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founded upon an instrument in writing executed in this state may be commenced within four years after the right of action accrues. Section 337, Code Civ. Proc. There is in every check two implied promises: (1) That the money is in the bank with which to pay it; and (2) that, if the money is not there. the drawer of the check will repay the money to the bank. Everything implied in a writing is as much a part of it as though it were expressed therein. Bancroft v. S. F. Tool Company, 120 Cal. 228, 52 Pac. 496. As there is here a written contract into which the law imports a promise to repay, and this promise created by law, being an element of the contract, enters into and forms a part of this written check, the statute of limitations governing written contracts to pay money is the only one that applies. Long v. Straus, 107 Ind. 94, 6 N. E. 123, 7 N. E. 763, 57 Am. Rep. 87. In an action to recover the money paid on an overdraft, the check or overdraft, and not oral testimony, would be relied upon as the proof. In Meherin v. Saunders, 131 Cal. 681. 63 Pac. 1084, 54 L. R. A. 272, one Ambrose bought property at a constable's sale, paid part cash and gave a check for the balance, but afterward had payment thereon stopped. The check was dated October 24, 1891. Suit was brought against Ambrose for the amount of the check on September 28, 1895, and the court said this was "less than a month prior to the date when an action on the check would have been barred by the statute of limitations."

The obligation of the maker of a note to reimburse his security for having paid the note is not founded upon the note, but upon the new promise made when the security pays the note (Chipman v. Morrill & Webster, 20 Cal. 131: Thomas v. Pacific Beach Company, 115 Cal. 136, 46 Pac. 899); and therefore the authorities presented on that point have no bearing on the question here.

Judgment reversed.

We concur in the judgment: CHIPMAN, P. J.; MCLAUGHLIN, J.

· Cal. App. 201)

DU BRUTZ v. BANK OF VISALIA. (Sac. 1,458.)

(Supreme Court of California. Oct. 3, 1906.) In bank. Action by Sarah J. Du Brutz against the Bank of Visalia. Judgment for plaintiff, and defendant appeals to the District Court of Appeal, where the judgment was reversed. 87 Pac. 467. Proceeding to transfer from District Court of Appeal to the Supreme Court. Transfer denied.

PER CURIAM. In denying a transfer of this cause to the Supreme Court for hearing and decision, we desire to qualify the order by saying that we do not approve that portion of the decision of the District Court of Appeal which holds that an action by a

bank to recover the amount of an overdraft is not barred by the statute of limitations short of four years. The case is not to be deemed a precedent upon that point.

(7 Cal. Unrep. 316) JONES v. WATERMAN. (Civ. 158.) (Court of Appeal, Second District, California. Aug. 17, 1906. Rehearing Denied Oct. 11, 1906.)

1. APPEAL-FINDINGS OF COURT-CONFLICTING EVIDENCE-REVIEW.

A finding of a trial court based on conflicting evidence will not be disturbed on appeal where there is sufficient evidence in the record to support it.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3983.]

2. PRINCIPAL AND AGENT - AGENCY - EVIDENCE.

In an action to recover an agreed rent for certain reamers used by a well driller in drilling a well under contract with defendant, the memorandum of agreement between defendant and the driller, and evidence of the oral agreement between them, by which the driller agreed to furnish all tools necessary for the work, was admissible to show that no authority could be implied from the transaction by which the driller was authorized to obtain the reamers on defendant's credit.

[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Principal and Agent, §§ 402-412.1 3. SAME-UNAUTHORIZED ACTS RATIFICATION. Where defendant employed a well driller to drill a well on his ranch and to furnish all required tools, the fact that one of defendant's employés paid the expressage on certain reamers hired by the driller from plaintiff for use in drilling the well, and agreed to pay $30 toward such hire, without defendant's knowledge, was insufficient to establish that the driller had authority to contract for the reamers on defendant's behalf.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 412.]

Appeal from Superior Court, Santa Barbara County; J. W. Taggart, Judge.

Action by Fred W. Jones against Isaac G. Waterman. From a judgment for defendant, plaintiff appeals. Affirmed.

Wm. Griffith, for appellant. Canfield & Starbuck and H. C. Booth, for respondent.

ALLEN, J. Action for money. Judgment for defendant, and a motion for new trial denied. Plaintiff appeals from the judgment and order.

The action was brought in the court below by plaintiff to recover a sum for the hire of two certain under reamers, alleged to have been furnished by him to defendant for use in drilling a well. The complaint is based upon an express contract upon the part of defendant to pay for the reasonable value of such hire. The answer denies the contract and also the hire or the use by defendant of said tools. The court finds in favor of defendant upon all of the issues.

There is no evidence in the record tending to support the issue as to the express promise to pay for such hire, and were we to assume that under the issues evidence was ad

missible to show an implied agreement to pay therefor, the record discloses a conflict in such evidence, and that there is sufficient in the record to support each and every finding of the court below, and under the wellestablished rule such findings will not be disturbed.

There was no error in admitting in evidence the memorandum of agreement between defendant and the well driller, nor in admitting the oral agreement between the parties in reference to the driller's obligation to furnish all tools necessary in the prosecution of the work. It was competent as tending to show that no obligation rested upon defendant to furnish such tools, and that no authority could be implied from the transaction between defendant and the party who made the order. The order for such under reamers was made by the driller, and he did not, in terms, represent that he was acting for defendant. He simply ordered the tools, and directed them to be shipped to defendant's ranch, where he was then employed, and defendant is not shown to have had any knowledge of such order, or to have acquiesced therein; and it was competent for him to show that he gave no authority for the order, but, on the contrary, that the tools were to be furnished by the driller, and the driller's use thereof in no wise established any implied promise on defendant's part to pay for the hire. The mere fact that one of defendant's employés paid the expressage, and had, without authority from defendant, agreed to pay $30 toward such hire, would not render defendant liable on account of such hire, he having no knowledge either of the payment of expressage nor of the arrangement between the driller and his employé.

We perceive no prejudicial error in the record, and the judgment and order are affirmed.

We concur: GRAY, P. J.; SMITH, J.

(17 Okl. 515)

HAZELWOOD v. TERRITORY. (Supreme Court of Oklahoma. Sept. 7, 1906.) CRIMINAL LAW-STEALING DOMESTIC ANIMALS -CIRCUMSTANTIAL EVIDENCE-SUFFICIENCY.

On a trial of one for stealing domestic animals, where a conviction is sought upon circumstantial evidence, such evidence must be such as to exclude every reasonable hypothesis of innocence; and while this court will not ordinarily weigh the evidence, if there is sufficient evidence to reasonably support the verdict, it will not permit a verdict of conviction to stand in a criminal case when it is clearly against the great weight of the evidence, and rests upon circumstances which are reasonably consistent with innocence and form an unsatisfactory basis for a verdict of guilty.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3080.]

(Syllabus by the Court.)

Error from District Court, Kiowa County; before Justice Frank E. Gillette.

Lee Hazelwood was convicted of larceny, and brings error. Reversed and remanded.

Welty & Harrison and C. A. Morris, for plaintiff in error. P. C. Simons, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

BURWELL, J. Lee Hazelwood was indicted jointly with one Jerry Winningham, for stealing three cows. Hazelwood was tried and convicted, and sentenced to a term of two years in the territorial penitentiary. He has appealed to this court praying a reversal of the judgment.

We have read the entire record, and are, fully convinced that a new trial should be granted, on the ground that the evidence is not sufficient to support the verdict. It is true that there are some circumstances that are somewhat suspicious, but this is the most that can be said of them. The evidence was entirely circumstantial, and the jury was not justified in finding that it was sufficient to exclude every reasonable hypothesis of his innocence. In fact, the great weight of the evidence was in favor of the defendant. not only denied the commission of the crime himself, but offered strong evidence by other witnesses. No one ever saw the cattle in defendant's possession, or saw him commit any act in relation to their taking. Counsel for the defendant insist with vigor that there is no evidence to support the verdict. The brief, for the territory, in discussing this point, simply says: "We contend that where there is some appreciable evidence connecting a person charged with crime, with the commission of the offense, that so far as the evidence is concerned, that is a matter for the jury under the proper instructions from the trial court." Citing Howland v. Territory, 13 Okl. 575, 76 Pac. 143. The representatives of the territory do not pretend to point out the evidence which they assume justified the verdict. It cannot be found in the record.

For the reasons stated, the judgment of the trial court is hereby reversed at the cost of the territory, and a new trial ordered. All of the Justices concurring except GILLETTE, J., who presided at the trial below, not sitting.

(17 Okl. 264)

ST. LOUIS & S. F. R. CO. v. PHILLIPS. (Supreme Court of Oklahoma. Sept. 5, 1906.) 1. PLEADING - VERIFICATION - NECESSITY JUDGMENT ON PLEADING.

Where an action is brought against a railroad company to recover damages for the killing and injury of certain horses shipped over the road, and where the petition alleges that the horses were shipped under the terms of a written contract between the plaintiff and defendant evidenced by a bill of lading, and where the same is attached to the petition, marked "Exhibit A" and made a part thercof, and where said bill of lading contains the provision, "No

carrier shall be responsible for loss or damage of any of the freight shipped, unless it is proved to have occurred during the time of its transit over the particular carrier's line, and of this, notice must be given within 30 hours after the arrival of the same at destination," and where written across the face of such bill of lading are the words "released per contract," and where the contract thus referred to is set up in the answer of the defendant, and a copy thereof is attached to said answer as an exhibit, and where such contract contains a provision "that, as a condition precedent to a recovery for any damages for delay, loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer, or the nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated; and that a failure to comply with the provisions of this clause. shall be a bar to the recovery of any and all such claims." And, where it is alleged in said answer that this provision of the contract has not been complied with, and where the plaintiff files a reply setting up only a general denial, unverified, such written contract is thereby admitted, and where neither the petition or the reply contains an allegation of compliance with the conditions of the bill of lading or contract, and the said pleadings on the part of the plaintiff contain no allegation of waiver of such contract, and no facts are alleged therein tending to show an actual or substantial compliance with the said bill of lading or contract and no excuse is offered or set up in the pleadings for their noncompliance, said pleadings do not state a cause of action in favor of the plaintiff, and a motion for judgment for the defendant on the pleadings should be sustained in the absence of any allegation for leave to amend by the plaintiff.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, § 1067.j

2. CARRIERS-LIMITING LIABILITY.

The responsibility of a common carrier may be limited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reasonable, and not inconsistent with sound public policy. Hence, an agreement that, in case of failure by the carrier to deliver goods, he shall not be liable, unless a claim shall be made by the bailor or by the consignee within a specified period, if that period be a reasonable one, is not against the policy of the law, and is valid.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 669, 670.] 3. SAME-SPECIAL CONTRACT.

The common-law liability of a common carrier for the safe carriage of goods may be limited and qualified by special contract with the owner, provided such special contract does not attempt to cover losses occasioned by neglect or misconduct.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 637, 654–659.] 4. SAME-NOTICE OF CLAIM FOR DAMAGES.

A stipulation in a contract of affreightment of live stock, requiring the owner to give notice in writing of his claim for damages to some officer of the company or its nearest station agent, before the stock is removed from the place of destination, is a reasonable stipulation and binding on the owner, and he cannot recover on failure to give such notice, though he did

not go in person, or send an agent, with the stock, as in such cases he should have sent a copy of his contract to the consignee, in order that the latter might have complied with the stipulation.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 938.]

5. SAME-TIME FOR GIVING NOTICE.

Whether the time provided by the contract for giving notice of loss is reasonable or unreasonable is a question of fact to be determined by the circumstances of the case.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 732.]

(Syllabus by the Court.)

Error from Probate Court, Oklahoma County; Wm. P. Harper, Judge.

Action by D. M. Phillips against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

On June 28, 1904, D. M. Phillips commenced this action in the probate court of Oklahoma county against the St. Louis & San Francisco Railroad Company, by filing his petition therein, claiming damages in the sum of $300 for the killing of one horse and the injuring of three others while being transported by the railroad company from Oklahoma City, O. T., to Hoxie, Ark. On April 21, 1905, Phillips filed an amended petition, setting out in addition to the foregoing allegations, a copy of the bill of lading, and on it was indorsed, "released per contract." One of the provisions of said bill of lading is as follows: "No carrier shall be responsible for loss or damage of any of the freight shipped, unless it is proved to have occurred during the time of its transit over the particular carrier's line, and of this, notice must be given within thirty hours after the arrival of the same at destination." On the 29th of April, 1905, the railroad company filed its answer in said cause, which, after containing a general denial, set up by way of further defense the execution of a live stock contract with Phillips covering said shipment, copy of which was attached to said answer and marked "Exhibit A." It is alleged in said answer "that, by the terms of said contract, it is, among other things, specifically provided that, as a condition precedent to a recovery for any damages for delay, loss, or injury, the shipper must give notice in writing to the nearest agent of the company within one day after the delivery of such stock at destination, and before the removal of the same from such destination, and defendant specifically avers that such notice in writing was not given as required, and plaintiff did not attempt to give such notice or make claim to any agent or officer of the company before said stock were removed from destination or mingled with other stock, and defendant had no notice of the alleged damage, or opportunity to investigate the same before said stock were so mingled and removed, and that therefore plaintiff is not entitled to recover

under such contract for the injury, if any, sustained." The provision of the contract referred to is section 11, and reads as follows: "That, as a condition precedent to a recovery for any damages for delay, loss, or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer or nearest station agent of the first party, or to the agent at destination, or to some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated; and that a failure to comply with the provisions of this clause shall be a bar to the recovery of any and all such claims." To that part of the answer setting up this defense, the plaintiff filed a demurrer, which demurrer was overruled on the 27th day of May, 1905. Thereupon plaintiff filed a reply to said answer, which was a general denial, unverified. the 9th day of June, 1905, plaintiff in error filed his motion in said cause for judgment on the pleadings, which motion was overruled by the court and exceptions noted. The cause came on for trial on the 9th day of June, 1905, a jury being impaneled. Plaintiff in error objected to the introduction of any evidence on the part of the defendant in error, on the ground that the petition and reply did not state facts sufficient to constitute a cause of action, which objection was overruled by the court and exceptions noted. The plaintiff introduced his evidence and rested, and the railroad company, defendant, demurred thereto, which demurrer was overruled by the court, and exceptions saved. Thereupon evidence was introduced on behalf of the defendant, and at the conclusion thereof, plaintiff in error requested the court to give the jury a peremptory instruction to return a verdict for the defendant railroad company. which was overruled by the court, and exceptions saved. The defendant also requested the court to give to the jury instructions numbered 1 to 13, which the court refused to give, to which the plaintiff in error excepted. At the request of plaintiff in error, the court submitted to the jury 28 special interrogatories. The case having been submitted to the jury, they returned into court a verdict in favor of the defendant in error in the sum of $186.25, and also returned special findings of fact to the special interrogatories submitted to them. Thereafter, and on the 13th day of June, plaintiff in error filed its motion in said cause for judgment on the findings notwithstanding the verdict of the jury, which motion was overruled, and exceptions noted, and judgment was thereupon entered for the defendant in error on the general verdict. From said order, and the order

of the court overruling a motion for new trial, the plaintiff in error brings this appeal.

Flynn & Ames and R. A. Kleinschmidt, for plaintiff in error. T. F. McMechan, for defendant in error.

IRWIN, J. (after stating the facts). The plaintiff in error seeks a reversal of this judgment on six different grounds: First. That plaintiff in error was entitled to judg ment on the pleadings in said cause, and the court erred in overruling his motion therefor. Second. The court erred in not sustaining the objection of the plaintiff in error to the introduction of any evidence by the defendant in error, on the grounds that the pleadings did not state a cause of action in favor of the plaintiff. Third. The court erred in overruling the demurrer of the plaintiff in error to the evidence. Fourth. The court erred in refusing the peremptory instruction asked by plaintiff in error, and in giving the instructions to the jury that were given. Fifth. The court erred in not sustaining the motion of plaintiff in error for judgment on the special findings, notwithstanding the general verdict. Sixth. The court erred in overruling the motion of plaintiff in error for a new trial in said cause.

The first and second assignments of error may very properly be discussed as one, as the same proposition of law is involved in both, and practically the same state of facts is presented thereby, to wit, that the pleadings of the defendant in error were wholly insufficient to state a cause of action, and for this reason the defendant was entitled to a judgment on the pleadings. The amended petition set up a copy of the bill of lading for the shipment in question which contained a clause requiring the shipper, as a condition precedent to claiming damage, to give notice thereof within 30 hours after the arrival of the same at destination, and said bill of lading specially referred to another contract in these words, "released per contract,” which words were written plainly across the face of the bill of lading. Record, p. 10. The answer of the railroad company set up a copy of the contract referred to, alleged its execution by the plaintiff, Phillips, and specially alleged the failure of the plaintiff to comply with the condition precedent in his said contract. The reply filed to this answer by plaintiff was a general denial, unverified, and therefore admitted the execution of said contract as alleged, under the statutes of this territory. Wilson's Rev. & Ann. St. Okl.. 1903, § 4312, reads as follows: "In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit

of the party, his agent or attorney." Therefore, the execution of the contract being admitted, and the bill of lading referring thereto and containing practically the same provision in regard to notice as a condition precedent to any claim for damage accruing to the shipper, the compliance with said condition precedent, and with the terms of said contracts, could not be predicated or gathered from a general denial. It would certainly seem to be the duty of the defendant in error, upon admitting. the execution of the contract, to either especially allege compliance with the terms thereof, or to especially plead some of the facts, if any such there were, which might tend to show a substantial compliance with the terms of said contract, and which might tend to relieve him from compliance therewith, or he should, in some form, have alleged a waiver of the terms of said contract on the part of the defendant. Neither of these things were done by the defendant in error. Now it is a well-recognized principle of pleading, that where a party relies for his cause of action upon a breach of a written contract, the burden is upon him to allege and prove every material element necessary to his recovery thereunder. In other In other words, before he can complain of a breach of contract on the part of the other party, he must show that he has actually or substantially complied with the terms of the contract himself, or has been released therefrom by the other party. Now, in this case, this bill of lading, and the reference of the shipping contract contained therein, was first brought into the case by the plaintiff in his petition, and was attached to the petition of the plaintiff as an exhibit. and made a part thereof. Upon this bill of lading, and its accompanying contract of shipping, the plaintiff based his cause of action. This, of itself, would put upon the plaintiff the responsibility of proving compliance with the material parts of said contract on his part. This is peculiarly true when we remember that the noncompliance with the essential parts of this contract was alleged in the answer of the defendant. The plaintiff's attention was called to the particulars in which he had failed to comply with the contract, and his attention was challenged to that proposition by the answer of the defendant. Then no legal denial of the contract was pleaded, no claim of compliance, either actual or substantial, and no claim of waver was made. Now, if this provision of the bill of lading and the shipping contract was such a provision as was reasonable, valid, and enforceable as a matter of law, then the burden was upon the plaintiff, not only to prove, but to allege in his pleadings, a compliance with the terms of the contract for a breach of which he sues. Now, the proposition presents itself, was this provision of the bill of lading and shipping contract a reasonable one, and one which the law would enforce? The validity of a contract of this nature and of this special pro

vision requiring notice in writing to be given of the loss or injury within a reasonable time as a condition precedent to the shipper's right of action has been so repeatedly and often supported by the decisions of the various courts of this country as to become a well-recognized and settled rule of law.

In the case of Southern Express Co. v. Caldwell, reported in 21 Wall. 264, 22 L. Ed. 556, the Supreme Court of the United States say: "The responsibility of a common carrier may be limited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reasonable, and not inconsistent with sound public policy. An agreement that, in case of failure by the carrier to deliver goods, he shall not be liable, unless a claim shall be made by the bailor or by the consignee, within a specified period, if that period be a reasonable one, is not against the policy of the law, and is valid." In 6 Cyc. 508, it is held that a stipulation that the claim for damages shall be made before the animals are removed from the place of delivery, and mingled with other animals, is valid. Other stipulations for a short time, of giving notice of damages in case of live stock, have been sustained, and numerous authorities are therein cited to sustain this proposition. In the case of Texas Central R. Co. v. Morris, 1 White & W. Civ. Cas. Ct. App. $374, it is said: "A railroad company may, by special contract, require a shipper of cattle to serve a written notice of a claim for damages for loss or injury to the cattle. while in transit, before the cattle are removed from the place of delivery and mingled with other stock, as a condition precedent to his right to recover for such damages." In the case of Galveston, H. & S. A. Ry. Co. v. Harman, 2 Willson's Civ. Cas. Ct. App. §§ 136, 137, it is said: "A stipulation in a contract of affreightment of live stock, requiring the owner to give notice in writing of his claim for damages to some officer of the company or its nearest station agent, before the stock is removed from the place of destination, is a reasonable stipulation, and binding on the owner, and he cannot recover on failure to give such notice, though he did not go in person, or send an agent, with the stock, as in such cases he should have sent a copy of his contract to the consignee, in order that the latter might have complied with the stipulation." In the case of A., T. & S. F. R. Co. v. Crittenden, 44 Pac. 1000, the Court of Appeals of Kansas say: "So far as it required the shipper to give notice in writing of his loss or injury, it is a valid, binding contract. By its terms Crittenden was compelled to give notice in writing to the company of his claim for loss or injury to such stock before said stock was removed from the place of destination on delivery, and before said stock was mingled with other stock. Failing to comply with the terms of this con

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