location to another, held void as against pub-319(1) (Cal.App.) When one contractor relic policy and good morals.-Davis v. Janeway, 155 P. 241.

139 (Okl.) Where plaintiff took land with knowledge that an apparent lien secured payment under a contract void as against public morals, and where he declared on the contract, he was in pari delicto with defendant, and therefore not entitled to the aid of the court to secure cancellation of the lien contract.-Davis v. Janeway, 155 P. 241.

II. CONSTRUCTION AND OPERA

TION.

(A) General Rules of Construction. 143 (Utah) In construing the stipulations of a contract, the court cannot substitute their own judgment for that of the parties, since they can enforce, but not create, liabilities.-Wm. B. Hughes Produce Co. v. Pulley, 155 P. 337.

147(1) (Wash.) The intent of one of the parties cannot guide in construction of the contract.-Klock Produce Co. v. Robertson, 155 P. 1044.

169 (Cal.) Under Civ. Code, §§ 1625, 1637, 1639, providing that the meaning of a written contract must be ascertained from the writing alone, if possible, surrounding circumstances should not be considered, unless the intention is uncertain.-Salter v. Ives, 155 P. 84.

176(1) (Cal.App.) Where defendants, in action for breach of written contract, alleged that it was one of three, which a contemporaneous oral contract stipulated should be treated as a single instrument, the issue so raised was for the jury.-Torrey v. Shea, 155 P. 820.

fuses to perform any portion of the agreement, the other may treat the whole contract as abandoned, whether the time for performance has arrived or not, and regardless of the fact that the contract has been partially performed.-Torrey v. Shea, 155 P. 820.

320 (Wash.) Where a building contractor performs imperfectly as to workmanship and material furnished, doing so in bad faith, he cannot recover for the work.-Evans v. Goist, 155 P. 780.

322 (4) (Wash.) Under a contract, evidence held sufficient to show that a contractor attempted in good faith to fully and carefully perform his contract.-Evans v. Goist, 155 P. 780.

323(1) (Cal.App.) Where defendants, in action on contract, alleged that the instrument was one of three, which a contemporaneous oral contract stipulated should be a single instrument, the question whether the plaintiffs had failed without just cause to observe their contract was for the jury.-Torrey v. Shea, 155 P. 820.

VI. ACTIONS FOR BREACH.

324 (Ariz.) Remedy, if any, of contractor abandoning the work on failure of owner to pay an installment due under the contract, is on quantum meruit.-Greenlee County v. Cotey, 155 P. 302.

328(1) (Cal.App.) The remedy provided by Civ. Code, 3399, for the reformation of a contract on the ground of fraud or mistake, is not exclusive, and does not prevent the defense against a suit for breach, that the contract was one of several, which by contemporaneous oral agreement were to constitute one transaction, one of which contracts the plaintiffs had breach

176 (Okl.) When a letter is introduced to show a promise or agreement, it is generally the court's duty to construe the terms of the letter, and not to submit it to the jury.-Co-ed.-Torrey v. Shea, 155 P. 820. manche Mercantile Co. v. Wheeler & Motter Mercantile Co., 155 P. 583.

(E) Conditions.

221 (Okl.) A "condition precedent" of a contract is one which calls for the performance of some act or the happening of some event after the contract is entered into and upon the performance or happening of which its obligations are made to depend.-Northwestern Nat. Life Ins. Co. v. Ward, 155 P. 524.

226 (Okl.) A "condition subsequent" of a contract is one which follows the performance of the contract and operates to defeat or annul it upon the subsequent failure of either party to comply with the condition.-Northwestern Nat. Life Ins. Co. v. Ward, 155 P. 524.

V. PERFORMANCE OR BREACH. 299(2) (Okl.) Where a contractor is delayed in his work by failure of the other contracting party to furnish material as agreed, he is entitled to recover damages proximately resulting from the delay.-City of Chickasha v. Hollinsworth, 155 P. 859.

308 (Okl.) A party relying on payment of liquidated damages as a discharge must clearly show that the damages were paid and received in lieu of performance.-Dillon v. Ringleman, 155 P. 563.

312 (Ariz.) Refusal of one employing a contractor to pay an installment due on the contract stipulating for payment as the work

progresses on estimates held not such a breach as will permit the contractor to abandon the work and recover on the contract for profits.Greenlee County v. Cotey, 155 P. 302.

318 (Cal.App.) A willful and inexcusable failure of one party to perform a material part

→332(3) (N.M.) Code 1915, § 4153, providing that in pleading performance of a condition precedent it shall not be necessary to state the facts, but a general statement of performance shall be sufficient, does not apply where the contract is indefinite or in the alternative.-Arnold v. Wells, 155 P. 724.

342 (Or.) The burden is on the one alleging that the object of a contract to pay the costs and fees of an action is illegal to allege in the complaint sufficient facts to disclose the immorality or injurious tendency of the contract.-Cone v. Gilmore, 155 P. 192.

346(11) (Cal.) A complaint alleging performwaiver of performance.-Flickinger v. Wrenn ance of a contract is not sustained by proof of Inv. Co., 155 P. 627.

350(1) (Cal.App.) In an action by an architect to recover payment for plans furnished defendant, evidence held sufficient to support a verdict for plaintiff.-Salfield v. Cohn, 155 P. 1007.

352 (Utah) In an action to recover for services rendered in drawing architect's plans, defenses that defendant was acting merely as agent for another, and that plaintiff was to receive compensation only on condition that he and another obtained the contract for alteration, held raised by the evidence and properly submitted to the jury.-Lepper v. Reilley, 155 P. 444.

CONTRIBUTION.

See Municipal Corporations, 611.
CONTRIBUTORY NEGLIGENCE.
See Negligence, 71-100, 141.
CONVERSION.

of a contract is an abandonment of the entire See Trover and Conversion.

contract, after which he cannot recover for fail-15 (Kan.) Under a will, held that, on death ure of the other party to perform.-Torrey v. of testatrix, an equitable conversion of realty Shea, 155 P. 820. into personalty took place, and title passed to

Acts.

the executors to enable them, not merely to sell (D) Liability for Corporate Debts and realty and distribute proceeds to heirs taking by descent, but to carry out certain trusts cre-217 (Mont.) Words in Rev. Codes, § 4012, ated by the will.-Manhattan State Bank v. imposing liability on stockholders, held surplusHaid, 155 P. 57. age, and the section will be given effect without them.-Barth v. Pock, 155 P. 282.

253 (Cal.) The president of a corporation, who verified as such an answer in a suit against the corporation, held, judgment having gone against the corporation, which had forfeited its charter for nonpayment of license, estopped to attack the validity of the judgment in a suit to enforce his unpaid stock subscription.Llewellyn Iron Works v. Abbott Kinney Co., 155 P. 986.

259(7) (Cal.) A corporate creditor who has exhausted his legal remedies may sue in equity a stockholder who is indebted to the corporation on an unpaid stock subscription.-Llewellyn Iron Works v. Abbott Kinney Co., 155 P. 986.

VI. OFFICERS AND AGENTS.

merce, 73; Constitutional Law, 126; (C) Rights, Duties, and Liabilities as to Counties; Drains, 13; Eminent Domain,

121; Municipal Corporations; Railroads; Religious Societies; Street Railroads, Telegraphs and Telephones; Witnesses, 142, 324.

Corporation and Its Members. 307 (Idaho) Directors and officers of a cor51;poration hold corporate funds in trust, and any attempt by them to divert such funds to their personal interest is violative of the trust.-Riley v. Callahan Mining Co., 155 P. 665.

I. INCORPORATION AND ORGAN

IZATION.

18 (Idaho) Rev. Codes, § 2714, requires that the corporate purpose be stated in the articles, not only to inform the state, but to put in binding form the contract between the incorporators and show the consideration inducing them to associate together.-Riley v. Callahan Mining Co., 155 P. 665.

IV.

CAPITAL STOCK, AND DIVI

DENDS.

(B) Subscription to Stock.

76 (Idaho) Covenants for the sale of mining stock held not ultra vires, notwithstanding separable ultra vires provisions which could be waived.-First Nat. Bank of Wallace v. Callahan Mining Co., 155 P. 673.

That an action brought by a creditor under Civ. Code, § 309, may be treated as in the nature of a creditor's bill, and that it thus addresses itself to the equitable side of the court, does not prevent such statute from being punitive in nature.-Id.

Civ. Code, § 309, held repealed by the Public Utilities Act, effective March 23, 1912, in so far as it affected an action brought by a creditor on behalf of himself and other creditors to enforce against directors of an insolvent railroad company the liability prescribed by section 309 for creating an excessive debt, where judgment was not rendered until April 15, 1912. one-Id.

78 (Idaho) Covenants of a contract for the sale of mining stock which were made for the benefit of the buyers and entitled them to name certain officers of the corporation and name director, and required a certain division of profits, held divisible and subject to being waived by them.-First Nat. Bank of Wallace v. Callahan Mining Co., 155 P. 673.

(D) Transfer of Shares.

120 (Cal.) A buyer of stock under contract giving him the option to resell within a year on 10 days' notice, held not to exercise his option by merely giving the notice, without tender of the stock and demand.-Flickinger v. Wrenn Inv. Co., 155 P. 627.

121(4) (Okl.) In an action on notes given for corporate stock sold to a third person, held, that an answer alleging making and breach of contract by plaintiff and assignment to defendant of the claim for damages therefor before suit was not demurrable.-Stringer v. Kessler, 155 P. 867.

Under Pol. Code, § 327, the Legislature could destroy that right of action against directors for creating excessive debt, which is given by Civ. Code, § 309.-Id.

VII. CORPORATE POWERS AND

LIABILITIES.

(A) Extent and Exercise of Powers in General.

377 (2) (Idaho) Rev. Codes, § 2769, as amended by Sess. Laws 1909, p. 163, § 10, authorizing corporations to deal in stocks and bouds of other corporations, must be construed with reference to the purpose for which the particular corporation was organized, as expressed in its articles.-Riley v. Callahan Mining Co., 155 P. 665.

379 (Utah) The question whether a corporation may or may not become a partner deV. MEMBERS AND STOCKHOLDERS.pends on whether by its charter or statute it

(A) Rights and Liabilities as to Corporation.

174 (Idaho) Where majority stockholders combine to control an election and the acts of the corporation to carry out a particular policy, this constitutes them trustees in effect for minority stockholders objecting to such policy. Riley v. Callahan Mining Co., 155 P. 665.

is given capacity to do so.-Morgan v. Child, Cole & Co., 155 P. 451.

388 (1) (Idaho) The doctrine of ultra vires when invoked for or against a corporation should not prevail where it will defeat the ends of justice, or work a legal wrong, the party setting up the defense in such case being estopped.First Nat. Bank of Wallace v. Callahan Mining Co., 155 P. 673.

(B) Representation of Corporation by Officers and Agents.

1228

426 (Okl.) By payment of rent on a lot conveyed by a deed complying in form with Rev. Laws 1910, § 1186, and by officers of a corporation without affirmative action by the directors, held, that under section 1150 the directors ratified the deed. Anchor Steam Bot- See Criminal Law, 680; Homicide, tling Works v. Baumle, 155 P. 518.

the minority stockholders were entitled to comtribute among them their share of the assets in pel a reduction of corporate stock so as to disexchange for their stock.-Riley v. Callahan Mining Co., 155 P. 665.

228.

CORPUS DELICTI.

CORROBORATION.

By paying interest on a debt created by officers of a corporation without affirmative action of the directors, held, that under Rev. Laws 1910, § 1150, the directors ratified the chattel See Rape, 54. mortgage given to secure the debt.-Id.

as

426(10) (Wash.) A company cannot, against its manager, repudiate his unauthorized contract for advertising its business, but will be held to have ratified it, where for three months after knowledge, and while receiving benefits, its president allows payments thereon. -Carstens Packing Co. v. Lewis C. Troughton, Inc., 155 P. 758.

(D) Contracts and Indebtedness. 461 (Idaho) Under Rev. Codes, § 2769, as amended by Sess. Laws 1909, p. 163, § 10, the act of a corporation organized to do a general mining business, in loaning corporate funds at interest on a note, is ultra vires.-Riley v. Callahan Mining Co., 155 P. 665.

(F) Civil Actions.

505 (Kan.) Where a defendant corporation, served in a wrong name, answers in that name, a judgment against it is as valid as if rendered in the right name.-American Surety Co. of New York v. Maryland Casualty Co., 155 P.

59.

Failure of the defendant corporation to file a plea in abatement held to waive misnomer in the summons.-Id.

Where a corporation was sued as "the New Century Mining Company," instead of "the New Century Zinc & Mining Company," and a judgment rendered against it, held, that it was then too late for defendant or a company in privity with it to complain of the misnomer. -Id.

Where the employer's insurer unsuccessfully defended an action brought against the employer, a corporation, in the wrong name, it was too late, after affirmance of the judgment, for the insurer to question its validity or deny liability of surety company which had signed the supersedeas bond and taken an assignment of the policy as security for money advanced to satisfy the judgment.-Id.

507 (5) (Okl.) Service of summons on a corporation is limited to the class of officers and agents specified in Rev. Laws 1910, § 4715.M. Rumely Co. v. Bledsoe, 155 P. 872.

507(13) (Okl.) Where service is actually made on the proper officer or agent of a corporation a return, failing to show this fact, may be amended.-M. Rumely Co. v. Bledsoe, 155 872.

COSTS.

See Courts, 80; Eminent Domain, 265;
Quieting Title, 54.

I. NATURE, GROUNDS, AND EXTENT
OF RIGHT IN GENERAL,

22 (Okl.) In an action to recover money
only, it is error to give judgment against de-
fendant for costs unless judgment be rendered
Hardware Co., 155 P. 1166.
for plaintiff in some amount.-Ranson v. Capron

42(8) (Okl.) Where pending suit plaintiff accepts a sum not as a settlement but only as tually due, defendant is liable only for costs a tender, and this is found to be the amount acaccruing prior to the tender.-Ranson v. Capron Hardware Co., 155 P. 1166.

the contrary, where pending suit plaintiff ac 44 (Okl.) In the absence of a stipulation to ble for all costs, including those accruing before cepts a certain sum as a settlement, he is liathe settlement.-Ranson v. Capron Hardware Co., 155 P. 1166.

V. AMOUNT, RATE, AND ITEMS.

155 (Wash.) Appearance fees were properly allowed as costs in an action removed on a change of venue from the county in which it was brought to the county of defendant's residence.-Low v. McDonald, 155 P. 748.

184(3) (Wash.) Fees of witnesses who were subpoenaed, but who were not sworn to testify or whose testimony was ruled inadmissible, were properly allowed as costs. Low v. McDonald, 155 P. 748.

185 (Mont.) Costs cannot properly be allowed for mileage of a witness who came from without the state except for the portion of the journey within the state, under Rev. Codes, §§$ 3182, 7169, relating to mileage.-Chilcott v. Rea, 155 P. 1114,

VII. ON APPEAL OR ERROR, AND
ON NEW TRIAL OR MOTION
THEREFOR.

230 (Or.) Where both parties to a suit ap-
pealed and both failed on their appeal, neither
party would recover costs in the appellate court.
-Stadelman v. Miner, 155 P. 708.
P.231(1) (Wash.) Where on appeal a party
secures a material reduction in the judgment
against him, he is entitled to his costs of the
appeal.-Kennedy v. Meilicke Calculator Co.,
155 P. 1043.

514 (Okl.) Under Rev. Laws 1910, § 1230, unless it is alleged in the answer under oath that plaintiff is not a corporation, plaintiff need not prove that it is a corporation.-Mar-252 (Kan.) Gen. St. 1909, §§ 4262, 4263, shall Mfg. Co. v. Dickerson, 155 P. 224. held not to authorize the Supreme Court to alXI. DISSOLUTION AND FORFEITURE surance company.-Merriam Mortgage Co. v. low plaintiff an attorney fee on appeal by an inOF FRANCHISE.

St. Paul Fire & Marine Ins. Co., 155 P. 17.

destitute of merit and taken for delay, the appellant may be penalized by the imposition of damages for frivolous appeal.-Johnson v. Dixon Farms Co., 155 P. 136.

605 (Idaho) That a mining corporation dis-260 (Cal.) Where an appeal is manifestly continued business, did not work a forfeiture of its charter or compel a dissolution, but was a circumstance to be considered in a suit by minority stockholders to compel distribution of corporate assets on this and other grounds.Riley v. Callahan Mining Co., 155 P. 665.

CO-TENANCY.

629 (Idaho) Where a corporation discontin- See Tenancy in Common. ued mining and its officers and directors, selected by a combination, excluded minority stockhoiders from participating in the business and

COUNTERCLAIM.

attempted to commit prejudicial ultra vires acts, See Set-Off and Counterclaim.

Offi-57 (Okl.) Under Rev. Laws 1910, §§ 1833, 1836, 1838 (Sess. Laws 1910, c. 69, §§ 20-22), a county stenographer cannot retain fees for making transcripts of proceedings in the county court, but compensation for such services is limited to salary.-Board of Com'rs of Oklahoma County v. De Armond, 155 P. 592.

296; Constitutional Law, 70; Con- See Husband and Wife, 341, 348.

mus, 26, 154-170; Master and Servant, See Adultery; Bail; Bastards; Chattel Mort396; Municipal Corporations,

155 PACIFIC REPORTER

cnsed.

1230

164; Homicide; Indictment and Infor- (C) Other Offenses, and Character of Acmation; Intoxicating Liquors, 139-238; Larceny; Malicious Prosecution, 6, 20371(12) (Cal.App.) Evidence to show motive, 24; Master and Servant, 302; Parent reason, or purpose, if relevant, held admissible, and Child, 17; Prostitution; Searches and Seizures, 7, 8; Threats; fenses.-People v. Cornell, 155 P. 1026. Rape; though establishing the commission of other of Witnesses, 37.

I. NATURE AND ELEMENTS OF
CRIME AND DEFENSES

IN GENERAL.

(D) Materiality and Competency in General.

384 (Kan.) Exclusion of evidence that deceased assaulted and beat a certain boy and was discharged from his employment on account of his disposition five years before the killing and four years before any trouble between him and defendant, held within the court's discretion.State v. Wimer, 155 P. 7.

42 (Cal.App.) A witness subpoenaed to appear before a grand jury held not given rights granted by Pen. Code, § 1324, as added by St. 1911, p. 485, and an indictment returned after he gave testimony must be quashed.-People v. Knowles, 155 P. 137, rehearing denied by Su-388 (Cal.App.) The admission of evidence preme Court 155 P. 140; Same v. Antonetti, of the result of experiments is largely within the 155 P. 141 (first case) rehearing denied by Su- discretion of the trial court.-People v. Wagner, preme Court 155 P. 141 (second case); Same 155 P. 649. v. Solari, 155 P. 141 (third case) rehearing denied by Supreme Court 155 P. 141 (fourth case); Same v. Bigelow, 155 P. 141 (fifth case) rehearing denied by Supreme Court 155 P. 142.

II. CAPACITY TO COMMIT AND RE-
SPONSIBILITY FOR CRIME.

48 (Okl.Cr.App.) The test of criminal responsibility, where the defense is insanity, is whether defendant had sufficient reason to know right from wrong.-Smith v. State, 155 P. 699.

IV. JURISDICTION.

90(5) (Idaho) Under Rev. Codes, §§ 2202, 3854, 7511, the jurisdiction of a police judge in respect to nonindictable misdemeanors and holding preliminary examinations, where the offense was committed within the city limits, is concurrent with that of justices of the peace and probate judges.-State v. Frederic, 155 P. 977.

In a trial for murder, admission of prosecution's experiments by shooting at blocks of wood, etc., supposed to represent the deceased and his position, was error, where the experiments were not shown to have been made under circumstances and conditions substantially the same as those existing at the killing.-Id.

experiments in shooting at blocks of wood supIn a trial for murder, evidence of the result of posed to represent the deceased might be material and effective, when considered by the jury with other evidence in the case.-Id.

393 (Cal.App.) Pen. Code, § 1324, is designed to obtain self-incriminating testimony without violating Const. art. 1, § 13; so that compelling one to testify, if his testimony is not self-incriminating, does not prevent his prosecution.-People v. Richman, 155 P. 142. testimony was self-incriminating, so as to reA stipulation held not to show one's required lieve him, under Pen. Code, § 1324, from prosecution.-Id.

(G) Acts and Declarations of Conspirators and Codefendants.

VIII. PRELIMINARY COMPLAINT, AFFIDAVIT. WARRANT, EX-424 (Utah) Declarations made by an alleged AMINATION, COMMITMENT, coconspirator after the conspiracy had been acAND SUMMARY TRIAL. them.-State v. Barretta, 155 P. 343. complished, and without the presence of the other conspirators, are inadmissible against

260 (Wash.) On appeal to the superior court from a conviction in police justice court, the superior court should, if the information is defective, permit the filing of a new information. -State v. Bryant, 155 P. 420.

IX. ARRAIGNMENT AND PLEAS, AND
NOLLE PROSEQUI OR DISCON-
TINUANCE.

(I) Opinion Evidence.

448 (Kan.) Statement of a witness in deurally could see as big an object as the one scribing a place with reference to an obstruction of defendant's view, that a person natdescribed, held not objectionable as a conclusion.-State v. Wimer, 155 P. 7.

(J) Testimony of Accomplices and Code

fendants.

279 (Okl.Cr.App.) Where defendant relies on want of preliminary examination, he should raise the question by motion to quash or set aside or by plea in abatement before pleading507(7) (Cal.App.) A girl under age of conto the merits.-Robbins v. State, 155 P. 491. ted with her consent so as to render invalid a sent is not an "accomplice" to a rape commitconviction on her uncorroborated testimony.People v. Bernon, 155 P. 1021.

280 (Kan.) A plea in abatement is demurrable, where the facts alleged in it contradict the record.-State v. Berger, 155 P. 40.

(K) Confessions.

283 (Okl.Cr.App.) Where issue is joined on a plea in abatement for want of preliminary examination, the burden of proof is on defend-517(4) (Cal.App.) In a trial for murder, ant.-Robbins v. State, 155 P. 491.

proof of the corpus delicti of the convincing character required to support a conviction of murder was not a prerequisite to the admission of the defendant's extrajudicial statement that he had accidentally killed the deceased, but prima facie proof was sufficient for that purpose. -People v. Wagner, 155 P. 649.

In a trial for murder, evidence held sufficient prima facie to establish the corpus delicti as a foundation for the state's admission in evidence that he had accidentally caused the death of the of the extrajudicial statements of the defendant deceased.—Id.

560 (Cal.App.) In view of Code Civ. Proc (M) Weight and Sufficiency. § 1828, recognizing the several degrees of evi