Page images
PDF
EPUB

sy between plaintiff and defendant; that del Action by Louise B. Goddard and others fendant [doubtless meaning plaintiff] accept- against C. E. Emerson, as Sheriff of Lassen ed said payments in full satisfaction and dis- County. From a judgment for defendant, charge of all claims and demands whatsoev- plaintiffs appeal. Affirmed. er against defendant, and particularly of the

Pardee & Pardee, for appellants. Rankin demand set up in the complaint herein."

& Julian, for respondent. [1] The evidence, without conflict, showed that defendant assaulted plaintiff without

CHIPMAN, P. J. This is an action to himself being assaulted. Upon the issue pre compel the defendant, by the writ of mansented by the answer, that plaintiff used vile damus, to receive payment, by way of relanguage towards defendant and threatened demption, of the amount necessary to redeem an assault upon him, the evidence is conflict- a certain certificate of purchase for school ing, as was also the evidence upon the issue, land from a judgment of foreclosure. The presented by the answer, that plaintiff accept- trial court sustained a general demurrer to ed payments from defendant in satisfaction the complaint, and entered judgment for deof any demands arising out of the assault. fendant, and plaintiffs appeal from said These issues having been fairly resolved by judgment. the jury and there having been evidence suf

It appears from the complaint that plainficient to justify their conclusion, this court tiffs are heirs at law of one Clark L. Godis without power to interfere.

dard, to whom, on July 15, 1904, the state [2] Defendant complains that certain three issued a certificate of purchase of certain instructions, requested by him to be given school land, situated in Lassen county, the jury, were refused. It appears from the which certificate showed payment of 20 per record that instructions were given the jury cent. of the purchase price and legal interby the court, but how many or upon what est to January 1, 1905; that in the month subjects, or upon what phases of the case of

1907, the state, by the district atdoes not appear, for they are not in the rec- torney of said county, commenced an action ord. All that the record shows is that the to foreclose and annul the said certificate of court refused to give the instructions request purchase because of default in the payment ed by plaintiff.

of interest then due for the years 1905, 1906, It is well settled that the refusal of the and 1907, upon the unpaid balance of the trial court to give certain instructions will said purchase price of said land; that on not be considered by this court where the rec- June 9, 1908, a judgment was given and ord fails to give all the instructions submit- made in said action against said Clark L. ted to the jury, or does not show that the Goddard, of which a copy was filed in the instructions refused were not substantially office of the county recorder of said county embodied in those given. Buelna v. Ryan, on June 10, 1908, and another copy thereof 139 Cal. 630, 634, 73 Pac. 466.

was filed in the office of the register of the The judgment and order are affirmed. state land office on or about June 17, 1908;

that no other or any certified copies of said We concur: HART, J.; BURNETT, J.

judgment were ever or at any time filed in

said recorder's or said register's office; that (15 Cal. App. 440)

on December 29, 1909, plaintiffs tendered

and offered to pay to defendant, by way of GODDARD et al. v. EMERSON, Sheriff. (Civ. 813.)

redemption of said certificate of purchase,

under the provision of section 3551 of the (Court of Appeal, Third District, California. Political Code, the sum of $66.03, being the

Feb. 18, 1911. Rehearing Denied by
Supreme Court April 19, 1911.)

amount of said judgment and costs in said PUBLIC LANDS ($ 144+)-School LANDS-RE- action and interest accruing thereon, and DEMPTION FROM JUDGMENT OF FORECLOSURE. “then offered to pay said sheriff the full

The right to redeem a certificate of pur- amount of all interest, costs, penalties, and chase of school land from a judgment of fore- claims of every kind which were then payclosure for default in interest is governed by St. 1881, c. 55, giving 12 months after the able for the purpose of redeeming said cerforeclosure in which to redeem, and not by tificate of purchase, and restoring and havPol. Code, $$ 3550, 3531, requiring the district ing said judgment vacated and said action attorney to file copies of the judgment 20 days dismissed, but said defendant refused to after the entry thereof, and authorizing the holder of the certificate of purchase to pay, at accept said payment, or to accept any payany time before the filing, the amount due and ment by way of redemption, or to allow said the costs, and, whether the district attorney certificate of purchase to be redeemed." discharges his duty before or after the expira

The validity of the judgment, as entered tion of 20 days from entry of judgment, the purchaser has 12 months from the entry within June 9, 1908, is not disputed. The question which to redeem.

now presented arises out of what is claimed (Ed. Note. For other cases, see Public Lands, to have been a premature filing of the copies Dec. Dig. § 144.*]

of the judgment in the recorder's and regAppeal from Superior Court, Lassen ister's office. The filing was made in the County; F. D. Burroughs, Judge.

recorder's office one day after the entry of

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the judgment and in the register's office, fice, the annulments shall be canceled by eight days after the judgment was entered. said officer, and the rights of the purchasers The statute law, as found in the Political shall thereby be fully restored.” Code, is as follows:

The act of 1881 seems not to interfere “Sec. 3550. Twenty days after the entry with or change the duty of the district at. of judgment the district attorney must file torney in the requirement of section 3550 to in the office of the register, and in the re- file copies of the decree as there directed, corder's office of the county in which the but it does appear to change and enlarge land is situated, certified copies thereof. the right of redemption by the holder of the

"Sec. 3351. The holder of the certificate certificate of purchase. The right under the of purchase may, at any time before such act of 1881 may be exercised at any time filing, pay to the sheriff the amount due the within 12 months “after said foreclosures state, and the costs of suit that have accru- are or have been completed,” which would ed up to the time of payment; whereupon be upon the entry of judgment. In the case the district attorney must dismiss the suit of Marshall et al. v. Farmers' Bank of Fresor vacate the judgment, and the purchaser no, 115 Cal. 330, 42 Pac. 418, 47 Pac. 52, the or holder of the certificate of purchase is copies “were filed within 20 days after the restored to his rights in the premises." entry of the judgment" (Pol. Code, $ 3550),

The provisions relating to proceedings and redemption was “before the expiration against delinquent purchasers of state land of a year from the entry of the judgment," are found in title 8, c. 1, art. 6, $$ 3546 under the act of 1881. The case, however, to 3556, of the Political Code, and appear turned upon the conclusiveness of the patto be a codification of parts of the act of ent thereupon issued, and did not determine March 28, 1868. St. 1868, p. 507. Section 66 the question here. It does, inferentially, of that act provided that: “When a decree nevertheless, seem to recognize the force of shall have been obtained, and within twenty the act of 1881, as superseding the providays after the entering up of said decree, sions of section 3551 of the Political Code. the district attorney shall cause a certified It seems to us that, in view of the later act, copy of said decree to be filed in the office the right to redeem is no longer restricted of the register of the state land office and to the time or conditions mentioned in secanother certified copy in the recorder's office tion 3551, but is derived from the act of of the county in which the land is situate. 1881, and is no longer to be governed by the The holder of the certificate of purchase filing or failure to file copies of the decree may, at any time before the expiration of as provided in section 3550. A duty is by the twenty days provided for filing, a certi- that section still cast upon the district atfied copy

pay to the sheriff," etc.; torney, and, whether he discharges it before the provision being much the same as in or after the expiration of 20 days from the section 3551 of the Political Code, supra. entry of the decree, the purchaser has 12 Section 66 of the act of 1868 is carried into months, and no longer, from the completion the Political Code and made the subject of of the foreclosure-i. e., the entry of the dethe two sections, supra.

cree-within which to redeem. The act of On March 7, 1881 (St. 1881, p. 65), the Leg. 1881 changes the rule which would govern islature passed an "act to enable purchasers if the right of redemption depended wholly of state lands to redeem the same, where upon the two Code sections cited. Appellant their title has been or may hereafter be fore- did not offer to redeem until 18 months after closed for nonpayment of interest." It the entry of the decree. This was too late. reads:

The judgment is affirmed. “Section 1. In all cases where the title of purchasers of land from the state has We concur: HART, J.; BURNETT, J. been foreclosed, or attempted to be foreclosed, for non-payment of interest, said purchasers, their executors, administrators,

(15 Cal. App. 453) or successors in interest shall have, twelve SCOTT v. MONTE CRISTO OIL & DEVELmonths after said foreclosures are or have

OPMENT CO. (Civ. 889.) been completed, within which to redeem (Court of Appeal, Second District, California. such land by paying to the county treasurer,

Feb. 23, 1911.) for the benefit of the fund, or parties en- 1. CORPORATIONS (8 406*) – AUTHORITY ОР titled thereto, all delinquent interest, and PRESIDENT. interest that would have accrued in case Where the president of a corporation had there had been no foreclosure; also all general charge of the corporation's business in

a county other than that in which its office costs of foreclosure to be paid to the fund,

was located, and, on a servant being injured, or the parties who paid said costs. When the president directed that medical treatment said payments are made, and indorsed on and nursing be furnished him at the expense the certificate of purchase, specifying the of the corporation, which paid the expense of

taking him from the corporation's works to a amount paid as interest and for costs, and private hospital, where he was cared for, such duly reported to the register of the land of- | facts, in the absence of anything to the con*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes trary, were sufficient to justify an inference to care for and furnish all medical aid necesthat the president acted within the scope of his sary in the treatment of his said illness causauthority.

ed by the injuries so received while in the [Ed. Note.-For other cases, see Corporations, Cent. Dig. $$ 1611-1614; Dec. Dig. § 406.*]

employ of defendant; that the president of 2. PHYSICIANS AND SURGEONS ($ 13*)-EM- the corporation, in the presence of the field PLOYMENT—CONTRACT-CONSIDERATION. superintendent thereof, promised and agreed

The moral obligation resting on an employ: on behalf of said corporation that it would er to furnish assistance and care to an injured pay him for such services so rendered and to employé, though the employer was not respon be rendered on behalf of said Ingalls, who sible for the injury, constituted a sufficient consideration for the agreement of the employer's was totally unable to act for himself and in president to pay a physician for professional a helpless condition; that plaintiff did attend services rendered such servant.

said Ingalls and gave him medical aid and (Ed. Note.--For other cases, see Physicians surgical assistance during the period extendand Surgeons, Cent. Dig. $$ 18–20; Dec. Dig. ing from February 22d to and including April § 13.*] 3. PHYSICIANS AND SURGEONS ( 13*)-EM- 5th, which services were of the reasonable PLOYMENT.

value of $500; that one Anderson was the Where the president of a corporation .em- proprietor of a sanatorium, known as the ployed a physician to care for an injured em- Bakersfield Sanatorium, to which the presiployé, the fact that the injury was not received dent of the corporation, in the presence of the while the servant was performing the duties of his employment did not prevent a recovery field superintendent, ordered the said Leslie for the physician's services.

Ingalls to be taken and to be there nursed [Ed. Note. For other cases, see Physicians and cared for during his said illness, and the and Surgeons, Dec. Dig. § 13.*]

president of said corporation did promise and Appeal from Superior Court, Kern County; agree on its behalf that it would pay to said J. W. Mahon, Judge.

Anderson the expense and cost of the care Action by W. P. Scott against the Monte and nursing of said Ingalls during his said Cristo Oil & Development Company. Judg. illness; that from said 22d day of February ment for plaintiff, and defendant appeals. to and including the 5th day of April the said Affirmed.

Anderson did care for, shelter, attend, and Henry Ach, Geo. E. Whitaker, and G. E. nurse said Ingalls during his said illness, the Lawrence, for appellant. Matthew S. Platz, reasonable value of which service was the for respondent.

sum of $456, which claim was duly assigned

to this plaintiff. A like finding is made with SHAW, J. Plaintiff is a physician and reference to the claim of the drug company surgeon and brought this action, both in his which is alleged to have furnished medicines own behalf and as assignee of other claims, and drugs for the use of said Ingalls during to recover for professional services rendered his said illness. It is further found that the and medicines furnished to an employé of de- corporation partially ratified the acts of its fendant, which services and medicines are al president in ordering medical aid, care, and leged to have been rendered and furnished at nursing of said Ingalls, by paying part of the defendant's request. Defendant is a corpora- expense that was incurred, in that the corpotion having its principal place of business at ration paid the bill for the hire of the wagon San Francisco, but at the times mentioned in wherein said Ingalls was conveyed from its the complaint was engaged in mining oil and property in the oil fields to the Bakersfield the development of oil lands in Kern county. Sanatorium. No question is made as to the rendition or Judgment went for plaintiff for the sum of value of the services alleged to have been $966.90, from which, and an order denying performed, but defendant denies that the its motion for a new trial, defendant appeals. same were rendered at its request. The chief Defendant offered no evidence, but at the question therefore presented is whether de- close of plaintiff's case moved for a nonsuit fendant authorized plaintiff to render the upon the ground that the evidence failed to services.

show that Henry Ach, the president of the It appears from the findings that on or company, had authority to make contracts on about the 22d day of February, 1908, one Les- its behalf. This motion was denied. lle Ingalls was in the employ of defendant as As disclosed by the record, the evidence a laborer upon certain oil lands which de tended to establish the following facts: fendant was then engaged in developing; Jones was superintendent of the company in that while so in the employ of defendant, and charge of its local affairs. Ach was president while performing the duties of his said em- of the company, and Jones received his orployment, said Ingalls received great bodily ders and instructions pertaining to the maninjury and was so dangerously hurt that he agement of the local affairs of the company lost all consciousness and was absolutely from Ach as president acting for and on its helpless and unable to do or act for himself behalf. All of the business transacted in the by reason thereof; that on said date defend-community, other than that attended to by ant requested plaintiff, in his capacity of phy- the superintendent, was transacted through sician and surgeon, to attend said Ingalls and Ach, its president. “What the superintendent •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

115 P.-5

said generally went.” On February 22d, In- thority vested in one charged with the gen. galls, then in the employ of the company, in eral power shown to have been exercised by some manner not disclosed by the record, was Ach as president of the corporation. The diseriously injured; his skull being fractured, rectors did not meet in Kern county, all of necessitating an operation of trephining. In its business there was transacted through response to a telephone message, plaintiff Ach, its president, and, since he was held out went to the plant of defendant, located in the by the corporation as possessing full power Kern county oil fields, where he found In- to act in its behalf in all matters arising and -galls in an unconscious condition in the bunk- transacted in that vicinity, then, in the abhouse, at which time Ach, for and on behalf sence of anything to the contrary, the eviof the corporation, as its president, ordered dence was sufficient to raise a presumption Ingalls transferred to the private sanatorium that he was vested with the authority which of Louise Anderson, the expense of making he purported to exercise in making the agreesuch transfer being paid by defendant, and ment. Under the circumstances disclosed by then stated to plaintiff, in the presence of the the record, we deem it but a reasonable insuperintendent, that defendant would pay ference to conclude that the making of this the bills. Thereafter, Ach, in his capacity as agreement by Ach as president of the compresident, authorized the employing of nurses pany was within the scope of the powers to attend Ingalls, and ordered the superinten- vested in him by the corporation. Toledo, dent to see that everything possible was done W. & W. Ry. Co. v. Rodrigues, 47 IIl. 188, 95 for him. During the period from February Am. Dec. 484; Mt. Wilson Gold & Silver Min. 22d to April 5th Ingalls remained at the hos Co. v. Burbidge, 11 Colo. App. 487, 53 Pac. pital, where he was attended by nurses em- | 826; Railroad Co. v. Taft, 28 Mich. 291; ployed for that purpose, and was treated by Union Pac. Ry. Co. v. Winterbotham, 52 Kan. plaintiff, who procured drugs and medicines 433, 34 Pac. 1052; Scott v. Oil Co., 144 Cal. required for his use, all of which was done 140, 77 Pac. 817; Crowley v. Genesee M. Co., in reliance upon the promises made by the 55 Cal. 273. president of the corporation for and on its Conceding that defendant was not responbehalf, and by the superintendent of the cor-sible for the injuries received by Ingalls and poration pursuant to instructions given him might have refused to assist or care for him by the president of the corporation.

in any way, nevertheless the company recogThe contention of appellant is that the evi- nized an obligation to do something towards dence fails to show any authority, either ex- relieving his suffering and assisting him and press or implied, on the part of the president did send him to the sanatorium and paid for

the services rendered in such transportation, or superintendent of the corporation to act for it in making such agreement or incurring which, however small, constituted some ratisuch liability.

fication of the acts of its president. In the [1] No question of ultra vires is involved. case of Railway Company v. McVay, 98 Ind. The superintendent received his orders and

391, 49 Am. Rep. 770, it is said: “There is instructions on behalf of the corporation no evidence as to how Barnett was injured ; from Mr. Ach. Jones, the superintendent, but inasmuch as the general manager ratified testifies that Ach instructed him “to put ou contracts for taking care of him, and the an extra nurse." "That was his instruction, company paid for such service (except the to do all that I could for the boy. That was

claim of appellee), it should be presumedhis instruction always.” “That was the drift there being no evidence to the contrary—that of the whole thing at all times, even to the the injury was so inflicted as that the conletters. If any mention was made of the boy tract for his care was not ultra vires." in any letter, it was to see that everything

[2] The case at bar is not unlike that of possible was to be done for the boy." There Fraser v. San Francisco Bridge Co., 103 Cal. is also evidence to the effect that plaintiff, aft- 79, 36 Pac. 1037, where it was held under the er dressing the wounds of Ingalls at the bunk-circumstances of that case that the moral

dant to furnish house, asked whether they would send him to obligation resting on the def the hospital as a county charge, or to the pri- for which the corporation was in no wise re

assistance and care to an injured employé, vate sanatorium, where the hospital charges would be $25 per week. If the injury to In- tion for the agreement made by the president

sponsible, constituted a sufficient consideragalls was due to the negligence of the corpora of the company to pay a physician for protion, then, in the absence of contributory nes: fessional services rendered such employé. ligence on his part, the corporation would be liable to him for these claims and he

[3] The finding to the effect that the injumight recover therefor. Such circumstances ry was received by Ingalls while performing

the duties of his employment finds no supwould constitute a sufficient consideration Yor the making of the agreement and raise of the case, the error is not prejudicial and

port in the evidence; but, under our view a presumption that it was in the interest of hence should be disregarded as immaterial. the corporation to do what it could to reduce its liability for damages on account of such

We find no merit in appellant's contention

as to the commission of other alleged errors. injury. It could not be said that an agree

The judgment and order are affirmed. ment of this character made under such conditions would not be within the scope of au- We concur: ALLEN, P. J.; JAMES, J.

(15 Cal. App. 435)

RUTZ Y. OBEAR et al. (Civ. 863.) (Court of Appeal, Second District, California. Feb. 17, 1911. Rehearing Denied by Supreme Court April 18, 1911.)

1. APPEAL AND ERROR (§ 193*)-QUESTION RAISED FOR FIRST TIME ON APPEAL-SUFFICIENCY OF COMPLAINT.

Defendants cannot object for the first time on appeal that the complaint does not state a cause of action.

2. BROKERS (§ 85*)-ACTION FOR COMPENSATION EVIDENCE.

In an action to recover for services in securing a tenant for hotel property and in procuring a bond from such tenant to secure the payment of the rent, evidence offered by defendant tending to show that, after the lease was procured, plaintiff loaned the tenant money to inaugurate and carry on his business was properly excluded, as it related to a matter arising after the execution of the lease and the completion of the contract involved in the

action.

[Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 155-158; Dec. Dig. § 65.*] 8. ESTOPPEL (§ 98*)-PERSONS AFFECTED.

Where one person owns all the stock of a [Ed. Note.-For other cases, see Appeal and ration is destroyed, and statements and admiscorporation, the separate entity of the corpoError, Cent. Dig. § 1232; Dec. Dig. § 193;*sions by such owner may be received as estabPleading, Cent. Dig. § 1348.] lishing facts from which an estoppel might arise as to the corporation.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 290; Dec. Dig. § 98.*]

9. BROKERS (§ 87*)-COMPENSATION-EXTENT OF RECOVERY.

In an action to recover compensation for procuring a tenant and securing the execution of a bond to secure the rent, which amounted to $96.000 for the term of the lease, judgment for $960 held, under the evidence, not excessive, [Ed. Note.-For other cases, see Brokers, Cent. Dig. § 131; Dec. Dig. § 87.*]

[blocks in formation]

4. BROKERS (§ 65*)-RIGHT TO COMPENSATION -INDIVIDUAL INTEREST.

That a broker, after procuring a tenant, and causing him to furnish a bond to secure the rent, advanced money to the tenant either before or after the execution of the lease, in order that the tenant might procure fixtures used in the leased premises, does not show bad faith on the part of the broker, or tend to establish an interest inconsistent with his duty to his principal; the broker having in fact no interest in the lease.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. $$ 48-50; Dec. Dig. § 65.*]

7. ESTOPPEL (§ 65*)-REPRESENTATIONS AS TO OWNERSHIP OF PROPERTY.

5. BROKERS (§ 74*)-COMPENSATION.

Where defendant, who employed a broker to procure a tenant for corporate property, owned all the stock of the corporation, and stat ed to the broker that he individually owned the property and that the execution of the lease in the corporate name was for the purpose of affording protection against personal liability, defendant was personally liable to the broker for his commission.

ALLEN, P. J. The action was one to recover for the value of certain services rendered by plaintiff to defendants in securing a tenant for a certain hotel, and in procuring a bond from such tenant to secure the rents during the life of the lease. The complaint alleged "that within two years last past defendants became indebted to plaintiff in the sum of $1,920 for the reasonable value of services rendered to the defendants at their special instance and request; that such services consisted of securing a tenant for the Hotel Savoy, Santa Monica, Cal.. and a bond to secure the rents of the same"; demand and nonpayment being alleged. The defendants answered jointly denying the indebtedness within the two years last past, or at any other time, or at all, of either of them to plaintiff, either in the sum [Ed. Note. For other cases, see Brokers, Dec. | demanded, or in any other sum, on account Dig. 874.*] of the reasonable value of services rendered. No demurrer was interposed to the complaint, nor was there any objection made at

6. EVIDENCE (§ 222*) — ADMISSIONS STOCKHOLDER OF CORPORATION.

Where one procured services to be performed in connection with property based upon a belief of ownership from representations of the party sought to be charged, such party is estopped, after such services have been performed, to deny ownership.

[ocr errors]

Appeal from Superior Court, Los Angeles County; Leon F. Moss, Judge.

Action by George A. Rutz against W. H. Obear and another. From a judgment for Afplaintiff, defendant Obear appeals. firmed.

Archibald Barnard (Crittenden Thornton, W. W. Butler, of counsel), for appellant. for respondent.

Where defendant, on employing a broker to procure a tenant for property held in the the trial to the receipt of evidence in supname of a corporation, stated to the broker port thereof. The parties seem to have asthat he individually owned the property and sumed that the issues were properly prethat the execution of the lease in the corporate sented. Evidence was received, without obname was to avoid personal liability, defend-jection, and the court finds that within two ant's admissions were competent to bind himself personally.

years preceding the commencement of the

[Ed. Note.-For other cases, see Evidence, action the services were performed for deCent. Dig. §§ 768-808; Dec. Dig. § 222.*] fendant Obear; that they were of the char

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

« PreviousContinue »