caroline Rogers. The making of the deeds furnished sufficient reason for omitting any mention in the will of the lands attempted to be conveyed by said deeds, for the deeds had been drawn and executed prior to making the will. Evidently the testator did not realize, when he made his will, that these lands were still a part of his estate. However, the decree of distribution herein referred to distributed these lands to Caroline Rogers under that clause "and any other property not now known or discovered which may belong to the said estate or in which the said estate may have any interest."

Irrespective of the will, one-half of the je lands belonged to the widow at the death of Stephen Royers, because they were community property. The widow went into possession of all the property derised to her including these lands, under the decree of distribution in the Stephen Rogers estate, made October 9, 1890, and held the same as her own, farmed and controlled the lands and managed the same, and her holding was open and notorious to all the world from that date until her death in 1904. The court found there was no contract or agreement between Stephen Rogers and Caroline Rogers; that she did not promise or agree with Stephen Rogers, if he would make and execute his said will as he did or for any other consider:tion, that she would make her will, or upon her death give or bequeath the property, or any part thereof, as alleged in said complaint, nor did said Caroline Rogers at any time make any such contract or agreement; that the will of Stephen Rogers was not made pursuant to any agreement such as is alleged in the complaint, and he did not rely upon any such agreement or promise when he made his will. The only witness who gives any testimony at all concerning the contract or agreement between Stephen Rogers and his wife was that of Miss Broughton, who said Mrs. Rogers would tell her that she was not to make a will, that there was no agreement that she was to make a will, and, when finally the court asked this witness, "Did she ever tell you at any time she had agreed, or made a contract, with Stephen Rogers that she was to do anything with the property upon her death or prior to her death?” She answered, "I don't think so."

There is testimony supporting every material finding the trial court made, and these findings warrant the judgment "that plaintiffs have no right, title, interest, or claim in or to any of the property described in the complaint, and that defendants are the owners of, and entitled to, the whole thereof, freed of any claim of plaintiffs thereto, etc.”

Judgment and order affirmed.

We concur: CHIPMAN, P. J.; MCLAUGHLIN, J.

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