(230 P.) ed, and no exception was saved to the giving | sory note and for the value of grapes sold of the instruction in which the alleged er- and delivered. roneous measure of damages was submitted to the jury. Under such circumstances no error can be assigned here. [11, 12] The errors assigned in the motion for a new trial for the first time are not available, where the errors were not saved during the trial. During the trial it appeared from the testimony of the appellee himself that he did not own the cattle, and consequently had no right to recover for their loss. No motion was made, however, to withdraw from the jury all of the evidence as to the loss of cattle, nor was the court requested to instruct the jury to that effect. The point is therefore not available. We have thus, unnecessarily perhaps, again gone over the whole case, and find nothing calling for a departure from our former opinion. The motion for a rehearing should therefore be denied; and it is so ordered. BOTTS and FORT, JJ., concur. PUPPO et ux. v. LAROSA. (S. F. 10788.) (Supreme Court of California. Nov. 5, 1924.) 1. Sales 82(1), 178(1)-Buyer of crop by going into possession accepts crop; buyer of crop held bound to pay agreed price not later than date set for harvesting. Where buyer of grape crop obligated himself to pay balance of purchase price over amount evidenced by promissory note, when he commenced picking last half of crop, the grapes to be harvested before October 1st, and went into immediate possession and ownership of entire crop, he bound himself to pay agreed price therefor not later than October 1st. 2. Interest 45-Note held to bear interest from due date notwithstanding parties' agreement that it should not bear interest before it matured. Where principal amount of note sued on "became due" 30 days after its date, it bore interest from that date notwithstanding parties' agreement that it should not bear interest before it matured, in view of Civ. Code, §§ 3289, 3302. In Bank. On September 20, 1922, plaintiffs entered into a contract with defendant by which the latter agreed to buy the grape crop on the land of the plaintiffs for $7,750, one-half of the purchase price of which was evidenced by a promissory note for that amount, payable in 30 days, bearing no interest, the balance of $3,875 to be paid by the buyer as soon as he commenced picking the last half of the crop, the grapes to be harvested before October 1, 1922. The seller agreed to haul the empty boxes from the depot to the vineyard, and, to haul all grapes harvested to the railroad station free of charge. Defendant has paid $2,000 on account of the note, but nothing more. When about half of the whole crop had been picked defendant declined to take any more grapes. The remainder of the crop was picked and sold by the sheriff under attachment proceedings instituted by the sellers, who thereupon brought this action. The complaint is in two counts: First, for the unpaid balance of the promissory note; and, second, that the defendant became indebted to the plaintiffs for the remaining one-half of the purchase price for grapes sold and delivered. The defendant admitted the execution of the contract for the purchase of the grapes, but averred that the plaintiffs did not perform their part in hauling the boxes and grapes. As to this contention the evidence is practically without conflict, and amply supports the finding that plaintiffs did everything required of them, and that the defendant refused to take the balance of the grapes. [1] The next contention of the appellant is that the time never arrived when plaintiffs could demand payment for the grapes. He argues that the evidence does not show that he ever "commenced to pick the last half of the crop." While the testimony as to the actual proportion of the crop of grapes picked is meager, there is enough in the evidence on that point alone to warrant the implied finding of the trial court that the time for payment of the grapes had arrived. But, aside from the actual picking of the Appeal from Superior Court, Santa Clara grapes, the appellant went into immediate County; P. F. Gosbey, Judge. Action by Stefano Puppo and Teresa Puppo against Vito Larosa. Judgment for plaintiffs, and defendant appeals. Affirmed. See, also, 230 P. 440. possession and ownership of the entire crop. By that action he bound himself to pay the agreed price therefor. By his contract he obligated himself to pay the balance of the purchase price over the amount evidenced by the promissory note when he commenced Albert Picard, of San Francisco, for ap- to pick the last half of the crop, and cerpellant. tainly not later than October 1st, by which R. V. Bressani and D. T. Jenkins, both of time he agreed that the whole crop should San Jose, for respondents. WASTE, J. The defendant appeals from a judgment for a balance due on a promis be harvested by him. He breached his contract by his absolute refusal to take the grapes and by failing to pay as he agreed. On no theory that we can perceive was the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The judgment is affirmed. We concur: MYERS, C. J.; SHENK, J.; SEAWELL, J.; LAWLOR, J.; LENNON, J. PUPPO et ux. v. LAROSA. (S. F. 10911.) (Supreme Court of California. Nov. 5, 1924.) 1. Appeal and error 984(1)-Costs 12 Allowance in discretion of trial judge. Allowance or disallowance of costs and disbursements is left to discretion of trial judge, and when there is nothing in record showing an abuse thereof Supreme Court will not interfere. 2. Costs 203-Trial court may allow such amendments to cost bill as appear just and necessary. Under Practice Act, § 68, trial court, where a party to the action has moved a taxation of the other's costs, may allow such amendments to cost bill as appear just and necessary. In Bank. Appeal from Superior Court, Santa Clara County; P. F. Gosbey, Judge. time of performance on his part extended Dougall Co., 190 Cal. 308, 212 P. 1; Malone beyond October 1st. This action was not v. Roy, 107 Cal. 518, 520, 40 P. 1040; Jones commenced until some time after that date. v. Gardner, 57 Cal. 641, 643. The action of [2] The promissory note by its terms bore the trial court in allowing legal interest on no interest. The trial court allowed legal the amount due was therefore correct. interest thereon from the date of its maturity. When a legal rate of interest is stipulated in a contract such rate remains chargeable after a breach thereof, as before, "until the contract is superseded by a verdict or other new obligation." Civ. Code, § 3289; Casey v. Gibbons, 136 Cal. 368, 371, 68 P. 1032. If, however, interest is not expressly reserved, and the paper matures at a time certain, it will draw interest from its maturity by operation of law without prior demand, and at the legal rate. In such case interest is in the nature of damages for the detention of the debt, and is not recoverable by virtue of any provision of the contract. Civ. Code, § 3302; Gray v. Bekins, 186 Cal. 389, 399, 199 P. 767; 8 Cor. Jur. pp. 1095, 1096, §§ 1425-1427. When money is not paid according to the terms of a note, the holder suffers a detriment properly compensable in damages which courts have generally adjudged to be the rate of interest agreed upon in the note, if it be within the legal rate (section 3289, supra), between maturity and the date of the judgment. The fact that the contract provides for no interest has nothing whatever to do with the damages due after the breach of the condition for payment on the due date of the note. Too much importance should not be given to the words "at the rate of no interest" contained in the note. They import no more than that the defendant agreed to pay the plaintiffs, on maturity of the note, the principal sum of $3,875. Interest before maturity and damages for not paying the amount when due are two different things. Some confusion has arisen in this connection because the damages have usually been reckoned in terms of interest; but interest after maturity is not according to contract, but by way of damages, and is recoverable as a matter of law when ascertainable. Therefore the court has power to determine the damages, which P. 439. It is an appeal by defendant from it generally does by allowing legal interest after maturity and up to the time of judgment. In such cases there seems to be no good reason under our practice why judgment may not be given for interest from the maturity of the note, or in damages, either mode being proper. Jones v. S. S. Cortes, 17 Cal. 487, 498, 79 Am. Dec. 142; Rogers v. Duhart, 97 Cal. 500, 504, 32 P. 570. See, also, Archer v. Morehouse, Fed. Cas. No. 18225. The principal amount of the note here sued on "became due” 30 days after its date. It should bear interest from that date, notwithstanding the agreement of the parties that it should not bear interest before it matured. See the following cases: Lockhart v. Mc Action by Stefano Puppo and Teresa Puppo against Vito Larosa. From an order denying motion to strike from files amended memorandum of costs and disbursements and denying motion to tax costs, defendant appeals. Affirmed. Albert Picard, of San Francisco, for appellant. R. V. Bressani and D. T. Jenkins, both of San Jose, for respondents. WASTE, J. This appeal relates to matters arising out of the attachment referred to in the opinion of the court, this day filed, in Puppo v. Larosa (S. F. No. 10788) 230 an order denying his motion to strike from the files an amended memorandum of costs and disbursements, and also from an order denying his motion to tax costs. The original cost bill as filed by plaintiffs contained items in the aggregate amount of $562.85. The defendant filed notice that he was dissatisfied, and excepted to all the items in the bill, and that he would, on a day stated, move to have the costs taxed by the court on the grounds that the items were improper, not legal, unreasonable, and excessive. On the day fixed in the notice the matter was continued to a later date, on. which day, the record discloses, it was "partially heard and thereafter continued." Be (230 P.) fore the next hearing the plaintiffs were permitted to file what was called an amended memorandum of costs. which was in all respects the same as the first memorandum, except that it specified in more detail the nature of and reasons for certain expenditures. These related to money advanced for picking and watching the grapes belonging to the defendant and attached in the action and sold as perishable property; the sheriff having requested plaintiffs to provide the pickers and watchers, and to pay the costs thereof. The defendant against excepted to the cost bill in fail, and gave notive that he would, on the day to which the previous hearing had been continued, move to have the costs taxed by the court upon the same grounds as stated in his previous motion. Coupled therewith was the statement that the motion was made without admitting the right of plaintiffs to fle an amended bill of costs. With the motion to tax. defendant filed a notice of motion to strike the amended memorandum of costs and disbursements from the fles. On the day fixed by the notices and by the previous continuance, the defendant and his attorney were both absent. No explanation for their absence was given at the time or has been offered here. The matter was therespon submitted to the court and the order made denying both motions. the bill as first presented and which be might have pressed had he been present at the hearing of his motion. The addition facts stated met the burden whit rested on the plaintiffs (Miller v. Highland Ita Co., supra) to show that the charges were proper and necessary. [2] The right of the trial court where a party to the action has moved a taxation of the other's costs, to allow such amendments to a cost bill as appear jest and beceSSETT has always beer recognized in this state. Burnham v. Hays. 3 Cal. 115, 115, 55 Am. Dec. 589; Practice Act, § 68 (Code Civ. Proc. § 473) We deem it unnecessary to discuss the contention of the respondents that the ap pellant waived any objection that he may have had to fling of the amended cost bill and abandoned his original motion to tax costs by his unexplained failure to appear at the time set. No abuse of discretion appearing from the action of the trial court. the orders are and each is affirmed. We coneur: MYERS. C. J.; SHENK. J.; SEAWELL, J.; LAWLOR, J.; LENNON, J. KEMP v. ENEMARK et al. (S. F. 11150.) (Supreme Court of California. Nov. 5, 1924. Rebearing Dezied Dec. 4, 1924) record, findings taken as supported by evidence. Findings of trial court, in absence of record showing evidence, must be taken as fully supported by evidence. 2. Equity 66-Wife cannot assert in equity homestead purchased by husband with proceeds of forgery, without doing equity. [1] The caly points made by the appellant are that the items of cost do not appear on their face to be necessary or proper. and that they are excessive in amount. The determination of the questions thus presented rested with the trial ecurt. Appel- 1. Appeal and error 907(2)—In absence of lant cites Miller v. High and Ditch Co., 91 Call 106, 27 P. 598, to the effect that, where the charges do not appear proper and necessary, the burden is on the claimant to us tain them. But that case, and Barnhart v. Krom. SS Cal. 447. 8 P. 210. cited by the court, are also authority for the declaration that the allowance or disallowance of costs and difcrsements must be left in Dearly every instabse to the discretion of the inige before whom the case was tried. When there is nothing in the record showing that the trial court did not properly exercis its discretion this eart will not interfere In this case the amount of the costs claimed was not varied or chazzed by the amendThe same proof would have been admissible under the amended ent 10l as in support of the original which apparently did not entail exfident information to show why ch a large expenditure was incorred The trial einrt was in position to &NOTICI That homestead does not fall within classiand to know the reason. Consequently t ɓations designated as subject to execution and seems wholly immaterial whether the insale in Civ. Code, §§ 1241, 1245–1246, dies not formation was given in the form of an am prelude its sale under execution on Judent plifed or amended Will or in port of the in action by defrauded back against husband bill as I S4 It stated the ob purchasing homestead with Long protared the defendant interposed to, from bank 1y forged unte Forster cases see same toplo an! KET-NUMEER in all Key-Numbered Digests and Indexes Where Eusband procured kan by forging name of third party to note, and invested proceeds in land and improvements thereon, which be exchanged for other land, wife fling bonestead declarations thereon, while publication of service was riding against husband in action der subsequent execution against them, though on note, cosid not enjoin sale of premises unshe was not party to the fraud, since oze seeking equity must do equity. 3. Homestead -97-That homestead does not fall within classifications designated as subject to execution and sale, held not to preelude sale in fraud case. 4. Election of remedies 5-That defrauded, bank had proceeded to judgment at law against husband on note, did not preclude it from relying on fraud in wife's action to re strain sale of homestead under execution. county of Santa Clara. Thereafter, in June, 1921, Kemp entered into an agreement of sale and exchange, whereby the Santa Clara property was exchanged for real property in the city and county of San Francisco. That bank proceeded to judgment at law, Thereafter Kemp decamped for parts uninstead of equity, on forged note, did not pre-known, and he has not been heard from since. Iclude its defense of fraud in subsequent action by forger's wife to enjoin sale of homestead under execution, since no element of estoppel making defense inequitable existed, and no necessity existed for establishment of fraud in equity until suit was commenced. 5. Assignments 27-Assignment of substantial property right carries with it right to sue in equity, where incidental to property right. Bare right to sue in equity for fraud, separate and distinct from property right, is not assignable, but when merely incidental to subsisting substantial property right assigned, which is itself intrinsically susceptible of legal enforcement, assignment carries with it right to set up the fraud. In Bank. Appeal from Superior Court, City and County of San Francisco; George H. Caban iss, Judge. The record title to said last-mentioned property has stood in the name of John D. Kemp since July, 1921, but said property is in reality community property. The actual value of said last-mentioned real property was and now is the sum of $5,000. On or about August 19, 1921, the bank, seeking to have its loan repaid, assigned to one Enemark, for collection, the note given by John D. Kemp to the bank, and on the same day Enemark commenced an action on the note against John D. Kemp and L. G. Lerner, whose name had been forged to the note. The day following the institution of the action on the note, Enemark and the bank of San Jose discovered for the first time that the signature of L. G. Lerner had been forged to the note. Thereupon the ac tion was dismissed as to Lerner. After dis missing the action against Lerner on the Action by Laura F. Kemp against E. H. promissory note, Enemark in that action comEnemark and another. Judgment for defend-menced publication of summons against John ants, and plaintiff appeals. Affirmed. D. Kemp. While publication of summons Knight, Boland, Hutchison & Christin, of was running, Laura F. Kemp, plaintiff in San Francisco, for appellant. this action, and wife of John D. Kemp, made Bohnett, Hill & Campbell, of San Jose, for two declarations of homestead, for the joint respondents. LENNON, J. The plaintiff in this action seeks the equitable relief of injunction to prevent the defendants from selling real prop erty under an execution sale. The trial court denied the relief sought and this is an appeal from a judgment in favor of the defendants. The appeal comes here upon the judgment roll alone. The facts of the case as revealed by the record before us are substantially these: John D. Kemp, the husband of the plaintiff herein, entered into a contract with the bank of San Jose whereby it was agreed that the bank would lend to said Kemp the sum of $2,500, if he would execute and deliver to the bank a promissory note signed jointly and severally by himself and one L. G. Lerner. Said John D. Kemp executed the required note, but instead of securing the signature of the said L. G. Lerner, as a joint maker, as he had agreed to do, forged the signature of said L. G. Lerner to the note. Kemp then presented the note to the bank, and represented to the bank that the signature of L. G. Lerner was genuine. Relying upon the representation thus made, the bank, on October 18, 1920, loaned to Kemp the sum of $2,500. Kemp took the proceeds of the loan and invested the same in making improvements and paying part of the purchase price on a ranch which he then owned in the benefit of herself and her husband, upon the property situate in the city and county of San Francisco, one on August 19, 1921, and one on November 28, 1921. Upon the publication of summons being completed, and John D. Kemp defaulting, judgment in the sum of $2,442.85, together with costs, was entered against him on December 6, 1921. Thereafter, on the 8th day of December, 1921, Enemark caused to be recorded in the recorder's office a transcript of said judgment. On the 1st day of December, 1923, a writ of execution was issued upon said judgment, directed to the sheriff of the city and county of San Francisco, and on the 4th day of December, 1923, said sheriff levied said writ upon the real property situate in the city and county of San Francisco upon which the two declarations of homestead had been filed by Laura F. Kemp. Thereupon the plaintiff in this action, Laura F. Kemp, joining with her as plaintiff her husband, John D. Kemp, instituted this action against the defendants Enemark, and Finn, as sheriff, to enjoin the threatened execution sale. John D. Kemp, upon the theory that he was an unnecessary party to the action, was dismissed as a party plaintiff during the course of the trial of the action. The defendant Enemark and the defendant sheriff filed their respective answers, denying, among other things, that the plaintiff, Laura F. Kemp, resided upon the premises in ques (230 P.) tion at the time the homesteads were de- instant case does not fall within either of clared, and further pleaded, as a separate the classifications of homesteads which may and special defense, all of the facts relating be subjected to execution and sale, as desigto the fraud practiced upon the bank by nated by sections 1241 and 1245 to 1259, inJohn D. Kemp; and at the same time filed a clusive, of the Civil Code, no attack can be cross-complaint. At the trial of the case the successfully made upon said homestead, and cause of action pleaded and relied upon in that she is therefore entitled to an injunction the cross-complaint was abandoned. by a court of equity restraining the sale of said homestead under execution. The case of Shinn v. Macpherson, supra, holding adversely to this contention, is squarely in point. In that case money was fraudulently abstracted by the husband from the assets of the firm of which he was a member, and used to pay off the mortgage upon premises upon which his wife had previously filed a declaration of homestead. The court in that case held that the homestead was not exempt from execution, saying: [1] All of the fraudulent representations involved in the transaction in suit were made by John D. Kemp alone. Laura F. Kemp was not a party thereto, and had no notice or knowledge of any of the fraudulent representations, acts, or deeds done and made by said John D. Kemp until long after the same had been done and made. It should be noted in particular that the trial court specifically found that the money procured by the fraud of the plaintiff's husband went into the homestead property, and that said money so obtained by fraud was invested in and constituted a part of said homestead property. The trial court further and finally found that the plaintiff did not reside on the premises in question at the time of the first declaration of homstead thereon, but that the plaintiff did reside on the premises at the time of the second declaration of homestead. The findings of the trial court as hereinbefore narrated in substance and effect must, in the absence of a record showing the evidence adduced upon the trial, be taken as fully supported by the evidence. [2] He who seeks equity must do equity. Plaintiff does not dispute that the money in question was fraudulently obtained, but relies for a reversal in part upon the point that she was not a party to the fraud. As pointed out in Shinn v. Macpherson, 58 Cal. It will be noted that the claim sought to be satisfied is not in excess of the amount out of which the bank was defrauded by Kemp, and to the extent of the money obtained by her husband by fraud, invested in the homestead, the plaintiff in the case at bar is seeking to retain for herself that which is not rightfully hers. And, while retaining that which rightfully belongs to another, she seeks the aid of a court of equity to make secure her wrongful possession thereof. In other words, the plaintiff herein is seeking the aid of a court of equity to preserve to her the fruits of the fraud of her husband. Plaintiff does not offer to do equity. She cannot therefore successfully seek the aid of equity. [3] There is no merit in plaintiff's contention that inasmuch as the homestead in the * * "There is no provision of the homestead law that affords a cloak for such a transaction. That law was enacted for beneficent purposes, designed to secure a home for the family, but was never intended to be a secure and impregnable asylum in which to deposit pecu* that lations from others.' It is true it is by the statute exempted from execution or forced sale except in certain enumerated cases. But these provisions of the statute have no application to the case before us." These provisions were designed to protect the homestead "from forced sale for ordinary indebtedness, not as an immunity from torts and their legal consequences." The case of Ohio Electric Car Co. v. Duffet, 48 Cal. App. 674, 192 P. 298, is also conheld that a court of equity had the power to tra to plaintiff's contention. The court there declare a lien on a homestead to the extent of the fund received by the wife from the sale of property transferred to her by her husband to defraud creditors and found to have been invested by her in property upon which In that case the she declared a homestead. money invested in the homestead property was derived from the sale of other property fraudulently transferred by the husband to the wife. In the instant case the money was obtained from the Bank of San Jose by means of the forgery of the husband. The only distinction between the case last cited and the instant case consist in the type of fraud practiced. The principle involved is the same, viz., the homestead property which represents the fruit of fraud is not exempt from execution and sale. The court in that case said: "In so far as her home represented the funds received from her husband, under the circumstances in this case, it was not a proper subject for inclusion in her declaration of homestead, and cannot be impressed with this character. In so far as this property is not her property, but is property belonging to another and impressed with a trust, it is beyond the protection of the homestead laws." It is one of the contentions of the plaintiff that it is only in those cases where there is |