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ful, excessive, and reckless speed. The answer pleads contributory negligence on the part of the plaintiff. The jury having returned a verdict for the defendants, the plaintiffs moved for a new trial on the minutes of the court, and in the notice of intention so to do set forth a number of grounds, embracing errors in rulings upon evidence and in giving and refusing of instructions, and that the evidence in several particulars was insufficient to sustain the verdict. The mo. tion was granted, and from the order the defendants appeal.

The order granting the new trial is in the following words: "The motion of plaintiffs for new trial is granted on the ground that evidence relating to Dr. P. F. Bresee's habits of driving on occasions other than that of the accident was improperly admitted, opinion filed." It is contended by the defendants that the limitation expressed in the order excludes from our consideration the sufficiency of the evidence upon any and every point upon which it is conflicting. The order, it will be seen, does not expressly declare that the motion was denied, so far as it was based on other grounds than those mentioned therein, and, therefore, it does not affirmatively exclude the other grounds from our consideration. In Kauffman v. Maier, 94 Cal. 277, 29 Pac. 481, 18 L. R. A. 124, it was said upon this subject: "If the trial court in its order granting a new trial, excludes this as a ground of its action by direct language, and the record shows that there was a conflict of evidence," this court will not reexamine the evidence. (The italics are ours.) In that case the lower court did, by direct language, exclude the ground that the evidence was insufficient and declared that, so far as that ground was concerned, the motion was denied, and hence the decision is not a precedent for the present case, where this ground, if excluded at all, is excluded by implication only, and by force of the rule "expressio unius est exclusio alterius." We do not find it necessary to decide whether or not the order in question should be construed to prevent a review of the evidence by this court. It is the established rule of practice that such an order, even if it is expressly limited to a single ground, does not exclude from review on appeal any of the grounds upon which the new trial was asked, except that of the sufficiency of conflicting evidence to support the verdict or decision. Kauffman v. Maier, supra; Thompson v. California Con. Co. (Cal. Sup.) 82 Pac. 367; Simon Newman Co. v. Lassing, 141 Cal. 175, 74 Pac. 761; Swett v. Gray, 141 Cal. 69, 74 Pac. 439; Siemsen v. Oakland, etc., Ry., 134 Cal. 496, 66 Pac. 672; People v. Castro, 133 Cal. 12, 65 Pac. 13; Newman v. Overland, etc., Co., 132 Cal. 74, 64 Pac. 110; Churchill v. Flournoy, 127 Cal. 362, 59 Pac. 791.

It is conceded on both sides that the plaintiff was a mere guest of P. F. Bresee at the time of the accident, and had neither the control of, nor the right to control, the driv

ing of the carriage, and that under such circumstances the carelessness of the driver, P. F. Bresee, contributing to the injury, cannot be imputed to her so as to constitute contributory negligence on her part; that to sustain the defense of contributory negligence, the defendant must prove personal failure of plaintiff to exercise ordinary care. In the discussion of the evidence to show such contributory negligence of plaintiff, it will be assumed that P. F. Bresee did drive upor the track imprudently near the approaching car, and that his negligence contributed to the plaintiff's injury. The contention of the defendant on this point is that P. F. Bresee, was a careless driver with respect to the act of passing in front of cars while driving about the streets, that he had a disposition to cross tracks in front of and dangerously near to approaching cars, that she knew his character in that respect, and that, so knowing, she did not look to see if a car was approaching when she saw that he was about to cross the track, or, if she saw it, did not warn him, nor make an effort to have him desist from the attempt, or, that she did not make the extra effort in these particulars that ordinary care demanded of her, in view of her knowledge of his careless character, that if she had made such effort he would have been deterred from crossing and she would have been unhurt, and hence, that her own lack of care contributed to her injury.

The evidence on this question, referred to in the order granting a new trial, consisted of testimony to the effect that P. F. Bresee had been for many years almost constantly driving about the city with the same horse and carriage, that on five occasions prior to the accident he had been seen to drive in front of cars so near thereto that the witnesses testifying considered it carelessly and dangerously near, that he usually drove with a loose rein and held the reins loosely in one hand, frequently driving with his head down, or turned to the rear conversing with others riding with him, and that he did not seem to be observant of other cars or vehicles approaching him. This evidence was not introduced for the purpose of proving that P. F. Bresee negligently drove in front of the car on the occasion of the accident. The defendants relied on other evidence to prove that fact, and so stated to the court. The question of its admissibility for that purpose is, therefore, not involved, and this must be kept carefully in mind. It was offered and admitted expressly for the purpose of showing the character of P. F. Bresee as a careless driver. In that connection, and in order to make it relevant, it was further proposed by the defendants to show that plaintiff, at the time, knew, or should have known, his character in that respect. It is first to be noted that the cases on the subject of the introduction of such evidence of character or previous habits to prove the fact of negligent driving on the occasion of the accident are not applicable to the question now under

consideration. Upon that question there is much confusion and considerable conflict in the authorities. We think the admissibility of the evidence, for the purposes for which it was here offered, depends upon different conditions and upon a difference in the issue to which it is directed.

The purpose of the evidence was to lay a foundation for the application of the familiar rule that the degree of care necessary to constitute the ordinary care required of a person upon any particular occasion, is measured by reference to the circumstances of danger and risk known to such person at the time. When the negligence of a person upon a particular occasion is in issue, it is usually, if not al ways, permissible to prove every fact, known to such person at the time, which would have a reasonable tendency to increase or decrease the risk and danger of a particular course of action. There are numerous instances of the application of this rule which are somewhat analogous to the case at bar, though we have not found any case precisely to the same point. Thus, vicious habits of an animal may be proven to show that it was negligence to allow it to go at large or unmuzzled, and particular exhibitions of such viciousness, of which the owner has knowledge, may be shown as evidence of the vicious disposition and of the neglect in issue. Judd v. Clare mont, 66 N. H. 419, 23 Atl. 427; Lynch v. Richardson, 163 Mass. 160, 39 N. E. 801, +7 Am. St. Rep. 444; Muller v. McKesson, 73 N. Y. 199, 29 Am. Rep. 123; 1 Wigmore on Evidence, § 251. And lack of ski.l of an employé, and particular instances thereof, may be shown, coupled with knowledge thereof by the employer, to prove negligence of the employer in hiring or retaining him. Pittsburgh, etc., Co. v. Ruby, 38 Ind. 312, 10 Am. Rep. 111; Mich. Cent. R. R. v. Gilbert, 46 Mich. 179, 9 N. W. 243; Davis v. R. R. Co., 20 Mich. 120, 4 Am. Rep. 364; 1 Wigmore on Evidence, §§ 208, 250. Although the rule is, as conceded here, that a person who is injured while riding in a vehicle driven by another is not chargeable with the contributory negligence of the driver, in which he did not participate, yet such person is not absolved from all personal care, but is required to exercise ordinary care to avoid the injury. Dean v. Penn. R. R. Co., 129 Pa. 514, 18 Atl. 718, 6 L. R. A. 143, 15 Am. St. Rep. 733; Michigan City v. Boeckling, 122 Ind. 39, 23 N. E. 518; Brickell v. N. Y. Cent. R. R., 120 N. Y. 200, 24 N. E. 449, 17 Am. St. Rep. 648; Nesbit v. Garner, 75 Iowa, 314, 39 N. W. 516, 1 L. R. A. 152, 9 Am. St. Rep. 486; 1 Shearman & R. on Neg. § 66a. The character and habits of the driver of the carriage with respect to similar dangers, if known to the plaintiff, would naturally have some effect on her own conduct, on the particular occasion in keeping a lookout for the danger herself, in giving him warning, and in enjoining on him a prudent course, and in order to enable the jury to determine whether or not she exercised ordinary care in that respect,

it was proper to give evidence of such character and habits, coupled with proof of knowl. edge thereof on her part. These observations and conclusions, however, are not applicable to the evidence of the driver's previous habits of driving with a loose rein, or of holding the reins loosely in one hand. These habits would not tend to prove either a careless habit of driving in front of cars too close for safety, or a disposition to do so. It was not claimed that the accident was attributable to his lack of control over the horse due to his manner of holding the reins. This evidence was not pertinent to any issue in the case and was improperly admitted. Although it was probably of slight importance, yet, in view of the large discretion committed to the judge of the trial court in the matter of granting a new trial, we cannot say it was not properly granted on that ground. We do not consider it necessary to consider the question of the sufficiency of the evidence to show plaintiff's knowledge of the driver's habits and character and of the particular instances of his negligence. Upon another trial the court can, if deemed best, direct the order of proof so that the evidence of such knowledge on her part shall be first introduced, and if no sufficient evidence to go to the jury is offered on that point, or in respect to some of the instances, the corresponding evidence thereof can be excluded. At the request of the defendant the court instructed the jury with respect to the conduct of the motorman that: "It is not negligence on the part of such motorman to assume that a person will not attempt to cross the track in front of an approaching car, which is so near as to render a collision probable." The probability of a collision between a moving car and a vehicle crossing in front of it, depends largely upon the speed of the car, and the action of a careful person attempting to cross, in choosing the distance at which to cross in front of such car, will depend upon his knowledge, and means of knowledge, of the speed with which the car is approaching him. There was evidence strongly indicating, if not absolutely demonstrating, that the car in question at the time of the accident was running at a speed of at least 25 or 30 miles an hour. This was in the nighttime and upon a street in the thickly settled portion of the city. With the car going at such tremendous speed, it is not unlikely that persons about to cross the track might choose a place so near as to make collision probable, and yet, from their point of view, it might seem entirely reasonable and safe for them to cross at the place selected. Their failure to perceive the danger might be entirely due to the excessive speed of the car, and to their inability in the darkness to detect it and comprehend the shortness of the time required for the car to pass over the distance between it and the placeselected for the crossing. The motorman must be assumed to know approximately the speed of his car. Under such circumstances.

and while running at such excessive speed, it cannot be said as a matter of law, that the motorman ought not reasonably to have expected that persons might attempt to cross the track at a point which would in fact be dangerously near, but which to them would not appear so. The circumstances might be such as to charge him with knowledge of this likelihood. Due care would require him in that case to anticipate such probability reasonably arising from the consequences of his own gross carelessness. The court, therefore, should not have stated as a matter of law that the motorman, under the circumstances had a right to assume that persons would not cross dangerously near in front of him. It should have been left to the jury to say whether or not his speed was so great that he should have assumed that persons might ignorantly attempt to cross so near as to make a collision probable.

The court also, at the request of the defendants, instructed the jury with respect to the proximate cause of the injury, as follows: "If you believe from the evidence that said collision, and the injuries so sustained by said Ada Bresee, would have resulted, even had said car been operated at a rate of speed not in excess of eight miles per hour at the time the vehicle in question was turned to cross the railway tracks, then any rate of speed in excess of eight miles per hour that said car may have been running at said time, was not a proximate cause of said collision, and cannot render the defendants liable in this action." This instruction implies a fact not physically possible, namely, that an injury caused by being thrown with great force and violence from the carriage to the ground would have been as great if the force and violence had been less than it actually was, the other circumstances being precisely the same. The action of force and violence, other things being the same, is mechanical and absolute, and it is impossible that different degrees of force should produce the same results, where all other circumstances are precisely the same. So far as the mere fact of the collision was concerned, it may be that, although the speed of the car was more than eight miles an hour, it would have occurred had the speed been lcss. The injury complained of, however, was alleged to have been directly caused by the impact of the plaintiff's body against the ground, and its extent would necessarily depend upon the force of the impact, and that force would depend on the speed of the car. Any increase in the speed would, necessarily, add to the force and, consequently, to the extent of the injury. At the time this accident happened it was unlawful to propel a street car along the streets of the city at a rate exceeding eight miles an hour, and a speed in excess of that rate constituted negligence, as a matter of law, and rendered the party operating the car liable for any injury caused by such excessive rate. Whatever additional injury, therefore,

was due to the excess of speed over eight miles an hour, was an injury caused by the defendants' negligence. The excess in the speed over that rate, an excess which is assumed by the instruction in question, must have been the direct cause of such additional injury. This additional injury from such negligence would render the defendants liable in the action, in the absence of plaintiff's contributory negligence. If the instruction had been limited to the happening of the collision alone, it might not have been objectionable in this respect, although even in that case it is metaphysical in form and would have tended to confuse the jury. But in the assertion that, under the circumstances stated, the excess of speed could not render the defendants liable in the action, it was erroneous. In either event it should not have been given. The order is affirmed.

We concur: BEATTY, C. J.; HENSHAW, J.; LORIGAN, J.; SLOSS, J.; ANGELLOTTI, J.

(3 Cal. App. 142)

In re REED'S ESTATE. (Court of Appeal, Second District, California. Feb. 23, 1906. Rehearing Denied by Supreme Court May 31, 1906.)

1. EXECUTORS SALES-POWER OF COURTWHO MAY QUESTION.

The question of the power of the court to direct a new sale on setting aside a former executor's sale cannot be raised by the original purchaser; the executor making no objection. 2. SAME-SETTING ASIDE SALE.

Under Code Civ. Proc. § 1552, authorizing the court to set aside an executor's sale if an offer of 10 per cent. more in amount than that named in the return be made in writing by some responsible person, the court may set aside the sale on such an offer being made by the original purchaser.

Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge.

Proceedings for the sale of real estate by Martin Winch, executor of Amanda W. Reed. From an order refusing to confirm the sale, the purchaser, Francis E Crawford, appeals. Affirmed.

for Wright, Bell & Ward, appellant. Works, Lee & Works, Oscar A. Trippet, and John A. Goodrich, for respondent.

SMITH, J. This is an appeal from an order refusing to confirm a sale of real estate at which the appellant was purchaser. The sale was made under a power in the will of respondent's testatrix, authorizing the executor to sell and convey the property, real and personal, of the estate "upon such terms and conditions and for such prices as to him shall seem good."

The objections to the order urged by the appellant are: (1) That the sale was fair; (2) that the price was not disproportionate to the value of the property sold at the time of the sale; (3) that to justify the order proof of two conditions were essential, name

ly, that the price was insufficient at the time of the sale, and that a sum exceeding such bid at least 10 per cent. exclusive, etc., could be obtained; and (4) that the court had no power to direct a new sale. Of these points, the first is sustained by the recitals of the order, and may be admitted. As to the second, the preponderating evidence was no doubt in favor of appellant's contention; but there was some evidence to the contract, which it appears from the statements of the court was regarded by it as sufficient to reject the sale. As to the fourth, it is a matter with which we think the appellant was not concerned; and as the order was made upon the application of the executor, who is re spondent, no objection can be urged to it.

The remaining objection is based upon an incorrect construction of the statute, which authorizes the court in its discretion to set aside the sale, "if an offer of 10 per cent. more in amount than that named in the return be made to the court, in writing, by a responsible person." Estate of Robinson, 142 Cal. 157, 75 Pac. 777. There is nothing in the decision in Estate of Leonis, 138 Cal. 194, 71 Pac. 171, inconsistent with this view; that case dealt with a different provision of the statute. In the present case, a written offer of 10 per cent. more than the amount named in the return was made by the appellant himself; and it was then in the discretion of the court, under the provision in question, either to accept such offer and confirm the sale, or to order a new sale. It is, indeed, claimed by the appellant that his bid was the result of a mistake. But this, we think, is immaterial; nor do we think that the court was bound to accept the offer. It may be added, however, that the appellant's bid was increased by 10 per cent. by another written offer by responsible bidder to purchase for the sum of $36,300; and we are of opinion, notwithstanding the objections of appellant-which seem to have had some weight with the court below-that the court might have accepted this bid. The objections referred to are, that under the terms of the sale to Crawford the deed was to contain certain "conditions, covenants and restrictions" as to modes of building, etc., to operate for 10 years, and that the bid of $36,300 was upon the condition that the purchaser should be so far relieved from the conditions imposed on the appellant as to permit them to erect an opera house as described in the bid. The executor expressed his acquiescence in the proposed change, which, it appears, would have been equally beneficial to the estate; and we are of the opinion that the provisions of section 1552, Code Civ. Proc., were substantially complied with.

The order appealed from is affirmed.

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

(3 Cal. App. 338)

ALCATRAZ MASONIC HALL ASS'N v. UNITED STATES FIDELITY & GUARANTY CO.

(Court of Appeal, First District, California. March 28, 1906.)

1. PRINCIPAL AND SURETY DISCHARGE OF SURETY-CHANGE IN OBLIGATION.

Under Civ. Code, § 2819, exonerating a guarantor if by any act of the creditor the original obligation is altered in any material respect, a surety in a bond conditioned on performance by a contractor of a building contract for $16.300, is released from liability on the owner and contractor changing the plans and increasing the cost $315.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Surety, §§ 162-165.] 2. SAME-EXTENT OF LIABILITY.

Since a contractor, under contract for the construction of a building and the delivery thereof free from all liens, is liable only for enforceable liens, a surety in a bond conditioned on the performance of the contract is liable only for enforceable liens. 3. SAME.

A contract for the construction of a building required the owner to pay 75 per cent. of the contract price in installments, and the balance ($4.075) 35 days after the acceptance of the work. A surety executed a bond in the sum of $4,075, conditioned on the contractor delivering the building free from liens. Held that, unless the owner was compelled to pay a greater sum than $4,075 to free the building from valid liens, the surety was not liable; it having the right to have this amount applied toward the satisfaction of valid claims. 4. SAME.

A surety in a bond conditioned on a contractor, under contract for the construction of a building, performing his contract and delivering the building free from liens, is not liable for the expenses incurred by the owner in suits for the enforcement of liens, where under the contract he was not required to pay 25 per cent. of the contract price until 35 days after the completion of the building, during which time he could ascertain the lien claimants and pay them from the sum unpaid.

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

Action by the Alcatraz Masonic Hall Association against the United States Fidelity & Guaranty Company. From a judg ment for defendant, plaintiff appeals. Affirmed.

Snook & Church, for appellant. Campbell, Metson & Campbell, for respondent.

HARRISON, P. J., The plaintiff entered into a contract with one L. U. Grant, October 19, 1899, for the construction by the latter of a building upon its land at the agreed price of $16,300, and at the same time the said Grant as principal and the defendant as surety executed to the plaintiff a bond of indemnity in the sum of $4,075, conditioned that Grant should faithfully perform the said contract and deliver the building to the plaintiff within the contract time for its completion, free from all liens, demands, and claims, and should pay to the persons performing labor or furnishing materials for the construction of the building the value thereof.

Cal.)

ALCATRAZ MASONIC HALL ASS'N v. UNITED STATES F. & G. CO.

The contract provided that the building should be completed within 150 working days from the date thereof, and that the payment of the contract price should be made in installments as the work progressed, in sums equal to 75 per cent. of the value of the work done and materials furnished, as estimated on the 1st and 15th days of each month, and the balance, to wit, 25 per cent. of the contract price of $16,300 ($4,075) 35 days after the completion and acceptance of the work. After the execution and recording of the contract the plaintiff and Grant made certain alterations and changes therein, by which the cost of the building was increased in the sum of $315, and agreed that the said additional cost should be paid at the same times and in the same manner as payments under the original contract. During the progress of the work payments were made to Grant upon certificates of the architect on account of installments due on the contract, amounting to $12,138.85. Before the building was completed Grant abandoned the contract, and the plaintiff completed the construction of the building and expended therefor $641.23. After its completion certain parties, who had furnished materials and performed labor for Grant in its construction, filed claims of lien therefor, amounting to about $7,500, and subsequently brought actions in the superior court for their enforcement. These actions were, by an order of court, consolidated, and the plaintiff filed its answer thereto, alleging that the building was not subject to liens exceeding in the aggregate $3,834.92, and offering to deposit that sum in court for their satisfaction. Upon the trial of the cause the court found that that was the amount due from the plaintiff to Grant upon the contract at the commencement of the action; and upon its order the sum was deposited in court for the said claimants, and the court thereupon rendered its judgment that the said liens were thereby fully satisfied. this litigation the plaintiff employed certain attorneys, for whose services he paid $500, and incurred certain costs, amounting to $27. The present action is brought to recover these amounts from the defendant. A demurrer to the complaint was sustained, and from the judgment entered thereon the plaintiff has appealed.

In

The bond of the defendant makes no reference to the provisions of section 1203, Code of Civil Procedure, and the objection to its validity based upon the rulings of the Supreme Court in reference to that section are inapplicable. It is unnecessary to consider the effect of the provision in the bond for the payment by Grant to the laborers and materialmen, since the complaint herein is limited to the rights of the plaintiff alone. The condition of the defendant's obligation is the failure of Grant to faithfully perform his contract and deliver the building to the plaintif free from all lions, claims, and

157 demands. Although it is alleged that Grant did not complete the building, but abandoned his contract when it was uncompleted, and the plaintiff was compelled to complete the same, it does not show that it has sustained any damage thereby, or make any claim against the defendant therefor. The total amount of the contract price for the building and for the extra work is $16,615. Deducting from this $12,138.85 paid to Grant upon the certificates of the architect as the work progressed, and $3,834.92 determined by the court to be in the plaintiff's hands applicable for the discharge of the liens upon the building, there remains $641.23, the amount paid by the plaintiff for the completion of the building, thus showing that the plaintiff sustained no pecuniary damage by reason of Grant's failure to complete his contract. The basis of the defendant's obligation which the plaintiff presents in support of its right of action is the failure of Grant to deliver the building free from liens, and upon this point it alleges that upon the completion of the building the sum of $3,834.92 was chargeable against the building for liens and claims thereon; and it also alleges that upon the trial of the action to enforce the liens the court found that the lien claimants were entitled to this amount of money, and that upon depositing that amount in court for the discharge of said liens the court rendered its judgment that the liens were fully satisfied.

1. The alteration of the contract as set forth in the complaint had the effect to release the surety from its contract of indemnity. There is no allegation in the complaint supporting the suggestion in the brief of the appellant that the original contract contained a provision authorizing changes to be made therein; nor is it alleged that the changes were made with the consent of the defendant. For the purpose of determining the sufficiency of the complaint as against the demurrer we can consider only matters therein set forth. There is no principal of law better settled than that a surety has the right to stand upon the very terms of his contract, and that any alteration in the terms of the principal's contract, made by the parties thereto without his assent, will have the effect to discharge him from all liability. By such alteration the contract ceases to be the one for which he became surety, and the extent of such alteration, or whether his liability will be increased or diminished thereby, is immaterial. Having the right to determine in the first instance whether he will become such surety or not, he has the right to be consulted upon the terms proposed for any variation of his obligation, and if made otherwise his obligation is extinguished. The principle of this rule is discussed in Brandt on Suretyship, § 106. See, also, Miller v. Stewart, 9 Wheat. (U. S.) 680, 6 L. Ed. 189; Bethune v. Dozier, 10 Ga. 235. In this state the Legislature has

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