tract, in accordance with the plans and specifications as furnished by the council of the city of Los Angeles, and, if the last payment hereinbefore provided for should grow due before said levee has been accepted by the city as completed, then the last payment above referred to shall be deferred until said levee has been accepted by the proper officers of Los Angeles city, but shall be immediately due and payable on the acceptance of said work by the authorities of the city of Los Angeles." The agreement further provided that completion of the levee at an earlier date should not cause the last payment to become due before the expiration of the year from the date of the agreement as therein specified. Appellant made the payments, except the last, which was postponed until January 6, 1891, by reason of the nonconstruction of the levee, at which last-mentioned date appellant served upon respondents a written offer to relinquish and transfer to them all his interest in the lots under the contract, and demanded a repayment of the money by him paid on account of the contracts, specifying the sums so paid, which being refused, this action was brought to recover the money thus paid, aggregating $1,107 and interest.

Defendants in their original answer admitted the levee was not constructed; averred that a reasonable time for the construction thereof had not elapsed; averred that it was impracticable to construct such levee untii its continuation above and along Los Angeles river was built; averred their willingness to construct it as soon as the connections could be made; averred a contract between the city of Los Angeles and a railroad company, by which the latter was engaged in building the whole of the levee in question, including that along the west side of the lots. The answer also denied an offer to rescind, retransfer, etc. By a supplemental answer defendants averred the completion and acceptance of the levee on or before April 11, 1892. The cause was tried by the court without the intervention of a jury, and written findings filed, upon which judgment was entered in favor of the defendants for costs. Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

The eighth finding of the court, which involves the main question in the case, is as follows: "That the levee along the west side of said tract, in accordance with the plans and specifications as furnished by the council of the city of Los Angeles, is fully completed, and was in process of completion prior to the 1st day of January, 1891; and the commencement of the construction of said levee and the completion thereof were within a reasonable time after the making of said contract by and between the plaintiff and defendants." The objections made to this finding are: (1) That the evidence shows that no levee has ever been made along the

west side of the tract mentioned in the contracts; (2) that the evidence and pleadings show that prior to January 6, 1891, no levee had been commenced along the west side of said tract; (3) that the evidence shows that nearly four years elapsed after contract made before completion of levee, and that it could have been built in three months. It appears from the evidence that the land agreed to be conveyed to plaintiff lies on the east side of the Los Angeles river, fronting upon a street or boulevard of, say, 100 feet in width, running between it and the river; that a levee in front of lot 3, in block L (lot 4 being in the rear of lot 3, and not fronting on the boulevard), would be of no avail to keep out the water of the river unless continued up the river, say, one mile; that about the time of the execution of the agreement a plan was devised for the construction of the levee by property owners in interest, and a contract was let for the work, under which a levee was constructed from the upper end to within about 3,000 feet of this tract, when the work ceased from the difficulty in getting timber and lumber. Defendants afterwards sought to obtain the necessary timber and lumber, but failed to do so. They subsequently agreed with the Los Angeles Terminal Railway Company that the latter should construct the embankment or levee, and have and use it as a roadbed for its railway. The embankment is from 8 to 10 feet high. The exact time of its construction in front of plaintiff's lot only appears inferentially from the testimony of H. F. Stafford, as engineer and a witness for plaintiff, who says that on the 24th of September, 1891, he "made a survey of the land and of the levee that has been constructed by the Terminal Railroad along that portion of the subdivision showing blocks * and L., as the same is delineated on the map." It was therefore constructed prior to September 24, 1891. It will be observed that the agreement specified no time within which the levee was to be built. If constructed within the year, it did not hasten the date of the last payment for the land; but, if not constructed and accepted within the year, the effect of the delay was to defer such last payment until the levee was completed and accepted by the city of Los Angeles. What was a reasonable time for the construction of the levee (conceding that question to be involved) depended largely upon the magnitude and character of the work to be performed, and all the surrounding circumstances. The facts entering into the question were peculiarly within the province of a jury, or the court sitting as such, and in the absence of any allegation or proof of advantages which would have accrued to appellant, by an earlier construction of the levee, or of damage to him by the delay, we are not prepared to say that the finding of the court is contrary to the evidence. Non constat but that the fact that the last payment

was deferred until the levee was completed may have fully compensated appellant for the delay.

The objection that the finding that the levee was "in process of completion prior to the date of the rescission of the contract by appellant" is contrary to the admission of the answer, and the evidence is technically correct. The answer admits that defendants had not commenced the construction of the levee, but avers that the railroad company had commenced building it on the 10th day of November, 1890, and had been continuously engaged thereat up to the time of answer, all of which it averred was well known to plaintiff, and in the supplemental answer they aver its completion. No part of it in front of the lots in question had been constructed up to January, 1891. The further objection that no part of the levee was ever constructed "along the west side of said tract" is without merit. Appellant contends that it should have been along the west line of the "boulevard," whereas in fact it was in front of lot 3, and on or near the center of the boulevard. Lot 3, as indicated on the map referred to in the agreement, lies on the east side of, and fronts on, the boulevard. We may indulge the presumption that a conveyance of the lot will include the fee to the middle of the street, but know of no presumption under which it can be made to inIclude the whole of the street. The embankment, being at this point apparently in the middle of the boulevard, must be on or near the line. The object of the levee was no doubt to protect the land from overflow from the river, and there is no suggestion that it is not efficacious to that result. The question whether or not the boulevard includes a portion of the river is one not raised by the pleadings, and, if raised, could cut no figure in the determination of the question involved here, for the reason that the failure of title, if any, is not of any land agreed to be conveyed. Upon the facts as found by the court, the conclusions of law are correct. Indeed, it may well be doubted whether, assuming the facts to be as stated in the complaint, a case is made under which plaintiff was authorized to rescind the contract. "Where the failure be but partial, leaving a distinct part as a subsisting and executed consideration, and leaving also to the other party his action for damages for the part not performed," a rescission cannot be had. Pars. Cont. (8th Ed.) p. 679. In Franklin v. Miller, 4 Adol. & E. 599, Littledale, J., says: "It is a clearly-recognized principle that if there is only a partial failure of performance by one party to a contract, for which there may be a compensation in damages, the contract is not put an end to." It would seem that, when the parties stipulated that the last payment upon the land should be deferred until the levee was constructed, they agreed upon the consequences which should follow a failure to construct the levee, and

In re LOWENTHAL. (No. 21,090.) (Supreme Court of California. Aug. 23, 1894.) DISBARMENT OF ATTORNEY-WHEN GRANTED.

An application to disbar a lawyer for appropriating funds collected by him will not be entertained till the truth of the matter has been settled in a criminal prosecution, or in an ac tion to recover the money. Wyatt v. Stephens (Cal.) 36 Pac. 586, followed.

Application to disbar H. H. Lowenthal, an attorney at law. Application denied.

J. D. Sullivan and Herbert Choyinsky, for relator.

Where an assessment for irrigation purposes is void because not authorized by vote of the electors of the district, a sale thereunder will be enjoined, as such invalidity would not appear in the tax deed.

Department 2. Appeal from superior court, San Diego county; E. S. Torrance, Judge.

Action by Woodruff and others against Wesley Perry and Otay Irrigation District to enjoin a sale under a tax levy. There was a judgment for plaintiffs, from which defendants appeal. Affirmed.

C. H. Rippey and D. L. Withington, for appellants. D. L. Murdock, for respondents.

DE HAVEN, J. The assessment referred to in the complaint, not having been authorized by a vote of the electors of the Otay Irrigation District, was illegal, under the rule announced in the case of Tregea v. Owens. 94 Cal. 317, 29 Pac. 643; and inasmuch as the

ABBOTT v. 76 LAND & WATER CO. (No. 18,287.)

(Supreme Court of California. Aug. 25, 1894.) MALICIOUS CONVERSION-PUNITIVE DAMAGES

SUFFICIENCY OF EVIDEnce.

A judgment for punitive damages, in an action for the malicious conversion of certain wheat, peaceably taken by defendant under a bona fide claim of title, and by the advice of reputable counsel, will be set aside, where the only evidence of malice is a statement made by defendant at the time,-that it was too rich for plaintiff to litigate with.

Department 2. Appeal from superior court, Fresno county; M. K. Harris, Judge. Action by O. L. Abbott against 76 Land & Water Company. There was a judgment for plaintiff, from which defendant appeals. Reversed.

W. S. Goodfellow and L. L. Cory, for appellant. Thompson & Thompson and Geo. B. Graham, for respondent.

MCFARLAND, J. Action to recover for the wrongful conversion by defendant of certain wheat alleged in the complaint to have been the property of plaintiff, and to have been of the value of $305. It is averred that the wheat was taken maliciously, and for the purpose of oppression. The jury returned a verdict for plaintiff in the sum of $5,827, for which amount judgment was rendered for plaintiff. Defendant appeals from the judgment, and from an order denying its motion for a new trial.

Of course all of the verdict over and above $305 (assuming the wheat to be of that value), and 7 per cent. per annum interest thereon, was for punitive damages, or smart money; and we see no evidence in the record warranting such a verdict, or any verdict at all, not confined to compensation for the actual detriment suffered by respondent on account of the conversion of the wheat. The admitted facts are that in December, 1885, appellant, being the owner of a certain tract of land, made a lease (or cropping contract) thereof to respondent for a term ending October, 1886. The lease granted the privilege of extending it for two years, and also an option to respondent to purchase the land at a certain price. Before the expiration of the first term a second lease was made by appellant to respondent, which did not state the option to purchase. Under this lease or cropping contract one-fifth of the wheat

raised on the land annually was, when sacked, to be the property of the appellant. Respondent contended that under these leases he had the option of purchasing the land under the second lease. During the running of the second lease he offered to purchase the land at the price named in the first lease,— the land having greatly increased in value,— and appellant denied his right to purchase; and in July, 1888, respondent commenced an action to compel appellant to convey to him the said land. The action was decided in the trial court in favor of respondent, and was, upon appeal, affirmed by this court in January, 1891. 87 Cal. 323, 25 Pac. 693. In August, 1888, the appellant took the wheat sued for in this present action. It was taken from said leased or cropped land; appellant claiming to own it, as one-fifth of the wheat raised that year, and belonging to appellant. There is nothing to show that the appellant did not, in perfect good faith, litigate respondent's right to purchase the land from which the wheat was taken. He was advised by eminent counsel that respondent had not such right, and the question presented was one about which lawyers might well differ. See Abbott v. Water Co. (Cal.) 36 Pac. 1. And there was no evidence which justified the jury in finding that the act of taking the wheat was malicious, or done for the purpose of oppression. Appellant claimed, and in good faith, so far as it appears, that it owned the land and the wheat, and demanded it of respondent, who denied its right to take it, and forbade the removal of the wheat. Appellant's agents then went some distance, to the city of Fresno, to consult their counsel, who advised them what to do. He told them that the wheat belong. ed to appellant; that, if the wheat was tak en away by respondent, appellant would lose its rent; that they should go and take the wheat, if they could do so peaceably, but not to use force; and that, if they could not get it peaceably, to come back, and he would commence legal proceedings. Acting on this advice, appellant's agents went to the land on another day, and, no other person being present, they took the wheat. No threats, violence, or force was used. Of course, as the litigation about the option to purchase the land terminated long afterwards in favor of respondent, appellant is liable for the value of the wheat taken; but the verdict is, confessedly, for over $5,000 more than such value. The respondent testified that, when he was about to commence his action to enforce his right to purchase the land, one of the officers of the appellant said to him that the appellant was too rich for him to litigate with; and this item of testimony seems to be about the only basis of a verdict for nearly 20 times the amount of the detriment suffered by respondent. There was some evidence erroneously admitted as to certain matters occurring long after the taking of the wheat, and with reference to differences

between the parties about other property; but even that evidence, if it had been properly admitted, would not have justified the verdict in this case. As to the act of taking the wheat, upon which this present action is founded, to which alone the evidence should have been confined,-there is nothing in the record to warrant the jury in finding that it was not done under a bona fide claim of right, and without malice or oppression. Respondent was therefore entitled only to compensation for the conversion. Indeed, the verdict was in the teeth of the following instruction given in the trial court: "You are further instructed that the defendant had a perfect legal right to rely on the advice, of its attorneys, and that if you find from the evidence that P. D. Wigginton was a reputable attorney in the state of California, and he gave certain advice to the defendant corporation, which it followed in good faith, and that in so following such advice the defendant took the wheat as shown by the evidence, then in that event the defendant did not act maliciously, and the plaintiff can recover of the defendant only the actual damage suffered by reason of the conversion." See Selden v. Cashman, 20 Cal. 57; Dorsey v. Manlove, 14 Cal. 553; Phelps v. Owens, 11 Cal. 23. The judgment and order appealed from are reversed, and the cause remanded for a new trial.

We concur: DE HAVEN, J.; FITZGERALD, J.

(103 Cal. 538)

JOHNSON v. YUBA COUNTY. (No. 18,290.) (Supreme Court of California. Aug. 15, 1894.) ELECTION-LIST OF NOMINATIONS-PUBLICATIONSTATUTE-CONSTRUCTION-EXPENSE - LIABILITY OF COUNTY-ACTION-PLEADING.

1. Pol. Code, § 1194, as amended by Act March 20, 1891, p. 168, provides that at least 10 days before an election the county clerk shall publish in two newspapers the nominations to office certified to him by the secretary of state, and those filed with him; that he shall make not less than two publications before election day, one being on the last day the paper is issued before election day; and that the list of nominations published shall be arranged in the order and form in which they will be printed on the ballot. Hell, that the statute does not require the publication of a separate list of nominations for each political subdivision of the county having offices to fill, but requires only the publication of one general list.

2. The cost of such publication is a county charge.

3. In an action against a county to recover for publishing such list, plaintiff need not allege that there is money in the county treasury to meet the demand, or that the allowance of the demand would not exceed the limit of liability which the county is authorized to contract for the fiscal year.

Department 1. Appeal from superior court, Yuba county; E. A. Davis, Judge.

Action by Frank W. Johnson against the county of Yuba, Cal., to recover for services rendered in publishing certain lists of nom. inations, as required by statute. From or

ders sustaining a motion to strike parts of the complaint, and sustaining a demurrer to and dismissing the complaint, plaintiff appeals. Reversed.

W. H. Carlin, M. E. Sanborn, and Richard Belcher, for appellant. E. P. McDaniel and J. H. Craddock, for respondent.

VAN FLEET, J. The superior court did not err in striking from the complaint the matter objected to as irrelevant and redundant. The action was to recover for services rendered in publishing the list of nominations required to be published by the county clerk, under section 1194 of the Political Code, for the general election in November, 1892, in the county of Yuba. The allegations contained in the matter stricken out proceeded upon the theory that the statute required the publication of a separate list of the nominations, complete in itself, for each of the political subdivisions of the county having offices to fill; each list to contain, besides the names of those nominated for state and county offices, only the names of the district or township nominees in the county to be voted for in a particular district or township, and, in pursuance of this theory, alleged the publication of 13 separate lists,-1 for each of 2 supervisor districts, and 1 for each of 11 judicial townships. The statute will bear no such construction. It provides that: "At least two days before an election to fill any public office, the county clerk of each county shall cause to be published in at least two newspapers of general circulation within the county the nominations to office certified to him by the secretary of state, and also all those filed with the county clerk. He shall make not less than two publications in each of such newspapers before election day, one of such publications being made upon the last day upon which such newspaper is issued before the day of election. The list of such nominations published by the county clerks of the respective counties shall be arranged in the order and form in which they will be printed upon the ballot." Reasonably construed, this language contemplates the publication of one general list of all nominations upon which the people of the county will be called to exercise their choice. The evident purpose of the statute is the education of the voters of the county in their duties as electors, by informing them of the names of those proposed for their suffrages for the various offices to be filled at the ensuing election, and the general order and form in which the names will appear on the ballot to be voted, that the voters may thus be afforded the opportunity to acquaint themselves with the character and fitness of such nominees, and how to mark their tickets, thus enabling them to more readily and . intelligently discharge their duty on the day of election. This purpose is as well subserved by the publication of one general list embracing all the nominations as it would be

by the mode adopted by appellant's assignor. It is not, as appellant erroneously contends, an exact copy or fac simile of the official ballot that is to be published, but a "list of nominations." Nor is it contemplated, apparently, that the information to be furnished by such publication will be necessarily as exact in all respects as that to be had by the voter from an inspection of the "sample ballot" provided for in section 1210, Pol. Code, to be furnished to voters five days before election, or the official ballot to be voted on election day, but is rather to prepare the mind of the voter in a general way, as above indicated, for a more ready understanding of such official ballot, when he comes to vote. To adopt a construction which would sustain the attitude of appellant would be simply to impose an unreasonable burden of expense upon the taxpayers without any corresponding benefit. The matter, being irrelevant to the cause of action stated, was properly reached on a motion to strike out.

We think, however, that the complaint was not open to the objections raised by the demurrer, and that the latter should have been overruled. The objection that the cost of the publication provided for by the act is not made a county charge is untenable. It is a part of the county advertising, and falls within the provisions of subdivision 23, § 25, of the county government act (St. 1891, p. 305), by which the supervisors are authorized to provide for such advertising. Nor is it any ground of demurrer that it is not alleged that there was money in the county treasury to meet the demand, or that the allowance of the demand against the county would not exceed the limit of liability which the county was authorized to contract for the fiscal year. This was purely matter of defense, if it existed. Johnson v. Sacramento Co., 65 Cal. 481, 4 Pac. 463. We think the other objections urged to the complaint equally untenable. Judgment reversed and cause remanded, with directions to the lower court to overrule the demurrer.

PEOPLE v. WELLS. (No. 21,089.) (Supreme Court of California. Aug. 31, 1894.) PERJURY EVIDENCE.

In a prosecution for perjury for testifying on the trial of one D. for the larceny of a cow, that he met the cow going towards D.'s house early in the morning, and that D. took it up. corroborative facts are insufficient without direct testimony of one witness that such meeting did not take place.

Department 2. Appeal from superior court, Fresno county; S. A. Holmes, Judge.

John Wells was convicted of perjury, and appeals. Reversed.

Frank H. Short, for appellant. Atty. Gen. Hart, for the People.

v.37P.no.10-34

GAROUTTE, J. The appellant has been convicted of the crime of perjury, and now appeals from the judgment and order denying his motion for a new trial. Section 1968 of the Code of Civil Procedure provides that perjury must be proved by the testimony of two witnesses, or one witness and corroborating circumstances. This declaration of the Code clearly means that the falsity of the accused's statements must be shown to the jury by the positive testimony of two witnesses, or of one witness and circumstances corroborating the statement of such witness, in order that the defendant may be legally convicted of the crime of perjury. In other words, the law prescribes a different rule of evidence in this class of cases, both as to the kind and amount, as compared to the great majority of violations of the law. The rule is different as to the kind of evidence, for positive evidence is absolutely necessary, and circumstantial evidence alone is never sufficient. Again, for nearly all violations of the law the evidence of one credible witness is sufficient to support a conviction, but in prosecutions for perjury the rule is clearly to the contrary.

In the present case, one Dillwood was upon trial charged with grand larceny in stealing a cow, the cow being found in Dillwood's barn about 11 o'clock a. m., and having been stolen some miles away upon the previous night. The defendant in this case appeared at the trial as a witness in Dillwood's interest, and testified that, about 8 a. m. of the same morning, he was traveling in his cart upon the public highway near Dillwood's house, and met this cow upon a bridge, the cow then going towards Dillwood's house, and that he then saw Dillwood drive the cow into his barn, and at that time Dillwood stated that the cow was not his cow. It was alleged in the information that this testimony was false, and the charge of perjury is based thereon. We will not enter into a discussion as to the materiality of this evidence as bearing upon the grand larceny charge, but will concede it to be material. It is then left for us to consider the sufficiency of the evidence introduced at this trial to support the verdict.

As we have already suggested, in order that the evidence may be sufficient, there must be positive testimony to a contrary state of facts from that sworn to by the defendant at the previous trial. For instance, to support the charge of perjury as to the alleged false statement of defendant that he met the cow at the time stated upon this particular public highway, it was necessary to produce the positive testimony of one witness at least that such meeting did not take place, as that the defendant was not at that time at that place, or that the cow was not there; and the same rule is equally applicable to the remaining portions of the alleged false testimony. The corroborating circumstances disclosed by the record are sufficient