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the defendant, In addition to ordinary taxable costs incurred by him by reason of the proceeding, reasonable attorney's fees. condition is not an unreasonable one to impose in such a case. The right of eminent domain involves an extraordinary power of sovereignty. While it is an eminently proper and necessary right of sovereignty, its exercise should be carefully guarded so as to prevent abuses arising under it. The Legislature can, as stated, and it should, impose upon its exercise such reasonable conditions as will discourage litigation not founded upon merit arising under it or as will penalize to a reasonable extent those who resort to it with the intention of securing property at the price they appraise it for and abandoning the proceeding if the value fixed by the jury and court are in excess thereof even only in a reasonable amount. Under the statute complained of here, if the plaintiff accepts the property at the price at which it is judicially appraised, the defendant only receives the compensation so fixed. If the property is not accepted by the plaintiff, then he must reimburse the defendant for the expenses which he has been compelled to bear in litigation for which he was not responsible.

"The ground upon which it is argued that the provision is unconstitutional is that it is special legislation, and imposes upon one class of litigants a charge from which all others instituting proceedings in court are free. Any other plaintiff or petitioner may dismiss his suit while pending, and suffer no penalty beyond the payment of statutory costs; while, if a petitioner under the eminent domain act shall, for any cause, dismiss the petition, the statute gives a right to the defendant to recover, in addition to the taxable costs, the amount paid or incurred by him for costs, expenses, and reasonable attorney's fees in his defense. Every citizen has an equal right with every other to resort to the courts of justice for the settlement and enforcecrimination between different classes of litiment of his rights; and it is true that a disgants, which is merely arbitrary in its nature, is a denial of that right and of the equal protection of the law. If, however, there be a reasonable ground of distinction, so that the discrimination does not appear to be purely arbitrary or evasive of constitutional rights, we think that the Legislature has a discretion to impose conditions or restrictions which they may deem in furtherance of justice. That discretion cannot be controlled by the courts, but its exercise must be left to the wisdom and sense of justice of the Legislature. We think that no one will fail to observe a difference, in principle and natural justice, between a litigation where plaintiff invokes the action of the court to recover money or property from another, and dismisses such action, and a proceeding to ascertain the compensation to be paid for propsec-erty to be taken for public use. The Constitution protects the owner by a provision that his property shall not be taken for public use withthe enforcement of individual right, but to setout just compensation. The proceeding is not tle the condition upon which the sovereign power to take the property may be exercised. The judgment is not binding upon the petitioner, but it may decline to enter upon the property or to make payment of compensation. If the possession is taken, and the compensation paid, the owner gets nothing but the fair cash market value of his property; and if it is not paid, or the attempted taking is discontinued by the dismissal of the petition, he is a loser to the extent of the amount expended. The act seems to be Constitution, and we think it valid." in harmony with the spirit and intent of the

Thus it is plainly to be seen that the tion of the Code in question does not impinge upon any provision either of the state or federal Constitution. The provision animadverted upon here applies alike to all of the class to which the section applies. It does not discriminate as between persons belonging to that class and denies to none the equal protection of the law.

The views thus expressed are in accord with those advanced upon precisely the identical question by the adjudicated cases. Some of these cases we have already referred to. But there is another case to which we may well refer in connection with the observations last above made. The case is from the Supreme Court of Illinois. In that state, the legislative law upon eminent domain, among other provisions, contains one like ours, allowing the defendant, in proceedings to condemn property under the right of eminent domain, his costs and attorney's fees, to be taxed against the plaintiff, when the latter dismisses or abandons the proceeding. In Sanitary District of Chicago v. Bernstein et al., 175 Ill. 215, 51 N. E. 720, the validity of the provision of the statute of said state so allowing attorney's fees was challenged upon constitutional grounds similar to those urged here. The Illinois court disposed of the objections in a well-considered opinion, from which we here present an extended excerpt because of its cogent application to the present case:

See, also, Gano v. Minneapolis & St. Louis R. R. Co., 114 Iowa, 713, 87 N. W. 714, 55 L. R. A. 263, 89 Am. St. Rep. 393, and cases therein cited.

The city attorney, representing the plaintiff in this proceeding, has presented his side of the case here in a forceful and masterly and but the authorities are earnest manner; clearly against his position, and, as must be manifest from the discussion herein, we are, upon the authorities as well as upon principle, constrained to the, conclusion that the law under attack on this appeal is not amenable to the objections on constitutional grounds urged against it.

The judgment is accordingly affirmed.

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2. BROKERS 46 COMPENSATION TRACT OF EMPLOYMENT "SOLELY."

CON

A contract whereby defendant empowered plaintiffs solely to sell his property within 120 days, and agreed to pay them 5 per cent. commission and one-half of price obtained above $20,000 commission on any sale made by them during the life of the agreement if sold to purchaser to whose attention the property was brought through them, does not entitle plaintiffs to commission where a sale is made by defendant by his own efforts; the word "solely," as used in the contract, importing only sole agency. [Ed. Note. For other cases, see Brokers, Cent. Dig. 47; Dec. Dig. 46.

For other definitions, see Words and Phrases, First and Second Series, Solely.]

CON

3. BROKERS 46 COMPENSATION TRACT OF EMPLOYMENT "RATIFY." A contract employing plaintiffs to sell property and agreeing to pay them a commission on any sale ratified by defendant does not entitle plaintiffs to commission on a sale by the defendant; the term "ratify" meaning to give validity to the act of another.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. § 47; Dec. Dig. 46.

For other definitions, see Words and Phrases, First and Second Series, Ratify.]

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BURNETT, J. The appeal is from a judgment of nonsuit in an action for the recovery of $3,630, claimed as commissions for the sale of real property. The contract of agency, as far as necessary to quote, was as follows:

"For value received, and in consideration of the agreement on the part of Snook & Nelson, hereinafter contained, to perform services for me, I appoint said Snook & Nelson my agents, and as such authorize them to sell for me within one hundred and twenty days from date hereof the following described property: * * Said property may be sold as a whole or in such subdivisions as herein stated, provided that the entire selling price shall not be less than $20,000.

*

"I hereby empower said Snook & Nelson solely to contract in writing to sell said property with the same effect as if I were present and

authorized the same.

I agree to pay

to Snook & Nelson 5 per cent. commission and one-half of price obtained above $20,000 commission on any sale made by them or ratified by me during the life of this agreement, or thereafter if sold to purchaser to whose attention said property was brought through them."

It is not claimed that plaintiffs made a sale or obtained a purchaser, but it is conceded that defendant, without any aid from or consultation with them, made a contract for the sale of the property. It is contended, however, that, under the peculiar terms

of their contract, plaintiffs were entitled to a commission if a sale were made by the owner of the property. The proper construction of said contract of agency is therefore the desideratum in the case.

The first question of importance, then, is whether the plaintiffs were constituted the exclusive agents, or were they given the exclusive right to sell said property?

[1] If the former only, the rule is well settled that:

"The owner has the right to sell the same by his own unaided efforts without becoming liable to the broker for commission, that the only effect of such contract is to prevent the owner from placing the property in the hands of another agent, and that the owner does not thereby relinquish his right to sell the propGolden Gate Packing Co. v. Farmers' Union, 55 erty himself independently of the broker." Cal. 606; Waterman v. Boltinghouse, 82 Cal. 659, 23 Pac. 195; Dreyfus v. Richardson, 20 Cal. App. 800, 130 Pac. 161.

The right on the part of the owner is an implied condition of the agency, subject to which the agent accepts it, and, as his commission is payable only in case of his success in finding a purchaser, the agent takes his chances of the owner himself making a sale. Dole v. Sherwood, 41 Minn. 535, 43 N. W. 569, 5 L. R. A. 720, 16 Am. St. Rep. 731.

[2] The contract herein certainly does not expressly confer upon plaintiffs the exclusive right to sell the property, nor does it in apt terms, if at all, provide for a commission in case the owner himself should dispose of it.

In considering the matter we are to keep in mind that the burden is upon plaintiffs to establish their claim, and that, since the contract was prepared by them, any uncertainty or ambiguity in the terms of the instrument must be resolved in favor of the owner.

With this in view, then, taking the contract "by the four corners," we reach the conclusion that plaintiffs were made the exclu sive agents, but they were not clothed with the exclusive right to sell the property. The use of the word "solely" can furnish the only pretense of justification for the contention of plaintiffs, but, fairly interpreted, the clause imports the meaning of sole agency. If it had been the intention to deprive the owner of the right to sell, or in case of such sale to create a liability for commissions, it could, and, no doubt, would, have been easily and clearly expressed. With such contingency in view, the parties would have provided that

108

"Snook & Nelson should have the exclusive
right to sell said property," or, "in case of a
sale made by the owner, they should be en-
titled to the same commissions as though
made by themselves."

The fact is that by the clause under con-
sideration the parties were not treating of an
actual sale, nor did they contemplate any
personal participation of the owner in the
transaction. The language shows that they
were considering a contract or agreement for
the sale, rather than the sale itself, and such
contract made in the absence of the owner,
which, of course, excludes by implication the
consideration of what might be done by the
owner herself in consummating a transfer of
the property. In this respect the contract in
Davis v. Van Tassel (Sup.) 107 N. Y. Supp.
910, was apparently more favorable to the
broker than the one involved herein, but in
that case the court said:

"No doubt, a contract could be made whereby, in consideration of the efforts made by an agent to sell property, the owner might obligate himself to pay a sum agreed upon if the premises were sold even without the aid of the broker; but it does not seem to me that this is such a contract. The plaintiff is constituted the recognized sole agent for the property; but there is nothing in the fact of sole agency which in itself gives the broker any right to commissions,, unless he is the procuring cause of the sale."

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*

It was further held that the words, "And at such times as a sale shall be effected for any of the above-mentioned property for the prices named the sum of 2 per cent. I agree to pay upon times as such sales are effected," referred to at such sales made by such agents, and did not include a sale made by the owner himself. The cases cited by appellants involve an entirely different contract from the one be fore us.

In Crane v. McCormick, 92 Cal. 176, 28 Pac. 222, by the terms of the contract the brokers were authorized to sell the property at any time within one year, and it was expressly agreed that the commissions should be paid if the owners withdrew the property from sale or effected a sale in any way during the year. The owners did make a sale during the year, and therefore one of the conditions happened that rendered them liable

for the commission.

In Maze v. Gordon, 96 Cal. 61, 30 Pac. 962, the contract provided that, if the owner should, before the expiration of the contract, withdraw the sale of the property, the broker should be entitled to his commission, and it was properly and necessarily held that, since the owner did withdraw the property from sale within said time the broker was entitled to his commission.

In Kimmell v. Skelly, 130 Cal. 555, 62 Pac. 1067, the owner specifically agreed that a commission was to be paid "in the event of a sale of said real property by them or any one else, including myself."

(Cal.

be said the principal controversy was as to
In those cases and some others cited it may
whether there was sufficient consideration
for the agreement. There was no such dis-
the contract itself.
pute, as herein, over the interpretation of

ble for the reason that she ratified the sale,
[3] The other point, that the owner is lia-
is even less tenable. The contention is that
she ratified the sale by making it.
would certainly be a strange and extraordi-
nary use of the term "ratify." We must as-
This
sume that the parties attached to the term
its ordinary and usual signification.

6 Sup. Ct. 1121, 30 L. Ed. 178, it was held:
In Norton v. Shelby County, 118 U. S. 425,

another, and implies that the person or body "To ratify is to give validity to the act of ratifying has at the time power to do the act ratified."

In Heyn v. O'Hagen, 60 Mich. 150, 26 N. W. 861, it was said:

something done without authority by one in"To ratify is to give sanction and validity to dividual on behalf of another."

In legal phrase it usually means to approve
by an agent or one assuming to act for anoth-
or confirm by a principal what has been done
Bank, 165 Mo. 671, 65 S. W. 943.
er. City of Lexington v. Lafayette County

applicable only to contracts made by a party
"The terms 'adopt' and 'ratify' are properly
acting or assuming to act for another.
latter may then adopt or ratify the act of the
The
and ratification there must be some relation,
former, however unauthorized. To adoption
Shepardson v. Gillette, 133 Ind. 125, 31 N. E.
actual or assumed, of principal and agent."
788.

ed as:
In 33 Cyc. p. 1528, "ratification" is defin-

"The act of giving sanction and validity to in such relations that he may claim it was done something done by another; the adoption by a person as binding upon himself of an act done for his benefit, although done under such circumstances as would not bind him but for his subsequent assent; the approval by act, word, complished), but which was improperly or unor conduct of that which was attempted (if acauthorizedly performed in the first instance; the the party himself or another; the confirmation of a voidable act; a definition of establish." confirmation of a previous act done either by

ly refers to the act of another. See sections
As used in the Code, the term undoubted-

2310 and 2312, Civ. Code.

ty was, of course, the act of the principal,
The act of defendant in selling the proper-
and, moreover, it was an entirely valid act.
It was not voidable in any sense, even though
it should be held that the brokers were giv.
en the exclusive right of sale. For this ex-
clusive right of sale would only mean that
they were entitled to their commission, no
matter how or by whom the sale was ef-
fected.

judgment is therefore affirmed.
We think the decision was right, and the

We concur: CHIPMAN, P. J.; HART, J.

LYNIP v. ALTURAS SCHOOL DIST. OF MODOC COUNTY et al.

(Civ. 1420.)

of the retained percentage of the contract price could not recover against the school district trustees on their guaranty, attached to the assignment, providing that in consideration of the assignee's advancement to pay for labor and

(District Court of Appeal, Third District, Cali- materials the trustees guaranteed that the

fornia. Dec. 13, 1915.)

1. JUDGES —51-DISQUALIFICATION TO ACT

-OBJECTIONS-WAIVER-STATUTE.

Under Code Civ. Proc. § 170, providing that the disqualification of a judge for relationship within the third degree to a party may be waived in writing, where defendants, in an action by the cashier of a bank in its behalf, as soon as it appeared on plaintiff's cross-examination that the presiding judge was a brother of a director of the bank objected that the judge was disqualified and requested a change of venue, the objection did not come too late, and defendants did not waive their privilege to object. [Ed. Note.-For other cases, see Judges, Cent. Dig. 88 224-231; Dec. Dig. 51.]

2. JUDGES 45-DISQUALIFICATION-RELA

TIONSHIP-STATUTE.

In an action by the cashier of a bank as the trustee of an express trust on behalf of the bank, by virtue of Code Civ. Proc. § 369, the presiding judge, brother of a director of the bank, was disqualified under section 170, providing that no judge shall act as such in any action when he is related to either party, or to an officer of a corporation which is a party,

within the third degree.

[Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 208-212; Dec. Dig. 45.]

3. JUDGES ~51-DISQUALIFICATION TO ACT -OBJECTION TO MOTION.

In an action by the cashier of a bank on its behalf, where it was objected, as soon as the fact appeared on plaintiff's cross-examination, that the presiding judge was disqualified because he was a brother of a director of the bank and so related to an officer of a corporation which was a party, the objection to the motion for disqualification that it did not show the bank was a corporation should have been made at the time.

amount advanced should be repaid, upon completion of the building, out of the percentage of the contract price held back until completion, since the instrument was not a guaranty of the original obligation that the debt would be paid. [Ed. Note.-For other cases, see Guaranty, Cent. Dig. §§ 51, 52; Dec. Dig. 42.]

Appeal from Superior Court, Modoc County; C. A. Raker, Judge.

Action by B. F. Lynip against the Alturas School District of Modoc County and others. From a judgment for plaintiff, and an order denying a motion for new trial, defendants appeal. Judgment and order reversed.

Cornish & Robnett, of Alturas, for appel- . lants Auble, Ballard, and Smith. C. S. Baldwin, of Alturas, for appellant Alturas School Dist. Jamison & Wylie, of Alturas, for respondent.

BURNETT, J. There is little if any controversy as to the facts involved herein. In the year 1911, one A. E. Pearson, as original contractor, was engaged in the construction of a grammar school building in the town of Alturas, Modoc county, under a written contract for the total price of $20,350. Defendants Auble, Ballard, and Smith were the trustees of the school district. On or about November 18 of said year said Pearson made application to the plaintiff, as cashier of the First National Bank of Alturas, for a loan of $4,000 to enable said Pearson to pay for labor and materials for the construction of said building. Plaintiff, acting for said bank,

[Ed. Note. For other cases, see Judges, Cent. loaned Pearson said sum and took an assignDig. §§ 224-231; Dec. Dig.

51.]

4. JUDGES 45-DISQUALIFICATION-RELATIONSHIP TO "OFFICER" OF CORPORATION "OFFICE"-STATUTE.

A director of a bank is its "officer" within Code Civ. Proc. § 170, providing that no judge shall sit or act as such in any action when he is related to an officer of a corporation which is a party, since an "office" in a corporation is a position of trust or authority in the regular and continued employment of the corporation, a position which a director occupies.

[Ed. Note.-For other cases, see Judges, Cent. Dig. 8 208-212; Dec. Dig. 45.

For other definitions, see Words and Phrases, First and Second Series, Office; Officer.] 5. ASSIGNMENTS 73-RIGHTS OF ASSIGNEE AS AGAINST THIRD PARTY.

Trustees of a school district were not liable, to the assignee of the contractor for a school building who defaulted before completion, for the assigned amount of the contract price of the building, although they indorsed the assignment, thereby recognizing it, reciting an agreement to pay the sum "out of the payment" to be made "at the time of completion and acceptance of said building.'

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ment to the extent thereof of the last or final payment which might become due said Pearson after the completion of said building.

On cross-examination plaintiff testified that this was not a personal transaction of his, that it was a "bank affair," and that he was prosecuting the action for the bank. The record then shows the following:

"Q. Who are the directors of your bank, that is, the First National Bank of Alturas? A. A. W. Toreson, D. C. Berry, A. B. Etes, H. R. Gaustad, John E. Raker, Últy McCabe, E. Van Loan, C. A. Estes, and myself. Q. You say that John E. Raker is a director? A. Yes. Q. Is that a brother of his honor, Clarence A. Raker, who is presiding here? A. Yes, sir. Mr. Robnett: If your honor please, it just now develops in this case that your honor, under the Code, will be disqualified to proceed, owing to the fact that this action, although nominally brought in the name of B. F. Lynip, is in reality prosecuted by the First National Bank of Alturas, of which your brother, John E. Raker, is a director. I submit a motion at this time that your honor is disqualified, and there should It did not be a change of venue in this case.

[Ed. Note. For other cases, see Assignments, appear on the face of the record before. Mr. Cent. Dig. §§ 139-142; Dec. Dig. 73.] Jamison: If your honor please, I think it is out 6. GUARANTY 42-RIGHT OF ACTION. of the ordinary procedure. At this moment I Where the contractor for a school building am not prepared to take up and argue this matdefaulted in completion, the assignee of $4,000ter. Usually, if any objection of this kind is

made, it is made in the beginning, before the | acting upon such presumption, but, under case has reached trial in any way, shape, or the peculiar circumstances here, we must form. Mr. Robnett: The record did not show hold that there was acquiescence in the exist on its face any disqualification. The other side had all the facts in their office and in their ence of the facts implied in the statement of knowledge, and we had none of them. That is counsel for appellants. why the motion comes now. I simply submit the motion, and we are willing to proceed with the evidence and have the motion considered latWe make the motion now under our understanding of the law, and object to your honor presiding at the trial. The Court.: The motion is denied."

er.

[1, 2] Section 170 of the Code of Civil Procedure provides:

[4] The suggestion that a director is not an officer of the bank, urged strongly by respondent, is, we think, without any merit at all. An office in a corporation has been defined as "a position of trust or authority in the regular and continued employment of the corporation." The duties of a director are familiar and need not be detailed, and it may be said that his position is of the highest "trust and authority" in connection with the affairs of the corporation. His authority is not only paramount, but the other executive officers are subject to his will for their apdis-pointment and tenure. The question does not seem to have been considered many times by the courts, but there is authority for the position of appellants. In United States v. Means

"No justice, judge, or justice of the peace shall sit or act as such in any action or proceeding: * * 2. When he is related to either party, or to an officer of a corporation which is a party, within the third degree, computed according to the rules of law."

* * *

(C. C.) 42 Fed. 603, it was held that directors of a national bank are "officers" within the meaning of Revised Statutes of the United States, section 5209 (U. S. Comp. St. 1913, § 9772), which makes it a misdemeanor for bank officers to make false entries in any book, report, or statement of the bank, with intent to deceive any of its officers, the court saying:

The section further provides that said qualification may be waived in writing. That is the only method specified, and while, under certain circumstances, a party might be estopped to raise the question of disqualification, no such situation is presented here. Appellants made the objection as soon as they were apprised of the facts that seemed to bring the case within said inhibition of the statute. Upon no consideration of principle or authority do we think it should be held that the objection came too late or that appellants had waived the privilege. It will be noticed that the foregoing is the only objection made by respondent to the motion. Certain other considerations are suggested here, however, in attempted justification of the order denying said motion. One is that the bank is not a party to the suit. Nominally this is true, but said bank appears unquesIn Laws 1875, c. 611, § 21, providing thattionably to be the real party in interest. The "if any certificate or report made, or public nostatute should have, we think, no such nar- tice given, by an officer of a corporation shall row construction as is contended. Plaintiff be false in any material representation, all the could maintain the action only by virtue of officers who have signed the same shall be jointsection 369 of the Code of Civil Procedure- ly and severally liable for all the debts of the that is, as the trustee of an express trust-corporation contracted while they are officers thereof," but the judgment rendered would affect par--officers should be construed to include the

ticularly the interest of the bank for whose benefit the action was prosecuted, and that is the determinative factor. Neither can there be any doubt as to what bank was interested in the suit. The quotation already made leaves nothing to be desired as to this point.

[3] The suggestion is made that it was not shown that the bank was a corporation. Such objection, if intended to be relied on, should have been made at the time. This would have been only fair to opposing counsel. Indeed, as we have seen, there was apparently no controversy as to the facts. It was assumed by all parties that the conditions existed that would make the rule applicable except that the application was made too late. But the point is made by appellants that it appears that it was a national bank, and since the law requires a national bank to be incorporated we must assume that it was such corporation. If strict proof were required, we would probably not be justified in

"As to the directors there is not the shade of doubtful construction of this act. They are not only officers, but managers, of our national They come within every sense and banks. the rule of the association of words in the act meaning of the word 'officer,' and are within already referred to and of the decisions cited."

directors of the corporation, for, in a strict sense, the directors of a corporation are its officers. Torbett v. Eaton, 49 Hun, 209, 1 N. Y. Supp. 614; Brand v. Godwin, 8 N. Y. Supp. 339; Com. v. Wyman, 49 Mass. (8 Metc.) 247. Our attention has not been called to any decision in this state directly in point, but in the Civil Code and in the case of Sherwood v. Wallin, 154 Cal. 735, 99 Pac. 191, it seems to be assumed that they are officers. It appears to us so plain that we are not surprised that there has been little or no controversy concerning it.

Moreover, upon the merits, we think the decision was erroneous, judgment having been rendered for plaintiff after trial. The basis of the claim lies in an assignment made on November 18, 1911, by said Pearson as contractor aforesaid. The said assignment, after reciting the contract with said district and the advancement to said Pearson by B. F. Lynip of the sum of $4,000 to enable the former to

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