are not told why the first money raised was not expended, or why an additional amount became necessary, or why the supervisors failed to make the levy large enough to raise the requisite amount estimated by the trustees. All we know is that the first estimate was for $20,000, and only $5,000 was raised, and that an amount of $10,000 additional to the $5,000 was estimated as necessary to erect the proposed building. If it be true, as claimed by appellant, that the supervisors exhausted their power to make a levy under the first estimate (which we do not decide), we see no reason why, when it was found that the building fund was inadequate, the trustees might not make a further estimate or that the supervisors might not on such estimate make a further levy.

We can discover no infirmity in the first levy. The money raised by it belongs now to the building fund and in making the second estimate the end is reached by estimating the requisite additional amount quite as definitely as by making the estimate $15,000, as is claimed it should have been. The suggestion that this view leaves the supervisors with unrestricted powers to keep on from year to year adding to the cost of the building, presupposes that both the trustees and the supervisors will proceed recklessly and without regard to the welfare of the property holders. On the other hand we must presume official duty regularly performed, and, if the power here sought to be restrained is denied, the district might find itself seriously embarrassed.

It seems to us that the statute is sufficiently broad to justify the course being taken to secure a building for the school. Respondents make the point, not raised in the lower court, that injunction will not lie in anticipation of the action of a judicial body; citing Barto v. Board of Supervisors, 135 Cal. 494, 67 Pac. 758. We have thought it more satisfactory to dispose of the questions raised by appellant without considering the point suggested by respondents.

The judgment and order appealed from are affirmed.

I concur in the judgment. BUCKLES, J.

I concur: MCLAUGHLIN, J.

(4 Cal. A. 343)

WRIGHT v. COULES et al. (Civ. 257.) (Court of Appeal, Second District, California. Oct. 16, 1906. Rehearing Denied by Supreme Court Dec. 13, 1906.) 1. LIBEL SLANDER OF PROPERTY-PUBLICATION RELATING TO CHANGE IN HOTEL BUILDING-LIABILITY.

A complaint, which alleges that plaintiff was engaged in the hotel business; that at the date of the publication complained of designated persons had notified him that they were about to come to the hotel; that defendants maliciously and falsely published in a newspaper an article averring that the hotel had been purchased by

A complaint in an action by the proprietor of a hotel for injury to his business caused by a newspaper publication, which alleges that, by reason of the publication, a large number of persons who were negotiating for board at the hotel were dissuaded from making any contract in relation thereto, and were dissuaded from going to the hotel, and from paying to the proprietor for board at least a designated sum, is demurrable, because of the uncertainty of the allegation with reference to the damage.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Libel and Slander, § 389.]

3. SAME-PROOF OF DAMAGES.

The damages to a hotel business resulting false newspaper publication may be proved by showing the existence of facts which would naturally tend to diminish the business, followed by evidence that it was actually diminished thereby, which may be shown without showing the specific name or giving the personal description of each guest driven away from the hotel by reason of the publication.

Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge.

Action by A. D. Wright against J. C. Coules and others. From a judgment of dismissal on sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

Tanner, Taft & Odell, for appellant. James P. Clark, M. M. Meyers, and M. J. McGarry, for respondents.

GRAY, P. J. This is an action for injury to the plaintiff's hotel business alleged to have been caused by publications made by defendants in several newspapers. A demurrer to the amended complaint as amended was sustained and the appeal from the judgment is by plaintiff.

The questions presented relate to the sufficiency of the complaint. The amended complaint as amended purports to set out three several and distinct causes of action. In the first cause of action it is alleged in substance that plaintiff was engaged in the business of an innkeeper at the Hotel Arcadia in Santa Monica, in the county of Los Angeles, on the 27th day of August, 1904, and for that purpose had a lease of the premises extending from a date at least two years prior to said date and up to and including the date of the filing of this suit, and that such business was popular and the income therefrom wag about the sum of $2,000; that at the date of the publication complained of several persons, Young, Paine, Mrs. Paine, Wilsely, and Lawrence had notified the plaintiff that they were about to come to the said Hotel Arcadia and lodge or room in the said

In

*

inn. It is further alleged that on said 27th day of August, 1904, the defendants maliciously and without reason caused to be published in the Los Angeles Examiner, a public newspaper printed in the city of Los Angeles and state of California, and widely distributed, etc., among the numerous customers, boarders, lodgers and transients of said hotel, a false and injurious article. We quote from said said article, as set out in the complaint, as follows: "The famous Hotel Arcadia at Santa Monica has been purchased by the Occidental Club, and will be remodeled into a colossal country clubhouse, the largest in the world, for the use of the members and their families. The deal was accomplished by a double sale, O. B. Steen, an Arizona mining man, purchasing from the Pacific Improvement and transferring the property to the Angeles Investment Company, the parent corporation of the Occidental Club. The price was well into six figures. The new owners will proceed at once to enter upon the privileges of the spacious quarters they have acquired by the sea. They do not take possession until the close of the present season, but a series of balls, planned to occur twice a week, will soon commence. the meantime, extensive alterations and repairs will go on without interruption. * As to the new seaside home which has formerly been the aristocratic Hotel Arcadia, it is already in high favor with the members of the organization. A big bathing party which will wind up with a dinner and dance is planned to take place in about two weeks." The complaint then alleges that the said article was false in this, that the said Hotel Arcadia had not been purchased by the said Occidental Club, was not to be remodeled, and there had been no double sale by O. B. Steen, an Arizona mining man, nor had the property been purchased from the Pacific Improvement Company, nor had it been transferred to the Angeles Investment Company, nor had there been any new owners thereby placed in possession of the title, nor did they make or begin to make any extensive improvements or alterations therein. It is further alleged that the parties above specifically named read this article, and that by reason thereof were dissuaded from coming to the hotel and did not come at all, and that these persons would have paid the plaintiff as proprietor of said Hotel Arcadia, as roomers, lodgers, boarders, or transients, a large sum of money had they so come, from which the plaintiff would have derived a profit of $1.000, and that by reason whereof plaintiff has been damaged in the sum of $1,000.

We are clearly of the opinion that the first count of the complaint, the substance of which only is stated above, states a cause of action; that it is so free from uncertainty and ambiguity that the defendants will not be misled to their prejudice for want of any necessary allegation. If the facts as alleged are proved on the trial, we think there can

be no question as to the plaintiff's right to recover the damages proven. The second cause of action alleged is the same as the first, except that it is based upon a different publication, claimed to have been made September 15, 1904, in the Daily Outlook, a public newspaper printed at Santa Monica, Cal. The same persons as stated in the first cause of action are alleged in the second cause of action to have been kept away from the hotel by the latter publication and the same damages are alleged to have accrued. We think, also, the allegations of this cause of action are sufficient as against both the general and the numerous special demurrers. The third cause of action is based upon the said publication in the Los Angeles Examiner on the 27th day of August, 1904. It also contains allegations similar to the first count of the complaint touching the ownership and conduct of the Hotel Arcadia and as to the printing and distribution of the paper containing the article; but the allegation of damage differs from that of the other two counts of the complaint. It reads as follows: "That by reason of the said publication, a large number of persons who were then and there negotiating for rooms in said Hotel Arcadia and for board and lodging, were dissuaded from making any contract in relation thereto and were dissuaded from coming to said Hotel Arcadia and from paying to plaintiff for board and lodging at least the sum of $3,000. Wherefore, plaintiff prays judgment against the defendants for the sum of $4,000 damages, and for costs of suit."

It appears from the order sustaining the demurrer and judgment of dismissal of the action that the several demurrers to the third cause of action were sustained without leave to amend. We think that for the uncertainty of the allegation with reference to the damage, quoted above from the third cause of action, the demurrer was perhaps properly sustained, but are of opinion that it should not have been sustained without leave to amend. To be sure, we find no record of any request in the transcript to amend this complaint further, and ordinarily this would be a sufficient answer to the plaintiff's appeal from the judgment following the order sustaining the demurrer. But as this case must go back to the trial court for further proceedings, we deem it fair and just that the plaintiff should be permitted by the court below, on the return of the case, to amend this allegation as to his damage so as to include a specific allegation that he was damaged by the facts alleged in that count of his complaint in a specific sum, whatever that sum may be. We are of opinion that damages to a hotel business may be proven by showing the existence of facts which would naturally tend to diminish and tear down that business followed by evidence showing that it was actually diminished and impaired thereby, and that this may be shown without showing the specific name or

giving the personal description of each guest who was driven away from the place or prevented from coming there by reason of the acts complained of. A general allegation such as indicated above of people being dissuaded by reason of a publication from making any contract with or coming to the hotel or giving it their patronage, is sufficient.

The judgment is reversed, with directions to the lower court to permit plaintiff to amend his third cause of action, as herein indicated.

I concur: ALLEN, J.

SMITH, J. (concurring). I concur in the judgment and in what is said in the opinion as to the first and second causes of action set out in the complaint. I am also of the opinion that the demurrer to the third cause of action was rightly sustained, for the reasons stated in the opinion.

(4 Cal. App. 326)

OSTROM et al. v. DE YOE et al. (Civ. 208.) (Court of Appeal, Third District, California. Sept. 26, 1906. Rehearing Denied by Supreme Court Nov. 22, 1906.)

1. TRIAL-SUBMISSION OF ISSUES TO JURYSPECIAL VERDICT-CONCLUSIVENESS.

An action for specific performance of an alleged oral contract of a decedent to make a will, and to set aside certain deeds, being an equity action, the court may disregard a special verdict of the jury and make its own findings of fact and conclusions of law.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 884; vol. 19, Equity, §§ 815, 816.]

2. DEEDS - DELIVERY - EVIDENCE SUFFI

CIENCY.

Certain deeds to a wife were found in a bank among the grantor's papers after his death. There was testimony that the grantee during her life stated that she never saw the deeds until they were found after his death. The scrivener delivered the deeds to the grantor, and the banker could not remember the circumstances of their deposit. Held insufficient to show a delivery.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 625-634.]

3. WILLS CONSTRUCTION - RESIDUARY DEVISE LANDS SUPPOSED TO HAVE BEEN DEEDED.

Certain deeds to a wife, signed by a decedent but never delivered. were found among his papers after his death, and the property covered thereby was not specifically mentioned in his will. Held to pass to the grantee under a devise to her of the "residue of my estate both real and personal of whatever kind, whether *** chattels, lands," etc.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1279-1291.] 4. SAME-RESIDUARY CLAUSE.

Certain deeds, executed by a testator but undelivered during his life, having been discovered after his death, the lands covered thereby were not returned in the inventory. The decree of distribution under the will, which did not mention the lands, but contained a sweeping residuary clause, gave the residue of the estate in the hands of the executrix "and any other property" belonging to the estate, "not now

In an action for specific performance of an alleged oral contract of a decedent to make a will, the only evidence as to such contract was evidence of decedent's statements that she was not to make a will, that there was no agreement to that effect, and that decedent never told the witness that there was any agreement as to her disposition of the property before or upon her death. Held sufficient to support a finding of no contract.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Specific Performance, §§ 387-395.]

Appeal from Superior Court, Stanislaus County; L. W. Fulkerth, Judge.

Action by Vincent R. Ostrom and others against N. E. De Yoe and others. From a judgment in favor of defendants and an order denying a new trial, plaintiffs appeal. Affirmed.

L. J. Maddux, for appellants. P. J. Hazen and Wm. O. Minor, for respondents.

BUCKLES, J. This is an action to enforce a trust in certain real and personal property, based on a supposed verbal contract, made by Caroline De Yoe, under whom defendants claim, with Stephen Rogers, her then husband, under whom plaintiffs claim-by which contract appellants claim said Caroline obligated herself to make a will, which is admitted she never made. The action was tried by the court; certain special issues were submitted to a jury which answered the same adversely to the defendants; the court reserved the action for further consideration, heard further testimony, and, when the case was argued and submitted, made and filed its findings and decision, rendering judgment thereon in favor of defendants. The plaintiffs appeal from the judgment and from the order denying a new trial. Stephen Rogers and Caroline Rogers were husband and wife, and, during their married life, had accumulated a large amount of property. In January, 1885, Stephen Rogers made several deeds of gift to his said wife of 1,524.06 acres of his land and numerous town lots, and on December 18, 1886, he made another deed of gift to the said wife of 3.967.34 acres, generally known as the "Oak Flat." These deeds were found after Stephen Rogers' death in a tin box in which he kept his papers, deposited in the First National Bank of Modesto, and were recorded March 26, 1888, at the request of Ora McHenry. Stephen Rogers died testate March 21, 1888. On December 31, 1886, he made his will. The property described in the said deeds was not described in the will nor returned in the inventory in the probating of said will and settlement of his estate. The will was admitted to probate April 21, 1888, and the said Caroline Rogers appointed executrix. The devises in said will

over which this controversy arises are as follows:

"Third. I give and bequeath to my grandson, Stephen Roy Rogers, son of Stimpson P. Rogers and Ella Rogers, the sum of ten thousand ($10,000) dollars, to be paid to him as hereinafter directed, and only after the death of my said wife Caroline if she survive me; the income from the said ten thousand dollars to be paid to said Stephen Roy Rogers personally for his own private use from the time he be fifteen years old till he be twenty-one years old; and then when he be twenty-one years old, I direct that he be paid five thousand dollars, being half of the abovenamed bequest, and that from the time he is twenty-one till he be twenty-five (25) years old, I direct that the income from the remaining five thousand dollars be paid him annually for his private use. And then, when he the said Stephen Roy Rogers be twenty-five years old, I direct the remaining five thousand dollars paid to him personally, for his own exclusive and private use. If my said grandson die before arriving at the ages herein named, then the remaining or unpaid amounts of said bequest, together with the income thereon, I direct shall be distributed as the other portion of my estate shall be or shall have been distributed, namely, to the brothers and sisters of myself and wife Caroline, share and share alike.

"Fourth. The residue of my estate, both real and personal, of whatever kind, whether money, credits, chattels, lands, houses or shares in corporations, and wheresoever situated, I give, bequeath, and devise to my beloved wife, Caroline Rogers, if she survive ine. And it is my will and I so direct, that my said wife also have the exclusive and absolute control, during her life, of that part of my estate hereinbefore devised to Lizzie Kay and Stephen Roy Rogers.

"Fifth. If I survive my said wife Caroline, then I give, bequeath, and devise all the residue of my estate, both real and personal, and wheresoever situated, share and share alike, to my grandson, the said Stephen Roy Rogers, if he be then living, and to my brothers and sisters, and to the brothers and sisters of my said wife Caroline; or if any of the said brothers and sisters be dead, and their children shall take the share of their parent, respectively, save and except only Gilbert P. Ostrom, son of Jemima Ostrom, and also Clarence Cotton, son of Jacob Cotton, to whom I bequeath nothing; and I will and bequeath, in case I survive their parents, or either of them, the share of my estate hereinbefore given to said Jemima Ostrom and Jacob Cotton, to the remaining brother and sister of said G. P. Ostrom and Clarence Cotton, respectively."

Stephen R. Rogers died May 15, 1899. The court made and entered its decree of distribution of said estate, and was in accordance with said will. The decree contained the following clause: "And the residue of said

estate of Stephen Rogers, deceased, hereinafter particularly described and now remaining in the hands of said executrix, and any other property not now known or discovered which may belong to the said estate, or in which the said estate may have any interest, be and the same is hereby distributed as follows, to wit:" To Lizzie Kay, $1,000 if she survive Caroline Rogers. The remainder to Caroline Rogers. No objection is made to the decree. On April 25, 1894, Caroline Rogers married N. E. De Yoe, who is a defendant in this action. She died February 29, 1904. The plaintiffs in their complaint allege as follows: "That prior to, and at the time of, the making and execution of the said will hereinbefore set forth by the said Stephen Rogers, it was mutually understood and agreed by and between the said Stephen Rogers and the said Caroline De Yoe, then Caroline Rogers, and the said Caroline Rogers promised and agreed to and with the said Stephen Rogers that, if the said Stephen Rogers would make and execute the will hereinbefore set forth, the said Caroline Rogers would make and execute her will, and upon her death give and bequeath all of the property owned and possessed by the said Caroline Rogers and Stephen Rogers at the time of his death, and all the property possessed by her at her death, and all the proceeds of such property, in equal shares to Stephen Roy Rogers, if he then be living, and to the brothers and sisters of the said Stephen Rogers and brothers and sisters of said Caroline Rogers, or, if any of the said brothers and sisters be dead, then to their children, said children to take the share of the parent, respectively, save and except Gilbert P. Ostrom and Clarence Cotton, and, in case of the death of Stephen Roy Rogers, then to be willed to the brothers and sisters of Steven Rogers and Caroline Rogers, and their children, as aforesaid. That, pursuant to said agreement, and being induced by said agreement and promise of said Caroline Rogers and relying thereon, said Stephen Rogers made and executed the will and testament hereinbefore fully set forth.”

The complaint prays for a specific performance of the alleged agreement and that the said deeds of Stephen Rogers to Caroline Rogers be set aside. The answer denies that there ever was such a contract, admits the making and execution of said deeds, and alleges that such deeds were delivered to Caroline Rogers and were for good and valid considerations and conveyed all the interest of Stephen Rogers in said land to Caroline Rog

After denying fully the allegations of the complaint the defendants for a separate defense plead laches on the part of plaintiffs, and that they should be estopped from asserting and claiming any right to the lands by reason of allowing the rights of defendants to accrue without any knowledge of plaintiffs' claim; pleads the statute of limitations; also that plaintiffs' alleged claim is based upon an alleged agreement which is

void and cannot be enforced because not in writing; also that said claim cannot be enforced because an attempt is made to create a trust to hold real estate and suspend the power of alienation; also that, if said agreement was made, it is void because made by Caroline Rogers, a married woman. This being an equity case, the special verdict of the jury was but advisory, and the court had a right to disregard it, which the court did by saying: "And the court, being fully advised in the premises, does not approve of said verdict, but now makes and files its findings of fact and conclusions of law." Galvin v. Palmer, 113 Cal. 50, 45 Pac. 172.

The testimony in the case as to the deeds was as follows: O. McHenry testified that he had seen the said deeds (Stephen Rogers to Caroline Rogers) in the First National Bank of Modesto; that they were recorded by him at his father's request and that his father was the custodian thereof; and that they were recorded on the dates shown on the deeds, to wit, March 26, 1888. The deeds were introduced in evidence and the witness Miss Jennie Broughton said that Mrs. Caroline Rogers had "discovered some deeds made by Stephen Rogers with me. She said she found them in a little brown box-tin box. I think it was-that she said to me, she says, 'you know that Stephen always kept his business papers in.' He had that little box on the ranch, and after he died she found the decd, she said, when she opened that box. If I remember right, she said, "The box was in the First National Bank,' and said, "The first time she saw the deeds was after he died, and she went and opened his box.'" L. B. Walthal testified that he drew the deeds at the request of Stephen Rogers and delivered them to him. He also drew the will. J. E. Ward, cashier of the First National Bank of Modesto, testified: "I remember the deeds introduced in evidence being left in the bank, but do not remember the circumstances." This is all the evidence in relation to the deeds.

The court found as follows: "Each and all of the deeds referred to in said complaint were made, executed, and delivered, at the times of their respective dates, for good and sufficient considerations, and were valid conveyances of the property therein described, and conveyed title thereto to said Caroline Rogers as of the dates of said deeds, and she and her successors have been, since the death of Stephen Rogers, the owners in fee simple thereof, claiming title and asserting such ownership against all the world." The delivery of the deeds before the death of Stephen Rogers is not shown to have taken place. But the finding is immaterial. The deeds not having been delivered, no title to the lands mentioned therein passed under said deeds to Caroline Rogers, and said lands remained a part of said estate and would be and were

included in the residue of the estate devised to Caroline Rogers. The making of the deeds furnished sufficient reason for omitting any mention in the will of the lands attempted to be conveyed by said deeds, for the deeds had been drawn and executed prior to making the will. Evidently the testator did not realize, when he made his will, that these lands were still a part of his estate. However, the decree of distribution herein referred to distributed these lands to Caroline Rogers under that clause "and any other property not now known or discovered which may belong to the said estate or in which the said estate may have any interest."

Irrespective of the will, one-half of theve lands belonged to the widow at the death of Stephen Rogers, because they were community property. The widow went into possession of all the property devised to her including these lands, under the decree of distribution in the Stephen Rogers estate, made October 9, 1890, and held the same as her own, farmed and controlled the lands and managed the same, and her holding was open and notorious to all the world from that date until her death in 1904. The court found there was no contract or agreement between Stephen Rogers and Caroline Rogers; that she did not promise or agree with Stephen Rogers, if he would make and execute his said will as he did or for any other consideration, that she would make her will, or upon her death give or bequeath the property. or any part thereof, as alleged in said complaint, nor did said Caroline Rogers at any time make any such contract or agreement; that the will of Stephen Rogers was not made pursuant to any agreement such as is alleged in the complaint, and he did not rely upon any such agreement or promise when he made his will. The only witness who gives any testimony at all concerning the contract or agreement between Stephen Rogers and his wife was that of Miss Broughton, who said Mrs. Rogers would tell her that she was not to make a will, that there was no agreement that she was to make a will, and, when finally the court asked this witness, "Did she ever tell you at any time she had agreed, or made a contract, with Stephen Rogers that she was to do anything with the property upon her death or prior to her death?" She answered, "I don't think so."

There is testimony supporting every material finding the trial court made, and these findings warrant the judgment "that plaintiffs have no right, title, interest, or claim in or to any of the property described in the complaint, and that defendants are the owners of, and entitled to, the whole thereof, freed of any claim of plaintiffs thereto, etc." Judgment and order affirmed.

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