PEOPLE v. HAMILTON. (Cr. 1106.)

surgeon left practically no doubt that an act of sexual intercourse with the prosecu

(District Court of Appeal, Second District, Di- trix had been accomplished within 24 hours

vision 1, California. Oct. 3, 1924.)

prior to the time of the examination.
[1, 2] The fact of resistance by the girl is

1. Rape 51 (4)-Evidence of resistance of sufficiently shown by her testimony. It is female held sufficient.

Evidence held sufficiently to show resistance of prosecutrix to sustain conviction.

2. Witnesses 244(4)—Allowance of leading questions to 17 year old prosecutrix held not abuse of discretion.

Allowance of leading questions, by district attorney, to 17 year old prosecutrix, as, “Did you struggle with him after you got on the back seat?" was not abuse of discretion.

Appeal from Superior Court, San Diego County; Edgard A. Luce, Judge.

not necessary to republish her statements in this place. There was no abuse of discretion in the allowance of such leading questions as were permitted. For example:

Question by district attorney: "Did you struggle with him after you got in the back seat?" (Objected to as leading. Overruled.) Answer: "Yes; I did, with all my might, but I was overpowered; he was too strong."

The testimony of the witness, both preceding and following the question shows that

Wallace J. Hamilton was convicted of rape, the examination was being fairly conducted, and he appeals. Affirmed.

Stickney, Stickney & Burch, of San Diego, for appellant.

U. S. Webb, Atty. Gen., John W. Maltman, Deputy Atty. Gen., and C. C. Kempley, of San Diego, for the People.

CONREY, P. J. The defendant was convicted on a charge that he committed the crime of rape, with force and violence, etc. He appeals from the judgment and from an order denying his motion for a new trial.

The points presented on behalf of appellant are: First, that the court improperly allowed certain leading questions, during the examination of the chief witness for

the prosecution, and erroneously overruled objections to those questions; next, that the evidence is insufficient to sustain the verdict in this, that there is not evidence legally sufficient to prove that the prosecutrix, persistently and to the full extent of her power, resisted the accomplishment of the offense by the defendant, and, therefore, that the evidence does not establish the use of force

and violence.

The defendant met the prosecuting witness at a social evening party of young people at a church. With the consent of the prosecutrix, who was a girl of 17, he started to take her home in his automobile. This was

without any effort to suggest to the witness the manner in which she should tell her story.

We are satisfied that appellant was given a fair trial, free from any important or prejudicial error.

The judgment and order are affirmed.

We concur: HOUSER, J.; CURTIS, J.

SCHLAKE v. MacCONNELL et al. (Civ. 4950.)

(District Court of Appeal, First District, Division 2, California. Oct. 15, 1924. Hearing Denied by Supreme Court Dec. 11, 1924.) Dismissal and nonsuit 27-Filing of amended complaint is dismissal of action as to defendant omitted.

Filing of amended complaint, omitting a defendant named in original complaint before he had joined issue thereon, is dismissal of action as to such defendant, and his attempted answer to original complaint is of no legal consequence.

Appeal from Superior Court, Alameda County; James G. Quinn, Judge.

Action by Christian Schlake, Jr., against Emmett W. MacConnell, in which the Consol

filed a cross-complaint. From orders setting aside default of plaintiff to cross-complaint, and striking cross-complaint from files, crosscomplainants appeal. Affirmed.

at about 11 o'clock. Instead of driving to ker home, he drove out into a remote and un-idated Concessions Company and its trustees inhabited country, and did not bring the girl back to her home until 2 o'clock in the morning. The defendant, while admitting the night ride, and some playful and not much resisted attempts to "love and embrace" the girl, testified emphatically that he did not have sexual intercourse with her.

All Hearing denied by Supreme Court. concur, except Seawell, J., who, deeming himBut her testimony is corroborated in sev-self disqualified, did not participate herein. eral ways. Her complaint, made to her Hugo D. Newhouse and Russell P. Tyler, mother a few hours later, was followed im- both of San Francisco, for appellants. mediately by a medical examination. The Wm. F. Cowan, of Santa Rosa, and Fry & uncontradicted testimony of the examining Wood, of Oakland, for respondent.

(230 P.)

LANGDON, P. J. The Consolidated Con-, Rep. 17; Pfister v. Wade, 69 Cal. 133, 138, 10 cessions Company, a defunct corporation, and P. 369; Schneider v. Brown, 85 Cal. 205, 206, its trustees, have appealed from two orders 24 P. 715; Collins v. Scott, 100 Cal. 446, 34 of the trial court, one of which set aside the default of plaintiff to a so-called crosscomplaint filed by said appellants, and the other order struck from the files the said cross-complaint. The respondent has moved to dismiss this appeal, upon the ground that the appellants have no standing in the action, as it was dismissed as to them prior to the filing of the purported answer and cross-time the amended complaint was filed. The complaint, and their petition to intervene in said action was denied by the trial court, which order has become final.

The attorneys representing said trustees, however, ignored this court order and the amended complaint, and filed with the clerk an answer and cross-complaint to the original complaint, which had commenced the action in August, 1915, and which had been supplemented and superseded by the amended complaint. Said original complaint no longer served any purpose in the action (Barber v. Reynolds, 33 Cal. 497; Osment v. McElrath, 68 Cal. 466, 470, 9 P. 731, 58 Am. | VANT, J.

Tapscott & Tapscott and Taylor & Tebbe, PEREIRA FARMS CORPORATION v. SI-all of Yreka, for respondent. MAS et al. (Civ. 2752.)

PER CURIAM. The defendants have appealed from the judgment herein quieting plaintiff's title to certain lands described in the complaint.

the owner of a "portion of lot 1 and all of
The complaint alleges that the plaintiff is
lots 2 and 3 and portion of the south 1⁄2 of
northwest 14, all in section 33, township 44
north, range 8 west, Mount Diablo Base and
Meridian," particularly describing such lands,
as well as other lands not in controversy here,

and prays for judgment quieting plaintiff's
title thereto. Defendants denied the fore-
going allegation of the complaint and, for
cross-complaint, alleged that defendants are
the owners of the south half of the north-
west quarter and lots 1 and 2 of said section
33, containing 90.40 acres, and prayed for
judgment quieting their title thereto. Plain-
tiff answered the cross-complaint, denying de-
fendants' title to the lands therein described,
and alleging that plaintiff is the owner of the
whole thereof. Of the lands so in controversy
the judgment quiets plaintiff's title to about
25 acres, but is silent as to the remainder.
In 1856 C. C. Tracy, a deputy United States

4. Quieting title 36-Description of land in surveyor, surveyed a tract of land in said petition held sufficient and definite.

Where boundary lines of disputed land were set out in complaint by courses and distances commencing at corner, location of which was not uncertain, complaint was not demurrable because description was indefinite and uncer

tain.

5. Quieting title 52-Defendants entitled to judgment for land to which plaintiff established no title.

The

township 44 three miles in length from east to west and one-half mile in width, which he described as the north halves of sections 31, 32, and 33. The survey was approved by the Benson, a deputy United States surveyor, United States government. In 1880 W. F. surveyed the whole of the township. Benson survey was also duly approved. The section and subdivision boundary lines of the Where defendants by cross-complaint asked east and more than a quarter of a mile farTracy survey are a quarter of a mile farther that their title be quieted, and answer to cross-ther north that the corresponding lines of complaint denied defendants' title, and plaintiff adhered thereto at the trial, defendants the Benson survey, so that the south half of held entitled to judgment quieting title to part of land to which plaintiff established no title. 6. Appeal and error 1178(6)—Judgment not modified where no finding made, but whole judgment not reversed.

Where trial court made no finding as to title to land to which plaintiff established no title, appellate court cannot modify judgment to quiet defendants' title thereto, and must send case back for retrial of that issue, but reversal of whole judgment is not necessary. Appeal from Superior Court, Siskiyou County; C. J. Luttrell, Judge.

the northwest quarter of section 33 of the Benson survey lies south of the southeast quarter of the northwest quarter and the southwest quarter of the northeast quarter of section 33 of the Tracy survey, and is separated therefrom by a narrow strip of land designated in the Benson survey as lots 1 and 2, each lot containing 5.20 acres.

[1] Defendants' claim of title is based upon a patent from the United States to Manuel Soiza, dated October 1, 1903, and a deed from Soiza to defendant Manuel G. Simas, dated December 30, 1907, both instruments describAction by the Pereira Farms Corporation, half of the northwest quarter and the lots ing the lands therein conveyed as "the south substituted as plaintiff for E. W. Pereira, al-numbered 1 and 2 of section 33 in townshipso known by other aliases, against E. T. Simas and others. Judgment for plaintiff, and defendants appeal. Reversed in part and affirmed in part.

44 north of range 8 west, Mount Diablo Meridian in California, containing 90.40 of an acre." The plaintiff failed to prove a complete record title, but proved without conB. K. Collier and J. P. McNamara, both of tradiction that it and its predecessors in inYreka, for appellants.

terest had been in the actual, exclusive, and

(230 P.)

adverse possession of the lands described in the complaint continuously for more than 20 years, under a claim of ownership thereof, and the court so found. The court also found that the plaintiff and its predecessors in interest had paid all taxes levied and assessed against the property "during the period of more than five years continuously next prior to the filing of this complaint." If the evidence supports the finding as to the payment of taxes, the judgment quieting plaintiff's title must be affirmed.

John Pashburg. tax collector of the county at all times since 1907 testified that for more than five years prior to the commencement of the action "lots 1 and 2 and the fractional south half of the northwest quarter of section 33, township 44 north, range 8 west," had been assessed to plaintiff and its predecessors in interest, and all taxes thereon paid. The evidence does not show whether the witness referred to section 33 of the Tracy survey or that of the Benson survey, but, since there were no lots 1 and 2 in the Tracy survey, it must be inferred that the land was assessed in accordance with the descriptions contained in the Benson survey. Counsel for defendants cross-examined the witness as follows:

"Q.

Do you know who paid the taxes that were referred to by you as having been paid, in your direct examination? A. The Pereiras Company and Pereiras paid the taxes, I think. * I mean E. W. Pereira and Manuel Pereira and some of the assessments were to the Pereira Farms Company.

"Q. In 1917? A. No, I say different years. "Q. Well, but I am confining my question now to 1917. A. It was assessed to Manuel Pereira. "Q. Well, do you know who actually paid the taxes? A. The Pereira people.

"Q. Do you know what individual paid the taxes? A. Well, Mort Beem of the Carlock Banking Company.

"Q. Then of your own knowledge you don't know which one of the Pereiras actually put up the money. As I understand you, what you do know is that the land that you refer to here was assessed to the parties that you refer to and those taxes are paid? A. Yes, sir.

tion 33 was assessed to defendant Manuel G. Simas, and all taxes paid, during the same years that the foregoing assessments were made to plaintiff and its predecessors. It does not appear, except by inference from the facts stated, by whom the payments were made. This appeal has been argued on the theory of a double assessment of the lands in controversy and a double payment of taxes thereon. Appellants contend that under such a state of facts title by adverse possession is not established. The present state of the decisions upon the question is well stated in 1 California Jurisprudence, 566, as follows:

"Whether the adverse occupant of land may have it assessed to himself while it is assessed also to the true owner, and may comply with section 325 of the Code of Civil Procedure, by paying this double or second tax when for the same years the true owner also pays the tax, is a question which has been attended with no little confusion in the authorities. It seems is a double taxation and a double payment of now to be definitely settled, that, where there taxes upon the land, the claimant to title by adverse possession has fully complied with the law when he has paid the taxes upon the land, even though they have also been paid by the holder of the record title thereto. On this point the Supreme Court has said: 'Having had the land assessed to him, and having paid the taxes levied thereon, we think he has fulfilled the conditions of the statute, and it is immaterial as to the number of times the land may have been assessed to and the taxes paid by other parties.' A contrary rule in certain of the authorities is to the effect that, where the true owner pays the tax upon an assessment to himself before the adverse claimant pays the second or double tax he has caused to be assessed to himself, the latter cannot claim compliance with the statute. However, the reasoning of the majority opinion in Cavanaugh v. Jackson [99 Cal. 672, 34 P. 509] has been later approved by the Supreme Court, and now stands as authority."

The following cases, cited in the footnotes, fully support the text: Cavanaugh v. Jackson, 99 Cal. 672, 34 P. 509; Carpenter v. Lewis, 119 Cal. 18, 50 P. 925; Owsley v. Matson, 156 Cal. 401, 104 P. 983; Cummings v. Laughlin, 173 Cal. 561, 160 P. 833; and opin

"Q. Now, as to who paid them, you don't undertake to testify to? A. No. * * * It is the custom of the Fort Jones Banking Com-ion on denial of a hearing by the Supreme pany to pay all the assessments for Scott Val- Court in Van Calbergh v. Easton, 32 Cal. ley people. * Has been ever since I App. 796, 800, 164 P. 1113. Under the authorhave been in office."

*

The parties to the action are Scott Valley people. Defendants made no attempt to show that the foregoing taxes were paid by any person other than the Pereiras. While the evidence might well have been made more certain as to the persons by whom such taxes were actually paid, sufficient appears to justify the inference that the same were paid by or on behalf of the plaintiff and its predecessors in interest.

[2] The evidence shows that the fractional south half of the northwest quarter of sec230 P.-62

ities cited the plaintiff established title by adverse possession to the lands in question.

[3] E. W. Pereira was the original plaintiff in the action. During the pendency thereof Pereira transferred the property described in the complaint to the Pereira Farms Corporation. On motion of counsel for plaintiff the court permitted the corporation to be substituted for the original plaintiff. There was no error in this. Section 385 of the Code of Civil Procedure provides that upon such a transfer of interest by a plaintiff "the action or proceeding may be continued in the name of the original party, or the court may allow

2. Contracts 299 (2)-Obligation to answer for losses caused by delays, for which control of work makes party responsible, implied.

Where one assumes positive obligation, corresponding unexpressed obligation of other party to answer for losses caused by delays, for which his control of work would make him responsible, is implied.

the person to whom the transfer is made to, them to submit to buyer's demand that union be substituted in the action or proceeding." crew be employed pursuant to demand of ar[4] It is urged that defendants' demurrer chitect of owner of building, neither sales to the complaint should have been sustained, contract nor buyer's contract with owner specion the ground that "the description of the fying kind of labor to be used, and latter conland was indefinite and uncertain, in that it tank, and hence buyer was liable to seller for tract giving buyer access to building to install could not be told therefrom what land was price of tank and damages for prevention of claimed by plaintiff." The boundary lines of work. the land in dispute which are described in the complaint are set out by courses and distances, commencing at the northeast corner of section 27. There is no uncertainty as to the location of that particular corner, and it does not appear wherein the description of the disputed lands is insufficient or indefinite. [5, 6] As stated, the court gave judgment quieting plaintiff's title to about 25 acres of the 90.40 acres of land in dispute, but did not determine the rights of the parties in the remainder The defendants were entitled to a judgment quieting their title to such remainder of the 90.40 acres of land. In their answer to the cross-complaint the plaintiff denied defendants' title to any part of the 90.40 acres claimed by the latter, and alleged that plaintiff was the owner of the whole thereof. At the beginning of the trial counsel for plaintiff said: "We will adhere to everything we have stated * by the answer to the cross-complaint." The un-Johnson, Judge. contradicted evidence shows that there is not

the slightest merit in plaintiff's claim of title to any part of the 90-acre tract except the aforesaid 25 acres. Doubtless it was through inadvertence that the court failed to give defendants judgment quieting their title to the remainder of the tract. Since no finding was made upon that issue, it is beyond the power of this court to so modify the judgment as to determine it. It is therefore necessary to send the case back for a retrial of that particular issue, but it is not necessary to reverse the whole judgment.

3. Contracts 299 (2)-Contractor may recover for work performed and damages from being prevented from completing contract by other party's fault.

Contractor prevented from completing contract by other party's fault, may recover for work performed and damages caused by such prevention, each party impliedly agreeing not to prevent other from performing or render performance impossible by his own act.

Appeal from Superior Court, City and County of San Francisco; Walter Perry

of California against the Pacific Fire ExAction by the Steel Tank & Pipe Company tinguisher Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jordan & Brann, of San Francisco, for appellant.

Thomas, Beedy & Lanagan and J W. Paramore, all of San Francisco, for respondent.

TYLER, P. J. Action for goods sold and delivered and services performed. The material facts are contained in the findings of the trial court, which show in substance as

follows:

In so far as it fails to adjudicate the rights of the parties in and to the aforesaid remainder of the lands described in the cross-comThat a certain partnership made and enplaint, the judgment is reversed, with direc- tered into an agreement in writing with the tions to the trial court to retry and deter-defendant, wherein and whereby, the copartmine such rights. In all other respects theners undertook and agreed to furnish to dejudgment is affirmed, appellants to recover their costs on appeal.

STEEL TANK & PIPE CO. OF CALIFOR-
NIA v. PACIFIC FIRE EXTINGUISH-
ER CO. (Civ. 5004.)

(District Court of Appeal, First District, Di-
vision 1. California. Oct. 16, 1924.)

1. Sales 177-Sellers of tank held not bound to submit to buyer's demand that union crew be employed to install it.

That sellers did not make offer to erect tank on third party's building, conditional on right to use nonunion laborers, did not bind

fendant a steel tank of certain agreed size and specifications for the sum of $1,380, and to deliver the same on top of a certain onestory building in the city of Fresno; the building to be thereafter designated by defendant. not know the name or location of the building At the time of so contracting the partners did upon which the tank was to be erected, or who was the owner thereof, nor were they conversant with labor conditions in Fresno, as was the defendant. Defendant knew that the copartners were engaged in business and operated and maintained their works with nonunion labor. Pursuant to the contract, defendant thereafter designated a certain building, known as the "Wonder Store," in the city of Fresno, upon which building it