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And he said: We can't spare even one man.' I said: 'How long will you be busy? He said: 'About six days or a week.' I said: 'Isn't there any one who can give me any relief? And he said: You go up to the home ranch and see Mr. Gird.' That is about the way they kept me going from one fellow to another. Mr. Gird was connected with the company. I went to the home ranch, and told the same thing to Mr. Gird, and when I got through I received information that Mr. Steele was the man to see. I inquired where I could find Mr. Steele. The information was that Mr. Steele was in Mexico, and I didn't go any further. After all these complaints occasionally the men would i come up and take out a few and put them over the fence, and they would be back before the night, as a rule, and bring some more with them." While this is not all the evidence bearing on the question, it was enough to warrant the court in its finding that the defendant had neither taken sufficient precautions to prevent the trespassing of defendant's cattle upon the premises of plaintiff, or exercised due diligence in removing them when they were doing so.

We approach now the next point urged by the appellant, and to which its argument on this appeal is mainly addressed, namely, that the finding of material injury suffered by plaintiff through the trespassing of these cattle and the amount of damages found to have been sustained are not justified by the evidence. As to the material injury suffered by plaintiff, there cannot be the slightest question under the evidence. It showed. as far as the grain and feed upon the fields of plaintiff were concerned, that such fields were depastured, or the feed thereon destroyed. by the constant incursions of these cattle of defendant upon the premises, and it equally showed that the destruction of his fences was kewise occasioned by them. It would be a waste of time to discuss the evidence in the record upon these subjects, as it completely sustains the findings of the court upon them.

The appellant, however, insists that the evidence showed that other cattle besides those of defendant trespassed upon the fields of plaintiff, and that the owners thereof were responsible for some of the damage occasioned by plaintiff, and that the court was not warranted in finding that the injuries sustained were the result of the trespass of defendant's cattle alone. While some 2 witnesses were called in the case on behalf of both sides-persons in charge of the cattle of plaintiff and those of defendant, men riding the ranges caring for the stock, repairing fences, and driving out the cattle of defendant-only three testified that any other stock save those belonging to either plaintiff or defendant were ever seen in the fields of plaintiff. These witnesses testified that they each on one occasion saw a few head there. When

they were there. how many there were, or how long they remained, the evidence does not show, and, assuming that the court was required to accept this testimony, it was too indefinite and uncertain to be given any serious consideration. If it be conceded that the mere presence of these cattle-which is practically all that was proven relative to them--damaged to some extent the fields of plaintiff, still the court was warranted under the evidence in finding that it was too trivial and inconsequential to affect the substantive damage proven to have been occasioned through the continuous trespassing of large numbers of the cattle of defendant. Now, as to the next point-the sufficiency of the evidence to sustain the finding of the court as to the various amounts in which the plaintiff sustained damage under the separate counts of his complaint. And first as to the damages allowed for the destruction of the grain and pasturage. Plaintiff, who was a practical farmer, as well as a dairyman, testified as to the first count that the damage he sustained by the trespass of the cattle was the destruction of a nine-acre field of growing barley, and fixed the amount of his damages at $175, based upon the appearance of the grain and surrounding conditions, and the probable yield of hay per acre, and its value per ton if it had been permitted to mature and had been harvested. He testified that the probable yield of the field in hay would be 15 tons of the value of $10 per ton. The court originally found on this basis the damage to be $150, but upon the motion for a new trial, it being called to the attention of the court that hay worth $20 had been taken from this tract by plaintiff, the damages on this count were reduced to $130. As to the field described in the second count, plaintiff testified that the grass and verdure there destroyed by the cattle of the defendant was of the value of $720. Another witness testified that the value of the feed on this 120-acre tract for dairying was worth $1 per head of stock per month, and that it would sustain at least 60 head of cattle the year round. This would figure $720 per annum as the value of the pasturage, but, as the plaintiff pastured the tract for three months, the court made a deduction of $180 from that sum. The 1.500-acre tract, described in the third count, plaintiff had contemplated using for the conduct of his dairy business and for dairy purposes, and, with that object in view, had erected necessary structures thereon. He testified that on this tract was the best pasture feed known in that section. It produced the best milk and the best returns. He was feeding on this tract and milking 100 head of cows, selling the milk from them under contract in Los Angeles at a net profit of $150 per month. The feed on this range would support these cows for three months, and, after they were pastured there a month, the depredations of

defendant's cattle commenced, resulting in the total destruction of the feed to plaintiff, and he estimated his damages at $900, on the basis of the net profits which he would have obtained from the sale of milk during these two months-$450 per month-had the pasturage not been destroyed by the trespass. Another witness testified that the net returns from milk would be $4.50 per head for the same time, or $450 per month. The court allowed damages on this basis for $900.

It is claimed that this evidence afforded no proper basis for the allowance of damages. Upon the record, however, we do not see how the appellant can be heard to raise the question whether it presented the proper basis or not. This case was tried in the lower court by counsel for defendant other than those representing it on this appeal. The complaint set forth in the several counts the nature, character, and amount of damages sustained by plaintiff, and the court found that plaintiff had been damaged by the trespass on his property as alleged and the extent of that damage. The plaintiff presented the evidence as to damages to which we have referred upon the theory that he was adopting and following the proper and legal rule for establishing them. No objection was made by defendant to the introduction of any of the evidence, nor was it suggested by defendant until after judgment and on the motion for a new trial that the rule which was adopted by plaintiff was not the proper or correct one for the measurement of damages. Not only was no objection then made or a different rule suggested, but counsel for defendant, though not introducing any evidence on the subject of damages, cross-examined the witnesses of plaintiff on the matter of damages testified to by them with a view of reducing the amount claimed. The failure of defendant to object to the evidence, and defendant's cross-examination of the witnesses, was equivalent to a concession that the evidence was competent on the question of damages and an acquiescence in the theory of plaintiff that it was presented under a correct rule for proving them. This was in effect an acceptance of the evidence as competent upon the subject of damages and that the correct rule for their measurement was being followed. If, in the opinion of defendant, the rule adopted was not the correct one, it was defendant's duty to have objected to the evidence offered under it and to have insisted upon the proper rule being applied. This would have given counsel for plaintiff, if he was pursuing the wrong course, an opportunity for rectifying his mistake, or, in the event of dispute between counsel as to the true rule, would have afforded an opportunity to the court to declare it. This counsel for defendant did not do, but, on the contrary, tacitly conceded that the correct rule was being followed and competent evidence

was being offered under it. While parties have a right to insist that damages shall be measured by a recognized legal standard, error cannot always be predicated upon failure to do so. There is no rule of practice which precludes them from trying the question of damages on any theory they see fit. They may adopt any rule which they deem proper, and courts will not interfere of their own motion to compel the adoption of a rule contrary to that which the litigants are satisfied to accept. If they are satisfied, the court will be. When they do adopt such a rule, they are bound by it, and neither one will be subsequently permitted to question his own conduct relative to it. This is the situation here. The defendant acquiesced in the correctness of the standard adopted by plaintiff. It is to be assumed that defendant deemed the rule which was followed as favorable to itself as any other which it might suggest. In any event, it made no objection to the evidence presented under it, suggested no other or better rule, and examined the witnesses on the theory that it was the correct one. Under these circumstances defendant is concluded from raising any question as to the sufficiency of the evidence to sustain the damages on the ground that the rule adopted for the measurement of them and under which the evidence was received was not the correct one. The evidence which was presented on behalf of plaintiff was sufficient to sustain the findings of damages under the rule adopted and acquiesced in by defendant for ascertaining them. This being true, the contention of appellant, then, practically amounts to a claim that the evidence did not justify these findings because, if the correct rule for measuring damages had been adopted, the evidence received would not have been competent to prove them. But, if the correct rule was not being followed, defendant should have objected to the evidence and insisted on the true rule being adopted, and, if the objection was overruled, have excepted and assigned the ruling as error, and based his motion for a new trial upon that ground. To claim now, under a specification of insufficiency of evidence, that the evidence did not justify the finding of damages because it was admitted upon an incorrect theory as to the proper rule for measuring them, is, in effect, to assign the admission of the evidence as error of law, a matter which, even had an objection, and exception been taken, could not under any circumstances be presented or considered under a specification of insufficiency of evidence. As the rule adopted by plaintiff for the measurement of damages was acquiesced in by defendant, no objection raised by it to the competency of the evidence given under it, and, as that evidence fully sustains the findings, the defendant is concluded by its conduct from raising any question of the sufficiency of the evidence

when tested by some other and different rule than the one adopted and acquiesced in upon the trial. In this view, whether the rule adopted for the ascertainment of damages was the correct one or not, we are not called upon to consider. It was the one adopted and acquiesced in by both parties and followed by the court, and neither of the litigants can be heard after judgment to question its correctness, or the competency of the evidence introduced under it. Gooddale v. West, 5 Cal.-339, 341; McCloud v. O'Neall, 16 Cal. 393, 398; Janson v. Brooks, 29 Cal. 214, 223; Bullard v. Stone, 67 Cal. 477, 482, 8 Pac. 17; Storey v. Nidiffer, 146 Cal. 549, 552, 80 Pac. 692.

Appellant attacks the further findings as to the loss of 10 head of cows by plaintiff and the destruction of his fences through the negligent trespass of the cattle of defendant. As to the cows: These were part of herd of 62 being pastured by plaintiff on the 120-acre tract. There can be no question as to their value as found by the court, and the only question is whether the evidence warranted the court in finding that through the negligence of the defendant in permitting its cattle to trespass on this field the plaintiff lost them. It is not claimed that the defendant would not be liable if the evidence so showed, and we think it did. We have already referred to the evidence which justified the court in finding that the cattle of defendant were negligently permitted to break down the fences and trespass upon the several fields of plaintiff described in the complaint, and no further discussion of that matter is necessary. As to the escape of the cows in question, it appears that they were being pastured with the rest on this tract when the several incursions of defendant's cattle upon it commenced; that defendant's cattle would break in and herd and feed with plaintiff's cows; and when run out would take the cattle of plaintiff with them; that while the cows would run out with the wild cattle they would not herd with them, and usually could readily be got together for plaintiff to put them back in the field. While no one saw the cows leaving the field of plaintiff, still the court was warranted from this evidence, and the other circumstances disclosed, in reaching the conclusion that these cows had mingled and gone with defendant's trespassing cattle, and been lost in the hills of the Chino range. After he missed them plaintiff asked permission of defendant's superintendent to search for them on the Chino ranch, and was refused.

As to the destruction of the fences of plaintiff and the damages therefor as found by the court, the findings in both respects are sustained by the evidence.

The judgment and order appealed from are affirmed.

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(151 Cal. 581)

MANHA v. UNION FERTILIZER CO. (L. A. 2,014.)

(Supreme Court of California. Aug. 1, 1907. Rehearing Denied Aug. 28, 1907.)

1. PLEADING-AMENDMENT OF ANSWER-LEAVE OF COURT.

Code Civ. Proc. § 472, provides that any pleading may be amended once by the party of course and for cause at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereof, by filing the same as amended and serving a copy on the adverse party, who may have 10 days thereafter in which to answer or demur to the amended pleading; that a demurrer is not waived by filing an answer at the same time, and, when demurrer to a complaint is overruled and no answer is filed, the court may allow an answer on terms, etc. Held, that such section only permits an amended answer to be filed before a demurrer to the original answer is filed, or while the issue of law raised by the demurrer thereto is undisposed of, and that an amended answer as of course cannot be filed after a demurrer to the original answer has been disposed of, or after the time within which plaintiff might have demurred, but did not, has expired, when the amendment can be allowed only by stipulation or leave of court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39. Pleading, $$ 765, 768.]

2. SAME-LEAVE TO FILE-DISCRETION.

A cause was set for trial in June, 1905, on the original pleadings, and continued on defendant's application until August 14th, when defendant promised to be ready for trial. On that day defendant first moved for leave to amend its answer, the result of which would have been to have required a continuance of the cause, because the proposed amendment presented additional issues. There was no showing as to why the application was not made earlier, and it appeared that matters sought to be presented in the amendment were known to defendant in June. Held, that the refusal of the amendment was not an abuse of discretion.

Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 601.]

3. SHIPPING-CHARTER PARTY-BREACH BY

OWNER.

Defendant chartered a vessel for a voyage to Magdalena Bay and return to San Diego with a cargo of guano, plaintiff, the owner, to accompany the vessel. This requirement was changed, and, when the vessel was off Ensenada, plaintiff boarded her, and directed the captain not to put into that port, as he had been directed by defendant's agent. It was not shown why defendant's agent desired the vessel to enter Ensenada, nor that he had any business there, nor that the captain informed plaintiff that he had orders from such agent to enter that port. Held. that plaintiff's orders to the captain not to enter Ensenada did not constitute a breach of the charter.

In Bank. Appeal from Superior Court, Los Angeles County; Walter Bordwell, Judge.

Action by Frank Manha against the Union Fertilizer Company. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Affirmed.

Grant Jackson and George Fuller, for appellant. Powers & Holland for respondent.

LORIGAN, J. This suit was brought to recover the sum of $590 for work and labor performed by the plaintiff at the request of the defendant, and for the use and hire by

the defendant from plaintiff of that certain boat known as the schooner "May" for a period of 59 days from the 11th day of September, 1904, to the 9th day of November of the same year. From the answer and the evidence it appears that plaintiff's action is based upon the written agreement attached to the answer made between the plaintiff and one Beermaker, agent of the defendant, for the hiring of plaintiff's power schooner May for a voyage to Magdalena Bay, stopping at any place or island designated by said Beermaker, and to return to San Diego with a load of guano. The rental agreed upon was $10 per day, and by the terms of the contract the plaintiff was to go with the boat as engineer and to furnish one man as sailor; said Beermaker furnishing all provisions, oil for engine, captain, and two sailors. The schooner on the 11th day of September, 1904, cleared from the port of San Diego for that of Ensenada, but on arrival there the plaintiff was arrested by the Mexican authorities for an alleged criminal offense, and the schooner also taken into custody. She was, however, released at the end of five days, and it was found that under an arrangement between the plaintiff and Beermaker, by which the latter waived the defendant's rights to require the plaintiff to accompany the schooner, she proceeded on her voyage, under the terms of the contract as thus modified. The Voyage was completed on the 9th day of November, 1904, and it is found by the court that defendant, during the period between the date of her sailing, September 11, 1904. and the date of her arrival, had and used the schooner under said contract for a period of 39 days. Judgment was accordingly rendered for the sum of $390 less the sum of $50 already paid, and $25.75 expenses for repairs incurred by the defendant. The defendant appeals from the judgment, and from the order denying its motion for a new trial.

a

The first error claimed to have been committed by the trial court was in striking out, on motion of plaintiff, an amended swer and counterclaim filed by defendant. It ap pears that the defendant filed its original answer and counterclaim on December 24, 1904, and the cause was set down for trial on June 16, 1905, but upon the application of defendant. made on that day, and over the objection of plaintiff, the trial was continued until August 14, 1905, counsel for defendant announcing that he would be ready for trial on that date. On August 4, 1905, without leave of the court, defendant filed an amend ed answer to which plaintiff demurred. After this demurrer was filed, defendant, still without leave of the court, served and filed a second amended answer, both of which, on motion of plaintiff made on August 14. 1905, the date fixed for the trial, were stricken out. The grounds of the motion were, first, that the amended answer and counterclaim

had been filed without leave of court, and without authority of law; second, that the second amended answer and counterclaim changed the issues made in the action; and, third, that the plaintiff was taken by surprise. As the order striking out the answer and counterclaim was general, it must be sustained if any of the grounds urged in support of it were tenable. We shall not discuss the merits of the last two grounds, because the order was properly based on the first. The position of the appellant is that under section 472, Code Civ. Proc., he had an absolute right to file an amended answer at any time before trial of the cause. This, however, is not a proper construction of the section which only permits an amended answer to be filed before a demurrer to the original answer is filed, or while the issue of law raised by demurrer thereto, is undisposed of. An amended answer "as of course" cannot be filed after a demurrer to the original answer has been disposed of, or after the time within which the plaintiff might have demurred, but did not, has expired. It can thereafter only be allowed upon stipulation, or by leave of the court. This identical question was before this court in the case of Tingley v. Times Mirror Co. (Cal.) 89 Pac. 1097, decided since the appeal in the present case was taken. We there construed the section adversely to the position assumed by appellant, and as supporting the view taken by the trial court, and we refer to the decision in that case for a more extended presentation of our views upon the subject.

The amended answer having been stricken out, appellant then moved the court for leave to file it, which was denied, and this ruling is also assigned as error. The original answer, after denying the allegations in the complaint, set up a counterclaim for damages alleged to have been sustained by the failure of plaintiff to make the voyage provided for in the contract. The second amended answer asked to be filed set up the additional defenses that the vessel was unseaworthy, and that plaintiff took forcible possession of it on the high seas, and refused to return it to defendant. Also various counterclaims were set up for amounts paid and expenses incurred by defendant relative to the voyage and resulting from its alleged abandonment by plaintiff. Whether the court should allow this amended pleading to be filed rested in its sound discretion and the order of the court refusing it could only be reversed because of an apparent abuse of it. and the record here discloses no such abuse. The cause was set for trial in June, 1905, under the original pleadings, and continued on the application of defendant until August 14, 1905. No intimation was given then by defendant that any change in its pleadings were contemplated. On the contrary, its counsel stated that he would be ready for trial on the date to which a continuance was

had. On the day for which the trial was last set he moved to be allowed to amend, the result of which allowance would have been as asserted by plaintiff and which was no doubt true-to work a further continuance in the cause. No showing whatever was made why the application had not been made earlier. The absence of such a showing would of itself have sustained the order of refusal. A party is entitled to have a cause tried at the date for which it is set, unless some satisfactory reason is presented for its postponement. An application for leave to amend a pleading, which, if granted, will warrant a continuance of a trial without any showing why the application was not made earlier, is sufficient ground for refusing to allow it. Not only was there no showing made in behalf of the application, but from an affidavit made by the manager for appellant in support of its application for a continuance of the trial on June 16, 1905, it appears that defendant had knowledge then of practically all the matters set forth in its amended answer and counterclaim, which on August 14, 1905, it asked leave to file. Under all these circumstances, there was no error on the part of the court in refusing to allow the amended pleading to be filed on the day

last set down for trial of the cause. Aside from this claim relative to the ruling of the court upon the pleadings tendered by appellant, it is insisted by it that the evidence did not justify the findings in favor of plaintiff. The court found the facts as we have heretofore recited them. Some of them were not denied, and, as to those which were, it is only necessary to say that the evidence was conflicting, and the court accepted that offered on behalf of plaintiff.

It is particularly insisted, however, by appellant that the finding of the court that the voyage under the contract was completed on the 9th day of November, 1904, is not supported by the evidence. The position of defendant in this regard is that, when the vessel was about to proceed on its way back from Magdalena Bay to San Diego, the captain thereof was given instructions by Beermaker to put in to Ensenada; that when the vessel was off that port on the 7th or 8th of November the plaintiff, who had remained in the vicinity of Ensenada while the vessel proceeded to Magdalena Bay, came out in a boat, boarded her, and directed the captain not to put in to Ensenada, but to sail directly for San Diego, which he did, arriving there on November 9th, but, when plaintiff boarded the vessel, it was on its way home, and its voyage had already been long extended beyond the time contemplated in the contract of the parties. Beermaker was not on the vessel. He had remained at some point in the vicinity of Magdalena Bay. No reason was suggested why Beermaker wanted the boat to put in to Ensenada. It does not appear that he had any business there, or was

at all discommoded or inconvenienced by the failure of the vessel to land at Ensenada. She was not returning with any cargo which necessitated her entering or clearing at that port. Neither had Beermaker told plaintiff that he wanted the vessel to put in there on' her return; nor does it appear that, when the plaintiff boarded the vessel outside of Ensenada, the captain in charge gave him any information that he had been instructed by Beermaker, or any one else, to enter the port of Ensenada. It appears only that the captain contemplated doing so, but that plaintiff persuaded him to proceed directly to San Diego, her home port, instead. Why the captain wanted to put in to Ensenada does not appear, but, whatever the reason was, the evidence does not disclose that either he, or any one else, informed plaintiff that he had orders from Beermaker to do so. Under the circumstances, it cannot be said that plaintiff broke up the voyage or retook the boat without the consent of defendant before the voyage was completed, or that the evidence did not show that it was completed under the contract as found by the court.

We have considered the points made by the appellants relative to the admission and rejection of testimony, and are of the opinion

that no material error was committed in that respect. Other points are made in the case. but we do not think they are of any merit or that they require particular discussion. The judgment and order appealed from are affirmed.

We concur: SLOSS, J.; SHAW, SHAW, J., ANGELLOTTI, J.; HENSHAW, J.; McFARLAND, J.

BEATTY, C. J. I concur. As to the right of defendant to file an amended answer at any time before demurrer filed, it is sufficient for the purposes of this case to say that after an answer has been filed, and the issues so formed have been set for trial on a day certain, with the knowledge and acquiescence of the defendant, he cannot, on the eve of the trial, file an amended answer, raising new issues, without leave of the court. To so much qualification the general language of section 472. Code Civ. Proc., must be subject, and perhaps it is the only qualification we are authorized to impose.

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