erwise performed by defendant, Sidney Smith, [tract, or has refused to perform it accordand each of the same, by reason of said non-ing to its terms, is not afforded a lien to seperformance, are and is null and void; but cure him from loss because of his own breach by reason of the improvements made by said of the contract." In Montgomery v. MeyerSidney Smith pursuant to the terms thereof, stein, 186' Cal. 459, 464, 199 P. 800, the court and of which plaintiff has secured and is again referred to section 3050 of the Civil now enjoying the benefit, said Sidney Smith Code, and declared that it was not intended is entitled to the sum of $1,500." The court to abrogate the previously established rules further found that it is not true that the of equity on the subject. The court quoted plaintiff has failed, neglected, or refused to with approval a statement of the doctrine carry out or perform any of the terms on his relating to the right of a vendee to a lien part to be performed under any of said con- upon land as security for the repayment of tracts; "that it is not true that the plaintiff, what he has paid, or for the repayment of Philip L. Wilson, holds the title to the said moneys expended for improvements on the real property, subject to the faithful per- land, which statement, as quoted, in terms formance on his part of the terms and condi- excluded from the conditions authorizing tions, if any, of said contract, but it is true such relief any act "due to the default of that the plaintiff, Phillip L. Wilson, holds the the vendee." legal title to said property, subject to the payment to the defendant, Sidney Smith, of the sum of $1,500."

Respondent has not filed any reply to appellant's brief, although he has had abundant time and opportunity so to do. The question presented for determination here, as stated by counsel for appellant, is:

"Can a purchaser of real property, after his default, recover for improvements installed on the land when the vendor has not refused to complete the sale and is not in default?"

We venture to suggest that the real question is whether or not such purchaser, under the stated facts, is entitled to a lien upon the property for the value of improvements thus installed by him on the land. We are of the opinion that the right to such lien, under the stated circumstances, does not exist.

In Merrill v. Merrill, 103 Cal. 287, 35 P. 768, 37 P. 392, the plaintiff, who was purchaser under a contract of sale of real property, made default in the payment of an installment after she had paid $3,000 of the purchase price. Thereupon the vendor de

manded and obtained the deed which had

been deposited in escrow, and denied the right of the plaintiff to purchase. The court rendered judgment in her favor for the money which she had paid, but refused to allow her a lien upon the land. The plaintiff appealed from this judgment and relied upon section 3050 of the Civil Code, which reads as follows:

"One who pays to the owner any part of the price of real property, under an agreement for the sale thereof, has a special lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover back, in case of a failure of consideration."

But the court held that said section should be construed in accordance with the wellknown rules of equity, under which no such lien exists in favor of one who is in default. "One who has himself abandoned the con

Under the findings of fact in the present case, it is clear that the only default that has occurred in the matter of compliance with the terms of the contracts has been the default of the defendant. This being so, he is not entitled to a lien upon the land as security for the repayment of any expenditures which he may have made thereon. The judgment is reversed.

We concur: HOUSER, J.; CURTIS, J.

BLUMER v. RAUER et ux. (Clv. 4479.) (District Court of Appeal, First District, Division 1, California. Oct. 14, 1924.)

1. Contracts 346 (15)—Finding contract by one defendant not variance from complaint charging two with liability.

Where complaint charged both defendants with liability for breach of contract, finding the evidence was not variance from complaint; contract by one defendant in accordance with judgment being rendered only against that one.

2. Agriculture 7-Fertilizer act inapplicable to sale of manure.

Sale of cars of fertilizer, consisting of excreta of domestic animals, which were not certified and labeled, as required by St. 1903, p. 259, St. 1911, p. 488, St. 1915, p. 42, did not violate the act; such sales being expressly excepted.

3. Sales261(5)—Statement of seller as to goods held expression of opinion, and not warranty.

Statement of seller that manure mixtures would double crop of grapes was not warranty, but mere expression of opinion.

Appeal from Superior Court, City and County of San Francisco; E. P. Mogan, Judge.

Action by A. M. Blumer against J. J. Rauer and Frances Rauer, his wife, in which Frances Rauer filed a cross-complaint. From

(230 P.)

a judgment for plaintiff, defendants appeal. | load at the same price. Appellant asserts Affirmed.

H. M. Anthony, of San Francisco, for appellants.

E. L. Chloupek, of San Francisco, for respondent.

that respondent stated that 100 tons would she made no reservation for additional ferconstitute a three-carload shipment, and that tilizer. However that may be, on January 7, 1921, appellant phoned to respondent's office to the effect that she would take three carloads of said fertilizer, but that she did KNIGHT, J. The defendant Frances Rauer appeals from a judgment rendered not want more than 120 tons, and requested On January against her and in favor of plaintiff A. that shipment begin at once. M. Blumer for the payment of the sum of 10th the first carload was shipped, followed $1,255.45 on account of the sale to de- by the other two on January 12th and Janfendant of three carloads of fertilizer, weigh-uary 14th. Upon arrival of the fertilizer ing 139% tons. In her answer, appellant admitted the delivery of 100 tons of said fertilizer, but claims that the same was not of the quality bargained for, and that the additional weight in excess of 100 tons represented the water, rice hulls, and sand

at San Martin, part of the same was unloaded by appellant's employee, and said employee then phoned appellant that there was something wrong with the quality of said fertilizer, and requested appellant to come at once to inspect it. She went the

with which said fertilizer was mixed. Ap- following day, and, after finding rice hulls pellant also pleaded that said sale was made and water mixed with said fertilizer, enby respondent in violation of the so-called deavored to phone respondent about the matter, but ascertained that he was absent from commercial fertilizer act. In a cross-comSan Francisco. She then made complaint to plaint, appellant alleged that respondent made representations preceding and at the respondent's employee, and the latter promistime of the sale to the effect that the ap-ed to go to San Martin to examine said ferplication of said fertilizer to the soil of appellant's vineyard would double the crop of grapes to be grown thereon; whereas, as a matter of fact, instead of doubling said crop, the tonnage of grapes grown during the year following fertilization decreased nearly one-half, as compared with the crop grown the previous year. Appellant prayed for judgment against respondent for the sum of $2,420, as damages for loss of the anticipated grape crop, and for the furthertified regarding the quality of said fertilizer, sum of $350, to cover the freight and transportation charges of said fertilizer.

tilizer. Appellant's employee continued, however, to unload said cars, but, instead of spreading the fertilizer upon the soil of the vineyard, it was dumped in piles along the side of a road, and as a matter of fact was not applied to the soil of the vineyard until the following March, after this suit had been commenced. There was much other evidence given in the case on other matters. Experts, both professional and practical, tes

the results of laboratory tests made of the same, the consequence of mixing rice hulls It appears from the evidence that at the with said fertilizer, and the detrimental eftime of said sale respondent was engaged in fect of allowing said fertilizer to remain in the business of selling manure from corrals piles along said road exposed to the rain and feeding pens of J. P. Holland, located during the months of January and February, in "Butchertown," south of the city of San and part of the month of March. Further Francisco. Said corrals and pens were used evidence was offered to show that the crop for the purpose of fattening live stock for shortage complained of was caused, not by market, and rice hulls were used as a bed-inferior quality of fertilizer, but by severe ding to keep said livestock clean. During frosts and other climatic conditions. We the latter part of December, 1920, appellant, having heard of the quality of the fertilizer from the Holland corrals, negotiated with respondent for the purchase of a quantity thereof, to be used by her upon the soil of the vineyard belonging to her, situate near San Martin, Santa Clara county. A written memorandum of agreement was prepared and signed on January 4, 1921, calling for 100 tons of "manure mixtures" at $8 a ton, to be delivered "as soon as advised" by appellant, shipments to be made two or three days apart. There is a conflict in the testimony regarding the quantity that was to be shipped. Respondent claims he told appellant that 100 tons would amount to a twocarload shipment, and that appellant also reserved the right to obtain a third car

think it unnecessary to narrate the additional evidence in any greater detail than has already been done, for the reason that in any event it merely presents a conflict of proof as to certain points upon which the trial court found adversely to appellant's claims. The trial court found generally in favor of the plaintiff on all material issues, and judgment in his favor followed for the full amount sued for, together with interest thereon from the date of the delivery of said fertilizer.

Respondent upon this appeal first attacks the findings, and contends in this respect that the same are either not supported by the evidence, or are contrary thereto and to the admissions made by the pleadings.

An analysis of the findings, however,

necessarily have been the same, in view of
the other findings upon the main issues.
[1] Appellant next urges that "there is a
variance between the complaint and find-

proves that they are sufficient in form and
in substance. Those that are essential to
support the judgment are amply sustained
by the evidence, and it would seem that ap-
pellant's objections thereto are of a pure-ings." In this regard, it is contended "that
ly technical nature. For instance, appel-
lant objects to the finding to the effect that
appellant, by an agreement in writing, re-
served the right to order a third carload of
fertilizer at the same price quoted on the
first two carloads, claiming that said agree-
ment in writing did not contain any such
reservation. It would seem to matter little
whether said reservation was in writing or
not, in view of the fact that there is direct
evidence to prove, and in fact appellant
does not deny, that she ordered three car-
loads of fertilizer, and that three carloads
thereof were delivered to and unloaded by
her. There was also direct evidence to the
effect that she agreed to pay the same price
for the third carload, if ordered.

Again, it was alleged in the cross-complaint that appellant was the owner of a vineyard near San Mateo, consisting of 26 acres; that it was in need of stock manure; that respondent represented that the fertilizer sold by him consisted of the mixture of the manure from several different kinds of animals, and was of the best quality; that, if applied to appellant's vineyard, the crop yield would be doubled; that as a matter of fact said fertilizer did not con. sist of the kind of manure represented, but was made up principally of a mixture of rice hulls, sand, and water; that, if said fertilizer had been of the kind represented, said vineyard would have produced a greatly increased crop, and that appellant expended $200 in spreading said fertilizer. The trial court negatived these and all other allegations of the cross-complaint by a general finding "that the allegations contained in defendant's answer and in her cross-complaint are not true," and also found specifically against the truth of many of them.

although the complaint counts upon either
an agreement by both defendants (Rauer and
his wife) or a sale and delivery to both de-
fendants, the decision finds a contract as to
a portion of the merchandise made by only
one defendant; namely, Frances Rauer."
There is no merit in the point. While the
complaint did charge both defendants with
liability, the evidence proved that the en-
tire transaction was opened, carried on,
and consummated exclusively by Frances
Rauer. The decision of the court correctly
so found, and the judgment was entered ac-
cordingly against Frances Rauer alone.

[2] The further contention urged by ap-
pellant that the sale herein was made in
violation of the so-called commercial ferti-
lizer act, because the fertilizer in question
was not certified and labeled as in said act
required (Stats. 1903, p. 259; Stats. 1911,
p. 488; Stats. 1915, p. 42), is also without
merit. The evidence shows, and the court
found, that the fertilizer in question con-
sisted of the excreta of domestic animals,
mixed with material commonly used for
bedding, and not artificially added, and said
act expressly excepts from the operation
of its provisions fertilizer of that kind.

[3] Appellant's last point is that "there was an express warranty by plaintiff which was breached," claiming in support thereof yard manure mixtures were of such quality that respondent represented "that such stockthat they would increase the productive

ness

greatly enriching the soil thereof, if three
of cross-complainant's vineyard by
carloads were applied to the same, and would
increase the productiveness of the said vine-
yard of cross-complainant to the extent of
doubling the crop of grapes to be grown

thereon.

A casual reading of the alleged represenAppellant now contends that those alle- tations is sufficient to prove, without disgations and some others of like character cussion, that said representations did not were either proved to be true by unconamount to a warranty at all, but were meretradicted evidence or were admitted by the ly an expression of opinion. There was nothpleadings, and that therefore the findings ing contained in the written memorandum thereon, to the effect that they were not of the agreement regarding the possibilities true, are erroneous. It may be conceded of said fertilizer, and, so far as appellant's that appellant's contention, to a certain ex- shortage of crop is concerned, it may be tent, is true. Nevertheless, it will be ob- readily accounted for by the fact that the served that the findings complained of relate said fertilizer lost its potential qualities to matters of opinion or to allegations of because it was allowed to remain in the rain fact which are material only when consid-in piles along the side of the road for several ered as a part of the main issues. Inasmuch as the findings upon the main issues are, as before stated, supported by ample evidence, the findings upon the incidental matters become of no consequence. The trial court may well have found with appellant upon all of the allegations referred to, and still

weeks before it was applied to the vineyard,
and by the further fact that frost visited
that section during the month of April,
1921.

Judgment affirmed.

We concur: CABANISS, P. J. pro tem.;

1

(230 P.)

GERRIOR v. SUPERIOR COURT IN AND
FOR MARIPOSA COUNTY et al.
(Civ. 2912.)

(District Court of Appeal, Third District, Cali-
fornia. Oct. 11, 1924. Hearing Denied by
Supreme Court Dec. 8, 1924.)

1. Justices of the peace 139-Method of taking appeals statutory, and must be followed with substantial strictness.

Method of taking and perfecting appeals is statutory, and method so prescribed must be

followed with substantial strictness.

2. Justices of the peace 159(12)—Void undertaking on appeal cannot be amended or new one substituted, but undertaking insufficient in form may be amended, or new one substituted therefor.

Under Code Civ. Proc. § 978, requiring undertaking on appeal to superior court to be filed within specified time, if undertaking is void, attempted appeal is ineffective, and cannot be cured by amendment, or by substituting new undertaking, but if undertaking is insufficient in form only, it may, under section 954 be amended, or new one substituted therefor. 3. Justices of the peace 159(9) Appeal bond construed to carry out obvious intention of parties.

Though sureties on undertaking on appeal may stand on letter of their undertaking, and courts will not extend sureties' liability beyond clear import of their contract, appeal bond will be construed to carry out obvious intention of parties.

4. Justices of the peace 159 (9)-Erroneous recitals in appeal bond held mere defects in form.

Erroneous recital in appeal bond, that appeal was to superior court for city and county of San Francisco, instead of superior court for Mariposa county, was mere defect in form, and designation of township, where action was tried as "Fifty Township" instead of "Township No. 5," was clerical misprision, and bond was not void.

5. Appeal and error 1030-Causes should be heard on merits, where violence not done rules of procedure and practice.

Causes should be heard on merits, where positive violence is not done rules of procedure and practice.

Original application by Al Gerrior for writ of prohibition to be directed to the Superior Court in and for Mariposa County, and J. J. Trabucco, Judge thereof, to restrain the trial of an action between petitioner as plaintiff and T. A. Clark as defendant. Writ denied.

F. W. Henderson, of Merced, for petitioner. J. M. Trusty, of San Francisco, for respondents.

HART, J. This is an original application for a writ of prohibition to restrain the re

spondents from trying a certain action, wherein the petitioner is plaintiff, and one T. A. Clark is defendant. As the writ applied for implies, the ground of the application is that the respondents are without jurisdiction to try the action. The contention is that, upon the taking of the appeal, no undertaking thereon was filed, as required by section 978 of the Code of Civil Procedure. The facts stated in the petition are not traversed, and stand here undisputed.

They

are, indeed, admitted by the general demur

rer interposed to the petition by the respondents. The petition shows:

That on the 20th day of September, 1923, the petitioner instituted an action against said T. A. Clark in a justice's court of the Fifth judicial township, of the county of Mariposa, to obtain a judgment for the sum of $276 for work and labor alleged to have been performed by the former for the latter within two years prior to the date of the commencement of the said action; that service of process was subsequently duly had on said Clark; that the latter, within due time, filed an answer to the complaint, denying generally the averments thereof; that thereafter, and on the 5th day of June, 1924, said action was tried by and before Ralph A. Stout, justice of the peace in and for said Fifth judicial township; that the case having been submitted for decision upon the evidence adduced at said trial, said justice of the peace, on the 18th day of July, 1924, rendered and entered judgment for and in favor of the petitioner, and against said Clark for the sum of $251, together with costs assessed at the sum of $10.25, the judgment thus totaling the sum of $261.25; that thereafter, and on the said 18th day of July, 1924, the said Clark, defendant, etc., as aforesaid, duly served and filed a notice of appeal to the respondent court from said judgment, on questions of both law and fact; that on said 18th day of July, 1924, and after said notice of appeal was filed with said justice of the peace, the said Clark, as appellant in said action and in said appeal, filed an instrument "purporting to be an undertaking on appeal, which is in words and figures as follows," to wit:

(Title of Justice's Court and Cause.) "Undertaking on Appeal from a Judgment Di

recting the Payment of Money.

of the Fifty township, county of Mariposa, state "Whereas, in an action in the justices' court of California, judgment was on the 18th day of June, 1924, rendered by Ralph A. Stout, Esq., justice of said court, in favor of Al Gerrior, the plaintiff, against T. A. Clark, the defendant, for the sum of two hundred and fifty-one dollars ($251.00) principal, and ten and 50/100 dollars ($10.50) costs; and whereas, the said T. A. Clark is dissatisfied with said judgment and desirous of appealing therefrom to the su

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