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the credibility of the witnesses, and also of the weight of the evidence. If the evidence of the state is to be believed, four steers were stolen from Julius Panzram about June 26, 1893. Three of them were found, and fully identified by him, near Standbury, Mo., in the early part of July, 1893. These cattle, according to the evidence of the state, are the same the defendant shipped and sold to Verner & Scroggins at the stock yards at Kansas City, which were subsequently shipped to Kygger & Liggett. Hoffman was with the cattle in pen 10, block 7, at the stock yards in Kansas City, both with Scroggins and Hill, who sold the cattle from the pen as Hoffman's cattle. The objection to the verdict upon the ground that there was an entire absence of material facts necessary to be found for a conviction is not tenable. The evidence of the state, if believed, not only identified the subject-matter,-the steers,but also identified the person in possession of the stolen cattle soon after they were stolen. There was also other evidence that the defendant was guilty.

3. It is further insisted that the trial court erred in instructing the jury, among other things, as follows: "That the possession of stolen property, recently after it has been stolen, throws upon the possessor the burden of explaining such possession, and, if unexplained, may be sufficient of itself to warrant the jury in convicting the defendant of the crime of grand larceny. Of course, it must be so recent after the time of the larceny as to render it morally cer*ain that the possession could not have changed hands since the larceny." The defendant did not admit that he took the steers owned by Panzram innocently or by mistake. His evidence was a denial of any possession or knowledge of Panzram's steers. He claimed that the 16 head of cattle he shipped to Kansas City belonged to him, or members of his family. He made no pretense that any were purchased or obtained from Panzram. This case, therefore, differs from State v. Warden (Mo.) 8 S. W. 233, and many similar cases. Notwithstanding the conflict of the courts concerning the possession of stolen property, we see no good reason, in such a case as this, for not adhering to the rule of State v. Cassady, 12 Kan. 550. A similar instruction was approved in that case. In 1 Greenl. Ev. (15th Ed.) § 34, it is stated "that possession of the fruits of crime, recently after its commission, is prima facie evidence of guilty possession, and, if unexplained, either by direct evidence, or by the attending circumstances, or by the character and habits of life of the possessor, or otherwise, it is taken as conclusive." The possession of the stolen cattle by the defendant was unexplained, either by direct evidence or by attending circumstances. All the other persons who had possession of or anything to do

with the stolen cattle after they were missed by Panzram, up to the time he found three head of them near Standbury, explained fully their possession, where they bought them, and what they paid for them. The defendant relied upon proof of his good character, not upon any explanation of his possession, except his absolute denial thereof. He offered evidence of his good character for honesty in the neighborhood where he resided. That was a matter for the consideration of the jury. The court so instructed them in the following language: "The evidence of previous good character is competent evidence in favor of the party accused of a crime, as tending to show he would not be likely to commit the crime alleged against him, and in this case, if you believe, from the evidence, that, prior to the commission of the alleged crime, the defendant had always borne a good character for honesty and a law-abiding citizen among his acquaintances, and in the neighborhood where he lived, then this is a fact proper to be considered by you, with all the other evidence in the case, in determining the question whether the witnesses who have testified to facts tending to criminate him have been mistaken or have testified falsely or untruthfully; and if, after a proper consideration of all the evidence in the case, including that bearing upon his previous good character, you entertain any reasonable doubt of the defendant's guilt, then you should acquit him." We have examined the other alleged errors, including the one for a new trial on account of newlydiscovered evidence, but find nothing substantial in them, and, upon the whole record, the judgment of the district court will be affirmed. All the justices concurring.

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1. Money paid a broker as margins on stock purchased by him with his own money for a customer, and retained as security until sold, may be recovered. 26 Pac. 883, followed.

2. Assessments paid by a broker on stock purchased for a customer, who put up only a margin, the stock being held as security, cannot be set off in an action by the customer to recover such margins.

Department 2. Appeal from superior court, city and county of San Francisco; Walter H. Levy, Judge.

Action by W. N. Wetmore against Emmett P. Barrett and others to recover money lost in stock speculations. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Affirmed.

W. T. Baggett, for appellants. Roger Johnson, for respondent.

As

PER CURIAM. This action was brought to recover moneys paid to brokers in consideration of purchases of mining stock on margins. Most of the points raised are precisely those which were considered in Cashman v. Root, 89 Cal. 373, 26 Pac. 883. we are entirely satisfied with the conclusion there reached, it is not necessary to go over the matter again. Defendants had printed the terms and conditions upon which they were doing business, and required plaintiff's agent to agree to them. Those printed terms show that the transactions upon which the money was paid were purchases of stock on margins, within Cashman v. Root. During the time defendants held the stock as security they paid certain assessments which they now insist should be deducted from the amount recovered. The answer contains no claim for a set-off, nor is there a plea of payment or counterclaim. No such credit seems to have been asked for in the trial court. Had there been such a plea, however, the contention could not have been sustained. There was no request made by plaintiff for the payment; and, as the transaction was void, defendants did not hold the stocks, upon which the assessments were paid, for plaintiff, or as security for a debt due from him. The law will not, therefore, imply a request to pay nor a promise to repay. So far as the statement shows any indebtedness arising more than two years before the action was commenced, it also shows that such indebtedness was based upon similar transactions to those after that period. We cannot presume that any part of the moneys recovered were paid upon any such transactions. No specification as to the insufficiency of the evidence suggests such point. The judgment and order are affirmed.

(4 Cal. Unrep. 687)

JOHNSON v. GREENBERG et al. (No. 15,375.)

(Supreme Court of California. June 26, 1894.) REVIEW ON APPEAL-CONFLICTING EVIDENCE.

Where there is a substantial conflict in the testimony, with sufficient proof to sustain them, the findings of the trial court will not be set aside.

Department 2. Appeal from superior court, city and county of San Francisco; Eugene R. Garber, Judge.

Action by C. B. Johnson to enjoin Edwin F. O'Neal, as sheriff, from executing a deed to one of defendants, B. Schwartz, and to enjoin defendants Meyer Greenberg and B. Schwartz from further proceedings in the case of defendant Greenberg against defendant California Bituminous Rock Company. judgment for defendants, and plaintiff appeals. Affirmed.

T. C. Van Ness (Wilcoxon & Bouldin, of counsel), for appellant. Reinstein & Eisner, Graves & Graves, and E. P. Cole, for respondents.

PER CURIAM. This action was brought to enjoin the defendant Edwin F. O'Neal, as sheriff of the county of San Luis Obispo, from executing or delivering to defendant B. Schwartz a deed to certain land situated in said county of San Luis Obispo, the property of defendant the California Bituminous Rock Company (a corporation), which lands were sold by said sheriff under an execution issued upon a judgment in favor of defendant Meyer Greenberg against California Bituminous Rock Company, and also to enjoin defendants Greenberg and Schwartz from further proceedings in the action upon which said judgment was rendered. The theory of the amended complaint may be briefly stated as follows: The plaintiff and defendants L. M. Warden and Meyer Greenberg were the owners of the certain lands described in the complaint, the title of which, by common consent, stood in the name of Greenberg, but who held in trust for his co-owners, the plaintiff being the beneficiary as to one-fourth thereof. The corporation defendant was organized by them, and the land conveyed to such corporation. There were 1,250 shares of the capital stock of the corporation, of which stock, plaintiff, defendants Warden, Greenberg, and Underhill each held 300 shares, and defendants Graves 50 shares. On January 17, 1891, defendant Greenberg brought suit against the corporation to recover $8,155.15 for money advanced by him and paid out for the corporation, and on the 7th of March, 1891, obtained judgment. The. land in question was sold on the 11th of April, 1891, under an execution issued on such judgment, and purchased by defendant B. Schwartz for the sum of about $8,155.15. The complainant avers that the corporation defendant was not indebted to Greenberg in the sum of $8,155.15, or any other sum of money, at the commencement of the suit, and that the action and the sale of the property was a fraudulent scheme on the part of defendants Greenberg and Warden to defraud plaintiff and the other defendants of the property, and that the purchase thereof by Schwartz was for the benefit of Greenberg, and to procure the title for him, and that, thereafter, Greenberg and Warden were to become the owners thereof, to the exclusion of plaintiff and the other defendants; that plaintiff knew nothing of the suit until within a month prior to the commencement of this action; and that the land is of the value of $50,000. The answer denies all the allegations charging fraud; avers that the defendant corporation was justly indebted to Greenberg; that his claim was a bona fide claim and demand, as plaintiff, who was a director of the corporation, well knew, and that he was well aware of the pendency of Greenberg's action against the corporation within one month after it was brought; and that the value of the land is not in excess of $10,000. The written findings fully negative all allegations of fraud, and, in addition

thereto, it is found that all the allegations | met with losses, and that defendants Warden

of the answer are true, except that as to the value of the land, which is found to be $15,000.

Upon the close of the testimony, counsel for the plaintiff asked leave of the court to amend his complaint so as to charge, in substance, that the amount sued for by Greenberg, as due him on account of advances made for the corporation, and in payment of the unpaid balance of the purchase price of the land, was not in fact due him, but that he, the said Greenberg, had in fact borrowed the sum of $8,155.15 from Schwartz for and on behalf of the corporation defendant, and with the money so borrowed for the corporation had paid off and discharged the obligations of the corporation, all of which was known to defendant Schwartz before and at the time of the sheriff's sale, etc. The court permitted the amendment on condition that the case be opened, and defendants permitted to introduce such further proofs as they might desire. The complaint was amended accordingly, whereupon defendants introduced further testimony.

Formal objections are made to each of the 12 findings of the court, upon the ground that the evidence is insufficient to sustain them. The only question, however, in the case, worthy of consideration, is as to whether the money loaned by defendant Schwartz was so loaned to Greenberg on his own account, or through him to the defendant corporation. Greenberg was secretary of the corporation, and a son-in-law of defendant Schwartz. That he procured from Schwartz the sum of $8,155.15, or thereabouts, is well established. The deposition of Schwartz was read in evidence and he was also called as a witness on behalf of plaintiff. His testimony was not at all clear or convincing but may be fairly interpreted as showing that he supposed he was advancing the money to the defendant corporation, or to obtain a mortgage or some lien against the corporation, or to purchase notes of the corporation; and portions of his testimony go to show that he thought he was loaning the money to the corporation defendant. The language used by the witnesss indicates that he is a German, who speaks our language indifferently; and the testimony, taken as a whole, shows that his understanding of English is imperfect. He advanced this money, as he thinks, in March or April, 1891. On the other hand, it was conclusively proven that plaintiff and defendants Warden and Greenberg, in 1887, gave their joint and several note to Jack and Goldtree for $2,937.50, with interest, being for a part of the original purchase price of the land; that the corporation defendant assumed to pay, but did not pay, the note; that Warden and Greenberg paid it by a new note made by them for $3,191.12, with interest, etc.; that the corporation defendant, engaged in mining and selling bituminous rock from the land in question,

and Greenberg borrowed other moneys at the request of and for the corporation, for which they gave their notes, until in 1890, when the aggregate of the indebtedness of the company for which they were responsible was $8,000, for which they and one H. Crocker gave their joint and several note for said sum of $8,000, at 30 days, with interest. Crocker paid the note off at maturity and brought suit against Greenberg and Warden. On the 9th day of January, 1891, Greenberg paid the demand in suit by an overdraft on the First National Bank of San Luis Obispo for $8,155.15, promising the bank to come to San Francisco, and borrow from Schwartz the money to meet such overdraft. On January 17th he brought this suit, and subsequently procured the money from Schwartz, and paid the overdraft with it. As Greenberg procured judgment March 7, 1891, it may well be that the fact that Greenberg had a lien upon the property was an idea prevalent in the mind of Schwartz when he testified, and which will account for many of the statements that he thought the property good for the investment, etc. But waiving all explanation of his testimony, and the fact still remains that there was a substantial conflict in the testimony, with sufficient proof to sustain each and every finding of the court. The judgment and order appealed from are affirmed.

(103 Cal. 94) MORRISON v. STONE et al. (No. 15,408.) (Supreme Court of California. June 13, 1894.)

ADOPTION OF SPECIAL VERDICT-FINDINGS-
HARMLESS ERROR.

1. A special verdict, adopted as the basis of a judgment, is equivalent to findings by the court.

2. Failure to find upon a fact in issue is harmless error, when a finding in favor of appellant thereon would not affect the judgment.

Commissioners' decision. Department 2. Appeal from superior court, Santa Clara county; W. H. Levy, Judge.

Action by George H. Morrison against N. J. Stone and others to recover damages for a conspiracy. From a judgment for defendants, plaintiff appeals. Affirmed.

Pierson & Mitchell, for appellant. Reddy, Campbell & Metson, for respondents.

HAYNES, C. This action was brought by Morrison, a stockholder in the History Company, a corporation, on behalf of himself and of all other stockholders in said corporation who should join him in the action, against N. J. Stone, J. L. Hebert, Elizabeth C. Latham, administratrix of the estate of A. S. Latham, and said History Company. The complaint charges a conspiracy between Stone, Hebert, and Latham, all of whom were connected with said History Company (Stone being vice president), to injure that

corporation by organizing another, known as the Pacific Publishing Company, and that, after the formation of the last-named corporation, Stone assumed to sell and transfer to it the stock of eastern subscription books belonging to the History Company, together with the agency and good will thereof, whereby the History Company had been deprived of a large portion of its stock in trade, had lost valuable agencies, was crippled in its business, and had been compelled to suspend payment of dividends, to the damage of the History Company in the sum of $50,000. The prayer is for damages and for an accounting. The answers of the several individual defendants put in issue all the material allegations of the complaint, including the facts upon which the plaintiff assumed the right to bring the action in his own name. The case was tried before a jury upon nine special issues properly submitted to it, to all of which the jury returned answers in favor of the defendants, and also therewith returned a general verdict in their favor. The defendants moved for judgment thereon, and their motion was granted; and the plaintiff excepted, and brings this appeal upon the judgment roll and a bill of exceptions.

The only ground upon which appellant contends for reversal is that findings were not waived, and that none were filed. It is said

by respondents that this is an action at law for damages, and that the general verdict covers all the issues, and that findings are not required, while appellant insists that it is an equitable action. Without deciding that question, we will assume that the action is of equitable cognizance, since there could be no possible ground of reversal if the action is at law. Where a special verdict of a jury is adopted by the court, it takes the place of, and is equivalent to, findings by the court. Warring v. Freear, 64 Cal. 56, 28 Pac. 115. Nor is it necessary that the word "adopt" be used, in order to show an adop tion of the findings made by a jury upon special issues. Goldman v. Rogers, 85 Cal. 578, 24 Pac. 782. That the special verdict was adopted by the court, we think, is sufficiently clear. Upon the hearing of defendants' motion for judgment an order was made "that judgment be entered in accordance with the verdict of the jury rendered herein;" and all the special issues submitted to the jury, with their answers or findings thereon, were incorporated in the judgment, together with the general verdict. Indeed, it is not even suggested by counsel for appellant that the special findings by the jury were not adopt-❘ ed, nor is it contended that the special verdict does not cover all the issues. Whether it does or not is immaterial, since the findings made by the jury are decisive of the case, and no others were necessary. Among other things, the jury found that the demand of the plaintiff upon the History Company to bring this action, and its refusal to do so, were simulated, and not in good faith. These

findings negative the right of the plaintiff to maintain the action. Bacon v. Irvine, 70 Cal. 225, 11 Pac. 646; Hawes v. Oakland, 104 U. S. 460, 461; Mor. Corp. §§ 240, 241. The material facts, involving the merits of the action, were also found in favor of the defendants. We can discover no fact in issue upon which a finding is not made, which, if found in favor of appellant, would affect the judgment; and a failure to find thereon, if erroneous, is not prejudicial. Diefendorff v. Hopkins, 95 Cal. 347, 348, 28 Pac. 265, and 30 Pac. 549, and cases cited. The judgment appealed from should be affirmed.

We concur: BELCHER, C.; TEMPLE, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

(103 Cal. 121)

BRODER et al. v. SUPERIOR COURT OF
MONO COUNTY. (No. 15,513.)
(Supreme Court of California. June 15, 1894.)
MANDAMUS TO JUDGE.

When a retiring judge filed conclusions of law and fact, and directed the counsel to prepare an interlocutory judgment for the purpose of an accounting between the parties, a mandamus will not be granted to compel his successor to enter judgment on such findings, as until final judgment the trial court is not concluded by any of its orders, and its judicial discretion cannot be directed by mandamus. In bank.

Application for a writ of mandate by R. C. Broder and others against the superior court of Mono county (W. H. Virden, Judge). Denied.

Rich. S. Miner, for petitioners. P. Reddy and W. H. Metson, for respondent.

HARRISON, J. In Broder v. Conklin, 98 Cal. 360, 33 Pac. 211, the order of the superior court of Mono county, setting aside a judgment that had been entered on the judgment book of that court in pursuance of certain findings of fact and conclusions of law previously filed therein, was affirmed; and after the remittitur had been filed in the court below the petitioners herein made a motion before that court that a judgment and decree be entered in the cause upon said findings of fact and conclusions of law. This motion was denied by the superior court, and the petitioners have made application to this court for a writ of mandate directing the respondent to render and enter a judgment in accordance with and upon said findings of fact and conclusions of law.

A judgment is the final determination of the rights of the parties in an action, and, when the action is tried by the court, cannot be entered until after a decision of the cause has been rendered. Hence, a writ of mandate will not be granted to compel a court to enter a judgment in a cause until after the

The action of the upon appeal, but supervised by a court. While the

court has tried the cause, and rendered its decision. So long as any judicial act remains to be performed before the decision can be made, the cause has not been tried, and a judgment cannot be entered. While the cause remains undetermined the court before which it is pending cannot be compelled to try it in any particular mode, or to make any special order for the mode in which it is to be tried. court is to be reviewed cannot be controlled or previous direction of this cause remains undecided the trial court is not concluded by any ruling or order that it may have made during the trial, or by any conclusion which it may have reached upon a controverted question of fact. It may change its ruling whereby evidence has been excluded or received, and allow such evidence, and make a ruling with reference thereto according to its subsequent view; it may set aside the submission of the cause, and allow additional evidence upon one or all of the issues in the case, even if it has indicated or formulated its conclusion upon the evidence already received; it may set aside an order of reference to try an issue, and try the issue itself; or it may vacate any other interlocutory order made in the progress of the trial. Until all the issues in the case have been decided, and the decision filed with the clerk, the cause remains in the breast of the judge, and during that time cannot be controlled or directed by any supervisory court. In Broder V. Conklin, supra, we said: "It sufficiently appears in the present case that, at the time when Judge Rooney filed his findings of fact and certain conclusions of law, he did not himself consider that the action had been fully tried. His conclusion that the plaintiffs were entitled to judgment was qualified by the next clause, in which he directed counsel to prepare an interlocutory judgment for the purpose of directing a referee to take an account between the parties. It is manifest from this direction that the character and extent of the judgment was not to be determined by him until after such account had been taken." As the rights of the parties to this action cannot be finally determined, and a corresponding judgment rendered, until after an account has been taken, and as the trial court cannot be compelled to enter an interlocutory order or judgment for the reference and an accounting, it follows that the cause has not been fully tried, and that the mode of trial and the decision yet to be made are to be determined in the discretion of the trial court. After the aforesaid findings were filed the court still retained the power to set aside its direction to counsel to prepare an interlocutory judgment directing a reference, and to take such steps with reference to completing the trial as it might deem expedient, or most in accordance with the interests of the parties before it. The

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WARREN v. MCGILL. (No. 15,404.) (Supreme Court of California. June 18, 1894.) CLAIMS AGAINST DECEDENT'S ESTATE-COMPETENCY OF WITNESS-INTEREST.

1. Under a statute requiring creditors, when they file their claims against a decedent's estate, to file an affidavit stating that no payments have been made thereon which are not credited, and that there are no offsets to the same to the knowledge of the "affiant" (Code Civ. Proc. § 1494), an affidavit, filed by the claimant, which recites to the knowledge of the "claimant," is sufficient. Davis v. Browning, 27 Pac. 937, 91 Cal. 603, followed.

2. In an action against an executor for a debt due from his decedent, the fact that a prior claim for a less amount was filed by the claimant and disallowed does not estop her from asserting her rights under the later claim, where she testified, without being contradicted, that the first claim, which she never saw, was largely incorrect.

3. The fact that plaintiff's witness also has a case of the same kind pending does not disqualify him from testifying.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by Mrs. M. J. Warren against H. M. McGill, executor of Thomas Hovenden. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Henry M. McGill, for appellant. H. C. Firebaugh, for respondent.

BELCHER, C. Action to recover money due from an estate. The complaint avers, in substance, that Thomas Hovenden was indebted to the plaintiff in the sum of $6,828.06, and died leaving a will, in which the defendant, McGill, was named as executor; that the will was admitted to probate, and letters testamentary were issued to defendant, who duly qualified, and entered upon the discharge of his duties as executor; that notice to creditors to present their claims was published, and thereafter within the time prescribed the claim of plaintiff, a copy of which is attached to the complaint, verified by the oath of the claimant, was duly presented to the defendant, as such executor, for allowance, and was by him rejected. The answer denies the indebtedness, denies that the claim on which the action is founded was duly presented to defendant for allowance, and avers that no claim for the alleged indebtedness was ever presented to defendant, as such executor, "in manner or form as required by the statute of this state in such case made and provid

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